State v. Thompson , 2022 Ohio 3602 ( 2022 )

[Cite as State v. Thompson, 2022-Ohio-3602.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 3-22-06
v.
PATRICK A. THOMPSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 22-CR-0052
Judgment Affirmed
Date of Decision: October 11, 2022
APPEARANCES:
Edwin M. Bibler for Appellant
Daniel J. Stanley for Appellee
Case No. 3-22-06
SHAW, J.
{¶1} Defendant-appellant, Patrick A. Thompson (“Thompson”), brings this
appeal from the March 1, 2022 judgment of the Crawford County Common Pleas
Court sentencing him to 11 months in prison after he was convicted in a jury trial of
possession of a fentanyl-related compound, possession of drug abuse instruments,
and possession of drug paraphernalia. On appeal, Thompson argues that there was
insufficient evidence to convict him, that his convictions were against the manifest
weight of the evidence, that a specific photograph was improperly introduced into
evidence, that he received ineffective assistance of counsel, that his sentence was
not supported by the record, and that the cumulative errors deprived him of a fair
trial.
Background
{¶2} After a search warrant was executed at the residence he was staying in,
Thompson was charged with possession of a fentanyl-related compound in violation
of R.C. 2925.11(A), a fifth degree felony, possession of drug abuse instruments in
violation of R.C. 2925.12(A), a second degree misdemeanor, and possession of drug
paraphernalia in violation of R.C. 2925.14(C)(1), a fourth degree misdemeanor.
Thompson pled not guilty and he proceeded to a jury trial wherein he was convicted
of all three charges.
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{¶3} On March 1, 2022, Thompson was sentenced to 11 months in prison on
the possession of a fentanyl-related compound charge, 45 days in jail on the
possession of drug abuse instruments charge, and 15 days in jail on the possession
of drug paraphernalia charge. All sentences were ordered to be served concurrently.
Thompson now appeals his judgment entry of sentence to this court, asserting the
following assignments of error for our review.
Assignment of Error No. 1
The trial court erred by failing to grant a judgment of acquittal,
pursuant to Crim.R. 29(a) on three charges: (1) Possession of a
Fentanyl Related Compound; (2) Possessing Drug Abuse
Instruments; and (3) Illegal Use or Possession of Drug
Paraphernalia, and thereafter entering a judgment of conviction
on those offenses as the charges were not supported by sufficient
evidence.
Assignment of Error No. 2
The jury verdict on the (1) Possession of a Fentanyl Related
Compound; (2) Possessing Drug Abuse Instruments; and (3)
Illegal Use or Possession of Drug Paraphernalia charges was
against the manifest weight of the evidence presented at trial.
Assignment of Error No. 3
The trial court committed an abuse of discretion by admitting into
evidence photographs alleging to represent spoons, a syringe and
the contents of the Pall Mall cigarette package without first
obtaining the proper court order as required by Crim.R. 26.
Assignment of Error No. 4
Defendant-Appellant was denied the right to effective assistance
of counsel and a fair trial under the Sixth and Fourteenth
Amendments to the United States Constitution and the Ohio
Constitution, Article I, Section 10.
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Assignment of Error No. 5
The trial court abused its discretion by imposing a prison sentence
contrary to R.C. 2929.11 and the purposes and principles of the
felony sentencing guidelines.
Assignment of Error No. 6
Defendant-Appellant was deprived of his rights to due process
and a fair trial under the federal and state constitutions by the
cumulative effect of the numerous errors in this case.
First Assignment of Error
{¶4} In his first assignment of error, Thompson argues that there was
insufficient evidence presented to convict him of possession of a fentanyl-related
compound, possessing drug abuse instruments, and illegal use or possession of drug
paraphernalia.
Standard of Review
{¶5} “Whether the evidence is legally sufficient to sustain a verdict is a
question of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Groce,
163 Ohio St.3d 387, 2020-Ohio-6671, ¶ 6. Therefore, our review is de novo. In re
J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, ¶ 3. In a sufficiency-of-the-evidence
inquiry, the question is whether the evidence presented, when viewed in a light most
favorable to the prosecution, would allow any rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus (superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102,
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(1997), fn. 4) following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).
“In essence, sufficiency is a test of adequacy.” Thompkins at 386.
Controlling Statutes
{¶6} In this case Thompson was convicted of possession of a fentanyl-
related compound in violation of R.C. 2925.11(A)/(C)(11)(a), which reads as
follows:
(A) No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.
***
(B) Whoever violates division (A) of this section is guilty of one
of the following:
***
(11) If the drug involved in the violation is a fentanyl-related
compound and neither division (C)(9)(a) nor division (C)(10)(a)
of this section applies to the drug involved, or is a compound,
mixture, preparation, or substance that contains a fentanyl-
related compound or is a combination of a fentanyl-related
compound and any other controlled substance and neither
division (C)(9)(a) nor division (C)(10)(a) of this section applies to
the drug involved, whoever violates division (A) of this section is
guilty of possession of a fentanyl-related compound. The penalty
for the offense shall be determined as follows:
(a) Except as otherwise provided in division (C)(11)(b), (c), (d),
(e), (f), or (g) of this section, possession of a fentanyl-related
compound is a felony of the fifth degree, and division (B) of
section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
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Thompson was also convicted of possession of drug abuse instruments in violation
of R.C. 2925.12(A), which reads:
(A) No person shall knowingly make, obtain, possess, or use any
instrument, article, or thing the customary and primary purpose
of which is for the administration or use of a dangerous drug,
other than marihuana, when the instrument involved is a
hypodermic or syringe, whether or not of crude or extemporized
manufacture or assembly, and the instrument, article, or thing
involved has been used by the offender to unlawfully administer
or use a dangerous drug, other than marihuana, or to prepare a
dangerous drug, other than marihuana, for unlawful
administration or use.
Finally, Thompson was convicted of possession of drug paraphernalia in violation
of R.C. 2925.14(C)(1), which reads:
(C)(1) Subject to division (D)(2) of this section, no person shall
knowingly use, or possess with purpose to use, drug
paraphernalia.1
Evidence Presented by the State
{¶7} Multiple controlled drug buys were conducted by a confidential
informant (“CI”) at 122 Heritage Circle in Bucyrus from a man named Jordan
Partlow. The CI indicated that the drug purchases were always made from Partlow
in the basement of the multi-level residence. The CI told law enforcement officers
that there were other people living in the residence, but the CI did not specifically
indicate who the people were.2
1
By definition in R.C. 2925.14(A)(9), a “spoon” can constitute drug paraphernalia.
2
The CI did not testify at trial.
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{¶8} The controlled drug purchases led to law enforcement acquiring a
search warrant for the residence. A team of law enforcement officers executed the
search warrant on December 2, 2021. Upon entering the residence, officers split and
went to different floors. Some officers went to the basement, where the controlled
drug buys had been conducted from Partlow. Other officers went upstairs where
there were two bedrooms branching off of a landing.
{¶9} One upstairs bedroom was locked from the outside and was filled with
clutter. In fact, most of the house was significantly filled with clutter, as exhibited
through photographs and officer testimony.
{¶10} As to the second upstairs bedroom, Thompson was found inside.
Thompson was removed from the bedroom and taken to the first floor along with
three people who were in the basement and another individual who was sleeping on
the first-floor living room couch because his bedroom was too full of clutter. Once
the people in the home were gathered in one spot, law enforcement began searching
the residence.
{¶11} In the room Thompson was staying in upstairs, an officer located two
syringes and several spoons with white residue and burn marks on them. An officer
testified that a common way to ingest heroin or fentanyl was to heat up the substance
on a spoon then draw it into a syringe and inject it.
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{¶12} While one officer was in the early stages of searching Thompson’s
room, Thompson asked a different officer on the first level if he could have a
cigarette. Thompson told the officer that his Pall Mall cigarettes were in his room,
and that his room was on the top of the stairs where he was located when officers
initially entered the residence. Because Thompson was being compliant, he was
permitted to have a cigarette.
{¶13} The officer speaking with Thompson shouted up to the officer
searching Thompson’s room and told him to grab Thompson’s cigarettes.
Thompson indicated that the cigarettes were on the nightstand or near the bed. The
officer searching Thompson’s room found the Pall Mall cigarettes in the area
Thompson said they would be and he opened the box. When the officer went to pull
out a cigarette, he found a small plastic baggie in the box. The plastic baggie was
found to contain .11 grams of a fentanyl-related compound. Officers testified that
drugs were commonly hidden in cigarette packs.
Analysis
{¶14} Thompson challenges all of his convictions on appeal, but we will
begin by addressing his argument that there was insufficient evidence presented to
support his conviction for possession of a fentanyl-related compound. With regard
to that conviction, Thompson argues that although he asked for a cigarette, and the
bindle of a fentanyl-related compound was found inside the cigarette pack, there
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was no evidence that he knew or should have known that bindle of drugs was in the
Pall Mall cigarette pack. Further, Thompson contends that it is unlikely he would
have requested a cigarette if he knew there were drugs in the pack. In essence, he
argues that the State did not sufficiently establish that Thompson “knowingly”
possessed the fentanyl.
{¶15} The Ohio Revised Code defines “knowingly” as follows:
A person acts knowingly, regardless of purpose, when the person
is aware that the person’s conduct will probably cause a certain
result or will probably be of a certain nature. A person has
knowledge of circumstances when the person is aware that such
circumstances probably exist. When knowledge of the existence of
a particular fact is an element of an offense, such knowledge is
established if a person subjectively believes that there is a high
probability of its existence and fails to make inquiry or acts with
a conscious purpose to avoid learning the fact.
R.C. 2901.22(B).
{¶16} To summarize the evidence the State presented related to the fentanyl
possession charge, Thompson was found inside the room with the fentanyl,
Thompson identified the room wherein the fentanyl was located as his, Thompson
claimed that the box of Pall Mall cigarettes wherein the bindle of fentanyl was
located as his, Thompson accurately identified the location of the Pall Mall cigarette
box that contained the bindle of fentanyl, and instruments commonly used to inject
heroin and/or fentanyl were present directly beside Thompson’s bed.
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{¶17} There are numerous inferences that can be made from the State’s
evidence that Thompson knew that the bindle of fentanyl was in his cigarette pack.
For example, the fact that Thompson knew where the pack of cigarettes was located
and that there were still cigarettes in the pack leads to an inference that Thompson
knew what was inside his pack of cigarettes. Moreover, the presence of drug
paraphernalia in Thompson’s room beside his bed lends further support to the idea
that Thompson knew what was inside the cigarette pack, and that he possessed it.
State v. McClain, 3d Dist. Hancock No. 5-19-19, 2020-Ohio-1436, ¶ 46.
(defendant’s presence in the vicinity of contraband, coupled with another factor or
factors probative of dominion or control over the contraband, may
establish constructive possession.)
{¶18} While Thompson contends that it would be unlikely that he would
request a cigarette from a pack of cigarettes that had drugs in it because it could
incriminate him, an alternative inference could also be made that Thompson
requested a cigarette in hopes that the pack would be brought to him and he could
hide the fentanyl-related compound contained inside.
{¶19} After reviewing the evidence in the light most favorable to the State,
we do not find that insufficient evidence was presented to establish that Thompson
knowingly possessed the fentanyl-related compound.
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{¶20} Next, Thompson argues that there was insufficient evidence to convict
him of possession of drug abuse instruments and possession of drug paraphernalia
because the State failed to test the spoons and syringes for drugs and/or DNA.
Further, Thompson argues that the testimony from a law enforcement officer that
the spoons and syringes were likely being used to unlawfully administer narcotics
was insufficient to sustain convictions.
{¶21} Thompson’s argument ignores the fact that the testimony indicated
that the spoons had burn marks and white residue on them. The white residue on the
spoons was actually visible in photographs taken of the spoons where they were
found.
{¶22} Further, Thompson ignores the fact that drugs were actually found in
his room in question, lending to a reasonable inference that the spoons and syringes
were used alongside those drugs. In fact, an officer specifically testified that the
most common way to ingest fentanyl or heroin “is to heat the substance up on a
spoon * * * with a cigarette lighter * * * underneath it until it gets to a boiling point,
draw it up with the syringe and you inject it into a vein.” (Tr. at 168).
{¶23} Given all of the evidence that was presented, and when viewing the
evidence in the light most favorable to the State as we are directed in our standard
of review, we do not find that there was insufficient evidence presented to convict
Thompson of possession of a fentanyl-related compound, possession of drug abuse
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instruments, or possession of drug paraphernalia.3 Therefore, Thompson’s first
assignment of error is overruled.
Second Assignment of Error
{¶24} In his second assignment of error, Thompson argues that even if there
was sufficient evidence presented to convict him, his convictions were against the
manifest weight of the evidence.
Standard of Review
{¶25} In reviewing whether a verdict was against the manifest weight of the
evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting
testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In doing
so, this court must review the entire record, weigh the evidence and all of the
reasonable inferences, consider the credibility of witnesses and determine whether
in resolving conflicts in the evidence, the factfinder “clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.” Id.{¶26} Nevertheless, a reviewing court must allow the trier-of-fact
appropriate discretion on matters relating to the credibility of the witnesses. State
v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight
3
We have addressed Thompson’s arguments with regard to the specific challenges he made on appeal. We
emphasize, however, that we have reviewed the record and we find that all of the elements, even those not
specifically challenge by Thompson on appeal, are supported by sufficient evidence.
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standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against
the conviction,’ should an appellate court overturn the trial court’s judgment.” State
v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Analysis
{¶27} In his second assignment of error, Thompson reincorporates his
arguments from the first assignment of error, contending that even if sufficient
evidence was presented to convict him, his convictions were against the manifest
weight of the evidence. More specifically, Thompson again argues that the
testimony did not establish that he knowingly possessed the fentanyl, the spoons, or
the syringe. He also argues that a known drug dealer was living in the residence,
implying that the drugs could have belonged to the dealer, and he again argues that
it was illogical that he would have asked for a cigarette if he knew there were drugs
inside of the Pall Mall package.
{¶28} Contrary to his arguments, the State presented evidence that
Thompson was found in the room with the drugs, the spoons, and the syringes.
Although proximity to drugs or items alone is not enough to support knowing
possession, Thompson also knew where his pack of Pall Mall cigarettes was that
contained the drugs, and he knew that the pack still had cigarettes in it.
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{¶29} As testimony from a law enforcement officer indicated, cigarette
packages are common places to hide drugs. E.g. State v. Maffey, 12th Dist. Clermont
No. CA2020-08-045, 2021-Ohio-2460, ¶ 35 (“a cigarette pack [] [is] a common
container to conceal drugs”); State v. Cody, 2d Dist. Montgomery No. 29219, 2022-
Ohio-544, ¶ 16 (wherein drugs were found in a cigarette pack); State v. Douglas, 3d
Dist. Marion No. 9-13-07, 2013-Ohio-4563, ¶ 39 (same). Moreover, an officer
testified that the spoons had white residue and burn marks on them, which a jury
could infer mean that the spoons were used in drug ingestion. We will not second-
guess a jury’s credibility determinations. State v. DeHass, 10 Ohio St.2d 230, 231
(1967).
{¶30} In sum, we do not find that this is the exceptional case where a jury
clearly lost its way or created a manifest miscarriage of justice by convicting
Thompson of the crimes as indicted. Therefore, Thompson’s second assignment of
error is overruled.
Third Assignment of Error
{¶31} In his third assignment of error, Thompson argues that the trial court
abused its discretion by admitting a photograph of the Pall Mall cigarette package
into evidence.
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Standard of Review
{¶32} Generally, the admission or exclusion of evidence lies within the trial
court’s discretion, and a reviewing court should not reverse absent an abuse of that
discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-
2815, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of discretion
implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State
v. Adams, 62 Ohio St.2d 151, 157 (1980).
Relevant Authority
{¶33} Thompson contends that the trial court’s admission of a photograph of
the Pall Mall cigarette package was in violation of Crim.R. 26, which reads as
follows:
Physical property, other than contraband, as defined by statute,
under the control of a Prosecuting Attorney for use as evidence in
a hearing or trial should be returned to the owner at the earliest
possible time. To facilitate the early return of such property,
where appropriate, and by court order, photographs, as defined
in Evid. R. 1001(2), may be taken of the property and introduced
as evidence in the hearing or trial. The admission of such
photographs is subject to the relevancy requirements of Evid. R.
401, Evid. R. 402, Evid. R. 403, the authentication requirements
of Evid. R. 901, and the best evidence requirements of Evid. R.
1002.
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Analysis
{¶34} The Pall Mall cigarette package containing the bindle of fentanyl was
not admitted into evidence in this case. In addition, the bindle of fentanyl itself, the
spoons, and the syringes were not entered into evidence.
{¶35} Instead of introducing the cigarette box, the fentanyl, the spoons, and
the syringes into evidence, the State introduced photographs of the cigarette box
where the bindle of fentanyl was found, a photograph of the open cigarette box,
photographs of the syringes where they were found, and photographs of the spoons
where they were found. The State relied upon the photographs and the testimony of
law enforcement officers to establish the convictions. Thompson argues that the
introduction of photographs rather than the objects themselves violates Crim.R. 26.
{¶36} Notably, the Seventh District Court of Appeals analyzed the
applicability of Crim.R. 26 in a trial when considering the substitution of a
photograph for an item, and found the criminal rule to have little relevance.
The plain language of Crim.R. 26 appears to be designed to allow
the state to present evidence of a stolen item without depriving the
victim of that item, rather than imposing a requirement on the
state to present certain evidence in order to support a conviction.
In other words, if the state chooses to present evidence, it is not
required to hold the physical item from the victim until a trial
occurs. The state “may” take a photograph of the item and the
photo “may” be introduced as evidence. This rule does not require
either the item or a photo of the item be introduced as evidence in
order to sustain a conviction. In fact, it appears there is no such
rule.
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This conclusion is supported by caselaw from the Ohio Supreme
Court, State v. Murphy, 49 Ohio St.3d 206, 551 N.E.2d 932 (1990).
The Murphy Court addressed whether a firearm, or some other
type of physical evidence showing or describing the firearm, must
be introduced at trial in order to prove its existence.
The Murphy Court held that evidence of the firearm’s existence
was sufficiently proven through lay witness testimony. Id. at 209.
(Emphasis added.) State v. Armocida, 7th Dist. Mahoning No. 18 MA 0015, 2020-
Ohio-3621, ¶¶ 20-21.
{¶37} Similar to the Seventh District Court of Appeals, we do not find that
Crim.R. 26 prevents the use of photographs and officer testimony to establish a
conviction or that Crim.R. 26 requires items to be introduced into evidence rather
than photographs of the items in order to sustain a conviction. Criminal Rule 26’s
purpose is to “provide[] for the return of physical property held by the state to the
owner before trial.” Staff Notes to Crim.R. 26 (1989). Thompson has provided no
case law showing how Crim.R. 26 would compel a different result here, or how it
has even been applied to circumstances like these.
{¶38} Furthermore, the general rule is that “A photograph is admissible in
evidence if it is shown to be an accurate representation of what or whom it purports
to represent.” State v. Hannah, 54 Ohio St.2d 84, 88 (1978). Here, the photographs
were identified by law enforcement and the photographs were indicated to be fair
and accurate representations of how the items looked when they were found. Thus
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the photographs would be readily admissible, or, at the very least, it would not have
been an abuse of discretion to admit them.
{¶39} Moreover, we note that Thompson only objected to the introduction
of one photograph at trial—a close-up photograph of the open cigarette pack where
the drug bindle was not even visible. Thompson primarily objected to the
photograph at trial because the police had taken cigarettes out of the package,
rendering the package, in his opinion, altered. The trial court overruled this
objection and admitted the photograph. We simply do not find that there was any
abuse of discretion here even if it might be the “best practice” to introduce the
specific items themselves into evidence.4 For all of these reasons, Thompson’s third
assignment of error is overruled.
Fourth Assignment of Error
{¶40} In his fourth assignment of error, Thompson argues that he received
ineffective assistance of trial counsel.
Standard of Review
{¶41} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
4
However, we note the inherent danger of items that have been in contact with fentanyl.
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687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or
unreasonable, the defendant must overcome the presumption that counsel provided
competent representation and must show that counsel’s actions were not trial
strategies prompted by reasonable professional judgment. Strickland at 689; State
v. Harris, 3d Dist. Allen No. 1-21-30, 2021-Ohio-4559, ¶ 6.
Analysis
{¶42} Thompson contends that his trial counsel was ineffective for failing to
“prepare a motion to suppress” with regard to chain of custody of the bindle of
fentanyl. More specifically, he contends that because officers testified that they
removed two cigarettes from the Pall Mall cigarette box where the bindle of fentanyl
was found, there were concerns about the propriety of the police handling the
evidence.
{¶43} Thompson also argues that prejudice exists here because if a
suppression motion had been granted, photographs and testimony about the cigarette
package would not have been presented to the jury and there was a reasonable
probability that the outcome would have been different.
{¶44} At the outset of our review, we note that failure to file a suppression
motion does not constitute per se ineffective assistance of counsel. State v.
Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448. Notwithstanding this point, Ohio
Appellate Courts have held that “it is well-established that a challenge to
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the chain of custody is ‘an issue not properly raised in a motion to suppress, rather
properly raised in a motion in limine.’” (Emphasis added.) State v. Cyrek, 12th Dist.
Butler No. CA2019-02-037, 2019-Ohio-4515, ¶ 15, quoting State v. Woltz, 4th Dist.
Athens No. 17CA20, 2017-Ohio-9042, ¶ 15. Stated differently, “[c]hallenges to the
chain of custody are evidentiary and properly determined by the trial court with
finality at trial – not at the suppression hearing.” Woltz at ¶ 20; State v. Stoll, 5th
Dist. Stark No. 1998CA00291, 1999WL 333348, at *3 (May 24, 1999) (“a motion
to suppress is not the appropriate vehicle in which to attack a chain of custody
issue.”).
{¶45} Furthermore, where a reasonable chain of custody has been
established, “breaks in the chain of custody go to the weight of the evidence, not its
admissibility.” (Emphasis added.) State v. Howell, 7th Dist. Mahoning No. 10-MA-
148, 2012-Ohio-4349, ¶ 79; State v. Ward, 3d Dist. Seneca No. 13-10-11, 2011-
Ohio-254, ¶ 33.
{¶46} In our review of the matter, we emphasize that even if trial counsel
had filed a suppression motion in this matter—or, more properly, a motion in
limine—there is no indication it would have been granted. The evidence presented
at trial, and the only evidence we have in the record, indicates that a reasonable
chain of custody was established with respect to the Pall Mall cigarette package and
the bindle of fentanyl inside.
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{¶47} An officer testified as to where he found the box of Pall Mall cigarettes
after being asked to retrieve them for Thompson. He testified to opening the box
and seeing the bindle inside along with the cigarettes. He testified he took two
cigarettes out of the package and then he placed the whole pack of cigarettes into a
sealed evidence bag. The officer wrote on the bag where the cigarette package was
found and wrote it on the inventory log.
{¶48} After being collected, the bag was transferred to an evidence locker
and placed in a specific spot related to this case. Thompson then stipulated at trial
that the bindle found in the Pall Mall package contained .11 grams of fentanyl,
obviating the need for expert testimony from BCI about the drug.
{¶49} Based on the evidence we have in the record, and Thompson’s
stipulation, we find that the State established a reasonable chain of custody, which
means breaks in the chain would go to weight of the evidence rather than
admissibility. State v. Ward, 3d Dist. Seneca No. 13-10-11, 2011-Ohio-254, ¶ 33.
{¶50} The “weight” issue would be for a jury to determine and in this case
the jury was able to evaluate the issues raised with regard to the handling of the Pall
Mall cigarette package and the bindle. In fact, during the trial, Thompson’s attorney
repeatedly emphasized that an officer “manipulated” the pack of cigarettes when he
removed two cigarettes from it. The jury thus had the issue of “breaks” in the chain
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of custody before it, considered the issue, and evidently rejected it or did not find it
persuasive.
{¶51} In sum, we find no ineffective assistance of counsel on the record
before us, and we do not find that there was a reasonable probability that the
outcome of the trial would have been different based on any purported deficiencies
of counsel. Therefore, Thompson’s fourth assignment of error is overruled.
Fifth Assignment of Error
{¶52} In his fifth assignment of error, Thompson argues that the trial court
erred by imposing an 11-month prison term in this matter. He argues that the prison
term was inconsistent with the overriding purposes of felony sentencing under R.C.
2929.11.
Standard of Review
{¶53} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court's findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “ ‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’
” Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus.
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Relevant Authority
{¶54} The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give
its reasons for imposing a maximum sentence, or more than a minimum sentence.
State v. Reed, 3d Dist. Union No. 14-20-16, 2021-Ohio-1623, ¶ 13. Nevertheless,
when exercising its sentencing discretion, a trial court must consider the statutory
policies that apply to every felony offense including those set forth in R.C. 2929.11
and R.C. 2929.12. Id.{¶55} Revised Code 2929.11 provides that sentences for a felony shall be
guided by the overriding purposes of felony sentencing: “to protect the public from
future crime by the offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on
state or local government resources.” R.C. 2929.11(A). In order to comply with
those purposes and principles, R.C. 2929.12 instructs a trial court to consider
various factors set forth in the statute relating to the seriousness of the offender’s
conduct and to the likelihood of the offender’s recidivism. R.C. 2929.12(A)-(E).
Analysis
{¶56} In this case, Thompson was convicted of a fifth degree felony. At
sentencing the trial court imposed an 11-month prison term after it indicated that it
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considered the appropriate statutory factors in R.C. 2929.11 and R.C. 2929.12.
When considering the statutory sentencing factors, the trial court specifically
emphasized Thompson’s criminal convictions, his history of numerous felonies
going back to the 1970’s, and his failure to respond to community control sanctions.
The 11-month prison term that was imposed was within the appropriate statutory
range pursuant to R.C. 2929.14(A)(5).
{¶57} In our review of the matter, we stress that under State v. Jones, 163
Ohio St.3d 242, 2020-Ohio-6729, and R.C. 2953.08(G)(2), this court has no
authority to modify or vacate a sentence where the trial court has considered the
appropriate sentencing statutes, the sentence is within the authorized sentencing
range, and the sentence is not otherwise contrary to law. See also Reed at ¶ 19-20.
In this case, the trial court explicitly considered the appropriate sentencing statutes,
imposed a valid sentence within the appropriate statutory range, and Thompson has
not demonstrated that his sentence was otherwise clearly and convincingly contrary
to law. Therefore, Thompson’s fifth assignment of error is overruled.
Sixth Assignment of Error
{¶58} In his sixth assignment of error, Thompson argues that he was
deprived of a fair trial by the cumulative effect of numerous errors in this trial.
{¶59} Under the cumulative-error doctrine, “a conviction will be reversed
when the cumulative effect of errors in a trial deprives a defendant of a fair trial
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even though each of the numerous instances of trial court error does not individually
constitute cause for reversal.” State v. Spencer, 3d Dist. Marion No. 9-13-50, 2015-
Ohio-52, ¶ 83. “To find cumulative error, a court must first find multiple errors
committed at trial and determine that there is a reasonable probability that the
outcome below would have been different but for the combination of the harmless
errors.” (Emphasis added.) In re J.M., 3d Dist. Putnam No. 12-11-06, 2012-Ohio-
1467, ¶ 36.
{¶60} Here, we have not found multiple errors in this case, therefore the
cumulative error doctrine does not apply. Therefore, Thompson’s sixth assignment
of error is overruled.
Conclusion
{¶61} For the foregoing reasons, Thompson’s assignments of error are
overruled and the judgment and sentence of the Crawford County Common Pleas
Court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
/jlr
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