State v. KrylingState v. Kryling
State of Ohio Appellee
v.
Christian Kryling Appellant
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Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.
Jeffrey P. Nunnari, for appellant.
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ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Christian Kryling, appeals the April 29, 2022 judgment of the Wood County Court of Common Pleas convicting him of aggravated trafficking in drugs. For the following reasons, we affirm the trial court’s judgment.
A. Procedural Background
{¶ 2} On August 5, 2021, appellant was indicted on one count of aggravated trafficking in drugs in violation of
{¶ 3} Appellant was indicted by a grand jury on one count of aggravated trafficking in drugs on August 5, 2021. He appeared for arraignment on August 17, 2021. At that time, he was determined to be indigent, was appointed counsel, and entered a not guilty plea to the single count in the indictment.
{¶ 4} The parties appeared for trial on March 23, 2022. During its case-in-chief, the state sought to introduce portions of phone calls recorded during appellant’s confinement immediately following his arrest.
B. Assignment of Error
{¶ 5} Appellant timely appealed and asserts the following error for our review:
{¶ 6} The trial court erred to appellant’s prejudice by admitting statements alluding to other acts of drug dealing.
C. Trial Proceedings and Factual Background
{¶ 7} The only issue on appeal is whether the trial court committed reversible error in admitting certain portions of the recorded phone calls at trial. Therefore, we begin with a summary of the challenged evidence, the parties’ arguments regarding the admissibility of that evidence, and the trial court’s ruling, before describing each witnesses’ testimony at trial.2
Trial court’s Evid.R. 404(B) Ruling
{¶ 8} The charge in this case arose from appellant’s sale of methamphetamine to a confidential information (“the C.I.”) during a controlled buy operation. Wood County Sheriff’s Department Detective-Sergeant Destinie Moore arranged the buy, which occurred on January 27, 2021. Following appellant’s arrest, he was held in custody by the Wood County Sheriff’s Department. During that time, appellant made two recorded phone calls to non-party A.B. Prior to trial, the state indicated that it planned to use portions of the recorded calls during its case-in-chief as exhibits to supplement Detective-Sergeant Moore’s testimony. The portions of the recordings the state sought to introduce, as transcribed by the state, consisted of the following:
Recording No. 1
APPELLANT: “Here’s the thing about that, baby, is through BG, right. BG has somebody they caught doing something wrong. Now this guy [the C.I.] is from BG. When he catches a case here, BG says we need your help catching people you can get. Now here I come because I slept with his girlfriend and shit. And he’s mad at me, so he says I can get him. I want to get this guy, right? However it happened, I came to BG and dealt with him at certain times or whatever, right. Now I’m saying what he said I gave him isn’t what I gave him. Now it’s up to the police to prove what’s happened. BG is not worried about anything else. They’re only worried about BG. That’s what makes me think I would never deal with anybody in Findlay for that reason. Watch what you say,
man. I was kind of thinking the same thing but I don’t know where it would come from.
Recording No. 2
APPELLANT: Now I know what I’ve done in my life. I can remember the day that I’ve done shit. That’s why when they ask me, I do know who I’ve dealt with in Wood County. I can remember the day that it happened. I can remember the day that this charge right here happened. You know why? Because I can remember everything. I remember who I deal with. I remember what I dealt with. I remember visuals, I remember dates. I remember times. I remember who I talk to. I remember what I said. I remember what I said on this date right now. January 21st, when they got me on this charge, I can tell you exactly where it was. I can tell you where I parked that day. I can tell you who I parked next to.
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APPELLANT: It was a silver M-F truck like a Suzuki. Remember those fucking cars. I parked next to that. I can tell you who I talked to and what I said. When I walked in, I can tell you exactly who was sitting where. I have a good fucking memory for this shit. See, you guys don’t take that into consideration. You guys don’t know what I walk into a place I see what I see and I visualize it.
A.B.: You know that’s a good thing and that’s a bad thing.
APPELLANT: It’s a blessing and a curse.
A.B.: Yes, it is.
APPELLANT: Absolutely. You’re absolutely right about that. But what I’m saying is for things like this, right here, it’s a blessing because I’m telling you right know I know who I’ve sold to. I can tell you exactly when I started selling and when I started running for [C.].
A.B.: Right, right, right. That’s when I met you.
APPELLANT: I can tell you who was running for who or where I went. I can tell you where I was way back when. I can tell you almost to the exact spot I parked. I can tell you what you were wearing that day. Can you tell me what I was wearing that day, the day I met you? Yeah, I can tell you all that.
Recording No. 3
APPELLANT: So this is what I’ve got. There’s a guy named [the C.I.]. His girlfriend is [R.T.]. Remember when I told you that me and her were in a hotel room and [D.] knew about it? This was the whole reason this happened. He’s trying to get back at me for doing that, which I thought they were broke up. Didn’t even say they were together. Regardless of all they’re trying to say, I sold him some illegal stuff or whatever. I already know everything that happened. The time that I think they’re talking about we were supposed to meet up at Burger King. I ended up peeping out of the place and there was somebody sitting in a burgundy truck, a female. I ended up leaving there and going to the trailer park. I don’t know what they have or what they think they have. I know one thing. Every time I met the dude he was using drugs. You can’t be using drugs and buying drugs for the police.
{¶ 9} At trial, appellant argued that the entirety of these recordings were inadmissible “other acts” evidence and were precluded from being admitted under
{¶ 10} The state then proceeded with its case-in-chief, during which it elicited the following testimony:
Testimony of Detective-Sergeant Destinie Moore
{¶ 11} At the time of the trial, Detective-Sergeant Moore had been employed by the Wood County Sheriff’s Department for six years. She spent two years in traffic patrol before being promoted to the detective bureau in 2018. She served on special assignment in narcotics interdiction which involved her performing her work as a plain-clothes undercover officer.
{¶ 12} Detective-Sergeant Moore testified that her investigations generally arose from different places including an anonymous tip line, tips from confidential informants, and tips from informants held in confinement. She noted that there are three categories of informants—citizen informants not expecting anything in return, paid informants, and those individuals seeking to have their own charges reduced or dismissed for providing a tip. She noted that an informant can be both paid and granted reduced or dismissed charges. She stated that most informants, other than citizens who happen to observe illegal activity, have knowledge where drugs are being sold because they themselves are purchasing and using drugs. The Wood County Sheriff’s Department’s detective bureau typically utilizes drug purchasers as its informants so that they can “move up the ladder” to arrest the sellers.
{¶ 13} Detective-Sergeant Moore testified that she had developed approximately 60 to 75 sources for information in furtherance of her investigations during her time as a detective. Of those individuals, she has tasked approximately 40 to 65 to perform a controlled buy. A controlled buy is the purchase of drugs by a confidential informant that is observed by law enforcement.
{¶ 14} Her investigation of appellant began approximately six to eight weeks prior to the January 27, 2021 controlled buy when she was contacted by the C.I. The C.I. was known to Detective-Sergeant Moore because he had previously provided her with information in prior investigations. In light of this new tip, she decided to set up a controlled buy between the C.I. and appellant.
{¶ 15} Controlled buys are subject to specific procedural requirements. The procedure involves both “pre-buy” and “post-buy” protocols to “protect the integrity of the investigation.” Detective-Sergeant Moore described the general procedural requirements in conjunction with her adherence to the proper protocol in the underlying case.
{¶ 16} Detective-Sergeant Moore testified that all controlled buys are prepared and observed by a team of three detectives. For the January 27, 2021 controlled buy involving appellant, she was accompanied by Detective-Sergeant Mormile and Detective-Sergeant Barta. Pursuant to the pre-buy protocol, all three detectives met with the informant to determine the location of the buy. At that time, they performed a thorough search of the C.I. including having him remove his shoes, searching all pockets, and checking his belt buckle and hat. These searches are meant to prevent an informant from taking any drugs or additional money to the sale. This allows the detectives to ensure that only the money provided to an informant is used in the sale and that only drugs purchased
{¶ 17} The C.I. was then provided with a “covert device” to record the buy. The device both records the audio of the parties’ interaction as well as provides a live broadcast of the audio to the observing detectives. The live broadcast allows the detectives to determine that a buy took place in real time as well as determine if an informant is in distress. The device was also capable of recording video. Detective-Sergeant Moore testified that she does not ask informants to utilize the video feature until they have experience with controlled buys as attempting to obtain video is more conspicuous and risks detection. In this case, the informant was instructed to only record audio of the transaction.
{¶ 18} After being provided the recording device, Detective-Sergeant Moore prompted the informant to contact appellant through Facebook’s messaging service and via cellphone to set up the buy. The C.I. and appellant agreed to meet at a Taco Bell restaurant parking lot. The informant was then dropped off near the established site and walked to the location where the buy was set to occur. Detective-Sergeants Moore and Mormile parked in a nearby parking lot to listen to the audio of the sale. Detective-Sergeant Barta was stationed near the location to visually observe the transaction.
{¶ 19} Appellant did not arrive at the appointed time. The C.I. then called appellant who accused the C.I. of setting him up. Appellant then contacted the C.I. a second time and stated that he would “be there in ten minutes.” When appellant arrived, he stated that he thought the occupant of another vehicle in the parking lot may have been a police officer so the C.I. got into appellant’s vehicle and they drove to a nearby mobile home park. In doing so, appellant drove past Detective-Sergeant Moore’s location. She observed appellant as being the driver of the vehicle and identified him at trial. She also noted the presence of an unidentified female passenger.
{¶ 20} Detective-Sergeants Moore and Mormile followed appellant and the C.I. into the mobile home park. Rather than follow appellant too closely and risk being identified, Detective-Sergeants Moore and Mormile pulled into a parking space to observe the audio of the buy. This resulted in the buy not being visually observed by any member of the detective team.
{¶ 21} Approximately four minutes elapsed from the time the C.I. entered appellant’s vehicle until he was observed walking away from the buy. Detective-Sergeants Moore and Mormile picked up the C.I. and began searching him as part of the post-buy protocol. During that search, Detective-Sergeant Moore recovered a green bag containing a substance purchased from appellant as well as the cell phone with the recording device.
{¶ 22} The audio recovered from the recording device was played at trial. At its conclusion, Detective-Sergeant Moore testified that the first voice heard on the recording was the C.I. She testified, over appellant’s objection that the video spoke for itself, that appellant could be heard describing the methamphetamine he was selling and that the C.I. could “check it out[,] look at it, taste it, all that shit. It’s a big ass chunk.”
{¶ 23} Detective-Sergeant Moore stated that after completing the post-buy protocol, she and the detective team then returned to their office. There, they weighed the substance the C.I. purchased and performed a presumptive drug test. That test yielded a “positive presumptive result for
{¶ 24} The state then directed Detective-Sergeant Moore to appellant’s recorded phone calls. She noted that the calls were recorded while appellant was held in custody awaiting his release on bond. The recorded conversations described above were played for the jury over appellant’s renewed
{¶ 25} Detective-Sergeant Moore then described a conversation she had with appellant on September 20, 2021. She was informed that appellant wished to speak with her and, after waiving his right to have counsel present, he informed Detective-Sergeant Moore that his sale of drugs was the result of his need to have money to support his own drug addiction. He then described his belief that the C.I. participated in the controlled buy because appellant had previously been in a relationship with the C.I.’s then-girlfriend. Appellant concluded his conversation with Detective-Sergeant Moore by informing her that he limited his drug sales in Bowling Green, Ohio to the C.I. and the C.I.’s girlfriend so that he could only “deal with limited people.”3
{¶ 26} On cross-examination, Detective-Sergeant Moore confirmed that the preparation for the controlled buy, as well as the post-buy protocol, was not recorded
despite all three detectives having recording devices available to them. She attributed this lack of recording to protecting the safety of the C.I. She also noted that shortly before the buy, she learned that the C.I. was dating appellant’s ex-girlfriend. She testified that she later learned from appellant that he believed the C.I.’s motivation for participating in the controlled buy was that the C.I. suspected his girlfriend was cheating on him with appellant. Detective-Sergeant Moore’s testimony concluded with her redirect examination in which she confirmed that appellant did not deny selling methamphetamine to the C.I. when she spoke with him on September 20, 2021.
Testimony of Shervonne Bufford
{¶ 27} At the time of trial, Shervonne Bufford had served as a forensic scientist at the BCI’s Richfield Laboratory for approximately 15 years. She was assigned to the BCI’s drug chemistry section. She explained that the BCI is a component of the Ohio Attorney General’s office that aids law enforcement in their investigations. Her responsibilities as a forensic scientist included detecting the presence or absence of controlled substances, as described by the applicable law, reporting her findings to the “contributing agency,” and then appearing as a witness at trial to explain her findings. A contributing agency is the group or individual that requests the analysis. Bufford identified police departments
{¶ 28} The procedure for identifying a controlled substance submitted for analysis is to first give the substance a unique BCI case number. The sample is then identified in the BCI’s computer system and a receipt with the identifying number is provided to the contributing agency. The sample is then stored in a vault until it is randomly assigned to an analyst. The analyst then retrieves the substance from the vault and performs their analysis. The analyst then prepares their report and returns the substance to the vault. This completes the analyst’s work related to that specific substance unless they are called to testify in related proceedings.
{¶ 29} Bufford was then presented with the documentation for BCI case number 21-20856. She identified the substance tested in that case number as having been received from the Wood County Sheriff’s Department. The investigating officer was identified as Detective-Sergeant Moore. The evidence was received at the BCI lab on March 5, 2021 at its Bowling Green, Ohio office. It was then transferred to the Richfield Laboratory on July 19, 2021.
{¶ 30} Bufford retrieved the evidence from the vault on July 20, 2021. She then opened the sample, noted its appearance for her report, and weighed it. After obtaining a small sample for testing, she performed two “presumptive” tests as part of her initial analysis. Each of these tests were positive for a “phenylamine class” substance that is consistent with the presence of methamphetamine. She then further tested the sample utilizing a gas chromatograph mass spectrometer. This device allows her to identify the chemical make-up of the compound. She then compared it to a known sample of methamphetamine and confirmed that the sample received from Detective-Sergeant Moore was indeed methamphetamine. Her report confirming these findings was admitted into evidence without objection.
{¶ 31} On cross-examination, Bufford confirmed that there was no request to perform DNA or fingerprint testing on the sample. She stated that these tests are performed by another analyst and would only be performed at the request of the submitting agency.
Closing arguments, Jury Deliberations, Verdict, and Sentencing
{¶ 32} The state presented no additional evidence or witness testimony and rested its case-in-chief. Appellant then made a
{¶ 33} Following closing arguments, the trial court provided the jury with its final instructions and dismissed it to begin its deliberations. The jury returned a guilty verdict finding appellant guilty of aggravated trafficking in drugs. Appellant now asks this court to determine whether the trial court erred in finding that portions of the recordings of his phone calls were admissible at trial.
II. Law and Analysis
A. Appellant’s narrowing of his trial court objection on appeal.
{¶ 34} As a preliminary matter, we note that appellant sought to exclude the entirety of the recorded phone calls as inadmissible “other acts” evidence at trial. Now, on appeal, appellant directs us to specific statements within those recordings that he argues constituted inadmissible “other acts” evidence as described in {¶ 35} {¶ 36} Here, appellant has identified the specific portions of the recorded calls that he argues constitute inadmissible “other acts” evidence while conceding that other portions of the recording relate directly to the underlying sale and were admissible. In doing so, appellant has avoided the potential that this court would disregard his assigned error pursuant to {¶ 37} The general subject of each of the recordings is appellant’s knowledge of the specific sale that resulted in the charges against him and his suspicion as to the C.I.’s identity. In expressing his suspicion, appellant made explicit references to the underlying sale. For example, in recording No. 3, appellant stated that he recalled the sale because he was originally scheduled to meet at a fast-food restaurant but ultimately made the sale in a mobile home park. Detective-Sergeant Moore described this same series of events as they relate to the underlying sale—albeit referencing a different fast-food restaurant than appellant described in the recording. Despite his broad objection at trial, appellant now concedes that the recorded statements directly referencing his sale of methamphetamine to the C.I. are not “other acts” as contemplated by {¶ 38} Despite his concession as to some of the recorded statements, appellant nevertheless maintains that the recorded statements referencing “other acts” were inadmissible at trial under {¶ 39} Having reviewed the record, we find that appellant correctly identifies portions {¶ 40} Both at trial and in this appeal, the state asks us to ignore the clear implication of {¶ 41} In support of its argument, the state cites State v. Cody, 10th Dist. Franklin No. 07AP-142, 2007-Ohio-6776. In Cody, the defendant was charged with two counts of arson after attempting to set his former-girlfriend’s apartment on fire. Id. at ¶ 2-10. Cody had previously left threatening voicemails on his ex-girlfriend’s phone. Id. As part of his investigation, a member of the Columbus Fire Department’s investigation unit recovered the threatening messages. Id. The messages were played at trial over Cody’s objection. Id. He was later convicted of both offenses. Id. {¶ 42} On appeal, Cody argued that the state did not explicitly seek admission of the recordings as a non-hearsay party admission under {¶ 43} The Tenth District Court of Appeals found no error in the admission of the recordings, finding that while the state did not specifically mention {¶ 44} Here, the state argues that this holding shows that “where {¶ 45} In Cody, the defendant argued that because his admission was not submitted at trial under {¶ 46} Moreover, we note that uniform application of the state’s argument regarding Cody would essentially carve out an implicit exception to the intended protections established under {¶ 47} Finally, even if the {¶ 48} For these reasons, we reject the state’s argument that appellant’s assigned error should be reviewed under {¶ 49} {¶ 50} Determining whether “other acts” evidence is admissible requires a specific procedural analysis. First, to be admissible the evidence must meet a two-pronged relevance threshold. That is, the evidence must be relevant to “the particular purpose for which it is offered—i.e., a non-character-based purpose, as allowed by {¶ 51} Whether the trial court erred in determining that the “other acts” evidence was admissible under {¶ 52} When a party seeks to admit “other acts” evidence pursuant to {¶ 53} Clearly, it was incumbent on the state to identify which of the excepted purposes identified in {¶ 54} Having determined that the trial court erred in admitting appellant’s recorded statements referencing drug sales other than the controlled buy, we must determine whether that error was harmless. State v. Moore, 2021-Ohio-765, 168 N.E.3d 921, ¶ 37 (6th Dist.). Harmless error is “any error, defect, irregularity, or variance which does not affect substantial rights.” Kamer at ¶ 154; {¶ 55} At the outset, we recognize that the similar nature of the improperly admitted “other acts” evidence to the charged offense weighs in favor of finding that the error was not harmless. Id. at ¶ 156, citing State v. Sargent, 2015-Ohio-704, 29 N.E.3d 331, ¶ 31 (6th Dist.) (“Other acts evidence admitted in violation of {¶ 56} The remaining evidence at trial showed that the controlled buy comported with the pre-buy and post-buy protocols described by Detective-Sergeant Moore. The buy was recorded on a covert device carried by the C.I. The audio of the buy was played at trial. Detective-Sergeant Moore confirmed from her notes that the audio reflected appellant’s sale of methamphetamine to the C.I., a fact confirmed through chemical testing by Bufford, a forensic analyst with the BCI. Detective-Sergeant Moore also positively identified appellant as a participant in the controlled buy based on her having observed appellant driving past her with the C.I. in the vehicle. Further, the unchallenged portion of appellant’s recorded statements included appellant’s admission that he sold “something” to the C.I. on the recorded calls. Appellant also stated on the recordings that he knew which sale resulted in his arrest because he had identified the C.I. and knew the details of the sale. During his in-person conversation with Detective-Sergeant Moore, appellant discussed his sale of drugs to the C.I. stating “I understand I did what I did.” He then explained to Detective-Sergeant Moore that he was selling drugs because he himself was an addict. He stated “I sold to make sure I had [drugs] myself.” {¶ 57} Appellant, in turn, asked the jury to find reasonable doubt of his guilt due to the lack of recording of the pre-buy and post-buy protocols or any interviews conducted with the C.I., and because of the Detective-Sergeants’ lack of visual observation of the sale. This argument ignores appellant’s admission on the recorded calls that he sold “something” to the C.I. and his statement to Detective-Sergeant Moore that he sold drugs to the C.I. as a result of his need to continue procuring drugs for himself. {¶ 58} In sum, after excising the improperly admitted evidence, the remaining evidence overwhelmingly shows that appellant was guilty of the charged offense. In this scenario, it is appropriate to find that the improper admission of “other acts” evidence was harmless error. Kamer at ¶ 159, citing State v. Rahman, 23 Ohio St.3d 146, 151, 492 N.E.2d 401 (1986) (“Cases where imposition of harmless error is appropriate must involve * * * overwhelming evidence of guilt[.]”). For these reasons, we find that the trial court’s error in improperly admitting the “other acts” evidence in violation of {¶ 59} We find that the trial court erred in admitting “other acts” evidence at trial. However, because the error was harmless, we find appellant’s assignment of error not well-taken. Therefore, we affirm the April 29, 2022 judgment of the Wood County Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to Judgment affirmed. A certified copy of this entry shall constitute the mandate pursuant to Christine E. Mayle, J. JUDGE Gene A. Zmuda, J. JUDGE Myron C. Duhart, P.J. CONCUR. JUDGE This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.A. The recorded statements appellant challenges on appeal are subject to
B. The trial court erred in admitting appellant’s statements as prohibited under
C. The trial court’s improper admission of “other acts” evidence was harmless error.