State v. Gasser , 2016 Ohio 7538 ( 2016 )

[Cite as State v. Gasser, 2016-Ohio-7538.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 15CA0046-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SCOTT GASSER COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 14CR0376
DECISION AND JOURNAL ENTRY
Dated: October 31, 2016
MOORE, Judge.
{¶1} Defendant-Appellant Scott M. Gasser appeals from the judgment of the Medina
County Court of Common Pleas. This Court affirms.
I.
{¶2} Based upon Mr. Gasser’s behavior during a traffic stop and following his arrest,
Mr. Gasser was indicted in June 2014, on one count of tampering with evidence in violation of
R.C. 2921.12(A)(1), a felony of the third degree. Mr. Gasser filed a motion to suppress asserting
that the traffic stop was a pretext and challenging the scope and duration of the traffic stop. The
trial court denied the motion following a hearing. The matter proceeded to a jury trial. The jury
found Mr. Gasser guilty, and the trial court sentenced him to 18 months in prison. Mr. Gasser
has appealed, raising four assignments of error for our review, which will be addressed out of
sequence to facilitate our analysis.
2
II.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED REVERS[I]BLE ERROR WHEN IT
OVERRULED [MR. GASSER’S] MOTION TO SUPPRESS.
{¶3} Mr. Gasser argues in his fourth assignment of error that the trial court erred in
denying his motion to suppress. Specifically, he asserts that the canine sniff of the vehicle was
outside the permissible scope of the stop.
Appellate review of a motion to suppress presents a mixed question of law and
fact. When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses. Consequently, an appellate court must
accept the trial court’s findings of fact if they are supported by competent,
credible evidence. Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶4} On appeal, Mr. Gasser appears to assert that the decision of Rodriguez v. United
States, __ U.S. __, 135 S.Ct. 1609 (2015), stands for the proposition that a canine sniff of a
vehicle is outside the permissible scope of a traffic stop initiated solely for a minor traffic
violation. He does not challenge the validity of the stop itself.
{¶5} We read nothing in Rodriguez that supports Mr. Gasser’s contention. See State v.
Jackson, 9th Dist. Lorain No. 14CA010555, 2015-Ohio-2473, ¶ 29 (“[W]e view Rodriguez not
as a departure from precedent, but merely as an illustrative example of the type of [canine] sniff
test that unjustifiably prolongs a traffic stop.”). Instead, Rodriguez reaffirmed the validity of the
holding of Illinois v. Caballes, 543 U.S. 405 (2005). See Rodriguez at 1612. “In * * * Caballes
* * * [the Supreme] Court held that a canine sniff conducted during a lawful traffic stop does not
violate the Fourth Amendment’s proscription of unreasonable seizures.” Rodriguez at 1612; see
3
also State v. Norvet, 9th Dist. Medina No. 14CA0114-M, 2016-Ohio-3494, ¶ 7 (reaffirming that
“reasonable suspicion of drug-related activity is not necessary for an officer to request that a
drug dog be brought to the scene of a traffic stop and perform a sniff of a detained vehicle when
the vehicle is being otherwise lawfully detained at the time[]”). “A seizure justified only by a
police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the
time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.”
Rodriguez at 1612, quoting Caballes at 407; see also Norvet at ¶ 6 (“[W]hen detaining a motorist
for a traffic violation, an officer may delay the motorist for a time period sufficient to issue a
ticket or a warning. This measure includes the period of time sufficient to run a computer check
on the driver’s license, registration, and vehicle plates.”) (Internal quotations and citations
omitted.). “In determining if an officer completed these tasks within a reasonable length of time,
the court must evaluate the duration of the stop in light of the totality of the circumstances and
consider whether the officer diligently conducted the investigation.” (Internal quotations and
citations omitted.) Norvet at ¶ 6.
{¶6} At the suppression hearing, Deputy David King of the Medina County Sheriff’s
Office testified that he was in the patrol division and also a canine handler at the time of the stop.
At the time, Deputy King and his canine partner were certified through the Summit County
Sheriff’s Office.
{¶7} Deputy King testified that on May 30, 2014, while he was on duty, he received
information that Mr. Gasser was possibly in a green Ford Taurus going to Cleveland to buy
heroin. Deputy King was also provided with the license plate number of the vehicle. Around
11:00 p.m., Deputy King was in his patrol car with his canine partner observing traffic on 1-71
southbound near the 211 mile marker when he noticed a green Taurus pass him. The vehicle
4
contained several occupants. Deputy King pulled out and followed the vehicle and noted that the
plate number matched the plate number he was given. The vehicle exited onto the ramp for State
Route 224 westbound, and as it was doing so, Deputy King observed the front and rear passenger
tires go completely over the fog line. Deputy King testified that such was a violation of Ohio
traffic laws. Deputy King continued to follow the vehicle a short distance until another officer
could get behind Deputy King’s vehicle given the number of occupants in the Taurus.
Thereafter, Deputy King turned on his overhead lights and initiated a traffic stop.
{¶8} Deputy King approached the driver’s side, told the driver that he had observed her
drive over the fog line and requested her license and proof of insurance. She was only able to
supply her license. Mr. Gasser was seated in the backseat behind the driver. Deputy King also
asked the passengers for identification; all of the three passengers except for Mr. Gasser
complied.
{¶9} Deputy King then gave the drivers’ licenses to another deputy who had arrived on
the scene and asked that deputy to run the information through the computers. Deputy King then
retrieved his canine partner from his car and walked the dog around the vehicle. The dog alerted
to the rear driver’s side door, near where Mr. Gasser had been seated.
{¶10} Deputy King estimated that less than five minutes passed between the time he
pulled the vehicle over and the time he began the canine sniff, which he estimated took
approximately one minute. At that point, the other officer had not been able to complete the
computer searches and a ticket or warning had not been issued. Deputy King testified that, based
upon his training and experience, a traffic stop involving four occupants could not be completed
in less than five minutes.
5
{¶11} Given the foregoing, and in light of Mr. Gasser’s limited argument on appeal, we
conclude that the trial court did not err in concluding that the canine sniff was permitted. At the
time of the sniff, the purpose of the stop had not been effectuated, and, thus, the vehicle was still
being lawfully detained for the traffic infraction. See Rodriguez, __ U.S. __, 135 S.Ct. at 1612;
see also Norvet, 2016-Ohio-3494, ¶ 18. The canine sniff did not prolong the duration of the
traffic stop. See Rodriguez at 1612; Norvet at ¶ 18.
{¶12} Mr. Gasser’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT FOUND MR. GASSER GUILTY OF TAMPERING WITH
EVIDENCE BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT
SUCH FINDINGS.
{¶13} Mr. Gasser argues in his first assignment of error that his conviction is based upon
insufficient evidence. As Mr. Gasser has argued his assignments of error concerning sufficiency
and weight together in his brief, it is somewhat difficult at times to discern which arguments he
believes concern weight and which he believes concern sufficiency. See App.R. 16(A)(7);
App.R. 12(A)(2).
{¶14} The issue of whether a conviction is supported by sufficient evidence is a question
of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
6
{¶15} R.C. 2921.12(A)(1) states that “[n]o person, knowing that an official proceeding
or investigation is in progress, or is about to be or likely to be instituted, shall do any of the
following: (1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose
to impair its value or availability as evidence in such proceeding or investigation[.]” “[A]
conviction for tampering with evidence pursuant to R.C. 2921.12(A)(1) requires proof that the
defendant intended to impair the value or availability of evidence that related to an existing or
likely official investigation or proceeding. Likelihood is measured at the time of the act of
alleged tampering.” State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, ¶ 19. “A person acts
purposely when it is his specific intention to cause a certain result, or, when the gist of the
offense is a prohibition against conduct of a certain nature, regardless of what the offender
intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.”
Former R.C. 2901.22(A). “A person acts knowingly, regardless of his purpose, when he is aware
that his conduct will probably cause a certain result or will probably be of a certain nature. A
person has knowledge of circumstances when he is aware that such circumstances probably
exist.” Former R.C. 2901.22(B). “[I]t is not necessary for the State to set forth direct evidence
of a tampering with evidence offense. Circumstantial evidence may suffice.” (Internal
quotations and citations omitted.) State v. Glunt, 9th Dist. Medina No. 13CA0050-M, 2014-
Ohio-3533, ¶ 8,
{¶16} At around 9:00 p.m. on May 30, 2014, Agent John Stayrook with the Medina
County Drug Task Force received information from an informant that Mr. Gasser would be
going to, and coming back from, Cleveland that day. The informant also provided the make and
model of the car as well as the license plate number. Agent Stayrook supplied that information
to other law enforcement agencies in the area.
7
{¶17} Colin Wojdacz, a longtime friend of Mr. Gasser, and at the time of trial, a
recovering heroin addict, testified that on May 30, 2014, he, Mr. Gasser, and two other people
went to Cleveland to buy heroin. Mr. Gasser conducted the transaction from the car. While Mr.
Wojdacz could not remember how much they spent on heroin, he agreed that it sounded right
that he told police that he put in his share of $60. Mr. Wojdacz acknowledged that $60 would
not buy much heroin and $100 would probably buy about half of a gram. Mr. Wojdacz testified
that the four of them snorted the heroin in the car but he was unsure whether any was left over.
{¶18} After receiving the information from Agent Stayrook, Deputy King went out with
his canine partner to patrol southbound I-71 traffic from a median strip dividing the northbound
and southbound lanes of travel. Deputy King indicated that his marked patrol car was not hidden
from view or concealed. He testified that his canine partner was trained to detect the odor of
marijuana, heroin, ecstasy, cocaine, and methamphetamine.
{¶19} At around 11:00 p.m., Deputy King observed a vehicle matching the description
drive by. As it passed him, he pulled out and followed it. He discovered that the license plate
matched the one that was relayed to him. As the vehicle was exiting the highway, he saw the
front and rear passenger side tires cross the fog lines. He also observed a lot of movement from
the rear passengers in the vehicle. He became concerned that the passengers could have been
reaching for a weapon or trying to conceal something. Deputy King stated that, based on his
training and experience, it appeared to him that the occupants knew he was behind them. Deputy
King did not notice anyone in the vehicle discard anything out the window.
{¶20} Mr. Wojdacz testified that the occupants of the vehicle saw the police car sitting
in the median strip and noticed when the car pulled behind them. Mr. Wojdacz testified that he
8
and Mr. Gasser were “kind of laughing” when they saw the police car pull behind them; Mr.
Wojdacz then clarified that at least he was laughing.
{¶21} A little over a mile or so from the exit, Deputy King initiated a traffic stop. There
were four people in the vehicle; the driver, a female, and three males. Mr. Gasser was seated in
rear seat on the driver’s side of the vehicle. Mr. Wojdacz was seated next to Mr. Gasser. Upon
interacting with police, Mr. Gasser volunteered that he had just been picked up from work. He
also told officers that he had been at work all day which he claimed was evidenced by the mulch
all over his clothes. Deputy King testified that he did not observe any mulch on Mr. Gasser’s
clothes or shoes.
{¶22} While another deputy ran the occupants’ information, Deputy King walked his
canine partner around the vehicle. The dog alerted on the rear driver’s side door, near where Mr.
Gasser was seated. The occupants were asked to exit the vehicle and the passengers were patted
down.1 No contraband was found. Deputy King testified that narcotics are not always found in
vehicle searches after a dog alerts. The drugs could be concealed on a person, hidden in a
compartment in the vehicle, or the alert could have resulted from a drug, such as marijuana,
being smoked in the car days before. The occupants of the vehicle were then transported to the
Medina County Jail.
{¶23} Agent Michael Barnhardt with Medina County Drug Task Force assisted Agent
Stayrook with interviewing the occupants of the vehicle. Prior to interviewing Mr. Gasser, the
agents spoke with the other occupants. Agent Stayrook testified at trial that Mr. Wojdacz never
told him that the occupants used the heroin in the car. Mr. Gasser stated that the agents did not
have anything on him, they did not find anything on him, and he did not know why he was there.
1
The driver was not patted down as no female officer was present on the scene.
9
Agent Barnhardt testified that Agent Stayrook told Mr. Gasser they had spoken with the other
occupants and they indicated that Mr. Gasser “did go up to Cleveland to buy heroin and that [the
heroin was] on his person[.]” To which Mr. Gasser responded, “that was bullsh*t and he had
nothing on him.” Mr. Gasser further indicated that the occupants would not have accused him of
having narcotics with him.
{¶24} The agents then advised Mr. Gasser that he was possibly looking at a possession
charge if he did have drugs on his person. Mr. Gasser indicated he did not have any. He then
told the agents that when Deputy King was pulling him over, he threw “it” out the window. Mr.
Wojdacz also testified that he told police that Mr. Gasser threw “it” out the window.
{¶25} The agents then advised Mr. Gasser that they were going to get a search warrant
for an x-ray because they believed he still had drugs on his person. The interview was
terminated and Agent Stayrook and Deputy King searched the area of the traffic stop for at least
two hours and did not find any narcotics.
{¶26} A warrant was obtained and Mr. Gasser was transported to the local hospital.
Deputy Scott Donato with the Medina County Sheriff’s Office was dispatched to transport Mr.
Gasser from the jail to the emergency room of the hospital for a court-ordered examination.
Deputy Donato was the primary officer guarding Mr. Gasser while he was at the hospital. He
was accompanied by Agent Stayrook. According to Deputy Donato, Mr. Gasser was “very
vocal” about not having an examination and was very uncooperative with the medical staff. Mr.
Gasser stated that he already “flushed it[,]” but would not specify what it was he flushed.
Deputy Donato indicated that the jail cell where Mr. Gasser was held prior to being taken to the
hospital did not have plumbing.
10
{¶27} Agent Stayrook confirmed that Mr. Gasser was very adamant about not having an
x-ray and used “pretty strong language[.]” Agent Stayrook testified that Mr. Gasser was very
uncooperative when the nurse was trying to take his blood pressure and that Mr. Gasser tried to
bite a nurse when she was putting the thermometer in his mouth. The medical staff was
ultimately unable to execute the search warrant and x-ray Mr. Gasser.
{¶28} Mr. Gasser was taken back to the jail and placed in a holding cell with a toilet and
a sink. When Agent Stayrook arrived back at the jail, Mr. Gasser was screaming that he “flushed
it three times[.]” Later, as the other three occupants were released from the jail, Agent Stayrook
overheard Mr. Gasser yelling to them, screaming profanities, thanking them for snitching on
him, and telling them that he would get even with them when he got out.
{¶29} Viewing the evidence in a light most favorable to the State, we conclude that
sufficient evidence was presented from which a jury could reasonably conclude that Mr. Gasser
tampered with evidence. Mr. Wojdacz testified that Mr. Gasser had bought heroin that evening
and that the four of them had used it in the car. However, Mr. Wojdacz did not know whether
any heroin remained after they snorted it. Notably, the drug dog alerted on the vehicle near
where Mr. Gasser was seated providing additional evidence that drugs of some kind were in the
car at some point in time. Mr. Gasser’s later behavior at the hospital, which led to hospital staff
not executing the search warrant, could allow a trier of fact to infer that some drugs remained on
his person that he did not want the authorities to find.
{¶30} Certainly at the point in time that Mr. Gasser was taken to the jail the first time
and informed that officers were seeking a search warrant of his person because they believed he
still had drugs on his person, there was evidence from which a jury could reasonably conclude
that Mr. Gasser knew an official investigation involving drugs was in progress. See R.C.
11
2921.12(A)(1); Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, at ¶ 19. As noted above, when
Mr. Gasser was taken to the hospital to undergo an x-ray to determine whether he was in fact
secreting drugs on his person, he adamantly refused to have the x-ray and became very
uncooperative, even resorting to attempting to bite the nursing staff. Such behavior provides
evidence from which a trier of fact could reasonably infer both that Mr. Gasser’s purpose was to
conceal evidence and that there was evidence on his person to conceal. See R.C. 2921.12(A)(1).
Finally, Mr. Gasser himself told police, after he was placed in a holding cell with a toilet and
sink upon returning from the hospital without being x-rayed, that he “flushed it three times[.]”
From that evidence a trier of fact could infer that Mr. Gasser did in fact remove evidence in order
to impair the availability of that evidence for use in an official investigation. See R.C.
2921.12(A)(1). The fact that some of Mr. Gasser’s other statements about his disposal of
evidence were unlikely to be true or were contradicted by statements made by police does not
mean that the State failed to present sufficient evidence to sustain a conviction for tampering
with evidence; instead such would go to issues of credibility and weight. See State v. Violett, 9th
Dist. Medina No. 11CA0106-M, 2012-Ohio-2685, ¶ 7. Viewing the evidence in a light most
favorable to the prosecution, we conclude that there was sufficient evidence to sustain a guilty
verdict for tampering with evidence.
{¶31} In light of Mr. Gasser’s limited argument on appeal, his first assignment of error
is overruled.
ASSIGNMENT OF ERROR II
MR. GASSER’S CONVICTION FOR RECEIVING STOLEN PROPERTY IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
12
{¶32} Mr. Gasser argues in his second assignment of error that his conviction is against
the weight of the evidence.2
{¶33} When a defendant asserts that his conviction is against the manifest weight of the
evidence:
an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶34} Mr. Gasser points out that many of his statements concerning the disposal of
evidence were unlikely to be true. He notes that even though there was evidence that he told
police he threw drugs out the window before the traffic stop, no drugs were found along the
roadside, nor did Deputy King observe him toss anything out of the window. Additionally, he
points out that the first time he told police that he flushed the drugs he did not have access to
plumbing facilities. Finally, he argues that his statement that he “flushed it three times[]” does
not make any sense as he was in a holding cell “in the presence of law enforcement.” We note
that the jury could have nonetheless reasonably believed that Mr. Gasser disposed of evidence.
For example, the jury could have concluded that, given Mr. Gasser had access to plumbing
facilities in his second cell, he could have disposed of the drugs notwithstanding “the presence of
law enforcement.” We remain mindful that “[t]he jury was able to observe the witnesses’
demeanor during [] testimony and use these observations to weigh the credibility and resolve the
2
While his assignment of error mistakenly lists receiving stolen property as the crime at
issue, the text of the argument focuses on the crime at issue, tampering with evidence.
13
conflicts in the testimony.” State v. Andrews, 9th Dist. Summit No. 25114, 2010-Ohio-6126, ¶
28. Moreover, as we have stated numerous times, the “[t]he trier of fact is free to believe all,
part, or none of the testimony of each witness.” (Internal quotations and citation omitted.) State
v. Parker, 9th Dist. Lorain No. 15CA010750, 2016-Ohio-5663, ¶ 23. Thus, the jury was free to
disbelieve Mr. Gasser’s statements to police that it found incredible while at the same giving
weight to those statements that it found credible. Aside from Mr. Gasser’s statements, the jury
was confronted with evidence of Mr. Gasser’s behavior at the hospital, which, as discussed in the
sufficiency analysis, could also provide some evidence in support of a tampering conviction.
Having thoroughly reviewed the entire record, weighed the evidence, and considered credibility
issues, we cannot say that the jury committed a manifest miscarriage of justice in finding Mr.
Gasser guilty of tampering with evidence, nor is this the exceptional case requiring reversal. See
Otten at 340.
{¶35} Mr. Gasser’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
ALLOWING THE STATE TO PRESENT IRRELEVANT AND PREJUDICIAL
EVIDENCE DURING THE TRIAL.
{¶36} Mr. Gasser argues in his third assignment of error that the trial court erred and
committed plain error in allowing the State to present irrelevant and prejudicial testimony at trial.
{¶37} “The trial court has broad discretion in the admission or exclusion of relevant
evidence.” State v. Rafferty, 9th Dist. Summit No. 26724, 2015-Ohio-1629, ¶ 104. “In order to
find an abuse of discretion, we must determine that the trial court’s decision was unreasonable,
arbitrary or unconscionable.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
14
{¶38} Evid.R. 402 limits the admission of evidence to relevant evidence. Evid.R. 401
defines “[r]elevant 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.”
{¶39} Evid.R. 403 provides:
(A) Exclusion mandatory. Although relevant, evidence is not admissible if its
probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.
(B) Exclusion discretionary. Although relevant, evidence may be excluded if its
probative value is substantially outweighed by considerations of undue delay, or
needless presentation of cumulative evidence.
{¶40} Specifically, Mr. Gasser challenges the admission of the testimony of Agent
Stayrook about “methods of concealment, descriptions of heroin, and the amount able to be
purchased with sixty dollars[.]” During this line of questioning, Mr. Gasser’s trial counsel only
objected to two questions:
[Prosecutor:] Okay have you had experience in any of those capacities you’ve
described, in any of those positions you’ve had in drug investigations where
you’ve encountered people that have secreted narcotics first I’m going to say in
their pants?
[Agent Stayrook:] Yes.
[Prosecutor:] Is that common?
[Agent Stayrook:] Yes
[Defense counsel]: Objection.
[Trial court]: Overruled.
The second objection occurred later in the line of inquiry:
[Prosecutor:] Okay. * * * [I]f you can, show me with your hands how much
would a gram of heroin be.
[Defense counsel:] Objection.
15
[Trial court:] Basis?
[Defense counsel:] This has no relevance. There’s been no testimony to the
amount of heroin that was purchased, that there was even an amount of heroin
purchased so this is all just speculation.
[Trial court:] Overruled.
{¶41} The prosecution then asked Agent Stayrook how big a gram of heroin would be as
compared to common objects. Agent Stayrook indicated that it would be a little smaller than a
BB.
{¶42} With respect to these two questions, we cannot say that the trial court abused its
discretion in admitting this testimony. This testimony occurred at the end of trial, after the jury
had already heard about Mr. Gasser’s behavior at the hospital and had heard that Mr. Gasser
claimed to have flushed drugs while he was in a cell with a toilet and a sink. Mr. Wojdacz had
also already testified and acknowledged that it seemed correct that he told the police that he put
in his share of $60 to buy heroin, that $60 would not buy much heroin, and that $100 would
probably buy half a gram. In addition, defense counsel had also elicited testimony from Mr.
Wojdacz that one gram of heroin was probably the most he ever had used at once. Agent
Stayrook’s testimony would thus support the State’s theory of the case that Mr. Gasser secreted
heroin because the testimony tended to demonstrate that it was possible to do so and that doing
so was within the realm of Agent Stayrook’s experience. In other words, if there was evidence
that Mr. Gasser possessed an amount of heroin that was so great such that it could not be
physically hidden on his person, the State’s theory of the case would not be supportable.
{¶43} To the extent Mr. Gasser asserts that even if the testimony was relevant, it was
inadmissible because it was confusing and unfairly prejudicial, we see no merit in that
contention. Mr. Gasser’s argument appears to be that this testimony was the State’s way of
attempting to improperly establish the existence of, and amount of, heroin. However, Mr.
16
Wojdacz himself testified, without defense objection, about the existence of heroin and that $60
would not buy much heroin. Further, Mr. Gasser’s behavior at the hospital could allow a trier of
fact to reasonably infer that some heroin remained. Accordingly, in light of his limited
argument, Mr. Gasser has not demonstrated that Agent Stayrook’s testimony was confusing or
unfairly prejudicial.
{¶44} Nonetheless, even if the testimony was inadmissible, we cannot say that the
admission of the testimony affected Mr. Gasser’s substantial rights. See Evid.R. 103(A)(1);
Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not affect substantial
rights shall be disregarded.”); State v. McKelton, Slip Opinion No. 2016-Ohio-5735, ¶ 184.
Given the entirety of the other admitted evidence, any error in admitting this testimony was
harmless beyond a reasonable doubt. See Crim.R. 52(A); McKelton at ¶ 184.
{¶45} While Mr. Gasser maintains that he objected to the entire line of questioning,
there is nothing in the record that supports that contention. Accordingly, the remainder of his
argument will be reviewed for plain error. Pursuant to Crim.R. 52(B), “[p]lain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention of the
court.” “[T]he accused bears the burden of proof to demonstrate plain error on the record * * *
and must show an error, i.e., a deviation from a legal rule that constitutes an obvious defect in the
trial proceedings[.]” State v. Jackson, 9th Dist. Summit No. 27479, 2015-Ohio-5096, ¶ 51,
quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 22. “However, even if the error
is obvious, it must have affected substantial rights, and [w]e have interpreted this aspect of the
rule to mean that the trial court’s error must have affected the outcome of the trial.” Jackson at ¶
51, quoting Rogers at ¶ 22. “The accused is therefore required to demonstrate a reasonable
probability that the error resulted in prejudice * * *.” Jackson at ¶ 51, quoting Rogers at ¶ 22.
17
{¶46} Agent Stayrook additionally testified, without objection, that he had handled
investigations where suspects have secreted narcotics on their person and that $60 or $100 was
not going to buy a whole lot of heroin. Moreover, Agent Stayrook provided a description of
what heroin typically looks like.
{¶47} For reasons previously articulated above, we likewise cannot say that admission
of the other challenged portions of Agent Stayrook’s testimony amounted to plain error. Mr.
Gasser has not demonstrated that the testimony was inadmissible, and thus has not demonstrated
error, let alone plain, or obvious error. See Jackson at ¶ 51, quoting Rogers at ¶ 22. We also fail
to see how admission of the foregoing testimony affected Mr. Gasser’s substantial rights in light
of the other testimony admitted at trial. See Crim.R. 52(B).
{¶48} Mr. Gasser’s third assignment of error is overruled.
III.
{¶49} Mr. Gasser’s assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
18
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
JEREMY SAMUELS, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.