State v. Stephens , 2022 Ohio 2944 ( 2022 )

[Cite as State v. Stephens, 2022-Ohio-2944.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 21CA0068
:
ANTOINE STEPHENS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 20CR364
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 22, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CLIFFORD J. MURPHY THOMAS F. HAYES
ASST. LICKING CO. PROSECUTOR EMILY D. ANSTAETT
20 North Second St. 65 E. Livingston Ave.
4th Floor Columbus, OH 43215
Newark, OH 43055
PAUL GIORGIANNI
1538 Arlington Ave.
Columbus, OH 43212-2710
Licking County, Case No. 21CA0068 2
Delaney, J.
{¶1} Appellant Antoine Stephens appeals from the August 19, 2021 Judgment
Entry of the Licking County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following evidence is adduced from the record of appellant’s jury trial.
{¶3} Detective Greg Collins of the Licking County Sheriff’s Office testified about
the practices of the Central Ohio Drug Enforcement (CODE) Task Force, which is an
inter-agency law enforcement effort that interdicts drug trafficking. Generally an
investigation starts with a tip or complaint; CODE members then perform surveillance of
a target location, observe traffic patterns, perform traffic stops of individuals leaving the
location, and generally gather information. Sometimes those traffic stops result in a “dirty
stop,” in which narcotics are found on an individual or in a vehicle. That individual is then
sometimes given the opportunity to “help themselves out” by providing CODE with
information about the location and/or purchasing narcotics as a confidential informant
(CI).
{¶4} Collins testified CIs are generally developed from individuals found with a
small amount of narcotics on them, which would be a lower-level felony. If the person
has a “decent record,” meaning relatively few criminal convictions, law enforcement will
approach the prosecutor’s office on their behalf and a contract is created in which the CI
agrees to participate in “controlled buys” of narcotics in exchange for reduced charges.
Law enforcement and the CI become parties to the contract, which spells out what charge
the CI is facing and what the outcome of reducing the criminal charge might be.
Licking County, Case No. 21CA0068 3
{¶5} The instant case arose on July 17, 2020 with the traffic stop of a CI known to
Detective Kyle Boerstler, the lead investigator on this case. The CI provided useful
information to Boerstler in the past. Notably, this CI would never appear at trial in the
instant case because he was murdered.
{¶6} On July 17, 2020, the CI identified appellant as a potential target for
investigation and claimed he could buy two pounds of methamphetamine from him. The
CI pulled up a Facebook photo of appellant and Boerstler confirmed the identification with
a photo from OLEG. Boerstler learned the CI knew appellant in prison, and the CI
revealed text messages detailing an extensive history of drug dealing transactions with
appellant.
{¶7} The goal of the ensuing investigation was to buy two pounds of
methamphetamine from appellant. Collins supervised three recorded telephone calls
between appellant and the CI discussing the transaction. The CI identified the person on
the phone during the calls as appellant. The CI also exchanged text messages with a
person identified on the CI’s phone as “Antoine Stephens, AKA Black.”
{¶8} The recorded phone calls established a plan in which appellant agreed to
deliver two pounds of methamphetamine to the CI at an apartment complex in Hebron,
with appellant planning to drive into an open garage to deliver the narcotics. Prior to the
delivery, the CI received several text messages stating appellant was on his way and was
“10 minutes out.”
{¶9} Appellant arrived at the garage driving a Toyota Rav 4. Unexpectedly, he
had a front seat passenger: Dwight Gales. Upon pulling into the garage, both appellant
and Gales were arrested. Per the CI’s information, Boerstler found the methamphetamine
Licking County, Case No. 21CA0068 4
in an air vent box in the engine compartment of the vehicle. Appellant did not have
contraband on his person but did have $3,800 in cash. Gales had approximately 17
grams of cocaine in his pocket.
{¶10} Boerstler testified Gales told him the methamphetamine in the engine
compartment and the cocaine on his person belonged to him. Boerstler testified it was
appellant’s voice, not Gales’, that he heard on the recorded phone calls with the CI
planning the transaction. Three phones were found in the passenger compartment of the
vehicle. Forensic analysis was performed upon appellant’s suspected phone, and the
analysis indicated that phone exchanged text messages with the CI and made the follow-
up phone calls in the moments leading up to the arrest.
{¶11} Boerstler testified that Gales was not mentioned in the conversations
leading up to the controlled buy and there was no evidence on the cell phone that Gales
was involved.
{¶12} The Director of the Central Ohio Regional Crime Lab testified that the bulk
amount methamphetamine is 3 grams and that “100 times bulk amount” is 300 grams or
more. The total amount of the substance found in the air compartment of the Toyota
weighed approximately 900 grams and was confirmed by testing to be
methamphetamine, a Schedule II substance.
{¶13} Appellant was charged by indictment with one count of aggravated drug
trafficking (methamphetamine) pursuant to R.C. 2925.03(A)(1)(C)(1)(f), a felony of the
first degree. The indictment contains two forfeiture specifications, the first for $3,894 in
cash pursuant to R.C. 2981.02(A)(1)(B) and R.C. 2941.1417(A), and the second for a
Licking County, Case No. 21CA0068 5
gold ring, necklace, and pendant pursuant to R.C. 2981.02(A)(1)(B) and R.C.
2941.1417(A).
{¶14} Appellant entered a plea of not guilty and filed a motion to suppress
evidence seized from the vehicle; appellee responded with a memorandum in opposition.
The matter was scheduled for suppression hearing on January 11, 2021.
{¶15} On January 11, 2021, appellant filed a motion to disclose the identity of all
confidential informants. Appellee filed a response on January 20, 2021. Appellant filed
a written withdrawal of the motion to disclose confidential informants on February 3, 2021.
{¶16} On February 9, 2021, appellee filed a notice of intent to offer certain
evidence, to wit, appellant’s prior activities related to drug trafficking.
{¶17} On February 9, 2021, the trial court overruled appellant’s motion to
suppress by Judgment Entry.
{¶18} On August 17, 2021, appellant filed a motion in limine and moved the trial
court to exclude “investigatory data generated against him which is highly speculative in
nature” and includes information from a confidential informant who is now deceased.
{¶19} The matter proceeded to trial by jury and appellant was found guilty as
charged. The jury also made a special finding beyond a reasonable doubt that the amount
of methamphetamine involved in the offense “was equal to or exceeds one hundred time
bulk” (sic).
{¶20} The trial court sentenced appellant to serve an indefinite mandatory prison
term of 11 years to 16 ½ years, to be followed by a mandatory period of 5 years of post-
release control.
{¶21} Appellant now appeals from the judgment entry of conviction and sentence.
Licking County, Case No. 21CA0068 6
{¶22} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶23} “I. THE TRIAL JUDGE ERRED BY FAILING TO INSTRUCT THE JURY
AS REQUIRED BY R.C. 2923.03(D).”
{¶24} “II. THE JURY HEARD PREJUDICIAL, INADMISSIBLE HEARSAY
STATEMENTS OF THE CONFIDENTIAL INFORMANT.”
{¶25} “III. ERRORS RELATED TO THE STATUTORY TERM ‘BULK AMOUNT
(sic).’”
ANALYSIS
I.
{¶26} In his first assignment of error, appellant argues the trial court erred by
failing to instruct the jury as required by R.C. 2923.03(D). We disagree.
{¶27} R.C. 2923.03(D) applies to accomplice testimony and states:
If an alleged accomplice of the defendant testifies against the
defendant in a case in which the defendant is charged with complicity
in the commission of or an attempt to commit an offense, an attempt
to commit an offense, or an offense, the court, when it charges the
jury, shall state substantially the following:
“The testimony of an accomplice does not become
inadmissible because of his complicity, moral turpitude, or self-
interest, but the admitted or claimed complicity of a witness may
affect his credibility and make his testimony subject to grave
suspicion, and require that it be weighed with great caution.
Licking County, Case No. 21CA0068 7
It is for you, as jurors, in the light of all the facts presented to
you from the witness stand, to evaluate such testimony and to
determine its quality and worth or its lack of quality and worth.”
{¶28} In the instant case, appellant alleges the trial court should have given the
accomplice-testimony instruction because Boerstler testified Gales told him the
methamphetamine was his; Gales was also arrested for the methamphetamine in the
engine compartment and for the cocaine on his person.
{¶29} We note Boerstler’s testimony about Gales’ admission was elicited by
defense trial counsel. Gales’ claim was favorable to appellant’s defense at trial because
he claimed the methamphetamine wasn’t his. On appeal, though, he argues Gales’
admission via Boerstler was damaging to the defense because the statement helped
appellee establish a case of complicity against appellant.
{¶30} Appellee responds this claim is invited error; upon eliciting the hearsay
statement from Boerstler, appellant did not need to call Gales as a potentially problematic
trial witness, even though Gales was disclosed as a defense witness. Obtaining the
statement from Boerstler instead brought in the helpful evidence without the problems
Gales could have caused.
{¶31} Further, Gales did not take the stand and testify against appellant;
therefore, appellee argues, R.C. 2923.03(D) is inapplicable by the plain language of the
statute because there is no “accomplice testimony.” Appellant responds the instruction
should also apply to similarly-questionable hearsay statements of an accomplice that
come in through another witness.
Licking County, Case No. 21CA0068 8
{¶32} We need not reach the issue of whether the statute applies to hearsay
statements, however, because we find no plain error. Appellant did not object to the jury
instructions, therefore waiving all but plain error. Crim.R. 30(A); State v. Lloyd, 5th Dist.
Licking No. 2020 CA 00074, 2021-Ohio-2420, ¶ 42, citing State v. Williford, 49 Ohio St.3d
247, 251, 551 N.E.2d 1279 (1990).
{¶33} Appellant did not request the accomplice-testimony instruction, and in the
context of the entire trial, it would have been illogical for appellant to do so. Appellant
would have effectively argued both that the methamphetamine was Gales’ but Gales’
admission of ownership was not credible.
{¶34} We apply the doctrine of plain error cautiously and only under exceptional
circumstances to prevent a manifest miscarriage of justice. State v. Rohaley, 5th Dist.
Stark No. 1998CA00092, 1999 WL 4505, *4. In that regard, “[T]he test for plain error is
stringent.” State v. Ellison, 2017-Ohio-284, 81 N.E.3d 853, ¶ 27 (4th Dist.). “To prevail
under this standard, the defendant must establish that an error occurred, it was obvious,
and it affected his or her substantial rights.” State v. Spaulding, 151 Ohio St.3d 378, 2016-
Ohio-8126, 89 N.E.3d 554, ¶ 64. An error affects substantial rights only if it changes the
outcome of the trial. Id.{¶35} Appellant has the burden to establish the existence of plain error, and
therefore must establish that the outcome of the trial would clearly have been different
but for the trial court's allegedly improper actions. State v. Waddell, 75 Ohio St.3d 163,
166, 661 N.E.2d 1043 (1996).
{¶36} In the instant case, appellant does not explain why the outcome of the trial
would have been different if the accomplice-testimony instruction would had been given.
Licking County, Case No. 21CA0068 9
The jury convicted appellant, indicating it did not find Gales’ claim of ownership credible.
An instruction casting doubt on that statement would not have changed this result.
Appellant’s best defense at trial was likely the one he used—the narcotics weren’t his. It
is impossible to discern, and appellant does not reveal, how he would have been acquitted
if this instruction had been given.
{¶37} We have reviewed the requested instruction in its entirety and in the context
of the instructions as a whole, and find the trial court did not commit plain error in not
providing an instruction pursuant to R.C. 2923.03(D). This omission, even if considered
an error, did not seriously affect the fairness, integrity or public reputation of judicial
proceedings, did not have an effect on the outcome of the trial, and was not a manifest
miscarriage of justice. State v. Lloyd, supra, 2021-Ohio-2420 at ¶ 47.
{¶38} Appellant’s first assignment of error is overruled.
II.
{¶39} In his second assignment of error, appellant weaves together a number of
arguments. He asserts the statements of the deceased CI repeated by other witnesses
were inadmissible hearsay which the trial court erred in admitting, and defense trial
counsel’s failure to object to the hearsay is ineffective assistance of counsel. We
disagree.
{¶40} The Confrontation Clause of the Sixth Amendment states, “In all criminal
prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses
against him.” Out-of-court statements by a witness which are testimonial in nature are
barred, under the Confrontation Clause, unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington,
Licking County, Case No. 21CA0068 10
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). If testimony qualifies as
nonhearsay, it does not implicate the Confrontation Clause. Id. at 59, citing Tennessee v.
Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985); State v. Maxwell, 139
Ohio St. 3d 12, 9 N.E.3d 930, 2014-Ohio-1019, ¶131. Evid. R. 801(C) defines hearsay as
“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.” For clarity, we will address
each piece of challenged evidence separately.
Collins testifies CI identified appellant as caller
{¶41} First, appellant points to Collins’ testimony that the CI identified the caller
during the series of “controlled buy” phone calls as appellant. Appellant cites the following
exchange:
* * * *.
Q: Detective Collins, who were those two voices?
A: The confidential informant and what I believed to be
Antoine Stephens. (Emphasis added).
Q: Based on what the confidential informant—
A: That is correct.
* * * *.
T. 124-125.
{¶42} In the context of Collins’ testimony at this point, he is not identifying
appellant as the other party to the call. He is explaining why he set up a controlled buy
with appellant as the target: because he believed appellant to be the person involved in
the pending drug transaction.
Licking County, Case No. 21CA0068 11
{¶43} It is well-established that extrajudicial statements made by an out-of-court
declarant are properly admissible to explain the actions of a witness to whom the
statement was directed. State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401(1980). The testimony of a police officer about actions undertaken as a result of
conversations during a criminal investigation are not considered hearsay and are properly
admitted by the trial court. State v. Bound, 5th Dist. Guernsey No. 03 CA 21, 2004-Ohio-
6530, ¶ 34. Collins’ statement here was admitted without error.
Boerstler testifies CI said he didn’t know Gales
{¶44} Next, appellant points to Boerstler’s testimony that he contacted the CI after
the arrest to ask if the CI knew anything about Gales, but the CI didn’t know Gales.
Appellant argues this statement goes to the truth of the matter asserted because it casts
doubt on his defense that the methamphetamine belonged to Gales. In other words, the
CI’s statement that he didn’t know Gales made it unlikely Gales was the person on the
other end of the phone calls and text messages setting up drug transactions.
{¶45} Defense counsel did not object to the statement, thereby waiving all but
plain error. State v. West, 2017-Ohio-4055, 91 N.E.3d 365, ¶ 39 (5th Dist.). Pursuant to
Crim.R. 52(B), a plain error or defect affecting substantial rights may be noticed if not
brought to the attention of the court. State v. Long, 53 Ohio St.2d 91, 94, 7 O.O.3d 178,
372 N.E.2d 804 (1978). Plain error is to be invoked only in exceptional circumstances to
avoid a miscarriage of justice. (Citation omitted.) Id. In order for Crim.R. 52(B) to apply,
a reviewing court must find that (1) there was an error, i.e., a deviation from a legal rule;
(2) that the error was plain, i.e., that there was an “obvious” defect in the trial proceedings;
Licking County, Case No. 21CA0068 12
and (3) that the error affected “substantial rights,” i.e., affected the outcome of the trial.
(Citations omitted.) State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶46} The statement that the CI did not know Gales is hearsay, but the question
on plain error review is whether its admission affected the outcome of the trial, and we
find overwhelmingly that it did not. The jury had conflicting evidence before it about the
level of Gales’ involvement and appellant has not convinced us that this comment had
any effect on the trial outcome. We find the above statement did not affect appellant's
substantial rights and therefore does not constitute plain error, even though it did not
qualify under any rule of evidence. State v. Hill, 5th Dist. Fairfield No. 98CA67, 2002 WL
109297, *4 (Jan. 17, 2002).
{¶47} Appellant further argues that defense trial counsel’s failure to object to the
statement about Gales constitutes ineffective assistance. A claim of ineffective
assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel's
performance fell below an objective standard of reasonable representation involving a
substantial violation of any of defense counsel's essential duties to appellant. The second
prong is whether the appellant was prejudiced by counsel's ineffectiveness. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989). In order to warrant a finding that trial counsel
was ineffective, the petitioner must meet both the deficient performance and prejudice
prongs of Strickland and Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411,
1419, 173 L.Ed.2d 251 (2009).
{¶48} The United States Supreme Court discussed the prejudice prong of the
Strickland test:
Licking County, Case No. 21CA0068 13
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that
the errors had some conceivable effect on the outcome of the
proceeding.” Id., at 693, 104 S.Ct. 2052. Counsel's errors must be
“so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id., at 687, 104 S.Ct. 2052.
{¶49} The United States Supreme Court and the Ohio Supreme Court have held
a reviewing court “need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” Bradley, 42 Ohio St.3d at 143, 538 N.E.2d 373, quoting Strickland, 466 U.S.
at 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶50} Debatable strategic and tactical decisions may not form the basis of a claim
for ineffective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d
643 (1995). Even if the wisdom of an approach is questionable, “debatable trial tactics”
do not constitute ineffective assistance of counsel. Id.{¶51} Appellant argues defense trial counsel’s failure to object to the statement
regarding Gales is ineffective assistance. Upon review we find there is no reasonable
probability that the outcome of the trial would have been different had counsel objected
to the introduction of this statement. “Trial counsel is not ineffective for choosing, for
tactical reasons, not to pursue every possible trial objection.” State v. West, 5th Dist. No.
Licking County, Case No. 21CA0068 14
16 CA 11, 2017-Ohio-4055, 91 N.E.3d 365, ¶ 102, citing State v. Raypole, 12th Dist.
Fayette No. CA2014-05-009, 2015-Ohio-827, ¶ 24. This is because “[o]bjections tend to
disrupt the flow of a trial and are considered technical and bothersome by a jury.” State
v. Steele, 12th Dist. Butler No. CA2003-11-276, 2005-Ohio-943, ¶ 100, citing State v. Hill,
75 Ohio St.3d 195, 211, 661 N.E.2d 1068 (1996). Especially with a statement as fleeting
as this one, defense trial counsel may not have wanted to call attention to the CI’s
knowledge of Gales, or lack thereof.
Boerstler testifies CI identified appellant as party to text messages
{¶52} Third, appellant points to Boerstler’s testimony that the CI showed him a
series of text messages in which the CI identified the other party in the messages as
appellant. This statement was corroborated by appellee’s forensic evidence linking the
phone at issue to the calls and text messages between appellant and the CI. Boerstler’s
testimony was not met with any objection, but in light of the cumulative nature of the
evidence regarding the party texting with the CI, we find admission of the testimony was
not plain error. We further find admission of Boerstler’s statements that the CI told him
the texts were from appellant did not affect the outcome of the trial such that it would have
been different if counsel had objected, therefore this is not ineffective assistance of
counsel.
Boerstler’s testimony that CI claimed to buy a pound of methamphetamine from
appellant
{¶53} Fourth, appellant points to Boerstler’s testimony that the CI initially told him
he was buying a pound of narcotics at a time from appellant when he identified appellant
as a potential target for investigation. The jury was provided with a limiting instruction as
to evidence of other drug transactions or criminal behavior. T. 363. The jury is presumed
Licking County, Case No. 21CA0068 15
to follow the instructions of the trial court. Pang v. Minch, 53 Ohio St.3d 186, 187, 559
N.E.2d 1313 (1990), paragraph four of the syllabus. Appellant has not pointed to any
evidence in the record that the jury failed to do so in this case. The statement also
explains Boerstler’s actions in undertaking an investigation of appellant. Admission of the
statement is not plain error and failure to object to the statement is not ineffective
assistance of counsel.
Boerstler testified Gales identified appellant’s phone
{¶54} Fifth, appellant asserts the following error: “Detective Boerstler testified to
the informant’s statement identifying a phone in the vehicle as belonging to [appellant.]”
Upon our review of the cited portion of the record, Boerstler stated it was Gales who
identified which phone belonged to which occupant of the vehicle. We note the statement
was elicited by defense trial counsel. Again, in light of the cumulative evidence of the
phone calls, texts, and identity of the speaker, we find no plain error regarding admission
of this fleeting statement. We also find this statement had no effect on the outcome of
the case and was therefore not ineffective assistance of counsel.
{¶55} Appellant’s second assignment of error is overruled.
III.
{¶56} In his third assignment of error, appellant argues the trial court erred in its
jury instruction regarding the bulk amount of methamphetamine. We disagree.
{¶57} Jury instructions are within the sound discretion of the trial court, and the
court's decision will not be disturbed on appeal absent an abuse of discretion. State v.
DeMastry, 155 Ohio App.3d 110, 2003–Ohio–5588, 799 N.E.2d 229, ¶ 54 (5th Dist.),
citing State v. Musgrave, 5th Dist. Knox No. 98CA10, 2000 WL 502688 (April 24, 2000),
Licking County, Case No. 21CA0068 16
and State v. Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3rd Dist.1993). Jury
instructions must be reviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525
N.E.2d 792 (1988).
{¶58} In the instant case, appellant argues the trial court failed to instruct the jury
upon an element of the offense, to wit, the meaning of the term “bulk amount.” Appellant
was charged with one count of aggravated drug trafficking (methamphetamine) pursuant
to R.C. 2925.03(A)(1)(C)(1)(f), which states:
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a controlled
substance analog;
* * * *.
(C) Whoever violates division (A) of this section is guilty of one
of the following:
(1) If the drug involved in the violation is any compound,
mixture, preparation, or substance included in schedule I or schedule
II, with the exception of marihuana, cocaine, L.S.D., heroin, any
fentanyl-related compound, hashish, and any controlled substance
analog, whoever violates division (A) of this section is guilty of
aggravated trafficking in drugs. The penalty for the offense shall be
determined as follows:
* * * *.
(f) If the amount of the drug involved equals or exceeds one
hundred times the bulk amount and regardless of whether the
Licking County, Case No. 21CA0068 17
offense was committed in the vicinity of a school, in the vicinity of a
juvenile, or in the vicinity of a substance addiction services provider
or a recovering addict, aggravated trafficking in drugs is a felony of
the first degree, the offender is a major drug offender, and the court
shall impose as a mandatory prison term a maximum first degree
felony mandatory prison term.
* * * *.
{¶59} The jury in this case was instructed as follows, in pertinent part:
* * * *.
The Defendant is charged with aggravated trafficking in drugs,
methamphetamine, in violation of Ohio Revised Code Section
2925.03(A)(1)(C)(1)(f). Before you can find the Defendant guilty, you
must find beyond a reasonable doubt that on or about the 17th day of
July, 2020, in Licking County, Ohio, the Defendant knowingly sold or
offered to sell methamphetamine, a Schedule II controlled
substance, and the amount of the drug equals or exceeds 100 times
bulk.
* * * *.
You are instructed that methamphetamine is a Schedule II
substance.
If you find the Defendant guilty beyond a reasonable doubt on
this count, you will further find beyond a reasonable doubt that the
Licking County, Case No. 21CA0068 18
amount of the drug was or was not equal to or exceeded 100 times
the bulk amount.
* * * *.
T. 365, 367.
{¶60} Appellee presented the testimony and lab report prepared by Mark Hiatt,
the regional director of the Central Ohio Regional Crime Lab, who tested the substance
recovered from the engine compartment of the vehicle. The substance was found to
weigh, in total, approximately 900 grams and tested as methamphetamine, a Schedule II
substance in Ohio. T. 240. Hiatt further testified that the bulk amount for
methamphetamine is 3 grams, thus this amount is almost 300 times bulk. T. 241.
{¶61} Appellant argues the trial court was required to instruct the jury upon the
meaning of the term “bulk amount,” which appellant asserts “is a technical term of art
defined by statute, with a meaning that varies depending upon the facts.” Brief, 25. This
contradictory position is one we have rejected. While appellant argues that the court was
required to have testimony or other proof as to the definition of “bulk amount,” we
disagree. See, State v. Morales, 5th Dist. Licking No. 2004 CA 68, 2005-Ohio-4714, ¶ 57.
Methamphetamine is a Schedule II drug by statute. The bulk amount of a controlled
substance containing any amount of a schedule II stimulant is three grams. R.C.
2925.01(D)(1)(g). Hiatt testified as to the amount of methamphetamine, approximately
900 grams, an amount in excess of 100 times bulk. In Morales, we noted the following
regarding statutory bulk amounts:
As noted by the court in State v. Feltner [2nd Dist. Miami No.
88-CA-34, 1989 WL 94550 (Aug. 16, 1989)]: “Crim.R. 27 adopts for
Licking County, Case No. 21CA0068 19
criminal proceedings the judicial notice provisions of Civ.R. 44.1. The
rule requires the court to take full judicial notice of the statutory law
of Ohio and to present that law to the jury without separate proof.
The jury is required to accept the court's instruction.
“No additional proof beyond the terms of the statute was
required for the court's determination for the jury of the meaning of
“bulk amount”.... Testimonial proof of the weight and content of the
material offered for sale by Feltner then permitted the jury to
conclude that the terms of the statute were met.” Id at 5.
Likewise, in the case sub judice, testimony from [crime lab
personnel] as to the amount of methamphetamine in each baggie
permitted the jury to conclude that appellant possessed 100 times
the bulk amount of methamphetamine. No additional proof was
required. Based on the jury's conclusion, the trial court correctly
sentenced appellant to prison for possessing 100 times the bulk
amount.
State v. Morales, 5th Dist. Licking No. 2004 CA 68, 2005-
Ohio-4714, ¶ 57-60.
{¶62} The trial court was not required to further define the term “bulk amount” for
the jury. Moreover, neither party objected to the jury instructions in the instant case.
Crim.R. 30 provides that a party must object to an omission in the court's instructions to
the jury in order to preserve the error for appeal. “A criminal defendant has a right to
expect that the trial court will give complete jury instructions on all issues raised by the
Licking County, Case No. 21CA0068 20
evidence.” State v. Williford, 49 Ohio St.3d 247, 251–252, 551 N.E.2d 1279 (1990).
(Citations omitted). If an objection is not made in accordance with Crim.R. 30, or the
defendant fails to submit a required written jury instruction, Crim.R. 52(B), the plain error
doctrine, applies. State v. Dorsey, 5th Dist. Stark No. 2014CA00217, 2015–Ohio–4659,
¶ 61, citing Williford, supra, and State v. Gideons, 52 Ohio App.2d 70, 368 N.E.2d 67(8th
Dist.1977).
{¶63} Appellant concedes he did not request orally or in writing the bulk-amount
instruction he now contends should have been given. Accordingly, our review of the
alleged error must proceed under the plain error rule of Crim. R. 52(B). Dorsey, supra, at
¶ 64; State v. Mowls, 5th Dist. Stark No. 2017CA00019, 2017-Ohio-8712, ¶ 22.
{¶64} Failure to properly instruct a jury is not in most instances structural error,
thus the harmless-error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17
L.Ed.2d 705 (1967) applies; failure to properly instruct the jury does not necessarily
render a trial fundamentally unfair or an unreliable vehicle for determining guilt or
innocence. State v. Bleigh, 5th Dist. Delaware No. 09-CAA-03-0031, 2010-Ohio-1182,
2010 WL 1076253, ¶ 119, citing Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144
L.Ed.2d 35 (1999).
{¶65} Appellant does not explain how the outcome of the trial would have been
different if such an instruction had been given. State v. Carpenter, 5th Dist. Licking No.
20-CA-11, 2021-Ohio-821, ¶ 33.
{¶66} Appellant’s third assignment of error is overruled.
Licking County, Case No. 21CA0068 21
CONCLUSION
{¶67} Appellant’s three assignments of error are overruled and the judgment of
the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, Earle, P.J. and
Baldwin, J., concur.