State v. McClendon , 2022 Ohio 1441 ( 2022 )

[Cite as State v. McClendon, 2022-Ohio-1441.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-09-021
: OPINION
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:
NEATHEN McCLENDON, :
Appellant. :
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
Case No. CRI 20210129
Jess C. Weade, Fayette County Prosecuting Attorney, for appellee.
Steven H. Eckstein, for appellant.
BYRNE, J.
{¶1} Neathen McClendon was convicted of two criminal offenses in the Fayette
County Court of Common Pleas. McClendon appealed. We affirm McClendon's
convictions.
I. Procedural and Factual Background
{¶2} In June 2021, a Fayette County grand jury indicted McClendon on three
counts: (1) count one – tampering with evidence; (2) count two – trafficking in cocaine; and
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(3) count three – possession of cocaine. The indictment resulted from a search warrant
executed at a residence in Washington Court House. Officers detained McClendon in a
bedroom after forcibly entering the home. In the bedroom's ensuite bathroom, officers
recovered small amounts of crack cocaine on the floor and evidence that suggested that
McClendon had flushed contraband (likely more crack cocaine) down the toilet.
A. Pre-Trial Discussion Concerning the Search Warrant
{¶3} At the final pretrial conference, McClendon's defense counsel said that he
would be requesting a copy of the search warrant and could not say until he saw it whether
he would be raising any challenge to the search warrant. During this conversation,
McClendon interjected, stating that "it was an arrest warrant. Instead of a search warrant,
because the residence that I was at it wasn't my residence at all." Ultimately, McClendon's
counsel did not move to suppress the evidence obtained during the execution of the search
warrant.
B. The Jury Trial
{¶4} The matter proceeded to a jury trial. Before trial commenced, the court
discussed pretrial matters with the prosecutor and defense counsel. During this
conversation, McClendon remarked that he wanted to challenge the search warrant. He
said that "they" (presumably the officers who conducted the search) had provided him with
a warrant receipt "that says that ah they uploaded a digital copy of my signature on it, which
I never signed." Besides claiming that the digital signature he was referring to was not his,
McClendon also repeated his claim that the residence where he was detained was not his
residence. McClendon also stated that he "never signed no paperwork like this, for them
to get a warrant to come search (unintelligible) about me." In response, McClendon's
defense counsel stated that he had determined that attempts to undermine or challenge the
search warrant were not going to be beneficial to the case.
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{¶5} Trial commenced and the state presented the testimony of three law
enforcement officers who participated in the execution of the search warrant.
1. Testimony of Deputy Travis Burden
{¶6} Deputy Burden testified that he was a patrol deputy with the Fayette County
Sheriff's Office. On March 22, 2021, he was assigned to the Fayette County/Ross County
Joint Emergency Response Team. That day, the Response Team had been asked to assist
with execution of a search warrant at a residence located at 323 Forrest Street, Washington
Court House.
{¶7} Deputy Burden was assigned to the "Entry Team." His job was to enter the
residence and detain anyone found inside. He was specifically assigned to search the
second floor for persons who may be found there. Deputy Burden testified that the
procedure for entry is to knock on the door loudly and announce, "Sheriff's office." If no one
opened the door, law enforcement would force the door open and enter the residence.
{¶8} Deputy Burden testified that one of the team members knocked loudly on the
door, two or three times. One of the team members also announced they were with the
Sheriff's office and had a search warrant, loudly enough for anyone inside to hear. No one
answered, so the deputies forced the door open. Deputy Burden then entered the
residence. He estimated that three minutes passed between the first knock and the team
forcing the door open and entering the home.
{¶9} Deputy Burden observed a female downstairs. But because he was assigned
to search the second floor, not the first floor, Deputy Burden immediately proceeded
upstairs. At the top of the stairs, he entered a bedroom to the left of the stairwell and
observed McClendon lying on the bedroom floor. McClendon had his arms spread away
from his body. McClendon was "breathing heavily" and was "out of breath." Deputy Burden
detained McClendon. McClendon made a comment that "he only had weed," presumably
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meaning marijuana. There was no one else found upstairs.
2. Testimony of Sergeant John Fausnaugh
{¶10} Sergeant Fausnaugh testified that he was part of the "Investigative Team"
executing the search warrant. While the Entry Team was entering and securing the
residence, he was in the back of the residence, watching for anyone who might try to
escape. No one came out of the residence.
{¶11} After officers secured the residence, Sergeant Fausnaugh's job was to
videotape the interior of the residence and then take photographs. Sergeant Fausnaugh
testified about photographs that he took in the bedroom where deputies detained
McClendon and in the bedroom's ensuite bathroom. Multiple photographs introduced at
trial depicted the floor of the bathroom and small white objects on or near a shower mat
next to the bathtub. Other photos depicted a "Tupperware"-style tray or lid near the base
of the toilet and a plastic container on the shower mat where the white objects were located.
Sergeant Fausnaugh also observed and photographed a bag containing over $2,500, which
was found on a bed in the bedroom, and a "bin," found on a desk in the bedroom, which
contained a digital scale, scissors, and a knife.
{¶12} Sergeant Fausnaugh observed droplets of water of various sizes on the
bathroom floor, near the toilet, and "about the toilet seat." The water droplets and their
locations led him to the conclusion that someone had tried to dispose of drugs by flushing
them down the toilet.
{¶13} Sergeant Fausnaugh testified that the white objects were collected into
evidence and sent to the Ohio Bureau of Criminal Investigation ("BCI") for testing. At BCI,
the white objects tested positive for cocaine.
3. Testimony of Detective Treg Brown
{¶14} Detective Brown testified that he was also present during the execution of the
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search warrant and entered the house after it had been secured. Besides McClendon,
there was a female at the residence named Morgan Coil, as well as a 3-week-old infant.
McClendon and Coil were the parents of the infant.
{¶15} Detective Brown testified about "off-white rocks" found on the bathroom floor
that he suspected to be crack cocaine and that were collected into evidence. A clear plastic
container was found closer to where the off-white rocks were found, and this container
appeared to correspond to the tray or lid photographed lying near the base of the toilet.
{¶16} On cross-examination, Detective Brown testified that he believed that the
plastic container had held crack cocaine. He did not have it tested for trace amounts of
cocaine because BCI would not test for trace amounts and the Fayette County Sheriff's
Office had no other way to test for trace evidence.
{¶17} Through cross-examination of Sergeant Fausnaugh, McClendon's counsel
introduced several photographs of other items found in the bedroom where McClendon was
detained. These items included a jar containing what appeared to be marijuana. Under
cross-examination, Sergeant Fausnaugh agreed that scissors were more consistent with
marijuana use rather than crack cocaine use, but he maintained that scissors may also be
consistent with preparation of crack cocaine. And Detective Brown agreed on cross-
examination that a buyer of narcotics might use a digital scale to ensure that they were
receiving the amount sold to them.
4. Verdict and Sentence
{¶18} McClendon presented no evidence at trial. Upon the conclusion of the trial,
the jury returned guilty verdicts on tampering with evidence (count one) and possession of
cocaine (count three). The jury returned a not guilty verdict on trafficking in cocaine (count
two). The court issued a judgment entry of conviction and sentenced McClendon to a prison
term.
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II. Law and Analysis
{¶19} McClendon appealed, raising three assignments of error. McClendon
presents his first two assignments of error together, and we will address those assignments
in the same manner.
{¶20} Assignment of Error No. 1:
{¶21} THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST
THE APPELLANT, WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶22} Assignment of Error No. 2:
{¶23} THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST
APPELLANT, WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶24} The generic phrasing of McClendon's assignments of error suggests he is
challenging all his convictions—that is, his convictions for tampering with evidence and
possession of cocaine. However, McClendon only presents argument about the tampering
with evidence count in the body of his brief. App.R. 12(A)(1)(b) provides that we must
determine an appeal on its merits on the assignments of error set forth in the briefs under
App.R. 16. In turn, App.R. 16(A)(7) obligates the appellant to include within his or her brief
"[a]n argument containing the contentions of the appellant with respect to each assignment
of error presented for review and the reasons in support of the contentions, with citations to
the authorities, statutes, and parts of the record on which appellant relies." App.R. 12(A)(2)
provides that we "may disregard an assignment of error presented for review if the party
raising it fails to identify in the record the error on which the assignment of error is based or
fails to argue the assignment separately in the brief, as required under App.R. 16(A)."
Because McClendon has not set forth any argument concerning count three, we need not
address whether his conviction for possession of cocaine was supported by sufficient
evidence, or whether it was against the manifest weight of the evidence. See State v.
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Constable, 12th Dist. Clermont No. CA2006-12-107, 2007-Ohio-6570, ¶ 5-8.
{¶25} As to the tampering charge, McClendon argues that the state presented
insufficient evidence that he knew an official proceeding or investigation was in progress or
that he destroyed or removed evidence. He contends that his conviction resulted from
impermissible inference stacking. For the same reasons, he argues that the jury lost its
way in convicting him of tampering with evidence and that his conviction was against the
weight of the evidence.
{¶26} When reviewing the sufficiency of the evidence underlying a conviction, an
appellate court examines the evidence to determine whether such evidence, if believed,
would convince the average mind of the defendant's guilt beyond a reasonable doubt. State
v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[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. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus.
{¶27} A manifest weight of the evidence challenge examines the "inclination of the
greater amount of credible evidence, offered at a trial, to support one side of the issue rather
than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶
14. To determine whether a conviction is against the manifest weight of the evidence, the
reviewing court must look at the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether in resolving the
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed, and a new trial ordered. State
v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.
{¶28} In reviewing the evidence, an appellate court must be mindful that the original
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trier of fact was in the best position to judge the credibility of witnesses and determine the
weight to be given to the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-
Ohio-1289, ¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the
manifest weight of the evidence only in the exceptional case in which the evidence weighs
heavily against the conviction. State v. Zitney, 12th Dist. Clinton No. CA2020-06-007, 2021-
Ohio-466, ¶ 15.
{¶29} "Although the legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different, '[a] determination that a
conviction is supported by the manifest weight of the evidence will also be dispositive of the
issue of sufficiency.'" State v. Billingsley, 12th Dist. Butler Nos. CA2019-05-075 and
CA2019-05-076, 2020-Ohio-2673, ¶ 15, quoting State v. Jones, 12th Dist. Butler No.
CA2012-03-049, 2013-Ohio-150, ¶ 19.
{¶30} The jury found McClendon guilty of tampering with evidence in violation of
R.C. 2921.12(A)(1). That statute provides, "No person, knowing that an official proceeding
or investigation is in progress, or is about to be or likely to be instituted, shall do any of the
following: (1) Alter, destroy, conceal, or remove any * * * thing, with purpose to impair its
value or availability as evidence in such proceeding or investigation * * *." R.C.
2921.12(A)(1).
{¶31} As stated above, McClendon argues that the state failed to present sufficient
evidence, proving beyond a reasonable doubt, that he knew an investigation was in
progress or was likely to be implemented, and that the jury lost its way in so finding. But
Deputy Burden testified that the Entry Team members loudly knocked on the door and
loudly announced they were with the sheriff's office and were executing a search warrant.
They knocked and announced several times over the course of three minutes before forcing
entry. Deputy Burden stated that the level of noise was such that he believed that anyone
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inside the home would have been able to hear the knocking and the announcement. Deputy
Burden testified that he kept announcing "Sheriff's office" after entering the residence.
{¶32} Deputy Burden made his way upstairs, where he found McClendon lying
prone on the floor with his arms stretched out. McClendon's position would suggest he
knew law enforcement officers were in the home and that he would soon be detained. Given
this testimony, we do not find that the jurors lost their way in finding that the state proved
that McClendon had knowledge of an official proceeding or investigation under R.C.
2921.12(A)(1).
{¶33} Next, McClendon argues that the state failed to present sufficient evidence
that he altered, destroyed, concealed, or removed anything in violation of R.C.
2921.12(A)(1), and that the jury lost its way in finding that he did so. But there was an
abundance of circumstantial evidence, which, when viewed collectively, indicated that
McClendon disposed of narcotics evidence by flushing it down the toilet. Jenks, 61 Ohio
St.3d at 272-273 (circumstantial evidence has the same probative value as direct evidence
and is sufficient to prove the elements in a criminal case). That evidence consisted of water
droplets strewn about the bathroom in various locations, including near the toilet and farther
away from it. The jury could have concluded that this suggested that McClendon threw
objects into the toilet bowl with sufficient force to spray water outside the toilet.
{¶34} A part of a plastic container, appearing to be a tray or lid, was near the base
of the toilet and a corresponding container was found on the other half of the bathroom
floor, where small fragments of crack cocaine were recovered. This would circumstantially
indicate that the container contained the narcotics that McClendon had flushed down the
toilet and that some of those narcotics had not been successfully flushed.
{¶35} The overall condition of the bathroom was clean and tidy. The haphazardly
scattered plastic container pieces as well as the crack cocaine rocks strewn about the floor
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contrasted with this tidiness. The jury could have concluded that this evidence suggested
that McClendon engaged in a frenzied but failed attempt to dispose of all the narcotics from
the plastic container.
{¶36} Finally, McClendon was the only person located on the second floor when the
search warrant was executed. His behavior upon being located by police—that is, lying
prone in the bedroom and breathing heavily—circumstantially corroborated a frenetic
attempt to dispose of narcotics. His unprompted statement that he "only had weed"
evidences a guilty mind and an effort to distract officers from his attempts to destroy the
crack cocaine that officers recovered in the nearby bathroom. Given this testimony and the
corresponding photographs introduced at trial, we do not find that the jury lost its way. See
State v. Moffett, 6th Dist. Sandusky No. S-10-056, 2012-Ohio-1107 (affirming tampering
with evidence conviction based in part on circumstantial evidence of narcotics having been
flushed down toilet following knock-and-announce search warrant, including water on the
toilet seat and on the bathroom floor).
{¶37} The inferences in this case were not derived wholly from other inferences.
See State v. Braden, 12th Dist. Preble No. CA2013-12-012, 2014-Ohio-3385, ¶ 12, quoting
State v. Cooper, 147 Ohio App.3d 116, 126 (12th Dist.2002) ("It is well-established that '[a]
trier of fact may not draw an inference based entirely upon another inference, unsupported
by any additional fact or another inference from other facts.'"). Instead, all inferences as to
McClendon's conduct before Deputy Burden's arrival were based on evidence presented to
the jurors. Thus, the jury was not required to impermissibly stack inferences to find
McClendon guilty of tampering with evidence. See Braden at ¶ 13, quoting State v.
Maynard, 10th Dist. Franklin No. 11AP-697, 2012-Ohio-2946, ¶ 27 (the rule against stacking
inferences "does not prohibit using parallel inferences with additional facts, nor does it
'prohibit the drawing of multiple, separate inferences from the same set of facts.'").
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{¶38} For all these reasons, we find that the jurors did not lose their way in convicting
McClendon and that his conviction was supported by the greater weight of the evidence.
Our finding that McClendon's conviction was not against the manifest weight of the evidence
is dispositive on the issue of sufficiency of the evidence. Billingsley, 2020-Ohio-2673, at ¶
15. We therefore overrule McClendon's first and second assignments of error.
{¶39} Assignment of Error No. 3:
{¶40} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN VIOLATION
OF DEFENDANT-APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND
SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION & ARTICLE I,
SECTION 14 OF THE OHIO CONSTITUTION.
{¶41} McClendon argues that his trial counsel provided constitutionally defective
assistance by failing to move to suppress evidence obtained via the search warrant. In
support, McClendon cites his statements contesting the search warrant made on the record
before trial. McClendon argued that the search warrant was invalid because the return
stated that he had provided his electronic signature, when he denied doing so.
{¶42} To prevail on his ineffective assistance of counsel claim, McClendon must
show that his trial counsel's performance was deficient, and that he was prejudiced as a
result. State v. Petit, 12th Dist. Madison No. CA2016-01-005, 2017-Ohio-633, ¶ 39;
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). The failure to satisfy
either prong of the Strickland test is fatal to an ineffective assistance of counsel claim. Petit
at ¶ 39. Trial counsel's performance will not be deemed deficient unless it fell below an
objective standard of reasonableness. Strickland at 688. To show prejudice, McClendon
must establish that, but for trial counsel's errors, there is a reasonable probability that the
result of the proceeding would have been different. Id. at 694.
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{¶43} The failure to move to suppress evidence does not constitute per se
ineffective assistance of counsel. State v. Smith, 12th Dist. Fayette No. CA2014-05-013,
2015-Ohio-1094, ¶ 44. To establish ineffective assistance of counsel for failure to move to
suppress, a defendant must be able to prove that there was a basis for suppression of the
evidence in question. State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, ¶ 65. Even
when there is some evidence in the record to support a motion to suppress, "an appellate
court presumes that defense counsel was effective if defense counsel could reasonably
have decided that the motion to suppress would have been futile." State v. Dominguez,
12th Dist. Preble No. CA2011-09-010, 2012-Ohio-4542, ¶ 20.
{¶44} McClendon supplemented the appellate record with a copy of the search
warrant and its attached return, titled "RETURN;RECEIPT; INVENTORY OF SEARCH
WARRANT." There is a signature line on this document where McClendon's signed name
appears. While the record is unclear on what document McClendon was referring to, this
is presumably the document.
{¶45} In his appellate brief, McClendon fails to articulate how this document, or how
McClendon's claim that the document falsely stated that he provided his digital signature,
would support the filing of a motion to suppress. This is the case because the search
warrant was not authorized based on any information or averments in the search warrant
return, as the return on its face was clearly prepared after the search warrant was executed.
McClendon also appears to misread the return when he contends that the return states he
provided his digital signature. Upon review, we find no such language in the return. Instead,
the only reference to anything "digital" or "electronic" in the return is in the space for the
detective who completed the form to provide an inventory of property taken pursuant to the
warrant. In that space, the detective wrote, by hand, "Image copy of Electronically Stored
Data." This reference is unclear, but perhaps it was a reference to the cell phone that
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Detective Brown testified was found in the bedroom and was taken for later review. In any
case, an "Image Copy of Electronically Stored Data" is not a digital signature.
{¶46} Moreover, McClendon repeatedly disclaimed that 323 Forrest Street was his
residence. Fourth Amendment privacy rights are "'personal rights which, like some other
constitutional rights, may not be vicariously asserted.'" Rakas v. Illinois, 439 U.S. 128, 133,
99 S.Ct. 421 (1978), quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961(1969). As a result, a person who alleges error using evidence taken from someone else's
property cannot claim that his own rights have been violated. State v. Coleman, 45 Ohio
St.3d 298, 306 (1989). Only those whose personal rights have been violated can raise
Fourth Amendment claims. Id. Thus, to challenge a search or seizure on Fourth
Amendment grounds, a defendant must possess a legitimate expectation of privacy in the
area searched, and the burden is upon the defendant to prove facts sufficient to establish
such expectation. State v. Renner, 12th Dist. Clinton No. CA2002-08-033, 2003-Ohio-
6550, ¶ 9. McClendon's disclaimer of 323 Forrest as his residence undercuts any argument
that he had a reasonable expectation of privacy under the Fourth Amendment or the Ohio
Constitution and that he could have mounted a successful challenge to the search warrant.1
{¶47} The record reflects that McClendon's counsel obtained a copy of the search
warrant, reviewed it, and determined that it would not be beneficial to attempt to challenge.
There is nothing in the record or on the face of the search warrant that would suggest that
this decision was anything but a reasonable exercise of professional judgment. McClendon
has failed to prove a basis to suppress the evidence collected by law enforcement and
therefore is unable to establish ineffective assistance of counsel. Brown, 2007-Ohio-48371. With certain exceptions not applicable here, the Ohio Supreme Court has held that the Ohio Constitution
affords protections coextensive with the Fourth Amendment. State v. Robinette, 80 Ohio St.3d 234, 245
(1997); State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, ¶ 23.
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at ¶ 65. We overrule McClendon's third assignment of error.
III. Conclusion
{¶48} For the reasons discussed above, we find that McClendon's conviction for
tampering with evidence was supported by sufficient evidence as well as the greater weight
of the evidence. We also find that McClendon has not established that his trial counsel
provided ineffective assistance by failing to move to suppress evidence obtained through
the search warrant.
{¶49} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
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