[W]e conclude that a reasonable person could have found beyond a reasonable doubt that Mr. Tumblin was guilty of aggravated trafficking in drugs in the vicinity of a juvenile, in an amount equaling or exceeding bulk amount but less than five times the bulk amount.

 

State v. Tumblin

2023 – Ohio – 4099

Fifth District Appellate Court

Coshocton County, Ohio

November 14, 2023

 

Mr. Tumblin is a Target of END

Former Coshocton County Sheriff’s Detective Matt Woitel testified that around 10:00 P.M. on March 2, 2022, Coshocton County law enforcement executed multiple arrest warrants for Mr. Brayden Tumblin at the residence where he lived with his mother, grandmother, his thirteen-year-old stepsister, and his ten-year-old brother. Det. Woitel testified that Mr. Tumblin was the target in a drug investigation. He stated that the specific method used to target Mr. Tumblin was a new program called “END.”  This method is designed to target those with outstanding arrest warrants.

Methamphetamine and a Second Search Warrant

Det. Woitel confirmed that on March 2, 2022, Mr. Tumblin had an active arrest warrant. A search warrant was also obtained for the residence. When the arrest warrants were executed, Mr. Tumblin was found upstairs in his bedroom. When Det. Woitel entered the bedroom, he observed a substance that was later confirmed to be methamphetamine on the bed. After seeing drugs in plain view, detectives stopped and secured the residence. Det. Woitel then obtained a second search warrant.

Mr. Tumblin lived here on North 15th Street in Coschocton, Ohio [exact address is unknown] with his mother, grandmother, his thirteen-year-old stepsister, and his ten-year-old brother.  Mr. Tumblin claimed he had digital scales, exterior surveillance cameras and over trip bulk amount of meth in his bedroom because he ‘smokes a lot’ of meth.  Would either the trial court or Fifth District Appellate Court believe him?

What Landscaper Doesn’t Have Exterior Security Camera’s?

Det. Woitel  further testified that Mr. Tumblin had a computer monitor at the foot of the bed displaying video from surveillance cameras around the outside of the residence. Due to his training, education, and experience, Det. Woitel believed this to be significant. He testified that drug dealers usually have surveillance systems where they can monitor anyone approaching the location at all times. This allows them to know who is coming and going, if someone may be coming to rob them, and if cops are raiding them. No additional monitors, other than the one in Mr. Tumblin’s bedroom, were found inside the home.

A Bedroom Chock Full of Meth and a Cookie Container that Wasn’t

In addition to the surveillance equipment, a substance confirmed to be methamphetamine was found on the bed. There was a smoking device found under a pillow and a chunk of methamphetamine was found on the floor behind the bed. Three digital scales of differing size were also taken as evidence. State’s Exhibit 11 was identified as five scale calibration weights each weighing 100 grams. State’s Exhibit 12 was identified as two clear plastic baggies, one of which contained a white residue. Id. at 124. State’s Exhibit 13 was identified as a small, black, plastic baggie. State’s Exhibit 14 was identified as a plastic container with an orange lid that says “cookies” with a white residue inside.

Mr. Tumblin States he is a Cautious Meth Purchaser and Smokes a Lot of Meth

On March 8, 2022, Det. Woitel interviewed Mr. Tumblin at the Coshocton County Sheriff’s office. State’s Exhibit 18 was a video of the interview that was played for the jury. Mr. Tumblin told the detective that the drugs found were for his personal use. Mr. Tumblin told the detective that he “smoked a lot.” Mr. Tumblin said he had not sold drugs recently, but he had sold to a couple of friends a month or two ago. He only ever sold to two people. Mr. Tumblin said he had the scales and calibration weights because people try to rip you off when you purchase methamphetamines. Further, the security cameras were for protection from people vandalizing cars. Mr. Tumblin said he got the money to buy the drugs found in his room from his tax refund and landscaping work. Mr. Tumblin was found with forty dollars in cash. Mr. Tumblin discussed with law enforcement his “CashApp” transactions and Facebook Messenger communications, which showed no evidence that he was selling drugs, only buying them.

Indictment

On March 21, 2022, Mr. Brayden Tumblin was indicted with one count of Aggravated Trafficking in Drugs, methamphetamine, within the vicinity of a juvenile in an amount equal to or greater than the bulk amount but less than five times the bulk amount in violation of R.C. 2925.03(A)(2), a felony of the second degree.

Mr. Tumblin had Over Triple Bulk Amount of Meth in His Bedroom

Ashley Nutter is a forensic scientist at the Central Ohio Regional Crime Lab. She is the primary drug chemist for the lab. Ms. Nutter’s confirmed that States’ Exhibit 7 was the substance that she tested and confirmed to be methamphetamine. She identified States Exhibit 20 as the lab report for this matter. Ms. Nutter’s then testified that methamphetamine is a Schedule II controlled substance. She further testified that the “bulk amount” formethamphetamine is 3 grams and that the drugs found in Mr. Tumblin’s bedroom weighed 10.9 grams.

Jury Finds Mr. Tumblin Guilty and he is Sentenced to Eight to Twelve Years

After being instructed by the trial judge, the jury found Mr. Tumblin guilty of aggravated trafficking in an amount equal to or exceeding bulk amount but less than five times bulk amount, and that Mr. Tumblin committed the offense in the vicinity of a juvenile, in violation of R.C. 2925.03(A)(2) and (C)(1)(c), a felony of the second degree as set forth in Count 1 of the indictment. The court sentenced Mr. Tumblin to an indefinite sentence with a mandatory minimum term of eight years and a maximum term of twelve years.

Mr. Tumblin Appeals

Scales Help with Best Sales Practices

Former Detective Det. Woitel testified that based upon his training and experience surveillance cameras and monitors are used by individuals who sell drugs, as opposed to individuals who merely use drugs. He further testified that he found in the bedroom not one, but three digital scales of differing sizes. Det. Woitel testified that drug dealers used such scales to weigh the product before selling it because it is more accurate than merely “eyeballing the amount.” In that way, the seller will not lose money by selling too much. The former detective found Ziplock bags with weights to calibrate the scales. Two plastic bags with white residue were also recovered. The former detective testified that such bags can be used to put drugs in for resale. The former detective further testified that based upon his training and experience a user generally buys around 3.5 grams of methamphetamine at an average cost of $40.00. Mr. Tumblin had close to 11 grams in his possession. He noted that sellers will take that amount and try to sell off some of it to make money. In summary, based upon his training and experience, Det. Woitel  testified that the amount of drugs recovered, the scales the baggies and other containers would indicate drug trafficking as opposed to possession.

Circumstantial Evidence that Mr. Tumblin Did Not Just Smoke a Lot of Meth

Plastic baggies, digital scales, and video surveillance are often used in drug trafficking which could constitute circumstantial evidence that Mr. Tumblin was using these items to commit that crime. The state presented evidence that in his interview with Det. Woitel, Mr. Tumblin admitted to selling methamphetamines to friends around two months ago.

Appellate Court Upholds Aggravated Trafficking

Viewing this evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that Mr. Tumblin was guilty of aggravated trafficking in drugs in the vicinity of a juvenile, in an amount equaling or exceeding bulk amount but less than five times the bulk amount. We hold, therefore, that the state met its burden of production regarding each element of the crime and, accordingly, there was sufficient evidence to support Mr. Tumblin’s conviction.

Mr. Tumblin’s First Assignment of Error is overruled.

In his Second Assignment of Error, Mr. Tumblin argues the trial court erred in overruling his motion to suppress. Specifically, Mr. Tumblin contends that the officers failed to abide by O.R.C. §2935.12 when attempting to serve the arrest warrants and entered his home without consent and forcefully against warrant requirements.

Issue for Appellate Review: Whether the judge correctly found the entry in this case was not a forceable entry.

Did Grandma ‘Harbor a Fugitive’?

The only witness to testify during the May 10, 2022 hearing on Mr. Tumblin’s motion to suppress was Det. Woitel. Det. Woitel  testified that on March 2, 2022 he had three active arrest warrants from the Coshocton Municipal Court for Mr. Tumblin. Detectives went to the front door of the residence where Mr. Tumblin lived with his mother, grandmother, thirteen-year-old step-sister and ten-year-old brother. The detectives knocked and announced “sheriff’s office.”. The door was ajar and swung open, so the detectives stepped inside. They again announced, “sheriff’s office.” The detectives were met by Mr. Tumblin’s mother and grandmother. Mr. Tumblin’s grandmother told the detectives that Mr. Tumblin was not home; however, Mr. Tumblin’s mother stated that Mr. Tumblin was upstairs. No evidence was presented that either Mr. Tumblin’s mother or grandmother refused the detectives admittance or ask them to leave the home.

O.R.C. §2935.12 Forcible entry in making arrest; execution of search warrant provides, (A) When making an arrest or executing an arrest warrant or summons in lieu of an arrest warrant, or when executing a search warrant, the peace officer, law enforcement officer, or other authorized individual making the arrest or executing the warrant or summons may break down an outer or inner door or window of a dwelling house or other building, if, after notice of his intention to make the arrest or to execute the warrant or summons, he is refused admittance, but the law enforcement officer or other authorized individual executing a search warrant shall not enter a house or building not described in the warrant.

Established Case Law on Forced Entry

Mr. Tumblin did not challenge the validity of the arrest warrants or the fact that he lived at the residence in the trial court or in this Court. “[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603, (1980);

Uncontroverted Evidence that the Entry was Lawful

In the case at bar, the uncontroverted evidence established that Mr. Tumblin lived at the residence, the officers had three active warrants to arrest Mr. Tumblin and no force was used to enter the home. Accordingly, the trial court correctly overruled Thumblin’s motion to suppress.

Mr. Tumblin’s Second Assignment of Error is overruled.

Was a Juror Biased Because She ‘Backed the Blue’?

In his Third Assignment of Error, Mr. Tumblin argues that the trial Court “abused its discretion” by empaneling a biased juror. Specifically, Mr. Tumblin argues that Juror Number 8, L.C., expressed bias toward law enforcement and the State of Ohio.

CROSS: Okay. Do you believe you could be fair and impartial?

[Juror No. 8]: I can try. I mean, like she [referring to Juror No. 7] said, back the blue.

CROSS: You back the blue?

[Juror No. 8]: Yes. 100 percent.

CROSS: So, if two witnesses were at odds, law enforcement and an ordinary citizen, would you believe law enforcement over the ordinary citizen.

[Juror No. 8]: Yes.

[Note: Lots of the court’s analysis is omitted herein.]

Juror #8 Did Not Unequivocally Express She Could Not be Fair and Impartial

In the case at bar, it would have been preferable if, after expressing reservations about her ability to be fair and impartial, Juror Number 8 had been individually asked by the trial court or counsel if the juror could nevertheless follow the court’s instructions and render a fair verdict based solely on the evidence. Although Juror Number 8 expressed some reservations about her ability to serve impartially, Juror Number 8 never unequivocally expressed that she could not be fair and impartial. Unlike the juror in Hughes, Juror Number 8 was excused by Mr. Tumblin’s use of a preemptory challenge.

The record does not demonstrate that Juror Number 8 was unable to be impartial, and Mr. Tumblin has not established that Juror Number 8 was actually biased against him. Accordingly, the trial judge did not abuse his discretion in denying Mr. Tumblin’s challenge for cause of Juror No. 8.

Mr. Tumblin’s Third Assignment of Error is overruled.

Information for this article was obtained from State v. Tumblin, 2023 – Ohio – 4099.

State v. Tumblin, 2023 – Ohio – 4099 was issued by the Fifth District Appellate Court on November 14, 2023 and is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.

Lessons Learned:

  1. I Smoke Bulk Amount Defense … Failed – Coshocton County Sheriff’s Detective Matt Woitel and the Coshocton County Prosecutor’s Office did well to provide the criminal landscape of Mr. Tumblin’s meth selling business. The exterior cameras, scales, bulk amount of meth and the plastic container with the orange lid provided the court with enough information to prove beyond a reasonable doubt Mr. Tumblin was a meth-dealer.   Tumblin’s “I smoke bulk amount” defense failed but it failed because of the finite detail of the prosecutions case.
  2. Did Grandma Harbor a Fugitive? – If a person hinders the apprehension of another for a crime, then the concealer may violate O.R.C. §2921.32 Obstructing Justice “(A) No person, with purpose to hinder the discovery, apprehension, … of another for crime … shall do any of the following: (6) Prevent or obstruct any person, by means of force, intimidation, or deception, from performing any act to aid in the discovery, apprehension, or prosecution of the other person.”.  In this case Mr. Tumblin’s grandmother told the deputies that he was not home when he was at home.  Perhaps this was an honest mistake.  However, deputies (officers) may have times where a family member or friend can be charged with Obstructing Justice.  This is commonly called Harboring a Fugitive, but the official title is Obstructing Justice.
  3. Pre-Sent Arms! Both Coshocton County Sheriff’s Detective Matt Woitel and the Coshocton County Prosecutor’s Office should be highly commended for their outstanding work on Mr. Tumblin’s conviction. Well done!

Does your agency train on Aggravated Trafficking?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and objectively reasonable!

Robert H. Meader Esq.