State v. Johnson , 2015 Ohio 3248 ( 2015 )

[Cite as State v. Johnson, 2015-Ohio-3248.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
No. 13AP-997
Plaintiff-Appellee, : (C.P.C. No. 12CR-3961)
No. 13AP-999
v. : (C.P.C. No. 13CR-5503)
Michael P. Johnson, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 13, 2015
Ron O'Brien, Prosecuting Attorney, Laura R. Swisher, and
Barbara A. Farnbacher, for appellee.
Dennis C. Belli, for appellant.
APPEALS from the Franklin County Court of Common Pleas.
BROWN, P.J.
{¶ 1} In these consolidated appeals, defendant-appellant, Michael P. Johnson,
appeals from judgments of conviction and sentence entered by the Franklin County Court
of Common Pleas following a jury trial in which he was found guilty of engaging in a
pattern of corrupt activity and multiple counts of aggravated funding of drug trafficking.
{¶ 2} On August 9, 2012, appellant and more than 40 other co-defendants were
charged in a 95-count indictment in common pleas case No. 12CR-3961. Under the
indictment, appellant was charged with one count of engaging in a pattern of corrupt
activity, in violation of R.C. 2923.32, and 19 counts of aggravated funding of drug
trafficking, in violation of R.C. 2925.05. On October 16, 2013, appellant was indicted in
common pleas case No. 13CR-5503 on 8 counts of aggravated funding of drug trafficking,
in violation of R.C. 2925.05. The two cases were consolidated for trial.
Nos. 13AP-997 and 13AP-999 2
{¶ 3} On August 14, 2012, attorney Javier Armengau entered an appearance on
behalf of appellant. On August 24, 2012, plaintiff-appellee, State of Ohio, filed a motion
to disqualify counsel on conflict of interest grounds, arguing that Armengau had
previously represented a confidential informant utilized by law enforcement personnel
during the course of the investigation in the instant actions. On September 20, 2012,
appellant filed a memorandum contra the state's motion to disqualify counsel. The
parties subsequently submitted affidavits to the trial court under seal regarding the
anticipated testimony of the confidential informant (hereafter "the CI"). The trial court,
by entry filed November 19, 2012, granted the state's motion to disqualify counsel.
Appellant filed an interlocutory appeal with this court from the trial court's entry granting
the motion to disqualify. In State v. Johnson, 10th Dist. No. 12AP-1067, 2013-Ohio-1682,
this court affirmed the trial court's decision.
{¶ 4} The matter came for trial before a jury on October 22, 2013. Columbus
Police Detective David M. Allen is a member of the department's tactical division squad,
with prior experience investigating pill trafficking rings. Detective Allen testified that
such rings typically involve a "three-tiered organization," in which two or three
individuals at the top tier act as "organizers" who "fund the money, fund the trips." (Tr.
19.) The organizers supply transportation money, as well as pay for the prescriptions.
The detective identified the second tier as comprised of "lieutenants," or persons that the
head of an organization "will trust with the money." (Tr. 19-20.) These individuals are
also trusted to "collect all the pills once they've been filled at a pharmacy." (Tr. 21.) The
final tier of the organization is composed of the individuals who obtain and fill
prescriptions, identified by the detective as "abusers"; they tend to be "older," and may
have injuries that are somewhat legitimate or "on the fringe." (Tr. 21.)
{¶ 5} Detective Allen identified the most valuable drug on the street as 30
milligram Oxycodone pills. Other valuable drugs include 15 milligram Oxycodone pills
and Xanax pills, and all of these medications are "highly addictive." (Tr. 22.) According
to the detective, Florida is "the hot bed where most of these pills are coming out of." (Tr.
25.)
{¶ 6} Detective Allen participated in the investigation leading to the arrest of
appellant. During the course of that investigation, detectives conducted surveillance of
"multiple individuals" they believed were involved in a pill trafficking operation. (Tr. 27.)
Nos. 13AP-997 and 13AP-999 3
The surveillance included monitoring the location of suspects through the use of "[p]ings
on cell phones." (Tr. 29.) Among the individuals targeted were Eric MacDonald, Robert
Muncy, Richard Muncy, Frances Smith, and Stephanie Kelley. Detectives also conducted
surveillance of a business, Creative Tattoos, located on South High Street.
{¶ 7} On December 29, 2011, detectives received information that Kelley, Smith,
Richard, and Robert were arriving at Port Columbus International Airport on a flight from
Ft. Lauderdale, Florida. Investigators observed the four individuals leave the Columbus
airport in a vehicle and travel to Shelly Avenue, stopping at the residence of Smith and
Robert. Richard and Kelley then drove to Kelley's residence on Lewis Avenue; later,
Richard drove a Plymouth Neon to appellant's residence, located at 1075 Lavender Lane.
Detective Allen observed Richard standing with appellant "in the garage." (Tr. 34.)
Richard then departed appellant's residence in a different vehicle, a red Ford Taurus,
returning to Kelley's residence.
{¶ 8} The next day, these same four individuals drove to Fairfax, Virginia.
According to the detective, "they were visiting pharmacies based on the ping chart." (Tr.
36.) Pharmacy records indicated that Richard, Kelley, and Smith filled prescriptions at a
Virginia CVS pharmacy on December 30, 2011. Robert and Smith returned to the Fairfax,
Virginia area on January 6, 2012. Detectives in Virginia learned that these individuals
"visited pharmacies and * * * filled prescriptions that were out of Florida." (Tr. 37.)
{¶ 9} On January 26 and 27, 2012, these four individuals took a round-trip flight
from Columbus to Ft. Lauderdale, Florida. Law enforcement officials in Florida followed
them to the All Family Medical Center, located in North Ft. Lauderdale. Upon returning
to Columbus, they then traveled to Fairfax, Virginia, visiting various pharmacies. At trial,
the state introduced copies of prescription records from those pharmacies, including
prescriptions for Roxicodone filled in the names of Richard Muncy and Frances Smith.
{¶ 10} During the investigation, detectives obtained statements by Robert Sparks
and MacDonald explaining the structure of the organization. Sparks and MacDonald also
provided the investigators with names of other individuals. Detective Allen testified that
police surveillance and pharmacy records corroborated information provided by Sparks
and MacDonald.
{¶ 11} On February 24, 2012, at 11:20 p.m., Columbus Police Detective Brian Key
and other law enforcement officers executed a search warrant for appellant's residence on
Nos. 13AP-997 and 13AP-999 4
Lavender Lane. At trial, the state introduced photographs taken of the house at the time
of the search. One of the photographs depicted $100 bills, wrapped with a rubber band,
found in a drawer located in the master bedroom. Police officers recovered a total of
$3,580 cash from the residence, as well as empty pill bottles and bottles containing pills.
The officers found a receipt for the purchase of a "multifunction portable sweep." (Tr.
132.) According to Detective Key, the device is used to determine whether a vehicle has
"been GPS'd." (Tr. 133.) The officers also located a letter bearing MacDonald's name, and
a Budget car rental agreement in the name of Nancy Salyers.
{¶ 12} Detective Key identified other exhibits, including a receipt for a Florida
hotel room in the name of Todd Salyers, appellant's nephew, reflecting a cash payment in
the amount of $415.39, and bond paperwork for Todd from Manassas Park, Virginia. The
officers found labels from pill bottles for Oxycodone in 30 milligram doses in the name of
Todd, as well as pharmacy receipts for Todd from Florida pharmacies indicating cash
purchases.
{¶ 13} During the search of appellant's residence, officers located business ledgers
for Creative Tattoos listing appellant as the owner. At trial, the parties stipulated that
appellant and Todd "were directly involved and ran the day-to-day operations of Creative
Tattoos on South High Street." (Tr. 159.) The parties further stipulated that Vickie
Johnson "was the named owner and was aware of said operations." (Tr. 159-60.)
{¶ 14} Robert, age 37, is married to Smith; Robert has been an acquaintance and
friend of appellant since grade school. In 2012, appellant approached Robert about
making trips to Florida "to obtain prescriptions." (Tr. 164.) Appellant and Robert
reached an agreement for appellant to pay the costs of transportation, hotel, food,
physician office calls, and MRIs pertaining to Robert's Florida trips. The purpose of
obtaining an MRI, costing approximately $300, was to "receive medication from pain
management." (Tr. 165.) On a typical visit, a physician would prescribe for Robert
between 160 to 210 Oxycodone 30 milligram pills. Robert also received prescriptions for
Oxycodone 15 milligram pills, as well as Xanax and Soma pills. Robert paid cash for the
office calls and prescriptions; the cost of each office call was between $300 to $350.
{¶ 15} Robert subsequently obtained Florida identification, allowing for a
"[c]heaper office call, easier to fill them in there." (Tr. 169.) Robert would usually travel
to Florida with four to six other individuals. MacDonald would "carry the money,"
Nos. 13AP-997 and 13AP-999 5
passing it out to other individuals to cover expenses. (Tr. 169.) The cost per person to
obtain prescriptions from clinics and physicians in Florida was "[a]pproximately 1,500 to
$2,000 round trip." (Tr. 166.) After obtaining prescriptions, Robert and the others would
check local phone books to find pharmacies in the area, or "doctors would give you lists of
pharmacies in the Florida area or the county." (Tr. 170.) During the trip back to
Columbus, MacDonald gathered all of the Oxycodone "30s," and the other individuals
"kept everything else" in return for acquiring the prescriptions. (Tr. 172.)
{¶ 16} In 2010, the pharmacy price for Oxycodone 30 milligrams was
approximately $2 per pill, while the street value was $20 per pill. In 2012, the pharmacy
price of Oxycodone 30 milligrams was between $3 and $4 per pill, while the street value
was between $25 and $30 per pill. Robert and the others eventually looked to other
states, including Virginia, to fill the prescriptions at cheaper prices.
{¶ 17} On his first trip to Florida, Robert traveled with his brother, Richard, along
with MacDonald and Dalton Chapman, an acquaintance of appellant. Robert testified
that appellant provided the money for that trip, and they traveled in a blue Chevy
Suburban driven by Chapman; MacDonald carried the cash for everyone on the trip.
After obtaining the prescriptions and returning to Columbus, Robert and the others drove
to Creative Tattoos on South High Street. MacDonald collected the Oxycodone 30
milligram pills from each of the men; Robert was permitted to keep the remaining
prescription drugs he had obtained as his payment.
{¶ 18} According to Robert, subsequent trips were financed in the same manner.
Robert described one trip in which he arrived at Creative Tattoos prior to leaving for
Virginia. Appellant had a vehicle waiting for Robert at the tattoo shop; underneath the
floor mat, Robert found car keys as well as $1,600 in cash, wrapped in a rubber band.
Robert and his wife traveled to Virginia, where Robert filled the prescriptions. Upon
returning, Robert parked the vehicle in front of the tattoo shop, leaving the prescriptions
underneath the front seat for appellant.
{¶ 19} On three to five occasions, Robert and his brother, Richard, drove to
appellant's residence on Lavender Lane to deliver approximately 600 to 800 Oxycodone
30 milligram pills to appellant. The men would enter appellant's residence through the
garage. Robert also observed other individuals turn Oxycodone pills over to Richard to
deliver to appellant.
Nos. 13AP-997 and 13AP-999 6
{¶ 20} Later, Robert and others began taking flights to Florida instead of driving.
Upon returning from Florida, Robert would drive to Virginia to fill the prescriptions and
then deliver the Oxycodone 30 milligram pills to appellant. Robert sold some of the other
prescriptions he obtained from Virginia. Robert testified that he was addicted to pain
medication and, on approximately three to five occasions, he purchased Oxycodone 30
milligram pills back from appellant at the tattoo shop.
{¶ 21} On February 24, 2012, law enforcement officers executed a number of
search warrants in Franklin County. Robert subsequently signed a proffer letter and
spoke with prosecutors and detectives about his knowledge of the organization, entering
into an agreement with the state to testify. He later entered a guilty plea to one count of
engaging in a pattern of corrupt activity, and eight counts of aggravated trafficking in
drugs.
{¶ 22} At trial, the state introduced patient history forms listing the names of
patients, their prescribing physicians, the prescriptions obtained, and the particular
pharmacy where a prescription was filled. Robert testified as to approximately 12 patient
visits he made during trips to Florida from September 2010 to July 2011. Other
individuals listed on the patient history forms included MacDonald, Richard, and Terry
Maxwell.
{¶ 23} On direct examination, MacDonald admitted to several prior convictions,
including for drug trafficking, and he also acknowledged being addicted to prescription
drugs. In September 2009, appellant and Chapman contacted MacDonald to ask him if
he would be interested in making money traveling to Florida to obtain pills. MacDonald
agreed and, over the next two years, he made approximately 80 to 100 trips to Florida,
traveling with various other individuals including Richard, Robert, Maxwell, Mark Keller,
Kelley, Christine Perry, Benjamin Cline and Christopher Jordan.
{¶ 24} On a typical trip, MacDonald would visit a doctor, "hand over a couple
hundred bucks. They give you a paper, tells you where to go to get the MRI. You go get
the MRI. You go back to the doctor. You sit and wait. And you see the doctor * * * and
they give you the script." (Tr. 259.)
{¶ 25} On MacDonald's first trip to Florida, Chapman paid him $800. MacDonald
obtained money for subsequent trips from appellant at appellant's residence. MacDonald
would "get with [appellant], and we would figure out who you would take down." (Tr.
Nos. 13AP-997 and 13AP-999 7
262.) According to McDonald, "[i]t was [appellant's] payment, but I would arrange it."
(Tr. 264.) MacDonald and the others would obtain Oxycodone, Xanax, and Soma pills.
The individuals who went on the trips could either receive money or pills as payment, but
they were required to turn over the Oxycodone 30 milligram pills. The amount of money
MacDonald received from appellant depended upon the number of individuals making
the trip. Appellant would provide MacDonald with "$2,000 per person." (Tr. 264.)
During these trips, appellant would "call and check * * * and see what's going on, ask me
what's going on through the trip." (Tr. 265.)
{¶ 26} Appellant told MacDonald to provide Sparks "any information that he
needed for down there, like doctors, any phone numbers, addresses, * * * anything like
that." (Tr. 266.) MacDonald also received money from appellant to rent vehicles for the
trips to Florida. Upon returning to Columbus from Florida, MacDonald would phone
appellant, "let him know I was back. So I would have to collect everybody's 30s, which
was payment for the money, and drop everyone off and then drop them off to him." (Tr.
270.) MacDonald took the pills to appellant's house, meeting appellant in the garage.
MacDonald eventually began filling prescriptions in Virginia because it was "a lot cheaper
than Florida." (Tr. 271.)
{¶ 27} MacDonald testified that he took trips to Florida to obtain prescriptions on
the following dates: June 7, July 2, August 6, September 2, September 9, September 30,
November 9-12, December 8, 2010, January 18-20, February 2, February 18-23,
February 24-March 3, March 16-18, March 26-31, April 13-19, April 27-29, May 9-13,
June 6-8, June 10, June 30-July 2, July 7-8, August 12, and September 9, 2011.
According to MacDonald, appellant gave him money for all of the above trips, and
MacDonald delivered pills back to appellant.
{¶ 28} On September 10, 2011, police officers in Virginia arrested MacDonald, as
well as Perry, Maxwell, Keller, and Kelley. The next day, MacDonald attempted to contact
appellant for assistance. MacDonald later entered into a guilty plea to one count of
engaging in a pattern of corrupt activity and three counts of attempted aggravated
trafficking in drugs.
{¶ 29} During 2009 and 2010, Carter Moore was a frequent visitor to Creative
Tattoos. Carter observed appellant and Eric Sullivan "talk a lot and sometimes switch
money" between them. (Tr. 339.) Appellant informed Carter that he made money from
Nos. 13AP-997 and 13AP-999 8
other individuals and from prescription drugs. On one occasion, appellant asked Carter if
he "wanted to go out of town and make some money." (Tr. 339.) Appellant offered him
money for the trip, but Carter declined because he was employed at the time. Carter
subsequently entered a guilty plea to one count of aggravated trafficking in drugs.
{¶ 30} Stephen Anderson, age 32, first met appellant in 2010. At that time,
appellant "started funding a little activity for me down in Florida." (Tr. 359.) Anderson
also began working at a construction company, Nitro Restoration, run by appellant and
Sullivan. Anderson took trips to Florida for appellant; on those trips, Anderson would "go
down there and get what we had to get and bring it back and give him what was supposed
to go to him and keep what was supposed to go to me." (Tr. 360.) Anderson was
permitted to keep "all the 15s and all the Xanax and they got all the 30s." (Tr. 361.)
{¶ 31} Appellant and Sullivan were involved in coordinating the trips to Florida
during this time. The total cost of a trip for five individuals was between $8,000 to
$10,000. On one trip, Sullivan told Anderson that appellant wanted Anderson to teach
appellant's nephew how to obtain prescription drugs in Florida. Appellant funded
Anderson's trips to Florida through Sullivan, who acted as a middleman. Appellant paid
for rental cars for some of the trips to Florida. Upon returning from Florida, Anderson
would collect the pills. Anderson "usually kept the Xanaxes" for himself, and he turned
over the remainder of the pills to Sullivan and appellant. (Tr. 372.)
{¶ 32} On several occasions, Anderson had conversations with appellant about
obtaining money for trips. Anderson spent time in prison from December 2010 until July
2011. Sullivan funded some trips in 2010, but appellant funded all the trips after
Anderson's release from prison in 2011. Anderson stopped making trips in 2012 because
of police activity. Anderson testified that he made trips funded by appellant "pretty much
at least once every month" beginning in August 2010 and ending in January 2012. (Tr.
385.) Anderson subsequently entered a guilty plea to one count of engaging in a pattern
of corrupt activity, and five counts of aggravated trafficking in drugs.
{¶ 33} Maxwell has known appellant for 25 years. Appellant "fronted" Maxwell
some Oxycodone, 30 milligrams, to resell and "make some money." (Tr. 399.) In spring
2010, appellant approached Maxwell about taking trips to Florida to obtain prescription
drugs. Appellant offered Maxwell $500 to make the trip. Appellant informed Maxwell
that he would be "going down with another person that I knew who had it all set up as far
Nos. 13AP-997 and 13AP-999 9
as what doctors we were going to. He had to go down and get a MRI then go from there to
* * * see the doctor. The doctor really didn't care if there was anything wrong." (Tr. 400.)
Appellant further explained to Maxwell that, after the physician wrote the prescription,
"[w]e'd go from there to whatever pharmacy was available, normally whichever one was
cheapest, and get the prescriptions filled and then head back to Columbus." (Tr. 403.)
{¶ 34} Maxwell made his first trip to Florida in summer 2010 after he "got behind
with some money I owed [appellant]." (Tr. 400.) On that trip, Maxwell traveled with
MacDonald, Perry, Anderson, and a woman named Kara. Before departing, they met at
Creative Tattoos; they "[w]ent in, got the money" from appellant "[w]rapped in a rubber
band." (Tr. 402.) Each individual received $2,000, but MacDonald held the money for
everyone but Maxwell. On that first trip, Maxwell was unable to obtain drugs because he
"tested positive for cocaine." (Tr. 404.) Upon returning to Columbus with no pills,
appellant told Maxwell he would have to return to Florida and "make it up." (Tr. 405.)
{¶ 35} Maxwell participated in "[f]our or five" trips to Florida in 2010. (Tr. 406.)
Appellant paid for each of those trips, and Maxwell would go to Creative Tattoos to obtain
money prior to leaving. Upon returning from Florida, Maxwell gave the pills to appellant
at the tattoo shop. Maxwell took trips with MacDonald, Perry, Richard, Cline, Jordan,
Keller, Kelley, and Anderson. On the trips he made with MacDonald, "Eric would hold
the majority of the money." (Tr. 407.) Maxwell, however, "had a good enough
relationship with [appellant] where he trusted me with the money. But he would hold
everybody else's money and regulate what was going on." (Tr. 407.) On the return trip
from Florida, MacDonald "would gather everybody's pills up * * * around the outskirts of
Columbus. As we're getting close to home he'd get everything together. Then we'd drop
everybody off and meet up with [appellant]." (Tr. 408.)
{¶ 36} Maxwell later made trips without MacDonald. On those occasions, Maxwell
would "get in touch with [appellant], get the money. And then I paid another individual
to drive me down. And I would just pay out of money that I received. I'd pay that fella the
gas money, hotel, the food." (Tr. 407.) On trips he made without MacDonald, Maxwell
would collect the pills from the other individuals "and then I delivered them myself once
we got to Columbus." (Tr. 409.) Maxwell sometimes delivered pills to appellant's
residence and, on other occasions, he accompanied MacDonald to appellant's house to
deliver pills. Maxwell went to appellant's residence "at least 10" times, and to the tattoo
Nos. 13AP-997 and 13AP-999 10
shop "[a]t least five" times to deliver pills. (Tr. 409.) When Maxwell handed over the
pills, appellant would "count them out; make sure the pill count was right." (Tr. 410.) On
one occasion, appellant told Maxwell he was sending pills "down to West Virginia to get
sold" through "one of his friends," Sullivan. (Tr. 410.) Appellant financed trips that
Maxwell and others made to Florida on September 9, December 2-3, 2010, February 2,
March 1-3, March 29-31, and August 15, 2011.
{¶ 37} Sparks, age 37, met appellant in 2001 and they became friends. Sparks
served five years in prison for a felony conviction for possession of drugs, and he was
released on July 28, 2010. After his release, Sparks began traveling out of state to obtain
prescription drugs. Sparks was involved in obtaining and selling prescription drugs from
June 2011 to February 2012. The CI financed these early trips in which they would obtain
Oxycodone 15 and 30 milligram pills. Sparks also "borrowed money from [appellant],
and I did use it to go down [to Florida]." (Tr. 456.) Sparks spoke with appellant about
making trips to Florida. Appellant advised Sparks to speak with MacDonald regarding
how to obtain drugs in Florida. MacDonald provided Sparks with detailed information
about traveling to Florida to obtain prescriptions. While in Florida, Sparks sometimes
had difficulty obtaining prescriptions; on those occasions, he would contact "several
people," including MacDonald and Robert Ruben. (Tr. 460.) Sparks once loaned
appellant his red Ford Taurus; appellant told Sparks "they did go to Virginia" in the
vehicle. (Tr. 464.) At one point, appellant expressed concern to Sparks about police
surveillance. A friend of Sparks had been "pulled over with some prescription pills as they
were leaving the tattoo shop." (Tr. 463.)
{¶ 38} Sparks purchased prescription pain medication from appellant from June
through December 2011. Sparks recalled purchasing 360 "Percocet" pills from appellant
on one occasion, and approximately 100 Percocet pills on another. (Tr. 465.) Sparks
made one of these purchases at appellant's residence, while he made the other purchase at
Creative Tattoos. Sparks spoke with appellant about taking Smith to Florida for a doctor's
appointment, and appellant loaned Sparks $2,500 for the trip. Smith obtained the pills
and turned them over to Sparks, and Sparks then "sold them." (Tr. 468.)
{¶ 39} Sparks subsequently entered into an agreement with the state to testify in
exchange for a recommended eight-year prison sentence. Sparks further agreed to enter a
Nos. 13AP-997 and 13AP-999 11
guilty plea to one count of engaging in a pattern of corrupt activity, one count of
aggravated trafficking in drugs, and one count of aggravated funding of drug trafficking.
{¶ 40} Jason Moore has known appellant for approximately 35 years. MacDonald
approached Jason about taking trips to Florida, and Jason made three trips to that state
for prescription medications. His first trip was in June 2010, and he traveled with
MacDonald, Richard, and Anderson. MacDonald held all the money during that trip.
Upon returning from Florida, Jason gave MacDonald all the Oxycodone 30 milligram
pills, as well as the "Xanax and Somas." (Tr. 477-78.) After dropping Anderson off at a
location on High Street, they drove to Creative Tattoos. According to Jason, this was "the
first time that I even knew that [appellant] had anything to do with it. And we walked in.
Me, him, Eric and Richie was in the back room. And Eric gave [appellant] the pills. And
he returned, gave them money." (Tr. 478.) Appellant gave MacDonald money "rubber
band rolled." (Tr. 479.)
{¶ 41} Jason made a second trip in August 2010 with MacDonald, "Eric, Richie,
[and] a guy named Ben." (Tr. 479.) MacDonald again held the money during the trip.
On one trip, appellant provided a van for transportation. Jason made a third trip to
obtain prescription pills in October 2010 with MacDonald, Mike Couch and Moore's
fiancée, Patricia Wilson. On the return trip, the vehicle was involved in an accident
resulting in Wilson's death. Appellant subsequently drove to Jason's residence and asked
Jason to speak with a private investigator. Appellant called the investigator on his phone
and handed the phone to Jason. Jason lied to the investigator, telling him "I didn't know
what he was talking about." (Tr. 484.)
{¶ 42} Smith, age 39, is married to Robert, and she has known appellant since the
eighth grade. In 2009, appellant approached Robert about taking trips to Florida; shortly
thereafter, Robert began traveling there to obtain prescription drugs. Robert would
return from these trips with "the 180 30s, and like 160 15s, 90 Xanaxes and 90 or 60
somas." (Tr. 502.) In late 2009 and early 2010, Robert was traveling to Florida "[o]nce a
month," making trips with Richard and Kelley. (Tr. 502.)
{¶ 43} Beginning in July 2010, Smith went on trips to Florida after "Robert said
that we could make more money and get more pills." (Tr. 504.) They initially traveled in
Smith's vehicle or Kelley's truck, and appellant provided the money for the trips. Smith
traveled once a month, obtaining "160 30s, 120 15s, and 90 Xanaxes and 60 Somas." (Tr.
Nos. 13AP-997 and 13AP-999 12
505.) Richard held the money for the trips. On the return trip to Ohio, Robert and
Richard would "take the 30s." (Tr. 505-06.)
{¶ 44} Before leaving on trips, Richard would obtain approximately $2,000 for
each individual's expenses. In 2011, Smith and Robert were involved in a "big fight and
split up," and Smith began taking trips with Sparks instead. (Tr. 508.) Later, from
November 2011 until February 24, 2012, Smith again went on trips with "Robert, Richie
and ." (Tr. 509.) During this time, they were making trips once a month. These same
individuals subsequently began flying to Florida. Upon returning to Ohio, "we would * * *
then go and drive to Virginia and we'd fill the prescription[s] there and drive back." (Tr.
509.) They traveled to Virginia to fill the prescriptions because "[t]hey were cheaper."
(Tr. 511.) The Oxycodone 30 milligram pills "would go to [appellant]." (Tr. 512.) Smith
acknowledged her own personal use of the prescription drugs; of the pills Smith was able
to keep from the trips, she would either take the pills or sell them. Smith paid cash for the
prescriptions she obtained. On February 24, 2012, while returning from a trip to Virginia
to fill prescriptions, law enforcement officials stopped their vehicle in Virginia.
{¶ 45} Richard testified that his brother, Robert, informed him that appellant
wanted him to go to Florida for doctor appointments. Richard had injured his back, and
was using prescription pain medication at that time. In 2009, Richard took his first trip
to Florida with his brother Robert, along with MacDonald, and Chapman. On that trip,
Chapman carried the money for all of the individuals. In return for making the trips,
Richard initially received money and some pills, including 15 milligram Oxycodone pills;
later, he received just pills. Richard gave the Oxycodone 30 milligram pills to appellant.
{¶ 46} On the initial Florida trips, MacDonald drove and also held the money. In
2010, Richard traveled to Florida approximately once a month. Prior to leaving,
MacDonald would obtain the money from appellant. Richard sometimes accompanied
MacDonald to pick up money from appellant; it would be "wrapped with a rubber band,"
with an "individual certain amount for each person." (Tr. 536.)
{¶ 47} Near the end of 2011, MacDonald no longer accompanied him, and Richard
began carrying the money himself. Richard would meet appellant at "[e]ither the tattoo
shop [or] his home." (Tr. 537-38.) Richard would sometimes meet appellant in the
garage of appellant's residence to pick up money or to drop off pills. On other occasions,
appellant came to Kelley's residence on Lewis Road, where Richard was staying, to drop
Nos. 13AP-997 and 13AP-999 13
off money. Sullivan, a friend of appellant, was sometimes present when Richard received
money from appellant prior to a trip.
{¶ 48} Richard testified that physicians scheduled appointments for the individuals
"[e]very 28 days." (Tr. 542.) Prior to the trips, Richard would speak with appellant about
"when we going to meet, get everything straightened around, get the money together and
stuff; discuss how many people was going, who was going." (Tr. 542.) Richard would
drive, and he would pick up the other individuals after obtaining the trip money because
appellant "didn't want nobody around." (Tr. 543.)
{¶ 49} On the early trips, they could obtain 240 of the Oxycodone 30 milligram
pills at one time, but later "they started reducing the amount of pills they wanted to give
you. So at the end I believe we was getting like 180 of each." (Tr. 539.) Richard and
others began traveling to Virginia to fill the prescriptions.
{¶ 50} On most of the trips appellant "was providing the vehicle." (Tr. 545.)
Appellant "bought a couple minivans, was letting us use them." (Tr. 545.) Later, Richard
borrowed a van from Kelley. When they flew to Florida, appellant would give Richard a
"prepaid debit card and put money on it" to pay for the airline tickets. (Tr. 546.) Richard
utilized the Internet to purchase the tickets. After Richard purchased the airline tickets,
"we'd wait until ready to go, like the day before, meet with [appellant], get the money for
us to go pay for the trips and then we'd go." (Tr. 547.) After flying back to Columbus,
Richard would "go meet with [appellant], get the rest of the money to go to Virginia to pay
for the prescriptions. I'd go get the money for them to go to Virginia, fill, and then come
back." (Tr. 548.) Richard would also "take all the 30 milligrams from everybody and put
them in one bag, and then I'd take them to [appellant]." (Tr. 549.) Appellant would "be
in the garage waiting on me." (Tr. 549-50.) Appellant permitted Richard to use a red
Ford Taurus on one of the trips to obtain prescriptions.
{¶ 51} Perry dated MacDonald for 14 years until their relationship ended in
September 2011. MacDonald approached Perry about traveling to Florida to obtain
prescription paid medication, including Oxycodone. Perry made her first trip to Florida
in 2011, and then made trips at least "[o]nce a month." (Tr. 582.) MacDonald told Perry
that he obtained money for the trips from appellant. Prior to leaving for Florida,
MacDonald would go to Creative Tattoos. Perry once obtained money from appellant to
Nos. 13AP-997 and 13AP-999 14
bail out MacDonald. In September 2011, law enforcement officials in Virginia arrested
Perry.
{¶ 52} The CI has known Sparks since 2000, and the CI acknowledged "selling
marijuana to him." (Tr. 611.) The CI met appellant in 2010 through Sparks. In summer
2011, the CI observed Sparks leaving on trips to Florida. The CI learned that "the people
that rode along with the trips were the actual ones going to the doctor to get the pills and
then being compensated for their travel, and the person funding was the individual
providing the money." (Tr. 617.) The CI also observed Sparks purchase airline tickets. In
July 2011, Sparks asked the CI to dispose of some "[e]mpty and some full pill bottles."
(Tr. 620.) Sparks asked him to do this because "I could put them in a dumpster that I
would be renting." (Tr. 620.) The CI, acting as a federal informant, provided an IRS
agent with information that "Sparks had his people that he was sending, Ruben Rhodes
had his group of people, and Mr. Johnson had his group of people, according to Robert."
(Tr. 634.)
{¶ 53} Columbus Police Detective Jeremy Ehrenborg testified that he had been
involved in "three pill investigations" involving "multiple defendants that were traveling
from Columbus, Ohio, to Florida to pick up prescription pills." (Tr. 677.) In each
investigation, there was usually one individual who "funded the people who were traveling
to get pills." (Tr. 677.) The individuals traveling to obtain the pills "generally didn't have
the money to buy the prescriptions or pay for all the travel, the food and stuff like that."
(Tr. 678.)
{¶ 54} In November 2011, MacDonald contacted Detective Ehrenborg and told the
detective he "had some information that he wanted to provide." (Tr. 690.) Detective
Ehrenborg subsequently spoke with MacDonald regarding "his own activity" and "how the
organization * * * ran." (Tr. 691.) Law enforcement officials obtained search warrants to
activate GPS tracking on cell phones and vehicles, and a GPS unit was placed on Sullivan's
GMC Yukon, as well as on a red Ford Taurus owned by Sparks.
{¶ 55} On January 4, 2012, law enforcement personnel observed Leon Taunah at
the residence of Sparks. Taunah, who was driving a Dodge Neon, left the residence and
drove to Creative Tattoos. A few minutes later, appellant arrived at the tattoo shop.
Taunah was observed leaving the tattoo shop and state troopers subsequently stopped his
vehicle. A search of the vehicle by troopers revealed receipts from various pharmacies, as
Nos. 13AP-997 and 13AP-999 15
well as prescription pill bottles for Oxycodone 30 milligram pills. In February 2012, law
enforcement officials pulled over a vehicle belonging to Smith; the officials searched the
vehicle, discovering prescriptions, pharmacy receipts, and a document listing the names
and phone numbers of 102 pharmacies.
{¶ 56} Detective Ehrenborg testified that his investigation revealed three
organizations or groups headed by Rhodes, Sparks, and appellant. According to the
detective, the investigation indicated that "approximately 46,000 Oxycodone 30s" were
obtained during the time frame (April 2010 through February 2012) in which individuals
were making trips to obtain prescriptions. (Tr. 762.) The detective estimated that the
street value of the Oxycodone 30 milligram pills was approximately $920,000.
{¶ 57} Following deliberations, the jury returned verdicts finding appellant guilty
of engaging in a pattern of corrupt activity and 18 counts of aggravated funding of drug
trafficking in case No. 12CR-3961, as well as 7 counts of aggravated funding of drug
trafficking in case No. 13CR-5503. By judgment entry filed November 26, 2013, the trial
court sentenced appellant in case No. 12CR-3961 to 7 years of incarceration for the count
of engaging in a pattern of corrupt activity, and 3 years of incarceration each as to the 18
counts of aggravated funding of drug trafficking, with all counts to be served consecutive
to each other, and to be served consecutive to 3 years incarceration imposed in case No.
13CR-5503.
{¶ 58} On appeal, appellant sets forth the following five assignments of error for
this court's review:
[I.] Defendant-Appellant's convictions for engaging in a
pattern of corrupt activity and aggravated funding of drug
trafficking are not supported by sufficient evidence to satisfy
the requirements of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.
[II.] The State violated Defendant-Appellant's Sixth and
Fourteenth Amendment rights to counsel of choice and due
process when it misrepresented and concealed material
information regarding the expected testimony of its informant
in order to manufacture a sham conflict of interest and
disqualify Defendant-Appellant's retained attorney.
[III.] The cumulative effect of the trial court's erroneous
evidentiary rulings, restriction on cross-examination, and a
defective specific intent instruction deprived Defendant-
Nos. 13AP-997 and 13AP-999 16
Appellant of his Sixth and Fourteenth Amendment right to a
fundamentally fair trial and reliable jury verdict.
[IV.] Defendant-Appellant was denied his right to the effective
assistance of counsel as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution.
[V.] Defendant-Appellant's consecutive prison sentence
totaling 64-years is clearly and convincingly contrary to law
and/or an abuse of discretion.
{¶ 59} Under the first assignment of error, appellant contends that his convictions
for engaging in a pattern of corrupt activity and aggravated funding of drug trafficking are
not supported by sufficient evidence. More specifically, appellant argues that the state
failed to prove: (a) the identity of the controlled substance, (b) that he funded another's
drug business, (c) the element of specific intent, and (d) that he engaged in a pattern of
corrupt activity.
{¶ 60} In reviewing "a record for sufficiency, '[t]he relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime proven beyond a reasonable
doubt.' " State v. Fry, 125 Ohio St. 3d 163, 2010-Ohio-1017, ¶ 146, quoting State v. Jenks,
61 Ohio St. 3d 259 (1991), paragraph two of the syllabus.
{¶ 61} The offense of engaging in a pattern of corrupt activity under R.C.
2923.32(A)(1) is defined as follows: "No person employed by, or associated with, any
enterprise shall conduct or participate in, directly or indirectly, the affairs of the
enterprise through a pattern of corrupt activity." An "enterprise" is defined to include
"any individual, sole proprietorship, partnership, limited partnership, corporation, trust,
union, government agency, or other legal entity, or any organization, association, or group
of persons associated in fact although not a legal entity." R.C. 2923.31(C). An enterprise
"includes illicit as well as licit enterprises." R.C. 2923.31(C). Pursuant to R.C. 2923.31(E),
" '[p]attern of corrupt activity' means two or more incidents of corrupt activity * * * that
are related to the affairs of the same enterprise, are not isolated, and are not so closely
related to each other and connected in time and place that they constitute a single event."
Nos. 13AP-997 and 13AP-999 17
{¶ 62} Under R.C. 2923.31(I), "[c]orrupt activity" is defined to mean:
* * * [E]ngaging in, attempting to engage in, conspiring to
engage in, or soliciting, coercing, or intimidating another
person to engage in any of the following:
***
(2) Conduct constituting any of the following:
***
(c) Any violation of section * * * 2925.03, * * * 2925.05, * * *
of the Revised Code, any violation of section 2925.11 of the
Revised Code that is a felony of the first, second, third, or
fourth degree and that occurs on or after July 1, 1996, * * *
when the proceeds of the violation, * * * or the value of the
contraband or other property illegally possessed, sold, or
purchased in the violation exceeds one thousand dollars, or
any combination of violations * * * when the total proceeds of
the combination of violations * * * or value of the contraband
or other property illegally possessed, sold, or purchased in the
combination of violations exceeds one thousand dollars[.]
{¶ 63} The offense of aggravated funding of drug trafficking is set forth under R.C.
2925.05, which states in part:
(A) No person shall knowingly provide money or other items
of value to another person with the purpose that the recipient
of the money or items of value use them to obtain any
controlled substance * * * for the purpose of selling or offering
to sell the controlled substance in the following amount:
(1) If the drug to be sold or offered for sale is any compound,
mixture, preparation, or substance included in schedule I or
II, * * * an amount of the drug that equals or exceeds the bulk
amount of the drug[.]
{¶ 64} Appellant first argues the state failed to prove the identity of the controlled
substance. Specifically, appellant contends the state failed to lay a foundation or elicit lay
testimony from the co-defendants regarding the identity of the pills allegedly turned over
to him. According to appellant, the state's witnesses implicitly relied on the labeling of the
prescription bottles when they testified the pills were Oxycodone; appellant maintains
such evidence is insufficient to establish the identity of the contents of the pill bottle.
Nos. 13AP-997 and 13AP-999 18
{¶ 65} Under Ohio law, "the experience and knowledge of a drug user lay witness
can establish his or her competence to express an opinion on the identity of a controlled
substance if a foundation for this testimony is first established." State v. McKee, 91 Ohio
St.3d 292, 297 (2001). Such evidence "meets the requirements of Evid.R. 701. It is
testimony rationally based on a person's perceptions and helpful to a clear understanding
of a fact in issue." Id. In order for drug identification testimony to be admissible under
McKee, "the state need only establish the competence of the proposed lay witness." State
v. Gonzales, 6th Dist. No. WD-13-086, 2015-Ohio-461, ¶ 23. Such competence "is
established in this context by 'providing the court with a foundation that demonstrates
that the lay witness has a sufficient amount of experience and knowledge either from
having dealt with or having used the same type of controlled substance in the past that he
or she is now being asked to identify.' " Id., quoting State v. Maag, 3d Dist. No. 5-03-32,
2005-Ohio-3761, ¶ 37.
{¶ 66} In the instant case, various witnesses for the state testified as to their
addiction to, and extensive use of, prescription pain medications including Oxycodone.
Robert stated he was addicted to the prescription drugs, and that "[i]t was a habit" for
him. (Tr. 189.) MacDonald related that he usually "chose pills" instead of taking cash for
the trips he took "because [of] my addiction." (Tr. 267.) With the pills he received,
MacDonald "sold some to pay bills. But the majority of them I kept to eat them." (Tr.
267.) Anderson testified that he "was using the pills pretty good." (Tr. 410.) Smith would
either sell or use the pills she kept from her trips. Richard acknowledged being "addicted"
to these prescription medications following a back injury. (Tr. 532.) During his first trips
he would receive some money, but "it got to where I got no money given to me. * * * I got
to keep all the 15 milligrams [Oxycodone] and Somas and Xanax." (Tr. 534.)
{¶ 67} Ohio courts have accepted similar lay witness testimony to establish the
identity of a suspected substance. See, e.g., State v. Johnson, 4th Dist. No. 13CA16, 2014-
Ohio-4032, ¶ 42 (law officer's reliance on appellant's testimony that she recognized
Hydrocodone because of her previous prescription established a foundation for the officer
to rely on appellant's identification of drug); State v. Mielke, 12th Dist. No. CA2012-08-
079, 2013-Ohio-1612, ¶ 42 (testimony by lay witness that he had been a past steroid user
and distributor sufficient to establish controlled substances element of the offense of
trafficking in drugs); State v. Singleton, 11th Dist. No. 2002-L-077, 2004-Ohio-1517, ¶ 23
Nos. 13AP-997 and 13AP-999 19
(testimony of lay witnesses, including minors, that they had past experience using
marijuana and cocaine sufficient to establish substances defendant provided to children
were in fact marijuana and cocaine).
{¶ 68} Under Ohio law, the state can establish the identity of a controlled
substance through either direct or circumstantial evidence. See State v. Bowling, 12th
Dist. No. CA2013-08-159, 2014-Ohio-1690, ¶ 15 ("The government only needs to produce
sufficient evidence, direct or circumstantial, from which the trier of fact is able to identify
the substance beyond a reasonable doubt.").
{¶ 69} Upon review of the testimony at issue, we find that the state presented a
sufficient foundation (i.e., that the co-defendants were familiar with the controlled
substances at issue based upon their personal knowledge and prior experience using such
drugs) such that these witnesses were qualified to testify with respect to the identity of the
drugs. In addition to the lay testimony presented, the state also introduced prescription
records, prescription receipts, as well as Oxycodone pills recovered during several police
searches. Here, the subject testimony, as well as other circumstantial evidence presented,
was sufficient to establish the identity of the substances beyond a reasonable doubt.
{¶ 70} Appellant also contends the state failed to prove that he funded "another"
person's trafficking. Appellant argues the state did not prosecute him on a theory he was
passively financing the drug trafficking business of a third party but, rather, that he was
recruiting drug addicts to obtain Oxycodone to market on his own.
{¶ 71} The state responds that appellant's argument adds an additional element
not contained in the statute, i.e., that the recipient of the money both obtain the
controlled substances and sell or offer to sell them. The state argues there is no such
requirement under R.C. 2925.05; instead, the state maintains, the statute only requires
that the recipient of the money use it to obtain the controlled substance for purposes of
future resale. We agree. See, e.g., State v. Turner, 6th Dist. No. E-95-056 (Aug. 29, 1997)
(evidence sufficient to support conviction for funding where defendant "expressed
disappointment that he would not be able to make money reselling the cocaine after it was
clear that the sale would not take place"); State v. Caudill, 3d Dist. No. 05-97-35 (Dec. 2,
1998) (evidence sufficient to convict defendant of funding where defendant provided
Nos. 13AP-997 and 13AP-999 20
money to others used to obtain drugs in Texas that were subsequently delivered to
defendant for distribution in Ohio).1
{¶ 72} Appellant next asserts the state failed to prove he had specific intent to sell
or offer to sell more than the bulk amount of the drugs. Appellant cites the lead
detective's admission that he made no attempt to arrange an undercover purchase from
appellant. Appellant further contends that the testimony of the co-defendants on this
element was sketchy and uncertain.
{¶ 73} In response, the state maintains there was direct evidence, based upon the
testimony of other co-defendants, including Robert and Sparks, that these individuals
purchased pills from appellant on multiple occasions. The state further points to evidence
regarding the substantial quantity of Oxycodone pills obtained by multiple travelers every
28 days which, the state maintains, on each trip greatly exceeded the bulk amount;
according to the state, the sheer number of pills procured evinces ample circumstantial
evidence of intent to sell or resell.
{¶ 74} To the extent appellant challenges the credibility of the co-defendants, i.e.,
that their testimony was "sketchy," a reviewing court will not weigh the evidence in
considering a sufficiency challenge. See, e.g., State v. Green, 117 Ohio App. 3d 644, 650
(1st Dist.1996) ("In reviewing a legal-sufficiency argument, a reviewing court cannot
resolve evidentiary conflicts in favor of appellant or substitute its evaluation of witness
credibility for the jury's.").
{¶ 75} At trial, numerous co-defendants provided testimony that appellant paid
them to travel to physician clinics in Florida to obtain pain prescriptions, including
Oxycodone 30 milligram pills, and to then fill the prescriptions at various pharmacies.
Upon returning to Ohio, the individuals tasked with leading the groups on the trips would
collect and deliver the 30 milligram Oxycodone pills to appellant. The co-defendants also
provided testimony as to the quantity of Oxycodone 30 milligram pills they procured on
the trips, including Robert, who stated that he usually travelled to Florida with four to six
1 Notwithstanding appellant's interpretation of the funding statute, we note the state presented evidence that
various co-defendants who traveled to Florida sold drugs they obtained, including Maxwell, who testified
that appellant "fronted me some perc 30s * * * [t]o resell, make some money." (Tr. 399.) Maxwell also
testified that appellant sent pills to West Virginia for Sullivan to sell. Smith testified that, after turning over
the Oxycodone 30 milligram pills, she would either keep the remaining pills for her own use or "sell them."
(Tr. 512.) Perry testified that MacDonald would "get his medicine and then * * * sell them." (Tr. 586.)
MacDonald acknowledged selling pills "to pay bills." (Tr. 267.)
Nos. 13AP-997 and 13AP-999 21
individuals, and that on these trips each individual typically received prescriptions for
either 160 or 210 Oxycodone 30 milligram pills, as well as 160 Oxycodone 15 milligram
pills, 90 Xanax pills and 90 Soma pills. Robert testified as to approximately 12 trips he
made to obtain Oxycodone and other medications. Robert related that he and his brother,
Richard, went to appellant's residence to deliver between 600 to 800 Oxycodone 30
milligram pills. Robert also purchased Oxycodone 30 milligram pills from appellant on
different occasions.
{¶ 76} MacDonald testified that he traveled with other individuals to Florida
almost weekly; during these trips each individual obtained either 180 or 240 Oxycodone
30 milligram pills. According to MacDonald, he made approximately 80 of these trips
over an almost two-year period. Maxwell testified that he made 4 or 5 trips to Florida in
2010, and that appellant financed each of those trips. Smith made trips to Florida on a
monthly basis; on these trips, she would procure 160 Oxycodone 30 milligram pills, as
well as other pain medications including Xanax and Soma pills. Sparks testified that he
purchased pills from appellant, including purchases of 360 Percocet pills on one occasion,
and 100 Percocet pills on another. At trial, the parties stipulated that the bulk amount of
Oxycodone 30 milligram pills, a Schedule II substance, is 15 unit doses or 15 pills.
{¶ 77} Here, viewing the evidence most strongly in favor of the prosecution, as we
are required to do in considering a sufficiency argument, we find that the state presented
sufficient evidence for the jury to find that appellant obtained the controlled substances
for the purpose of selling or offering to sell more than the bulk amount of the drugs. The
record supports the state's contention that there was direct evidence that appellant sold
pills on multiple occasions. Additionally, the state presented testimony, cited above, as to
the quantity of drugs obtained by co-defendants during the nearly two-year period. The
state also introduced exhibits including a chart listing the prescriptions for Oxycodone 30
milligram pills obtained by the various individuals, as well as individual pharmacy patient
history records.
{¶ 78} According to Detective Ehrenborg, over the time period from April 2010 to
February 2012, the investigation revealed that the individuals traveling to Florida
obtained approximately 46,000 Oxycodone 30 milligram pills, and that the street value of
the drugs obtained was $920,000. Further, the state presented other circumstantial
evidence, including items recovered from appellant's residence, evincing an intent by
Nos. 13AP-997 and 13AP-999 22
appellant to sell or resell. See, e.g., State v. Pippen, 4th Dist. No. 11CA3412, 2012-Ohio-
4692, ¶ 36 (given sheer quantity of Oxycodone recovered, as well as other evidence
including cash recovered from home, it was reasonable for jury to find defendant intended
to sell or resell the Oxycodone). Accordingly, a rational trier of fact could have found the
elements of aggravated funding of drug trafficking proven beyond a reasonable doubt.
{¶ 79} Appellant's challenge regarding his conviction for engaging in a pattern of
corrupt activity is predicated upon his claim that the evidence was insufficient to support
his convictions for aggravated funding of drug trafficking. As indicated above, however,
the evidence was sufficient to support those convictions, and we further find that
appellant's conviction for engaging in a pattern of corrupt activity was supported by
sufficient evidence.
{¶ 80} Based upon the foregoing, appellant's first assignment of error is overruled.
{¶ 81} Under his second assignment of error, appellant contends the state violated
his right to counsel of choice in moving to disqualify attorney Javier Armengau prior to
trial. Appellant argues that the state misrepresented and concealed material information
regarding the expected testimony of the CI in order to manufacture a sham conflict of
interest and thereby disqualify Armengau from representing him.
{¶ 82} As noted under the facts, on August 24, 2012, approximately one year prior
to trial, the state filed a motion to disqualify counsel on the basis of an alleged conflict of
interest, i.e., that attorney Armengau was currently representing an informant utilized by
law enforcement investigators in the instant case. In its motion, the state represented that
it intended to call the CI as a witness at trial. On October 3, 2012, the trial court
conducted a hearing on the motion to disqualify, during which the prosecutor noted that
attorney Armengau had negotiated a plea agreement in federal court on behalf of the CI;
the prosecutor expressed his view that the CI had an ongoing obligation to testify in the
current case. The state further represented that it intended to call the CI as a witness, and
noted that Armengau might be required to advise the CI "whether * * * or not testifying
would break the defendant's agreement," as well as "whether to take the Fifth or not."
(Oct. 3, 2012 Tr. 4.) The prosecutor also argued that the CI had spoken with another
potential witness, Sparks, and that Sparks had requested that the CI "call Mr. Armengau
to ask legal advice as to whether or not to take the deal offered." (Oct. 3, 2012 Tr. 5.)
Nos. 13AP-997 and 13AP-999 23
{¶ 83} Attorney Armengau stated during the hearing that "[t]he confidential
informant, who I did work out a plea agreement for in federal court, has never in federal
court or anywhere else given any information on [appellant]. * * * He's never had any
dealings with [appellant] in any capacity." (Oct. 3, 2012 Tr. 7.) At the close of the hearing,
the trial court expressed concern that the CI is "going to be called, and that [the CI] does
have information that can be used against * * * [appellant]." (Oct. 3, 2012 Tr. 14.) The
court therefore requested the prosecution to submit an affidavit regarding the CI's
knowledge of appellant's activities.
{¶ 84} On October 23, 2012, the state filed under seal the affidavit of the CI. In
response, attorney Armengau filed his own affidavit. By decision and entry filed
November 19, 2012, the trial court granted the state's motion to disqualify counsel. In its
decision, the court cited concern regarding the CI's "obligation to testify in this case
pursuant to the defendant's agreement that was negotiated as part of his plea in federal
court," and the fact that attorney Armengau, "who negotiated the deal, may have to give
the CI advice as to his obligation pursuant to the defendant's agreement." The court
acknowledged it "will not know the full potential extent of the conflict until the CI
testifies," but noted, "[a]t that time * * * it will be too late to remedy the problem short of a
mistrial if, as he alleges in his affidavit, the CI has admissible adverse evidence against the
defendant." The court also indicated it was "satisfied that the State has not manufactured
a conflict." As indicated under the facts, after the trial court rendered its decision
granting the state's motion to disqualify counsel, appellant filed an interlocutory appeal.
In Johnson, this court affirmed the decision of the trial court granting the state's motion
to disqualify.
{¶ 85} Appellant argues the prosecution submitted a misleading affidavit to the
trial court, leaving the court with the impression the CI possessed a substantial body of
first-hand knowledge implicating him. Appellant maintains that later developments at
trial confirmed the state had fabricated an alleged conflict of interest. According to
appellant, the CI's trial testimony indicates the CI's sole knowledge came from
information received by co-defendant Sparks. Appellant further argues that the
prosecution had a duty to inform the trial court that this "tiny snippet of testimony" was
the entirety of the information the CI could provide against him.
Nos. 13AP-997 and 13AP-999 24
{¶ 86} In general, "[t]he Sixth Amendment to the Constitution guarantees that '[i]n
all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of
Counsel for his defence.'" Wheat v. United States, 486 U.S. 153, 158 (1988). Accordingly,
"[a] criminal defendant who desires and is financially able to retain his own counsel
'should be afforded a fair opportunity to secure counsel of his own choice.' " Serra v.
Michigan Dept. of Corrections, 4 F.3d 1348, 1351 (6th Cir.1993), quoting Powell v.
Alabama, 287 U.S. 45, 53 (1932). Although a criminal defendant "who can afford his own
attorney has a right to his chosen attorney, that right is a qualified right." Id. at 1351
citing Wheat at 159. As such, a "trial court 'must recognize a presumption in favor of [a
defendant's] counsel of choice, but that presumption may be overcome not only by a
demonstration of actual conflict but by a showing of a serious potential for conflict. The
evaluation of the facts and circumstances of each case under this standard must be left
primarily to the informed judgment of the trial court.' " Id., quoting Wheat at 164.
{¶ 87} In Wheat, the United States Supreme Court recognized circumstances in
which "the Government may seek to 'manufacture' a conflict in order to prevent a
defendant from having a particularly able defense counsel at his side." Id. at 163. The
United States Supreme Court further noted, however, that "trial courts are undoubtedly
aware of this possibility, and must take it into consideration along with all of the other
factors which inform this sort of a decision." Id.
{¶ 88} At the outset, we find unpersuasive appellant's contention that the CI had
no first-hand information to offer, and that the CI's sole source of information was from
Sparks.2 In his affidavit, the CI related information appellant had provided him, as well as
information regarding discussions he had with attorney Armengau. At trial, the CI
testified that he had sold marijuana to Sparks, and that he met appellant in 2010 through
Sparks. The CI stated he had "a pretty good relationship" with appellant, and that they
"went in together on a car lot." (Tr. 612.) The CI became an informant for the federal
government following his conviction for conspiracy to distribute marijuana. In summer
2011, the CI witnessed Sparks leaving for trips to Florida, and he also observed Sparks
2 We also find unpersuasive appellant's claim that Sparks did not participate in the conspiracy. At trial, the
state presented evidence that: (1) Sparks and MacDonald cooperated with the state in identifying the
enterprise; (2) Sparks' vehicle, which he loaned to appellant, was used to obtain prescriptions; (3) appellant
loaned Sparks money to travel to Florida to obtain prescriptions; (4) appellant advised Sparks to speak with
MacDonald about obtaining drugs in Florida; (5) Sparks contacted MacDonald for assistance while in
Florida; (6) Sparks bought drugs from appellant; and (7) appellant warned Sparks about police surveillance.
Nos. 13AP-997 and 13AP-999 25
talking with other individuals about taking trips to Florida. According to the CI's
understanding, "the people that rode along with the trips were the actual ones going to the
doctor to get the pills and then being compensated for their travel, and the person funding
was the individual providing the money." (Tr. 617.) The CI testified that Sparks would
either drive his own vehicle or he would sometimes rent vehicles for the Florida trips. The
CI observed Sparks leave for trips with various individuals, and also observed Sparks buy
airline tickets for some of the trips.
{¶ 89} In July 2011, Sparks asked the CI to dispose of some "[e]mpty and some full
pill bottles." (Tr. 620.) Sparks asked the CI to dispose of them because the CI had access
to a "dumpster that I would be renting." (Tr. 620.) Sparks also provided the CI with some
prescription receipts. The CI gave the pill bottles and receipts to a federal agent. At trial,
the state introduced as exhibits a receipt bearing the name of Malik Willoughby, who the
CI testified was one of the individuals taking trips to Florida with Sparks, and pill bottles
listing Willoughby's name as well as the names of Carter and Dustin Childers. The CI
identified other exhibits, including a Florida driver's license for Sparks, prescription
receipts bearing Sparks' name, identification for Carter, a pharmacy receipt in the name of
Ronald Barrowman, and empty pill bottles bearing the names of Barrowman and
Willoughby. The CI testified that he had provided all of the above items to the federal
agent. Sparks also spoke with the CI about the trips, including information as to who was
funding the trips. The CI informed the federal agent that "Sparks had his people that he
was sending, Ruben Rhodes had his group of people, and [appellant] had his group of
people, according to Robert." (Tr. 634.)
{¶ 90} As noted, following the hearing on the motion to disqualify, the trial court
granted the state's motion on the basis that attorney Armengau's representation of the CI,
who the state intended to call as a witness in appellant's trial, created a serious potential
for conflict. In this court's decision affirming the trial court's granting of the state's
motion to disqualify, we found merit with the trial court's analysis. Specifically, this court
noted that, in the event "the CI is placed on the witness stand and testifies while
Armengau represents Johnson, an un-resolvable conflict exists. Armengau cannot
damage his former client's credibility through use of privileged information. At the same
time, Armengau must diligently represent Johnson's interests by damaging the CI's
credibility." Johnson at ¶ 5. This court further noted that "ethical problems have already
Nos. 13AP-997 and 13AP-999 26
arisen in this case" based upon Armengau's admission that "he has already had a meeting
with the CI since Armengau was retained by [appellant]." Id. at ¶ 6.
{¶ 91} Here, at the time of the motion, the state cited a valid concern regarding a
clear potential for conflict. Courts have recognized the "obvious" potential for conflict
where defense counsel "is under a duty to represent zealously the defendant, while on the
other hand, he has a duty of confidentiality to his former client, the government witness."
United States v. Falzone, 766 F. Supp. 1265, 1271 (W.D.N.Y.1991). In this respect,
"numerous cases have recognized" that an attorney's duty of loyalty to a client "requires
disqualification when a former client seeks to cooperate with the government and testify
against the present client." United States v. Alvarez, S.D.Fla. No. 10-20547-CR (Nov. 16,
2010). The potential for conflict arises especially in the context of cross-examination, as
defense counsel's "most important function" during a criminal trial is to "vigorously cross-
examine the government's witness." Falzone at 1271. See also United States v. Moscony,
927 F.2d 742, 750 (3d Cir.1991) ("Conflicts of interest arise whenever an attorney's
loyalties are divided * * * and an attorney who cross-examines former clients inherently
encounters divided loyalties."). Further, "there need not be a 'substantial relationship'
between the subject matter of the prior representation and the issues in the present case
before disqualification is warranted." Falzone at 1275. Rather, "[a]ll that is required is
that the interest of the defendant potentially conflicts with the interest of the former
client." Id.
{¶ 92} Upon review, the record does not demonstrate bad faith on the part of the
state in bringing the potential conflict to the attention of the trial court. While appellant
challenges the affidavit of the CI in support of the motion to disqualify, there is nothing in
the record to suggest the state misrepresented what the CI indicated he knew at that time,
or that the state brought the motion as a strategy to deprive appellant of Armengau's
representation. As noted, the state represented at the hearing on the motion that it
intended to call the CI as a witness, and the CI ultimately did testify. As also discussed,
the record does not support appellant's contention that the only information the CI
possessed was through conversations with Sparks. Rather, the CI testified not only to
information Sparks provided, but also his "personal observation[s]" and conduct. (Tr.
630.) Here, notwithstanding the benefit of hindsight in the form of the CI's trial
Nos. 13AP-997 and 13AP-999 27
testimony, appellant has not demonstrated that the state acted improperly in filing the
motion to disqualify counsel by attempting to manufacture a conflict of interest.
{¶ 93} Accordingly, the second assignment of error is not well-taken and is
overruled.
{¶ 94} Under the third assignment of error, appellant argues the trial court
deprived him of a fair trial due to the cumulative effect of erroneous evidentiary rulings,
restrictions on cross-examination, and a defective specific intent instruction. Appellant
first argues the trial court erred in permitting the state to elicit testimony from Detective
Allen regarding the organization and operation of pill trafficking rings. Appellant
contends the detective's testimony added nothing to the jury's comprehension of the
primary facts, and that such testimony was only offered to bolster the testimony of the co-
defendant witnesses.
{¶ 95} At trial, defense counsel objected to the state's questioning of Detective
Allen as to the organization and structure of pill trafficking rings in general. Counsel
argued that "[w]hat is typical or usual is irrelevant as to what the facts of this case are."
(Tr. 20.) The trial court overruled this objection, stating in part: "The fact that this
witness * * * is testifying as to what might be normal is not evidence against [appellant].
It may or may not become relevant in descriptive manner later on." (Tr. 20.)
{¶ 96} Under Ohio law, "[t]he admission or exclusion of relevant evidence rests
within the sound discretion of the trial court." State v. Sage, 31 Ohio St. 3d 173 (1987),
paragraph two of the syllabus.
{¶ 97} As noted, appellant contends the testimony of the detective bolstered the
credibility of the co-defendants. Appellant relies upon a federal decision, United States v.
Cruz, 981 F.2d 659, 663 (2d Cir.1992), in which that court held "the credibility of a fact-
witness may not be bolstered by arguing that the witness's version of events is consistent
with an expert's description of patterns of criminal conduct, at least where the witness's
version is not attacked as improbable or ambiguous evidence of such conduct." We note
that in Cruz, the "Second Circuit was especially troubled * * * by the government's heavy
reliance, during summation, on expert testimony to support the credibility of its fact-
witness[] and to show that the defendant[] acted in conformance with other guilty
persons." United States v. Saulter, 60 F.3d 270, 277-78 (7th Cir.1995). Federal courts,
however, have distinguished Cruz in cases where a law enforcement officer testifies
Nos. 13AP-997 and 13AP-999 28
"about a process not readily understandable by the average juror and the government did
not use the testimony solely to corroborate" the testimony of a fact-witness. Id. at 278.
{¶ 98} A review of the challenged testimony in the instant case indicates the
detective's comments were limited to basic background information regarding
hierarchy/structure of pill trafficking organizations, and the trial court could have
reasonably concluded that such testimony was useful to the jury. See, e.g., State v.
Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, ¶ 112 (trial court did not err in allowing
detective to give expert testimony on gang-related activities that "provided the jury with
crucial background information in considering the evidence").
{¶ 99} Federal courts have similarly recognized that testimony concerning drug
trafficking operations can be relevant to a jury's understanding. United States v. Dalton,
574 Fed.Appx. 639, 643 (6th Cir.2014) ("It was not an abuse of discretion for the district
court to conclude that the details of oxycodone trafficking—particularly the details
concerning the necessity and development of sponsorship in pill-trafficking
organizations—are not within the ambit of lay knowledge."); United States v. Smith, 601
F.3d 530, 540 (6th Cir.2010) ("Because the structure of a drug conspiracy is not within
the knowledge of an average juror, the admission of [investigator's] testimony into
evidence was not reversible error."). Here, the record does not indicate that the
detective's testimony was relied upon solely to bolster the credibility of the co-defendants'
testimony, and we find no abuse of discretion by the trial court in allowing the detective to
testify about the general hierarchy/structure of pill trafficking operations.
{¶ 100} Appellant next asserts the trial court unreasonably restricted defense
counsel's cross-examination of Detective Allen regarding items sought under the search
warrant issued for appellant's residence. Appellant argues that defense counsel attempted
to cross-examine the detective regarding items of contraband, criminal tools, and ledgers
sought under the express terms of the search warrant for appellant's residence. According
to appellant, defense counsel intended to establish that the search was wholly
unsuccessful insofar as it failed to corroborate proffer information used to obtain the
search warrant.
{¶ 101} In general, "[t]rial judges may impose reasonable limits on cross-
examination based on a variety of concerns, such as harassment, prejudice, confusion of
the issues, the witness's safety, repetitive testimony, or marginally relevant interrogation."
Nos. 13AP-997 and 13AP-999 29
State v. Edwards, 8th Dist. No. 87587, 2006-Ohio-5726, ¶ 17, citing Mueller v. Lindes,
8th Dist. No. 80522, 2002-Ohio-5465; Delaware v. Van Arsdall, 475 U.S. 673 (1986).
Further, "[t]he limitation of * * * cross-examination lies within the sound discretion of the
trial court, viewed in relation to the particular facts of the case," and "[s]uch exercise of
discretion will not be disturbed in the absence of a clear showing of an abuse of
discretion." State v. Acre, 6 Ohio St. 3d 140, 145 (1983).
{¶ 102} In the instant case, while the record indicates the trial court sustained the
state's objection with respect to defense counsel's "reading from the warrant," the court
noted it would allow defense counsel to inquire of the detective whether he found "any
ledgers, did you find any of that." (Tr. 89.) Thus, the court indicated it would permit
counsel to "[a]sk those questions. Just not bootstrapping to the warrant." (Tr. 90.) We
find no error with the court's ruling. As noted by the state, detailed information about the
contents of the proffers by the various co-defendants was not part of the record, and the
witness at issue, Detective Allen, was not present during the search of appellant's
residence. Upon review, we find the trial court did not abuse its discretion in its
limitation of the scope of cross-examination of the detective.
{¶ 103} Appellant next contends the trial court erred by admitting into evidence
certain co-conspirator statements under Evid.R. 801(D)(2), the co-conspirator exception
to the hearsay rule. According to appellant, the state failed to lay a sufficient foundation
to show that the hearsay statements were made during the course of or in furtherance of
the drug conspiracy.
{¶ 104} Pursuant to Evid.R. 801(D)(2)(e), "a statement is not hearsay if it was made
by a co-conspirator during and in furtherance of the conspiracy." State v. Skatzes, 104
Ohio St. 3d 195, 2004-Ohio-6391, ¶ 102. Such "[s]tatements of co-conspirators are not
admissible under Evid.R. 801(D)(2)(e) * * * until the proponent of the statement has
made a prima facie showing of the existence of the conspiracy by independent proof." Id.,
citing State v. Carter, 72 Ohio St. 3d 545 (1995), paragraph three of the syllabus. Under
Ohio law, "[t]here is no requirement that the defendant be charged with the crime of
conspiracy in order to introduce out-of-court statements by co-conspirators under Evid.R.
801(D)(2)(e)." State v. Eacholes, 12th Dist. No. CA2013-11-195, 2014-Ohio-3993, ¶ 19.
Further, "[i]ndependent proof of conspiracy merely requires that the State present
Nos. 13AP-997 and 13AP-999 30
evidence sufficient to raise the inference of conspiracy." State v. Croom, 2d Dist. No.
25094, 2013-Ohio-3377, ¶ 66.
{¶ 105} The state argues it made a prima facie showing of the existence of the
conspiracy by independent proof prior to the admission of the challenged statements.
Specifically, the state points to the testimony of three witnesses, Detectives Allen and Key,
and Robert, as providing independent proof of the conspiracy.
{¶ 106} At trial, Detective Allen testified that he was the case manager for the
investigation targeting the activity of appellant and other co-defendants, and he described
surveillance conducted by law enforcement personnel of various individuals, including
appellant, Robert, Richard, MacDonald, Kelley and Smith. Detective Allen listed various
locations that were under surveillance, including a tattoo shop and appellant's residence,
and he noted that officers monitored Richard's cell phone. The investigation revealed that
Robert, Richard, Kelley, and Smith had traveled to Florida to obtain prescription drugs,
and that they subsequently traveled to Virginia to fill prescriptions. Detective Allen
identified prescription drug records obtained from a number of pharmacies reflecting
prescriptions filled in the names of various co-defendants, including prescriptions for
Oxycodone 30 milligram pills. Investigators observed Richard at appellant's residence
and tattoo business following trips taken by these co-defendants. Detective Allen noted
that two individuals, Sparks and MacDonald, had proffered information to the state
regarding the "main defendant," as well as other suspects, and had also provided
information as to the structure of the organization. (Tr. 46.) According to the detective,
police surveillance and a review of pharmacy prescription records verified the information
provided by MacDonald and Sparks.
{¶ 107} Detective Key identified items recovered from appellant's residence
following the execution of a search warrant. Those items included $3,580 in cash, a
receipt for a portable sweep, pill bottles, a Florida hotel receipt in the name of appellant's
nephew, Todd, bond paperwork and prescription receipts for Todd, a letter bearing
MacDonald's name, and a car rental agreement in the name of Nancy.
{¶ 108} Robert testified that appellant approached him in 2010 about an
"agreement * * * to go to Florida, obtain prescriptions." (Tr. 164.) Under the terms,
Robert would "give up the" 30 milligram Oxycodone pills to appellant, and "keep
everything else." (Tr. 164.) According to Robert, appellant provided the funding to pay
Nos. 13AP-997 and 13AP-999 31
for physician office visits, MRIs, hotel rooms and other travel expenses. Robert would
obtain prescriptions for between 160 and 210 Oxycodone 30 milligram pills each visit.
Robert would usually make the trip with between four to six other individuals, and each of
these individuals would also obtain prescriptions.
{¶ 109} Upon review, we find that the state introduced sufficient evidence showing
independent proof to raise the inference of a conspiracy, and appellant's participation
therein, prior to the admission of the challenged statements. We, therefore, find no error
by the trial court in ruling the statements at issue were admissible as non-hearsay
statements of a co-conspirator under Evid.R. 801(D)(2)(e).
{¶ 110} Appellant further contends the trial court gave an erroneous specific intent
instruction, arguing that the pattern instruction in the Ohio Jury Instructions for the
offense of funding of drug trafficking requires the insertion of the bulk amount
requirement after the purpose to sell or offer to sell language. According to appellant, the
trial court deviated from that language by informing the jury that the burden was on the
prosecution to prove a "purpose or intention that said other person would use the money
* * * to obtain more than bulk amount of Oxycodone for the purpose of selling or offering
to sell Oxycodone." (Tr. 937.)
{¶ 111} In general, the giving of jury instructions is within the trial court's discretion
and will not be disturbed on appeal absent an abuse of discretion. State v. Orians, 179
Ohio App. 3d 701, 2008-Ohio-6185, ¶ 10 (3d Dist.), citing State v. Guster, 66 Ohio St. 2d
266, 271 (1981). Under Ohio law, "[a] trial court's instructions to a jury must correctly,
clearly, and completely state the law applicable to the case." Id., citing State v. Thomas,
170 Ohio App. 3d 727, 2007-Ohio-1344, ¶ 15 (2d Dist.). In reviewing a trial court's jury
instructions, we must consider them "as a whole, rather than viewing an instruction in
isolation, and then determine whether the jury charge probably misled the jury in a
matter materially affecting the complaining party's substantial rights." State v. Ward, 168
Ohio App. 3d 701, 2006-Ohio-4847, ¶ 29 (4th Dist.). See also Orians at ¶ 10 (an appellate
court's review of jury instructions "must examine the specific charge at issue in the
context of the entire charge, and not in isolation").
{¶ 112} A defendant's "failure to object to improprieties in jury instructions waives
error on appeal absent plain error." State v. Canter, 10th Dist. No. 01AP-531 (Mar. 26,
2002), citing State v. Morrison, 10th Dist. No. 01AP-714 (Dec. 31, 2001). In the instant
Nos. 13AP-997 and 13AP-999 32
case, appellant did not object to the instruction at issue, and we, therefore, review his
claim for plain error. Such error "exists when, 'but for the error the trial's outcome would
have been otherwise.' " Id., quoting Morrison, citing State v. Underwood, 3 Ohio St. 3d
12, 13 (1983).
{¶ 113} As noted, appellant contends the trial court deviated from the standard jury
instructions by failing to recite from the standard instruction. While appellant challenges
the order of the wording, appellant does not contend the trial court omitted any of the
elements of the offense, and we note the court did instruct as to all elements, including the
definition of "bulk amount." When read as a whole, we find that the instructions stated
the applicable law, and appellant has not demonstrated error, plain or otherwise, by the
trial court's failure to provide a verbatim recitation of the pattern instruction.
{¶ 114} Based upon the foregoing, appellant's third assignment of error is not well-
taken and is overruled.
{¶ 115} Under the fourth assignment of error, appellant raises a claim of ineffective
assistance of counsel. Specifically, appellant argues that his trial counsel was deficient in
failing to: (1) object to improper questioning, including leading questions, (2) move for a
mistrial, (3) conduct an adequate legal investigation, and (4) object to jury instructions.
{¶ 116} The Supreme Court of Ohio has adopted the two-part test set forth in
Strickland v. Washington, 466 U.S. 668 (1984), for ineffective assistance of counsel. See
State v. Bradley, 42 Ohio St. 3d 136, 142 (1989). Under this test, "[c]ounsel's performance
will not be deemed ineffective unless and until counsel's performance is proved to have
fallen below an objective standard of reasonable representation and, in addition,
prejudice arises from counsel's performance." Id. at paragraph two of the syllabus. In
order to show prejudice, "the defendant must prove that there exists a reasonable
probability that, were it not for counsel's errors, the result of the trial would have been
different." Id. at paragraph three of the syllabus.
{¶ 117} Appellant first contends that counsel was ineffective for failing to object to
testimony by Detective Allen regarding observations reported to him by law enforcement
personnel in other jurisdictions. Specifically, appellant argues that counsel should have
objected to testimony by the detective regarding contacts made with law enforcement
personnel in Florida and Virginia, including surveillance conducted by officers in those
jurisdictions with respect to Robert, Richard, Kelley, and Smith. Even assuming counsel
Nos. 13AP-997 and 13AP-999 33
should have objected to this testimony, appellant has not demonstrated prejudice as such
evidence was cumulative of other properly admitted evidence. As previously noted, the
above co-defendants all testified as to their activities in Florida and Virginia, i.e., that they
obtained prescriptions from pain clinics in Florida and filled prescriptions either in
Florida or Virginia. As such, appellant cannot demonstrate that the outcome of the trial
would have been different but for counsel's failure to object.
{¶ 118} Appellant also challenges trial counsel's handling of the testimony of
various co-defendants, including Robert, MacDonald, Carter, Anderson, Maxwell, Sparks,
Jason, Smith, Richard, and Perry. Specifically, appellant maintains that counsel failed to
object to leading questions and/or was deficient in handling the cross-examination of
these witnesses.
{¶ 119} With respect to the testimony of Robert, appellant contends that Robert
lacked personal knowledge of the source of funding for his drug trips. According to
appellant, trial counsel was deficient in failing to object to the prosecutor's use of leading
questions to imply Robert had such personal knowledge. Robert, however, testified that
appellant approached him about taking trips to Florida and that he had an agreement
with appellant in which appellant offered to pay for his expenses related to those trips.
We also note that defense counsel objected during direct examination to the state's
inquiry of Robert as to who funded his first trip, citing a lack of foundation. The trial
court sustained that objection, leading the prosecutor to rephrase the question.
{¶ 120} Here, appellant cannot show deficient performance. Further, as reflected in
the record, counsel made objections, resulting in the prosecutor rephrasing the question.
See, e.g., State v. Sayre, 3d Dist. No. 9-12-25, 2013-Ohio-4108, ¶ 56 (where "[a]ll the
objection would have done would be to cause the State to rephrase the question * * * there
is no reason to believe that the objections would have affected the outcome of the case").
{¶ 121} Appellant also contends counsel was ineffective in failing to object to
various instances in which the prosecutor asked leading questions of other co-defendants,
including Carter, Sparks, Smith, and Perry. Pursuant to Evid.R. 611(C), "[l]eading
questions should not be used on the direct examination of a witness except as may be
necessary to develop the witness' testimony." The "broad exception" under this rule
"places the decision of whether to allow leading questions within the sound discretion of
the trial court." State v. Jefferson, 2d Dist. No. 2002 CA 26, 2002-Ohio-6377, ¶ 9. As
Nos. 13AP-997 and 13AP-999 34
such, "the Ohio Supreme Court has held that the failure to object to leading questions
does not constitute ineffective assistance of counsel." Id., citing State v. Jackson, 92 Ohio
St.3d 436, 449 (2001). This is so "because the failure of counsel to object may have been
the result of trial strategy." Id. In a similar vein, "[t]he scope of cross-examination falls
within the ambit of trial strategy, and debatable trial tactics do not establish ineffective
assistance of counsel." State v. Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, ¶ 101.
{¶ 122} Based upon this court's review of the record, appellant has failed to
demonstrate how he was prejudiced by trial counsel's failure to object to the state's use of
leading questions. To the extent appellant contends that some of the leading questions
elicited inadmissible hearsay, we have previously held that the state laid a proper
foundation such that the challenged statements constituted declarations by co-
conspirators, and were, therefore, admissible as non-hearsay under Evid.R. 801(D)(2).
{¶ 123} Appellant contends that counsel should have objected to the state's use of a
spreadsheet to "steer" MacDonald into agreeing with the state that appellant funded 22
particular drug trips. MacDonald testified, however, without utilization of the
spreadsheet, that he took approximately 80 trips to Florida. He further testified that, with
the exception of the first trip, appellant funded each one of those trips. While appellant
contends that the state failed to lay a proper foundation under either Evid.R. 612 or
803(5) to utilize the spreadsheet, there is nothing to indicate the state would not have
been able to lay such a foundation for this evidence.
{¶ 124} Appellant also contends that the prosecutor asked leading questions of
Anderson without developing any foundation for personal knowledge. During direct
examination, Anderson testified that appellant was "funding * * * activity for me down in
Florida." (Tr. 359.) The record indicates that, during cross-examination, defense counsel
elicited from the witness that his knowledge of appellant's activities was limited to what
others told him as opposed to what he had observed. Counsel's decision to cross-examine
the witness about his knowledge of funding rather than object to a leading question does
not demonstrate deficient performance.
{¶ 125} Appellant contends defense counsel was deficient in failing to move for a
mistrial following the testimony of the CI based upon his claim, previously addressed
under the second assignment of error, that the state manufactured a sham conflict of
interest in order to disqualify attorney Armengau. Having rejected appellant's claim that
Nos. 13AP-997 and 13AP-999 35
the state acted improperly in filing the motion to disqualify, appellant cannot demonstrate
prejudice by counsel's failure to move for a mistrial.
{¶ 126} Appellant further argues trial counsel failed to conduct an adequate legal
investigation. Appellant points to the fact that, at the conclusion of the state's case,
defense counsel made a motion for judgment of acquittal "without argument" (except as
to two of the funding counts). Relying upon claims he raised under the first assignment of
error, appellant maintains there were multiple legal grounds for counsel to seek an
acquittal as to all counts. However, based upon our disposition of the first assignment of
error, rejecting appellant's sufficiency challenge, appellant cannot demonstrate prejudice
based on the failure of counsel to investigate and argue those grounds during the motion
for acquittal.
{¶ 127} Finally, appellant argues that his counsel was deficient in failing to object to
the trial court's jury instruction as it relates to the offense of funding of drug trafficking.
In addressing appellant's third assignment of error, we found that the instruction, read as
a whole, stated the applicable law, and that appellant had not demonstrated error as a
result of the trial court's failure to provide a verbatim recitation of the standard jury
instructions. Accordingly, appellant cannot demonstrate prejudice as a result of trial
counsel's failure to object to the instruction at issue.
{¶ 128} Based upon this court's review of the record, appellant has failed to show
that his trial counsel's purported deficiencies, either individually or cumulatively, affected
the outcome of his trial. Accordingly, appellant's fourth assignment of error is not well-
taken and is overruled.
{¶ 129} Under the fifth assignment of error, appellant argues that the trial court's
consecutive prison sentence totaling 64 years is clearly and convincingly contrary to law
and/or an abuse of discretion. More specifically, appellant argues that the trial court
penalized him for exercising his right to trial, and further erred by imposing, in effect, a
life term.
{¶ 130} In State v. Murphy, 10th Dist. No. 12AP-952, 2013-Ohio-5599, ¶ 12, this
court discussed the felony sentencing standard of review as follows:
"We review a trial court's sentence to determine if it is clearly
and convincingly contrary to law." State v. Green, 10th Dist.
No. 10AP-934, 2011-Ohio-6451, ¶ 7, citing State v. Burton,
10th Dist. No. 06AP-690, 2007-Ohio-1941, ¶ 19; R.C.
Nos. 13AP-997 and 13AP-999 36
2953.08(G). In applying this standard, we look to the record
to determine whether the sentencing court considered and
properly applied the non-excised statutory guidelines and
whether the sentence is otherwise contrary to law. Id., citing
State v. Carse, 10th Dist. No. 09AP-932, 2010-Ohio-4513,
¶ 60; Burton. We are also cognizant of the two-step standard
of review set forth by a plurality of the Supreme Court of Ohio
in State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, which
asks (1) whether the trial court adhered to all applicable rules
and statutes in imposing the sentence, and (2) whether a
sentence within the permissible statutory range constitutes an
abuse of discretion.
{¶ 131} Appellant first points to comments made by the trial court pre-voir dire,
during a colloquy with appellant regarding the state's offer of a plea bargain. Appellant
notes that the pre-voir dire transcript indicates the state offered appellant a 20-year plea
bargain. Appellant argues that, during that exchange, the trial court discussed two
"similarly situated" defendants. (Pre-Voir Dire Proceeding, 3.)
{¶ 132} Although the pre-voir dire transcript is brief, the record indicates that the
state indicated it had "offered 20 years ODRC," and that appellant had "rejected the 20-
year offer." (Pre-Voir Dire Proceeding, 2.) In addressing this issue, the trial court made
the following remarks on the record:
THE COURT: Well, and I don't know what's going to happen.
I believe it sincerely, you're innocent unless otherwise proven
guilty. I'm sure the discussions as to what sentence I gave to
an individual similarly situated, and I could have gotten a lot
higher than that. I think a lot of my colleagues would have.
But obviously a sentence you give following a trial is
frequently different than ahead of time because there's more
charges that end up being there. So that's the real reason for
that. It wasn't a rent for going to trial. It was simply there
were more charges. I think in fairness I wanted to make sure
you were aware of that sentence as well.
If the two of you at any time want to start moving a little bit,
and I think there's probably plenty of room for negotiations,
but let's not let the trial get too deep in before those
discussions start to take place.
(Pre-Voir Dire Proceeding, 3.)
Nos. 13AP-997 and 13AP-999 37
{¶ 133} According to appellant, the above comments are similar to those made by
the trial court in State v. Howard, 5th Dist. No. 2012-CA-00061, 2013-Ohio-1972, ¶ 85, in
which that court held that comments by the trial court "created the appearance that it
would punish [the defendant] more severely for exercising his right to a jury trial." In
Howard, the reviewing court was concerned by statements by the trial court that, "even if
[the defendant] were to agree to plead on the day of trial he would receive a more severe
penalty." Id. at ¶ 86.
{¶ 134} In State v. Mayle, 7th Dist. No. 04 CA 808, 2005-Ohio-1346, ¶ 45-46, the
court noted:
A defendant should never be punished for exercising his right
to trial or refusing to enter into a plea agreement. * * * Such a
punishment would impair the constitutional right to a trial by
creating a chilling effect upon a defendant's ability to exercise
his constitutional right. * * * Accordingly, a trial court may not
augment a sentence because a defendant chooses to force the
government to prove his guilt, " 'no matter how overwhelming
the evidence of [defendant's] guilt.' "
But there are legitimate reasons why a trial court may
sentence a defendant more harshly after a trial on the merits
than it may have after a guilty plea. First, the United States
Supreme Court has recognized the propriety of offering
lenient sentences in exchange for a guilty plea. * * * It is
proper to offer a more lenient sentence in exchange for a
guilty plea because a defendant's acknowledgement of guilt
has shown a willingness to assume responsibility for his
conduct and has taken the first step toward rehabilitation. * *
* Second, a trial court knows more details about the facts of
the case, the flavor of the event, and its impact upon the
victims after a trial on the merits than it would after a guilty
plea. * * * This "more real and accurate appraisal of the
circumstances which brought the defendant to the bar of
justice" will "almost inevitably * * * affect the judge's
consideration of what penalty appears most appropriate." * * *
Accordingly, the fact that the sentence imposed after trial is
greater than the sentence the State offered to recommend in
exchange for a guilty plea does not demonstrate that the trial
court acted improperly.
{¶ 135} In order to "determine vindictiveness, we look to see whether the record
affirmatively shows retaliation as a result of the rejected plea bargain." State v. Paul, 8th
Dist. No. 79596 (Feb. 14, 2002).
Nos. 13AP-997 and 13AP-999 38
{¶ 136} In the present case, the comments by the trial court do not raise the same
concerns at issue in Howard. Under the facts of that case, the trial court made clear on
the record that it "absolutely" agreed with the prosecutor's statement that the state's plea
offer of 12 years was only valid prior to trial, and that the defendant would receive a
greater sentence if he were to agree to plead on the day of trial. Id. at ¶ 84.
{¶ 137} Here, the record does not reflect that the trial court impermissibly punished
appellant for exercising his right to trial. During the sentencing hearing, the trial court
cited the "purposes and principles of sentencing." (Tr. 996.) The court noted its
agreement as to "the guidelines set forth that there must be a consideration for a
minimum sentence," and that the sentence "must be commensurate and not demeaning
with the seriousness of the crime." (Tr. 997.) The court further noted that a sentence
"should not be disproportionate. And what I mean by this is just because you can give an
effective life sentence * * * that doesn't make it appropriate." (Tr. 997.)
{¶ 138} Regarding the trial testimony, the trial court cited the fact the enterprise did
not operate based upon "single trips," but, rather, "[t]here were three or four individuals
in the car every time," resulting in "the purchase and distribution of literally thousands of
drugs." (Tr. 998.) On this point, the court observed: "I don't think the impact can be
overstated, * * * we saw it with the people that were testifying what happens to their
lives." (Tr. 998.)
{¶ 139} The court next discussed the statutory seriousness and recidivism factors,
stating in part: "As noted in the presentence report, the seriousness factor of organized
activity was noted. None of the less serious factors were identified." (Tr. 999.) With
respect to the recidivism factor, the court cited the fact that the presentence investigation
report ("PSI") "points out that four of the six separate factors making recidivism likely
were present." (Tr. 1000.) The court found that appellant has "done a terrible job on
supervision for prior offenses. And he was on supervision when this offense occurred
having just been placed on federal release supervision just months before this activity
came." (Tr. 1000.) The trial court further cited the fact that appellant's "criminal history
is extensive with prior prison terms, not only by the feds, by me granting judicial release
only having to revoke it." (Tr. 1000.) The court also found "absolutely no remorse" on the
part of appellant. (Tr. 1000.)
Nos. 13AP-997 and 13AP-999 39
{¶ 140} The trial court, citing appellant's "extensive prior record," and "the factors
regarding seriousness and recidivism," determined that "consecutive sentences are
necessary to both punish the offender and protect society." (Tr. 1001.) The court
reiterated the fact that appellant "was under four years of federal supervision as of
September '09 for a prior drug distribution when this all started," and that "each trip was
not a single trip. There were multiple individuals buying multiple amounts of drugs at
each one of those individual trips." (Tr. 1002.)
{¶ 141} The trial court then discussed the range of sentences available, stating in
part:
If I just gave him the midrange, and on the felonies of the first
degree, it's 3 to 11; 7 is spot in the middle. And I think given
his record, the activity, the recidivism, all of that would easily
support a midrange sentence and a consecutive sentence. But
if I did the midrange alone, he's over 182 years. I don't think
that's appropriate. Even if I gave him the minimum of 3,
which is a struggle, on the funding alone, it's over 75 years.
Again I have difficulty with that.
But again given the nature of [the] crime and the activity and
the defendant's record, there's just so much I can do. I have
not been given a whole lot to work with.
(Tr. 1002-03.)
{¶ 142} Upon review, the record indicates that the trial court properly considered
the statutory purposes and principles of sentence, as well as the seriousness and
recidivism factors. In addition to imposing a seven-year sentence for the offense of
engaging in a pattern of corrupt activity, the trial court imposed three-year sentences as to
each of the aggravated funding of drug trafficking counts. The minimum term for a first-
degree felony is three years. R.C. 2929.14(A)(1). While the trial court imposed
consecutive sentences, the court noted on the record, after a consideration of the statutory
factors and the PSI, the basis for the sentence imposed. Further, "[w]hen an accused
rejects the offer of a plea bargain, elects to exercise the right to trial, and is found guilty,
the court is not required to impose sentence within the parameters discussed in the
rejected plea bargain." Paul. Upon review, the record does not support appellant's claim
that the court's sentence was based on vindictiveness, nor is the sentence contrary to law.
Nos. 13AP-997 and 13AP-999 40
{¶ 143} Appellant also raises a proportionality argument, asserting that he has
effectively received a life sentence given his current age. Appellant argues that the trial
court, by ordering 19 of the 3-year prison terms for aggravated funding of drug trafficking
to be served consecutively to each other, failed to incorporate the principle of incremental
punishment as found in the federal sentencing guidelines.
{¶ 144} In general, "a sentence that falls within the terms of a valid statute cannot
amount to a cruel and unusual punishment." McDougle v. Maxwell, 1 Ohio St. 2d 68, 69
(1964). The Supreme Court of Ohio has held that "proportionality review should focus on
individual sentences rather than on the cumulative impact of multiple sentences imposed
consecutively." State v. Hairston, 118 Ohio St. 3d 289, 2008-Ohio-2338, ¶ 20. Thus,
"[w]here none of the individual sentences imposed on an offender are grossly
disproportionate to their respective offenses, an aggregate prison term resulting from
consecutive imposition of those sentences does not constitute cruel and unusual
punishment." Id. Further, this court has noted that "[t]he more crimes an individual
commits, the more likely it is that the ultimate prison sentence will indeed be a lengthy
one." State v. Watkins, 10th Dist. No. 13AP-133, 2013-Ohio-5544, ¶ 19.
{¶ 145} In the instant case, the trial court's sentence was within the statutory range.
While appellant argues that his sentence would be less severe under the federal
sentencing guidelines, we note that the federal guidelines "operate under a rigid system,"
and "differ markedly from the Ohio sentencing guidelines." State v. Agner, 3d Dist. No. 1-
2000-04 (Aug. 3, 2000). See also State v. Blackley, 8th Dist. No. 100574, 2014-Ohio-
3140, ¶ 15 ("Sentencing in Ohio is not accomplished according to a tightly controlled grid
system similar to federal sentencing guidelines."). Upon review, we find unpersuasive
appellant's contention that the trial court's sentence is arbitrary, unreasonable or
unconscionable. Accordingly, appellant's fifth assignment of error is hereby overruled.
{¶ 146} Based upon the foregoing, appellant's first, second, third, fourth, and fifth
assignments of error are overruled, and the judgments of the Franklin County Court of
Common Pleas are hereby affirmed.
Judgments affirmed.
TYACK and KLATT, JJ., concur.
___________________