State v. JacksonState v. Jackson
Brian T. Goldberg, Cincinnati, Ohio, for appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, Jay S. Willis, Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Smith, P.J.
{¶1} Walter Jackson, “appellant,” appeals the May 15, 2023 judgment entry of the Scioto County Court of Common Pleas. Appellant was convicted of multiple drug and related offenses at a jury trial. Herein, appellant raises five assignments of error asserting that his trial attorney rendered ineffective assistance of counsel and otherwise challenging his convictions and sentence. Based on our review of the record, we find no merit to appellant‘s assignments of error. Accordingly, all are overruled and the judgment of the trial court is affirmed.
{¶2} Subsequent to appellant‘s jury trial wherein he was convicted of multiple drug and related criminal offenses, he appealed to this court. However, we found that we had no jurisdiction to consider the merits of the appeal due to lack of a final appealable order. See State v. Jackson, 2025-Ohio-322, “Jackson I.” We set forth the factual and procedural background as previously set forth in Jackson I at paragraphs three through seven.
{¶3} On August 2, 2022, an indictment was filed charging appellant with eight felony drug-related counts. Appellant was arrested on those charges, retained counsel, was arraigned, and pled not guilty. The matter then proceeded through discovery.
{¶4} Subsequently, on November 22, 2022, a second indictment was filed under the same case number charging appellant with 12 felony counts as follows:1
Count One:
Trafficking in a Fentanyl-Related Compound, in violation of
Possession of a Fentanyl-Related Compound, in violation of
Count Three:
Trafficking in a Fentanyl-Related Compound, in violation of
Count Four:
Possession of a Fentanyl-Related Compound, in violation of
Count Five:
Trafficking in Cocaine, in violation of
Count Six:
Possession of Cocaine, in violation of
Aggravated Trafficking in Drugs, in violation of
Count Eight:
Aggravated Possession of Drugs, in violation of
Count Nine:
Having Weapons While Under Disability, in violation of
Count Ten:
Having Weapons While Under Disability, in violation of
Count Eleven:
Improperly Handling Firearms in a Motor Vehicle, in violation of
Possessing Criminal Tools, in violation of
{¶5} Appellant wаs again arraigned and pled not guilty to the charges, but this time he was represented by appointed counsel, who had replaced his previously retained counsel. During the second arraignment hearing and the pretrial hearings conducted thereafter, the second indictment was referred to as a superseding indictment, and it appears the parties only discussed the counts contained in the second indictment.
{¶6} The matter thereafter proceeded to trial on March 13, 2023. Appellant was found guilty of all 12 counts contained in the second indictment, along with 8 firearm specifications. After merging several of the counts for purposes of sentencing, appellant received an aggregate prison sentence of 25 years and 6 months to an indefinite term of 31 years, with 18 years being mandatory. The trial court issued a judgment entry on May 15, 2023 imposing sentence. The entry was timely appealed, but dismissed as discussed in Jackson I.
{¶7} The appeal has now been perfected, and the May 15, 2023 judgment entry is properly before us. Additional facts are set forth below, where relevant.
- THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. JACKSON‘S SIXTH AMENDMENT RIGHTS BY ENTERING JUDGMENT OF CONVICTION AFTER A TRIAL AT WHICH HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FOR HIS DEFENSE.
- THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. JACKSON BY CONDUCTING THE TRIAL WITHOUT HIM BEING PRESENT.
- THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. JACKSON BY FAILING TO MERGE ALLIED OFFENSES OF SIMILAR IMPORT AT THE TIME OF SENTENCING.
- THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES WHEN THE RECORD DID NOT SUPPORT THE FINDINGS MADE BY THE TRIAL COURT TO IMPOSE CONSECUTIVE SENTENCES.
- MR. JACKSON‘S CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error One-Ineffective Assistance of Counsel
Standard of Review
{¶8} The
{¶9} To establish constitutionally ineffective assistance of counsel, a defendant must show that (1) trial counsel‘s performance was deficient and (2) the deficient performance prejudiced the defense and deprived the defendant of a fair trial. E.g., Strickland, 466 U.S. at 687; State v. Myers, 2018-Ohio-1903, ¶ 183; State v. Powell, 2012-Ohio-2577, ¶ 85. “Failure to establish either element is fatal to the claim.” State v. Jones, 2008-Ohio-968, ¶ 14 (4th Dist.). Therefore, if one element is dispositive, a court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389 (2000) (a defendant‘s failure to satisfy one of the ineffective-assistance-of-counsel elements “negates a court‘s need to consider the other“). See also Billiter, at ¶ 53.
{¶11} Moreover, when considering whether trial counsel‘s representation amounts to deficient performance, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance[.]” Strickland, 466 U.S. at 689; see Billiter, at ¶ 55. Thus, “the defendant must overсome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. Additionally, “[a] properly licensed attorney is presumed
{¶12} To establish prejudice, a defendant must demonstrate ” ‘a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Hinton, 571 U.S. at 275, quoting Strickland, 466 U.S. at 694; e.g., State v. Short, 2011-Ohio-3641, ¶ 113; State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus; accord State v. Spaulding, 2016-Ohio-8126, ¶ 91 (prejudice component requires a “but for” analysis). ” ‘[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.’ ” Hinton, 571 U.S. at 275, quoting Strickland, 466 U.S. at 695.
{¶13} On the prejudice prong, the defendant must show there is a reasonable probability the result of the proceedings would have been
{¶14} Furthermore, courts ordinarily may not simply рresume the existence of prejudice but, instead, must require a defendant to affirmatively establish prejudice. E.g., State v. Clark, 2003-Ohio-1707, ¶ 22 (4th Dist.); see Billiter, at ¶ 57. Additionally, we have repeatedly recognized that speculation is insufficient to establish the prejudice component of an ineffective assistance of counsel claim. E.g., State v. Tabor, 2017-Ohio-8656, ¶ 34 (4th Dist.); State v. Leonard, 2009-Ohio-6191, ¶ 68 (4th Dist.); accord State v. Powell, 2012-Ohio-2577, ¶ 86 (a purely speculative argument cannot serve as the basis for an ineffectiveness claim).
{¶15} If there was no prejudice, then there is no need to review whether the performance was deficient and vice versa. State v. Madrigal, 87 Ohio St.3d 378, 389 (2000). “There is no reason for a court deciding an ineffective assistance claim * * * to address both components of the inquiry if the defendant makes an insufficient showing on one.” Bradley, 42 Ohio St.3d at 143, quoting Strickland, 466 U.S. at 697. “The object of an ineffectiveness claim is not to grade counsel‘s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id.
Legal Analysis
{¶16} Appellant raises several issues under the first assignment of error.
Issue One-Motion to Suppress
{¶17} Appellant argues that his trial counsel should have filed a motion to suppress challenging probable cause for the stop. Appellant points to Trooper Lewis‘s testimony that he stops a lot of rental vehicles, pays special attention to rental cars, and decided to follow appellant because his vehicle had Florida plates. Appellant points out that when Trooper Lewis decided to follow him, he had not observed any traffic violations.
{¶18} “The
{¶19} ” ‘[S]earches [and seizures] conducted outside the judicial process, without prior approval by [a] judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ ” (Citations omitted.). State v. Conley, 2019-Ohio-4172, ¶ 17 (4th Dist.), quoting Katz v. United States, 389 U.S. 347, 357 (1967). “Once a defendant demonstrates that he or she was subjected to a warrantless search or seizure, the burden shifts to the state to establish that the warrantless search or seizure was constitutionally permissible.” State v. Dorsey, 2019-Ohio-3478, ¶ 13 (4th Dist.). In this case, Trooper Lewis acted without a warrant in initiating the traffic stop at issue.
{¶20} The record before us indicates that this case involved an investigatory stop. Investigatory stops “must be supported by a reasonable,
“To justify a traffic stop based upon reasonable suspicion, the officer must be able to articulate specific facts that would warrant a person of reasonable caution to believe that the driver has committed, or is committing, a crime, including a minor traffic violation.” State v. Taylor, 2016-Ohio-1231, ¶ 18 (4th Dist.). The existence of reasonable suspicion depends on whether an objectively reasonable police officer wоuld believe that the driver‘s conduct constituted a traffic violation based on the totality of the circumstances known to the officer at the time of the stop. Id.
{¶21} Additionally, a police officer may stop the driver of a vehicle after observing even a de minimis violation of traffic laws. See State v. Williams, 2014-Ohio-4897, ¶ 9 (4th Dist.), citing Whren v. United States, 517 U.S. 806 (1996), and Dayton v. Erickson, 76 Ohio St.3d 3 (1996), syllabus. “[A] traffic stop with the proper standard of evidence is valid regardless of the officer‘s underlying ulterior motives as the test is merely whether the officer ‘could’ have performed the act complained of; pretext is irrelevant if the action complained of was permissible.” See State v. Koczwara, 2014-Ohio-1946, ¶ 22 (7th Dist.), citing Erickson at 7 and 11, 665 N.E.2d 1091. Petty at ¶ 12-13.
{¶22} Furthermore, ” ’ “[t]he propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances.” ’ ” State v. Strong, 2019-Ohio-2888, ¶ 19 (4th Dist.), quoting State v. Eatmon, 2013-Ohio-4812, ¶ 13 (4th Dist.), in turn quoting State v. Freeman, 64 Ohio St.2d 291, paragraph one of the syllabus (1980). See Duncan, supra at ¶ 13. The totality of the circumstances approach ” ‘allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” ’ ” Strong at ¶ 19, quoting United States v. Arvizu, 534 U.S. 266, 273 (2002) (overruled in part on separate grounds by Davis v. Washington, 547 U.S. 813 (2006), in turn quoting U.S. v. Cortez, 449 U.S. 411, 418 (1981)).
{¶23}
{¶24} Trooper Lewis‘s stop of the rental vehicle was a marked lanes violation. Appellant acknowledges that prеtextual stops are permissible but points out that an officer must observe an actual traffic violation. Appellant argues that in this case, there is no evidence that a marked lanes violation occurred. He claims because the stop was unlawful, the evidence found as a result should have been suppressed. Appellant concludes that his counsel was ineffective for failure to file a motion to suppress. For the reasons which follow, we disagree.
{¶25} At trial, Trooper Lewis testified he was working on Tuesday, June 28, 2022, at approximately 11:00 p.m. when he observed appellant‘s vehicle, a Dodge Ram truck with Florida license plates which appeared to be a rental vehicle. Because it caught his attention, he began to follow it southbound on U.S. 823. Trooper Lewis identified and authenticated State‘s Exhibit 1, video camera footage from his cruiser. Exhibit 1 contained three files, a front camera, body camera, and rear camera which captured his stop and investigation. The prosecutor played the footage for the jury. Trooper Lewis testified that he activated his overhead lights, got behind appellant‘s
So around Mile Post 14.4, which would be that slight righthand curve there in the roadway, he drifted over the white fog line there, and then as we came under the overpass for Fallen- - Lucasville...Fallen Timber, we - - he crossed over the white fog line on two separate occasions by a tire width on that- - which you can see that on the video, and I initiated a traffic stop for it...So, it‘d be his right-side tires completely over the white fog line.
{¶26} Appellant concedes that the footage from the front camera, which captured the stop, clearly shows the rental vehicle touching the fog line. However, appellant contends it is not at all clear if the vehicle ever crossed completely over the fog line. The Supreme Court of Ohio has recently explained that although driving on or touching the white fog line does not constitute a marked lanes violation, the plain language of
{¶27} ” ‘Counsel‘s failure to file a motion to suppress is not per se ineffective assistance of counsel.’ ” State v. Woodfork, at ¶ 79, quoting State v. Thompkins, 2024-Ohio-4927, ¶ 66 (4th), citing State v. Walters, 2013-Ohio-772, ¶ 20 (4th Dist.), in turn citing State v. Madrigal, 87 Ohio St.3d 378, 389 (2000). Rather, ” ‘the failure to file a motion to suppress amounts
{¶28} Based upon our review of the front camera footage, it appears that appellant drove a tire-width across the fog line at least once, and it looks like he drove on the fog line a substantial period while being observed. Trooper Lewis, however, was the person observing appellant on the highway that night. Trooper Lewis‘s trial testimony was detailed and clear that appellant drove over the fog line a tire-width at least twice. Undoubtedly, this would have been Trooper Lewis‘s testimony at a suppression hearing on the matter.
{¶29} At a suppression hearing, the trier of fact would be free to discount or outright reject Trooper Lewis‘s testimony, and it would have been free to accept it. State v. Hammond, 2019-Ohio-4253, ¶ 56 (4th Dist.); State v. Wooten, supra, at *4. Based upon our review, we find that the trial court would most likely have concluded that under the totality of the
Issue Two-Objections
{¶30} Appellant argues that his counsel should have made several objections to irrelevant and unfairly prejudicial evidence relating to the troopers’ testimonies about the marijuana they found in the rental vehicle and Trooper Lewis‘s description of appellant‘s clothing. Appellant argues that none of this testimony was relevant because he was not charged with trafficking or possession of marijuana. He contends that the marijuana and clothing testimony was offered only to urge the jurors to assume that ” he is a drug dealer.” He asserts that trial counsel‘s failure to object to this irrelevant and unfairly prejudicial evidence constituted ineffective assistance of counsel. For the reasons which follow, we disagrеe.
Legal Analysis
{¶31} Both officers testified they smelled the odor of marijuana when they approached appellant‘s vehicle. Trooper Day testified that as soon as he opened the driver‘s door, he noticed the “strong odor of raw marijuana.”
{¶32} Trooper Day testified he could see “shake” lying all over the floor of the vehicle. He explained that “shake” is “bits and pieces of marijuana that fall when people are rolling marijuana into a cigar. Trooper Lewis described appellant as wearing a shirt with a logo that read: “Purple Hash” and had a marijuana leaf on each side.
{¶33} We have observed that “trial counsel‘s ‘failure to make objections is not alone enough to sustain a claim of ineffective assistance of counsel.’ ” State v. Platt, 2024-Ohio-1330, at ¶ 93 (4th Dist.), quoting State v. Conway, 2006-Ohio-2815, ¶ 103; accord State v. Sowell, 2016-Ohio-8025, ¶ 144 (rejecting argument that failing to preserve error is inherently prejudicial and stating, “[i]t is not enough that an alleged error resulted in a disadvantage for an accused“). Instead, a defendant still must “show that any particular failure to object substantially violated an[ ] essential duty [and] was prejudicial.” State v. Fears, 86 Ohio St.3d 329, 347(1999); accord State v. Holloway, 38 Ohio St.3d 239, 244 (1988).
{¶34} Additionally, trial counsel‘s decision to object, or not to object, may be a legitimate trial strategy or tactical decision for the reason that
“any single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial * * * that failure to object essentially defaults the case to the state. Otherwise, defense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel‘s failure cannot reasonably have been said to have been part of a trial strategy or tactical choice.”
Johnson at ¶ 140, quoting Lundgren, 440 F.3d at 774; cf. United States v. Cronic, 466 U.S. 648, 656 (1984). We are also mindful that objections of counsel are subject to the trial court‘s broad discretion in the admission or exclusion of evidence. See State v. Dodridge, 2025-Ohio-2856, ¶ 44 (4th Dist.) (Citations omitted).
{¶35} In September 2016, medical marijuana was legalized in Ohio.
{¶37} In State v. Thompson, 2020-Ohio-5257 (8th Dist.), Thompson challenged the admission of the marijuana seized during the stop under
The marijuana is clearly visible in the video and the officers speak with each other about finding it. The admission of the video (without any redactions or edits) ensured that the jury would learn that Mr. Thompson possessed marijuana at the time of the stop. Since the jury appreciated the presence of marijuana on the scene through properly-admitted evidence, we find that the admission of the raw marijuana, if erroneous, would constitute harmless error on this record. In other words, it did not tell the jury anything that it did not already know.
{¶39} Similarly, defense counsel stipulated to admission of State‘s Exhibit 1, the traffic camera footage from Trooper Lewis‘s cruiser. In the video, the loose marijuana on the floor and the marijuana mixed in the Swisher Sweets package is plainly visible. Furthermore, when appellant exited the vehicle, his T-shirt with its logo of “Purple Hash” with a marijuana leaf on each side is also plainly visible.
{¶41} We view counsel‘s decision not to object as a matter of trial strategy. Accordingly, we do not find counsel‘s performance was deficient. This argument is also without merit.
Issue Three - Crim.R. 29
{¶42} At the conclusion of trial, appellant‘s attorney declined to make a
Standard of Review- Crim.R. 29 motions
{¶43}
{¶44} As will be discussed fully below, we find appellant‘s convictions are supported by sufficient evidence. Therefore, in our view, had trial counsel made a
{¶45} At trial, defense counsel did not cross-examine Trooper Day or Brianna Ray, the OSHP‘s forensic analyst. Herein, appellant suggests that Trooper Day could have been questioned as to his own forensic testing or why the troopers apparently did not attempt to speak to appellant‘s brother who had allegedly had the rental car the day before. Appellant urges that questioning of Trooper Day could have emphasized the lack of appellant‘s actual possession of the contraband and the fact that appellant did not attempt to hide or tamper with the contraband and substances found during the search appellant also argues that his counsel should have explored Ray‘s testing procedures on the various illicit substances. For the reasons which follow, we disagree that counsel performed deficiently on these bases.
{¶46} “Generally, ‘[t]he extent and scope of cross-examination clearly fall within the ambit of trial strategy, and debatable trial tactics do not establish ineffective assistance of counsel.’ ” State v. Guysinger, 2017-Ohio-1167, ¶ 27, quoting State v. Leonard, 2004–Ohio–6235, ¶ 146. Moreover, ” [a]n appellate court reviewing an ineffective assistance of counsel claim must not scrutinize trial counsel‘s strategic decision to engage, or not engage, in a particular line of questioning on cross-examination. ”
{¶47} Based on our review, we conclude that trial counsel made strategic choices. Appellant‘s claim that cross-examination on the above topics would have aided his case is mere speculation. See State v. Russell, 2009-Ohio-5145, at ¶ 27 (4th Dist.). His trial counsel may have concluded that cross-examination on the above topics would have only reinforced the amounts of the substances, emphasized appellant‘s lack of surprise when the contraband was discovered, and further damage appellant‘s credibility.
{¶48} Appellant also claims his trial attorney‘s closing argument was ineffective. First, he points out the defense closing argument was less than two pages. Appellant next suggests that his аttorney should have discussed reasonable doubt more fully. Finally, appellant argues that his counsel should have discussed the lack of physical evidence against him. Again, for the reasons which follow, we disagree.
{¶49} “[C]ounsel are afforded wide latitude during closing arguments. The length of a closing argument ordinarily involves questions of discretion and strategy.” State v. Billiter, at ¶ 67 (4th Dist.), quoting State v. Grate, 2020-Ohio-5584, ¶ 163; accord State v. White, 2024-Ohio-549, ¶ 65 (4th Dist.), quoting Guysinger, at ¶ 34 (4th Dist.) (“Generally, ‘[c]ounsel‘s
{¶50} In Billiter, appellant argued similarly that trial counsel failed to provide the effective assistance of counsel during closing argument as follows:
[C]ounsel‘s closing argument “was not effective and likely had little impact on the jury…” [T]rial counsel‘s closing argument spans “less than three pages of the transcript.” [S]he did not “discuss reasonable doubt, the importance of it, or how high of a burden it is for the State to overcome.”
{¶51} In Billiter, we concluded that “appellant could overcome the presumption that the length and substance of trial counsel‘s closing argument was a matter of reasonable trial strategy, especially considering the strength of the State‘s evidence.” Id. at ¶ 68. The same is true herein. The State of
Issue Five - Preparation for Trial
{¶52} Appellant contends that his trial counsel was not prepared for his trial and failed to meet with him in the days leading up to trial. Appellant cites to a discussion the first morning of trial. Defense counsel made a motion to continue the trial indicating that appellant had new counsel he wished to represent him. Appellant indicated that he thought the trial was being continued due to a scheduling conflict. He then stated: “I‘ve been told one thing and it‘s been another here in court.” Appellant indicated he thought he would be having a suppression hearing, not at trial. He found out
{¶53} In response, defense counsel explained the details of the scheduling conflict and its resolution. The assistant prosecutor also advised the court that appellant would have known about the trial date at his final pretrial hearing. Appellant reiterated his displeasure and view of the situation. Appellant also referenced plea negotiations as follows: “[Y]es, I was told when they pulled the deal off the table, I- - I hadn‘t even heard of that deal before ten minutes before I came into court that day.” The trial court then looked at his notes and advised appellant that the offer was originally made at the end of November 2022. Appellant maintained that he had not been informed.
{¶54} “Absent any indication in the record * * * that counsel failed to properly investigate the case and adequately prepare for trial and given the presumption of competent representation, we cannot conclude that counsel‘s performance fell below an objective standard of reasonableness.” State v. Laws, 2021-Ohio-166, at ¶ 47 (3d Dist.); State v. Griffin, 3d Dist. Allen No. 1-03-31, 2004-Ohio-287, ¶ 17. “[A]claim of ineffective assistance of counsel on direct appeal cannot be premised on decisions of trial counsel that are not reflected in the record of proceedings[,] * * * [or] [s]peculation
{¶55} Based on the foregoing, appellant‘s first assignment of error, in its entirety, is hereby overruled.
Assignment of Error Two - Trial in Absentia
Standard of Review
{¶56} Under the second assignment of error, appellant contends that the trial court erred when it proceeded with the jury trial despite his absence. This argument implicates appellant‘s federal and state due process rights. To find that a defendant‘s right to confrontation was violated, we must find that the trial court abused its discretion in removing the defendant. See State v. Dumas, 2015-Ohio-2683, at ¶ 19 (7th Dist.), citing Illinois v. Allen, 397 U.S. 337 at 343 (1970).
Legal Analysis
{¶58} However, a defendant‘s right to be present at trial is not absolute. State v. White, 82 Ohio St.3d 16, 26 (1998).
{¶59} Appellant failed to attend the second day of his trial. In Taylor v. United States, 414 U.S. 17 (1973), the United States Supreme Court discussed
[
FRCP 43 ] reflects the long-standing rule recognized by this Court in Diaz v. United States, 223 U.S. 442, 455 (1912):“(W)here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves
the court free to proceed with the trial in like manner and with like effect as if he were present.” (Citations omitted.)
{¶60} Ohio case law also provides that after a trial has commenced in the defendant‘s presence, a trial court may proceed without the defendant if the absence is voluntary. State v. Murray, 2004-Ohio-654, at ¶ 12 (1st Dist.); State v. Liston, 1999 WL 778377, * 3 (11th Dist.). Whether or not a defendant‘s absence is voluntary is an issue of fact. Id., quoting In re Ruth, 1998 WL 552997, at *3 (11th Dist.); State v. Chancey, 2000 WL 193235, at *4 (8th Dist.). This court is bound to accept a trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Dalton, 2003-Ohio-3813, at ¶ 20. Unrebutted evidence that the defendant was aware of his obligation to attend the court proceeding and did not appear is sufficient to support a finding that the absence is voluntary. See Chancey, at *4.
{¶61} When appellant failed to attend, the parties discussed the matter out of the presence of the jury as follows:
Mr. Stratton: Yes, Your Honor. Mr. Jackson contacted me about 7:00 a.m. this morning, indicating that he has car trouble. I informed the Court shortly after that, along with the Prosecutor, that my client was having a problem with - - car trouble. He indicated he is still in Michigan. The last communication I had with him was at 8:15. I have sent him four additional text messages after that trying to get his location, and then asking him additional questions. I also tried to call him twice. I‘ve left two voice messages, and I can attempt to call him to - - again on the record, if you sо, please.
The Court: …We were here til a little bit after 5:00 last night…. A little surprising he would decide to drive back to Michigan last night considering I - - I‘d informed him that we needed to talk this morning and go over jury instructions at 8:30. I‘m thinking it‘s about a five-hour drive, maybe longer, depending on which side of Michigan he lives in…. Any reason why he decided to go back to Michigan? To be honest, Mr. Stratton, it looks like he wasn‘t planning on coming back.
Mr. Stratton: Your Honor, he said he would be back. I specifically asked him that yesterday. I said, “make sure you come back tomorrow.” He said, “I‘ll be back. I‘ll be here.” And his…reason for not being here earlier is because of car trouble. That‘s why he‘s saying - - he gave some indication of that.
The Court: Well, I know I‘d asked you to find out where he is at having car trouble so we could send local law enforcement by to check on his wellbeing, see if they could get the car started, and getting him headed this direction. If you have been able to find out from him exactly where he‘s at?
Mr. Stratton: Your Honor, I asked him “what is the address you‘re at.?” I‘ve asked him that twice. I‘ve also asked - - left voice messages for that, asking him where he‘s at, that “the Court needs to know.” Your Honor, my text messages have read receipts on them, and the last four messages, he has read, but has not responded.
The Court: … So, anything else you‘d like to say for the record, Mr. Stratton?
Mr. Stratton: Your Honor, he could be out, you know, trying to get his car fixed. He was here all day yesterday. I have no other - - nothing else to say on it.
{¶63} At this point, the trial court noted that it was near the end of trial and that the jury had been sworn and as such, the court would proceed with trial in appellant‘s absence. The court issued a warrant for appellant‘s arrest. Defense counsel moved for a mistrial, noting that appellant had given a reason for his absence. The trial court denied the motion.
All right. Well, you‘ve probably noticed that the Defendant is not present. As jurors, you must not speculate on why the Defendant is not present. This trial will continue without him being present. You must…also not consider the fact he is not present for any purpose. Your duties as jurors is constrained to determining the issues as raised in the indictment, and you may not consider the Defendant‘s absence for any purpose. My question to the jurors and the alternative juror is can you follow this instruction? If so, I need you to nod your heads, yes. Okay. Anyone that feels they cannot follow my instruction? No one‘s raised their hand. All right. The trial will continue with the defendant‘s absence.
{¶65} Based on our review, it appears that appellant‘s absence was completely voluntary.4 In this case, it also appears that the trial court gave appellant every benefit of the doubt, giving defense counsel additional time to try to secure appellant‘s presence, offering to delay the start of trial if appellant confirmed the reason for his absence, and crafting the special jury instruction. We also find no reason to conclude that the jurors did not follow the instruction.
{¶66} Based on the foregoing, appellant‘s second assignment of error is also without merit and is hereby overruled.
{¶67} At sentencing, the trial court merged Counts One,
Standard of Review
{¶68} The Double Jeopardy Clause of the
(A)Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶70} Although the trial court‘s duty to merge allied counts at sentencing is mandatory, State v. Underwood, 2010-Ohio-1, ¶ 26, a defendant bears the burden to establish that he is entitled to the
Legal Analysis
{¶71} In State v. Ruff, 2015-Ohio-995, the Supreme Court of Ohio discussed the proper analysis to determine whether two offenses merge
{¶72} Appellant argues that the fentanyl found in Count One was located in an energy drink can and the fentanyl found in Count Three was located in a backpack. Appellant submits that these are offenses of similar import because the substances were located at the same time and place. Appellant argues that Ohio‘s drugs trafficking and possession laws are aimed at preventing harm to single victim - society in general. See generally
{¶73} In response to appellant‘s arguments, the State asserts that the fentanyl relating to Counts One and Three constituted offenses with separate animus and are offenses of dissimilar import. At sentencing, the prosecutor argued that the fentanyl relating to Count One was discovered in a Venom energy drink can that was concealed in a false compartment. The fentanyl in Count One was part of a 72.3-gram mixture of fentanyl, tramadol, and cocaine. By contrast, the fentanyl relating to Count Three was found in a storage compartment behind the driver‘s seat. This fentanyl was in an amount of 10.13 grams and was solely fentanyl.
{¶74} On appeal, the State also points to the digital scales, sandwich baggies, and loaded firearm also located in the vehicle. The State contends that these items, along with the drugs of different weights and found in separate compartments, all reflect indicia of trafficking and intent to sell these items separately. The State urges us to conclude that Counts One and Three resulted in separate animus and are offenses of similar disport.
{¶75} We note that at sentencing, appellant had a new attorney, who raised the issue of merger but did not formally object when the trial court declined to merge Counts One and Three. Therefore, the argument is
{¶76} Appellant‘s argument is similar to an argument posited in State v. Jones, 2024-Ohio-2959 (3d Dist.). On appeal, Jones argued that the trial court erred by failing to merge his aggravated-possession-of-drugs convictions under Counts Three and Four in his case because “[t]he relevant drug-related statutes do not clearly indicate that the General Assembly intended to punish crystal-form and pill-form methamphetamine doubly.” Id. at ¶ 50.
{¶77} The Jones court began by observing that “[t]he term ‘animus’ means ” ‘purpose or, more properly, immediate motive.” ’ ” Id., at ¶ 49 (citations omitted), quoting State v. Logan, 60 Ohio St.2d 126, 131 (1979).
{¶78} The Jones court also observed at ¶ 55 that it is well established that ” ‘the legislature intended the possession of the different drug groups to constitute different offenses.’ ” State v. Polachek, 2010-Ohio-5421, ¶ 27, quoting State v. Delfino, 22 Ohio St.3d 270, 273 (1986). However, Jones was found guilty of committing two separate counts of possessing the same substance in different forms. In support of his argument that his convictions were allied offenses of similar import under
{¶79} The Jones court agreed with the State, finding that based on the specific facts and circumstances of the case, the trial court did not err by failing to merge Jones‘s aggravated-possession-of-drugs convictions. “[E]ven though the methamphetamine was discovered on the same day in Jones‘s residence (albeit in different forms), we conclude that Jones committed the offenses separately and with a separate animus or motivation.” Id. at ¶ 58. The Jones court pointed to its own prior decision that the simultaneous possession of a single drug in different forms is not dispositive of an allied-offense analysis. See State v. Kamara, 2019-Ohio-5385, ¶ 47 (3d Dist.), (concluding that “although powder cocaine and crack cocaine are two different forms of cocaine, that fact is not dispositive“). Jones also noted that “[u]nder Ohio law, the fact that drugs may have been recovered on the same date is not dispositive of the allied offense issue.” Id. at ¶ 60; Gomez at ¶ 24.
{¶80} The Jones court held:
In this case, the record reveals that law enforcement recovered differing quantities of the pill-form methamphetamine and crystal-form methamphetamine in different locations of Jones‘s residence....Specifically,
after searching Jones’ residence... law enforcement recovered 5.11 grams of methamphetamine in crystal form and 12.8 grams of methamphetamine in pill form....The crystal-form methamphetamine was discovered in close proximity to digital scales with white residue along with creatine powder, which is “used to * * * cut drugs for sale...” Separately, law enforcement recovered the pill-form methamphetamine from a backpack that also contained a large amount marijuana. The backpack containing the drugs was found hidden in a pile of clothing, which was situated next to the door of Jones‘s residence. Also hidden in the pile of clothing was a firearm.
Based on these facts, we conclude that Jones possessed the pill-form methamphetamine and crystal-form methamphetamine separately and with a separate animus or motivation. See State v. Delgadillo-Banuelos, 2019-Ohio-4174, ¶ 20 (10th Dist.), (concluding that “where the facts presented indicate law enforcement‘s recovery on the same date of differing quantities of the same type of illicit substance at different locations,
R.C. 2941.25 permits a conviction and sentence for each of the оffenses“). Critically, the record reveals that law enforcement discovered two distinctly different stashes of methamphetamine in this case. See id. at ¶ 18, quoting Gomez at ¶ 20, fn. 1 (identifying “federal courts [that] ‘have held that convictions for multiple counts of possession on the same date involving distinct stashes of drugs do not raise multiplicity or double jeopardy issues’ “). Moreover, the record reveals that pill-form methamphetamine and crystal-form methamphetamine were not only in different forms but they were also packaged separately.... Consequently, we conclude that Jones “possessed the drugs separately, and with a separate animus or motivation.” State v. Wolfe, 2022-Ohio-117, ¶ 36 (5th Dist.). (Citation omitted.) Thus, the trial court did not err by failing to merge Jones‘s aggravated-possession-of-drugs convictions.
{¶81} At appellant‘s sentencing, the trial court concluded that under the specific facts of the case - “the packaging of those items, the location in different locations of the vehicle and...the contraband found in the vicinity, in particular a hidden compartment suggests that these offenses were committed with a separate animus.” Based on the case law as discussed above, we agree with the trial court‘s determination. Thus, we do not find that the trial court committed plain error by failing to merge Counts One and Three. Accordingly, the third assignment of error is without merit and is hereby overruled.
Assignment of Error Four - Consecutive Sentence
{¶82} Due to the consecutive nature of the sentences, the court imposed a minimum prison term of 25 years and six months, with 18 years being mandatory, to an indefinite maximum prison term of up to 31 years. Appellant concedes that the trial court made the appropriate findings on the record. However, Appellant argues that consecutive sentences are not supported by the record. Specifically, appellant contends that the sentences were not necessary to protect the public from future crime; not necessary to punish him; were disproportionate; and were not based upon a history of criminal conduct.
{¶83} When reviewing felony sentences, appellate courts apply the standard set forth in
- That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant; - That the sentence is otherwise contrary to law.
Legal Analysis
{¶84} The Supreme Court of Ohio has recognized that
That makes sense: the trial judge presided over the trial and heard the witnesses testify, the defendant made his allocution to the sentencing judge directly, and the trial judge will often have heard directly from the victims at sentencing. Thus, an appellate court‘s role is not to be a “second-tier sentencing court.”
Hill, supra, at ¶ 31; State v. Jones, 2020-Ohio-6729, ¶ 41-42.
{¶85} In State v. Hammons, 2024-Ohio-6128, the Sixth District court provided a thorough discussion of the Supreme Court‘s decision in Glover, supra. “The Ohio Supreme Court has made it clear thаt ‘an appellate court may not reverse or modify a trial court‘s sentence based on its subjective disagreement with the trial court.’ ” Hammons, supra, at ¶ 22, quoting Glover, 2024-Ohio-5195, ¶ 45. The Glover court noted that “[t]he court of appeals may have disagreed with the trial court‘s assessment [of the magnitude of the harm inflicted by Glover] but this disagreement with the trial court‘s assessment is far different from concluding that the record clearly and convincingly does not support the trial court‘s consecutive-sentence findings.” Id. at ¶ 55.
{¶86} Thus,
{¶87} In general, a statutory presumption exists in favor of concurrent sentences pursuant to
“Under the tripartite procedure set forth in
R.C. 2929.14(C)(4) , prior to imposing consecutive sentences a trial court must find that: (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender; (2) consecutive sentences are not disproportionate to the seriousness of the offender‘s
conduct and to the danger the offender poses to the public; and (3) that one of three circumstances specified in the statute applies.”
Hill, supra, ¶ 36, quoting State v. Cottrill, 2020-Ohio-7033, ¶ 14 (4th Dist.).
{¶88} Further, as we outlined in Cottrill, and more recently in Collins, the three circumstances are:
“(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.”
Cottrill at ¶ 14, and Collins, ¶ 24, quoting
{¶89} The record must support any findings that the applicable statutory sentencing provisions require and made by the sentencing cоurt, such as those contained in
{¶90} As is well-established, the trial court is not required to use “talismanic words,” but it must be clear from the record that it actually made the findings required by statute. State v. Bonnell, 2014-Ohio-3177, syllabus, at ¶ 37; State v. Venes at ¶ 14. The Supreme Court of Ohio further explained that the word “finding” in this context means that the trial court “must note that it engaged in the analysis” and that it “considered the statutory criteria and specifie[d] which of the given bases warrants its decision.” Bonnell at ¶ 26. As long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld. Id. at ¶ 29.
{¶91} In this case, the sentencing transcript and entry reflect that the trial court engaged in the correct analysis. The record contains evidence to support the findings that appellant‘s consecutive sentences are necessary to
{¶92} At sentencing, appellant‘s counsel pointed out that appellant, a Michigan resident, was 34-years old with six children. While he had two prior felonies, counsel indicated appellant had never actually served a prison term. Counsel also informed that appellant‘s mother died in 2022 and consequently he became involved with drugs.
{¶93} Appellant argues herein that consecutive sentences were not necessary to protect the public from future crime. Appellant points out that if the sentences were ordered to be served concurrently, he would still have a mandatory prison sentence of 11-16 ½ years, keeping him incarcerated until his 40‘s. Appellant also argues the mandatory sentence of 11-16 ½ years is sufficient punishment for his conduct. Appellant also argues that his criminal history does not warrant consecutive sentences to protect the public from future crime.
{¶94} The prosecutor pointed out and the record reflects that appellant had two prior felony convictions, one for drugs and one for robbery. The prosecutor also pointed out that appellant had various bond violations throughout the pretrial proceedings and failed to attend the second day of trial. A firearm was confiscated from the vehicle appellant drove,
{¶95} Appellant also argues that his sentence is disproportionate to the seriousness of his conduct and the danger he poses to the public and is actually harsher than a prison sentence one would serve for committing a homicide. In State v. Alexander, 2024-Ohio-2565, ¶ 112 (7th Dist.), the court held that “[a] defendant alleging disproportionality in felony sentencing has the burden of producing evidence to ‘indicate that his sentence is directly disproportionate to sentence given to other offenders with similar records who have committed these offenses.’ ” State v. Williams
{¶96} Furthermore, proportionality review should focus on individual sentences, rather than on the cumulative impact of multiple sentences imposed consecutively. See Hill, supra, at 45, citing State v. Taylor, 2024-Ohio-238 (5th Dist.) (citations omitted), at ¶ 20. “Where none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment.” Id. As a general rule, a sentence falling within the terms of a valid statute cannot amount to a cruel and unusual punishment. Id. at ¶ 21. Moreover, the Glover court also noted that, “[n]owhere does the appellate-review statute direct an appellate court to consider the defendant‘s aggregate sentence.” Id. at ¶ 43; See also, State v. Scott, 2024-Ohio-5849, ¶ 108 (6th Dist.)
{¶97} Herein, appellant has not argued the disproportionality of his individual sentences. Each of the individual sentences was within the
{¶98} Based on the foregoing, appellant‘s consecutive sentence is clearly and convincingly supported by the record and is not otherwise contrary to law. Accordingly, appellant‘s fourth assignment of error is without merit and is hereby overruled.
Assignment of Error Five - Sufficiency/Manifest Weight
Standard of Review
{¶99} When reviewing whether the evidence is sufficient to sustain a conviction, the focus is on the adequacy of the evidence. See State v. Maynard, 2025-Ohio-4943, at ¶ 43 (4th Dist.); State v. Sims, 2023-Ohio-1179, ¶ 115 (4th Dist.). Thus, “[t]he standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.” Id.
{¶101} The weight and credibility of evidence are to be determined by the trier of fact. See Maynard, at ¶ 25, citing State v. Kirkland, 2014-Ohio-1966, ¶ 132. The trier of fact “is free to believe all, part or none of the testimony of any witness,” and we “defer to the trier of fact on these evidentiary weight and credibility issues because it is in the best position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility.” State v. Dillard, 2014-Ohio-4974, ¶ 28 (4th Dist.), citing State v. West, 2014-Ohio-1941, ¶ 23 (4th Dist.).
{¶103} A finding that a conviction is supported by the manifest weight of the evidence is “also dispositive of the issue of sufficiency.” Sims, 2023-Ohio-1179, ¶ 120 (4th Dist.), citing State v. Waller, 2018-Ohio-2014, ¶ 30 (4th Dist.). See Maynard, at ¶ 27.
Legal Analysis
{¶104} The trial court merged appellant‘s possession сonvictions with the trafficking convictions, and the State elected that appellant be sentenced on the trafficking counts. So, here we are concerned with the trafficking convictions. Even so, a trafficking conviction must consider the offender‘s possession of the drugs “because to sustain an
{¶105}
{¶106} “Possession” is generally defined as “having control over a thing or substance but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.”
{¶107} In addition,
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.
See Maynard, at ¶ 31; State v. Crumpton, 2024-Ohio-5064, ¶ 28 (4th Dist.).
Legal Analysis
{¶108} Appellant does not specifically argue lack of proof of specific elements, except for “possession.” Appellant‘s sufficiency and “manifest weight” arguments are set forth, generally, follows:
None of the drugs were found in the actual possession of Mr. Jackson. All the contraband was found in another backpack, and there was no testimony offered
that any of the belongings of Mr. Jackson or identification of him were found inside the bag or backpack. An iPad was found inside one of the bags, but no evidence was offered that the iPad belonged to Mr. Jackson. There was some testimony that his brother had been driving the car the day before. No testimony was presented that any sort of DNA testing or fingerprint testing was found on the drugs or firearm. When asked about the contraband, Mr. Jackson denied any knowledge. The evidence was not sufficient to warrant convictions for drug trafficking, drug possession, weapons offenses, or possession of criminal tools.
{¶109} Appellant was convicted of 12 counts which included trafficking and possession of a fentanyl-related compound, trafficking and possession of cocaine, having a weapon while under disability, improper handling of a firearm and criminal tools. Counts One through Eight included firearm specifications. These counts have been set forth fully above at Paragraph Four.
{¶110} Appellant denies actual or constructive possession of the drugs found in the rental vehicle he was driving. However, the jury obviously found circumstantial evidence that appellant possessed the drugs. The State may prove its case through circumstantial evidence.
It is well-established * * * that “a defendant may be convicted solely on the basis of circumstantial evidence.” State v. Nicely, 39 Ohio St.3d 147, 151 (1988). “Circumstantial evidence and direct evidence inherently possess the same probating value.” Jenks, paragraph one of the syllabus. “Circumstantial evidence is defined as
‘[t]estimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved. * * * ’ ” Nicely, 39 Ohio St.3d at 150, quoting Black‘s Law Dictionary (5 Ed.1979) 221. See State v. Sheets, 2025-Ohio- at ¶ 20 (4th Dist.); State v. Wickersham, 2015-Ohio-2756, ¶ 39 (4th Dist.); see also State v. Barnes, 2020-Ohio-3943, ¶ 23-24( 4th Dist.).
{¶111} At appellant‘s trial, the jury heard testimony from four State‘s witnesses. The trial court also admitted 27 State‘s exhibits.6 In this appeal, appellant has not challenged the qualifications of the expert witness, the qualification and experience of the troopers, the findings on the report, or the chain of сustody of the various items of physical evidence.
{¶112} Both Trooper Lewis and Trooper Day testified as to their background, years of experience, and years of training with the OSHP and specifically with drug interdiction. Both troopers testified that there was a hard hat and safety vest (“props“) on the front passenger seat, yet they found no other evidence substantiating appellant‘s claim that he worked
{¶113} Both troopers identified appellant in the courtroom. Trooper Lewis testified that appellant denied knowledge of the marijuana residue, the other substances, and the firearms. However, both troopers testified that appellant did not express an emotional reaction or surprise about the items or about being arrested. The jury heard the following additional testimony.
Trooper Lewis
{¶114} Trooper Lewis‘s testimony regarding probable cause for the traffic stop has been set forth fully above. Trooper Lewis also testified:
[He says he‘s going down to West Virginia, two different jobsites, staying until Saturday, but he didn‘t know the name of the place. He kept calling it Pike, Pike something, but he couldn‘t me exactly where he was headed to....He says foreman on a construction crew. He had two different locations that he was headed to, but he couldn‘t give me the name of one of them.
{¶115} Based on the odor of marijuana, Trooper Lewis testified he decided to search the rental car. Appellant еxplained that “his lady” had rented the vehicle. Trooper Lewis testified that the vehicle was rented to Nikki Hall for a month. Trooper Lewis testified, “I asked him at one point how long he had the truck, told me a week.” Then, because of the odor of marijuana, he told appellant he was going to pat him down. Trooper Lewis
{¶116} Dispatch advised Trooper Lewis that appellant resided in Westland, Michigan, near Detroit, and that he had a suspended driver‘s license. Trooper Lewis identified State‘s Exhibits 5 and 6, which showed the Swisher Sweets package and marijuana residue. He found a digital scale, typically used for weighing drug amounts, under the center console. He also identified State‘s Exhibits 7 and 8, respectively photographs of the center console with scale and a closer shot of the scale with residue.
{¶117} Trooper Lewis testified that he flipped up the back seat and found a black duffle bag containing clothing and a Venom energy drink can with a false lid. When Trooper Lewis opened the top lid of the Venom can, he found a compressed powder, which ended up being approximately 72 grams of a fentanyl-cocaine mixture.
{¶118} Trooper Lewis testified that Trooper Day found a child‘s backpack from the storage compartment on the floor, which contained a .45 caliber Highpoint handgun. Trooper Day hаnded him a Mason jar which contained a white powder, 14 grams of cocaine, 10 grams of fentanyl, and 100 10 milligram oxycodone pills. Trooper Lewis also pulled clothes and
{¶119} On cross-examination, Trooper Lewis testified he did not see the driver when appellant‘s truck passed and admitted that appellant did not appear to be avoiding him. He denied he decided to follow appellant because of the Florida tags. Trooper Lewis denied following close to cause appellant to be nervous and hopefully commit a traffic violation. Trooper Lewis admitted he did not know what CBD oil smells like and he has not had training about it.
Trooper Ryan Day
{¶120} Trooper Day testified he was sitting with Trooper Lewis on U.S. Route 23 at Milepost 12 in separate vehicles. He eventually assisted Lewis with the stop of the black Dodge 1500 appellant drove. Trooper Day testified as soon as he opened the driver‘s door, he noticed the strong odor of raw marijuana.
{¶121} Trooper Day identified State‘s Exhibit 2, the hard hat and reflective vest from appellant‘s truck. He also identified the digital scales. Trooper Day identified State‘s Exhibit 14, the Highpoint .45 caliber semiautomatic handgun he recovered from the backpack. Trooper Day also
Brianna Ray
{¶122} Briana Ray testified she was employed as a Criminalist at the OSHP Crime Lab. The court qualified Ray as an expert in drug chemistry. Ray identified State‘s Exhibit 24, her written report. Upon her testing, she identified Tramadol, Cocaine, and Fentanyl. She was able to identify the presence of the compounds, but not any quantitative amounts. She testified Tramadol is a Schedule IV drug. Cocaine and Fentanyl are Schedule II substances. She explained her testing procedures. Her results were consistent. She identified all tablets as Oxycodone.
Robert Iddings
{¶123} Mr. Iddings testified he is a Group Risk Manager Enterprise Rent-Acar, Alamo, and National (EAN Holdings). He oversees the state of West Virginia and locations in Ohio, Kentucky, and Maryland. He is familiar with the policies and procedures of Enterprise Rental Car and its record-keeping system.
{¶124} Mr. Iddings testified that every vehicle is cleaned and sanitized, inside and outside, so that it will appear brand new for each
{¶125} When a vehicle is returned, it is checked to make sure nothing belonging to the renter is left behind. At times, people leave items like cameras, cell phones, cell phone chargers, sunglasses, and toys. In his experience, no one has ever left a “vast amount of drugs” or large amounts of cash.
{¶126} Mr. Iddings identified State‘s Exhibits 25 and 26, respectively Enterprise rental agreemеnts with Walter Jackson and Nikki Hall. The addresses on both rental agreements were the same. State‘s Exhibit 27 was described as a renter search history. This record was consistent with State‘s Exhibits 25 and 26, showing rentals for the relevant time period and excessive charges incurred.
{¶127} On cross-examination, Mr. Iddings admitted that guns and drugs such as small bags of marijuana have been found. He explained that people rent cars for vacation, work-related matters, or if they need a replacement vehicle due to damage. On redirect, Mr. Iddings admitted that people can rent cars to transport drugs.
{¶128} Based on the foregoing, we find appellant‘s convictions are supported by sufficient circumstantial evidence and are not against the
Conclusion
{¶129}Based on the foregoing, we find none of appellant‘s assignments of error have merit. Accordingly, all assignments of error are overruled, and the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and appellant to pay costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail prеviously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.