State v. Mobarak , 98 N.E.3d 1023 ( 2017 )

[Cite as State v. Mobarak, 2017-Ohio-7999.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 14AP-517
(C.P.C. No. 12CR-5582)
v. :
(REGULAR CALENDAR)
Soleiman Mobarak, :
Defendant-Appellant. :
D E C I S I O N
Rendered on September 29, 2017
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee. Argued: Seth L. Gilbert.
On brief: The Behal Law Group LLC, Robert J. Behal,
John M. Gonzales, and Gilbert J. Gradisar, for appellant.
Argued: Robert J. Behal.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This case is before us based on a remand issued by the Supreme Court of
Ohio in State v. Mobarak, 150 Ohio St.3d 26, 2016-Ohio-8372 ("Mobarak II"), in which
the court reversed our decision in State v. Mobarak, 10th Dist. No. 14AP-517, 2015-Ohio-
3007 ("Mobarak I"). In Mobarak I, we sustained the first assignment of error raised by
Soleiman Mobarak, defendant-appellant, and found his remaining three assignments of
error moot. In reversing and remanding the matter in Mobarak II, the Supreme Court
directed us to consider on remand appellant's remaining assignments of error.
{¶ 2} The following factual summary is essentially identical to the one in
Mobarak I. Appellant appeals the judgment of the Franklin County Court of Common
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Pleas, in which the court found him guilty, pursuant to a jury verdict, of engaging in a
pattern of corrupt activity, in violation of R.C. 2923.32, a first-degree felony (with a
specific factual finding that one or more instances of corrupt activity involved a felony of
the first degree; and, separately, that one or more instances of corrupt activity involved a
felony of the second or third degree); aggravated trafficking in drugs, in violation of R.C.
2925.03, a second-degree felony (with a specific factual finding that a-
Pyrrolidinopentiophenone ("A-PVP") was a controlled substance analog); aggravated
possession of drugs, in violation of R.C. 2925.03, a fourth-degree felony (with a specific
factual finding that A-PVP was a controlled substance analog); aggravated trafficking in
drugs, in violation of R.C. 2925.03, a second-degree felony (with a specific factual finding
that A-PVP was a controlled substance analog); aggravated possession of drugs, in
violation of R.C. 2925.11, a second-degree felony (with a specific factual finding that A-
PVP was a controlled substance analog); aggravated trafficking in drugs, in violation of
R.C. 2925.03, a first-degree felony (with a specific factual finding that A-PVP was a
controlled substance analog); and aggravated possession of drugs, in violation of R.C.
2925.11, a first-degree felony (with a specific factual finding that A-PVP was a controlled
substance analog). The jury also made findings as to the bulk amount issues on the drug
counts.
{¶ 3} Appellant owns a convenience store. From March to July 2012, undercover
police officers purchased packages of a substance commonly referred to as "bath salts"
from appellant's store. Appellant was arrested on July 25, 2012. In August and October
2012, appellant was charged with various drug trafficking and possession counts as well
as engaging in a pattern of corrupt activity. The State of Ohio, plaintiff-appellee, alleged
the bath salts were "controlled substance analogs," as defined by R.C. 3719.01(HH)(1).
{¶ 4} Appellant sought to have the charges dismissed. Appellant also filed a
motion in limine to exclude the testimony of the state's expert witness, Dr. Travis Worst, a
forensic scientist from the Bureau of Criminal Investigation ("BCI"), arguing that he did
not meet the requirements of Evid.R. 702. The trial court held a hearing on the motion in
limine but never explicitly ruled on the motion.
{¶ 5} A jury trial commenced May 27 and concluded June 5, 2014. The trial court
found appellant guilty on numerous counts as outlined above. The trial court held a
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sentencing hearing on June 6, 2014, and sentenced appellant to consecutive terms of
incarceration totaling 35 years of mandatory confinement without parole. The trial court
also fined appellant $75,000. The trial court issued a judgment entry that same day, and
appellant appealed the matter to this court asserting the following assignments of error:
I. It was plain error for the trial court to fail to dismiss all
charges against Mr. Mobarak sua sponte, and allowing and his
[sic] conviction and imprisonment for innocent acts is an ex
post facto violation that is prohibited by the Ohio and United
States Constitutions.
II. The "controlled substance analog" statute under which Mr.
Mobarak was convicted was unconstitutionally vague on its
face and in its application, and his conviction was a
fundamental error that violated his constitutional right to due
process of law.
III. Because the state's expert testimony on the substances at
issue was insufficient under both the state and federal
standards, the trial court erred and abused its discretion in
denying Mr. Mobarak's motion in limine to exclude this
subjective evidence.
IV. The trial judge erred to Mr. Mobarak's prejudice because
an order imposing consecutive sentences in this case is not
supported by the facts.
{¶ 6} In Mobarak I, this court sustained appellant's first assignment of error.
Based on this court's precedent, we found the statutory definition of "controlled
substance" in R.C. 2925.01 did not include or expressly incorporate the definition of
controlled substance analog created in H.B. No. 64, and, thus, possession of controlled
substance analogs had not yet been criminalized by that bill or at the time of appellant's
offenses. Therefore, we found the trial court erred when it found appellant guilty of
aggravated possession of drugs, aggravated trafficking in drugs, and engaging in a pattern
of corrupt activity. Given this determination, we found appellant's second, third, and
fourth assignments of error moot.
{¶ 7} The state appealed our decision to the Supreme Court. In Mobarak II, the
Supreme Court reversed our decision on the authority of State v. Shalash, 148 Ohio St.3d
611, 2016-Ohio-8358 ("Shalash II"). In Shalash II, the court certified a conflict with
Mobarak I and addressed "whether 'controlled substance analogs' were criminalized as of
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October 17, 2011, the effective date of House Bill 64." Id. at ¶ 4. The court answered the
question in the affirmative. The court found that H.B. No. 64 enacted R.C. 3719.013 which
provides that, with some explicit exceptions, "a controlled substance analog, to the extent
intended for human consumption, shall be treated for purposes of any provision of the
Revised Code as a controlled substance in schedule I." Id. at ¶ 11. The court found R.C.
3719.013 dispositive. The court reasoned that, although controlled substance analogs were
not specifically proscribed by Title 29 when the defendant was arrested and indicted for
selling them, R.C. 3719.013 incorporated controlled substance analogs into Title 29. The
court reversed our decision in Mobarak I and remanded the matter to this court to
address appellant's second, third, and fourth assignments of error, which we will now do.
{¶ 8} In his second assignment of error, appellant argues that the controlled
substance analog statute under which he was convicted was unconstitutionally vague on
its face and in its application, and his conviction was a fundamental error that violated his
constitutional right to due process of law. For a substance to be a "controlled substance
analog," the chemical structure of the substance must be "substantially similar to the
structure of a controlled substance in schedule I or II." R.C. 3719.01(HH)(1)(a). Former
R.C. 3719.013 provided that a controlled substance analog "shall be treated for purposes
of any provision of the Revised Code as a controlled substance in schedule I."
{¶ 9} The interpretation of a statute is a question of law that we must review de
novo. Washington Cty. Home v. Ohio Dept. of Health, 178 Ohio App.3d 78, 2008-Ohio-
4342, ¶ 27 (4th Dist.). All enacted legislation enjoys a strong presumption of
constitutionality. Sorrell v. Thevenir, 69 Ohio St.3d 415, 418-19 (1994). To overcome this
presumption, "it must appear beyond a reasonable doubt that the legislation and
constitutional provisions are clearly incompatible." State ex rel. Dickman v. Defenbacher,
164 Ohio St. 142 (1955), paragraph one of the syllabus. The challenger bears the burden of
establishing beyond a reasonable doubt that the statute is unconstitutional. State v.
Tooley, 114 Ohio St.3d 366, 2007-Ohio-3698, ¶ 29.
{¶ 10} A statute or ordinance may be ruled unconstitutional on grounds of
vagueness. State v. Bennett, 150 Ohio App.3d 450, 2002-Ohio-6651 (1st Dist.). The
vagueness doctrine is premised on the due process clause of the Fourteenth Amendment
and "bars enforcement of ' "a statute which either forbids or requires the doing of an act in
No. 14AP-517 5
terms so vague that men of common intelligence must necessarily guess at its meaning
and differ as to its application." ' " Id. at ¶ 17, quoting United States v. Lanier, 520 U.S.
259, 266 (1997), quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). "When
[a] resolution is challenged as unconstitutionally vague, the reviewing court must
determine whether the statute provides sufficient notice of its proscriptions and contains
reasonably clear guidelines to prevent official arbitrariness or discrimination in its
enforcement." State v. Brundage, 7th Dist. No. 01 CA 07 (Mar. 20, 2002).
{¶ 11} A legislative enactment may be unconstitutional on its face, or as applied in
a specific circumstance. A facial challenge requires that "the challenging party * * * show
that the statute is vague 'not in the sense that it requires a person to conform his conduct
to an imprecise but comprehensible normative standard, but rather in the sense that no
standard of conduct is specified at all.' " State v. Anderson, 57 Ohio St.3d 168, 171 (1991),
quoting Coates v. Cincinnati, 402 U.S. 611, 614 (1971). If the statute is being challenged
only as applied to the circumstances of the case, the challenger " 'contends that
application of the statute in the particular context in which he has acted, or in which he
proposes to act, [is] unconstitutional.' " State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-
606, ¶ 17, quoting Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S. 1011(1992) (Scalia J., dissenting).
{¶ 12} As pertinent to the remand in the present case, appellant contends that even
if his acts had been clearly defined as criminal, the complex nature of the chemical
substances would make uniform enforcement of them under the vague "substantially
similar" requirement in former R.C. 3719.01 impossible, resulting in arbitrary
enforcement. Appellant also asserts that "substantially similar" is not defined in the
statute, and the criterion each scientist used for arriving at a conclusion as to substantial
similarity was up to each scientist.
{¶ 13} The Twelfth District Court of Appeals in State v. Shalash, 12th Dist. No.
CA2013-06-052, 2014-Ohio-2584 ("Shalash I"), addressed these issues, and we concur
with its conclusions. In that case, the defendant argued the definition of "controlled
substance analog" in R.C. 3719.01(HH) was unconstitutional since it was void for
vagueness. The court first noted that the definition of "controlled substance analog" in
R.C. 3719.01(HH) is very similar to the definition of "controlled substance analogue" in
No. 14AP-517 6
the Controlled Substance Analogue Enforcement Act of 1986, 21 U.S.C. 802(32), and
although no appellate court in this state has addressed whether R.C. 3719.01(HH) is
unconstitutionally vague, every federal circuit court that has addressed this issue has held
that the Controlled Substance Analogue Enforcement Act's analogue provision is not
unconstitutionally vague. The court agreed with those courts that the term "controlled
substance analogue" is clearly and specifically defined, in terms readily comprehensible to
the ordinary reader; provides adequate notice of what conduct is prohibited; and makes
plain drugs that have been chemically designed to be similar to controlled substances, but
are not themselves listed on the controlled substance schedules, will nonetheless be
considered as schedule I substances if they: (1) are substantially similar chemically to
drugs that are on those schedules, (2) produce similar effects on the central nervous
system as drugs that are on those schedules, or (3) are intended or represented to produce
effects similar to those produced by drugs that are on those schedules. The court indicated
there was nothing vague about the statute. Thus, the court rejected the defendant's
argument that R.C. 3719.01(HH)'s definition of "controlled substance analog" was void for
vagueness.
{¶ 14} In the present case, appellant also argues that if it is possible that two
scientists using the same method of analysis and using an identical definition for
"substantially similar" could come to different conclusions, the general public has little
hope of determining whether two chemicals are substantially similar.
{¶ 15} The court in Shalash I addressed similar arguments that: (1) the chemical
structure of a substance is not commonly known to a reasonably educated person, (2) it is
unreasonable to believe that an ordinary person would be aware that the substance
possessed is contrary to the substances allowed by the statute if the substance has to be
tested by an expert to determine its chemical makeup, and (3) a reasonably educated
person would not know if a substance has a stimulant, depressant, or hallucinogenic effect
on the central nervous system that is substantially similar to or greater than that of a
controlled substance in schedule I or II. However, the court in Shalash I rejected these
arguments on the basis that the same arguments have already been rejected by federal
courts interpreting the federal statute. The court found persuasive the reasoning from
federal case law that the legislature can expect a person who wishes to engage in the
No. 14AP-517 7
activity to acquire the necessary specialized knowledge to conform their conduct to the
law.
{¶ 16} The same conclusions on similar issues were reached in State v. Jackson,
9th Dist. No. 27132, 2015-Ohio-5246, and we concur with that court's analysis, as well. In
that case, the defendants argued that the controlled substance analog statute, R.C.
3719.013, was unconstitutionally vague on its face and as applied to each of them. The
court did not agree that the statute was unconstitutionally vague as applied. In its
analysis, the court found that the constitutionality of the controlled analog statute largely
depended on the constitutionality of the definition of "controlled substance analog," as
contained in R.C. 3719.01(HH). The court found that Ohio's statutory scheme with regard
to controlled substance analogs is virtually identical to the federal Control Substance
Analogue Enforcement Act. The court relied on the numerous federal circuit courts that
had considered void for vagueness challenges to the federal act and found it to be
constitutional. The court acknowledged that, while the phrase "substantially similar" does
not lend itself to a uniform definition, due process does not require absolute certainty in
every case in which a person seeks to experiment in reaching the outermost boundaries of
lawful conduct. Id. at ¶ 33. The court reasoned that, so long as a reasonable person would
have sufficient notice of a statute's prescriptions, it is not unconstitutionally vague. Id.
Furthermore, the court found that, although certain chemists might disagree as to the
meaning of "substantially similar," a lack of consensus among experts does not render the
controlled substance analog statute unconstitutionally vague. Id. at ¶ 36. The court found
it sufficient that the scientists in that case were able to rely on the common meaning of the
phrase "substantially similar," in conjunction with their knowledge and training, to
conclude that the drugs were substantially similar. The court ruled the defendant had not
shown that the state's case was the result of arbitrary or discriminatory enforcement.
Having found the statute constitutional as applied, the court concluded it need not
consider whether it is unconstitutionally vague in all its applications. The Supreme Court
affirmed Jackson in State v. Jackson, 150 Ohio St.3d 27, 2016-Ohio-8363, on the
authority of Shalash II.
{¶ 17} For the foregoing reasons, and in concurrence with the above cases and
their rationales, we find the "controlled substance analog" statute under which appellant
No. 14AP-517 8
was convicted was not unconstitutionally vague on its face or in its application, and his
conviction did not violate his constitutional right to due process of law. Therefore, we
overrule appellant's second assignment of error.
{¶ 18} Appellant argues in his third assignment of error that, because the state's
expert testimony on the substances at issue was insufficient under both the state and
federal standards, the trial court erred and abused its discretion in denying appellant's
motion in limine to exclude this subjective evidence. Because a trial court's decision on a
motion in limine is a ruling to admit or exclude evidence, the standard of review on appeal
is whether the trial court committed an abuse of discretion that amounted to prejudicial
error. Gordon v. Ohio State Univ., 10th Dist. No. 10AP-1058, 2011-Ohio-5057, ¶ 82. A
review under the abuse of discretion standard is a deferential review. It is not sufficient
for an appellate court to determine that a trial court "abused its discretion simply because
the appellate court might not have reached the same conclusion or is, itself, less
persuaded by the trial court's reasoning process than by the countervailing arguments."
State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14.
{¶ 19} In the present case, appellant contends the trial court should have granted
his motion in limine to prohibit the testimony from the state's expert witness, Dr. Worst,
because it failed to meet the requirements of Evid.R. 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Evid.R. 702 provides:
(A) The witness' testimony either relates to matters beyond
the knowledge or experience possessed by lay persons or
dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding
the subject matter of the testimony;
(C) The witness' testimony is based on reliable scientific,
technical, or other specialized information. To the extent that
the testimony reports the result of a procedure, test, or
experiment, the testimony is reliable only if all of the
following apply:
(1) The theory upon which the procedure, test, or experiment
is based is objectively verifiable or is validly derived from
widely accepted knowledge, facts, or principles;
No. 14AP-517 9
(2) The design of the procedure, test, or experiment reliably
implements the theory;
(3) The particular procedure, test, or experiment was
conducted in a way that will yield an accurate result.
{¶ 20} To determine whether a proposed expert's testimony about a scientific
technique or a scientific methodology is scientifically reliable, the court focuses on factors
identified by the United States Supreme Court in Daubert, as adopted by the Supreme
Court in Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 611-12 (1998). These factors
include: (1) whether a theory or technique can be (and has been) tested, (2) whether the
theory or technique has been subjected to peer review and publication, (3) the known or
potential rate of error, and (4) general acceptance in the scientific community. Daubert at
593-94. In assessing reliability, the focus must generally be on principles and
methodology, not on the conclusions that they generate. Id. at 595.
{¶ 21} R.C. 3719.01(HH) contains two requirements for a chemical to be classified
as a controlled substance analog: (1) the chemical structure of the substance is
substantially similar to the structure of the controlled substance in schedule I or II, and
(2) the chemical has an effect that is substantially similar to or greater than the stimulant,
depressant, or hallucinogenic effect on the central nervous system of a controlled
substance in schedule I or II. In the present case, appellant contends the state's method of
analysis for both requirements of the statute failed to meet the standard.
{¶ 22} Appellant's argument is twofold: (1) the state's structural analysis of the
chemical at issue is entirely subjective and not reliable or rigorous enough to be
admissible, specifically because "substantially similar" has no specific definition and the
expert used a two-dimensional model, and (2) the state's testimony on the
"pharmacological effect" prong of the state's analysis is insufficient and should have been
excluded, specifically because Dr. Worst was the sole pharmacologist at BCI and his
opinions were without certainty.
{¶ 23} In response, the state claims that appellant waived his arguments because
he failed to renew his motion in limine during trial. A motion in limine is a request " 'that
the court limit or exclude use of evidence which the movant believes to be improper, and
is made in advance of the actual presentation of the evidence to the trier of fact, usually
No. 14AP-517 10
prior to trial.' " Gordon at ¶ 82, quoting State v. Winston, 71 Ohio App.3d 154, 158 (2d
Dist.1991). " '[A] motion in limine is a preliminary ruling which must be renewed at trial
or the argument made therein is waived for purposes of appeal.' " Gold v. Burnham, 10th
Dist. No. 14AP-603, 2015-Ohio-1431, ¶ 13, quoting State v. Smith, 7th Dist. No. 11 MA
120, 2013-Ohio-756, ¶ 128. " 'An appellate court need not review the propriety of [a
decision on a motion in limine] unless the claimed error is preserved by an objection,
proffer, or ruling on the record when the issue is actually reached and the context is
developed at trial.' " (Emphasis omitted.) State v. Grubb, 28 Ohio St.3d 199, 203 (1986),
quoting Palmer, Ohio Rules of Evidence Rules Manual at 446 (1984). The failure to draw
the court's attention to possible error, by objection or otherwise, when the error could
have been corrected, results in a waiver of the issue for purposes of appeal, absent plain
error. Gold at ¶ 13, citing In re Ebenschweiger, 12th Dist. No. CA2003-04-080, 2003-
Ohio-5990, ¶ 9-10. In a civil case, the plain error doctrine is limited to extremely rare
cases involving exceptional circumstances "where the error, left unobjected to at the trial
court, rises to the level of challenging the legitimacy of the underlying judicial process
itself." Goldfuss v. Davidson, 79 Ohio St.3d 116, 122 (1997).
{¶ 24} In the present case, appellant filed a motion in limine to exclude Dr. Worst's
testimony at trial because it failed to comply with R.C. 3719.01(HH) and Daubert. The
court held a hearing on appellant's motion in limine and ordered the parties to file post-
hearing memoranda. However, the trial court never ruled on the motion in limine either
before, during, or after the final trial on the merits. Importantly, appellant never renewed
his motion in limine or the objections contained therein during trial and, specifically,
during the testimony of Dr. Worst. At trial, Dr. Worst opined in full regarding the
requirements of R.C. 3719.01(HH). Beyond the defense's overt failure to raise any
objection to Dr. Worst's being declared an expert in both chemistry and pharmacology, a
review of the trial transcript reveals that Dr. Worst testified at great length, without
objection, as to whether the chemical structure of A-PVP was substantially similar to the
structure of a controlled substance in schedule I or II, and whether the chemical had an
effect that was substantially similar to or greater than the effect of a controlled substance
in schedule I or II. Therefore, it is clear from the record that appellant failed to renew the
grounds for his motion in limine at trial and, therefore, he has waived all but plain error.
No. 14AP-517 11
{¶ 25} We find no plain error here. Appellant's first argument is that Dr. Worst's
methodology was unreliable because he compared the chemical structures of A-PVP and
methylenedioxypyrovalerone ("MDPV"), a schedule I substance, using two-dimensional
models instead of three-dimensional models to determine substantial similarity.
However, although Dr. Worst admitted that three-dimensional models might be of
possible assistance, he also testified that three-dimensional models are not necessary,
two-dimensional drawings are sufficient, and other experts use two-dimensional models.
Even appellant's expert at the Daubert hearing, Dr. Alfred Staubus, testified that a three-
dimensional structure may or may not be useful in this particular case. Furthermore,
appellant's citation to a Cuyahoga County Common Pleas Court case, State v. Silmi,
Cuyahoga C.P. No. CR 561754 (Feb. 7, 2013), in which the court excluded lab tests finding
a substantial similarity when it found there was no general acceptance for the two-
dimensional methodology, does not win the day for appellant here. A contrary common
pleas decision from another district does not demonstrate plain error was committed in
the present case, and no other court has relied on Silmi. Although the court in Shalash I
did cite to Silmi and expressed doubt about the use of two-dimensional comparisons, the
court in Shalash I indicated that it did not necessarily agree with Silmi and expressly
found that its decision to remand the matter to the trial court was based on the court's
failure to hold a Daubert hearing. Therefore, this argument is without merit.
{¶ 26} Appellant's second argument is that Dr. Worst failed to directly compare the
effect of A-PVP and the effect of MDPV on the central nervous system, instead relying on
research that compared the effects of A-PVP to pyrovalerone and then compared
pyrovalerone to MDPV. Appellant's third argument is that Dr. Worst did not rely on live
testing to determine whether the effect of A-PVP on the central nervous system was
substantially similar to or greater than that of MDPV. Appellant contends that Dr. Worst
could only offer a mere prediction as to the pharmacological effects of ingesting A-PVP
given these limitations.
{¶ 27} However, Dr. Worst did testify that he was 85 percent certain about his
predictions. Although appellant argues these predictions did not present sufficient
reliable scientific evidence under the Daubert factors because Dr. Worst could point to no
history of testing, peer review, error rate, or general acceptance in the scientific
No. 14AP-517 12
community, what appellant is actually contesting is the witness credibility determination.
In essence, Dr. Worst believed his methods of testing the pharmacological effects of A-
PVP were reliable despite these limitations, while Dr. Staubus testified that Dr. Worst's
methods were not. Apparently, the jury chose to believe Dr. Worst.
{¶ 28} We are mindful that the Daubert factors are not to be rigidly applied
because the inquiry is a flexible one. Daubert at 594; Kumho Tire Co. v. Carmichael, 526
U.S. 137, 141 (1999). "[E]ven if [an expert's] opinion has neither gained general
acceptance by the scientific community nor has been the subject of peer review, these are
not prerequisites to admissibility under Daubert." Miller at 613. The "ultimate
touchstone" for determining reliability is helpfulness to the trier of fact, which turns on
whether the expert's technique or principle is sufficiently reliable so that it will aid the
trier of fact in reaching accurate results. Id. at 614. "The rejection of expert testimony is
the exception rather than the rule, [and] Daubert did not work a seachange over federal
evidence law, and the trial court's role as gatekeeper is not intended to serve as a
replacement for the adversary system." Rudd v. GMC, 127 F.Supp.2d 1330, 1337 (D.C.
Ala.2001). "Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence." Daubert at 596.
{¶ 29} In the present case, the jury had the benefit of hearing the cross-
examination of Dr. Worst and the contrary opinions given by Dr. Staubus. The jury chose
to believe Dr. Worst. For all the foregoing reasons, we find the trial court did not err
when it, in effect, denied appellant's motion in limine to exclude the expert testimony of
Dr. Worst from evidence. Therefore, appellant's third assignment of error is overruled.
{¶ 30} Appellant argues in his fourth assignment of error that the trial court erred
when it imposed consecutive sentences because they were not supported by the facts. We
first note that appellant's initial contention is that R.C. 2929.14(B) required the court to
impose the shortest prison term because he had not previously served a prison term and
the trial court failed to find that either the shortest prison term would demean the
seriousness of the offender's conduct or would not adequately protect the public from
further crime by the offender or others. However, this argument relies on a previous
version of R.C. 2929.14(B). This portion of R.C. 2929.14(B) was found to be
No. 14AP-517 13
unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, because it required
judicial fact-finding before the imposition of a more than minimum sentence.
Consequently, the Supreme Court severed it from the statute. Id. at ¶ 97. The legislature
formally removed this portion of the statute pursuant to amended H.B. No. 86, effective
September 30, 2011. 2011 Am.Sub.H.B. No. 86; thus, R.C. 2929.14(B) no longer requires
these findings. State v. Thomas, 9th Dist. No. 14CA0042-M, 2015-Ohio-2195, ¶ 10; State
v. Stubbs, 7th Dist. No. 13 JE 31, 2014-Ohio-3791, ¶ 28-29. Therefore, this argument is
without merit.
{¶ 31} With regard to consecutive sentences, R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public
from future crime by the offender.
{¶ 32} Thus, pursuant to R.C. 2929.14(C)(4), in order to impose consecutive terms
of imprisonment, the trial court is required to make at least three distinct findings:
"(1) that consecutive sentences are necessary to protect the public from future crime or to
punish the offender; (2) that consecutive sentences are not disproportionate to the
No. 14AP-517 14
seriousness of the offender's conduct and to the danger the offender poses to the public;
and (3) that one of the subsections (a), (b) or (c) applies." (Emphasis omitted.) State v.
Price, 10th Dist. No. 13AP-1088, 2014-Ohio-4696, ¶ 31, citing State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177. A trial court seeking to impose consecutive sentences must
make the findings required by R.C. 2929.14(C)(4) at the sentencing hearing and also
incorporate such findings into its sentencing entry. Bonnell at ¶ 37. However, the trial
court need not state reasons to support its findings, and is not "required to give a
talismanic incantation of the words of the statute, provided that the necessary findings
can be found in the record and are incorporated into the sentencing entry." Id. See also
State v. Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 12. A "word-for-word recitation
of the language of the statute is not required," but where "the reviewing court can discern
that the trial court engaged in the correct analysis and can determine that the record
contains evidence to support the findings, consecutive sentences should be upheld."
Bonnell at ¶ 29.
{¶ 33} Here, appellant failed to object to the imposition of consecutive sentences at
the sentencing hearing; thus, our review is limited to consideration of whether the trial
court committed plain error. Ayers at ¶ 7. Under 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.' 'To constitute plain error, the error must be obvious on the record,
palpable, and fundamental such that it should have been apparent to the trial court
without objection.' " State v. Jones, 10th Dist. No. 14AP-80, 2014-Ohio-3740, ¶ 11,
quoting State v. Gullick, 10th Dist. No. 13AP-26, 2013-Ohio-3342, ¶ 3, citing State v.
Tichon, 102 Ohio App.3d 758, 767 (9th Dist.1995).
{¶ 34} In the present case, appellant asserts that, although the trial court read the
necessary findings virtually verbatim from the statutory text, those findings were without
sufficient evidence in the record. Specifically, appellant presents the following two
arguments: (1) the prosecutor raised an allegation during the sentencing hearing that the
prosecutor's boss informed him that an unidentified jailhouse informant indicated that
appellant was looking into having the prosecutor or his wife killed, and this information
was hearsay within hearsay, and should not have been considered, and (2) at the
sentencing hearing, the state played a recorded phone call between appellant and an
No. 14AP-517 15
unidentified person, during which appellant threatened to have a Palestinian individual
(whom defense counsel claimed was appellant's mother-in-law) harmed and mentioned a
$200,000 payment. Appellant claims that this information too was hearsay, but the court
still considered it. Appellant asserts this evidence was not sufficient to demonstrate the
consecutive sentences were necessary to protect the public.
{¶ 35} We disagree with appellant. During the sentencing hearing, the court found
that information about killing a court officer was of special significance, threatening to
have someone killed during the phone call was particularly horrific, and evidence of
appellant's phone call was credible. The court also found appellant was a drug supplier
keeping local addicts supplied with cheap highs, all under the guise of running a
neighborhood market. The findings were all relevant to show that consecutive sentences
were necessary to protect the public, and the trial court could consider them. See R.C.
2929.19(A) (prosecuting attorney may present information relevant to the imposition of
sentence); R.C. 2929.19(B)(1) (in imposing sentence, the court must consider any
information presented at the hearing by any person pursuant to R.C. 2929.19(A)).
Furthermore, this court has held that the court may admit hearsay evidence at a
sentencing hearing. See State v. Randlett, 10th Dist. No. 06AP-1073, 2007-Ohio-3546,
¶ 25, citing State v. Bene, 12th Dist. No. CA2005-09-090, 2006-Ohio-3628, ¶ 21. This
court found in Randlett that Evid.R. 101(C) clearly identifies sentencing hearings as
among those certain criminal proceedings in which the Rules of Evidence, including the
hearsay rule, do not apply; thus, a trial court is free to rely on reliable hearsay in its
sentencing decision. Id., citing Bene at ¶ 21. Therefore, we find the trial court did not err
in this respect.
{¶ 36} Appellant next argues that the trial court's pro forma finding—that
consecutive sentences amounting to 35 years in prison were not disproportionate to the
seriousness of the conduct—was not supported by sufficient evidence. We disagree. The
trial court found credible the statement of a trial witness who indicated that appellant told
him he had made a million dollars selling A-PVP. The court also found that appellant was
considerably worse than a casual drug dealer. The court also noted that appellant
attempted to conceal his illegal activities, as there was evidence presented that appellant
kept the A-PVP hidden so police would not find all of it. Although appellant frames the
No. 14AP-517 16
million dollar claim as a casual boast, the trial court found it credible and indicated it
removed appellant from the classification of a casual drug dealer. In addition, although
appellant argues he possessed and controlled substances that were not illegal to possess
and sell, the Supreme Court has concluded otherwise. Therefore, we find the trial court
did not err in considering this evidence. For all the foregoing reasons, the trial court did
not err when it sentenced appellant to consecutive sentences. Appellant's fourth
assignment of error is overruled.
{¶ 37} Accordingly, appellant's three remaining assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
KLATT, J., concurs.
HORTON, J., concurs in judgment only.
HORTON, J., concurring in judgment only.
{¶ 38} I respectfully concur in judgment only as I disagree with the majority in
paragraph 33 that the appellant's failure to object to consecutive sentences at the
sentencing hearing limits the reviewing court to a plain error analysis. The appeal serves
as the objection in this context.
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