State v. Cutlip , 2022 Ohio 3524 ( 2022 )

[Cite as State v. Cutlip, 2022-Ohio-3524.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
BENJAMIN CUTLIP,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0032
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 20 CR 226
BEFORE:
Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, Atty. Daniel P. Fry, Assistant
Prosecuting Attorney, 52160 National Road, St. Clairsville, Ohio 43950 for Plaintiff-
Appellee and
Atty. Edward F. Borkowski, Jr., P.O. Box 609151, Cleveland, Ohio 44109 for Defendant-
Appellant.
Dated: September 30, 2022
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Robb, J.
{¶1} Appellant, Benjamin Cutlip, appeals his two convictions for aggravated drug
trafficking following a jury trial in the Belmont County Court of Common Pleas. Appellant
raises six assignments of error on appeal. He contends the trial court erred by overruling
his motion to suppress, denying his motion for a mistrial, and answering a jury question.
Appellant also asserts his convictions are against the manifest weight of the evidence
and not supported by sufficient evidence and that he was denied the effective assistance
of trial counsel. For the following reasons, we find the trial court erred based on the way
it answered the jury question but that the error was harmless. The remainder of his
assigned errors lack merit, and as such, we affirm Appellant’s convictions.
Statement of the Case
{¶2} Appellant was indicted by the grand jury in September of 2020 and charged
with three offenses: (1) aggravated trafficking in drugs, methamphetamine a Schedule II
drug in an amount that meets or exceeds 100 times the bulk amount, a first-degree felony
in violation of R.C. 2925.03(A)(2) and 2925.03(C)(1)(f) with a major drug offender
specification and a forfeiture of money specification; (2) aggravated possession of drugs,
methamphetamine, a first-degree felony in violation of R.C. 2925.11(A) and
2925.11(C)(1)(e) with a major drug offender specification; and (3) aggravated trafficking
in drugs, methamphetamine, a third-degree felony, in violation of R.C. 2925.03(A)(1) and
2925.03(C)(1)(c) with a forfeiture of money specification.
{¶3} Appellant failed to appear for his initial arraignment, and a warrant for his
arrest was issued. He was eventually arraigned September 16, 2020 and plead not guilty.
Appellant’s initial trial counsel, a public defender, moved to withdraw to avoid a conflict
because that office had previously represented the confidential informant who would
testify against Appellant. (September 21, 2020 Motion to Withdraw.) Appellant’s new
attorney, who represented him for the duration of the trial court proceedings, was then
appointed. (September 22, 2020 Judgment.)
{¶4} After the exchange of discovery, Appellant moved to suppress all evidence
seized by the state’s search warrant. (September 28, 2020 Motion to Suppress.) He later
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supplemented this motion to suppress arguing a lack of probable cause to issue the
search warrant. (December 11, 2020 Supplement to Defendant’s Motion to Suppress.)
{¶5} The trial court conducted a joint suppression hearing in Appellant’s case
with a companion criminal case involving Melanie Brado, who was evidently also charged
as a result of the same search warrant and seizure of the same evidence. Appellant and
Brado were in a romantic relationship. Although the suppression hearing was
consolidated, all other proceedings were separate.
{¶6} The suppression hearing was held December 14, 2020. The trial court
overruled the motion to suppress and Appellant’s motion to dismiss the charges via one
judgment. The court held the judge who issued the search warrant had a substantial
basis for concluding that probable cause existed to justify the issuance of the search
warrant. The trial court also found the search warrant was not overly broad; it was issued
soon after a controlled drug buy at that same location; and the scope of the warrant
reasonably included the camper and all containers therein which could have contained
the items to be searched for, i.e., cash, illegal drugs, drug paraphernalia, and cellular
phones. (January 27, 2021 Judgment Entry.)
{¶7} Appellant’s trial was held May 27, 2021 through June 2, 2021. The jury
found him guilty of all charges. The following is a summation of the evidence presented
at trial.
{¶8} Officer Michael Duplaga, a police officer with the city of St. Clairsville,
conducted a traffic stop on July 3, 2020 of Zackary Durbin. Durbin was driving on a
suspended license, and Duplaga found drug paraphernalia in his car. Durbin indicated
he did not want to go to jail, so in order to secure leniency, Durbin offered to work as a
confidential informant. Durbin completed one undercover transaction for Duplaga before
he agreed to work as an informant regarding Appellant. Durbin had evidently met
Appellant while they were in jail together. (Trial Tr. 307-309.)
{¶9} Durbin initially contacted Appellant via Facebook Messenger before the two
exchanged phone numbers. Then Durbin began texting Appellant. Durbin took
screenshots of the text exchanges with Appellant and forwarded them to Duplaga.
Appellant was out of town at the time of the initial text messages, but returned a day or
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so later and told Durbin to come to a camper. (Trial Tr. 315-322; state’s exhibits 13, 14
& 15.)
{¶10} The police gave Durbin money to purchase drugs, and they recorded the
serial numbers of the bills to trace them. (Trial Tr. 329.) The officers also gave Durbin a
key fob recording device that recorded audio and video of the controlled drug purchase
from Appellant. During the transaction, one police officer was stationed across the street
from where the camper was located and another officer, Officer Weyand, followed Durbin
to the location. Durbin purchased 3.46 grams of methamphetamine, or one “ball” for $200
from Appellant. Appellant can be heard in the audio recording also offering to sell Durbin
“four balls for seven,” meaning $700. (Trial Tr. 341-343; 363-364; 719; state’s exhibit 12
& 12A.)
{¶11} During the video, Durbin can be heard using methamphetamine with
Appellant, and Appellant tells him not to tell anyone where he got the drugs. But Appellant
also can be heard saying he would sell to Durbin, who could then sell to his friends at
work. (Trial Tr. 381-384.) The $200 the police provided to Durbin was later found in a
locked bag inside the camper that contained $3,700. It was under a pillow on the bed.
(Trial Tr. 397-398.)
{¶12} Durbin testified he had been abusing drugs since high school and he
became addicted to heroin after high school. In order to feed his addiction, he
acknowledged stealing to get money to buy drugs. He had approximately four convictions
for theft, which he confirmed during his testimony. (Trial Tr. 576-582.)
{¶13} He recalls being stopped in St. Clairsville for driving on a suspended license
on July 3, 2020, when he already had several other pending criminal charges. So, he
told Officer Duplaga he could assist the police in exchange for leniency or dismissal of
the new charges. Durbin first lined up a drug purchase from a female, which he
successfully completed. Thereafter, one of the officers mentioned Appellant’s name.
Durbin told officers he would try to contact him. Because Durbin did not have his number,
he messaged him on Facebook, which led to them texting one another. (Trial Tr. 588-
590.)
{¶14} Durbin’s texts with Appellant were admitted at trial. They depict the two
discussing meeting after Durbin is done working and after Appellant returned from a
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casino. Appellant indicated he was waiting to hear from another person before he could
return. The texts end with Durbin stating he will be done working at eight, and Appellant
tells him to call him when he returns to St. Clairsville. (State’s exhibits 44, 44A, 44B, 44C,
44D & 44E.)
{¶15} Durbin went to the camper with the recording device, and they eventually
went inside where Cutlip weighed the drugs and sold 3.46 grams of methamphetamine
to him. (Trial Tr. 607-610.) Durbin gave the money to Appellant, and he weighed the bag
in front of Durbin. Durbin eventually left the camper and met Weyand down the road at a
gas station where Durbin handed over the drugs.
{¶16} Durbin readily acknowledged benefitting from his cooperation with the
police and recalls a certain criminal charge against him was dismissed as a result, but he
could not remember which one since he had several pending at the time. (Trial Tr. 614-
616.)
{¶17} The video of the transaction does not actually show Appellant handing
Durbin the drugs or taking the money from him. (Trial Tr. 422.) Nevertheless, it is clear
the two men are discussing the use and sale of illegal drugs for the majority of their
interaction. It is also evident both men were using drugs during this time, and the one
man, who is purportedly Appellant, can be heard touting the quality of what he was selling
and the weight of what he was selling is better than others.
{¶18} During the recording, Appellant can also be heard saying he was selling
because he wanted to “get rich.” A man can also be seen wearing plaid shorts throughout
the video, who the state claimed is Appellant. Appellant can later be seen in the search
warrant body camera video wearing what appears to be these same shorts. (State’s
exhibit 29; defense exhibits C, B1 & B2.)
{¶19} Melanie Brado was present during the transaction, and another woman was
also there at the beginning, named Robin Brown. However, Brado’s interaction with
Durbin was quite limited, and it sounded like she was not in the same room with them for
the majority of the recording. (State’s exhibit 29.) Brado was evidently also charged with
drug trafficking as a result of this drug buy. She was also charged for another transaction
occurring about three weeks later on July 30, 2020, which resulted in the seizure of $3,460
in allegedly illegal contraband money. (Trial Tr. 499-501.)
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{¶20} The defense tried to get Duplaga to admit the text message exchanges
could have been faked or with another individual, but Duplaga disagreed indicating the
references to the casino in the texts by Appellant were consistent with his statements
during the recordings. Further, Duplaga noted the racial slurs used in these texts and
made by Appellant in the audio recordings were similar. (Trial Tr. 511-513.)
{¶21} David Wise owned the recreational vehicle (RV) site where the camper was
parked, and Wise recalls renting one of his sites to Appellant and Brado. Wise believed
Appellant was the owner of the camper based on his conversations and interactions with
him. (Trial Tr. 215-222.)
{¶22} During the search of the camper after the controlled drug buy, drugs were
found in a locked safe, which contained 209.25 grams of methamphetamine. The safe
was found under the mattress. Weyand also found a prescription pill bottle with
Appellant’s name on it inside a bedroom drawer. (Trial Tr. 467-469.) Drugs were also
found in another safe, a locked backpack, and other places throughout the camper.
{¶23} Rachel Keaton, a forensic scientist with BCI, testified there were no latent
fingerprints viable for analysis based on the items submitted to her. (Trial Tr. 251-277.)
{¶24} Keith Taggart, also a forensic scientist with BCI, [the Ohio Attorney
General’s Office, Bureau of Criminal Identification] testified he worked in the drug
chemistry section. During his testimony, Taggart verified he tested and weighed each
baggie and confirmed the weights of each. He also analyzed the contents of each baggie
and confirmed each contained methamphetamine, a Schedule II drug, as detailed in his
report. Taggart was asked about each of the 12 evidence items listed in his report and
verified the weight of each substance in each container and confirmed the results of his
analysis. These containers were found to contain more than 400 grams of
methamphetamine. (Trial Tr. 542-543.)
{¶25} He also explained anything over three grams of methamphetamine is
considered bulk amount, and thus, he confirmed if a particular statute called for more than
100 times bulk amount, then the weight of the drug in grams would have to meet or
exceed 300 grams. (Trial Tr. 543-544.)
{¶26} State’s exhibit 23 is the Ohio Bureau of Criminal Investigation laboratory
report prepared by Taggart. It identifies 12 evidence bags and lists the corresponding
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findings for the contents of each. His report concludes that more than 30 baggies
containing a crystalline substance were found to contain methamphetamine. (State’s
exhibit 23.) State’s exhibit 12, containing 3.46 grams of methamphetamine, was the
quantity Durbin purchased from Appellant. (Trial Tr. 425.)
{¶27} During cross-examination, Taggart agreed the names of Appellant, Brado,
and Brown were all listed on his report and the evidence bags, and these individuals were
all named suspects. (Trial Tr. 547.)
{¶28} At the conclusion of Taggart’s testimony, both counsel and the trial court
judge discussed the total weight of the drugs tested and admitted in front of the jury, and
the court indicated the weight of the substance in state’s exhibits one through eight totaled
approximately 428.01 grams. This is in addition to the 3.46 grams from state’s exhibit 12,
for a total of approximately 431.47 grams for all of the containers found to contain
methamphetamine. (Trial Tr. 527-530; state’s exhibit 23.) The state agreed the court’s
calculation of the total weight of the substance was consistent with Officer Duplaga’s
testimony as well. The court then indicated in light of that total weight, he asked whether
either attorney had additional questions for Taggart, and neither did. Defense counsel
did not object to the court’s addition of the weight of the total substance and did not
contradict the weight of these exhibits with other evidence. Counsel then stipulated,
consistent with Taggart’s testimony, when dealing with methamphetamine, “bulk amount”
per the applicable statute is three grams. (Trial Tr. 547-550.)
{¶29} Officer Duplaga testified he relayed the quantities of the drugs seized per
the search warrant and explained where in the camper each amount was located when
found by the police. He also described in detail how they found certain quantities
packaged in baggies for sale, which was verified via the state’s exhibits, including
photographs of the drugs and money seized as well as the BCI report. (Trial Tr. 647-654;
state’s exhibits 17,19, 23 & 28.)
{¶30} Officer Weyand also testified. He works for the county drug task force and
aided in the investigation. Weyand explained on the night of the controlled drug buy, he
provided Durbin with the recording device and $400 to purchase drugs. The money was
photocopied to document the serial numbers. He then followed Durbin to the scene of
the transaction and waited nearby in an unmarked car. Thereafter, Weyand met Durbin
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at a gas station and secured the drugs he purchased and remaining money from Durbin.
Weyand also retrieved the key fob recording device, which was played during trial.
Weyand acknowledged he did not search Durbin before the transaction even though this
is his usual protocol.
{¶31} Weyand participated in the search of the camper after the controlled buy.
He verified at least two pill bottles with Ben C. or Ben Cutlip printed on them were found
inside. One was in a drawer. Weyand’s body camera footage was played in part at trial.
Appellant can be heard in the recording stating he does not “stay there” at the camper.
Appellant can also be heard denying ownership of the safes found in the camper and
stating he does not know where the keys are to the safes. During the search, police also
found drug paraphernalia, including digital scales used to weigh drugs and pipes and
syringes used to administer illegal drugs. (State’s exhibit 17.) Weyand stated the shorts
Appellant is wearing in the video of the search appear to be the same ones depicted in
the confidential informant’s video. (Trial Tr. 759.)
{¶32} After closing arguments, there is a jury question about the weight of the
drugs in the backpack and in each of the safes found in the camper. The trial court judge,
along with the prosecutor and defense counsel, had a lengthy discussion about what the
evidence showed as to the weight of methamphetamine found in each of these three
containers before the court answered the jury’s question. Defense counsel asserted there
was conflicting testimony as to how much methamphetamine was found in the black safe.
The state agreed indicating the evidence did not establish with certainty how much was
in the backpack and the black safe, but said:
what we know for certain is that the black safe had 167.25 grams. Plus, we
know that there were three additional baggies; Officer Duplaga testified that
those were half-ounce baggies. We know the gray safe contained 83.7
grams and no additional baggies. And the backpack contained 55.98
grams, plus two, half-ounce additional baggies. * * * But the problem is
giving an exact weight would be difficult for the black safe and the backpack.
(Trial Tr. 878-882.) Defense also repeatedly objected to the court’s decision to answer
the jury question and insisted the court should advise the jury they had to rely on their
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collective memories. (Trial Tr. 875-886.) The court answered the question consistent
with the state’s argument.
{¶33} The jury ultimately found Appellant guilty of all three charges. Appellant’s
sentencing was held June 14, 2021. The court merged counts one and two, and the state
elected to proceed on count one. Appellant was then sentenced to a mandatory term of
11 years on count one and 36 months on count three to run consecutively for a minimum
mandatory term of 14 years. The court also imposed an indefinite term, resulting in a
total prison term of 14 to 19.5 years with five years post-release control; imposed a
$20,000 fine; and ordered forfeiture of $3,700 found in the camper.
{¶34} Appellant raises six assignments of error on appeal.
First Assignment of Error: Probable Cause to Issue Search Warrant
{¶35} Appellant’s first assignment of error asserts:
“The trial court erred by overruling Appellant’s motion to suppress.”
{¶36} Appellant contends the trial court lacked probable cause to issue the
warrant that led to the search of the camper for two reasons.
{¶37} First, Appellant argues the statements in the affidavit do not amount to
probable cause absent some additional indicia of veracity or corroborating evidence as
to the informant’s reliability. And because none was present here, the trial court’s
issuance of the warrant was improper and the resulting search and seizure of evidence
was illegal and should have resulted in an order suppressing it.
{¶38} Second, Appellant claims there was insufficient evidence in the affidavit to
establish a connection between the drugs involved in the controlled transaction and the
place to be searched, i.e., the camper. He says the affidavit fails to indicate the sale took
place in the camper, and as such, the search warrant was improper for this reason as
well. For the following reasons, both aspects of Appellant’s first assigned error lack merit.
{¶39} The Fourth Amendment of the United States Constitution provides: “The
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.” “Section 14, Article I
of the Ohio Constitution * * * afford[s] the same protection as the Fourth Amendment in
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felony cases.” State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, ¶
10, fn. 1.
{¶40} An affidavit used to secure a search warrant must provide the issuing
magistrate or judge with a substantial basis for determining the existence of probable
cause, and wholly conclusory statements in support are not enough. Illinois v. Gates,
462 U.S. 213, 239, 103 S.Ct. 2317 (1983) (adopting a flexible, common-sense standard
when reviewing the sufficiency of affidavits to secure a warrant). When a search warrant
is based only on information provided by affidavit, review of the issuing judge’s probable
cause determination is limited to the information found in the four corners of the affidavit.
State v. Long, 2020-Ohio-4090, 157 N.E.3d 362, ¶ 22, appeal not allowed, 160 Ohio St.3d
1496, 2020-Ohio-5634, 159 N.E.3d 282, and cert. denied, 141 S.Ct. 2611.
{¶41} Crim.R. 41(C), Search and seizure, states in part:
(1) A warrant shall issue on either an affidavit or affidavits sworn to before
a judge of a court of record * * *. In the case of a search warrant, the affidavit
shall name or describe the person to be searched or particularly describe
the place to be searched, name or describe the property to be searched for
and seized, state substantially the offense in relation thereto, and state the
factual basis for the affiant’s belief that such property is there located.
{¶42} The Ohio Supreme Court has succinctly set forth the governing law, as well
as our standard of review, in State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989),
paragraphs one and two of the syllabus, holding:
In determining the sufficiency of probable cause in an affidavit submitted in
support of a search warrant, “[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.” (Illinois v. Gates [1983], 462 U.S. 213, 238-239, 103 S.Ct.
2317, 2332, 76 L.Ed.2d 527 followed.)
* * * [T]he duty of a reviewing court is simply to ensure that the magistrate
had a substantial basis for concluding that probable cause existed. In
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conducting any after-the-fact scrutiny of an affidavit submitted in support of
a search warrant, trial and appellate courts should accord great deference
to the magistrate's determination of probable cause, and doubtful or
marginal cases in this area should be resolved in favor of upholding the
warrant. (Illinois v. Gates [1983], 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d
527 followed.)
{¶43} The affidavit of Officer Duplaga of the St. Clairsville Police Department
states in pertinent part:
I am currently investigating a drug trafficking case that started in the
City of St. Clairsville with a traffic stop. During the traffic stop, Officer
Duplaga found syringes in the CI’s vehicle. The CI offered to do a drug buy
on Benjamin C. Cutlip. The CI was in communication with Mr. Cutlip during
the date of 7/08/2020. Mr. Cutlip called the CI and told him to come to a
camper where he has been staying at the address of * * *[,] an address
known by the Belmont County Interdiction Unit. The camper is described
as follows: * * *.
On 07/08/2020 at about 2130 the CI arrived at the above camper
location to buy meth. The CI did end up buying meth in the amount of about
4 grams for $200.00[.] The CI then met up with Patrolman Weyand to hand
the meth over.
This search warrant will be for meth, other dangerous drugs, cell
phones, drug abuse equipment, tools for trafficking meth, or any other illegal
items that may aid 2925.03 or any other section of 2925.
(July 8, 2020 Affidavit.)
{¶44} Duplaga’s affidavit led to the issuance of a search warrant that ultimately
resulted in Appellant’s arrest and these convictions. As stated, the trial court overruled
Appellant’s motion to suppress and held in part the judge issuing the search warrant had
a substantial basis for concluding probable cause existed to justify the issuance of the
search warrant. The trial court also found the search warrant issued here was not overly
broad and it was issued soon after a controlled drug buy at that same location and the
scope of the warrant reasonably included the camper and all containers therein that could
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have contained the items to be searched for, i.e., cash, illegal drugs, drug paraphernalia,
and cellular phones. (January 27, 2021 Judgment Entry.)
{¶45} As for Appellant’s first sub-argument, he contends because Duplaga’s
affidavit contained hearsay statements, the affidavit also had to separately detail and
provide evidence bolstering the reliability of the informant. First, we note there is no
“indicia of veracity” requirement in Crim.R. 41(C) or the Fourth Amendment.
{¶46} Notwithstanding, Appellant’s argument likely arises from the U.S. Supreme
Court’s decision in Illinois v. Gates, supra, which the Ohio Supreme Court followed in
George, supra. In Gates, the U.S. Supreme Court held reviewing courts addressing
attacks on affidavits used to secure search warrants should be reviewed under the totality
of the circumstances. Gates further said reviewing courts:
must recognize * * * the value of corroboration of details of an informant’s
tip by independent police work. In Jones v. United States, [362 U.S. 257,
269, 80 S.Ct. 725 (1960), overruled on other grounds by United States v.
Salvucci, 448 U.S. 83, 100 S.Ct. 2547 (1980)], we held that an affidavit
relying on hearsay “is not to be deemed insufficient on that score, so long
as a substantial basis for crediting the hearsay is presented.” We went on
to say that even in making a warrantless arrest an officer “may rely upon
information received through an informant, rather than upon his direct
observations, so long as the informant’s statement is reasonably
corroborated by other matters within the officer’s knowledge.”
Id. at 241-42.
{¶47} Here, Duplaga’s affidavit, which appears to contain certain hearsay
information relayed by the informant, has sufficient and reasonable corroboration.
Duplaga explains he conducted a traffic stop and found syringes in the informant’s car.
This stop resulted in the driver agreeing to act as a confidential informant presumably
because he was using the items found in his car in connection with his illegal drug use.
{¶48} Duplaga also indicates in his affidavit the informant communicated with
Appellant, and he told the informant to come to the camper. It is unclear whether this
information or exchange was personally heard by Duplaga or if it was told to Duplaga by
the informant. Nevertheless, the affidavit also indicates after the informant completed the
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controlled drug buy at the camper, the informant returned with about four grams of
methamphetamine he purchased for $200. The informant then gave the drugs he
purchased to another officer. Although certain inferences are required, the foregoing
details are significant indicia of corroboration by independent police work.
{¶49} To complete a controlled drug buy, it was likely known by Duplaga and the
issuing judge certain procedures need to be followed, usually some type of audio or visual
recording and the use of marked or traced money to purchase drugs. And although these
protocols are not detailed in Duplaga’s affidavit, the fact that he states a controlled drug
buy occurred here suggests the police were involved in and oversaw the transaction.
Moreover, the informant returned with illegal drugs he handed over to police, which is
also significant evidence of corroboration of the informant’s story.
{¶50} Further, Duplaga indicates in his affidavit the county interdiction unit was
already aware of the address at which the defendant was staying before the informant
was told by Appellant to go to this address. When referring to the purchase location and
the address to be searched, Duplaga refers to it as “an address known by the Belmont
County Interdiction Unit.” This statement suggests there was other suspected criminal
activity at this location, which is corroboration supporting the reliability of the informant’s
statements and the issuance of the search warrant.
{¶51} In light of the foregoing, the trial court did not err in finding the judge issuing
the search warrant had a substantial basis for concluding probable cause existed based
on Patrolman Duplaga’s affidavit. Thus, the first aspect of this assignment lacks merit.
{¶52} As for Appellant’s second argument, claiming there was insufficient
evidence in the affidavit to establish a connection between the drugs involved in the
controlled drug buy and the place to be searched, i.e., the camper, this argument lacks
merit as well.
{¶53} Appellant argues the affidavit fails to indicate the sale took place in the
camper. However, the affidavit states Appellant was “staying” at the camper at the time;
he told the informant to go to this location; and the controlled drug buy occurred at that
same camper, which resulted in the informant returning with methamphetamine. Whether
the transaction occurred inside or outside of the camper is irrelevant. There is more than
a sufficient connection to this location based on the averments in the affidavit.
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{¶54} Upon affording great deference to the judge issuing the search warrant, we
find the affidavit used to secure the search warrant in this case was issued by a judge
who had a substantial basis for concluding probable cause existed. George, supra, at
641.
{¶55} Last, Appellant argues the good-faith exception will not apply in this case if
we find a lack of probable cause. That rule provides:
The Fourth Amendment exclusionary rule should not be applied so as to
bar the use in the prosecution’s case-in-chief of evidence obtained by
officers acting in objectively reasonable reliance on a search warrant issued
by a detached and neutral magistrate but ultimately found to be
unsupported by probable cause. (United States v. Leon [1984], 468 U.S.
897, 104 S.Ct. 3405, 82 L.Ed.2d 677, followed.)
State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989).
{¶56} Because the affidavit in support of the warrant here was more than sufficient
to show the judge had probable cause to issue the warrant, this court will not analyze the
application of the good-faith exception since the issue is moot. See Pernick v. Dallas, 7th
Dist. Jefferson No. 21 JE 0011, 2021-Ohio-4635, ¶ 51, appeal not allowed, 166 Ohio
St.3d 1449, 2022-Ohio-994, 184 N.E.3d 159 (declining to address moot issue). Thus,
Appellant’s first assignment lacks merit in its entirety.
Second Assignment of Error: Potential Juror’s Damaging Statement
{¶57} Appellant’s second assignment of error asserts:
“The trial court erred by overruling Appellant’s motion for a mistrial when a potential
juror stated during voir dire that he had arrested Appellant several times.”
{¶58} Appellant asserts he was denied his Sixth Amendment Right to an impartial
jury based on the potential juror’s derogatory statement about him at the beginning of the
proceedings. He claims the trial court abused its discretion by not declaring a mistrial.
{¶59} A mistrial is appropriate when the substantial rights of the accused or
prosecution are adversely affected making a fair trial no longer possible. Illinois v.
Somerville, 410 U.S. 458, 462-463, 93 S.Ct. 1066 (1973); State v. Franklin, 62 Ohio St.3d
118, 127, 580 N.E.2d 1 (1991). The decision to grant a mistrial “is an extreme remedy
only warranted in circumstances where a fair trial is no longer possible and it is required
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to meet the ends of justice.” State v. Jones, 83 Ohio App.3d 723, 615 N.E.2d 713 (2d
Dist.1992).
{¶60} Because the trial court is afforded broad discretion upon considering a
motion for a mistrial, we review that decision for an abuse of discretion. State v. Schiebel,
55 Ohio St.3d 71, 564 N.E.2d 54 (1990), paragraph one of the syllabus.
{¶61} During the initial questioning of the jury pool at the beginning of voir dire,
the judge asked if any of the potential jurors were acquainted with the parties. One juror
raised his hand indicating he knew the defendant. A while later, while speaking directly
to this potential juror in the presence of the other potential jurors, the following exchange
took place:
THE COURT: All right. Mr. Burns, * * * I believe the first [issue] was you
had an acquaintance with the case and/or the parties?
PROSPECTIVE JUROR BURNS: Yes.
THE COURT: And how’s that? I don’t want you to go into details about
what you know, just how you know.
PROSPECTIVE JUROR BURNS: As [a] former police officer, I’ve arrested
the defendant on several occasions.
{¶62} Counsel and the judge immediately conducted a sidebar conference out of
the presence of the jury, and Appellant’s attorney asked for a mistrial or in the alternative,
for a curative instruction directing the jury to disregard Mr. Burns’ statement. The state
agreed a curative instruction was appropriate, and the court directly thereafter addressed
the jury pool and stated:
Mr. Burns has just indicated a prior relationship or interaction with Mr. Cutlip.
You are to disregard that comment. Remember, I told you earlier, you
decide guilt or innocence based on the evidence that you hear from the
witness stand, that you see from the witness—as presented by the
witnesses. So you are to disregard the comment by Mr. Burns or the answer
to the question that he gave. That is to have no impact whatsoever upon
anything else that occurs during the trial of this case.
The court then excused Mr. Burns as a potential juror and immediately proceeded to
address a different prospective juror. (Trial Tr. 12, 27-30.)
Case No. 21 BE 0032
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{¶63} As stated, Appellant claims it was an abuse of discretion not to grant a
mistrial based on Mr. Burns’ statement. Alternatively, he contends the court should have
individually polled the jurors to ensure their impartiality was not tainted by his statement.
{¶64} The Ohio Supreme Court in State v. Garner , 74 Ohio St.3d 49, 59, 656 N.E.
2d 623 (1995) addressed a comparable issue. In Garner, a police investigator
inadvertently testified during trial the defendant had been previously arrested. The officer
said in part upon researching the phone number associated with a certain address, “it
came back [to] William Garner using that address in one of his arrests.” (Emphasis
added.) The officer essentially told the jurors Garner had been arrested at least twice.
Garner’s attorney objected to this reference and moved for a mistrial. The court overruled
the motion but sustained the objection to this line of testimony. It immediately instructed
the jury to disregard the officer’s statement. Id. at 58. On appeal, the Supreme Court
upheld the decision denying the motion for mistrial. It held there was no abuse of
discretion because the reference to the defendant’s prior arrests was fleeting and
promptly followed by curative instructions. Id.
{¶65} This court reached the same outcome in another case. In State v.
Loterbaugh, 7th Dist. Carroll No. 19 CA 0931, 2020-Ohio-1104, we found the defendant
was not denied a fair trial based on his mother’s inadvertent statement during her
testimony that the defendant (her son) had previously been in jail. We noted the reference
was brief, isolated, and did not unfairly prejudice the defendant. Id. at ¶ 57-58.
{¶66} Consistent with Garner and Loterbaugh, the potential juror’s statement
about arresting Appellant in this case was limited in duration and detail. It provided no
information about Appellant’s prior arrests or what the alleged offenses were, and the trial
court’s curative instruction was given immediately and before the court began addressing
another potential juror. The trial court also swiftly overruled Appellant’s motion for a
mistrial, and discharged Mr. Burns as a potential juror.
{¶67} When the jury was selected and after they entered the courtroom together
for the first time, the court reminded the jurors they had not yet heard any evidence in the
case and all of the preliminary jury selection comments and questions were not evidence
in this case. (Trial Tr. 165.) The jurors verified they would abide by the court’s
Case No. 21 BE 0032
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instructions, apply the law, and limit their determination to only the evidence presented at
trial.
{¶68} And the Supreme Court has held, “[i]f an error occurs, such as the jury
hearing improper testimony, the ‘jury is presumed to follow the instructions, including
curative instructions, given it by a trial judge.’” State v. Cepec, 149 Ohio St.3d 438, 2016-
Ohio-8076, 75 N.E.3d 1185, ¶ 89, quoting Garner, supra, 59. Thus, we presume the
jurors disregarded Mr. Burns’ statement during voir dire.
{¶69} Moreover, Officer Duplaga testified during trial that he asked Durbin if he
could act as an informant on Appellant. Durbin said he would try and he had met
Appellant while the two were in jail together. (Trial Tr. 307-308.) Thus, evidence
Appellant had previously been arrested was before the jury thereby reducing any affect
Mr. Burns’ statement may have had.
{¶70} Appellant contends the court should have polled the jurors to ensure each
was able to perform their role as impartial jurors and disregard the comment during the
proceedings. While this may have helped ensure the jurors understood their obligation,
the questioning proposed by Appellant may have highlighted the substance of Mr. Burns’
statement, and the repetition of it may have amplified the alleged damage.
{¶71} Based on the foregoing, the trial court did not abuse its discretion by
overruling Appellant’s motion for a mistrial, and Appellant had a fair trial notwithstanding
the potential juror’s comment. This assignment of error lacks merit.
Third Assignment of Error: Manifest Weight of the Evidence
{¶72} Appellant’s third assignment of error asserts:
“Appellant’s convictions were against the manifest weight of the evidence.”
{¶73} Appellant identifies four reasons or sub-arguments which allegedly show
the jury lost its way and failed to properly evaluate the evidence presented at trial, and
thus, he claims this court should reverse and remand for a new trial. Appellant claims the
testimony of the confidential informant was so dubious the jury could not have believed
him; the state’s evidence failed to show a substantial connection between Appellant and
the camper where the drugs were found; the state failed to establish with enough detail
where the varying quantities of drugs were found; and collectively these shortcomings
establish his convictions are against the manifest weight of the evidence.
Case No. 21 BE 0032
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{¶74} A manifest weight review requires us to review the evidence and determine
whether this is an exceptional case in which it is patently apparent the jury lost its way.
State v. Thompkins, 78 Ohio St.3d 380, 389, 678 N.E.2d 541 (1997). The reversal of a
jury’s verdict on manifest weight grounds requires a unanimous concurrence of all three
judges. Id.The * * * weight of the evidence addresses the evidence’s effect of inducing
belief. * * * In other words, a reviewing court asks whose evidence is more
persuasive—the state’s or the defendant’s? * * * [A]lthough there may be
sufficient evidence to support a judgment, it could nevertheless be against
the manifest weight of the evidence. * * * ‘When a court of appeals reverses
a judgment of a trial court on the basis that the verdict is against the weight
of the evidence, the appellate court sits as a “thirteenth juror” and disagrees
with the factfinder's resolution of the conflicting testimony.’ * * *.
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.
{¶75} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. “A jury is free to believe all, some, or none of
the testimony of each witness appearing before it.” State v. Ellis, 8th Dist. Cuyahoga No.
98538, 2013-Ohio-1184, ¶ 18, citing Iler v. Wright, 8th Dist. Cuyahoga No. 80555, 2002-
Ohio-4279, ¶ 25.
{¶76} As stated, Appellant was convicted of count one, aggravated trafficking in
drugs in violation of R.C. 2925.03(A)(2) and (C)(1)(f), a first-degree felony with a major
drug offender specification and forfeiture of money specification, which state:
(A) No person shall knowingly do any of the following:
***
(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or
distribute a controlled substance or a controlled substance analog, when
the offender knows or has reasonable cause to believe that the controlled
substance or a controlled substance analog is intended for sale or resale by
the offender or another person.
***
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(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, * * * 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 * * *, 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.
R.C. 2925.03.
{¶77} Appellant was also convicted of count three, aggravated trafficking in drugs
in violation of R.C. 2925.03(A)(1) and (C)(1)(c), a third-degree felony with a forfeiture of
money specification, which state:
(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, * * * whoever
violates division (A) of this section is guilty of aggravated trafficking in drugs.
The penalty for the offense shall be determined as follows:
***
(c) Except as otherwise provided in this division, if the amount of the drug
involved equals or exceeds the bulk amount but is less than five times the
bulk amount, aggravated trafficking in drugs is a felony of the third degree,
Case No. 21 BE 0032
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and, except as otherwise provided in this division, there is a presumption
for a prison term for the offense.
R.C. 2925.03.
{¶78} As for count one, the state detailed via the testimony of Durbin, Duplaga,
Taggart, and Weyand that more than 400 grams of methamphetamine was found in the
bedroom of the camper where Appellant was staying. Appellant told Durbin to come to
this location where they both used methamphetamine and where Appellant sold Durbin
methamphetamine.
{¶79} During the recording of their interaction, which was played at trial, Durbin
met with Weyand at the beginning of the recording and is given a key fob recording device
before driving to meet Appellant. Several segments of the recording were introduced at
trial.
{¶80} Appellant can initially be heard asking Durbin how he learned about him or
who told him about him, and then he told Durbin it does not matter if everything is “cool.”
While outside, they talked about a motorcycle Appellant wanted to sell before they went
inside. Appellant stated in passing his wife wanted to take the motorcycle from him since
he crashed it.
{¶81} The two then went inside where they begin talking about drugs. Appellant
can be heard stating he is meticulous in weighing and appears to brag about what he
sells as high quality and not “junk” drugs otherwise cut or mixed with another substance.
Durbin purchased 3.46 grams of methamphetamine, or one “ball,” for $200 from
Appellant. Appellant can be heard in the recording also offering to sell him a larger
quantity at a discounted rate; he would sell Durbin “four balls for seven,” meaning $700.
(Trial Tr. 363-364.)
{¶82} Appellant then can be heard talking about other people who have reduced
the weight of “zips” and “balls” in order to increase profits, before he says he “will do one
with you,” meaning using drugs with Durbin. Appellant can be heard asking Durbin if he
needs a “stick,” meaning a needle for injecting. Durbin says he was having trouble,
indicating he was unable to find a vein to use. Appellant then asked Durbin: “Did you get
a good one. If not, I’m gonna get you some more?” Durbin told Appellant he “can’t get
good shit” lately.
Case No. 21 BE 0032
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{¶83} Appellant then instructs Durbin not to tell anyone where he “got this stuff”
unless they already know him. “I don’t let everybody through that door.” He said people
who tamper with his “stuff,” damage his reputation with “junk dope.” (State’s exhibit 29.)
{¶84} After the search warrant was issued, the police searched the camper and
found more than 400 grams of methamphetamine. The officers had to cut open a locked
backpack, which contained several smaller bags or containers that had individual or
smaller sized plastic bags of a substance in each. Some were packaged for sale in
stamp-sized baggies. Two safes were found and Appellant denied having the keys or
knowing the combinations. One contained baggies later determined to contain
methamphetamine, and each was similar to that sold to Durbin. (State’s exhibits 12-A,
17 & 25.)
{¶85} The weight of each evidence bag is detailed in testimony and in the BCI
reports. The seized drugs, money, and drug paraphernalia are depicted in the state’s
photograph exhibit 17. It shows numerous baggies of varying quantities and sizes, along
with cash and drug paraphernalia, secured via the warrant. (State’s exhibit 17.) The
money the police gave to Durbin and he used to purchase methamphetamine from
Appellant was found in a locked bag under a pillow on the bed in the camper. The money
was found in a bag with other cash totaling $3,700.
{¶86} Weyand acknowledged he did not search Durbin before the transaction
even though this is the usual protocol. The defense relies on this detail as showing Durbin
may have planted the drugs to help the police with Appellant and secure reduced criminal
charges for himself. The defense also relies on Appellant’s statements heard in the
search warrant body camera footage when Appellant asserts this is not his camper and
he does not stay there. However, the jury did not believe him.
{¶87} As mentioned, Appellant first claims Durbin lacked credibility and this
coupled with the fact police failed to search him before the controlled drug buy gave
Durbin motive and opportunity to “set up” Appellant in order to secure leniency in Durbin’s
own criminal cases.
{¶88} While the evidence does establish the officers did not search Durbin, which
is out of compliance with protocol, this fact was before the jury for it to consider. Also,
Durbin was very candid and forthcoming in his testimony in which he details his history of
Case No. 21 BE 0032
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abusing drugs and criminal record, which he incurred mostly to support his addiction.
This information was before the jury for it to consider, and it believed Durbin nonetheless.
Thus, this fails to show Appellant’s convictions are against the manifest weight of the
evidence. Credibility issues are within the realm of the trier of fact, and it is not the function
of a reviewing court to second-guess a jury’s decision. State v. Johnson, 7th Dist.
Mahoning No. 19 MA 0030, 2020-Ohio-3640, ¶ 7 (the jury is in the best position to view
the witnesses, observe their demeanor, gestures, and voice inflections).
{¶89} As for the next sub-argument, Appellant argues there was conflicting
evidence as to whether he had control over the camper where the drugs were found. His
counsel intimated throughout trial the drugs were not Appellant’s but they belonged to
and were being sold by the two women, who were also present during the controlled buy
and subsequent search. We disagree.
{¶90} Although Brado and Brown were both present at the time of the search and
the Durbin transaction, the recording of the controlled drug buy clearly depicts Appellant
as the individual interacting with Durbin and handling the transaction. Brown can be heard
leaving soon after Durbin’s arrival, and the audio suggests Brado was in another part of
the camper during the majority of Durbin’s visit. Her interaction with Durbin was limited
and occurred only at Appellant’s prompting.
{¶91} Further, there was more than enough evidence showing Appellant was
either the owner of the camper or was staying there with Brado, who Appellant referred
to as his wife in the recording. The owner of the RV site verified Appellant paid two
months’ rent for the site and he believed Appellant owned the camper. Officer Weyand
also found two pill bottles inside the camper with Appellant’s name on them. Durbin’s
testimony and controlled drug buy footage establish the two men were at the camper,
both inside and out, for the extent of the transaction.
{¶92} Appellant’s third sub-argument contends the evidence at trial was unclear
about what quantities of methamphetamine were found in the camper and this is
illustrated by the jury’s question about what quantity was found in which container.
Contrary to Appellant’s argument, the state provided evidence via testimony and exhibits
detailing the quantity of methamphetamine found. The weight of each state’s exhibit was
verified via Taggart’s testimony and his report. (State’s exhibit 23.) And at the conclusion
Case No. 21 BE 0032
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of Taggart’s testimony, the trial court had him verify the sum of the first eight state’s
exhibits and that each contained methamphetamine. State’s exhibits one through eight
totaled approximately 428.01 grams. This is in addition to the 3.46 grams from state’s
exhibit 12, for a total of approximately 431.47 grams for all of the containers found to
contain methamphetamine. (Trial Tr. 527-530; state’s exhibit 23.)
{¶93} It was undisputed the drugs were found inside the camper in varying
containers, including backpacks, smaller cloth bags with locked zippers, and locked
safes. Whether a certain quantity or baggie was found in a backpack or a black safe is
of no consequence since it all was found in the camper. This argument fails to show
Appellant’s convictions are against the manifest weight of the evidence.
{¶94} Finally, Appellant contends collectively the three arguments make his
convictions against the manifest weight of the evidence. This court disagrees because
we cannot conclude it is patently apparent the jury lost its way. Thus, this assigned error
is overruled.
Fourth Assignment of Error: Insufficient Evidence
“Appellant’s conviction for trafficking (Count 1) was unsupported by sufficient
evidence.”
{¶95} Appellant asserts there was insufficient evidence to convict for count one,
contending the only way to reach the finding was to stack an inference upon an inference.
Thus, he claims his conviction in violation of R.C. 2925.03(A)(1) must be reversed.
{¶96} Whether evidence is legally sufficient to sustain a verdict is a question of
law, which appellate courts review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997); In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, 979 N.E.2d 1203,
¶ 3. On appeal we determine whether the evidence presented, viewed in a light most
favorable to the prosecution, allows a rational trier of fact to find the essential elements
of the crime established beyond a reasonable doubt. State v. Dent, 163 Ohio St.3d 390,
2020-Ohio-6670, 170 N.E.3d 816, reconsideration denied sub nom. State v. Walker, 160
Ohio St.3d 1517, 2020-Ohio-6946, 159 N.E.3d 1179.
{¶97} The only count Appellant challenges here is count one, aggravated
trafficking in drugs in violation of R.C. 2925.03(A)(2) and (C)(1)(f), a first-degree felony
Case No. 21 BE 0032
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with a major drug offender specification and forfeiture of money specification, which
provide:
(A) No person shall knowingly do any of the following:
***
(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or
distribute a controlled substance or a controlled substance analog, when
the offender knows or has reasonable cause to believe that the controlled
substance or a controlled substance analog is intended for sale or resale by
the offender or another person.
***
(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, * * * 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 * * *, 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.
R.C. 2925.03.
{¶98} Because Appellant limits his challenge in this assignment to the first count,
we likewise limit our review. Appellant contends in order to convict him of count one, the
jury had to stack inferences, claiming it had to infer Appellant had access to the drugs
inside the camper and infer he packaged them for sale. He claims the jury could not have
reached this conclusion any other way. We disagree.
{¶99} In support, Appellant relies on State v. Cowans, 87 Ohio St.3d 68, 78, 717
N.E.2d 298 (1999), which held in part:
Case No. 21 BE 0032
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A trier of fact may not draw “[a]n inference based * * * entirely upon another
inference, unsupported by any additional fact or another inference from
other facts[.]” Hurt v. Charles J. Rogers Transp. Co. (1955), 164 Ohio St.
329, 58 O.O. 122, 130 N.E.2d 820, paragraph one of the syllabus.
However, “[a]n inference * * * based in part upon another inference and in
part upon facts is a parallel inference and, if reasonable, may be indulged
in * * *.” Id., paragraph two of the syllabus.
The Supreme Court in Cowans agreed because the state relied on the victim’s lack of
defensive wounds to argue and allow the jury to infer her attacker used a weapon to
subdue her. Then the state used a second inference, i.e., “that the BB gun found in
Cowans’ truck was the weapon used.” Id. at 79.
{¶100} Here, there is no such inference stacking necessary. To the contrary,
there was direct evidence Appellant had access to the camper and sold Durbin
methamphetamine from that location. Appellant told Durbin to meet him at the camper.
Appellant met Durbin there and escorted him inside. Further, the owner of the RV site
testified Appellant paid the fee for renting the site and believed Appellant owned the
camper. Moreover, pill bottles with Appellant’s name on them were found in the bedroom
area of the camper that also contained a large quantity of drugs. Some of the
methamphetamine found inside the camper was packaged for sale in individualized
baggies.
{¶101} During the video Appellant can be heard offering to sell Durbin a larger
quantity at a discount, and Appellant suggests Durbin could then sell the drugs to his co-
workers. Digital scales and other drug paraphernalia were also found in the camper, and
during Durbin’s visit, Appellant weighed the drug in front of Durbin to show him how much
he was buying. (Trial Tr. 606-607.)
{¶102} There was more than enough direct and circumstantial evidence
presented at trial showing Appellant either owned the camper or lived there and he sold
drugs from that location. Thus, the only inference the jury arguably had to make was
Appellant packaged or prepared the methamphetamine in the individual baggies found in
the camper for sale. This conclusion was reasonable in light of Appellant’s recorded
statements touting the quality and quantity of the drugs he sold. Further, Taggart testified
Case No. 21 BE 0032
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as to the quantity or weight of each container and verified the state’s exhibits one through
eight and twelve each were found to contain methamphetamine. Collectively, state’s
exhibits one through eight were found to contain more than 400 grams of
methamphetamine, a Schedule II drug. (Trial Tr. 542-543 & 547.)
{¶103} Thus, Appellant’s argument claiming improper stacking of inferences has
no merit. When viewed in a light most favorable to the prosecution, the evidence at trial
allowed the jury to find the essential elements of the crime established beyond a
reasonable doubt, and as such, this assignment is overruled.
Fifth Assignment of Error: Judge Invading the Province of the Jury
{¶104} Appellant’s fifth assignment of error asserts:
“The trial court abused its discretion in responding to a jury question.”
{¶105} Appellant argues the trial court abused its discretion by answering a jury
question. After closing arguments and during deliberations, the jury asked about the
weight of the drugs in three containers found during the search: the black safe, the gray
safe, and the backpack. Appellant claims the trial court’s act of answering this question
decided a question of fact, in place of the jury, and the court’s answer to the question was
unsupported by evidence.
{¶106} For the following reasons, we find the trial court erred by answering the
jury’s question in the manner it did, instead of advising the jury to rely on their collective
memories of the evidence and to review the exhibits or by reading a segment of trial
testimony to the jury. Nevertheless, its error was harmless because Appellant fails to
identify resulting prejudice.
{¶107} The precise text of the jury’s question is not in the record, but the following
exchange summarizes the jury’s question, counsels’ responses and objections, and the
court’s response:
THE COURT: All right. [The bailiff] just handed me this, said he got a call
from one of the jurors. He went in and they handed him that.
So [the court reporter] thinks it means how much weight was in each safe
and how much weight was in the backpack.
So, Mr. Flanagan, what do you want me to respond?
Case No. 21 BE 0032
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THE PROSECUTOR: Well, I could see it going two ways. First of all, you
must rely on your collective memory, or it was pretty definitive if we spell out
the amounts that were in the backpack. I would have no issue if we did that.
THE COURT: That is my thinking, too.
[DEFENSE COUNSEL]: * * * we would request that the Court answer that
they have to rely on their collective memories of the evidence; that we are
not permitted to comment on evidence. Thank you.
(Trial Tr. 875.)
{¶108} The court then directs counsel to consult their notes on the issue, so they
could determine how much was in each safe and the backpack. Defense counsel renews
his objection to answering the question but participates in the discussion.
{¶109} In response to the court’s directive, defense counsel proposed telling the
jury the evidence presented during trial showed the gray safe contained 83.7 grams of
alleged methamphetamine and the backpack was found to contain 55.98 grams of alleged
methamphetamine. He then advised the court the testimony about the amount of alleged
methamphetamine in the black safe was conflicting. He stated one witness testified the
black safe contained 209.25 grams whereas another witness said it contained 167.25
grams. Thus, he recommended telling the jury the lower number, or the black safe
contained 167.25 grams of alleged methamphetamine. (Trial Tr. 877-878.)
{¶110} In response, the prosecutor agreed providing the exact amount or weight
of the alleged drugs found in the black safe would be difficult. Notwithstanding, the
prosecutor then explained away the discrepancy in the testimony, indicating the contents
weighed 167.25, and in addition, there were three additional baggies containing half an
ounce each or 14 grams each bag. So, the prosecutor indicated the black safe contained
209.25 grams total—167.25 grams plus 42 grams (the product of 14 times three). (Trial
Tr. 879-880.)
{¶111} As for the backpack, the prosecutor explained the discrepancy on the
weight of its contents as well, stating the testimony showed the backpack contained 55.98
grams in addition to two additional half-ounce bags, containing approximately 14 grams
in each for an additional 28 grams. Thus, the state proposed telling the jury the backpack
contained 83.98 grams of alleged methamphetamine, since 28 plus 55.98 equals 83.98.
Case No. 21 BE 0032
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During this discussion with the court, defense counsel did not dispute the existence of
these additional baggies in evidence or the stated quantities indicated by the prosecutor,
but he consistently objected to the court answering the jury’s question.
{¶112} The trial court then concluded this colloquy with counsel and informed
them it was going to answer the jury question by stating: “Smaller safe, gray, 83.70
grams. Larger safe, black, 209.25 grams. Backpack 83.98 grams. You must use your
collective memories to consider these and the remaining amounts as listed on State’s
Exhibit * * * 23.” (Trial Tr. 885-886.) Thus, the court used the larger quantity totals
proposed by the state. The state’s exhibit 23 is Taggart’s BCI laboratory report detailing
the weight and content of each of the state’s 12 evidence bags.
{¶113} The jury’s question, seeking the weight of the substance found in the two
safes and the backpack, seems to spring from defense counsel’s cross-examination of
Officer Duplaga toward the end of the trial. He asked Duplaga about the weight of the
methamphetamine found in these three containers. Duplaga first verifies according to his
calculations, the total amount of methamphetamine recovered was 428.01 grams. (Trial
Tr. 737-738.) Duplaga is then asked to confirm via cross-examination the black safe
found under the bed contained 167.25 grams; the small gray safe was found to contain
83.70 grams; and the backpack was found to contain 55.98 grams. (Trial Tr. 739-742.)
Although Duplaga readily agreed with the defense’s stated quantities, no one brought up
the additional quantities found in the half-ounce baggies found in the black safe and the
backpack during this segment of his testimony.
{¶114} The jury likely had this question because this line of cross-examination
does not correlate with the manner in which the state presented its testimony or the way
the state packaged its evidence found during the search of the camper. State’s exhibit
23 (Taggart’s report) listed, weighed, and analyzed the 12 state’s evidence bags; it does
not, however, indicate whether each baggie was found in the black safe, the gray safe,
the backpack, or elsewhere. The testimony during the state’s case in chief likewise does
not align with or correspond to these three containers.
{¶115} The Supreme Court has addressed the propriety of a trial court’s decision
to answer a jury question during deliberations and held a court is well within its discretion
to read back part or all of a particular witnesses’ testimony in order to answer a jury’s
Case No. 21 BE 0032
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question. State v. Berry, 25 Ohio St.2d 255, 267 N.E.2d 775 (1971) paragraph four of
the syllabus; State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶
123.
{¶116} And other courts, including this one, have held a court has discretion not
to answer a jury question during deliberations. State v. Hull, 7th Dist. Mahoning No. 04
MA 2, 2005-Ohio-1659, ¶ 48-49, aff'd, 110 Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d
706; State v. Brown, 11th Dist. Trumbull No. 95-T-5349, 2000 WL 522339, *4. It is widely
acceptable to advise the jury to rely on its recollection of the evidence presented at the
trial. Id.{¶117} In State v. Frost, 14 Ohio App.3d 320, 471 N.E.2d 171 (11th Dist.1984),
the Eleventh District Court of Appeals found the trial court abused its discretion when it
responded to several jury questions during deliberations by questioning a witness. Frost
reversed and remanded, finding the trial court erred by “interrogating the arresting officer,
an Ohio State Patrol trooper, as to said evidence in the presence of the jury.” Id. at 322.
The court of appeals held: “Any question by the jury during its deliberations, as to matters
of evidence, if answered by the court, may only be answered by repeating, in some
fashion, the evidence or testimony offered during the trial itself.” Id. at 322.
{¶118} Unlike Berry and Leonard, the trial court here not only repeated evidence,
but arguably construed it to conform to the substance of the juror’s question. The court
did not merely re-read Duplaga’s or Taggart’s testimony but added certain figures to
secure an answer that does not appear to neatly correspond with one exhibit or one
witness’ testimony. Thus, the court acted in an arbitrary and capricious manner by
answering the question in the manner it did, and consequently, we find an abuse of
discretion. Notwithstanding, the error was harmless. See State v. Jones, 160 Ohio St.3d
314, 2020-Ohio-3051, 156 N.E.3d 872, ¶ 18-19.
[W]hen a defendant objects to an error, an appellate court
applies harmless-error review. * * * Under that standard, the state “bears
the burden of demonstrating that the error did not affect the substantial
rights of the defendant.” * * * Whether the defendant's substantial rights
were affected depends on whether the error was prejudicial, i.e., whether it
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affected the outcome of the trial. * * * An appellate court is required to
reverse the conviction when the state is unable to meet its burden. * * *
We have recognized that when a defendant is represented by
counsel and tried by an impartial fact-finder, there is a strong presumption
that all errors—constitutional and nonconstitutional—are subject
to harmless-error review.
Id.{¶119} As stated, Appellant was convicted of count three: aggravated trafficking
in drugs, methamphetamine, a third-degree felony in violation of R.C. 2925.03(A)(1) and
2925.03(C)(1)(c) with a forfeiture of money specification. Count three corresponds with
the sale to Durbin, who purchased 3.46 grams of methamphetamine from Appellant.
State’s exhibit 12 contained the substance Durbin delivered to police after the transaction
and was analyzed by Taggart. (Tr. 435-426, 719; state’s exhibit 23.)
{¶120} Appellant was also convicted of count one: aggravated trafficking in drugs,
methamphetamine a Schedule II drug in an amount that meets or exceeds 100 times the
bulk amount, a first-degree felony in violation of R.C. 2925.03(A)(2) and 2925.03(C)(1)(f)
with a major drug offender specification and a forfeiture of money specification. As
explained and detailed via trial testimony, when dealing with methamphetamine, an
amount more than three grams constitutes bulk amount, and 100 times bulk amount is
300 grams or more. (Trial Tr. 543-544.)
{¶121} It is undisputed in addition to the 3.46 grams sold to Durbin, more than 400
additional grams of methamphetamine were found in the camper. This includes the drugs
found in both safes and the backpack as well as other amounts found elsewhere, not in
these three containers. Duplaga testified that 428.01 grams of methamphetamine were
found in the camper during the search, which corresponds with count one, and this was
in addition to the 3.46 grams sold to Durbin, which supported count three. (Trial Tr. 423-
426; state’s exhibit 23.) Thus, the trial court’s error was harmless since the court’s
decision to calculate certain quantities when answering the jury question did not affect
the outcome of the proceedings.
{¶122} Further, the quantities proposed by Appellant’s counsel during the
colloquy with the court also equal more than 300 grams. Consequently, had the trial court
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used Appellant’s proposed quantities, which totaled 306.93, this was sufficient to support
a conviction on count one. Despite the error, reversal is not required.
Sixth Assignment of Error: Ineffective Trial Counsel
{¶123} Appellant’s sixth and final assignment of error asserts:
“Appellant’s counsel was ineffective.”
{¶124} To establish a claim of ineffective assistance of counsel, a defendant must
show both his trial counsel’s performance was deficient, in that it fell below an objective
standard of care, and the deficient performance resulted in prejudice. State v. Bradley,
42 Ohio St.3d 136, 141-143, 538 N.E.2d 373 (1989), citing Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052 (1984).
{¶125} Licensed attorneys in Ohio are presumed competent. State v. Calhoun,
86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In evaluating trial counsel’s performance,
appellate review is highly deferential because of the strong
presumption counsel’s conduct fell within the wide range of reasonable
professional assistance. Bradley at 142-143, citing Strickland at 689. In fact, appellate
courts are prohibited from second-guessing trial counsel’s strategic decisions. State v.
Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).
{¶126} Appellant claims his trial counsel was deficient for not filing an affidavit of
indigency in light of the fact Appellant had been deemed indigent at the beginning of the
proceedings and for not asking the court to waive the mandatory fine. Because the court
imposed a $20,000 fine, Appellant claims he was prejudiced as a result of his attorney’s
deficiency. This court disagrees and overrules this assigned error because Appellant
cannot establish his counsel was deficient and likewise cannot show resulting prejudice
based on the record.
{¶127} R.C. 2929.18(B)(1), governing felony financial sanctions, states in part:
For a first, second, or third degree felony violation of any provision of
Chapter 2925. * * * of the Revised Code, the sentencing court shall
impose upon the offender a mandatory fine of at least one-half of,
but not more than, the maximum statutory fine amount authorized for
the level of the offense pursuant to division (A)(3) of this section. If
an offender alleges in an affidavit filed with the court prior to
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sentencing that the offender is indigent and unable to pay the
mandatory fine and if the court determines the offender is an indigent
person and is unable to pay the mandatory fine described in this
division, the court shall not impose the mandatory fine upon the
offender.
(Emphasis added.)
{¶128} Thus, the court is prohibited from imposing the corresponding fine if the
defendant files an affidavit of indigency before sentencing and if the court also determines
the defendant is indigent and unable to pay. A plain reading of R.C. 2929.18(B)(1) shows
that both prongs must be met. Id.{¶129} As Appellant contends, his trial counsel did not file the requisite affidavit in
advance of Appellant’s sentencing, as required in R.C. 2929.18(B)(1). However, no one
raised the lack of affidavit of indigency before the court imposed Appellant’s sentence,
and the state did not object on this basis.
{¶130} Moreover, Appellant’s attorney did ask the court to waive the mandatory
fees during the sentencing hearing. The court addressed the issue on the merits and
apparently without notice that a financial affidavit was not filed beforehand. During
Appellant’s sentencing hearing, his defense counsel orally moved the court to waive the
mandatory fines. The following exchange occurred:
[DEFENSE COUNSEL]: * * * my client has been incarcerated for some time
and he will be incarcerated for some time hereafter. I do make a motion for
the Court to not impose fines in this case in light of his indigent status, Your
Honor.
***
THE COURT: An interesting point because I remember the testimony from
the trial that all of this is alleged to have occurred in a camper/trailer
structure on someone else’s property according to the owner of that
property. Does Mr. Cutlip own that?
[DEFENSE COUNSEL]: My client claims that he does not own that camper,
Your Honor.
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THE COURT: All right. It was not specified for forfeiture. However, if there
was a judgment for costs, it could be executed against if the title is [in] Mr.
Cutlip’s name, but you’re indicating that it is not?
[DEFENSE COUNSEL]: That is my understanding, Your Honor. It is not.
THE COURT: Does the state have a position on the mandatory fine, which
can be waived due to indigency?
[THE PROSECUTOR]: We ask at this juncture that it not be waived, Your
Honor.
(Sentencing Tr. 6-7.)
{¶131} Thereafter, upon announcing Appellant’s sentence, the court states in
part: “The Court is going to impose the $20,000 fine, rejecting the finding of indigency.
The Court’s mindful, of course, it’s unlikely that it will ever be paid, but nevertheless, that
message has to be made clearly known.” (Sentencing Tr. 12-13.)
{¶132} Based on the foregoing, Appellant is unable to establish his trial counsel
was deficient for failing to file the affidavit in advance of sentencing when the court
operated on the assumption it was filed. His counsel orally requested the court waive the
fees, and the court declined to do so on the merits, indicating it believed Appellant was
the owner of the camper. Thus, Appellant’s ineffective assistance argument lacks merit
since he does not show his counsel was deficient for this reason.
{¶133} As for the prejudice prong of an ineffective assistance of counsel claim,
Appellant’s argument fails to satisfy this prong too for the following reasons.
{¶134} Upon addressing a comparable case, the Ohio Supreme Court in State v.
Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, reiterated an appellate court’s
standard of review when addressing the second prong of an ineffective assistance of trial
counsel claim, explaining:
[A] court’s finding of ineffective assistance of counsel depends on the facts
and circumstances in each case. * * * [W]hen an indigent defendant makes
an ineffective-assistance-of-counsel claim based upon counsel’s failure to
request a waiver of court costs, a reviewing court must * * * [when analyzing]
the prejudice prong, * * * consider the facts and circumstances of the case
objectively to determine whether the defendant established the necessary
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prejudice sufficient to support that claim—i.e., but for counsel’s deficient
performance, there exists a reasonable probability that the result of the
proceeding would have been different. * * * “ ‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ ”
(Citations omitted.) State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560,
¶ 10.
{¶135} Assuming counsel was deficient, we must next determine whether “but for
counsel’s deficient performance, there exists a reasonable probability that the result of
the proceeding would have been different.” Id. Therefore, this court must assess whether
if Appellant’s counsel had filed his financial affidavit reflecting zero income and zero
assets, would this have affected the court’s imposition of the $20,000 fine? Because no
one brought the lack of financial affidavit to the court’s attention, and it appears the court
operated on the assumption one was in fact filed, Appellant fails to establish this prong
as well.
{¶136} As for the trial testimony relied on by the trial court, David Wise testified
he owns the recreational vehicle site on which the camper was located when it was
searched. Wise explained Appellant and Brado, and sometimes her daughter, lived in
the camper. Based on his conversations with Appellant, Wise believed the camper
belonged to him. Although Brado made the arrangements to rent the site from Wise,
Appellant paid him the $500. Further, Wise testified he “believed” Appellant owned the
camper, explaining: “It was my idea that he owned it because of some of the discussions
that we had and the way he talked. He expressed at one point some regrets in buying it
because of – it wasn’t in quite as good condition as what he hoped it would be and having
to do maintenance repairs on it.” (Trial Tr. 224-226.) And at the time of trial, they still
owed Wise money, and the camper was still on his property. (Trial Tr. 227-228.)
{¶137} Furthermore, whether a defendant “was determined to be indigent for the
purposes of appointed counsel ‘is separate and distinct from a determination of
being indigent for purposes of paying a mandatory fine.’” State v. Millender, 5th Dist.
Fairfield No. 03-CA-78, 2004-Ohio-871, ¶ 8, quoting State v. Bolden, 12th Dist. No.
CA2003-03-007, 2004-Ohio-184. See, also, State v. Johnson, 6th Dist. No. L-03-1046,
2004-Ohio-2458, ¶ 33. There is a “difference between a defendant’s inability to raise an
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initial retainer in order to obtain trial counsel and the ability to gradually pay an imposed
mandatory fine over a period of time.” State v. Banks, 6th Dist. Lucas No. WD-06-094,
2007-Ohio-5311, ¶ 15, citing State v. Young, 5th Dist. Delaware No. 03-CAA-10051,
2004-Ohio-4002, ¶ 16. Thus, the appointment of trial counsel is not determinative of the
defendant’s ability to pay a mandatory fine after conviction. Id. Accord State v. Delgadillo-
Banuelos, 10th Dist. Franklin No. 18AP-729, 2019-Ohio-4174, ¶ 28. “[A]n offender who
files an affidavit alleging that he or she is indigent and is unable to pay a mandatory fine
is not automatically entitled to a waiver * * *.” Id. Instead, the defendant has the burden
to affirmatively show he is indigent and will be unable to pay the fine in the future. Id.{¶138} The following information is in the record regarding Appellant’s ability to
pay a mandatory fine. Appellant was indicted on September 3, 2020; he failed to appear
for his initial arraignment; and a warrant for his arrest was issued. It appears Appellant
was represented by the public defender’s office and later had court-appointed counsel
because he was indigent. However, there is no financial affidavit completed on his behalf
indicating whether he had assets or any means of financial support. The only financial
affidavit gleaned from this record was filed after Appellant’s conviction, and the
information section pertaining to Appellant is blank.
{¶139} On October 16, 2020, the trial court states in part in a judgment entry
regarding independent testing of the evidence:
On October 9, 2020, the Court heard several matters. * * * The Court grants
Defendant permission to engage the services of DNA Diagnostics Center
(DDC) * * * for the purpose of retesting the alleged substances involved in
this matter. * * * Due to Defendant’s purported indigency, the State will
initially be responsible for paying the associated costs which, if then billed
to the Office of the Public Defender, may be reimbursed at the rate of
seventy percent (70%).
(Emphasis added.) There is no explanation or other indication what the court means by
“purported indigency,” and the transcript of this hearing is not before us.
{¶140} On December 10, 2020, Appellant moved for “approval of payment” of
independent testing of the evidence seized from the camper. This motion does not
reference Appellant’s indigency or inability to pay. (December 10, 2020 Payment Motion.)
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On this same date, Appellant also moved for a “Personal recognizance bond or bond
reduction.” In this motion, he asserts he failed to appear at his initial arraignment because
he was jailed elsewhere. This motion also does not mention Appellant’s alleged indigency
but does seek a reduction in his bond. (December 10, 2020 Bond Motion.) The court
states in an entry it will address the merits of these motions at a hearing scheduled for
December 14, 2020, and a subsequent docket entry states the hearing was “Heard and
Held.” This transcript is not in the record.
{¶141} On February 16, 2021, Appellant via counsel moved the court to approve
payment of the court reporter’s fees and costs at the public’s expense to secure a copy
of the suppression hearing transcript. This motion states in part “the defendant is an
indigent person and is incarcerated. Indeed, he was qualified for appointed counsel and
expert, paid for by the state.” (February 16, 2021 Motion for Transcripts.) The court
granted this motion the next day without state opposition, stating in part: “The Court
Reporter is directed to prepare that transcript and then provide copies to the parties, at
the State’s expense.” (February 17, 2021 Judgment.)
{¶142} Appellant’s presentence report does not address indigency, ability to pay,
or his work history. It indicates Appellant resided in a recreational camper at the time of
his arrest; graduated high school; and appears to have a substantial drug and alcohol
problem based on his criminal record. It does not address the ownership of the camper
or whether he had any assets or job skills.
{¶143} Appellant directs our attention to State v. Richey, 6th Dist. Wood No. WD-
19-064, 2020-Ohio-4610, in support of this argument. In Richey, the state conceded on
appeal that Appellant would have been found indigent had her trial counsel filed the
necessary affidavit of indigency. The Sixth District agreed and found the record
supported this conclusion, noting Richey was appointed counsel at her initial appearance
and her attorney later had his request for court-appointed counsel fees approved. The
Richey Court also confirmed Richey spent 425 days incarcerated before her sentencing;
she had no assets; and she was living with relatives before her arrest. Thus, the court of
appeals found counsel was deficient, and it reversed and remanded for the trial court to
ascertain whether Richey was indigent and unable to pay the fines as a result. Id. at ¶ 9.
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{¶144} Unlike Richey, the Sixth District Court of Appeals in State v. Beard, 6th
Dist. Sandusky No. S-19-018, 2020-Ohio-3393, ¶ 8-9, found there was no evidence in the
record tending to indicate the trial court would have found Beard indigent and unable to
pay the mandatory fines. On the contrary, Beard recited the following from the record as
tending to show he likely had the ability to pay:
The record shows appellant, a life-long resident of Sandusky, Ohio, was
gainfully employed at the time of his arrest, he is 35 years old, has
completed five years of college and is set to graduate after he completes
29 hours. He is described as “bright,” “hard working,” “fair and honest,” and
“intelligent.”
Id. at ¶ 8-9.
{¶145} In State v. Banks, supra, the Sixth District found there was not record
evidence showing a “reasonable probability that the defendant would have been found
indigent * * *.” Id. at ¶ 17-18. In that case, the only relevant evidence included the trial
court’s notation the defendant was “middle-aged” and “mentally sound.” Id. There was
nothing tending to show he suffered from any condition preventing him from working and
at one point, he sought a continuance to secure a privately retained attorney. This fact
tended to show he could pay a fine in the future.
{¶146} Based on the record here and case law, the trial court already reached the
merits of Appellant’s motion to waive the fines and found he likely had the ability to pay
the fine. Despite its decision finding him indigent for payment of attorney’s fees, it found
he will be able to pay the fine sometime in the future. Because of this, we cannot find
that “but for counsel’s deficient performance, there exists a reasonable probability that
the result of the proceeding would have been different,” and as such, Appellant fails to
satisfy the second ineffective assistance of counsel prong.
{¶147} Accordingly, Appellant’s sixth assignment of error is overruled.
Conclusion
{¶148} Based on the foregoing, Appellant’s assignments of error numbered one
through four and six lack merit and are overruled. However, we find the trial court abused
its discretion by answering the jury’s question in the manner it did, as detailed in
Case No. 21 BE 0032
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assignment of error number five. Notwithstanding, the error did not result in prejudice
and was harmless. The trial court’s judgment is affirmed.
Donofrio, P J., concurs.
D’Apolito, J., concurs.
Case No. 21 BE 0032
[Cite as State v. Cutlip, 2022-Ohio-3524.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.