State v. Harwell

[Cite as State v. Harwell, 2022-Ohio-2706.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29318 : v. : Trial Court Case No. 2012-CR-2367 : MICHAEL D. HARWELL : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ........... OPINION Rendered on the 5th day of August, 2022. ........... MATHIAS H. HECK, JR. by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee MICHAEL D. HARWELL, #A687-427, London Correctional Institution, P.O. Box 69, London, Ohio 43140 Defendant-Appellant, Pro Se ............. EPLEY, J. -2- {¶ 1} Defendant-Appellant Michael D. Harwell appeals from the Montgomery County Court of Common Pleas’ order denying his application for post-conviction DNA testing. For the reasons that follow, the judgment of the trial court will be affirmed. I. Facts and Procedural History {¶ 2} The following facts are taken from this Court’s opinion in Harwell’s direct appeal, State v. Harwell, 2d Dist. Montgomery No. 25852, 2015-Ohio-2966. {¶ 3} On June 14, 2012, Jonathon Lambes and Jason Miller met at Lambes’s house to set up a potential drug deal. The following day, June 15, 2012, Miller came back to Lambes’s residence with a man called “B,” later identified as Harwell. After the meeting, Miller called Lambes to arrange a sale of two ounces of cocaine to “B.” {¶ 4} Following the request, Lambes contacted his supplier, Lori Peak, to see if she was willing to do business with “B.” According to Peak, Lambes asked her to remove three grams from the two ounces of cocaine as a “finders fee” and replace it with baking soda. Peak did as Lambes requested and testified that the cocaine she sold was a 70/30 cut, meaning it was 70 percent cocaine and 30 percent baking soda, fish scale, or creatine. {¶ 5} After Peak agreed to meet “B,” Lambes testified that “B” picked him up at his house and drove him to Peak’s residence. When the two men arrived, other people were present at the house, including Peak’s children and her own supplier. Peak testified that she gave “B” two ounces of cocaine in exchange for $2,400 in cash. “B” asked Peak if she “cut” the cocaine, to which she replied “no.” Following the transaction, Peak and “B” exchanged numbers, and after “B” and Lambes left, Peak noticed that “B” was driving a -3- white pickup truck with lettering on the doors and a ladder and ladder rack in the back of the vehicle. Lambes also testified that “B” drove a white truck with a company name on the doors. Another male was spotted in the passenger seat of the truck, but he never went inside Peak’s home. {¶ 6} After concluding the drug deal at Peak’s home, Lambes testified that “B” dropped him back off at his house and told him he “had just …

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