The Akron Legal News

Mother in motel room drug deal loses appeal

JESSICA SHAMBAUGH
Special to the Legal News
Published: November 25, 2014

A woman found guilty of permitting drug abuse lost her appeal recently when the Third District Court of Appeals ruled that the evidence properly showed she knew a drug deal was taking place in her motel room.

The Marion County Court of Common Pleas convicted Anne Herr of permitting drug abuse in February 2014.

It sentenced her to one year of community control and she appealed to the Third District.

Before the three-judge appellate panel, Herr argued that her conviction was against the sufficiency of the evidence.

Specifically, she claimed she was not aware of the drug sale that took place and she was no longer in control of the motel room when it occurred.

Upon review of the record, the appellate judges found that the state presented testimony from Marion police detective Andrew Isom, confidential informant Roxie Welch and Sanjay Desai, who partially owned the motel in question.

Isom testified that he worked with Welch on a regular basis. He said on June 7, 2013, Welch called and told him about a potential drug buy.

Isom told the court he picked up Welch and she arranged to purchase crack cocaine from a man known as Diesel.

He said he searched Welch prior to the buy and fitted her with video and audio recording devices.

He then drove her to an America’s Best Value Inn and listened to the live audio as she made the buy.

When she returned, Isom field tested the substance and determined that it was crack cocaine.

Because he only knew the seller as Diesel, Isom said he contacted the motel to see who had rented the room. He found that it was rented to Herr and that she was late in checking out.

Further investigation revealed that Herr was connected to Darryl Dixon, whose photograph matched that of Diesel.

Herr was later arrested but Dixon was unable to be located.

During her testimony, Welch stated that when she entered the motel room a little after noon, a woman was in the room with Diesel.

She said the woman was near a table with a large amount of cocaine sitting on it. During the drug deal, Welch said the woman sat on the bed with a young girl.

Welch identified that woman as Herr in the courtroom. The video recording of the interaction corroborated Welch’s testimony.

On cross-examination, Welch admitted to struggling with drug addiction but said she was clean at the time of the buy and at the time of trial.

Desai testified Herr had rented the room in which she and Diesel were seen and motel records indicated she had stayed a little past her noon checkout time.

In her defense, Herr acknowledged knowing Diesel but said she had not been in a relationship with him since 2011.

However, she said she had a daughter with him and often saw him to arrange parental visitation.

She said she sometimes rented the motel room so that she would know where her daughter was when she was spending time with Diesel.

On the date of the drug deal, Herr said she got to the room to pick up her daughter and found Diesel had overslept.

She told the court she was having trouble getting Diesel ready to check out and asked housekeeping for more time. She indicated that she was still helping him get ready when Welch entered.

Herr denied seeing any cocaine in the room or knowing that a drug deal took place.

The appellate judges, however, rejected that argument. They noted that the evidence showed there was a large quantity of crack cocaine in plain sight and that the video demonstrated that Welch and Diesel did nothing to conceal their transaction.

“Thus under these facts and circumstances, when viewed most favorably to the prosecution, we find that a reasonable juror could infer from testimony regarding Diesel’s history and Herr’s proximity to the unconcealed drugs and the drug sale that Herr knowingly permitted the sale to occur,” Judge Stephen Shaw wrote for the court.

The judges, therefore, overruled that argument.

Herr next asserted that the transaction took place 11 minutes after her noon checkout time, meaning she no longer had control of the room.

Still, the judges found that Desai said he’s lenient about checkout time and housekeeping had already granted Herr’s request for more time.

“That she was able to inform the housekeeper that she needed more time after checkout time and received that time illustrates that Herr was still exercising control over the room at the time of the drug transaction. This Herr’s argument on this issue is also not well-taken,” Shaw stated.

Having overruled both of Herr’s contentions, the judges affirmed the lower court’s judgment of conviction.

Presiding Judge John Willamowski and Judge Vernon Preston joined Shaw to form the majority on the matter.

The case is cited State v. Herr, 2014-Ohio-4876.

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