Case Information
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 21CA3750 v. : ANTONIO M. RUSSELL, : DECISION AND
JUDGMENT ENTRY Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Dennis C. Belli, Columbus, Ohio, for appellant. [1]
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela
C. Wells, Ross County Assistant Prosecuting Attorney, for
appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:5-19-22
ABELE, J. This is an appeal from a Ross County Common Pleas
Court judgment of conviction and sentence. Antonio M. Russell,
defendant below and appellant herein, assigns the following
errors for review:
FIRST ASSIGNMENT OF ERROR: *2 ROSS, 21CA3750
“DEFENDANT - APPELLANT’S CONVICTION FOR POSSESSION OF HEROIN IS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO SATISFY THE REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT VIOLATED R.C. 2941.75 AND DEPRIVED DEFENDANT-APPELLANT OF HIS RIGHTS UNDER THE DUE PROCESS AND JURY TRIAL GUARANTEES OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN IT ENTERED A JUDGMENT OF CONVICTION FOR A SECOND DEGREE FELONY THAT WAS NOT SUPPORTED BY A JURY VERDICT STATING THE DEGREE OF OFFENSE OR A FINDING OF THE DRUG AMOUNT CORRESPONDING TO A SECOND DEGREE FELONY.”
THIRD ASSIGNMENT OF ERROR:
“THE ADMISSION OF EVIDENCE INTENDED BY THE PROSECUTION TO PORTRAY DEFENDANT-APPELLANT AS A DRUG TRAFFICKER VIOLATED THE MANDATORY EXCLUSION PROVISIONS OF EVID.R. 403(A) AND THE HEARSAY EXCLUSIONARY RULE OF EVID.R.
802, AND DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS AND THE RIGHT OF CONFRONTATION UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.”
FOURTH ASSIGNMENT OF ERROR:
“DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION EXPLAINING THE TEMPORAL REQUIREMENT TO PROVE VOLUNTARY POSSESSION UNDER R.C. 2901.21(F)(1) OR TO OBJECT TO ITS OMISSION DEPRIVED DEFENDANT-APPELLANT OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.” {¶2} On June 5, 2018, law enforcement officers executed a search warrant upon room number 84 at America’s Best Value Inn
in Chillicothe. Upon entering the motel room, officers found
appellant, a female, and three children. On the floor where
appellant had been laying, officers discovered a plastic bag
that contained a white powdery substance. Inside the night
stand drawer, they found a “chunky ball” that appeared to be
narcotics and a digital scale. The substance found on the floor
subsequently tested positive for heroin, and the “chunky ball”
tested positive for cocaine.
{¶3} On April 26, 2019, a Ross County Grand Jury returned an indictment that charged appellant with one count of second-
degree-felony heroin possession and one count of fourth-degree-
felony cocaine possession, both in violation of R.C. 2925.11.
Appellant entered not-guilty pleas. On April 13 and 14, 2021, the trial court held a jury
trial. At trial, Ohio Bureau of Criminal Investigation forensic
scientist Pamela Farley testified that she tested the two
substances discovered inside the motel room. The item recovered
from the floor contained 20.81 grams of heroin and fentanyl.
The other substance contained 7.81 grams of cocaine. On cross-examination, appellant ’s counsel asked Farley
whether she tested the entire contents of the substances or
4 ROSS, 21CA3750
whether she tested “a small sample.” Farley stated that she
tested a sample. She explained she did her “best to take a
composite sample to make sure things are homogenous and that
we’re not–we don’t have two different colors of things present
in something.” Farley additionally stated that she separates
items when possible so that “the sample is reflective of the
entire exhibit.”
{¶6} Chillicothe Police Detective Chester Lytle testified that after SWAT officers secured the motel room, Lytle helped
search the room. Lytle indicated that he first searched the
night stand and inside a drawer he found a digital scale and
what appeared to be “chunky narcotics” wrapped in pla stic. Chillicothe Police Officer Christopher King testified
that he searched appellant and found “a large sum of U.S.
currency.” Appellant objected to Officer King’s testimony and
asserted he does not “know what relevance any amount of money
found on his person ha s” to the drug possession charges. The
court overruled the objection and explained that “it is just a
general question about what was found on his person.” On cross-examination, appellant asked Officer King
whether he found any other items on appellant other than “the
sum of currency.” King stated that he did not discover any
other items on appellant’s person.
5 ROSS, 21CA3750
{¶9} Chillicothe Police Sergeant Jeremy Tuttle testified that he placed the evidence recovered from the motel room into
the evidence room at the law enforcement complex. He described
exhibit 21 as a “set of digital scales.” Chillicothe Police Detective Derek Wallace testified
that he is a detective in the Special Investigations Unit (SIU).
He explained that he primarily investigates drug and
prostitution activity. When the prosecutor asked Wallace to
discuss the investigatory methods he uses when investigating
drug activity, appellant objected on the basis of relevance.
The prosecutor argued that this testimony would help the jury to
understand why officers searched the motel room. The trial
court found that the testimony would help the jury understand
the detective’s experience and overruled appellant’s objection. The detective then explained the types of
investigative methods that he generally uses:
We have obviously Southern Ohio Crime Stoppers in Chillicothe that provides information on different drug activity people, inside the City of Chillicothe. We also rely on information from our patrol officers to gather information for us when the y’re ou t doing traffic stops or in neighbors talking to people that provide us the information on drug activity. We also use our confidential informants. They provide us a lot of information as to kind of who, what, when, where, why. *6 6 ROSS, 21CA3750
{¶12} Detective Wallace stated tha t he undertook “similar investigatory acts” when he investigated the activity that
allegedly occurred at appellant’s motel room. The prosecutor next asked the detective whether he
used “similar investigatory actions” to obtain a warrant to
search the motel room. The detective responded affirmatively,
and appellant objected. Appellant asserted that the prosecutor
was “getting real close to making this look like a trafficking
investigation, because there’s controlled vital [sic]
information in the search wa rrant.” The prosecutor indicated
that she did not intend to ask the detective to discuss any
specific information contained in the search warrant. The court
stated that it would not allow any testimony “other than they
obtained a search warrant .” Detective Wallace continued to explain that he and his
team obtained a warrant to search the motel room. When they
arrived to execute the warrant, the SWAT team opened the door
with a battering ram then secured the scene. After the SWAT
team gave officers the all-clear, Wallace entered the room.
When he entered the room, he observed appellant “laying behind
the doorway,” and a female with three small children on one of
the beds. When he and other officers removed appellant from the
floor, Wallace found a plastic bag of white powder on the floor.
7 ROSS, 21CA3750
{¶15} When the prosecutor asked Detective Wallace to place a green X on a motel room diagram to indicate where he found the
plastic bag of heroin, Wallace explained that he placed the X
“behind the door, j ust on the door side of where the
refrigerator would’ve been. Obviously, it’s not to scale, but
it was on just this side where the little white refrigerator was
by the entertainment center.” Wallace also drew a stick figure
to depict appellant’s position when the detective initially
entered the room. The detective explained that appellant’s head
had been facing into the room and that his feet “behind where
the door would swing against the outermost wall.” During Detective Wallace’s testimony, the state asked
the detective to describe the photographs that officers had
taken during the search-warrant execution. One photograph
depicted “the floor, just behind the door,” and Wallace stated
that this photograph showed “the floor,” “a vent, smashed
trashcan, piece of paper, and a bag of white powder.” After Detective Wallace’s testimony, the state rested.
Appellant then moved for a judgment of acquittal and the trial
court overruled the motion as it related to the heroin-
possession offense, but granted a judgment of acquittal
regarding the cocaine-possession offense.
8 ROSS, 21CA3750
{¶18} On April 16, 2021, the jury found appellant guilty of heroin possession “as he stands charged in Count One of the
indictment.” The trial court subsequently sentenced appellant
to serve six years in prison. This appeal followed.
I In his first assignment of error, appellant asserts
that the state failed to present sufficient evidence to support
his heroin possession conviction. In particular, appellant
contends that (1) the state did not present sufficient evidence
to establish that appellant knew the plastic bag contained a
controlled substance; (2) the physical evidence refutes the
state’s assertion that officers found appellant behind the door
laying on top of the bag of heroin; (3) the evidence fails to
show that appellant voluntarily possessed the heroin; and (4)
the state failed to present sufficient evidence that appellant
possessed more than 10, but less than 50, grams of heroin.
A A claim of insufficient evidence invokes a due process
concern and raises the question whether the evidence is legally
sufficient to support the verdict as a matter of law. State v.
Thompkins
,
reviewing the sufficiency of the evidence, our inquiry focuses
primarily upon the adequacy of the evidence; that is, whether
9 ROSS, 21CA3750
the evidence, if believed, reasonably could support a finding of
guilt beyond a reasonable doubt. Id. at syllabus. The 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.
E.g., Jackson v. Virginia
,
St.3d 259, 273,
court is not to assess “whether the state’s evidence is to be
believed, but whether, if believed, the evidence against a
defendant would support a convic tion.” Thompkins , 78 Ohio St.3d
at 390 (Cook, J., concurring). Thus, when reviewing a sufficiency-of-the-evidence
claim, an appellate court must construe the evidence in a light
most favorable to the prosecution. E.g., State v. Hill , 75 Ohio
St.3d 195, 205,
St.3d 465, 477,
not overturn a conviction on a sufficiency-of-the-evidence claim
unless reasonable minds could not reach the conclusion that the
trier of fact did.
State v. Tibbetts
,
10 ROSS, 21CA3750
B
{¶22} R.C. 2925.11(A) contains the essential elements of the offense at issue, possession of drugs. The statute states: “No
person shall knowingly obtain, possess, or use a controlled
substance * * *.” Appellant first argues that the state failed
to present sufficient evidence to establish that he knowingly
possessed heroin. Appellant claims that the evidence adduced at
trial fails to show that he knew that the plastic bag contained
heroin. R.C. 2901.22(B) defines when a person acts knowingly:
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 a 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. We observe that “‘[t]he intent of an accused person
dwells in his mind’” and th at intent “‘can never be proved by
the direct testimony of a third person.’” State v. Johnson , 56
Ohio St.2d 35, 38,
Huffman
,
the syllabus. Rather, intent “‘mu st be gathered from the
surrounding facts and circumstances under proper instructions
11 ROSS, 21CA3750
from the court.’” Id. , quoting Huffman , paragraph four of the
syllabus;
e.g., State v. Conway
,
791,
60,
is a question of fact, and not one of law.” Koenig v. State ,
6th Dist. Butler No. CA2002-05-109,
substance “is to be determined from all the attendant facts and
circumstances available.”
State v. Teamer
,
492,
Pickaway No. 15CA4, 2015 – Ohio –5332, ¶ 13. Additionally, “‘[t]he
state may rely solely on circumstantial evidence in proving that
the defendant had knowledge of the character of the material.’”
State v. Sanders , 2nd Dist. Clark No. 2019-CA-86, 2021-Ohio-
2431, ¶ 12, quoting State v. Kraft , 1st Dist. Hamilton No. C-
060238,
St.2d 354, 364,
substance under R.C. 2925.11(A), the state is not required to
prove that “a defendant knew the specific characteristics of the
item possessed that made it” a controlled substance. State v.
Jordan
,
12 ROSS, 21CA3750
State v. Williams , 2nd Dist. Montgomery No. 20271, 2005-Ohio-
15 97, ¶ 34 (“the State is not required to prove that Defendant
‘knew’ the specific characteristics of the items he possessed
which made them controlled substances”). Instead, the state
need only demonstrate that the defendant knew or was probably
aware that the item was a controlled substance. See Jordan , 89
Ohio St.3d at 495 (discussing meaning of “knowledge” as defined
in R.C. 2901.22(B) and evaluating state’s evidence regarding
defendant’s knowledge in context of possession -of-dangerous-
ordnance statute). Additionally, the state may rely upon “permissible
inferences of knowledge, based at least in part upon fact,” to
show that a defendant had knowledge that the item possessed was
a controlled substance. Id. Consequently, even “if the accused
did not know for certain that the item in his possession was [a
controlled substance], the state can still show culpability by
objective demonstrations of the defendant’s mental state.” Id.
We further observe that “[e]ntirely innocent conduct should not
be punishabl e.” Id. Thus, when “a defendant, in good faith,
has no way of determining that the item in his possession is [a
controlled substance], he or she should not be subject to
prosecution.” Id.
13 ROSS, 21CA3750
In the case sub judice, appellant asserts that the state failed to present direct evidence that appellant knew the
plastic bag contained heroin and that the circumstantial
evidence fails to support a finding that he knew that the bag
contained heroin. Appellant recognizes that Detective Wallace
described the contents of the bag as a white powder, but
contends that appellant’s knowledge that the bag contained
heroin cannot be inferred from the substance’s mere physical
appearance. Appellant also argues that he did not engage in any
conduct indicative of guilty knowledge. He states that he
complied with the officers’ orders and did not attempt to
conceal or hide evidence. The state argues that it presented sufficient evidence
to show that appellant knew that the bag contained heroin. The
state points out that it presented evidence that officers found
appellant laying on top of the plastic bag in a small motel
room. The state also asserts that the illegal nature of the
substance contained in the plastic bag was readily apparent.
The state further notes that the jury had the opportunity to
view the substance contained in the plastic bag and to reach its
own conclusion whether the substance’s illegal nature was
readily apparent such that appellant knew, or probably was
aware, that the substance is a controlled substance.
14 ROSS, 21CA3750
In the case at bar, we believe that the state presented sufficient evidence to establish that appellant knew,
or probably was aware, that the substance inside the plastic bag
is a controlled substance. As the state notes, officers found
appellant laying on top of the plastic bag that contained a
white powdery substance. The state introduced into evidence the
plastic bag that contained the substance, as well as photographs
of the plastic bag. The jury viewed both the photographs and
the physical evidence, i.e., the substance contained in the
plastic bag. The jury thus had the opportunity to consider
whether the nature of the substance would have led one in
possession of the bag to know, or to probably be aware, that the
item inside the bag is a controlled substance. Obviously, the
jury determined that the illegal nature of the substance is
readily apparent. Consequently, under these circumstances, we
believe that the state presented sufficient evidence to show
that appellant knew that the plastic bag contained a controlled
substance. Additionally, we do not agree with appellant that any
lack of evidence regarding his attempts to conceal the evidence,
or to act evasively, means that the state failed to present
sufficient evidence that appellant knew that the plastic bag
contained a controlled substance. Instead, the evidence adduced
15 ROSS, 21CA3750
at trial constitutes sufficient evidence of appellant’s
knowledge. Any arguable lack of evidence concerning appellant’s
conduct would go to the weight, not the sufficiency, of the
evidence.
See State v. Wilks
,
1562,
sufficient evidence, not the best possible evidence, to survive
a challenge on insufficiency grounds”); State v. Turner , 9th
Dist. Summit No. 28775, 2018-Ohio- 3898, ¶ 24 (“fact that the
State did not present a particular type of evidence does not
negate the sufficiency of the * * * evidence that the State did
present”).
B Appellant next argues that the state did not present
sufficient, credible evidence that he possessed the bag of
heroin. Specifically, appellant claims that Detective Wallace’s
testimony that officers found appellant laying on the floor
behind the motel room’s door violates the “physical facts rule,”
and thus, completely lacking such credibility. The Ohio Supreme Court discussed the “physical facts
rule” in
McDonald v. Ford Motor Co.
,
N.E.2d 252 (1975). In general, the rule provides that when a
witnes s’s testimony “‘is opposed to the laws of nature,’” or
“‘is clearly in conflict with principles established by the laws
16 ROSS, 21CA3750
of science,’” then the testimony “‘is of no probative value and
a jury is not permitted to rest its verdict thereon.’” Id. ,
quoting
Connor v. Jones
,
(1945). In other words, “‘[t]he testimony of a witness which is
positively contradicted by the physical facts cannot be given
probative value by the court.’” Id. , quoting Lovas v. General
Motors Corp.
,
generally whether circumstantial evidence of physical facts is
so conclusive as to wholly rebut oral testimony presenting a
different version.” Id. at 13 – 14.
For example:
Where a witness testifies that he looked and listened at a railroad crossing, but neither saw nor heard a train approaching, and the only reasonable conclusion upon the evidence is that there is no doubt that had he looked he must have seen the train, the witness’s testimony cannot be con sidered credible. Id. , citing Detroit, Toledo & Ironton Rd. Co. v. Rohrs , 114 Ohio
St. 493,
“take a case from the jury” unless “‘[t]he palpable
untruthfulness’” of the witness’s testimony is
“(1) inherent in the rejected testimony, so that it contradicts itself or (2) irreconcilable with facts of which, under recognized rules, the court takes judicial knowledge or (3) is obviously inconsistent with, contradicted by, undisputed ph ysical facts.” *17 17 ROSS, 21CA3750
Id.
at 12-13, quoting
Duling v. Burnett
,
S.W.2d 294 (1938).
The intent of the rule is to
strike[] a balance between, on the one hand, the common sense notion that physical facts and evidence can be so conclusive and demonstrative that no reasonable person could accept the truth of contrary testimony, and, on the other hand, the need for courts to be wary of treating a party’s theory of a case as “fact,” when a different theory is also possible in the case.
Id. at 13. In the case sub judice, we do not agree with appellant
that Detective Wallace’s testimony should be viewed as so
palpably untrue as to have required the trial court to remove
the case from the jury. Here, the physical facts do not
positively contradi ct Wallace’s testimony that app ellant was
laying on the floor behind the motel room’s door when the
detective entered the room. Wallace stated that he entered the
motel room after SWAT officers secured the scene. He explained
that, after SWAT officers entered the room, they would have
ordered everyone in the room to get on the floor. When Wallace
entered the room, appellant was laying with his feet behind the
door and his head pointing into the motel room. The detective
did not testify that appellant’s entire body was crammed between
the door and the wall. Therefore, we do not believe that the
detective’s testimony positively contradict s the physical facts.
18 ROSS, 21CA3750
Furthermore, we do not agree with appellant that SWAT officers’ use of a battering ram to open t he door necessarily
results in the conclusion that Detective Wallace could not have
found appellant laying behind the door. Appellant suggests
that, if he had been behind the door when SWAT officers used a
battering ram, the force of the door would have propelled his
body into the room, not behind the door. He also implies that,
had appellant been behind the door when the SWAT officers used a
battering ram to open the door, officers would have observed
bruising on appellant’s body, but did not. After our review, we believe that appellant fails to
recognize that the trial testimony does not conclusively
establish that appellant was, in fact, behind the door when SWAT
officers used a battering ram to open the door. Appellant’s
precise location in the motel room when officers opened the door
is unknown. What is known is that, once SWAT officers ordered
the individuals in the room to get on the floor, appellant
placed himself on the floor and Detective Wallace found
appellant with his feet behind the door and his head pointed
into the room. We find nothing in the record to indicate that
the physical evidence positively contradicts Wallace’s
testimony.
C
19 ROSS, 21CA3750
Voluntary Possession {¶38} Appellant next contends that the state failed to present sufficient evidence to show that he voluntarily
possessed the heroin. Appellant asserts that the evidence fails
to show that he possessed the heroin “for a sufficient time to
have ended possession.” A cardinal rule in criminal law is that a person is
not guilty of an offense unless both of the following apply:
(1) The p erson’s liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing;
(2) The person has the requisite degree of culpability for each element as to which a culpable mental state is specified by the language defining the offense.
R.C. 2901.21(A). “Possession is a voluntary act if the possessor
knowingly procured or received the thing possessed, or was aware
of the possessor ’s control of the thing possessed fo r a
suffic ient time to have ended possession.” R.C. 2901.21(F)(1).
“The language in R.C. 2901.21(D)(1) after the comma specifically
applies to a situation in which a person becomes aware he is in
possession of a particular item, but does not have time to
dispose o f the item before being caught with it.” State v.
Copeland
, 2nd Dist. Montgomery No. 23718,
“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.”
R.C. 2925.01(K). “Possession * * * may be individual or joint,
actual or constructive.”
State v. Wolery
,
332,
03CA26,
indicate that an individual has or had an item within his
immediate physical possessi on.’” State v. Kingsland , 177 Ohio
App.3d 655,
quoting Fry at ¶ 39. “Constructive possession exists when an
individual knowingly exercises dominion and control over an
object, even though that object may not be within his immediate
physical possession .”
State v. Hankerson
,
N.E.2d 1362 (1982), syllabus; State v. Brown , 4th Dist. Athens
No. 09CA3,
exist, the state must show that the defendant was conscious of
the objec t’s pre sence.
Hankerson
,
Kingsland at ¶ 13; accord State v. Huckleberry , 4th Dist. Scioto
No. 07CA3142,
Dist. Scioto No. 05CA3038,
of Kent
,
that a suspect can be in ‘constructive possession’ of * * *
property without having actual physical possession of the
property if it is located within premises under the suspec t’s
control and he was conscious of its presenc e.”). Both dominion and control, and whether a person was
conscious of the object’s presence, may be established through
circumstantial evidence. E.g., Brown at ¶ 19; see, e.g., State
v. Jenks
,
one of th e syllabus (“[c]ircumstantial evidence and direct
evidence inherently possess the same probative value”).
“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. * * * ’”
State v. Nicely
,
quoting Black’s Law Dictionary 221 (5 Ed.1979 ). Furthermore, to establish constructive possession, the
state need not show that the defendant had “[e]xclusive control”
over the contraband. State v. Tyler , 8th Dist. Cuyahoga No.
99402,
Cuyahoga No. 85034,
10th Dist. Franklin No. 93AP-201,
1993) (nothing in R.C. 2925.11 or 2925.01 “states that illegal
drugs must be in the sole or exclusive possession of the accused
at the time o f the offense”). Instead, “‘[a]ll that is required
for constructive possession is some measure of dominion or
control over the drugs in question, beyond mere access to
them.’” Howard at ¶ 15, quoting Farr at *6. Thus, simply
because others may have access to the contraband, in addition to
the defendan t, does not mean that the defendant “could not
exercise dominion or control over the drugs.” Tyler at ¶ 24;
accord State v. Walker , 10th Dist. Franklin No. 14AP-905, 2016-
Ohio-3185, ¶ 75. We further note that multiple persons may have
joint constructive possession of an object. State v. Philpott ,
8th Dist. Cuyahoga Nos. 109173, 109174, and 109175, 2020-Ohio-
5267, ¶ 67;
Wolery
,
* may be individual or joint” and “ control or dominion may be
achieved through the i nstrumentality of another”). In the case sub judice, appellant argues that the
state failed to present sufficient evidence that appellant was
aware of his control of the heroin for a sufficient period of
time. Appellant suggests that the evidence indicates that he
had only momentary or transitory possession of the heroin. To
support this argument, appellant refers to State v. Murphy , 8th
Dist. Cuyahoga No. 93093,
only “moment ary involu ntary possession” of the item at issue–
cocaine. Id. at ¶ 9. In that case, a police officer spotted a
vehicle without a front license plate and recognized the driver
as an individual the officer previously arrested for crack
cocaine possession. After the officer activated his lights and
sirens to signal to the driver to stop, the officer noticed “a
lot of movement from the driver” and Murphy, the front -seat
passenger. Id. at ¶ 2. The officer indicated that the driver
appeared to pass an item to Murphy. Once the vehicle stopped, Murphy moved to the right
side of the vehicle and exited the vehicle. The officer,
however, ordered Murphy to return to the vehicle. When the
officer asked Murphy to step out of the vehicle, the officer
noticed two bags that contained an off-white substance located
between the door frame and the passenger seat. Murphy told the
officer that the substance was crack cocaine and the driver
passed the drugs to Murphy. Murphy stated that the driver had
advised Murphy that he (the driver) could not be caught with
crack cocaine. Subsequently, Murphy was charged with drug
trafficking and drug possession and convicted of drug
possession. Murphy appealed and claimed that the state failed to
present sufficient evidence to support his conviction. The
appellate court agreed:
The evidence was unrebutted that at the time of the stop, the driver of the vehicle attempted to pass the drugs off on Murphy, and that Murphy attempted to pass the drugs back to the driver. When he got out of the car, he told the arresting officer, “That m -----f----- put that on me.” The drugs were found on the floor in the area between Murphy’s seat and the door. The issue is simply whether Murphy’s momentary invol untary possession when the drugs were forced on him by the driver was sufficient possession to constitute a violation of R.C. 2925.11(A). In State v. Johnson (Jan. 30, 1989), Clinton App. No. 88-02-002, the Twelfth District held in a per curiam opinion that evidence the defendant’s possession of a firearm w as “unwitting” or “involuntary” constituted a complete defense to a charge that the defendant “knowingly” possessed firearms. Likewise here, all of the evidence, including the testimony of the police of ficer, indicates that Murphy’s possession was involuntary.
Id. at ¶ 9. After our review, we do not believe that the facts in
Murphy bear similarity to the facts in the case at sub judice.
In the case before us, no evidence exists that another
individual forced heroin upon appellant or that appellant
attempted to immediately dispossess himself of the heroin.
Instead, the evidence shows that officers found appellant laying
on top of the bag of heroin and that he was the only individual
within the heroin’s immediate vicinity. The evidence permits an
inference that, if appellant was found laying on top of the bag
of heroin after Detective Wallace entered the motel room, then
immediately before SWAT officers entered the room appellant had
either actual or constructive possession of the heroin. See
State v. Lundy
, 8th Dist. Cuyahoga No. 71849,
(June 25, 1998), reversed on other grounds,
constructively possessed drugs wh en drugs “within arms length of
[defendant] at the tim e the search warrant was executed”). Appellant’s suggestion that either the female, who
also was present in the motel room, or one of the individuals
who officers observed entering and exiting the motel room
possessed the heroin may arguably be a plausible interpretation
of the evidence. It is not, however, the only interpretation of
the evidence. Moreover, appellant’s theory does not negate the
fact that the state presented sufficient evidence to show that
appellant voluntarily possessed the heroin. Appe llant further asserts that Detective Wallace’s
testimony does not “exclude the hypothesis that the bag of
heroin was already on the floor before [appellant] complied with
the SWAT officer’s command, o r that he lacked sufficient time to
dispossess himself o f the baggy.” We first observe that
appellant did not cite any authority that the state must exclude
appellant’s hypothesis that the plastic bag already was on the
floor before appellant complied wit h SWAT officers’ command.
Moreover, appellan t’s cla im that the bag of heroin already was
on the floor before he complied with the SWAT officers’ command
is purely speculative. The evidence adduced at trial shows that
appellant was one of two adults present in the motel room at the
time Wallace found the bag of heroin underneath appellant’s
body. Appellant’s proximity to the heroin supports an inference
that he constructively possessed the heroin for a sufficient
length of time to have possession. Thus, the evidence supports
a finding that appellant voluntarily possessed the heroin. See
State v. Holloman
, 8th Dist. Cuyahoga No. 95896,
¶ 22 (evidence supported finding that defendant voluntarily
possessed drugs found “underneath defendant’ s leg on the
passenger seat where he was sitti ng”). Moreover, any argument
that appellant landed on top of the bag of heroin by
happenstance would go to the weight of the evidence, not
sufficiency. Appellant also claims that the state needed to present
testimony from SWAT officers in the motel room before Detective
Wallace entered the room, or produce fingerprint or DNA evidence
to link appellant to the plastic bag to prove possession for a
sufficient time. Appellant, however, did not cite any authority
to require the state to present fingerprint or DNA evidence in
order to prove voluntary possession. Furthermore, the lack of
such evidence goes to evidence weight rather than evidence
sufficiency. Appellant also did not cite any authority to require
the state to present testimony from a specific witness at the
scene, like a SWAT officer, in order to prove voluntary
possession. We therefore reject this argument. Consequently, based upon the foregoing reasons, we
believe that the state presented sufficient evidence to show
that appellant voluntarily possessed the heroin. [2]
D Appellant also argues that the state failed to present
sufficient evidence to show that he possessed at least ten, but
less than 50, grams of heroin. Appellant contends that the lab
analyst’s conclusion that the plastic bag con tained 20.81 grams
of heroin is faulty because she did not test multiple samples
from the plastic bag, but instead, tested only one sample from
the bag. Appellant thus asserts that the lab analyst’s
testimony supports, at most, a fifth-degree-felony heroin
possession offense. R.C. 2925.11(C)(6) sets forth the penalties for heroin
possession. The severity of the offense depends upon the amount
of heroin possessed. The relevant parts of the statute provide:
(a) Except as otherwise provided in division (C)(6)(b), (c), (d), (e), or (f) of this section, possession of heroin is a felony of the fifth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.
* * * *
(d) If the amount of the drug involved equals or exceeds one hundred unit doses but is less than five hundred unit doses or equals or exceeds ten grams but is less than fifty grams, possession of heroin is a felony of the second degree, and the court shall impose as a We recognize, however, that a majority of the court did not concur in the principal opinion. One justice concurred, three
justices concurred in judgment only, and two justices dissented.
The precedential value of these statements, therefore, appears to
be questionable.
mandatory prison term a second degree felony mandatory prison term.
* * * * To support his argument about the lab analyst’s faulty
testing method, appellant cites
State v. Carroll
,
state courts have concluded that “‘“ random testing is
permissible when the seized samples are sufficiently homogenous
so that one may infer beyond a reasonable doubt that the
untested samples contain the same substance as those that are
conclusively tested.”’” Id. , quoting State v. Garnett , 9th
Dist. Medina No. 12CA0088 – M,
concurring), quoting
People v. Jones
,
Ill.Dec. 192,
Sufficiency of Random Sampling of Drug or Contraband to
Establish Jurisdictional Amount Required for Conviction, 45
A.L.R.5th 1, Section 2[a] (1997) (“As a general rule, courts
agree that random sampling of a homogenous substance is
sufficient to establish the jurisdictional amount required by
conv iction”). Appellant, however, contends that our statement in
Carroll means that more than one sample must be tested when a
single plastic bag contains a homogenous substance. We do not
agree. In Carroll , officers discovered a pill bottle that
contained 56 plastic bags of cocaine that weighed approximately
21 grams. The state’s expert testified that he used “the
statistical method of hypergeometric sampling to determine how
many units to test from the multi- unit sample.” Id. at ¶ 12.
The expert explained that based on this method, he tested the
substance contained in 21 of the 56 plastic bags and all tested
positive for cocaine. The expert stated that, based upon the
hypergeometric samplin g method, “he had a 95% confidence level
that at least 90% of the units in the 56 – unit sample were
cocaine was sufficient to establish that the 21.31 grams of off-
white substance in the baggies was cocaine.” Id. at
¶ 34. After his conviction, the defendant appealed. On appeal, the defendant asserted, in part, that the
state failed to present sufficient evidence that he possessed an
amount of cocaine needed to support a second-degree-felony
conviction. The defendant claimed that the expert’s
hypergeometric sampling method did not adequately demonstrate
that he possessed approximately 21 grams of cocaine and argued
that “the state must test every unit in every drug case to
render an appropriate conclusion regarding the weight of the
controlled substance.” Id. at ¶ 31. We did not agree with the defendant’s ar gument:
Appellate courts that have addressed this issue have accepted the hypergeometric or random sampling method of testing and determined that evidence of this method is sufficient as a matter of law to support a determination that the entire substance recovered together and similarly packaged is the same controlled substance as that tested.
Id.
at ¶ 32, citing
State v. Gartrell
,
680, ¶ 96 (3rd Dist.); State v. Edwards , 10th Dist. Franklin No.
12AP – 992,
Cuyahoga No. 93076,
the testimony of any expert witness to attack the testimony or
methods used by the state’s expert whose qualifications he had
stipula ted.” Id. at ¶ 34. We therefore concluded that the
expert’s testimony constituted sufficient evidence to support a
finding that the defendant possessed approximately 21 grams of
heroin. In the case at bar, we do not believe that Carroll
supports appellan t’s pos iti on that the lab analyst’s testimony
that she tested only one sample from the bag that contained a
homogenous substance is insufficient to establish that appellant
possessed an amount of heroin that equaled or exceeded ten grams
and less than 50 grams. Instead, as other Ohio appellate courts
have recognized, “the random -sampling method of testing creates
a reasonable inference that all similar contraband contains the
same controlled substance as that tested, at least when the
contraband is recovered togethe r and similarly packaged.” State
v. Samatar
,
¶ 81 (10th Dist.). “Accordingly, evidence of the random -
sampling method is sufficient as a matter of law to support a
determination that the entire substance recovered together and
similarly packaged is the same controlled substance as that
tested.” Id. (citations omitted); accord State v. Mitchell , 8th
Dist. Cuyahoga No. 93076,
rock sufficient to establish entire substance is crack cocaine
when similar in appearance and packaged together in one bag);
State v. Smith , 10th Dist. Franklin No. 97APA05-660, *2 (Dec.
23, 1997) (rejecting defendant’s argument tha t testing small
portion of substance in bag insufficient to establish that
entire contents of bag contained cocaine). Moreover, courts have refused to “set requirements on
the percentage of a substance that must be analyzed to support
such an inference, as it depends on the facts and circumstances
of each case.” State v. Garnett , 9th Dist. Medina No. 12CA0088-
M,
“‘woefully ignorant of sampling techniques.’” Id. , quoting
State v. Reynolds
, 4th Dist. Ross No. 1185,
(Sept. 26, 1985) (Grey, J., concurrin g). Thus, “if [an]
appellant wishes to object to the evidence on the grounds that
it is not random or representative, it is incumbent upon him to
introduce by expert witness or otherwise sufficient evidence to
show the unreliability of the testi ng.” Reynolds at *2 (Grey,
J., concurring).
{¶63} For similar reasons, we reject appellant’s contention that the lab analyst’s testimony in the case sub judice is not
sufficient to establish that he possessed at least 10, and not
more than 50, grams of heroin. The analyst stated that she
tested one sample from a single plastic bag that contained a
homogenous substance and this sample tested positive for heroin.
Her testimony thus constitutes sufficient evidence that the
entire substance, recovered together in the same plastic bag, is
the same controlled substance as that tested. We additionally
note that appellant did not present any evidence to attempt to
show that the lab analyst’s testing methodol ogy was unreliable. Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II In his second assignment of error, appellant asserts
that the trial court violated his due process rights by failing
to ensure that the verdict form specified the degree of the
offense, or the amount of heroin necessary, to elevate the
offense to a second-degree felony. Appellant thus alleges that
the guilty verdict constitutes a finding of guilty of the least
degree of the offense, i.e., a fifth-degree felony. We first note that appellant did not argue during the
trial court proceedings that the verdict form failed to comply
with R.C. 2945.75(A)(2). This court previously has indicated,
however, that reviewing courts may recognize “‘error, even in
the absence of an objection at trial, when a verdict form fails
to comply with R.C. 2945.72(A)(2). ’” State v. Robinson , 2019-
Ohio-2155,
v. Wrage
, 4th Dist. Scioto No. 08CA3237,
citing
State v. Pelfrey
,
N.E.2d 735;
accord State v. McDonald
,
Ohio- 5042,
[R.C. 2945.75(A)(2)] cannot be fulfilled * * * by showing that
the defendant failed to raise the issue of the inadequacy of the
verdict form”). R.C. 2945.75(A)(2) provides:
When the presence of one or more additional elements makes an offense one of more serious degree: * * * *
A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged. Accordingly, “[p] ursuant to the clear language of R.C.
2945.75, a verdict form signed by a jury must include either the
degree of the offense of which the defendant is convicted or a
statement that an aggravating element has been found to justify
convicting a defendant of a greater degree of a criminal
offense.” Pelfrey at syllabus; accord McDonald at ¶ 13.
“ Pelfrey makes clear that in cases involving offenses for which
the addition of an element or elements can elevate the offense
to a more serious degree, the verdict form itself is the only
relevant thing to consider in determining whether the dictates
of R.C. 2945.75 have been followed.” McDonald at ¶ 17. In the case before us, appellant asserts the verdict
form fails to include either the degree of the offense or the
elements necessary to elevate heroin possession to a second-
degree felony. Although appellant recognizes the caption of the
verdict form lists the degree of the offense as a second-degree
felony, he argues that listing the degree of the offense in the
verdict-form caption does not satisfy the R.C. 2945.75(A)(2)
requirement that a guilty verdict state “the degree of the
offense of which the offender is found guilty.” Appellant
suggests that because the caption of a verdict form is not the
same as “[a] guilty verdict,” he contends that the verdict form
supports only a conviction for a fifth-degree-felony heroin
possession. To support his argument, appellant relies upon State
v. Breaston
,
Dist.1993). In Breaston , “the verdict portion of the verdict
form signed by the jury” d id not in clude either “the degree of
the offense” or any elements necessary to elevate the offense to
a greater degree. Id. The caption of the verdict form,
however, contained an abbrevi ation that read “(F - 3).” Id. The
Breaston court concluded, without explanation, that this
abbreviation did not comply with the requirement in R.C.
2945.75(A)(2) that the guilty verdict state the degree of the
offense. The state counters that listing the degree of the
offense in the caption of the verdict form complies with R.C.
2945.75(A)(2) as construed in McDonald and Pelfrey . The state
points out that in both cases, the Ohio Supreme Court indicated
that courts are to consider the “verdict form” and d id not limit
a court’s review to the language used in the jury’s reci tation
of the verdict. The state further asserts that Breaston is
distinguishable from the case at bar because the Breaston
verdict form did not contain any explanation to indicate to the
jury that “(F - 3)” was the degree of the offense at issue.
{¶72} After our review, we agree with the state’s position. McDonald and Pelfrey provide that courts must consider the
“verdict form,” not simply the “guilty verdict,” when reviewing
whether a guilty verdict complies with R.C. 2945.75(A)(2). [3]
Here, the verdict form lists the degree of the offense within
the caption. Therefore, in accordance with McDonald and
Pelfrey , we believe that the verdict form complies with R.C.
2945.75(A)(2). Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignme nt of error.
III In his third assignment of error, appellant asserts
that the trial court erred by allowing the state to introduce
certain evidence. Appellant first contends that the trial court
erred by allowing the state to introduce evidence that officers
dis covered a large amount of cash on appellant’s person and that
they found scales in the motel room. Appellant asserts that
this evidence violated Evid.R. 403(A) by permitting the state to
paint appellant as drug dealer. Next, appellant claims that the trial court erred by
allowing the state to question Detective Wallace about the basis
for obtaining a warrant to search the motel room. Appellant
alleges that this evidence violated the Confrontation Clause and
the hearsay rule.
A In general, “‘[t]he admission or exclusion of relevant
evidence rests within the sound discretion of the trial court.’”
State v. Dean
,
¶ 91, quoting
State v. Sage
,
(1987), paragraph two of the syllab us. Consequently, “a
reviewing court should not disturb evidentiary decisions in the
absence of an abuse of discretion that created material
prejudice.”
State v. Morris
,
2407,
St.3d 460,
Adams
,
citing
State v. Sage
,
(1987). “An abuse of discretion is more than a me re error of
law or judgment.”
State v. Thompson
,
Ohio-4751,
Ohio St.3d 518,
“‘[a] trial court abuses its discretion when it makes a decision
that is unreasonable, unconscionable, or arbitrary.’” State v.
Keenan
,
quoting
State v. Darmond
,
N.E.2d 971, ¶ 34. An abuse of discretion includes a situation
in which a trial court did not engage in a “‘sound reasoning
process.’”
State v. Morris
,
Community Urban Redevelopment Corp.
,
N.E. 2d 597 (1990). Moreover, “[a]buse of discretion review is
deferential and does not permit an appellate court to simply
substitute its judgment for that of the trial court.” Darmond
at ¶ 34.
B As a general rule, all relevant evidence is
admissible. Evid.R. 402. Evid.R. 401 defines relevant evidence
as “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” Evid .R. 401 and Evid.R. 402. A trial court must,
however, exclude relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice, of
confusion o f the issues, or of misleading the jury.” Evid.R.
403. A trial court has broad discretion to determine whether to
exclude evidence under Evid.R. 403(A), and “‘an appellate court
should not interfere absent a clear abuse of that discretion.’”
State v. Yarbrough
,
N.E.2d 216, ¶ 40. Evid.R. 403(A) “m anifests a definite bias in favor of
the admission of relevant evidence, as the dangers associated
with the potentially inflammatory nature of the evidence must
substantially outweigh its probative value before the court
should reject its admissio n.” State v. White , 4th Dist. Scioto
No. 03CA2926, 2004-Ohio- 6005, ¶ 50. Thus, “[w]hen determining
whether the relevance of evidence is outweighed by its
prejudicial effects, the evidence is viewed in a light most
favorable to the proponent, maximizing its probative value and
minimizing any prejudicial effect to the party opposing
admission.” State v. Lakes , 2nd Dist. Montgomery No. 21490,
evidence may be prejudicial in the sense that it “t ends to
disprove a party’s rendition of the facts” and, thus,
“necessarily harms that party’s case.” State v. Crotts , 104
Ohio St.3d 432,
403(A) does not, however, “attempt to bar all prejudicial
evidence. ” Id. Instead, the rules provide that only unfairly
prejudicial evidence is excludable. Id. “‘Evid.R. 403(A)
speaks in terms of unfair prejudice. Logically, all evidence
presented by a prosecutor is prejudicial, but not all evidence
unfairly prejudices a defendant. It is only the latter that
Evid.R. 403 prohibits.’”
State v. Skatzes
,
defendant’s case that results from the legitimate probative
force of the evidence; rather it refers to evidence which tends
to suggest decision on an improper bas is.”’” State v. Lang , 129
Ohio St.3d 512,
United States v. Bonds
,
prejudicial evidence is evidence that “might result in an
improper basis for a jury decision.” Oberlin v. Akron Gen. Med.
Ctr.
,
Weisse nberger’s Ohio Evidence (2000) 85– 87, Section 403.3. It
is evidence that arouses the jury’s emotions, that “‘evokes a
sense of horror,’” or that “‘appeals to an instinct to punish.’”
Id. “‘Usually, although not always, unfairly prejudicial
evidence appe als to the jury’s emotions rather than intellect.’”
Id. Thus, “[u]nfavorable evidence is not equivalent to unfairly
prejudicial evidence.”
State v. Bowman
,
185,
state’s testimony that officer s found a large sum of money on
appellant’s person unfairly prejudiced appellant. He also
contends that the admission of the digital scales into evidence
was unfairly prejudicial. Appellant claims that this evidence
allowed the state to create an improper impression that
appellant is a drug dealer. To support his argument, appellant cites State v.
Pollard
, 11th Dist. Ashtabula No. 99-A-0072,
(Apr. 13, 2001). In Pollard , a jury convicted the defendant of
cocaine possession. The defendant appealed and asserted that
the trial court erred by permitting the state to introduce into
evidence $66 in cash and a pager. The defendant argued that the
state used the evidence in an “attempt[] to creat e an improper
bias in the minds of the jurors that he was a drug dealer
despite the fact that he was only charged with possession of a
controlled substance.” Id. at *2. The defendant thus claimed
that the evidence “was substantially and unfairly prejudic ial,
confusing and misleading, such that it was subject to the
mandatory exclusion pursuant to Evid.R. 403(A).” Id. The appellate court agreed with the defendant and
explained:
[The defendant] was not charged with drug trafficking. If he had been, then the possession of currency in small denominations and a pager would be admissible to show that it was more probable than not that appellant was a drug trafficker. Here, the state attempted to use these items to create an obvious inference that if appellant was a drug dealer equipped to do business, then it was probable he had possession of the drugs.
Id. at *3.
The court additionally noted that, during closing arguments, the
state used the evidence “in a highly improper manner.” Id. at
*5. Specifically, during c losing arguments the state “implied
that [the defendant] was really an uncharged drug dealer because
he had a pager and currency; ergo, it was more likely than not
that he was the one who dropped, tossed, or possessed the
drugs.” Id. The appellate court concluded that admitting the
evidence and permitting the state to use the evidence in an
improper manner during closing arguments constituted prejudicial
error. Cons equently, the court reversed the defendant’s
conviction. We, however, do not believe that the Pollard court’s
reasoning applies to the facts in the case at bar. In the case
before us, the state did not argue during closing arguments that
appellant is an uncharged drug dealer because he possessed a
large amount of money and digital scales. Furthermore, the
state did not ask Officer King what he found on appellant’s
person in an attempt to create an improper inference that
appellant is a drug trafficker and he was, therefore, more
likely to possess drugs. Instead, the state asked Officer King
w hat he found on appellant’s person to show the only item found
on appellant’s person was a large amount of cash. As the state
asserts in its brief, Officer King’s testimony “was relevant and
not prejudicial in the context of what was not found in the room
or on the person – a motel key, wallet, or identification.” The
state contends that the lack of items found on appellant’s
person helped to show that appellant may have attempted to
conceal his identity and implies guilty knowledge. We also note that several courts have indicated that
“the presence of large amounts of cash on [a defendant’s]
person” helps to establish that a defendant knowingly possessed
drugs. State v. Jones , 6th Dist. Erie No. E-19-065, 2021-Ohio-
2621, ¶ 81; State v. Watts , 3rd Dist. Hancock No. 5-12-34, 2016-
Ohio- 257, ¶ 49 (“Another factor indicating constructive
possession of drugs includes large amounts of cash found on a
person.”); State v. Howard , 5th Dist. Richland No. 13CA24, 2013-
Ohio- 5691, ¶ 38 (“a large amount of cash” disc overed on
defendant’s person relevant to establish constructive
possession); State v. Brooks , 3rd Dist. Hancock No. 5-11-11,
2012-Ohio- 5235, ¶ 50 (“pictures of [defend ant] holding large
amounts of cash” helped establish constructive possession);
State v. New
, 4th Dist. Gallia No. 08CA9,
(photographs of defendant and boyfriend holding large sums of
cash relevant to establish constructive possession of drugs);
State v. Campbell , 5th Dist. Stark No. 2004CA00176, 2005-Ohio-
795, ¶ 29 (possession of a digital scale and large amount of
cash relevant to establish constructive possession of a weapon);
State v. Riley
, 9th Dist. Summit No. 21852,
(“possession of a large amount of cash” circumstantial evidence
of constructive possession); State v. Gibson , 8th Dist. Cuyahoga
No. 82087,
the digital scales into evidence in an attempt to paint
appellant as a drug trafficker. We first observe that appellant
did not object when the state’s witnesses testified that
officers discovered the digital scales in the motel room’s night
stand drawer. Instead, appellant objected when the state sought
to introduce the scales into evidence at the close of the
state ’ s case. Therefore, we question whether appellant properly
preserved the issue for appellate review, or whether introducing
the scales into evidence was cumulative to the testimony already
given during the state’s case -in-chief. Nevertheless, we do not believe that introducing the
scales into evidence was unfairly prejudicial to appellant. The
digital scales helped to establish that appellant constructively
possessed the heroin discovered in the motel room. See
generally State v. Hall , 8th Dist. Cuyahoga No. 91786, 2009-
Ohio-3287, ¶ 22 (digital scales relevant to establish
constructive possession of drugs located in residence). Thus,
even if the evidence was prejudicial, we do not believe that it
was unfairly prejudicial such that the trial court should have
prevented the state from introducing it into evidence.
C Appellant next argues that Detective Wallace’s
testimony regarding the investigatory methods he used to procure
the warrant to search the motel room violated his right to
confront witnesses against him and the rule against hearsay.
Appellant contends that the testimony implied that unidentified
third parties had informed law enforcement officers that
appellant had been selling drugs from the motel room. Appellate courts review alleged violations of a
criminal defendant’s confrontation rights under a de novo
standard. State v. Hedges , 4th Dist. Hocking No. 15CA21, 2016-
Ohio-5038, ¶ 12; State v. Thompson , 4th Dist. Washington No.
13CA41, 2014 – Ohio – 4665, ¶ 11, citing State v. Smith , 162 Ohio
App.3d 208, 2005 – Ohio – 3579,
United States v. Robinson
, (C.A.6, 2004),
the case at bar, however, appellant did not raise a
Confrontation Clause objection during the trial court
proceeding. Appellant thus raises the Confrontation Clause
issue for the first time on appeal. Generally, a defendant who fails to raise a
Confrontation Clause issue during the trial court proceedings
forfeits the right to present it for the first time on appeal.
State v. Arnold
,
153, ¶ 65;
State v. Louis
,
Dist.), ¶ 46;
State v. Smith
,
Dist.), ¶ 74;
see State v. Anderson
,
Ohio-5656,
on one ground does not preserve other, unmentioned grounds.’”
State v. Hairston
,
Dist.), quoting State v. Wallace , 10th Dist. Franklin No. 08AP –
2,
basis of hearsay or relevancy generally does not preserve a
Confrontation Clause issue. State v. Sibole , 2nd Dist. Clark
No. 2017-CA-68,
Harris
, 1st Dist. Hamilton No. C-130442,
Consequently, because here appellant did not specifically object
at trial to the alleged hearsay statements on the basis that
they constituted hearsay and violated his rights under the
Confrontation Clause, it can be argued that we may review the
claimed violation only for plain error. State v. Parsons , 9th
Dist. Lorain No. 18CA011328,
forfeited all but plain error with respect to Confrontation
Clause issue when defendant “objected to a por tion of [the]
testimony on the basis that it called for a legal conclusion
from the witness,” but “he did not object to any of it on
hearsay grounds”). Crim.R. 52(B) p rovides that “[p]lain errors or defects
affecting substantial rights may be noticed although they were
not brought to the attention of the court.” Crim.R. 52(B) thus
permits a court to recognize plain error if the party claiming
error establishes (1) that “‘an error, i.e., a deviation from a
legal rule’” occurred, (2) that the error is a plain or “‘ an
“obvious” defect in the trial proceedings,’” and (3) that this
obvious error affected substantial rights, i.e., the error
“‘must have affected the outcome of the trial.’” State v.
Rogers
,
quoting
State v. Barnes
,
(2002);
accord United States v. Dominguez Benitez
,
76, 82,
error review, defendant typically must establish “‘reasonable
probability that , but for the error,’ the outcome of the
proceeding would have been different”). For an error to be
“plain” or “obvious,” the error must be plain “under curr ent
law” “at the time of appellate consideration.” Johnson v.
United States
,
L.Ed.2d 718 (1997); accord Henderson v. United States , 568 U.S.
266, 279,
St.3d at 27, citing
United States v. Olano
,
it must be obvious error under current law); State v. G.C. , 10th
Dist. Franklin No. 15AP-536,
when a defendant demonstrates that a plain error or defect
affected his substantial rights, the Ohio Supreme Court has
“‘admonish[ed] courts to notice plain error “with the utmost
caution, under exceptional circumstances and only to prevent a
manifest miscarriag e of justice.”’” Rogers at ¶ 23, quoting
Barnes
,
St.2d 91,
syllabus. In the case sub judice, as we explain below, we do not
believe that the trial court erred by allowing the detective to
explain his investigatory methods. The plain error doctrine,
therefore, does not apply.
1 The Sixth Amendment to the United States Constitution
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right * * * to be confronted with the witnesses
against him.” In
Crawford v. Washington
,
1354,
held that the Confrontation Clause guarantees a defendant’s
right to confront those “who ‘bear testimony’” against him. Id.
at 51. A testimonial out-of-court statement of a witness who
does not appear at trial thus is inadmissible unless the witness
is unavailable and the defendant had a prior opportunity for
cross-examination. Melendez – Diaz v. Massachusetts , 557 U.S.
305, 309,
Crawford
,
bar the use of testimonial statements for purposes other than
establishing the truth of the matter a sserted.” Crawford , 541
U.S. at 59, fn.9, citing
Tennessee v. Street
,
105 S.Ct. 2078,
testimony qualifies as nonhearsay, it does not implicate the
Confrontation Clause.”
State v. McKelton
,
question when evaluating an alleged Confrontation Clause
violation is whether the out-of-court statement constitutes
hearsay or nonhearsay. In the case sub judice, we must initially determine
whether the challenged testimony contains any out-of-court
statements that are hearsay. If the challenged testimony
contains nonhearsay, then we need not consider whether they also
are testimonial and, thus, barred under the Confrontation
Clause.
2 Under Evid.R. 801(C), hearsay is “a statement, other
than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted.” “A ‘statement’ is (1) an oral or written assertion
or (2) nonverbal conduct of a person, if it is intended by the
person as an assertion.” Evid.R. 801(A). If a statement is
offered for a purpose other than proving the truth of the matter
asserted, it is not hearsay and is admissible. State v. Osie ,
officers’ next investigatory steps are not generally hearsay.
State v. Beasley
,
493, ¶ 172. Thus, “[l]a w-enforcement officers may testify to
out-of-court statements for the nonhearsay purpose of explaining
the next investigatory step.” Id. , citing McKelton at ¶ 186.
Admissibility of investigatory-step statements is limited,
however, due to “‘the great pote ntial for abuse and potential
confusion to the trial of fact.’” State v. Ricks , 136 Ohio
St.3d 356,
v. Humphrey
, 10th Dist. Franklin No. 07AP-837,
11. In order to prevent abuse and limit potential confusion,
“[t]estimony offered to explain police conduct is admissible as
nonhearsay only if it satisfies three criteria: (1) ‘the conduct
to be explained [is] relevant, equivocal, and contemporaneous
with the statements,’ (2) the probative v alue of the statements
is not substantially outweighed by the danger of unfair
prejudice, and (3) ‘t he statements do not connect the accused
with the crime charged.’” McKelton at ¶ 186, quoting Ricks at ¶
27. Consequently, an investigatory-step statement “is not
permitted if the statement in question ‘connect[s] the accused
with the crime charged .’”
State v. Clinton
,
{¶97} In the case at bar, we do not agree with appellant that De tective Wallace’s testimony explaining his investigatory
methods contained inadmissible hearsay. None o f the detective’s
testimony contained out-of-court statements that related what
another individual had stated. Moreover, none of the statements
were offered in evidence to prove the truth of the matter
asserted. Instead, Wallace described his investigatory methods
to explain what led officers to search the motel room. Thus,
the trial court did not err by allowing the testimony.
{¶98} Accordingly, based upon the foregoing reasons, we overrule appellant’s third assignment of error.
IV In his fourth assignment of error, appellant contends
that trial counsel rendered ineffective assistance of counsel by
failing to request a jury instruction regarding “the tempo ral
requirement to prove voluntary possession” or to object to its
omission. The Sixth Amendment to the United States Constitution,
and Article I, Section 10 of the Ohio Constitution, provide that
defendants in all criminal proceedings shall have the assistance
of counsel for their defense. The United States Supreme Court
has generally interpreted this provision to mean a criminal
defendant is entitled to the “reasonably effective assistance”
of counsel.
Strickland v. Washington
,
2052,
263, 272,
right to counsel means “that defendants are entitled to be
represented by an attorney who meets at least a minimal standard
of c ompetence”). To establish constitutionally ineffective assistance
of counsel, a defendant must show that (1 ) his counsel’s
performance was deficient, and (2) the deficient performance
prejudiced the defense and deprived the defendant of a fair
trial.
E.g., Strickland
,
Ohio St.3d 405,
Powell
,
85. “Failure to establish either element is fatal to the claim.”
State v. Jones
, 4th Dist. Scioto No. 06CA3116,
14. Therefore, if one element is dispositive, a court need not
analyze both.
State v. Madrigal
,
N.E.2d 52 (2000) (a defendant’s failure to satisfy one of the
ineffective ass istance of counsel elements “negates a court’s
need to consider the other”). The deficient performance part of an ineffectiveness
claim “is necessarily linked to the practice and expectations of
the legal community: ‘The proper measure of attorney perform ance
remains simply reasonableness under prevailing professional
norms.’”
Padilla v. Kentucky
,
1473,
688;
accord Hinton
,
norms d ictate that “a lawyer must have ‘full authority to manage
the conduct of the trial.’” State v. Pasqualone , 121 Ohio St.3d
186,
Illinois
,
(1988). Furth ermore, “‘[i]n any case presenting an
ineffectiveness claim, “the performance inquiry must be whether
counse l’ s assistance was reasonable considering all the
circumstances.”’”
Hinton
,
performance, the defendant must prove that counsel’s performance
fell below an obje ctive level of reasonable representation.”
State v. Conway
,
810, ¶ 95 (citations omitted). Moreov er, when considering whether trial counsel’s
representation amounts to deficient performance, “a court must
ind ulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”
Strickland
,
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id.
Additionally, “[a] properly licensed attorney is presumed to
execute his duties in an ethical and comp etent manner.” State
v. Taylor
, 4th Dist. Washington No. 07CA11,
citing
State v. Smith
,
(1985). Therefore, a defendant bears the burden to show
ineffectiveness by demonstrating that counsel’s errors were “so
serious” that counsel failed to function “as the ‘counsel’
guaranteed * * * by the Sixth Amendmen t.” Strickland , 466 U.S.
at 687;
e.g., State v. Gondor
,
6679,
156,
that a reasonable probab ility exists that “‘but for counsel’s
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine the outcome.’”
Hinton
,
Strickland
,
St.3d 360,
Bradley
,
three of the syllabus; accord State v. Spaulding , 151 Ohio St.3d
378,
requires a “but for” analysis). “‘[T]he question is whether
there is a reasonable probability that, absent the errors, the
factfi nder would have had a reasonable doubt respecting guilt.’”
Hinton
,
the existence of prejudice but, instead, must require the
defendant to affirmatively establish prejudice. State v. Clark ,
4th Dist. Pike No. 02CA684,
Tucker , 4th Dist. Ross No. 01CA2592 (Apr. 2, 2002. As we have
repeatedly recognized, speculation is insufficient to establish
the prejudice component of an ineffective assistance of counsel
claim. E.g., State v. Tabor , 4th Dist. Jackson No. 16CA9, 2017-
Ohio-8656, ¶ 34; State v. Jenkins , 4th Dist. Ross No. 13CA3413,
13CA4,
No. 10CA13,
Athens No. 08CA24,
purely speculative argument cannot serve as the basis for an
ineffectiveness claim). Courts have held that “‘[a]n attorney’s decision no t
to request a particular jury instruction is a matter of trial
strategy and does not establish ineffective assistance of
counsel.’” State v. Harrison , 3d Dist. Logan No. 8-14-16, 2015-
Ohio-1419, ¶ 89, quoting State v. Morris , 9th Dist. Summit No.
22089,
Summit No. 21196,
Ohio St.3d 433, 443 (1995), and citing State v. Oates , 3d Dist.
Hardin No. 6-12-19, 2013-Ohio- 2609, ¶ 9. Nevertheless, “[a]
trial court’ s instructions to a jury must correctly, clearly,
and completely state the law applicable to the case.” State v.
Orians
,
Further, “a defendant is entitled to have the jury instructed on
all elements that must be proved to establish the crime with
which he is charged.”
State v. Gardner
,
153 (1980). In the case at bar, even if we assume for purposes of
argument that appellant ’s trial counsel performed deficiently by
failing to ask the trial court to give the jury a voluntary-
possession instruction, we do not believe that appellant has
demonstrated that a reasonable probability exists that the jury
would have had reasonable doubt regarding appellant’s guilt if
the court had given the voluntary-possession instruction. As we
noted earlier in this decision, the evidence shows that officers
found appellant in a small motel room laying on top of a bag of
heroin. None of the evidence shows that appellant momentarily
possessed the heroin. The evidence adduced at trial allowed the
jury to reasonably infer that, if appellant was found laying on
top of the bag when Detective Wallace lifted appellant from the
floor, then appellant was in proximity to the heroin for a
sufficient length of time to have possession. Thus, trial
counsel did not render ineffective assistance of counsel by
failing to ask the court to give the jury a voluntary-possession
instruction. We reiterate that in Ireland , supra, the Ohio Supreme
Court stated: “Voluntariness is not an essential element of the
offense such that it must be charged in the indictment or
addressed in the trial court’s jury instructions, even if the
need for the act to be voluntarily committed is stated in the
statutory scheme; rather, a challenge to voluntariness is a
defense.” Id. at ¶ 33. We recognize, however, that a majority
of the court did not concur in the principal opinion. We
nevertheless find the court’s analysis instructi ve as it relates
to trial counsel’s decision in the case at bar not to request a
voluntary-possession jury instruction. Consequently, we do not agree with appellant that
trial counsel provided ineffective assistance of counsel by
failing to request a voluntary-possession jury instruction. Accordingly, based upon the foregoing reasons, we
overrule appellant’s fourth assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross 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, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60 day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the 45 day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion For the Court BY:__________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.
Notes
[1] Different counsel represented appellant during the trial court proceedings.
[2] In
State v. Ireland
,
[3] It is unclear whether McDonald and Pelfrey intended to deviate from the precise language used in R.C. 2945.75(A)(2), i.e., “guilty verdict.” Nevertheless, both cases clearly state that courts are to review the “verdict form” and not merely the “guilty verdict.”