State v. Phillips , 2014 Ohio 5162 ( 2014 )

[Cite as State v. Phillips, 2014-Ohio-5162.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 14AP-79
v. : (C.P.C. No. 12CR-07-3644)
Malcolm Phillips, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 20, 2014
Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
for appellee.
Robey & Robey, and Gregory Scott Robey, for appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, P.J.
{¶ 1} Defendant-appellant, Malcolm Phillips, appeals from the judgment of the
Franklin County Court of Common Pleas convicting him, following a jury trial, of
possession of cocaine with an accompanying firearm specification and having a weapon
while under disability ("WUD"). For the following reasons, we affirm.
I. BACKGROUND
{¶ 2} On July 20, 2012, appellant was indicted on one count of possession of
cocaine in an amount equal to or exceeding 100 grams, in violation of R.C. 2925.11, a first-
degree felony, with an accompanying one-year firearm specification, in violation of R.C.
2941.141, and one count of WUD, a third-degree felony, in violation of R.C. 2923.13.
No. 14AP-79 2
{¶ 3} On May 9, 2013, appellant filed a motion to suppress evidence obtained
during a traffic stop occurring in the early morning hours of February 3, 2012. Following
a June 11, 2013 hearing, the trial court denied that motion in a written decision issued
July 9, 2013. On October 7, 2013, appellant filed a motion to suppress evidence obtained
during a search of his home on January 31, 2012, evidence obtained during a search of his
rented public storage unit on the afternoon of February 3, 2012, and oral statements made
to law enforcement officers following his arrest on February 3, 2012. In a supplemental
brief filed October 31, 2013, appellant challenged the canine sniff of his public storage unit
as unconstitutional. On November 12, 2013, appellant filed a motion to suppress evidence
obtained following a traffic stop occurring immediately prior to the search of the storage
unit on February 3, 2012, and oral statements made to officers following his February 3,
2012 arrest. Following a hearing on December 9, 2013, the trial court orally denied the
October 7 and November 12, 2013 motions.1
{¶ 4} The case thereafter continued to trial before a jury, following which the jury
returned verdicts finding appellant guilty as charged in the indictment. The trial court
sentenced appellant to 11 years for the cocaine possession, consecutive to 1 year on the
accompanying firearm specification. The court imposed a 12-month sentence for the
WUD and ordered that it be served consecutively to the 12-year sentence imposed on the
cocaine possession and firearm specification.
II. ASSIGNMENTS OF ERROR
{¶ 5} In a timely appeal, appellant sets forth 11 assignments of error for our
review:
[I.] The Trial Court erred in denying Appellant's first
Motion to Suppress Evidence regarding the search of
Appellant's vehicle on February 3, 2012, at approximately
1:30 am.
[II.] The Trial Court erred in denying Appellant's second
Motion to Suppress Evidence regarding the search of the
home on January 29, 2012.
1On appeal, appellant does not challenge the denial of the motions as to the oral statements made to police
officers on February 3, 2012.
No. 14AP-79 3
[III.] The Trial Court erred in denying Appellant's second
Motion to Suppress Evidence regarding [s]earch of the
storage unit on February 3, 2012.
[IV.] The Trial Court erred in denying Appellant's Motion to
Suppress Evidence relating to the warrantless stop and search
of his motor vehicle at the storage unit on February 3, 2012.
[V.] Trial counsel provided ineffective assistance in failing
to challenge the legality of the traffic stop of Appellant, and in
failing to challenge the qualifications of the canine and
handler, relating to the traffic stop and search of Appellant's
vehicle on February 3, 2012.
[VI.] The Prosecutor engaged in misconduct by improperly
commenting on Appellant's decision to remain silent which
deprived him due process of law and a fair trial.
[VII.] The evidence presented was insufficient as a matter of
law to sustain a conviction.
[VIII.] The verdict was against the manifest weight of the
evidence.
[IX.] The Trial Court committed critical errors in the trial
and the cumulative effect denied Appellant due process of law
and a fair trial.
[X.] The Trial Court erred by giving instructions on flight
and aiding and abetting, and by failing to give Appellant's
theory of defense instruction.
[XI.] The Trial Court erred in imposing consecutive
sentences on counts one and two.
III. DISCUSSION
A. First, Second, Third, and Fourth Assignments of Error–Motions to
Suppress
{¶ 6} As appellant's first, second, third, and fourth assignments of error challenge
the denials of his motions to suppress, we first set forth the applicable standard of review.
"Appellate review of a motion to suppress presents a mixed question of law and fact."
State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. "When considering a motion
to suppress, the trial court assumes the role of fact finder and, accordingly, is in the best
No. 14AP-79 4
position to resolve factual questions and evaluate witness credibility." Columbus v. Body,
10th Dist. No. 11AP-609, 2012-Ohio-379, ¶ 9, citing Burnside at ¶ 8, citing State v. Mills,
62 Ohio St. 3d 357, 366 (1992). "As such, an appellate court must accept the trial court's
factual findings if they are supported by competent, credible evidence." Id., citing
Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St. 3d 19 (1982). "Accepting these facts as
true, the reviewing court must then independently determine, without deference to the
trial court's conclusion, whether the facts satisfy the applicable legal standard." Id., citing
Burnside at ¶ 8, citing State v. McNamara, 124 Ohio App. 3d 706 (4th Dist.1997). With
this standard in mind, we address appellant's individual assignments of error.
1. First Assignment of Error
{¶ 7} Appellant's first assignment of error challenges the denial of his motion to
suppress related to the traffic stop occurring in the early morning hours of February 3,
2012. Specifically, appellant claims he was detained beyond the time justified for the
traffic stop in violation of his rights under the Fourth Amendment to the United States
Constitution.
{¶ 8} At the suppression hearing, plaintiff-appellee, State of Ohio, presented the
following evidence. At approximately 1:26 a.m. on February 3, 2012, Officer Clayton
Adams of the Whitehall Police Department ("WPD") was on routine patrol when he
observed a vehicle with a malfunctioning rear license plate light. Adams was familiar with
appellant and his vehicle from previous traffic stops in which drugs and/or drug
paraphernalia were found. After checking the vehicle's license plate number through
LEADS, Adams confirmed appellant's identity as the vehicle's owner. He then initiated a
traffic stop and subsequently obtained identification from both appellant and the driver,
Bruce Wiggins. Adams returned to his cruiser and radioed the information to a police
dispatcher in order to determine the validity of the identifications and whether either of
the occupants had any outstanding arrest warrants. Around this time, WPD Officer John
Slosser arrived at the scene.2
2There is some dispute as to when Slosser arrived at the scene. Computerized WPD records indicate he was
"dispatched" at 2:06 a.m. However, Adams testified that the WPD records were inaccurate and that Slosser
arrived at the scene within moments of his own arrival.
No. 14AP-79 5
{¶ 9} While awaiting a response from the dispatcher, Adams approached the
vehicle and asked the occupants for permission to search it. After the occupants refused
consent, Adams returned to his cruiser. Approximately five to ten minutes after initiating
the identification/warrant check, Adams learned that neither occupant of the vehicle had
any outstanding arrest warrants. He then began writing a traffic citation for Wiggins for
the malfunctioning rear license plate light. Based on his previous encounters with
appellant and information obtained through a LEADS search, Adams suspected that the
vehicle might contain drugs; accordingly, at approximately 1:33 a.m., he summoned a
Columbus Police Department ("CPD") canine unit to the scene. The canine unit received
the request at 1:34 a.m. While awaiting the arrival of the canine unit, Adams continued
writing the traffic citation.
{¶ 10} The canine unit arrived at the scene at 1:41 a.m. At that time, Adams had
not yet completed the traffic citation. The canine handler directed Adams and Slosser to
remove appellant and Wiggins from the vehicle. The narcotics canine sniffed around the
vehicle's perimeter and immediately "alerted to the passenger side door." (June 11, 2013
Tr. 27.) Adams arrested appellant and, pursuant to a pat-down search, discovered a
business card for a public storage facility. A subsequent search of the vehicle revealed a
plastic baggie with less than one gram of cocaine, a digital scale, marijuana crumbs, and
plastic baggies. Adams issued a traffic citation to Wiggins and then released him and
appellant's vehicle. Adams thereafter transported appellant to the police station.
{¶ 11} Slosser testified that, during the year preceding the incident on February 3,
2012, he was involved in three traffic stops involving appellant and drugs and/or drug
paraphernalia, and he often discussed these encounters with Adams. On the night of the
incident, he heard Adams radio his intention to stop appellant's vehicle. Because he was
in the area, he drove to the scene to assist Adams.3 Slosser corroborated Adams'
testimony regarding the identity/warrant checks of the occupants, the occupants' refusal
to consent to a search of the vehicle, and the request for a canine unit due to prior drug
incidents involving appellant. According to Slosser, the canine unit arrived approximately
ten minutes after Adams submitted the request.
3 Slosser also testified that WPD records inaccurately identified his arrival time as 2:06 a.m.
No. 14AP-79 6
{¶ 12} On cross-examination, Slosser testified that appellant and Wiggins were
held at the scene so that Adams could write the traffic citation for Wiggins while at the
same time await arrival of the canine unit. Slosser averred that he did not remember how
long it took Adams to write the citation; however, he averred that the physical process of
writing a traffic citation typically takes no longer than two or three minutes.
{¶ 13} On redirect examination, Slosser explained that police procedures ancillary
to the physical citation-writing process may extend the time for issuing a citation well
beyond two or three minutes. By way of example, Slosser averred that police officers
check for outstanding arrest warrants while writing citations, a process which sometimes
takes "quite a while" due to inaccuracies in police computer databases. (June 11, 2013 Tr.
57.) On recross-examination, Slosser testified that he could not recall whether he and
Adams discovered that neither appellant nor Wiggins had any outstanding arrest
warrants before or after the canine unit arrived.
{¶ 14} In his motion to suppress, appellant did not challenge the validity of the
traffic stop for the malfunctioning license plate light.4 Appellant argued that the traffic
stop was unlawfully prolonged because it lasted longer than was reasonably necessary to
identify the occupants of the vehicle, determine if they had any outstanding arrest
warrants, and issue the citation for the traffic violation. Appellant contended that the
traffic stop converted to a detention when the officers removed appellant and Wiggins
from the vehicle when the canine unit arrived and that the officers had no reasonable
suspicion to justify such detention. In response, appellee argued that the traffic stop was
not unlawfully prolonged, as a maximum of 20 minutes elapsed between the time of the
stop and the time the canine unit arrived. Appellee further contended that, even if the
traffic stop lasted long enough to convert to a detention, the officers had reasonable
suspicion to justify it, based on their prior interactions with appellant and his vehicle.
{¶ 15} In its July 9, 2013 decision denying appellant's motion, the trial court
factually determined the traffic stop began at 1:26 a.m., Adams called for the canine unit
at 1:33 a.m., and the canine unit arrived at 1:41 a.m. These factual conclusions are
supported by the record. The court found:
4Trial counsel's failure to contest the validity of the traffic stop is the subject of appellant's fifth assignment
of error, which we address infra.
No. 14AP-79 7
[S]eventeen minutes is a permissible amount of time in which
to have handled the situation and have it remain a traffic stop.
This is based upon the time needed, per the testimony, to do
the things listed above: to permit the officer to go from his
cruiser to the car in question, to determine the status of the
occupants, car, and license tag as well as writing any traffic
summons and/or requesting a consensual search. This
determination, based on the testimony in this case, allows ten
minutes for the computerized searches through the dispatcher
to take place, three minutes to write out the traffic ticket, two
minutes to go back and forth from cruiser to the suspect['s]
car, and a minute or two to discuss the consensual search
issue. Since there was no apparent interference by the
Defendant or the driver in this incident, the time period is not
lengthened.
(July 19, 2013 Decision and Entry, 5.) Based on the foregoing, the court held that "the
time period of fifteen minutes from the initial stop until the arrival of the K-9 unit is not
so unreasonable in this instance as to turn the traffic stop into a detention." (July 19,
2103 Decision and Entry, 5.)
{¶ 16} "It is well-established that stopping an automobile, thus temporarily
detaining its occupants, constitutes a seizure under the Fourth Amendment to the United
States Constitution." State v. Dorsey, 10th Dist. No. 04AP-737, 2005-Ohio-2334, ¶ 17,
citing Delaware v. Prouse, 440 U.S. 648, 653 (1979). Further, "the seizure of a person
without the authority of a warrant is per se unreasonable, and therefore unconstitutional,
unless an exception applies." Id., citing Katz v. United States, 389 U.S. 347, 357 (1967).
"One such exception is commonly known as an investigative or Terry stop." Id., citing
Terry v. Ohio, 392 U.S. 1 (1968).
{¶ 17} Applicable to automobile seizures, the Terry exception permits a police
officer to stop an individual if the officer, based on specific and articulable facts, has
reasonable suspicion of criminal activity. Id. at ¶ 18, citing Terry; Prouse at 654. "No
warrant is required to initiate a traffic stop if the police officer harbors a reasonable
suspicion that a driver has violated a traffic law." Id., citing Columbus v. Stanley, 10th
Dist. No. 00AP-1128 (June 28, 2001).
{¶ 18} However, "a traffic stop must comply with the Fourth Amendment's general
reasonableness requirement." State v. Aguirre, 4th Dist. No. 03CA5, 2003-Ohio-4909,
No. 14AP-79 8
¶ 33, citing Whren v. United States, 517 U.S. 806, 809 (1996). "The scope and duration of
a routine traffic stop 'must be carefully tailored to its underlying justification * * * and last
no longer than is necessary to effectuate the purpose of the stop.' " Id. at ¶ 35, quoting
Florida v. Royer, 460 U.S. 491, 500 (1983).
{¶ 19} "When a law enforcement officer stops a vehicle for a traffic violation, the
officer may detain the motorist for a period of time sufficient to issue the motorist a
citation and to perform routine procedures such as a computer check on the motorist's
driver's license, registration and vehicle plates." Id. at ¶ 36, citing State v. Carlson, 102
Ohio App. 3d 585, 598 (9th Dist.1995). " '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.' " Id., quoting Carlson at 598.
{¶ 20} "A canine sniff by a drug detection dog of the exterior of a vehicle lawfully
detained for a traffic stop does not implicate Fourth Amendment rights." State v. Greene,
2d Dist. No. 25577, 2013-Ohio-4516, ¶ 22, citing Illinois v. Caballes, 543 U.S. 405 (2005);
State v. Ramos, 155 Ohio App. 3d 396, 2003-Ohio-6535 (2d Dist.). "Police are not
required to have reasonable suspicion that a vehicle contains drugs prior to conducting a
canine sniff of the vehicle during a traffic stop, so long as the duration of the traffic stop is
not extended beyond what is reasonably necessary to resolve the issue that led to the stop
and issue a traffic citation." Greene at ¶ 22, citing Ramos. "If, however, the duration of
the traffic stop is extended in order to bring a drug sniffing dog to the scene, police must
have a reasonable suspicion that the vehicle contains drugs in order to justify the
continued detention." Id., citing Ramos, citing State v. Kuralt, 2d Dist. No. 20532, 2005-
Ohio-4529, ¶ 10-11.
{¶ 21} In the present case, after evaluating the duration of the stop in light of the
totality of the circumstances and considering whether Adams diligently conducted his
investigation, we conclude the evidence supports the trial court's finding that the traffic
stop was not unlawfully prolonged. The canine sniff occurred before Adams completed
writing his citation and only 15 minutes after the traffic stop began, within the normal
time for processing and issuing a traffic citation for a malfunctioning license plate light.
There is no evidence that the traffic stop for that violation was extended by or for the
No. 14AP-79 9
purpose of the canine sniff. Less than 20 minutes elapsed from the initial stop to the
canine alerting to the vehicle. Once the canine alerted to the scent of drugs in the vehicle,
police had probable cause to search the vehicle and appellant's person. Id. at ¶ 24,
quoting State v. Pryor, 2d Dist. No. 20800, 2005-Ohio-2770, ¶ 13 ("It is 'settled that
when a trained narcotics dog alerts on a lawfully stopped vehicle, an officer has probable
cause to search the vehicle.' "). Accordingly, we find that appellant's Fourth Amendment
rights were not violated and the trial court properly overruled his motion to suppress the
evidence obtained as a result of the traffic stop.
{¶ 22} The first assignment of error is overruled.
2. Second Assignment of Error
{¶ 23} In his second assignment of error, appellant challenges the denial of his
motion to suppress evidence found during a search of his home on January 31, 2012.
Appellant claims that the search was based on a warrant supported by an affidavit that
contained material misstatements and omissions and that the warrant facially lacked
probable cause. Specifically, appellant argues that the affidavit supporting the search
warrant omitted important details about an anonymous tip and erroneously stated that
appellant was arrested twice in 2011 on felony drug charges. He further maintains that
the four corners of the search warrant do not demonstrate probable cause.
{¶ 24} At the suppression hearing, appellee presented the following testimony and
evidence. Detective Tye Downard, a narcotics officer with the Reynoldsburg Police
Department ("RPD"), testified that he and RPD Sergeant Shane Mauger "worked * * *
together" to prepare the affidavit for the search warrant executed at appellant's home on
January 31, 2012. (Dec. 9, 2013 Tr. 9.) Downard identified the search warrant and
accompanying affidavit. That affidavit, signed by Mauger, contains the following factual
averments.5
{¶ 25} On January 25, 2012, Mauger received an anonymous tip that appellant and
Andrea McWhorter were selling narcotics from a residence located at 5903 Little Brook
Way. On January 26, 2012, Mauger drove to the address and obtained vehicle
registration information from two vehicles parked at the residence. A subsequent
computer search revealed the vehicles were registered to appellant and McWhorter.
5 Personal issues prevented Mauger from attending the hearing.
No. 14AP-79 10
{¶ 26} Another computer search revealed that appellant was arrested by the RPD
twice in 2011 for felony drug crimes. A broader criminal history revealed that appellant
had been charged with "Drug Paraphernalia, OVI, Protection Order violation, drug abuse
(crack), Weapons while under disability, and trafficking in drugs." (Mauger Search
Warrant Affidavit, 2.)
{¶ 27} While conducting a computer search on McWhorter, Mauger discovered
that she was the subject of an investigation by Deputy Michael Kemmerling of the Vinton
County Sheriff's Office ("VCSO"). Mauger contacted Kemmerling, who informed him that
he had been told by McWhorter's minor daughter that she had recently run away from her
mother's residence with $11,000 in cash she found in her mother's dresser. The girl also
told Kemmerling that appellant sold drugs from the residence and the $11,000 she took
was proceeds from those drug sales. Mauger later confirmed through missing person
reports McWhorter had filed with the CPD that she resided at 5903 Little Brook Way.
{¶ 28} On January 27, 2012, Mauger conducted a trash pull at 5903 Little Brook
Way, during which he found several ripped plastic baggies wrapped in black electrical
tape. One of the plastic baggies contained a small white substance which was field tested
and determined to be cocaine.
{¶ 29} At the suppression hearing, Downard testified that the information
contained in the affidavit regarding appellant's 2011 felony arrests stemmed from an RPD
computer search which revealed (1) an RPD detective utilized an undercover informant to
purchase crack cocaine from appellant in 2011, and (2) an RPD officer arrested appellant
in 2011 for possession of marijuana and drug paraphernalia. On cross-examination,
Downard conceded that he did not physically prepare the search warrant affidavit and
had no detailed personal knowledge about either the anonymous tip or the trash pull. He
further conceded that neither of appellant's 2011 arrests were for felonies.
{¶ 30} Following presentation of its evidence, appellee argued that, even if the
portion of the search warrant affidavit as to the alleged factual misstatement regarding
appellant's two felony drug arrests was excised, the remaining factual averments
sufficiently established probable cause justifying issuance of the warrant. In response,
appellant argued that the material misstatement in the affidavit regarding appellant's
2011 felony arrests was made in bad faith and that the remaining factual allegations in the
No. 14AP-79 11
affidavit did not sufficiently establish probable cause. In particular, appellant argued that
neither the undetailed, "bare bones" anonymous tip nor the drug residue retrieved from
the trash pull, having been field tested rather than lab tested and having not been
definitively determined to have come from trash at appellant's residence, was sufficient to
establish probable cause. (Dec. 9, 2013 Tr. 39.)
{¶ 31} The trial court found that the misstatement regarding the felony drug
arrests in 2011 was, at worst, negligent or reckless, rather than deliberate or intentional,
and, in any event, was not material given that the factual averments regarding appellant's
broader criminal history included felony charges which may have occurred in 2011. The
trial court further found that a reasonable inference could be drawn that the drug residue
discovered during the trash pull came from appellant's residence. Having so found, the
trial court concluded there was probable cause to issue the warrant for appellant's
residence and overruled the motion to suppress.
{¶ 32} In determining whether an affidavit submitted in support of a search
warrant demonstrates probable cause, " '[t]he task of the issuing magistrate is simply to
make a practical, common-sense decision whether, given all the circumstances set forth in
the affidavit before him, including the "veracity" and "basis of knowledge" of persons
supplying hearsay information, there is a fair probability that contraband or evidence of a
crime will be found in a particular place.' " State v. George, 45 Ohio St. 3d 325 (1989),
paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983).
Further, "reviewing courts [including a trial court conducting a suppression hearing as
well as appellate courts] may not substitute their own judgment for that of the issuing
magistrate by conducting a de novo determination as to whether the affidavit contains
sufficient probable cause upon which the reviewing court would issue the search warrant."
Id. at 330. Rather, "under the totality-of-the-circumstances of Gates," the issue before the
court is whether an affidavit provides a substantial basis for the magistrate's conclusion
that there was a fair probability that contraband would be found in the location subject to
the search warrant. Id. "[T]he focus of the probable cause inquiry is the totality of the
circumstances presented in the affidavit, not each component standing alone."
(Emphasis sic.) State v. Robinson, 7th Dist. No. 10 CO 37, 2011-Ohio-6639, ¶ 23. A
reviewing court should "accord great deference to the magistrate's determination of
No. 14AP-79 12
probable cause, and doubtful or marginal cases in this area should be resolved in favor of
upholding the warrant." George at paragraph two of the syllabus, citing Gates.
{¶ 33} Upon review of the affidavit, we agree with the trial court that the
information provided by Mauger was sufficient for the municipal court judge to issue the
search warrant. We note initially that appellant points to no evidence demonstrating that
Mauger's misstatement about the two felony drug arrests in 2011 was made in bad faith.
Indeed, the only evidence as to Mauger's veracity was provided by Downard, who testified
that he had worked with Mauger for many years and had no reason to believe that he
would intentionally include false information in a search warrant affidavit. Further, the
affidavit includes information regarding other drug charges brought against appellant,
against which appellant poses no challenge.
{¶ 34} As to the alleged omission of details about the anonymous tip, we note that
the "veracity, reliability and basis of knowledge [of an anonymous informant] are all
highly relevant in determining probable cause." State v. Pustelnik, 8th Dist. No. 91779,
2009-Ohio-3458, ¶ 22, citing Gates. Thus, " '[t]here must be some basis in the affidavit to
indicate the informant's credibility, honesty or reliability.' " Id., quoting State v. Harry,
12th Dist. No. CA2008-01-013, 2008-Ohio-6380, ¶ 20. However, "a deficiency in one of
these principles does not negate probable cause if there is a strong showing on another or
if there is some other indicia of reliability." Id., citing Gates. Even where there is an
absence of evidence in an affidavit to demonstrate an affiant's prior knowledge of the
veracity of a confidential informant, corroboration of the informant's statements by police
investigation can provide "sufficient indicia of the reliability and veracity of the
informant's statements." Id. at ¶ 23. See also State v. Ross, 6th Dist. No. L-96-266
(Jan. 16, 1998) ("Even in cases involving anonymous informants, a tip is sufficient where
certain important or key elements of the tip are corroborated by police observation or
investigation."); State v. Goddard, 4th Dist. No. 97CA23 (Oct. 2, 1998) (while affidavit
was lacking in showing a basis for anonymous informant's knowledge and in establishing
his veracity, the corroborating efforts by police officers made search constitutional).
{¶ 35} In the present case, Mauger corroborated the anonymous tip when he went
to the residence, verified that one of the vehicles parked there was registered to appellant,
and learned through computer searches that appellant had previously been charged with
No. 14AP-79 13
several drug-related crimes, including drug trafficking. In addition, during the trash pull
conducted at the residence two days after receiving the anonymous tip, Mauger
discovered a plastic baggie containing cocaine.
{¶ 36} The affidavit included additional corroborating information in the form of
the report from the VCSO regarding McWhorter's daughter's statement that appellant
sold drugs from the residence and that she took $11,000 in drug proceeds from a dresser
located in the residence. The affidavit also outlined Mauger's qualifications, training, and
experience with narcotics investigations. Based on the totality of the circumstances, the
issuing municipal court judge had a substantial basis to conclude there was a fair
probability that the residence at 5903 Little Brook Way contained drugs or drug
paraphernalia.
{¶ 37} The second assignment of error is overruled.
3. Third Assignment of Error
{¶ 38} In his third assignment of error, appellant challenges the denial of his
motion to suppress evidence found during a search of his public storage unit located at
3275 Gender Road on February 3, 2012. Appellant first claims that the search of the
storage unit was based on a warrant supported by an affidavit that contained material
misstatements and omissions and that the warrant facially lacked probable cause.
{¶ 39} As to the alleged misstatements and omissions, appellant maintains that the
affidavit erroneously stated that the cocaine and marijuana recovered from appellant's
vehicle following the traffic stop in the early morning hours of February 3, 2012 was found
near where appellant was seated and omitted information that Wiggins, the driver of the
vehicle, reportedly claimed ownership of the drugs. Appellant further maintains that the
four corners of the affidavit failed to establish probable cause because the affidavit failed
to establish that (1) police observed appellant at the storage unit prior to February 3,
2012, (2) police had specific information that appellant stored narcotics at the storage
unit, and (3) police observed narcotics in the storage unit at any time prior to the search.
{¶ 40} At the suppression hearing, appellee presented the following testimony and
evidence. WPD Detective Guy Grinstead testified that he prepared the affidavit for the
search warrant executed at the public storage facility on February 3, 2012. According to
Grinstead, he became involved in the case when Adams and Slosser informed him that
No. 14AP-79 14
during a traffic stop of appellant's vehicle earlier that day, they recovered a business card
for a public storage facility from appellant's person and small amounts of marijuana and
cocaine from the vehicle's passenger side floorboard and backseat area, respectively.
Grinstead utilized this information, along with the officers' written report detailing the
same, as the basis for the search warrant affidavit. At the hearing, Grinstead identified
the search warrant and accompanying affidavit. In that affidavit, Grinstead attested to the
following.
{¶ 41} On January 31, 2012, officers from the RPD and the CPD executed a search
warrant at appellant's home and recovered more than $5,000 cash, a small amount of
powder cocaine, and a set of digital scales containing cocaine residue.
{¶ 42} On February 3, 2012, Adams and Slosser conducted a traffic stop of
appellant's vehicle for an equipment violation. Due to recent police history involving
appellant and narcotics, a narcotics canine was called to the scene. After the canine
positively alerted to the scent of drugs inside the vehicle, the vehicle was searched, and a
small amount of cocaine was found "near the area where [appellant] was sitting."
(Grinstead Search Warrant Affidavit, Attachment 1.) In addition, a business card from a
public storage facility recovered from appellant's person included "the address of the
storage facility, the unit number and an access code to gain entry into the facility."
(Grinstead Search Warrant Affidavit, Attachment 1.) The officers made a copy of the card
and left it with the detective bureau.
{¶ 43} At approximately 10:00 a.m. on February 3, 2012, Grinstead went to the
storage facility where employees informed him that the storage unit identified on the
business card, unit #1614, was registered in appellant's name and was twice accessed on
February 1, 2012. At approximately 11:00 a.m. on February 3, 2012, a Franklin County
Sheriff's Office ("FCSO") canine unit was called to the storage facility. After passing
several storage units, the narcotics dog positively alerted to the scent of narcotics in unit
#1614.
{¶ 44} At the suppression hearing, Grinstead testified in more detail about the
location of the cocaine recovered from appellant's vehicle during the February 3, 2012
traffic stop. Specifically, Grinstead stated that Adams and Slosser described appellant's
vehicle as having two separate seats in the front, separated by a console, and one bench
No. 14AP-79 15
seat extending all the way across the back. The cocaine was discovered in the middle of
the bench seat. Grinstead testified that although the search warrant affidavit did not
precisely describe the location of the cocaine, he considered that location to be "near the
area" of appellant, as set forth in the affidavit, because it was "in reach of [appellant]."
(Dec. 9, 2013 Tr. 54, 55.)
{¶ 45} Grinstead further testified that the report prepared by Adams and Slossser
regarding the traffic stop included a statement by Wiggins that "[i]t's not mine, but I'll
take the charge." (Dec. 9, 2013 Tr. 57.) Grinstead averred he did not include Wiggins'
statement in the affidavit because such detailed information about the traffic stop was not
relevant to the search of the storage unit; rather, the facts regarding the traffic stop were
provided merely as background to demonstrate how he obtained the information about
the storage unit. On cross-examination, Grinstead conceded that he did not participate in
the traffic stop and, thus, did not see the location of the drugs or whether appellant could
access the drugs from where he was seated.
{¶ 46} The trial court found immaterial Grinstead's omission of Wiggins' statement
in the search warrant affidavit. The court also found Grinstead's testimony regarding
Adams' and Slosser's statements about discovery of the drugs in the middle of the back
seat sufficient to justify his averment in the affidavit regarding the location of the drugs.
Based on these findings, the court orally overruled this portion of appellant's motion to
suppress.
{¶ 47} Upon review of the affidavit and the testimony adduced by appellee
pertaining to the affidavit, we agree with the trial court that the information provided by
Grinstead was sufficient for the municipal court judge to issue the search warrant for the
storage unit. As noted above, the trial court at a suppression hearing assumes the role of
factfinder and is, thus, in the best position to resolve factual questions and evaluate
witness credibility. Body at ¶ 9, citing Burnside at ¶8. As to Grinstead's alleged
misstatement that the cocaine was discovered during the traffic stop near where appellant
was seated, Grinstead testified in detail about Adams' and Slosser's description of the
vehicle and the location of the cocaine within the vehicle, and the trial court, as factfinder,
apparently found Grinstead's testimony credible in this regard. As to Grinstead's
omission of Wiggins' statement, the trial court, as factfinder, found credible Grinstead's
No. 14AP-79 16
explanation for that omission. We further note that Grinstead averred that Wiggins told
Adams and Slosser that "[i]t's not mine, but I'll take the charge." (Dec. 9, 2013 Tr. 57.)
Contrary to appellant's contention, Wiggins did not claim ownership of the cocaine
recovered from the vehicle; rather, Wiggins denied ownership.
{¶ 48} Further, Grinstead's affidavit sufficiently demonstrated probable cause to
issue a search warrant for appellant's storage unit. The affidavit related facts regarding
the recovery of drugs from appellant's home pursuant to the search conducted three days
earlier, the recovery of drugs and a business card connecting appellant to storage unit
#1614 pursuant to the traffic stop occurring earlier in the day, Grinstead's ensuing
investigation into appellant's connection to storage unit #1614, and the narcotics canine's
positive alert to drugs in storage unit #1614. The affidavit also stated that it is commonly
known in the law enforcement community that narcotics traffickers store narcotics and
assets inside storage facilities to avoid police detection. In addition, the affidavit also
outlined Grinstead's qualifications, training, and experience with narcotics investigations.
{¶ 49} Based on the totality of the circumstances, the issuing municipal court judge
had a substantial basis to conclude there was a fair probability that drugs and drug
paraphernalia would be found in storage unit #1614.
{¶ 50} Appellant also argues that the canine sniff of appellant's storage unit
constituted an illegal search unsupported by probable cause. Specifically, appellant
contends the trial court failed to properly consider the canine's record of false positive
alerts set forth in the field performance records.
{¶ 51} At the hearing, appellee presented the following testimony and evidence.
FCSO Corporal Thomas Lung testified that, on February 3, 2012, he and his narcotics dog,
Myra, were summoned to the storage facility based on a suspicion that narcotics were
located in the one of the storage units. Lung described Myra as a "single purpose dog,"
meaning that her "sole specialty" was detection of narcotics, including cocaine, through
scent. (Dec. 9, 2013 Tr. 158.)
{¶ 52} Lung testified that, in 2010, Myra participated in a four-week training
course in narcotics detection through Azzi International, a training facility from which
FCSO frequently obtains narcotics dogs. As her handler, Lung also participated in this
training. According to Lung, this training course was a prerequisite for Myra's
No. 14AP-79 17
certification as a narcotics dog by the Ohio Peace Officer Training Academy ("OPOTA").
He described in detail the OPOTA narcotics detection certification process, identified
documentation related to that certification, and averred that Myra successfully completed
the OPOTA program and received certification. Lung stated that Myra never provided a
false positive alert during the course of the OPOTA certification process. He further
testified that following the OPOTA certification process, he and other canine handlers
engaged in biweekly training sessions with Myra, during which she never provided a false
positive alert.
{¶ 53} Lung also testified regarding detailed records maintained regarding Myra's
post-certification field performance, and he identified those records for purposes of the
hearing. Those records demonstrated that Myra "falsely" alerted to the presence of
narcotics in approximately 30 percent of her sniffs in circumstances where the occupants
of a vehicle upon which she alerted admitted that narcotics had been present in the
vehicle but had been disposed of in some way (smoked, ingested, etc.) immediately prior
to search of the vehicle. The records further demonstrated that Myra "falsely" alerted to
the presence of narcotics in approximately 10 percent of her sniffs in circumstances where
the occupants of a vehicle upon which she alerted never admitted to the presence of
narcotics inside the vehicle. Lung described Myra's ability to detect hidden narcotics as
"very effective," both in general and as specifically related to the sniff conducted at the
storage unit on February 3, 2012. (Dec. 9, 2013 Tr. 173.)
{¶ 54} The trial court noted that Myra had never provided a false positive alert
during the OPOTA certification process or her post-certification training sessions. The
court discounted the evidence regarding Myra's "false positives"6 during field
performance, noting the difficulty in objectively quantifying such data. On this basis, the
court orally overruled this portion of appellant's motion to suppress.
{¶ 55} Appellant's contention that the trial court failed to consider Myra's record of
false positive alerts during field performance is belied by the record. The parties and the
trial court engaged in an extensive discussion of this issue, following which the trial court
6 The trial court found the state's characterization of these circumstances as "false positives" to be technically
incorrect, given the testimony establishing that narcotics existed in the vehicles immediately prior to search.
(Dec. 9, 2013 Tr. 195.)
No. 14AP-79 18
concluded that Myra's field performance records were not objectively verifiable.
Appellant does not challenge the trial court's conclusion in this regard; rather, appellant
argues only that the trial court refused to give any consideration to Myra's field
performance reports. As the trial court clearly considered the field performance reports,
appellant's contention is without merit.
{¶ 56} Moreover, we note that in State v. Nguyen, 157 Ohio App. 3d 482, 2004-
Ohio-2879 (6th Dist.), the court engaged in an extensive survey of federal and state law
related to the matter of establishing canine reliability and the evidence required to do so.
The court acknowledged the national trend on this issue, stating that "a drug dog's
training and certification records can be used to uphold a finding of probable cause to
search and can be used to show reliability, if required, but canine reliability does not
always need to be shown by real world records." Id. at ¶ 46. The court held that "proof of
the fact that a drug dog is properly trained and certified is the only evidence material to a
determination that a particular dog is reliable." Id. at ¶ 55. The court stated that "[p]roof
that a drug dog is properly trained and certified may be established by means of testimony
or through documentary proof." Id.
{¶ 57} In the present case, appellee presented both testimony and documentary
proof establishing that Myra was properly trained and certified as a narcotics-detection
canine. Pursuant to Nguyen, this evidence was sufficient to establish her reliability.
Thus, evidence regarding Myra's false positive alerts in her field performance records was
immaterial to establishing her reliability.
{¶ 58} The third assignment of error is overruled.
4. Fourth Assignment of Error
{¶ 59} In his fourth assignment of error, appellant challenges the denial of his
motion to suppress evidence obtained following a traffic stop at the storage facility at
approximately 2:00 p.m. on February 3, 2012. Appellant claims that the stop and
subsequent warrantless search of his vehicle was not supported by probable cause or even
reasonable suspicion in violation of his Fourth Amendment rights.
{¶ 60} At the suppression hearing, appellee presented the testimony of WPD
Detectives Chad Wilder and Downard. Wilder testified that Grinstead requested that he
safeguard storage unit #1614 while Grinstead obtained a search warrant for the unit.
No. 14AP-79 19
Wilder was provided a photograph of appellant and was informed that appellant had
rented unit #1614 and had last been seen driving a gold four-door Chevy Impala. Wilder
averred he was also aware that appellant had been arrested in November 2010 for
possession of a handgun, RPD officers had recently conducted a search of appellant's
residence which resulted in the discovery of several thousand dollars in cash and cocaine
residue, appellant had an extensive criminal history, including felony drug arrests and
weapons violations, and a traffic stop of appellant earlier in the day resulted in the
recovery of narcotics from his vehicle.
{¶ 61} Wilder drove to the storage facility in an unmarked undercover vehicle. The
storage facility housed multiple rows of storage units. Appellant's storage unit, #1614,
was located at the back of the facility. Wilder parked his vehicle near unit #1614 and was
later joined by Downard, who also drove an unmarked undercover vehicle. Both
detectives were dressed in plain clothes.
{¶ 62} Wilder observed a gold Chevy Impala driving slowly around the back of the
storage facility near unit #1614. When the Impala pulled beside him, Wilder recognized
appellant as the driver. He also observed a second individual in the front passenger seat,
later identified as Wiggins, and a third individual in the back seat, later identified as
Deandre Green. Wilder displayed the police badge hanging from a lanyard around his
neck, identified himself as a police officer, and ordered the occupants to put their hands in
the air. Appellant did not immediately comply with the order, and, according to Wilder,
"it appeared * * * that [appellant] was going to take off and not stay put." (Dec. 10, 2013
Tr. 257.) Wilder produced his service weapon, pointed it at the vehicle, and again ordered
the occupants to put their hands in the air. Wilder then observed Green reach down as if
to retrieve or conceal a weapon or contraband. Appellant immediately drove away at a
high rate of speed.
{¶ 63} Wilder eventually located appellant attempting to exit the storage facility
through the front gate. He approached the vehicle and observed Green with marijuana
vegetation in his lap. Wilder drew his service weapon and ordered appellant and the
other occupants to exit the vehicle. As Green exited the vehicle, Wilder observed a cigar
filled with marijuana roll off the back seat onto the floorboard. He also smelled a "very
strong" odor of marijuana coming from the vehicle. (Dec. 9, 2013 Tr. 97.)
No. 14AP-79 20
{¶ 64} According to Wilder, appellant asked why he had been detained. Wilder
explained that law enforcement officers would soon execute a search warrant at unit
#1614. When Wilder asked appellant why he "took off," appellant stated that he "thought
he was getting robbed." (Dec. 9, 2013 Tr. 99.)
{¶ 65} Wilder arrested appellant and searched the vehicle incident to the arrest. A
digital scale with white residue and keys to unit #1614 were recovered during the search.
Wilder also conducted a pat-down search of Wiggins and Green. As nothing linking them
to storage unit #1614 was recovered, they were released.
{¶ 66} Wilder testified that he stopped appellant's vehicle because he was
concerned that appellant was at the storage facility to pick up or drop off narcotics. In
addition, appellant fled after Wilder identified himself as a police officer. He further
stated that he had previously executed search warrants at other storage facilities which
resulted in recovery of large amounts of cash and weapons; accordingly, he was concerned
for his own safety as well as that of Downard.
{¶ 67} On cross-examination, Wilder conceded that prior to the time he stopped
appellant, he had neither observed appellant violate a traffic law nor observed appellant
or any of the vehicle's occupants engage in criminal activity. He explained that he made
the initial decision to stop appellant's vehicle when he realized appellant was the driver.
He based this decision on several factors: his previous experience that narcotics dealers
often utilize storage facilities to harbor and conceal narcotics, cash, and weapons, his
knowledge of the narcotics dog's alert on storage unit #1614, his knowledge of appellant's
extensive criminal history involving weapons and narcotics, his concern that appellant
would gain access to unit #1614 and retrieve contraband contained therein, and his
knowledge of the traffic stop earlier in the day.
{¶ 68} Wilder further conceded that at the time he initially stopped appellant, he
did not have an arrest warrant for him and did not know whether the search warrant for
unit #1614 had been approved. He further acknowledged that he had not seen appellant
attempt to access unit #1614 and had not seen any weapons inside the vehicle.
{¶ 69} Downard testified that Wilder requested his aid in safeguarding storage unit
#1614 while Grinstead obtained a search warrant. Downard corroborated Wilder's
testimony regarding appellant's actions in slowly driving near unit #1614, Wilder's initial
No. 14AP-79 21
order that appellant stop his vehicle, and appellant's failure to heed that order. As did
Wilder, Downard conceded on cross-examination that at the time Wilder initially ordered
appellant to stop his vehicle, Downard had not observed appellant violate a traffic law or
otherwise engage in criminal activity.
{¶ 70} Following presentation of its evidence, appellee argued that Wilder had
reasonable suspicion that criminal activity, i.e., drug trafficking, was afoot at the time he
stopped appellant's vehicle based on the information obtained from the RPD, appellant's
extensive criminal history, the narcotics dog's alert on storage unit #1614 and the ensuing
effort to obtain a search warrant for that unit, and the fact that appellant fled after Wilder
initially ordered him to stop. Appellee further argued that once the vehicle was stopped,
the strong odor of marijuana provided Wilder probable cause to conduct a warrantless
search of the vehicle under the automobile exception.
{¶ 71} In response, appellant argued that the factors cited by appellee did not
constitute reasonable suspicion justifying the stop. Appellant specifically argued that
Wilder's pointing of his service weapon at appellant was unreasonable and was actually
the impetus for his fleeing the area as it placed him in fear for his own safety. Appellant
also noted that he was detained near the front gate of the storage facility, creating a
reasonable inference that he was planning to leave the storage facility rather than access
unit #1614.
{¶ 72} Following argument by the parties, the trial court found that the traffic stop
was not constitutionally unreasonable and orally overruled this portion of the motion to
suppress.
{¶ 73} As noted above, the stopping of an automobile and the temporary detention
of its occupants constitutes a seizure for Fourth Amendment purposes. Dorsey at ¶ 17.
Warrantless seizures of this type are per se unreasonable in the absence of a valid
exception such as a Terry stop. Id. Under Terry, a police officer may stop or detain an
individual without probable cause when the officer has reasonable suspicion, based on
specific, articulable facts, taken together with rational inferences from those facts, that
criminal activity is afoot. Id. at 21-22. Accordingly, "[a]n investigative stop does not
violate the Fourth Amendment to the United States Constitution if the police have
reasonable suspicion that 'the person stopped is, or is about to be, engaged in criminal
No. 14AP-79 22
activity.' " State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, ¶ 35, quoting United
States v. Cortez, 449 U.S. 411, 417 (1981).
{¶ 74} The reasonableness of an investigatory stop depends upon the totality of the
circumstances surrounding the incident. State v. Williams, 51 Ohio St. 3d 58, 60 (1990).
A court evaluating the validity of a Terry stop must consider the totality of the
circumstances as "viewed through the eyes of the reasonable and prudent police officer on
the scene who must react to events as they unfold." State v. Andrews, 57 Ohio St. 3d 86,
87-88 (1991), citing United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976). "Reasonable
suspicion entails some minimal level of objective justification for making a stop—that is,
something more than an inchoate and unparticularized suspicion or 'hunch,' but less than
the level of suspicion required for probable cause." State v. Jones, 70 Ohio App. 3d 554,
556-57 (2d Dist.1990), citing Terry at 27.
{¶ 75} Given the totality of the circumstances surrounding the incident in the
present case, as "viewed through the eyes of the reasonable and prudent police officer on
the scene who must react to events as they unfold," we conclude that Wilder had sufficient
reasonable suspicion that appellant was actively engaged in drug-related activity to justify
the stop. Andrews at 87-88. At the time of the stop, Wilder had been deployed to
safeguard appellant's storage unit pending the issuance of a search warrant. Wilder was
aware, through previous police experience, that narcotics traffickers conceal narcotics,
cash, and weapons in storage facilities. Wilder was also aware that a trained canine unit
had alerted to the scent of narcotics coming from the storage unit. Wilder was also aware
that a search of appellant's residence three days before had resulted in the discovery of
several thousand dollars in cash as well as cocaine residue, that appellant had an
extensive criminal history, including felony drug arrests and weapons violations, and that
a traffic stop of appellant earlier in the day resulted in the recovery of narcotics and a
business card identifying the storage unit. While securing the scene, Wilder observed
appellant driving slowly toward the storage unit, which was at the back of the facility.
Wilder initiated the stop due to his concern that appellant would gain access the storage
unit and retrieve contraband contained therein.
{¶ 76} Contrary to appellant's suggestion, under the circumstances herein, it was
not necessary for Wilder to have observed appellant commit a traffic violation or other
No. 14AP-79 23
crime prior to initiating the stop. Wilder's testimony establishes that he had substantially
more than "an inchoate and unparticularized suspicion or 'hunch' " that criminal activity
was afoot. Id. Indeed, Wilder's testimony establishes that he had more than a "minimal
level of objective justification" for making the stop. Id.
{¶ 77} Appellant's contention that the warrantless search of his vehicle was not
supported by probable cause is also without merit. Wilder testified that after stopping
appellant's vehicle, he smelled a "very strong" odor of marijuana coming from the vehicle.
(Dec. 9, 2013 Tr. 97.) The Supreme Court of Ohio has held that "the smell of marijuana,
alone, by a person qualified to recognize the odor, is sufficient to establish probable cause
to conduct a search." State v. Moore, 90 Ohio St. 3d 47, 53 (2000). Although appellant
now disputes Wilder's testimony, he points to no evidence in the record substantiating his
claim. Pursuant to Moore, the testimony presented by Wilder, a narcotics detective
qualified to recognize the odor of marijuana, was sufficient to establish probable cause to
conduct the warrantless search of appellant's vehicle.
{¶ 78} The fourth assignment of error is overruled.
B. Fifth Assignment of Error–Ineffective Assistance of Counsel
{¶ 79} In his fifth assignment of error, appellant contends his initial7 trial counsel
was ineffective in failing to file a motion to suppress challenging the legality of the
February 3, 2012 early morning traffic stop and the qualifications and reliability of the
canine unit involved in that stop.
{¶ 80} In Ohio, a properly licensed attorney is presumed competent. Vaughn v.
Maxwell, 2 Ohio St. 2d 299, 301 (1965). Therefore, the burden of demonstrating
ineffective assistance of counsel is on the party asserting it. State v. Smith, 17 Ohio St. 3d
98, 100 (1985). Additionally, in fairly assessing counsel's performance, there is a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance. State v. Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, ¶ 101.
{¶ 81} "[T]he benchmark for judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of the adversarial process that
the trial [court] cannot be relied on as having produced a just result." Strickland v.
7Appellant obtained new trial counsel in September 2013. His second trial counsel also serves as his
appellate counsel.
No. 14AP-79 24
Washington, 466 U.S. 668, 686 (1984). In order to succeed on a claim of ineffective
assistance of counsel, appellant must satisfy a two-prong test. First, he must demonstrate
that his trial counsel's performance was deficient. Id. at 687. This requires a showing that
his counsel committed errors which were "so serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. If he can show
deficient performance, he must next demonstrate that he was prejudiced by the deficient
performance. Id. To show prejudice, he must establish there is a reasonable probability
that, but for his counsel's unprofessional errors, the result of the trial would have been
different. A reasonable probability is one sufficient to undermine confidence in the
outcome. Id. at 694.
{¶ 82} The failure to file a motion to suppress is not ineffective assistance of
counsel per se. State v. Brown, 115 Ohio St. 3d 55, 2007-Ohio-4837, ¶ 65, citing State v.
Madrigal, 87 Ohio St. 3d 378, 389 (2000). In order to establish ineffective assistance of
counsel for failure to file a motion to suppress, the defendant must prove there was a basis
for suppressing the evidence at issue. Id., citing State v. Adams, 103 Ohio St. 3d 508,
2004-Ohio-5845, ¶ 35. Counsel is not deficient for failing to raise a meritless issue. State
v. Yarbrough, 104 Ohio St. 3d 1, 2004-Ohio-6087, ¶ 117, citing State v. Taylor, 78 Ohio
St.3d 15, 31 (1997).
{¶ 83} " '[T]he ineffective assistance of counsel test set forth in Strickland can be
summarized, in cases involving a failure to make a motion on behalf of the defendant * * *
as requiring the defendant to: (1) show that the motion * * * was meritorious, and
(2) show that there was a reasonable probability that the verdict would have been
different had the motion been made.' " State v. Simms, 10th Dist. No. 10AP-1063, 2012-
Ohio-2321, ¶ 50, quoting State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 63,
citing State v. Santana, 90 Ohio St. 3d 513 (2001), and State v. Lott, 51 Ohio St. 3d 160
(1990). " 'Where the record contains no evidence which would justify the filing of a
motion to suppress, the appellant has not met his burden of proving that his attorney
violated an essential duty by failing to file the motion.' " Id., quoting State v. Gibson, 69
Ohio App. 2d 91, 95 (8th Dist.1980).
{¶ 84} As this court has recognized, the failure to file a motion to suppress may
constitute ineffective assistance of counsel where there is a solid possibility that the court
No. 14AP-79 25
would have suppressed the evidence. State v. Jones, 10th Dist. No. 99AP-704 (June 13,
2000), citing State v. Garrett, 76 Ohio App. 3d 57 (11th Dist.1991). Nevertheless, even
when some evidence in the record supports a motion to suppress, we must presume that
defense counsel was effective if counsel could have reasonably decided that filing a motion
to suppress would have been a futile act. Id., citing State v. Edwards, 8th Dist. No. 69077
(July 11, 1996), citing State v. Martin, 20 Ohio App. 3d 172 (1st Dist.1983).
{¶ 85} We find no merit to appellant's first contention that his initial trial counsel
was ineffective for failing to challenge the legality of the traffic stop, as such challenge
would have been futile. Adams testified that he initiated the traffic stop due to a
malfunctioning rear license plate light. Every vehicle that is required to have a
registration plate is also required to have a light illuminating that plate. See R.C. 4513.05.
Appellant does not claim that his license plate light was functioning at the time of the
stop, nor does the record contain any factual support for such a conclusion. Rather,
appellant only asserts that "some doubt" as to a violation was created by the fact that
Adams "had no trouble reading the tag on the car." (Appellant's Brief, 21.) However,
Adams' ability to read the license plate did not excuse appellant from complying with
Ohio law. Accordingly, a challenge to the validity of the stop based on the grounds now
asserted by appellant would have been meritless. Trial counsel was not deficient for
failing to raise this meritless challenge. Yarbrough.
{¶ 86} We also disagree with appellant's contention that trial counsel was
ineffective for failing to challenge the qualifications or reliability of the canine unit.
Appellant cites no authority requiring counsel to challenge the qualifications or reliability
of a canine unit in every case. Moreover, an attorney's decision not to file a motion to
suppress may be considered a trial strategy. See State v. Clark, 2d Dist. No. 2013 CA 52,
2014-Ohio-855, ¶ 33. Decisions on trial strategy and tactics are generally afforded a wide
latitude of professional judgment, and it is not the duty of a reviewing court to analyze
trial counsel's legal tactics and maneuvers. State v. Gau, 11th Dist. No. 2005-A-0082,
2006-Ohio-6531, ¶ 35, citing Strickland at 689.
{¶ 87} In the present case, appellant's initial trial counsel filed a motion to
suppress challenging the duration of the traffic stop on constitutional grounds. The
record does not reveal why counsel may have chosen not to pursue a challenge to the
No. 14AP-79 26
qualifications or reliability of the canine unit employed during that traffic stop. Without
some indication in the record that it was objectively unreasonable for counsel not to do so,
we conclude counsel's decision was a strategic one. Trial tactics, even debatable ones, do
not establish ineffective assistance of counsel. State v. Leonard, 104 Ohio St. 3d 54, 2004-
Ohio-6235, ¶ 146.
{¶ 88} The fifth assignment of error is overruled.
C. Sixth, Seventh, Eighth, Ninth, and Tenth Assignments of Error–
Trial Issues
{¶ 89} Appellant's sixth, seventh, eighth, ninth, and tenth assignments of error all
involve issues related to trial. Before addressing the individual assignments of error, we
set forth the relevant evidence adduced from appellee's case-in-chief.8
1. Trial Evidence
{¶ 90} On January 25, 2012, Mauger received an anonymous call regarding
suspected narcotics trafficking at a residence located at 5903 Little Brook Way. The caller
reported the license numbers for two vehicles parked at the residence. Based on this call,
Mauger conducted surveillance of the residence the next day, and he verified the accuracy
of the license numbers provided by the caller. Pursuant to a subsequent vehicle
registration check, Mauger identified appellant and McWhorter as the owners. On
January 27, 2012, Mauger performed a trash pull of trash deposited at the end of
appellant's driveway. The trash pull resulted in the recovery of several baggies wrapped
with electrical tape. One of the baggies contained a white residue. Mauger field tested the
substance and concluded that it was cocaine.
{¶ 91} Based on these facts, Mauger obtained a search warrant for 5903 Little
Brook Way and the vehicles registered to appellant and McWhorter. With the aid of
Downard and the CPD, Mauger executed the search warrant on January 31, 2012. Both
appellant and McWhorter were present at the time of the search. The search resulted in
8 Because these assignments of error present challenges to the trial proceedings, including the sufficiency
and manifest weight of the evidence, and because the trial evidence is not identical to the evidence presented
at the suppression hearings, we separately set forth the evidence presented to the jury.
No. 14AP-79 27
the discovery of $5,020 in cash, a 9 mm weapon, a plastic baggie containing cocaine
residue, and a digital scale containing cocaine residue.9
{¶ 92} Three days later, on February 3, 2012, Adams conducted a traffic stop of
appellant's vehicle based on a license plate illumination violation. Appellant was seated in
the front passenger seat; Wiggins was the driver. During the traffic stop, Adams
summoned a canine unit to the scene. After appellant and Wiggins were removed from
the vehicle, the canine alerted to the scent of narcotics inside the vehicle. A subsequent
search of the vehicle revealed marijuana "shake" on the passenger's side floor and cocaine
in a bag in the middle of the backseat.10 (Dec. 11, 2013 Tr. 444.) Adams placed appellant
under arrest and, pursuant to a pat-down search, discovered a business card for a public
storage facility. The card included the name and address of the storage facility, an eight-
digit access code to the facility, and the number of a particular storage unit within that
facility. Adams subsequently made a copy of the storage facility card, returned the
original to appellant, and thereafter released him.
{¶ 93} Later that day, Grinstead was informed of the traffic stop and subsequent
discovery of the storage facility card on appellant's person. Grinstead contacted the
storage facility and was informed by facility management that, on February 1, 2012,
appellant rented a storage unit at a facility located on Gender Road. Grinstead and Wilder
traveled to the Gender Road location and spoke to facility management, who verified that
appellant leased unit #1614.11 Grinstead and Wilder then drove to unit #1614 and
summoned a canine unit to the scene. After the narcotics dog alerted to narcotics in unit
#1614, Grinstead prepared a search warrant affidavit for unit #1614. He left Wilder to
safeguard the storage unit while he obtained a search warrant from a judge.
9 The parties stipulated, pursuant to a laboratory report generated by an Ohio Bureau of Criminal
Identification and Investigation ("BCI&I") forensic scientist, that the residue in both the plastic baggie and
on the digital scale was cocaine. (State's exhibit F.)
10 The parties stipulated, pursuant to a laboratory report generated by a BCI&I forensic scientist, that the
substance inside the bag was cocaine. (State's exhibit G.)
11 The parties stipulated that records kept by the Gender Road storage facility in the ordinary course of
business established that appellant entered into a rental agreement for unit #1614 on February 1, 2012.
(State's exhibit D.)
No. 14AP-79 28
{¶ 94} Thereafter, Wilder requested Downard's aid in safeguarding the storage
unit.12 Downard thereafter met Wilder at the storage unit. Both Downard and Wilder
were dressed in plain clothes and drove unmarked police vehicles. Wilder noticed a
vehicle driving slowly in the vicinity of unit #1614.13 Wilder noted the license number and
identified the vehicle as the one involved in the traffic stop earlier that day. In addition to
appellant, the vehicle contained two other male occupants—Wiggins in the front
passenger seat and Green in the back seat. Wilder eventually positioned his vehicle
"[d]river's side window to driver's side window" with appellant's vehicle, displayed his
police badge, and yelled "[p]olice. Get your hands up where I can see them." (Dec. 11,
2013 Tr. 483.) At trial, Downard corroborated this testimony.
{¶ 95} According to Wilder, Green "frantically immediately reached down to the
left of his seat * * * as if he was maybe trying to place something there or pick something
up that he had dropped." (Dec. 11, 2013 Tr. 485.) Because appellant did not immediately
heed Wilder's command, Wilder believed app[ellant was going to drive away. Wilder
again displayed his police badge, identified himself as a police officer, produced his
service weapon, and again ordered appellant and the other occupants to "[g]et your hands
up where I can see them." (Dec. 11, 2013 Tr. 484.) Appellant immediately drove off at a
high rate of speed. Wilder pursued the vehicle and eventually located it at the front gate.
Wilder ordered appellant to stop the vehicle. Appellant complied and Wilder approached
the vehicle. As he did so, Wilder noticed a "very strong odor of burning marijuana coming
from the vehicle." (Dec. 11, 2013 Tr. 488.) Wilder ordered appellant and the passengers
to exit the vehicle. As Green exited, Wilder observed marijuana vegetation fall from his
lap and a cigar filled with marijuana fall to the floor. Pursuant to a search of the vehicle,
Wilder recovered a digital scale containing white residue in the console area between the
front seats. The white residue was field tested and determined to be cocaine.
12 Wilder testified that he enlisted Downard for safety reasons, as drug traffickers frequently store narcotics,
large amounts of cash, and firearms in public storage units.
13 Because he was aware of the ongoing investigation surrounding appellant, and due to concerns that
appellant might drop off or retrieve narcotics from the storage unit, Wilder familiarized himself with
appellant's photograph and license number of his vehicle.
No. 14AP-79 29
{¶ 96} Wilder removed the keys from the ignition and found two keys to the
storage unit on the key chain.14 About the same time, Grinstead returned with a search
warrant for the storage unit. Wilder thereafter used the keys found on appellant's key
chain to open two locks on the storage unit. Inside the storage unit was a black duffel bag
containing two operable firearms, a bag of loose ammunition, $54,800 in cash, and 138
grams of powder cocaine.15
{¶ 97} Appellant, Green, and Wiggins were all searched. Police recovered a storage
facility card from appellant which included the number of the storage unit, #1614, as well
as an access code to the facility. Appellant was arrested; Wiggins and Green were
released.
2. Sixth Assignment of Error–Prosecutorial Misconduct
{¶ 98} In his sixth assignment of error, appellant contends the prosecutor engaged
in misconduct by commenting in closing argument on appellant's failure to testify at trial.
Appellant argues this prosecutorial misconduct deprived him of due process of law and
denied him a fair trial.
{¶ 99} Prosecutors are normally given wide latitude in their closing arguments.
State v. Maurer, 15 Ohio St. 3d 239 (1984). However, a prosecutor may not comment on a
defendant's failure to testify at trial, as such comments may violate the defendant's Fifth
Amendment rights. State v. Fears, 86 Ohio St. 3d 329 (1999). The test for determining
whether such a violation has occurred is " 'whether the language used was manifestly
intended or was of such character that the jury would naturally and necessarily take it to
be a comment on the failure of the accused to testify.' " Id. at 336, quoting State v. Webb,
70 Ohio St. 3d 325, 328 (1994).
{¶ 100} In the present case, defense counsel averred during opening statement:
[W]hat we need to do is to do our best to go back in time to
that day and let's go to the storage unit and let's see how it
unfolds. Let's see what happens if we're inside [appellant's]
car.
14 Each storage unit contains two separate locks accessed by two separate keys.
15 The parties stipulated, pursuant to laboratory reports generated by BCI&I forensic scientists, that both
firearms were operable and that the narcotics recovered constituted 138 grams of cocaine. (State's exhibit
H.)
No. 14AP-79 30
Dude, why do you need me to give a ride out here? You had
my car last night. You could have gone out here. You got your
key. * * *
What's this going on up here? Dude, what are these guys up
by my storage unit? What's this guy telling us to stop? Dude,
what did you put in my storage unit? What do you mean take
off?
All right. I'll step on it. We got to get out of here, but we're
talking.
Put your hands up.
What? You put your dope, guns, in my unit? Dude, you better
tell them it's yours.
(Dec. 11, 2013 Tr. 314-15.)
{¶ 101} Following presentation of appellee's case-in-chief, the parties and the trial
court engaged in a lengthy discussion regarding jury instructions. The trial court raised
an issue about defense counsel's above-quoted averments. The court stated that it did not
raise any concerns about defense counsel's statements at the time they were made
because it would "have no way of knowing whether any such evidence would be adduced."
(Dec. 12, 2013 Tr. 613.) The court then expressed concern about how a curative jury
instruction should be crafted so as to avoid "impu[gning] in any way the defendant's right
not to testify." (Dec. 12, 2013 Tr. 618.)
{¶ 102} In response, defense counsel averred:
I would just suggest this: A, it's not evidence. B, I'm very
concerned about encroaching upon his right to testify or not
testify, and I think the appropriate method is to let the
government argue that. They'll have two bites at the apple
there. They can have comments on that. I'm sure that they'll
address that. If they want to rake me personally over the
coals for promising and not delivering, so be it.
(Emphasis added.) (Dec. 12, 2013 Tr. 619.)
{¶ 103} Subsequently, appellant rested his case without calling any witnesses.
{¶ 104} Therafter, during closing argument, the prosecutor averred:
No. 14AP-79 31
[The judge will] also tell you that opening statements are not
evidence. It wasn't a day and a half ago you saw [defense
counsel] sit here in a chair and do a one-man play about
what this defendant's story was.
Do you know how I know that that was not evidence? I did
not get to cross-examine one person.
You all promised this judge that you will listen to his
instructions of law, and you swore that was your duty.
Evidence comes from the stand and stipulations. That play
was not evidence.
(Emphasis added.) (Dec. 12, 2013 Tr. 629.)
{¶ 105} Appellant contends that the italicized portion of the prosecutor's statement
effectively highlighted to the jury his failure to testify. We note initially that defense
counsel failed to object to the prosecutor's statement. Thus, he has forfeited all but plain
error. See Crim.R. 52(B). 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. Gullick, 10th Dist. No. 13AP-26, 2013-Ohio-3342, ¶ 3, citing State v. Tichon, 102
Ohio App. 3d 758, 767 (9th Dist.1995). In addition, plain error is not present unless the
appellant establishes that but for the error complained of, the outcome of the trial clearly
would have been different. State v. Waddell, 75 Ohio St. 3d 163, 166 (1996). A reviewing
court notices plain error "with utmost caution, under exceptional circumstances and only
to prevent a manifest miscarriage of justice." Gullick at ¶ 3, citing State v. Phillips, 74
Ohio St. 3d 72, 83 (1995).
{¶ 106} Despite the suggestions made by defense counsel in the opening statement
regarding what may have transpired inside appellant's vehicle at the storage facility,
appellant presented no evidence in this regard. "Counsel [including the prosecutor] is
entitled to latitude in closing arguments as to what the evidence has shown." State v.
Twyford, 94 Ohio St. 3d 340, 356 (2002), citing State v. Smith, 80 Ohio St. 3d 89, 111
(1997). The prosecutor's comments can be read as a reminder to the jury that it must
consider only the evidence actually presented during the trial and that defense counsel's
No. 14AP-79 32
opening statement was not evidence because it was not testimony from the witness stand,
subject to cross-examination. The prosecutor did not specifically refer to appellant's
choice not to testify or even to a matter to which only appellant could testify. For
instance, Wiggins or Green could have testified about any conversation that took place
inside appellant's vehicle while at the storage facility.
{¶ 107} Even if the prosecutor's comments arguably constituted an impermissible
reference to appellant's failure to testify, such comments neither materially prejudiced
appellant nor denied him a fair trial. Id. Appellant presented no evidence at trial, and the
evidence of his guilt was compelling. In addition, the trial court instructed the jury that it
was not to consider appellant's decision not to testify "for any purpose." (Dec. 12, 2013 Tr.
656.) A jury is presumed to follow a trial court's instructions. State v. McKinney, 10th
Dist. No. 13AP-211, 2013-Ohio-5394, ¶ 15.
{¶ 108} The sixth assignment of error is overruled.
3. Seventh Assignment of Error–Sufficiency of the Evidence
{¶ 109} In his seventh assignment of error, appellant contends the evidence
presented by appellee was insufficient as a matter of law to sustain his cocaine possession
and WUD convictions. We disagree.
{¶ 110} Sufficiency of the evidence is a legal standard that tests whether the
evidence is legally adequate to support a verdict. State v. Thompkins, 78 Ohio St. 3d 380,
386 (1997). Whether the evidence is legally sufficient to support a verdict is a question of
law, not fact. Id. In determining whether the evidence is legally sufficient to support a
conviction, " '[t]he 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. Robinson, 124 Ohio
St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St. 3d 259 (1991),
paragraph two of the syllabus. A verdict will not be disturbed unless, after viewing the
evidence in a light most favorable to the prosecution, it is apparent that reasonable minds
could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St. 3d
460, 484 (2001).
{¶ 111} In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is to be believed but whether, if believed, the evidence
No. 14AP-79 33
supports the conviction. State v. Yarbrough, 95 Ohio St. 3d 227, 2002-Ohio-2126, ¶ 79-
80 (evaluation of witness credibility not proper on review for sufficiency of evidence);
State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that "in a
sufficiency of the evidence review, an appellate court does not engage in a determination
of witness credibility; rather, it essentially assumes the state's witnesses testified
truthfully and determines if that testimony satisfies each element of the crime").
{¶ 112} Defendant was convicted of possession of cocaine in an amount equal to or
exceeding 100 grams in violation of R.C. 2925.11, which provides in pertinent part:
(A) No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.
***
(C) Whoever violates division (A) of this section is guilty of
one of the following:
***
(4) If the drug involved in the violation is cocaine or a
compound, mixture, preparation, or substance containing
cocaine, whoever violates division (A) of this section is guilty
of possession of cocaine. The penalty for the offense shall be
determined as follows:
***
(f) If the amount of the drug involved equals or exceeds one
hundred grams of cocaine, possession of cocaine is a felony of
the first degree * * *.
{¶ 113} "Knowingly" is defined in R.C. 2901.22(B):
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.
No. 14AP-79 34
{¶ 114} "Possession" is defined in R.C. 2925.01(K):
"Possess" or "possession" means 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.
{¶ 115} Appellant does not dispute that the substance found in his storage unit was
cocaine in an amount exceeding 100 grams. Rather, appellant argues that appellee
presented insufficient evidence on the elements of knowledge and possession. Appellant
contends the only proof offered by appellee on these elements was appellant's possession
of a business card which included an access code to the storage facility, keys to the storage
unit where the cocaine was found, and his presence at the storage unit on the day of the
search. Appellant maintains that while the evidence undisputedly established that
appellant rented the storage unit, appellee presented no evidence that he actually
accessed it and deposited the cocaine inside.
{¶ 116} " 'Possession of a controlled substance may be actual or constructive.' "
State v. Saunders, 10th Dist. No. 13AP-668, 2014-Ohio-1746, ¶ 18, quoting State v.
Pilgrim, 184 Ohio App. 3d 675, 2009-Ohio-5357, ¶ 27 (10th Dist.). " 'A person has actual
possession of an item when it is within his immediate physical control.' " Id., quoting
Pilgrim at ¶ 27. " 'Constructive possession exists when a person knowingly exercises
dominion and control of an object, even though the object may not be within the person's
immediate physical possession.' " Id., quoting Pilgrim at ¶ 27. " '[T]he surrounding facts
and circumstances, including the defendant's actions, constitute evidence from which the
trier of fact can infer whether the defendant had constructive possession over the subject
drugs.' " Id., quoting Pilgrim at ¶ 28, citing State v. Stanley, 10th Dist. No. 06AP-323,
2007-Ohio-2786, ¶ 31. Inherent in a finding of constructive possession is the
determination that a defendant had knowledge of the items purportedly possessed. State
v. Alexander, 8th Dist. No. 90509, 2009-Ohio-597, ¶ 24.
{¶ 117} As noted above, the evidence presented by appellee established that a valid
search of appellant's home on January 31, 2012 resulted in the discovery of a large
amount of cash, along with digital scales that contained cocaine residue. One day later, on
February 1, 2012, appellant rented a storage unit and, pursuant to that rental, was
No. 14AP-79 35
provided an access code to the storage facility and keys to the locks on the unit. On
February 3, 2012, appellant was involved in a traffic stop during which police arrested
him for drug possession and discovered a business card identifying the access code to the
facility and the number of a particular storage unit within the storage facility. A trained
narcotics detection dog alerted to the scent of narcotics in the storage unit, and police
safeguarded the unit pending issuance of a search warrant.
{¶ 118} While police awaited the search warrant, appellant drove into the storage
facility and proceeded to the unit he had rented two days earlier. When he encountered a
police officer who identified himself as such, appellant attempted to flee the storage
facility but was apprehended at the front gate. The police eventually executed the search
warrant on appellant's storage unit and found cocaine, firearms, and cash inside.
Pursuant to subsequent laboratory analyses, it was determined that the cocaine weighed
138 grams, and the firearms were operable.
{¶ 119} Based on the surrounding facts and circumstances, including appellant's
actions, a reasonable jury could conclude that appellant, following execution of the search
warrant at his home, rented the storage unit for the purpose of concealing cocaine. A
reasonable jury could further conclude that following the traffic stop during which police
discovered a business card identifying an access code to the storage facility, appellant
went to the storage unit to retrieve the cocaine he had placed there in order to avoid
detection by the police. The fact that cocaine was discovered in the storage unit he rented
demonstrates that he exercised dominion and control over it, even though it was not
within his immediate physical possession at the time of his arrest. Viewing the evidence
in a light most favorable to appellee, we conclude that appellant's conviction for cocaine
possession was supported by legally sufficient evidence.
{¶ 120} Appellant was also found guilty of violating R.C. 2923.13(A)(2), WUD,
which provides in part:
Unless relieved from disability as provided in section 2923.14
of the Revised Code, no person shall knowingly acquire, have,
carry, or use any firearm or dangerous ordnance, if any of the
following apply:
***
No. 14AP-79 36
The person is under indictment for or has been convicted of
any felony offense of violence.
{¶ 121} In order to "have" a firearm under R.C. 2923.13, one must either actually or
constructively possess the firearm. Dorsey at ¶ 32. " 'Actual possession requires
ownership and, or, physical control.' " State v. Williams, 10th Dist. No. 97APA02-255
(Sept. 30, 1997), quoting State v. Hardy, 60 Ohio App. 2d 325, 327 (8th Dist.1978).
"[A]ctual possession may be inferred when the defendant has exercised dominion and
control over the area in which the firearm is found." Id. "Constructive possession of a
firearm exists when a defendant knowingly has the power and intention at any given time
to exercise dominion and control over a firearm, either directly or through others."
Dorsey at ¶ 32.
{¶ 122} Given that the cocaine and firearms were discovered in appellant's storage
unit at the same time, the same evidence that supports the conclusion that he knowingly
possessed the cocaine also supports the conclusion that he knowingly "had" the firearms.
At trial, appellant stipulated that he had a previous conviction for a felony drug abuse
offense. Appellant also stipulated to the operability of the firearms. Viewing the evidence
in a light most favorable to appellee, we conclude that appellant's WUD conviction was
supported by legally sufficient evidence.
{¶ 123} The seventh assignment of error is overruled.
4. Eighth Assignment of Error–Manifest Weight of the Evidence
{¶ 124} In his eighth assignment of error, appellant contends his cocaine possession
and WUD convictions are against the manifest weight of the evidence. We disagree.
{¶ 125} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court acts as a "thirteenth juror." Under this standard of review, an
appellate court weighs the evidence in order to determine whether 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." Thompkins at 387. However, in engaging in this
weighing, an appellate court must bear in mind the factfinder's superior, first-hand
perspective in judging the demeanor and credibility of witnesses. See State v. DeHass, 10
Ohio St. 2d 230 (1967), paragraph one of the syllabus. The power to reverse on manifest-
No. 14AP-79 37
weight grounds should only be used in exceptional circumstances when "the evidence
weighs heavily against the conviction." Thompkins at 387.
{¶ 126} A defendant is not entitled to a reversal on manifest-weight grounds merely
because inconsistent evidence was offered at trial. State v. Campbell, 10th Dist. No.
07AP-1001, 2008-Ohio-4831. " '[W]hile the [factfinder] may take note of the
inconsistencies and resolve or discount them accordingly, * * * such inconsistencies do
not render defendant's conviction against the manifest weight or sufficiency of the
evidence.' " State v. Samatar, 152 Ohio App. 3d 311, 2003-Ohio-1639, ¶ 113 (10th Dist.),
quoting State v. Craig, 10th Dist. No. 99AP-739 (Mar. 23, 2000).
{¶ 127} Appellant presents a three-fold manifest-weight argument. Appellant first
maintains that the evidence at trial suggested that at least one other person, namely
Wiggins, had access to the storage unit and thus could have deposited the cocaine,
firearms, and cash inside. Appellant notes that Wiggins was permitted to drive
appellant's car from the scene following appellant's arrest in the early morning hours of
February 3, 2012, and the key ring containing the car keys also contained keys to the
storage unit where the cocaine, firearms, and cash were found. Appellant posits that
Wiggins could have accessed the storage facility and deposited the contraband inside
while appellant was in custody.
{¶ 128} Appellant's argument regarding Wiggins' potential access of the storage unit
is speculative. The evidence established that in order to place items into the storage unit,
an individual must have had access to both the storage facility and the individual storage
unit. Following appellant's arrest in the early morning hours of February 3, 2012, police
photocopied the business card that included the access code to the storage facility and
returned it to appellant. As the card with the access code was in appellant's possession,
Wiggins could not have accessed the storage facility while appellant was in custody.
Appellant does not argue, and no evidence suggests, that Wiggins was aware of the access
code prior to appellant's arrest. Further, the evidence presented did not establish that the
keys to the storage unit were on appellant's key ring when Wiggins drove appellant's car
following the traffic stop. Rather, the evidence only demonstrated that the keys were
present on the key ring when appellant was detained at the storage facility later than day.
No. 14AP-79 38
{¶ 129} Appellant secondly contends that Grinstead's cross-examination testimony
establishing that he did not ask storage facility personnel to whom facility access codes
were provided or how many storage unit keys existed created a reasonable inference that
someone other than appellant may have had access to the storage unit and placed the
contraband inside. Appellant's argument is speculative, however, and the jury apparently
disregarded it on that basis. The mere possibility that others may have had access to the
storage unit does not, by itself, preclude the jury from finding appellant guilty beyond a
reasonable doubt, particularly given the evidence that appellant rented the storage unit
one day after execution of a search warrant at his home which resulted in the discovery of
cocaine residue and drug paraphernalia.
{¶ 130} Finally, appellant points to the undisputed testimony elicited from
Grinstead on cross-examination that he did not request any scientific testing, such as
fingerprinting, on the storage unit locks or the firearms and cocaine discovered inside the
storage unit. Appellant contends that the lack of physical evidence connecting him to the
storage unit and contraband contained therein renders his convictions against the
manifest weight of the evidence. We note initially that Grinstead testified he did not
request fingerprint analysis of the evidence recovered from the storage unit because the
unit was registered to appellant. Moreover, appellant cites no authority, and we find
none, establishing that the lack of such evidence mandates the reversal of a conviction as
against the manifest weight of the evidence.
{¶ 131} In the present case, the jury did not lose its way simply because it chose to
believe appellee's witnesses and version of the events. Appellant thoroughly cross-
examined appellee's witnesses and elicited potentially discrediting testimony regarding
appellee's case. However, the credibility of appellee's witnesses and the weight to be given
to their testimony, including that elicited on cross-examination, were matters for the jury
to resolve. DeHass at paragraph one of the syllabus. Reviewing the record as a whole, we
cannot say that the evidence weighed heavily against appellant's convictions or that a
manifest miscarriage of justice occurred.
{¶ 132} The eighth assignment of error is overruled.
No. 14AP-79 39
5. Ninth Assignment of Error–Cumulative Effect of Trial Errors
{¶ 133} In his ninth assignment of error, appellant contends the trial court
"committed critical errors in procedure and evidentiary rulings in which the cumulative
effect denied him due process of law and a fair trial." (Appellant's Brief, 25.)
{¶ 134} Appellant first argues the trial court erroneously permitted hearsay
testimony to be admitted. Decisions regarding the admissibility of evidence are within the
discretion of the trial court. Alternatives Unlimited-Special, Inc. v. Ohio Dept. of Edn.,
10th Dist. No. 12AP-647, 2013-Ohio-3890, ¶ 48, citing Banford v. Aldrich Chem. Co., Inc.,
126 Ohio St. 3d 210, 2010-Ohio-2470, ¶ 38. An appellate court will uphold such a decision
absent an abuse of discretion. Id. Moreover, even in the event of an abuse of discretion,
an appellate court cannot reverse the judgment unless the abuse materially prejudiced the
complaining party. Id.
{¶ 135} 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." Evid.R. 801(C). Generally, hearsay is inadmissible unless it falls within an
exception. Evid.R. 802.
{¶ 136} In the first of two allegations regarding impermissible hearsay admission,
appellant contends the trial court erred in permitting Adams to repeat Wiggins' hearsay
statement as to who owned the cocaine found in appellant's vehicle.
{¶ 137} On cross-examination, defense counsel elicited testimony from Adams that
although the cocaine found in the vehicle was accessible to both appellant and Wiggins, he
arrested only appellant. On redirect examination, the prosecutor asked Adams why he
chose to arrest appellant and not Wiggins. Adams responded, "[i]t was Mr. Phillips' car.
Both men said it wasn't theirs'. The cocaine, that is, wasn't theirs'." (Dec. 11, 2013 Tr.
458-59.) Defense counsel objected, in his words, "as a prophylactic method." (Emphasis
added.) (Dec. 11, 2013 Tr. 459.) Defense counsel's phraseology suggests that the
objection was lodged as a means of preventing further, similar testimony from Adams,
rather than in response to what he had just said.
{¶ 138} After excusing the jury, the trial court questioned Adams about why he
arrested appellant and not Wiggins. Adams averred he did so because both he and
Wiggins denied ownership of the cocaine and because of appellant's previous criminal
No. 14AP-79 40
history involving drugs found in his vehicle. The latter statement was based on "notes"
from other law enforcement agencies Adams had accessed during his LEADS check.
Thereafter, the parties and the trial court engaged in a discussion about these "notes,"
following which the trial court told Adams he could respond to the prosecutor's question
in the following manner, "[g]iven the hearsay information that I received, I chose to arrest
the defendant." (Dec. 11, 2013 Tr. 464.)
{¶ 139} After the jury returned, the trial court overruled the objection and permitted
the prosecutor to re-ask Adams why he had arrested appellant and not Wiggins. In
accordance with the trial court's instruction, Adams responded, "[b]ased on the hearsay
with which I was provided." (Dec. 11, 2013 Tr. 465.) Given the "prophylactic" nature of
defense counsel's objection and the fact that Adams did not provide further testimony
about Wiggins' statement, we find no error in the admission of the testimony.
{¶ 140} Appellant secondly contends the trial court erred in permitting Grinstead to
testify about statements made to him by storage facility personnel, which, according to
appellant, were offered to establish that no one accessed appellant's storage unit while
appellant was in jail following the early morning traffic stop.
{¶ 141} On cross-examination, defense counsel, in an effort to challenge the
reliability and thoroughness of law enforcement's investigation and, more particularly,
their focus on appellant rather than Wiggins or Green, elicited testimony from Grinstead
establishing that he failed to ask storage facility personnel if they maintained security
video for the premises, if access codes or keys were made available to multiple persons,
whether they had ever seen Wiggins or Green, or how long the front gate of the facility
remains open after an individual inputs the access code.
{¶ 142} On redirect examination, the prosecutor asked Grinstead what storage
facility personnel told him about the access code. Defense counsel objected on hearsay
grounds, and following a bench discussion, the trial court overruled the objection and
permitted the prosecutor to rephrase the question. The prosecutor then asked,
"Detective, for the purposes of your investigation, what was the response by the facility
management as to when that code was accessed or used?" (Dec. 12, 2013 Tr. 589.)
Grinstead responded that the code was accessed twice on February 1 and not at all on
February 2 and 3. The prosecutor then asked Grinstead if the information provided was a
No. 14AP-79 41
factor in his decision not to further investigate. Grinstead responded in the affirmative.
Defense counsel did not object to these questions or the responses thereto.
{¶ 143} The trial court then instructed the jury that Grinstead's testimony about
what security facility personnel told him, while technically hearsay, was permitted under
an exception allowing an out-of-court statement made not for its truth, but to explain a
police officer's investigative process. Thereafter, the prosecutor asked Grinstead "if the
facility said that that code was accessed at 2:30 a.m. that morning when [appellant] was in
the Whitehall Police Department, would that have been important to you?" (Dec. 12, 2013
Tr. 591.) Grinstead answered "yes," and thereafter averred that such information had not
been provided to him. (Dec. 12, 2013 Tr. 591.) Defense counsel did not object to the
question or the response.
{¶ 144} Appellant argues that Grinstead's testimony was not offered to explain his
investigative actions, but, rather, for the truth of the matter, i.e., that no one accessed
appellant's storage unit while he was in jail. Appellee argues that Grinstead's statement
was offered solely to explain his conduct while investigating the crime, that is, to
demonstrate that no additional investigation was necessary. Generally, out-of-court
statements offered to explain a police officer's conduct while investigating a crime, rather
than for their truth, are not hearsay. State v. Thomas, 61 Ohio St. 2d 223, 232 (1980).
However, where out-of-court statements are admitted merely to explain a police officer's
conduct during the course of an investigation, "the potential for abuse in admitting such
statements is great." State v. Blevins, 36 Ohio App. 3d 147, 149 (10th Dist.1987). Indeed,
the issue presented by these circumstances regards the purpose for the testimony,
whether it was offered for the truth of the matter asserted or to explain Grinstead's
conduct.
{¶ 145} Given the potential for abuse, this court has imposed certain conditions
before such statements may be admitted. State v. Faris, 10th Dist. No. 93APA08-1211
(Mar. 24, 1994); State v. Humphrey, 10th Dist. No. 07AP-837, 2008-Ohio-6302, ¶ 11.
Specifically, (1) the conduct to be explained must be relevant, equivocal, and
contemporaneous with the out-of-court statement, and (2) the out-of-court statement
must meet the standard of Evid.R. 403(A); that is, the evidence must be excluded if its
probative value is substantially outweighed by the dangers of unfair prejudice, confusion
No. 14AP-79 42
of the issues or misleading the jury, even if it is relevant. Id., citing Blevins. "[W]hen the
statements connect the accused with the crime charged, they should generally be
excluded." Id.
{¶ 146} As these conditions relate to the present appeal, the conduct to be explained
involves Grinstead's investigation. Appellee argues Grinstead's conduct was relevant,
equivocal, and contemporaneous with the statement made to him by the security facility
personnel. We agree. Based on the information obtained from the storage facility
personnel indicating that appellant's access code had not been used while he was in jail
after his arrest, Grinstead focused his investigation on the person who rented the storage
unit, i.e., appellant. Indeed, Grinstead testified that if he had been informed that the
storage unit had been accessed while appellant was in jail, such information would have
been important to him in his investigation. We perceive this testimony to mean that
Grinstead would have concentrated his investigative efforts on someone other than
appellant. We thus find no error in the admission of the testimony.
{¶ 147} Appellant lastly contends the trial court exhibited a "disturbing pattern of
interrupting and embarrassing defense counsel before the jury." (Appellant's Brief, 26.)
Appellant suggests that the trial court's conduct demonstrated a bias against him which
ultimately resulted in jury prejudice against him.
{¶ 148} While a trial court has authority to control the proceedings during a
criminal trial, including limiting the introduction of evidence and argument of counsel to
relevant and material matters, the trial court also has an affirmative duty to prevent bias
or prejudice against the defendant or the denial of a fair trial. State v. Johnson, 134 Ohio
App.3d 586, 590 (1st Dist.1999). In effecting this duty, the trial court must be aware of its
comments upon the jurors, as they are "highly sensitive" to the trial court's "every
utterance." Id., citing State v. Wade, 53 Ohio St. 2d 182, 187-88 (1978).
{¶ 149} In Wade, the Supreme Court of Ohio set forth the standard to be applied in
determining whether a trial court's comments reflect bias or impartiality:
(1) The burden of proof is placed upon the defendant to
demonstrate prejudice, (2) it is presumed that the trial judge
is in the best position to decide when a breach is committed
and what corrective measures are called for, (3) the remarks
are to be considered in light of the circumstances under which
No. 14AP-79 43
they are made, (4) consideration is to be given to their
possible effect upon the jury, and (5) to their possible
impairment of the effectiveness of counsel.
Id. at 188.
{¶ 150} The Wade court further stated that the accused must object to the
comments in order to provide the trial court an opportunity to correct the error by a
curative instruction or otherwise. Id. The failure to object waives all but plain error. Id.
{¶ 151} Appellant argues the trial court was "unnecessarily curt" with defense
counsel on "several occasions." (Appellant's Brief, 26.) In his first example, the parties
and the trial court, out of the presence of the jury, were engaged in the aforementioned
bench discussion regarding the "notes" Adams had accessed during his LEADS check. As
the court was making a point about this issue, defense counsel interjected, "[t]hat's right,"
and the court responded, "[t]hank you. I don't need your comments." (Dec. 11, 2013 Tr.
463.) Because the jury was not present for the discussion, the court's comment could not
have prejudiced appellant.
{¶ 152} Appellant's second example occurred during defense counsel's recross-
examination of Wilder regarding the adequacy of the investigation into Wiggins and
Green. The following exchange occurred:
Q. And it was adequate not to make any effort to go out to
their homes to see if they had any evidence in this case? That
was adequate?
A. I'm not aware if that was done or not.
Q. Well, pull up. That's not what I'm asking you. I'm asking
you was that adequate to you?
A. I'm not aware if that was done or not.
Q. Let's assume it's not done.
A. Okay.
Q. Is that adequate?
A. It would depend on the entire circumstances of the case.
No. 14AP-79 44
Q. I get where this is going. Thanks.
THE COURT: Strike the comment. The jury will disregard
the comment.
I really don't like attorneys on either side speechifying. Knock
it off.
(Dec. 11, 2013 Tr. 540-41.)
{¶ 153} Initially, we interpret the trial court's averment that it would not tolerate
"speechifying" by attorneys on either side a clear indication that the court was not biased
against appellant. In addition, defense counsel did not object to the comment; thus, the
trial court was not provided the opportunity to take curative measures. Thus, we cannot
conclude that the comment rose to the level of plain error such that the outcome of the
trial would have been different had the trial court not made it. Crim.R. 52(B); Jenks at
282.
{¶ 154} Appellant also contends the trial court "lectured and embarrassed defense
counsel about leaving an easel and pad out." (Appellant's Brief, 27.) Although the record
is not entirely clear on this point, it appears that during cross-examination of Grinstead,
defense counsel made some written notations on a paper attached to an easel which
outlined to the jury the reasons Grinstead's investigation was inadequate. At the close of
cross-examination, the following exchange occurred:
THE COURT: Okay. Excuse me.
Counsel?
MR. ROBEY: I'm sorry.
THE COURT: We don't leave them sitting up.
MR. ROBEY: Okay.
THE COURT: And you know that. Please put it away.
Redirect please.
MR. ROBEY: I wasn't sure if he wanted to use it.
THE COURT: If he does, he'll ask.
No. 14AP-79 45
MR. ROBEY: Got it.
(Dec. 12, 2013 Tr. 585.)
{¶ 155} Contrary to appellant's contention, the trial court's comments did not
constitute a "lecture." Further, because defense counsel did not object to the court's
statements, the trial court had no opportunity to take corrective action. Accordingly, we
cannot find that the comments rose to the level of plain error such that the outcome of the
trial would have been different had the trial court not made them.
{¶ 156} The ninth assignment of error is overruled.
6. Tenth Assignment of Error–Jury Instructions
{¶ 157} In his tenth assignment of error, appellant contends the trial court erred by
instructing the jury on flight and aiding and abetting and by failing to give his "theory of
defense instruction." (Appellant's Brief, 27.)
{¶ 158} Our analysis begins with a review of Crim.R. 30(A), which provides in
pertinent part that "[a]t the close of the evidence or at such earlier time during the trial as
the court reasonably directs, any party may file written requests that the court instruct the
jury on the law as set forth in the requests. * * * The court shall inform counsel of its
proposed action on the requests prior to counsel's arguments to the jury." The rule
further provides that "[o]n appeal, a party may not assign as error the giving or the failure
to give any instructions unless the party objects before the jury retires to consider its
verdict, stating specifically the matter objected to and the grounds of the objection."
{¶ 159} The record reveals that, prior to appellee resting its case and outside the
presence of the jury, the trial court discussed its proposed jury instruction on aiding and
abetting. The trial court averred that such an instruction was proper even if the defendant
was charged in the indictment as a principal rather than a complicitor, as long as the facts
of the case reasonably supported such an instruction. Concluding that the evidence in the
present case reasonably supported such an instruction, the trial court resolved to include
it. Defense counsel did not object at this point in the proceedings.
{¶ 160} During this same discussion, the trial court averred that it found appellant's
proposed "theory of defense" instruction to be improper, as it was "more of an argument"
No. 14AP-79 46
that would be "absolutely fair game on closing argument." (Dec. 12, 2013 Tr. 611.) Again,
defense counsel lodged no objection at this point in the proceedings.
{¶ 161} Following closing arguments, the trial court provided the following jury
instruction on flight: "There has been an assertion of flight of the defendant as part of the
evidence in this trial. Flight, if you find that it occurred, does not in and of itself raise a
presumption of guilt but unless there is a satisfactory explanation for it, you may consider
it in determining whether consciousness of guilt or a guilty connection with the crime
existed." (Dec. 12, 2013 Tr. 657.)
{¶ 162} Later in the charge, the trial court provided the following instruction on
aiding and abetting: "Regarding Count 1, you may also consider whether the state has
proven, again beyond a reasonable doubt, that the defendant acted as an aider and
abettor." (Dec. 12, 2013 Tr. 663.) The court continued, "[a]n aider or abettor is someone
who shares the same degree of criminal intent or culpability as the principal offender
where the aider or abettor supports, assists, encourages, cooperates with, or incites the
criminal to commit an offense. Evidence of aiding and abetting may be shown by either
direct or circumstantial evidence, and participation in criminal intent may be inferred
from presence, companionship, and conduct before, during, or after the offense is
committed." (Dec. 12, 2013 Tr. 663-64.) The court continued, "[n]ow, the mere presence
of an accused at the scene of the crime is not sufficient to prove in and of itself that the
accused was an aider and abettor. And as a matter of law, a principal offender and an
aider and abettor are equally culpable if you find that the offense was committed."
(Dec. 12, 2013 Tr. 664.)
{¶ 163} After the jury was charged, the trial court asked whether the parties had any
objections to the instructions as provided. Defense counsel stated, "[w]e would object to
the flight instruction. We would object to the aiding and abetting instruction. * * * We
would ask for our theory of defense instruction on insufficient investigation." (Dec. 12,
2013 Tr. 671.) The trial court overruled these objections, noting that "I think the record is
clear on that." (Dec. 12, 2013 Tr. 671.)
{¶ 164} Pursuant to Crim.R. 30(A), an objection to a jury instruction should be
made after the instruction is given but before the jury retires. State v. Robinson, 4th Dist.
No. 94CA2277 (Oct. 24, 1995), citing State v. Wolons, 44 Ohio St. 3d 64, 67 (1989). In
No. 14AP-79 47
addition, an objection to a jury instruction must also be specific. Id., citing Wolons.
"Where a general objection to 'every part' of an instruction is offered, the specific
objection requirement of Crim.R. 30(A) is not met. * * * The purpose of these two
requirements is to bring any error to the attention of the trial court so that it may provide
a specific curative instruction to the jury before the jury commences deliberations and to
provide a complete record for appellate review." Id.
{¶ 165} Noncompliance with Crim.R. 30(A) waives all but plain error. Id. "A jury
instruction does not constitute plain error unless, but for the error, the verdict would have
been otherwise." State v. Philpot, 10th Dist. No 03AP-758, 2004-Ohio-5063, ¶ 21,
quoting State v. Long, 53 Ohio St. 2d 91 (1978).
{¶ 166} The flight instruction related to appellant's attempt to leave the storage
facility after Wilder positioned his cruiser next to appellant's vehicle, displayed his police
shield, ordered him to put his hands in the air, and drew his service weapon. We first
note that after the jury charge was read, appellant lodged only a general objection to the
flight instruction. Further, he does not challenge the substance of the instruction on
appeal. Thus, appellant has waived all but plain error.
{¶ 167} On appeal, appellant argues that the flight instruction lacked proper factual
support because a reasonable inference was that appellant fled the area because he
believed he was going to be robbed or shot, given that Wilder was dressed in plain clothes
and was in an unmarked police vehicle when he pointed his service weapon at him.
However, given the evidence in the case, a competing reasonable inference existed that
appellant fled the scene because he was aware that his storage unit contained cocaine and
firearms and he did not want to be apprehended by the police. A flight instruction is
proper " 'if sufficient evidence exists in the record to support the charge.' " State v. Bass,
10th Dist. No 12AP-622, 2013-Ohio-4503, ¶ 27, quoting State v. Lozada, 8th Dist. No.
94902, 2011-Ohio-823, ¶ 17. The instruction informed the jury that it could consider
appellant's flight in determining consciousness of guilt. Thus, the jury was free to
consider other reasons for appellant's conduct, including, as he now argues, that he fled in
fear for his safety. No error, plain or otherwise, occurred in the trial court's giving of the
flight instruction.
No. 14AP-79 48
{¶ 168} Appellant next contends the aiding and abetting instruction was improper
because "neither the indictment nor a bill of particulars put [him] on notice of an aiding
and abetting theory." (Appellant's Brief, 28.) Appellant argues that appellee did not put
forth any evidence of "overt acts by other alleged offenders" and sought the instruction
only to counter defense arguments set forth at trial. (Appellant's Brief, 28.)
{¶ 169} We first note that appellant did not object when the trial court initially
discussed its proposed jury instruction on aiding and abetting, and appellant only lodged
a general, rather than a specific, objection to the instruction after it was provided to the
jury. Thus, he has waived all but plain error. Robinson, 4th Dist. No. 94CA2277.
{¶ 170} Generally, an accused has aided or abetted an offense if he has supported,
assisted, encouraged, cooperated with, advised or incited another person to commit the
offense. See State v. Johnson, 93 Ohio St. 3d 240 (2001), syllabus. " 'Participation in
criminal intent may be inferred from presence, companionship and conduct before and
after the offense is committed.' " State v. Mendoza, 137 Ohio App. 3d 336, 342 (3d
Dist.2000), quoting State v. Stepp, 117 Ohio App. 3d 561, 568-69 (4th Dist.1997).
{¶ 171} R.C. 2923.03(A)(2) provides in pertinent part that "[n]o person, acting with
the kind of culpability required for the commission of an offense, shall * * * [a]id or abet
another in committing the offense." Further, "[a] charge of complicity may be stated in
terms of this section, or in terms of the principal offense." R.C. 2923.03(F).
{¶ 172} In State v. Perryman, 49 Ohio St. 2d 14 (1976), the Supreme Court of Ohio
held at paragraph five of the syllabus that "[w]hen the evidence adduced at trial could
reasonably be found to have proven the defendant guilty as an aider and abettor, a jury
instruction by the trial court on that subject is proper." In Perryman, the bill of
particulars filed by the state implicated the defendant as the principal perpetrator of a
murder. The state also consistently argued at trial that Perryman was the principal.
However, in his defense, Perryman presented witnesses who only implicated him as an
aider and abettor.
{¶ 173} Perryman argued that once the state particularized his involvement as a
principal, it could not shift its theory of criminal responsibility to that of an aider and
abettor. The court held that the indictment as principal performed the function of
providing legal notice of the charge to Perryman. Id. Accordingly, since Perryman had
No. 14AP-79 49
raised evidence as to aiding and abetting, a jury instruction as to aiding and abetting was
proper. Id.
{¶ 174} Since Perryman was decided, Ohio appellate courts, including this court,
have specifically held that a trial court may properly instruct a jury that the defendant
may be found guilty as an aider and abettor even though he was indicted as a principal,
rather than under the complicity statute. See, e.g., State v. Tumbleson, 105 Ohio App. 3d
693 (12th Dist.1995); State v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-7037;
State v. Sims, 10th Dist. No. 96APA05-676 (Feb. 20, 1997); State v. Williams, 10th Dist.
No. 93AP-494 (Nov. 18, 1993); State v. Wetherby, 5th Dist. No. 12-CA-69, 2013-Ohio-
3442.
{¶ 175} In the present case, appellant was detained at the storage facility with
Wiggins and Green. Throughout the trial, appellant's cross-examination of appellee's
witnesses implied that either Wiggins or Green, or both, may have been responsible for
the cocaine, firearms, and cash found in appellant's storage unit. Based on the evidence
elicited by appellant, the jury could have reasonably concluded that appellant was acting
as an aider or abettor to either Wiggins or Green as principal. Thus, the trial court's jury
instruction as to aiding and abetting was proper. No error, plain or otherwise, occurred.
{¶ 176} Finally, appellant contends the trial court should have incorporated his
"theory of defense" instruction as part of the jury charge. Appellant cites State v. Barron,
170 Ohio St. 267 (1960), for the general proposition that special instructions reduced to
writing, which are correct, pertinent to the issues and timely presented, must be included
at least in substance in the general charge. Id. at 267. Appellant contends his "theory of
defense" instruction satisfied this criteria, and the trial court erred in refusing to include
it. Appellant maintains that if this instruction had been properly administered, the
outcome of the trial would have been different.
{¶ 177} Prior to the commencement of trial, appellant filed a written request that
the trial court include the following instruction in its charge to the jury:
In deciding the credibility of law enforcement officers, you
may consider whether or not they performed a thorough and
complete investigation. If you find they failed to do [so], you
may consider this in your evaluation of their credibility.
No. 14AP-79 50
(Dec. 5, 2013 Request for Theory of Defense Instruction, 4.)
{¶ 178} As noted above, the trial court refused to provide the instruction, finding it
to be in the nature of an argument that defense counsel could raise during closing
arguments. We review the trial court's refusal to give a requested jury instruction for an
abuse of discretion under the facts and circumstances of the case. State v. Harris, 10th
Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 29, citing State v. Jennings, 10th Dist. No. 09AP-
70, 2009-Ohio-6840, ¶ 59.
{¶ 179} Appellant has failed to provide any specific legal authority establishing that
a trial court must instruct the jury as to the alleged inadequacy of a police investigation.
Further, the jury charge included instructions regarding the jury's responsibility to
evaluate and determine witness credibility. We presume the jury followed this
instruction. McKinney at ¶ 15. Moreover, appellant has failed to provide any argument
as to why the outcome of the trial would have been different had the proposed instruction
been given. Throughout his cross-examination and during closing argument, appellant
emphasized to the jury his theory that the law enforcement officers involved in the
present case did not perform a thorough and complete investigation. Accordingly, we
cannot find that the trial court abused its discretion in failing to provide the proposed
instruction.
{¶ 180} The tenth assignment of error is overruled.
D. Eleventh Assignment of Error–Sentencing
{¶ 181} In his eleventh assignment of error, appellant challenges the trial court's
imposition of consecutive sentences on his cocaine possession and WUD convictions.
Appellant contends the record does not support the imposition of consecutive sentences,
and the trial court did not give "detailed information" to support the consecutive
sentences. (Appellant's Brief, 29.) In support of his arguments, appellant directs this
court to R.C. 2929.14(C)(4).
{¶ 182} Because appellant did not challenge the trial court's imposition of
consecutive sentences at his sentencing hearing, we may reverse appellant's sentence only
if it constitutes plain error. State v. Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 7.
No. 14AP-79 51
{¶ 183} Pursuant to R.C. 2929.14(C)(4), when a trial court sentences a defendant to
consecutive sentences for multiple offenses, it must make specific findings of fact. In
relevant part, the statute 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 * * * 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.
{¶ 184} The trial court is required under R.C. 2929.14(C)(4) to make three findings
before imposing consecutive sentences: " '(1) that consecutive sentences are necessary to
protect the public from the future crime or to punish the offender; (2) 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 (3) that one of the subsections (a), (b), or (c)
apply.' " Id. at ¶ 12, quoting State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162,
¶ 76.
{¶ 185} When imposing consecutive sentences, a trial court is not required to
provide reasons for its findings; rather, a trial court is only required to make the findings
required by R.C. 2929.14(C)(4). State v. Zonars, 10th Dist. No. 13AP-735, 2014-Ohio-
No. 14AP-79 52
2023, ¶ 32, citing State v. Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 19. See
also State v. Sullivan, 10th Dist. No. 11AP-414, 2012-Ohio-2737, ¶ 24 (R.C. 2929.14(C)(4)
"requires findings before imposing consecutive terms, but not reasons for imposing said
terms." (Emphasis sic.)
{¶ 186} At appellant's sentencing hearing, the trial court made the findings required
by R.C. 2929.14(C)(4). The court specifically found that "the consecutive sentence is
necessary to protect the public from future crime and that it is not disproportionate to the
seriousness of the conduct that has been involved here and to the danger that you pose to
the public based on all the facts of this case and that your history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from future
crime by you." (Jan. 9, 2014 Tr. 29.) Further, contrary to appellant's contention, the
record supports the trial court's findings. Appellant was apprehended in possession of a
significant amount of cocaine and two operable firearms. Appellant, in his early twenties
at the time he committed the offenses, already had an extensive criminal history. In
addition, he committed the instant offenses while on probation.
{¶ 187} Because the record establishes the trial court made the findings required by
R.C. 2929.14(C)(4) prior to imposing consecutive sentences on appellant's multiple
offenses, and because the record supports those findings, no error, plain or otherwise,
occurred.
{¶ 188} Appellant's eleventh assignment of error is overruled.
IV. CONCLUSION
{¶ 189} Having overruled appellant's 11 assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and O'GRADY, JJ., concur.
_____________________________