Her “reasonable” explanation offered to negate her culpability was obviously not credible to the jury. A conviction is not against the manifest weight of the evidence simply because the jury chose to not believe the accused.

 

State v. Sheldon

2023 – Ohio – 2998

Twelfth District Appellate Court

Warren County, Ohio

August 28, 2023

 

Proactive Police Work – Loud Muffler

On Sunday March 13, 2022, at approximately 12:40 a.m., Lebanon Police Officer Darcie Kunka observed a suspicious vehicle at the Lebanon Church of God, 810 North Broadway Street, Lebanon, Ohio. When it reentered the roadway Officer Kunka observed that the vehicle had an excessively loud exhaust system. Therefore, Officer Kunka initiated a traffic stop based upon an equipment violation.

Lebanon Police Officer Darcie Kunka observed a suspicious vehicle at the Lebanon Church of God, 810 North Broadway Street, Lebanon, Ohio.  Officer Kunka’s proactive policing led to a dynamic arrest that was a Fourth Amendment symphony.  Would the Twelfth District Appellate Court agree?

Strong Odor of Raw Marijuana

Ms. Brandi Sheldon was the sole occupant of the vehicle. When Officer Kunka approached, Ms. Sheldon opened her door and told Officer Kunka that the window was not operational. However, when Ms. Sheldon opened the door, Officer Kunka smelled a strong odor of raw marijuana. Officer Kunka asked Ms. Sheldon if she had a medical marijuana card or hemp inside the vehicle. Ms. Sheldon responded in the negative. Officer Kunka noticed that Ms. Sheldon had bloodshot eyes and appeared excessively nervous. In addition, Officer Kunka observed marijuana “shake” plainly visible on the floor of the vehicle.

Digital Scale, Unlocked Magnetic Box with a Large Quantity of Methamphetamine

Officer Kunka ordered Ms. Sheldon out of the vehicle and conducted a brief weapons pat-down. Another officer arrived on scene to assist. Officer Kunka then searched Ms. Sheldon’s vehicle. On the passenger side, Officer Kunka found a bag containing a wallet with credit cards and identification cards belonging to Ms. Sheldon. The same bag also held, among other things, a digital scale, plastic baggies, $359 in cash, and an unlocked black magnetic box. The magnetic box contained a crystal-like substance and white powder, which Officer Kunka identified as a large quantity of methamphetamine.

Miranda Warning and a Felonious Bra with Different Methamphetamine and Two Knives

Ms. Sheldon was arrested and read her Miranda rights. While being transported to the Warren County Jail, Ms. Sheldon told Officer Kunka that she had additional methamphetamine in her bra. She stated it was “different” from the methamphetamine found in her vehicle. Officer Kunka asked Ms. Sheldon whether she had any additional contraband, which Ms. Sheldon denied. Officer Kunka testified that she provided Ms. Sheldon with ample opportunity to disclose any other contraband and warned her that taking items into the jail would result in an additional charge. When she arrived at the jail, officers searched Ms. Sheldon’s bra and found a bag containing 13.81 grams of methamphetamine and $147 in cash. Officers also found two small knives concealed in the wiring of Ms. Sheldon’s bra.

Miami Valley Crime Lab Determines the Meth was Meth

The methamphetamine was sent to the Miami Valley Crime Lab where it was tested and weighed. The results of the testing confirmed that both the substance found in the vehicle and the substance found in Ms. Sheldon’s bra were methamphetamine and had a combined weight of 42.03 grams.

Indicted

On April 11, 2022, Ms. Sheldon was indicted on four counts:

Count 1: Aggravated trafficking in drugs in violation of O.R.C. §2925.03(A)(2), a second-degree felony,

Count 2: Aggravated possession of drugs in violation of O.R.C. §2925.11(A), a second-degree felony,

Count 3: Illegal conveyance of weapons onto the grounds of a government facility in violation of O.R.C. §2921.36(A)(1), a third- degree felony, and

Count 4: Illegal use of drug paraphernalia in violation of O.R.C. §2925.14(C)(1), a fourth-degree misdemeanor.

Motion to Suppress is Denied

Ms. Sheldon pled not guilty. She later filed a motion to suppress, which the trial court denied.

Guilty Verdict and Sentenced to Five and a Half to Seven and a Half Years in Prison

The case proceeded to a jury trial beginning on November 21, 2022. Ms. Sheldon was found guilty as charged and sentenced to a mandatory prison term of five-to-seven- and-one-half years in prison. Ms. Sheldon timely appeals her conviction, raising four assignments of error for review.

Appeals

Vehicle Search

We begin with the search of the vehicle. Ms. Sheldon argues that her motion to suppress should have been granted because law enforcement lacked probable cause to conduct a warrantless search. For a search or seizure to be reasonable, it must be based on probable cause and executed pursuant to a warrant, unless an exception to the warrant requirement applies. State v. Braxton, 2020-Ohio- 424.

One of the exceptions to the Fourth Amendment mandates is the automobile exception. State v. Welch, 18 Ohio St.3d 88, 91 (1985). Under the automobile exception, a warrantless search of a lawfully stopped automobile is not unreasonable within the meaning of the Fourth Amendment when law enforcement has probable cause to believe the vehicle contains contraband and exigent circumstances necessitate a search or seizure.

Ms. Sheldon Argues Officer Kunka Should Have Ignored Probable Cause

On appeal, Ms. Sheldon does not discuss the automobile exception to the warrant requirement and fails to address several critical facts. Ms. Sheldon’s analysis does not include a discussion of the fact that Officer Kunka smelled raw marijuana when Ms. Sheldon opened her door and makes only passing reference to the fact that Officer Kunka actually observed marijuana in the vehicle. Nevertheless, Ms. Sheldon argues that she was cooperative when Officer Kunka pulled her over and that once she provided her license and insurance “the officer should have issued an equipment violation citation and moved on.”

Ignoring Probable Cause is ‘Without Merit’

Following review, we find Ms. Sheldon’s arguments are without merit. The supreme court has held that the smell of marijuana alone by an officer experienced in smelling it is sufficient probable cause to search a vehicle. State v. Moore, 90 Ohio St.3d 47, 50-51 (2000); The evidence in this case was even stronger than the facts before the supreme court in Moore, as Officer Kunka both smelled marijuana and observed it in plain view.

In addition, Officer Kunka made additional observations about Ms. Sheldon’s demeanor in considering the totality of the circumstances, i.e., Ms. Sheldon’s nervousness. This is a case where law enforcement clearly had probable cause to search Ms. Sheldon’s vehicle. The warrantless search of Ms. Sheldon’s vehicle was justified because of the imminent danger that the evidence could be lost or destroyed if not conducted immediately. Moore at 52. This is due to the vehicle’s mobility and because narcotics are easily and quickly hidden or destroyed. Id; State v. Mills, 62 Ohio St.3d 357, 367 (1992). Accordingly, we find no constitutional infirmity with the warrantless search of Ms. Sheldon’s vehicle.

Ms. Sheldon Argues that Her Voluntary Statements Violate the Miranda Doctrine

Ms. Sheldon next argues that the evidence recovered following her arrest and the statements she made to Officer Kunka should have been suppressed. As noted above, after she arrested Ms. Sheldon, Officer Kunka provided Ms. Sheldon with her Miranda rights and placed her in the cruiser. On the way to Jail, Ms. Sheldon volunteered that she had additional methamphetamine in her bra to Officer Kunka. Officer Kunka then asked Ms. Sheldon if she had anything else in her possession and warned her that taking any other items of contraband into the jail may subject her to additional penalties. Ms. Sheldon said she had “just the meth.”

Ms. Sheldon Fails to Identify Established Case … Because None Exists

Ms. Sheldon provides no persuasive authority to support her claims that the statements she made should be suppressed. She claims to have had a right to counsel and submits that oral statements “obtained by law enforcement in violation of the guarantees of the Fifth, Sixth, and Fourteenth Amendments” are inadmissible in court proceedings. However, Ms. Sheldon does not dispute that Officer Kunka provided her with her Miranda rights and there is no suggestion that Ms. Sheldon requested counsel.

[Footnote #2 Law enforcement does not violate a suspect’s Fifth Amendment right to an attorney when a suspect does not unambiguously request counsel. State v. Williams, 2003-Ohio-4164; Davis v. United States, 512 U.S. 452 (1994).]

Established Case Law in Support of the Statements Should be Admissible

We also note Ms. Sheldon initiated the conversation with Officer Kunka. Edwards v. Arizona, 451 U.S. 477, 484-485, (1981); State v. Clifton, 2017-Ohio-9099, (where individual gave statement of their own volition and not the result of in-custody interrogation no constitutional violation occurred).

Ms. Sheldon Claims Voluntary Statements are Fruits of the Poisonous Tree

Notwithstanding, Ms. Sheldon then generally suggests that the statements should have been suppressed because the search of her vehicle was improper and therefore “any such statement made or subsequent material recovered (the drugs and knives in her bra) are all fruit of the proverbial poisonous tree.” However, Ms. Sheldon fails to apply the facts and circumstances in any convincing way and further fails to articulate any persuasive authority supporting her conclusions.

Court Holds “There is simply no constitutional violation”

Following review, we find the trial court did not err by denying Ms. Sheldon’s motion to suppress. The evidence from the stop and search, and subsequent statements, were permissible at trial. The evidence submitted during the suppression hearing is that after Officer Kunka provided Ms. Sheldon with her Miranda rights, Ms. Sheldon provided voluntary statements about the methamphetamine in her bra and that she had nothing else in her possession. All aspects of the stop and search were permissible and any statement Ms. Sheldon provided was not “fruit of the poisonous tree.” There is simply no constitutional violation, as Ms. Sheldon was permitted to waive any right against self-incrimination and make a statement. State v. Wesson, 2013-Ohio-4575. Ms. Sheldon has not established any constitutional infirmity supporting suppression. Ms. Sheldon’s first assignment of error is overruled.

Trafficking in Drugs

The trafficking in drugs statute provides that “[N]o person shall knowingly … [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or controlled substance analog is intended for sale or resale by the offender or another person.” O.R.C. §2925.03(A)(2).

Drug Paraphernalia

Additionally, the possession of drug paraphernalia statute states “[N]o person shall knowingly use, or possess with purpose to use, drug paraphernalia.” O.R.C. §2925.14(C)(1).

Knowingly

“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.” O.R.C. §2901.22(B).

Ms. Sheldon Argues She is a Much Better Drug Dealer than What Officer Kunka Accusers her of Being

Ms. Sheldon makes the same argument for Count 1 and Count 4. Namely, she claims there was insufficient evidence to show she was trafficking in drugs (or possessing drug paraphernalia). In her argument, Ms. Sheldon states that if she had known there were drugs in the magnetic box “it is reasonable to conclude” that she would have either locked the magnetic box or placed it somewhere else. Presumably, she means that she would have placed the drugs in a location where she could have better concealed her crime. In sum, Ms. Sheldon argues that her actions on the night of her arrest “show a lack of awareness” regarding the drugs and drug paraphernalia found in the magnetic box because she pulled her vehicle over and was cooperative.

Not Being a Better Drug Dealer is Not “A Compelling Argument”

However, the jury, as the trier of fact, was in the best position to determine the credibility of witnesses and weight to be given to the evidence. The jury heard evidence that Ms. Sheldon possessed a large amount of drugs consistent with trafficking and was also in the possession of other items commonly used in the trafficking of drugs. Ms. Sheldon was in possession of a digital scale, large amounts of cash, plastic baggies, and an item commonly used to break up solid chunks of methamphetamine. Ms. Sheldon essentially argues that because the drugs were found easily in an unlocked box that it was “reasonable to conclude” that she was not guilty. However, this is simply not a compelling argument. It invites speculation and ignores the overwhelming evidence presented at trial. The jury was tasked with determining whether the state proved the charges against Ms. Sheldon beyond a reasonable doubt and after hearing the evidence found her guilty. Contrary, to her arguments made in this appeal, we find her convictions for aggravated trafficking in drugs and misdemeanor possession of drug paraphernalia are supported by sufficient evidence and are not against the manifest weight of the evidence.

Ms. Sheldon Argues She Forgot About the Two Knives Nestled in Her Felonious Bra

Additionally, Ms. Sheldon was convicted of illegal conveyance of weapons into a detention facility in violation of O.R.C. §2921.36(A)(1), which prohibits the knowing conveyance of deadly weapons into a detention facility. Ms. Sheldon admits that she possessed knives but argues that she did not do so “knowingly.” Ms. Sheldon claims she had been forthcoming about the drugs in her bra and it “is reasonable to conclude she was nervous and forgot about them.” Ms. Sheldon asks “Why would she admit there was meth in her bra as she was being processed and consent to being searched, but not mention the knives as they searched her?

Both the Jury and Appellate Court Reject the “What’s in Brandi’s Bra’ Forgetfulness Defense

However, Ms. Sheldon’s argument as to this count is similarly without merit. In the present case, Ms. Sheldon was arrested and placed in the back of a police cruiser. She informed Officer Kunka that she had methamphetamine in her bra. Officer Kunka asked Ms. Sheldon if she had any other contraband and warned her that taking additional items into the Jail would result in an additional charge. Despite being provided with ample opportunity to do so, Ms. Sheldon never disclosed that she had knives concealed in her bra when she was searched at the Warren County Jail. Her “reasonable” explanation offered to negate her culpability was obviously not credible to the jury. A conviction is not against the manifest weight of the evidence simply because the jury chose to not believe the accused. State v. Sias, 2010-Ohio-3566.

Ms. Sheldon’s Convictions are Upheld

Following review, we find Ms. Sheldon’s convictions are supported by sufficient evidence and are not against the manifest weight of the evidence. Ms. Sheldon’s second and third assignments of error are overruled.

Information for this article was obtained from State v. Sheldon, 2023 – Ohio – 2998 and an email from Officer Darcie Kunka.

State v. Sheldon, 2023 – Ohio – 2998 was issued by the Twelfth District Appellate Court on August 28, 2023 and is binding in the following Ohio Counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.

Lessons Learned:

  1. Constructive Possession – After Officer Kunka smelled the strong odor of raw marijuana the following occurred: “On the passenger side, Officer Kunka found a bag containing a wallet with credit cards and identification cards belonging to Ms. Sheldon. The same bag also held, among other things, a digital scale, plastic baggies, $359 in cash, and an unlocked black magnetic box. The magnetic box contained a crystal-like substance and white powder, which Officer Kunka identified as a large quantity of methamphetamine.” Though the court did not mention the doctrine by name, Ms. Sheldon Constructively Possessed the magnetic box full of methamphetamine. The Constructive Possession doctrine was established by the Supreme Court of Ohio in 1982. That court carved out a two-part Constructive Possession test; 1) When an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical control; 2) The defendant was conscious of the object’s presence. State v. Hankerson, 70 Ohio St.2d 87 (1982)  The primary challenge for most constructive possession cases is for law enforcement to prove that the suspect was ‘conscious’ of the object in the second prong.  Here, Ms. Sheldon was conscious of the magnetic box since it was in the same bag as her credit cards and identification cards.  That legal analysis is so easy even a police recruit or first year law student can make that argument.
  2. Much Better Drug Dealer than She is Accused? Ms. Sheldon argued that the magnetic box was not her own because if it were, she would have secreted it better and/or locked the box. In the moment Officer Kunka could not have predicted that Ms. Sheldon would take such an unusual legal position that she was a much better drug dealer than to have left her methamphetamine box in such an obvious place … and unlocked.  This is why Officer Kunka’s documentation was critical in the charging and conviction of Ms. Sheldon.  Officer Kunka’s actions are instructive for officers to document the salient facts in the moment as it is unknown when something that may seem unimportant in the moment can later be critical to conviction.
  3. Who Hasn’t Forgot About Two Knives Secreted in a Bra? Ms. Sheldon was convicted of Illegal Conveyance of Weapons O.R.C. §2921.36(A)(1) ‘’[K]nowingly convey … onto the grounds of a detention facility … any deadly weapon or dangerous ordnance.”.  Ms. Sheldon argued that she simply forgot about the two knives secreted in her bra.  Forgetfulness or negligence is not a valid legal defense.  For more on Illegal Conveyance see: Can a Law Enforcement Officer Ask a Suspect on His Way to Jail if He Possesses Contraband a Miranda Violation?.
  4. Pre-Sent Arms! Officer Darcie Kunka utilized the traffic code to develop probable cause to investigate a carload full of felonies. This is a textbook example of a pretextual stop.  The importance of aggressive self-initiated police work cannot be understated.  On Sunday March 13, 2022 Officer Kunka demonstrated how outstanding police work can keep the community safe of one more drug dealer. Well done!

Does your agency train on Vehicle Searches?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.