State v. Byrd , 2018 Ohio 1069 ( 2018 )

[Cite as State v. Byrd, 2018-Ohio-1069.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 17AP-387
(C.P.C. No. 14CR-2142)
v. :
(REGULAR CALENDAR)
Anthony A. Byrd, :
Defendant-Appellant. :
D E C I S I O N
Rendered on March 23, 2018
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee. Argued: Seth L. Gilbert.
On brief: Anzelmo Law, and James A. Anzelmo, for
appellant. Argued: James A. Anzelmo.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Anthony A. Byrd, appeals from a judgment entry of the
Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of one
count of possession of marijuana and one count of trafficking in drugs. For the following
reasons, we affirm in part and reverse in part.
I. Facts and Procedural History
{¶ 2} By indictment filed April 24, 2014, plaintiff-appellee, State of Ohio, charged
Byrd with one count of possession of marijuana, in violation of R.C. 2925.11, a second-
degree felony; and one count of trafficking in marijuana, in violation of R.C. 2925.03, a
second-degree felony. The indictment charged Byrd along with two codefendants,
Cameron E. Jackson and Ronald L. Hayward. Byrd entered a plea of not guilty.
No. 17AP-387 2
{¶ 3} On July 18, 2014, Byrd filed a motion to suppress any physical evidence and
statements obtained by police as a result of his detention, arguing law enforcement officers
conducted an unconstitutional warrantless search. The state filed a memorandum contra
Byrd's motion to suppress, and the trial court set the matter for hearing.
{¶ 4} At a suppression hearing on June 8 and 9, 2015, Officer Stephen Carr of the
Columbus Division of Police testified that around 3:15 a.m. on April 14, 2014, he responded
to a dispatch of a possible theft in progress at a commercial trucking terminal located at
1929 Lone Eagle Street. Officer Carr testified the information he had on arriving at the
scene was that a truck driver at the trucking terminal saw several men removing cargo from
a detached trailer and placing the cargo into two rental trucks. Before Officer Carr arrived,
an unmarked cruiser entered the trucking terminal and observed the rental vehicles but did
not observe any people. Officer Carr then arrived on the scene in a marked cruiser and he
said a man named David Cline flagged him down and identified himself as the person who
called 911 to report the possible theft and that Cline told him it was very unusual for anyone
to be unloading anything at that time of day. Cline said he saw three men moving cargo
from a trailer into two Penske rental trucks.
{¶ 5} When he found the trailer and the two rental vehicles, Officer Carr said he
observed Byrd, Hayward, and Jackson "casually just standing there," and when the officers
told the men they were there to investigate a possible theft, the three men denied there was
anything of that nature going on. (June 8, 2015 Tr. Vol. I at 35.) Officer Carr said Hayward
did most of the talking. Hayward told the officers the men had been "contracted" to unload
the trailer, but when officers asked them who owned the trailer, the men could not name
the owner. (June 8, 2015 Tr. Vol. I at 35.) Officer Carr further testified there were very
large crates of watermelons sitting in the grassy area behind the trailer but when he asked
the men what they were doing with the produce, the men gave a vague response about
unloading the produce into the grass and possibly putting it on the loading dock later.
{¶ 6} Officer Carr testified that the men told him that a man who worked security
for the trucking terminal, "a guy named Bob," knew they were there and that "it was
completely okay for them to be there." (June 8, 2015 Tr. Vol. I at 36.) Officer Carr then
went to a mobile home parked at the entrance of the trucking terminal, and the occupant
of that mobile home put Officer Carr in touch with the person who runs the trucking
No. 17AP-387 3
terminal. Approximately one-half hour later, the manager of the trucking terminal, whom
Officer Carr identified as Mr. Seymour, arrived at the scene.
{¶ 7} In the ti me it took for Seymour to arrive at the scene, Officer Carr said he
and the other officers "kind of stood around" with Byrd, Hayward, and Jackson and
engaged in "very casual conversation," noting that the three men "didn't seem very
concerned about [police] being there." (June 8, 2015 Tr. Vol. I at 41.) Officer Carr said the
three men provided police with their identification cards. Additionally, Officer Carr said
Hayward spent some time on the phone trying to get in contact with the person Hayward
said had contracted the men to unload the truck. Officer Carr said the three men would
have been free to leave during this approximately 30-minute period while everyone waited
for Seymour to arrive "[i]f they wished to." (June 8, 2015 Tr. Vol. I at 44.)
{¶ 8} Once Seymour arrived at the trucking terminal, the police officers allowed
Seymour to talk to Byrd, Hayward, and Jackson to discern whether the three men had
leased a space on the lot or were working for someone who had leased a space. After a brief
conversation, Seymour went to look at some paperwork in his office and then told police
the three men "did not know anything about the owner of the trailer." (June 8, 2015 Tr.
Vol. I at 44.) Officer Carr said Seymour also told him that it was unusual to unload crates
into wet grass.
{¶ 9} Officer Carr testified that there were two Penske rental vehicles parked near
the trailer: a box truck with no windows and a cargo van. The officers asked Byrd, Hayward,
and Jackson about the rental vehicles several times and whether they were loading cargo
into those vehicles "and each time the answer was, no, they had nothing to do with the
rental trucks." (June 8, 2015 Tr. Vol. I at 48.) Officer Carr testified that "with the totality
of everything that was in front of me unable to identify the owner of the trailer, unable - -
this security person was not existing and the person that ran the dock saying that this
simply did not look right to him," he and the other officers "believed there was an indeed a
distinct possibility a theft was occurring." (June 8, 2015 Tr. Vol. I at 46.) At that point,
Officer Carr said he opened the back of the box truck "expecting to find crates of
watermelons," but instead "found very large plastic wrapped packages that were numbered
like they were in an exact sequence," and Officer Carr recognized the packages immediately
as the typical packaging of narcotics. (June 8, 2015 Tr. Vol. I at 49.) Officer Carr said the
No. 17AP-387 4
packages "were wrapped very well," and that even though he was "pretty sure at that point
they were marijuana," he "couldn't even smell" anything from the packages. (June 8, 2015
Tr. Vol. I at 62.) Officer Carr reiterated that he opened the box truck at that point because
"based on everything we had, we believed that the cargo was indeed being stolen" and that
the three men were putting something into the rental vehicles. (June 8, 2015 Tr. Vol. I at
48-49.)
{¶ 10} After opening the box truck, the police officers detained Byrd, Hayward, and
Jackson and placed each of them in a separate police cruiser. Officer Carr said he had a
discussion with the other officers after the fact that if Byrd, Hayward, and Jackson had
simply gotten in a car and drove away before officers opened the box truck, the officers
would not have been able to stop them. Officer Carr testified that "[u]p to that point [when
officers actually detained the three men, the officers] did not feel the need to detain
anybody." (June 8, 2015 Tr. Vol. I at 111.)
{¶ 11} After he looked in the box truck and detained Byrd, Hayward, and Jackson,
Officer Carr testified he walked to the front of the rental van and, using his flashlight, looked
in the windshield and "saw similar looking bundles in the back of the van that matched
what [he] saw in the back of the box truck." (June 8, 2015 Tr. Vol. I at 50.) The cargo van
did not have any windows on the rear side, but Officer Carr testified you could see to the
back of the vehicle by looking through the windshield. A short time later, the K-9 unit
arrived, and the K-9 "[i]mmediately alerted" on the rental vehicles. (June 8, 2015 Tr. Vol.
I at 50.) Eventually, the narcotics detectives came to the scene and "drew up a search
warrant," at which point Officer Carr was relieved of his duties. (June 8, 2015 Tr. Vol. I at
52.) Jackson had been seated in the back of Officer Carr's cruiser but police moved him to
a different cruiser so that Officer Carr could leave the scene. While he was driving to the
substation, however, Officer Carr said he heard something fall in the back seat and he pulled
over, finding a key for a Penske vehicle.
{¶ 12} On cross-examination, Officer Carr said he did not believe there was an
immediate risk that any potential evidence inside the box truck would be destroyed or
moved away because he "didn't know it was evidence until [he] looked in" the box truck.
(June 8, 2015 Tr. Vol. I at 78.) Officer Carr also agreed that he wrote in his report of the
incident that he had a "reasonable suspicion to believe that cargo was being stolen" at the
No. 17AP-387 5
time he opened the box truck. (June 8, 2015 Tr. Vol. I at 80.) Officer Carr further stated
there was no smell of marijuana in the trucking terminal. Additionally, Officer Carr
estimated that from the time he first arrived on the scene to when he opened the box truck,
more than one hour had elapsed.
{¶ 13} Officer Joshua Kinzel of the Columbus Division of Police testified that when
he arrived at the trucking terminal, he saw approximately 100 watermelons lying all over
the ground by the detached trailer. Officer Kinzel said that when officers asked the three
men questions, it was Hayward who gave "actual answers" and that Byrd and Jackson "kind
of followed suit with whatever [Hayward] said" by nodding their heads. (June 8, 2015 Tr.
Vol. I at 126.) Officer Kinzel said the three men were free to leave up until the point when
the officers found the marijuana in the back of the box truck. When Officer Kinzel asked
the men about the rental vehicles, he said that Hayward told him "they don't know anything
about the trucks," and that none of the three men indicated that the rental vehicles belonged
to them. (June 8, 2015 Tr. Vol. I at 131.) Officer Kinzel could not recall whether Byrd or
Jackson ever gave a verbal response denying any connection to the rental trucks. Officer
Kinzel testified that he, along with Officer Carr, made the collective decision to open the
box truck together. However, Officer Kinzel testified his primary reason for opening the
box truck was for officer safety, though he agreed that approximately one and one-half hour
passed from the time he first arrived to the time the officers opened the box truck. Officer
Kinzel testified that one of the other officers, Officer Tonya Allen, heard a rolling overhead
door shut as soon as the officers arrived on the scene, and because of that, the officers
"didn't know if there was somebody else in the truck." (June 8, 2015 Tr. Vol. I at 134.)
{¶ 14} Byrd testified that his friend, Shaunika Eakins, rented the box truck and
cargo van in her name but that Byrd paid for the rental of the vehicles. He said it was his
understanding that even though his name was not on the rental agreement, he controlled
the rental vehicles. Further, Byrd said he never denied affiliation with the rental vehicles
to police.
{¶ 15} After the suppression hearing, on July 6, 2015, the trial court denied Byrd's
motion to suppress. The trial court stated its decision relied upon Officer Carr's testimony,
which the trial court "found to be the most credible." (July 6, 2015 Tr. at 319.) Specifically,
in denying Byrd's motion to suppress, the trial court stated:
No. 17AP-387 6
Detective Carr also stated that on cross-examination from
Mr. Byrd's attorney, that what constituted criminal activity, he
thought, was the 9-1-1 call, no legitimate explanation for being
there, and the conversation with Mr. Seymour that things
didn't look right. He also based his reasonable suspicions on
cross from Mr. Hayward's attorney stating that he was unable
to - - the defendants were unable to ID the trailer owner, that
there was no security person named Bob that they said it was
okay for them being there, and that Mr. Seymour also said
things did not look right. Further, he based his reasonable
suspicions on Mr. Jackson's attorney, on Mr. Cline stating that
there was unusual activity for that time of day and that Mr.
Seymour said something was not right and was unusual.
Therefore, there was reasonable suspicion to look in the box
truck and the van.
(July 6, 2015 Tr. at 320.) The trial court further stated that after the officers looked in the
box truck and van, there was probable cause to arrest Byrd, Hayward, and Jackson.
{¶ 16} The matter then proceeded to a joint jury trial for all three defendants
beginning October 5, 2015. The evidence at trial largely duplicated the evidence presented
at the suppression hearing, though additional witnesses testified at trial. Specifically,
Claude W. Seymour, Jr., the manager of the trucking yard who goes by the name Wes, did
not testify at the suppression hearing but did testify at trial. Seymour testified that
ordinarily a trailer would be backed up to the dock so that a forklift could access the inside
of the trailer to unload it. However, Seymour said that the way the trailer that Byrd,
Hayward, and Jackson were unloading was positioned with the rear of the trailer abutting
a wet, grassy area, there would be no way to use a forklift to unload it. Seymour recalled
one of the defendants, though he was not sure which one, telling him they planned to use a
forklift to reload the trailer. Seymour said that statement did not make sense to him given
the location of the trailer.
{¶ 17} The state also presented evidence at trial regarding the amount of marijuana
found at the scene. Police recovered a total of 122 packages of marijuana. Of that total, 66
packages came from the box truck, 46 packages came from the van, and 10 packages came
from the trailer, in the bottom of a large box concealed by watermelons. All together, the
packages weighed approximately 2,900 pounds. Further testing revealed the packages
contained a total of 44,000 grams of marijuana.
No. 17AP-387 7
{¶ 18} At the conclusion of the trial, the jury returned verdicts against Byrd,
Hayward, and Jackson, finding them guilty of possession of marijuana and trafficking in
marijuana. After a November 4, 2015 sentencing hearing, the trial court merged the
possession count into the trafficking count and sentenced Byrd to 8 years' imprisonment
and imposed a 12-month driver's license suspension and a $7,500 fine. The trial court
journalized Byrd's convictions and sentence in a November 4, 2015 judgment entry.
{¶ 19} Byrd appealed, arguing that the trial court erred in denying the motion to
suppress. This court agreed with Byrd, concluding the trial court erred in applying the
reasonable suspicion standard to the search of the box truck and that the trial court should
have determined whether there was probable cause to search the box truck under the
automobile exception to the warrant requirement. State v. Byrd, 10th Dist. No. 15AP-1091,
2016-Ohio-7670, ¶ 24-26 ("Byrd I"). We remanded the case for the trial court to "make the
appropriate factual findings relevant to a probable cause analysis for the search of the box
truck and then determine, in the first instance, whether officers had probable cause to
search the box truck." Id. at ¶ 27.
{¶ 20} On remand, the trial court once again denied Byrd's motion to suppress. The
trial court issued a written order and entry on March 30, 2017 concluding "[t]he totality of
the circumstances leading up to the opening of the box truck gave the officers ample
probable cause to believe that the box truck would contain contraband and search the box
truck under the automobile exception." (Order & Entry at 6.) In denying Byrd's motion to
suppress, the trial court additionally concluded the officers had probable cause for their
subsequent search of the cargo van.
{¶ 21} Subsequently, on May 1, 2017, the trial court issued an amended judgment
entry noting it had overruled Byrd's motion to suppress on remand and reinstating Byrd's
original judgment of conviction entered November 4, 2015. Byrd timely appeals.
II. Assignments of Error
{¶ 22} Byrd assigns the following errors for our review:
[1.] The trial court erred by denying Byrd's motion to suppress
evidence that police obtained in violation of his right against
unreasonable searches and seizures guaranteed by the Fourth
Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution.
No. 17AP-387 8
[2.] Byrd's convictions for trafficking marijuana and possession
of marijuana are based on insufficient evidence, in violation of
the Due Process Clause of the Fifth and Fourteenth
Amendments to the United States Constitution and Sections 1
& 16, Article I of the Ohio Constitution.
[3.] Byrd's convictions for trafficking marijuana and possession
of marijuana are against the manifest weight of the evidence in
violation of the Due Process Clause of the Fifth and Fourteenth
Amendments to the United States Constitution and Sections 1
& 16, Article I of the Ohio Constitution.
[4.] The trial court unlawfully ordered Byrd to serve the eight-
year prison sentence, imposed for the merged drug charges,
consecutive to the nine-month-prison sentence, imposed in an
unrelated conviction, in violation of his rights to due process,
guaranteed by Section 10, Article I of the Ohio Constitution and
the Fifth and Fourteenth Amendments to the United States
Constitution.
[5.] Byrd received ineffective assistance of counsel, in violation
of the Sixth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution.
III. First Assignment of Error – Motion to Suppress
{¶ 23} In his first assignment of error, Byrd argues the trial court erred in overruling
his motion to suppress. More specifically, Byrd asserts the officers lacked probable cause
for the search of the box truck.
{¶ 24} " 'Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses. Consequently, an appellate court must accept the trial court's
findings of fact if they are supported by competent, credible evidence. Accepting these facts
as true, the appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard.' "
(Citations omitted.) State v. Roberts, 110 Ohio St. 3d 71, 2006-Ohio-3665, ¶ 100, quoting
State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8.
{¶ 25} The Fourth Amendment to the United States Constitution as applied to the
states through the Fourteenth Amendment, as well as Article I, Section 14 of the Ohio
No. 17AP-387 9
Constitution, prohibits the government from conducting warrantless searches and seizures,
rendering them per se unreasonable unless an exception applies. State v. Mendoza, 10th
Dist. No. 08AP-645, 2009-Ohio-1182, ¶ 11, citing Katz v. United States, 389 U.S. 347, 357
(1967), superseded by statute on other grounds. There is no dispute here that the police
officers opened and searched the box truck without a warrant. In Byrd I, we determined
the automobile exception to the warrant requirement would apply to the search of the box
truck, and we remanded the matter to the trial court to determine whether the officers had
probable cause for the warrantless search of the box truck. Byrd I at ¶ 25-27.
{¶ 26} "The automobile exception is a 'specifically established and well delineated'
exception to the warrant requirement." State v. Bazwari, 10th Dist. No. 12AP-1043, 2013-
Ohio-3015, ¶ 18, quoting United States v. Ross, 456 U.S. 798, 825 (1982), citing Carroll v.
United States, 267 U.S. 132 (1925). " '[U]nder the automobile exception to the warrant
requirement, the police may search a motor vehicle without a warrant if they have probable
cause to believe that the vehicle contains contraband.' " Bazwari at ¶ 18, quoting State v.
Battle, 10th Dist. No. 10AP-1132, 2011-Ohio-6661, ¶ 33. In the context of an automobile
search, probable cause is " 'a belief, reasonably arising out of circumstances known to the
seizing officer, that an automobile or other vehicle contains that which by law is subject to
seizure and destruction.' " State v. Parrish, 10th Dist. No. 01AP-832, 2002-Ohio-3275, ¶ 27,
quoting State v. Kessler, 53 Ohio St. 2d 204, 208 (1978), citing Carroll at 149. "This
probable cause standard requires specific, objective facts which would justify the issuance
of a search warrant by a judge or magistrate." Parrish at ¶ 27. Thus, "[t]he determination
of probable cause is fact-dependent and turns on what the officer knew at the time he made
the stop and/or search." Battle at ¶ 34. "Probable cause sufficient to justify a search exists
where, based on the totality of the circumstances, there is a fair probability that contraband
or evidence of a crime will be found in a particular place." Id., citing Illinois v. Gates, 462
U.S. 213, 238 (1983).
{¶ 27} In concluding the totality of the circumstances leading up to the opening of
the box truck gave the officers probable cause to search the box truck under the automobile
exception to the warrant requirement, the trial court listed the factors that aided its
decision, including:
No. 17AP-387 10
(1) the chaotic scene of broken and intact watermelons in the
wet grass, (2) statements regarding the unusualness of cargo
being unloaded in the middle of the night, (3) unloading
hundreds of presumably heavy watermelons near the wet grass
as opposed to the loading dock with access to a forklift, ([4]) the
defendants' inability to state who owned the trailer, ([5]) the
defendants' reference to the non-existent "Bob" the security
guard, ([6]) Hayward's express disavowal of the defendants
having any affiliation with either the rental van or the rental
truck in contrast to Cline's statements that he saw men loading
cargo into the trucks, ([7]) Hayward's statement that the
defendants had nothing to do with the rental van or truck,
which would lead one to wonder where they were going to put
the watermelons after unloading them, ([8]) Seymour's
conclusion that the defendants' explanation for what they were
doing was nonsensical, and ([9]) Defendant's vague answers.
(Order & Entry at 6-7.)
{¶ 28} Giving deference to the trial court's factual findings, we must independently
determine whether these facts are sufficient to conclude the officers had probable cause for
the search of the box truck. Roberts at ¶ 100. We are mindful that probable cause is a "fluid
concept" based on very specific, particular factual contexts, and " 'because the mosaic which
is analyzed for a * * * probable-cause inquiry is multifaceted, "one determination will
seldom be a useful 'precedent' for another." ' " State v. Morgan, 10th Dist. No. 05AP-552,
2006-Ohio-5297, ¶ 26, quoting Ornelas v. United States, 517 U.S. 690, 698 (1996), quoting
Gates at 238 fn. 11.
{¶ 29} Byrd argues the officers had no indication that the box truck would contain
marijuana before they opened the vehicle. However, the officers did not need probable
cause that the box truck would contain evidence of a specific offense; rather, it was sufficient
that they had probable cause that the box truck would contain evidence of a criminal
offense. See Dixon v. Maxwell, 177 Ohio St. 20, 21 (1964) ("[i]t is not necessary that an
officer know that a specific crime has been committed in order for him to have probable
cause to make an arrest. It is sufficient if he has reasonable grounds to believe from the
circumstances that a felony has been committed, and that the accused has committed it").
Officer Carr testified he thought the three men were engaged in a theft.
No. 17AP-387 11
{¶ 30} Byrd additionally argues the officers lacked probable cause to search the box
truck because he remained silent and did not affiliate himself with the rental trucks.
However, this argument misconstrues the automobile exception to the warrant
requirement. Under the automobile exception, "the standard is probable cause to search
the vehicle, not probable cause to arrest defendant or any other individual. Therefore,
whether or not there was probable cause to arrest defendant does not directly impact the
assessment of probable cause to search in this case." Battle at ¶ 33.
{¶ 31} Having reviewed the entire record, we conclude the police officers had
probable cause for the search of the box truck. The totality of the circumstances including
the time of night, the location of the detached trailer away from the loading dock, the
chaotic scene of the watermelons in the grass, and Hayward's disavowal of the rental
vehicles despite Cline's statement to police that he saw the men loading cargo into the rental
vehicles gave rise to a fair probability that officers would find contraband or evidence of a
crime inside the box truck. Once officers opened the box truck and saw the packages of
marijuana, the officers additionally had probable cause to open the cargo van. Accordingly,
the trial court did not err in denying Byrd's motion to suppress on remand. Therefore, we
overrule Byrd's first assignment of error.
IV. Second Assignment of Error – Sufficiency of the Evidence
{¶ 32} In his second assignment of error, Byrd argues there was insufficient
evidence to support his convictions.
{¶ 33} Whether there is legally sufficient evidence to sustain a verdict is a question
of law. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). Sufficiency is a test of adequacy.
Id. The relevant inquiry for an appellate court is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier of fact to
find the essential elements of the crime proven beyond a reasonable doubt. State v.
Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio
St.3d 255, 2006-Ohio-2417, ¶ 37.
{¶ 34} Byrd was convicted of trafficking marijuana, in violation of R.C. 2925.03, and
possession of marijuana, in violation of R.C. 2925.11. R.C. 2925.03(A)(2) provides that
"[n]o person shall * * * [p]repare for shipment, ship, transport, deliver, prepare for
distribution, or distribute a controlled substance or a controlled substance analog, when
No. 17AP-387 12
the offender knows or has reasonable cause to believe that the controlled substance or a
controlled substance analog is intended for sale or resale by the offender or another
person." R.C. 2925.11(A) provides that "[n]o person shall knowingly obtain, possess, or use
a controlled substance or a controlled substance analog." Thus, to prove both of these
offenses, the state was required to show that Byrd acted knowingly.
{¶ 35} "A person acts knowingly, regardless of purpose, when the person is aware
that the person's conduct will probably cause a certain result or will probably be of a certain
nature." R.C. 2901.22(B). When determining whether a defendant acted knowingly, his
state of mind must be determined from the totality of the circumstances surrounding the
alleged crime. State v. Ingram, 10th Dist. No. 11AP-1124, 2012-Ohio-4075, ¶ 22. Culpable
mental states are frequently demonstrated through circumstantial evidence. Id; State v.
Stanley, 10th Dist. No. 06AP-323, 2007-Ohio-2786, ¶ 31 (noting that "[a]bsent an
admission" by the defendant, the surrounding facts and circumstances, including the
defendant's action, determine whether a defendant knowingly possessed a controlled
substance).
{¶ 36} Byrd argues the evidence did not demonstrate he either knowingly possessed
marijuana or knowingly trafficked marijuana. As the Supreme Court of Ohio has held,
"[t]he element of scienter in a narcotics possession case consists of two branches; that the
defendant knew that the substance was in his possession, and that he knew the substance
was a narcotic." State v. Dempsey, 22 Ohio St. 2d 219, 222 (1970). Essentially, Byrd argues
the state failed to prove he knew what was inside the packages found inside the box truck
and cargo van.
{¶ 37} As an initial matter, Byrd asserts the packages in the box truck and cargo van
were not readily identifiable as marijuana, pointing to Seymour's statement that the
packages looked like "a comforter set that you might find in a store." (Oct. 7, 2015 Tr. Vol.
2 at 251.) Byrd additionally notes police testified there was no odor of marijuana at the
scene. However, Officer Carr testified, based on his experience as a police officer and
someone who frequently works with narcotics, he "recognized it immediately that [the
packages] had to be narcotics of some type." (Oct. 7, 2015 Tr. Vol. 2 at 203.)
{¶ 38} Byrd additionally argues his calm demeanor when officers arrived on the
scene undermines any inference that he knew what was inside the packages. However,
No. 17AP-387 13
remaining calm when confronted by law enforcement officers has little impact on the
circumstantial evidence supporting a defendant's knowledge of the contents of a package.
See Stanley at ¶ 31-33 (rejecting a defendant's argument that there was insufficient
evidence that he knowingly possessed cocaine where the defendant's actions when police
arrived on the scene "were consistent with a person who is innocent" merely because he did
not run away from the officers, attempt to dispose of the drugs, or evade the police).
{¶ 39} Byrd's main argument is that the state could not prove he had knowledge of
the contents of the packages because he never admitted to knowing what was inside and
there was no evidence he ever attempted to know what was inside the packages. However,
we are mindful that, absent an admission by a defendant, we may infer knowledge from all
the surrounding circumstances. Stanley at ¶ 31. The evidence at trial demonstrated that
Byrd paid for the rental trucks, and Cline said in his 911 call that he saw the three men
loading the packages from the detached trailer into the rental vehicles. Moreover, to the
extent Byrd argues the state cannot prove he knew the contents of the packages because he
never inquired, R.C. 2901.22(B) specifically provides that "[w]hen knowledge of the
existence of a particular fact is an element of an offense, such knowledge is established if a
person subjectively believes that there is a high probability of its existence and fails to make
inquiry or acts with a conscious purpose to avoid learning the fact." (Emphasis added.)
Stated another way, Byrd cannot claim ignorance of the contents of the packages when the
circumstantial evidence demonstrates he believed there was a high probability the packages
contained narcotics but purposefully avoided learning the contents with certainty.
{¶ 40} Considering all the circumstantial evidence, we conclude that, construing the
facts in a light most favorable to the state, there was sufficient evidence to prove Byrd
knowingly possessed and trafficked in marijuana. In addition to the factors listed above,
we note that the time of night and the chaotic scene of the trailer facing away from the
loading dock with watermelons strewn about all support an inference that Byrd had
knowledge of the contents of the packages and worked to move the packages quickly and
without detection. Thus, because we conclude sufficient evidence supports Byrd's
convictions, we overrule Byrd's second assignment of error.
No. 17AP-387 14
V. Third Assignment of Error – Manifest Weight of the Evidence
{¶ 41} In his third assignment of error, Byrd argues the manifest weight of the
evidence does not support his convictions.
{¶ 42} When presented with a manifest weight argument, an appellate court
engages in a limited weighing of the evidence to determine whether sufficient competent,
credible evidence supports the jury's verdict. State v. Salinas, 10th Dist. No. 09AP-1201,
2010-Ohio-4738, ¶ 32, citing Thompkins at 387. "When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence,
the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution
of the conflicting testimony." Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42
(1982). Determinations of credibility and weight of the testimony are primarily for the trier
of fact. State v. DeHass, 10 Ohio St. 2d 230 (1967), paragraph one of the syllabus. Thus,
the jury may take note of the inconsistencies and resolve them accordingly, "believ[ing] all,
part, or none of a witness's testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-
Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 43} An appellate court considering a manifest weight challenge "may not merely
substitute its view for that of the trier of fact, but must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses, and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing
Thompkins at 387. Appellate courts should reverse a conviction as being against the
manifest weight of the evidence only in the most " 'exceptional case in which the evidence
weighs heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20
Ohio App. 3d 172, 175 (1st Dist.1983).
{¶ 44} Byrd restates much of his argument regarding sufficiency of the evidence for
purposes of his manifest weight argument. Essentially, Byrd argues the jury should not
have concluded Byrd knew the contents of the packages discovered in the box truck and
cargo van. In light of the evidence discussed above, as well as the record in its entirety, we
do not find that the jury clearly lost its way in concluding that Byrd committed the offenses
of possession of drugs and trafficking in drugs. The circumstantial evidence of the time of
No. 17AP-387 15
night, the chaotic scene, and Byrd's actions in working to move the packages from the
detached trailer into the rental vehicles for which Byrd paid all supported the conclusion
that Byrd acted with knowledge.
{¶ 45} Byrd additionally argues the jury impermissibly used Hayward's statements
to police to implicate Byrd in the offenses. However, as we discussed above, even without
Hayward's statements to the officers denying affiliation with the rental vehicles, there was
still ample evidence to support the conclusion that Byrd knowingly possessed and trafficked
in marijuana. Therefore, we find the manifest weight of the evidence supports Byrd's
convictions, and we overrule Byrd's third assignment of error.
VI. Fourth Assignment of Error – Imposition of Consecutive Sentences
{¶ 46} In his fourth assignment of error, Byrd argues the trial court erred in ordering
his sentence to run consecutive to his sentence in a separate, unrelated offense. More
specifically, Byrd asserts the trial court failed to make the required findings under R.C.
2929.14(C)(4).
{¶ 47} Because Byrd did not challenge the trial court's imposition of consecutive
sentences at his sentencing hearing, we may reverse Byrd's sentence only if the sentence
constitutes plain error. State v. Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 7. This
court has consistently determined a trial court's failure to make the findings required by
R.C. 2929.14(C)(4) is "plain error as a matter of law." State v. Bailey, 10th Dist. No. 12AP-
699, 2013-Ohio-3596, ¶ 46. See also State v. Smith, 10th Dist. No. 14AP-123, 2014-Ohio-
3700, ¶ 7; State v. Fair, 10th Dist. No. 13AP-901, 2014-Ohio-2788, ¶ 22; State v. Adams,
10th Dist. No. 13AP-783, 2014-Ohio-1809, ¶ 7.
{¶ 48} The state concedes that the trial court erred by not making the required
findings under R.C. 2929.14(C) before imposing consecutive sentences. However, the state
notes its continued objection to this court's application of the plain-error-as-a-matter-of-
law standard in these cases. " 'Although the state disagrees with the plain-error-as-a-
matter-of-law standard employed in [our] case[], we are bound by the doctrine of stare
decisis and will follow this court's precedent.' " State v. Bluhm, 10th Dist. No. 15AP-938,
2016-Ohio-7126, ¶ 58, quoting State v. Phipps, 10th Dist. No. 13AP-640, 2014-Ohio-2905,
¶ 57.
No. 17AP-387 16
{¶ 49} The record indicates the trial court did not make the required findings under
R.C. 2929.14(C)(4) before imposing consecutive sentences. Accordingly, we must remand
the matter to the trial court for resentencing for the trial court to determine whether
consecutive sentences are appropriate and, if so, to make the proper statutory findings at
the resentencing hearing and incorporate those findings in the sentencing entry. State v.
Petty, 10th Dist. No. 15AP-950, 2017-Ohio-1062, ¶ 94. Therefore, we sustain Byrd's fourth
assignment of error.
VII. Fifth Assignment of Error – Ineffective Assistance of Counsel
{¶ 50} In his fifth and final assignment of error, Byrd argues he was deprived of his
constitutional right to the effective assistance of counsel. In order to prevail on a claim of
ineffective assistance of counsel, Byrd must satisfy a two-prong test. First, he must
demonstrate that his counsel's performance was deficient. Strickland v. Washington, 466
U.S. 668, 687 (1984). This first prong requires Byrd to show that his counsel committed
errors which were "so serious that counsel was not functioning as the 'counsel' guaranteed
the defendant by the Sixth Amendment." Id. If Byrd can so demonstrate, he must then
establish that he was prejudiced by the deficient performance. Id. To show prejudice, Byrd
must establish there is a reasonable probability that, but for his counsel's errors, the result
of the trial would have been different. A "reasonable probability" is one sufficient to
undermine confidence in the outcome of the trial. Id. at 694.
{¶ 51} In considering claims of ineffective assistance of counsel, courts indulge in a
strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance. State v. Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, ¶ 101. Byrd
contends his trial counsel was ineffective in (1) failing to file an affidavit of indigency to
avoid the mandatory fine under R.C. 2929.18(B)(1), and (2) failing to request a jury
instruction to preclude the jury from considering Hayward's statements against Byrd.
A. Affidavit of Indigency
{¶ 52} Byrd's first instance of alleged ineffective assistance of counsel is that his
counsel failed to file an affidavit of indigency on his behalf as part of the sentencing
proceedings, thereby subjecting him to a mandatory fine as part of his sentence under R.C.
2929.18(B)(1). However, having determined in our resolution of Byrd's fourth assignment
of error that we must remand this matter for resentencing, we find this argument to be
No. 17AP-387 17
moot and we need not address it. Thus, we overrule as moot the portion of Byrd's fifth
assignment of error related to his trial counsel's failure to file an affidavit of indigency prior
to sentencing.
B. Jury Instruction
{¶ 53} Byrd's second instance of alleged ineffective assistance of counsel is his
counsel's failure to request a jury instruction to preclude the jury from considering
Hayward's statements against Byrd.
{¶ 54} As a general rule, strategic and tactical decisions of trial counsel cannot form
the basis of a claim of ineffective assistance of counsel. See, e.g., Columbus v. Oppong, 10th
Dist. No. 15AP-1059, 2016-Ohio-5590. This court has previously noted that a decision not
to request a particular jury instruction is a matter of trial strategy, so such a decision
generally does not substantiate a claim of ineffective assistance of counsel. State v. Glenn-
Coulverson, 10th Dist. No. 16AP-265, 2017-Ohio-2671, ¶ 56, citing State v. Morris, 9th Dist.
No. 22089, 2005-Ohio-1136, ¶ 100.
{¶ 55} Byrd argues his counsel should have requested a limiting instruction under
Evid.R. 105, which provides that "when evidence which is admissible as to one party or for
one purpose but not admissible as to another party or for another purpose is admitted, the
court, upon request of a party, shall restrict the evidence to its proper scope and instruct
the jury accordingly." We need not decide whether the decision not to request such an
instruction fell outside the realm of reasonable trial strategy because, as we noted in our
resolution of Byrd's third assignment of error, even without Hayward's statements to police
denying affiliation with the rental vehicles, there was still ample evidence to conclude Byrd
knowingly possessed and trafficked in drugs. See, e.g., State v. Hughes, 10th Dist. No.
14AP-360, 2015-Ohio-151, ¶ 69 ("[e]ven without [a defendant's] admittedly damaging
testimony, the state had already presented ample evidence of [the defendant's] guilt," so
the appellant was unable to satisfy the prejudice prong of the ineffective assistance
analysis). Thus, Byrd is unable to demonstrate the requisite prejudice necessary to
substantiate a claim of ineffective assistance of counsel.
{¶ 56} Because Byrd did not receive the ineffective assistance of counsel, we overrule
the portion of Byrd's fifth and final assignment of error related to his argument regarding
the jury instruction.
No. 17AP-387 18
VIII. Disposition
{¶ 57} Based on the foregoing reasons, the trial court did not err in denying Byrd's
motion to suppress, the sufficiency and manifest weight of the evidence supported Byrd's
convictions, and Byrd did not receive the ineffective assistance of counsel. However,
because the trial court erred in imposing consecutive sentences without making the
requisite findings under R.C. 2929.14(C)(4), we must remand this matter for resentencing.
Having overruled Byrd's first, second, third, and part of Byrd's fifth assignment of error,
and having sustained Byrd's fourth assignment of error, rendering moot the other portion
of Byrd's fifth assignment of error, we affirm in part and reverse in part the judgment of the
Franklin County Court of Common Pleas, and we remand this matter to that court for
resentencing.
Judgment affirmed in part and reversed in part;
cause remanded.
BROWN, P.J., and DORRIAN, J., concur.