State v. Fester , 2021 Ohio 410 ( 2021 )

[Cite as State v. Fester, 2021-Ohio-410.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2019-05-043
: OPINION
- vs - 2/16/2021
:
CYNTHIA ANN FESTER, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2018 CR 000789
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee
William J. Rap Law Offices, Joshua R. Crousey, One East Main Street, Amelia, Ohio 45102,
for appellant
HENDRICKSON, P.J.
{¶1} Appellant, Cynthia Ann Fester, appeals from her convictions in the Clermont
County Court of Common Pleas for trafficking in marijuana and possession of marijuana.
For the reasons set forth below, we affirm her convictions.
{¶2} In September 2017, the Clermont County Narcotics Unit ("CCNU") began
surveilling appellant's home on Harrison Woods Court in Clermont County, Ohio following
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a tip of drug activity. The surveillance revealed numerous vehicles coming and going from
the home and people entering the residence with empty bags and suitcases, only to exit the
home a short time later with full bags and suitcases. From September 2017 through the
end of January 2018, law enforcement observed more than 50 people visiting appellant's
home. Among those observed multiple times at appellant's home were Ken Ung Ly ("Ken
Ly"), Linda Malin, Kendra Hollis, Joshua Plummer, and appellant's two sons, Bryan Fester
and Zach Fester. To law enforcement, the activity at appellant's house was indicative of a
large drug operation.
{¶3} Law enforcement began surveilling other residences and businesses where
appellant, Bryan, Ken Ly, and Plummer were often observed. Law enforcement also began
to monitor the many vehicles that were owned and registered to appellant but were often
driven by others. A GPS tracker was placed on a 2012 Cadillac Escalade that was in
appellant's name but was primarily driven by Bryan. Appellant also had a 2010 Lexus IS250
and a 2005 Nissan Altima that were in her name. Though multiple people were observed
driving the Altima, the Lexus was driven almost exclusively by appellant. Appellant had
given Bryan access to her vehicle, however, as he was seen moving the vehicle in and out
of the garage at appellant's residence.
{¶4} From their investigation, law enforcement was able to determine that Bryan
was bringing in large amounts of marijuana through Ken Ly and his brother, Nhat Ly. Ken
Ly resided in California and would visit appellant's home every two or three weeks, often
staying at appellant's home or Bryan's home when he came to Ohio. Bryan was also known
to have made multiple trips to California.
{¶5} From November 2, 2017 through December 12, 2017, appellant was in Guam
visiting her third son. During this time, Bryan, Ken Ly, and other associates were seen
coming and going from appellant's home with bags and suitcases.
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{¶6} In January 2018, Bryan went to California with his girlfriend, his children,
appellant, and Zach. Though everyone flew to California, appellant and Zach drove a rental
car back to appellant's Clermont County home. Bryan asked appellant and Zach to drive
two suitcases back to Ohio, claiming he did not want to pay an $85 bag fee to have them
flown to Ohio. One of the suitcases appellant drove back to Clermont County was a pink
suitcase. This same suitcase was often seen going in and out of appellant's residence and
Bryan later admitted to law enforcement that he used the suitcase to transport and hold
marijuana.
{¶7} On January 21, 2018, appellant was observed at Malin's apartment building
in the vehicle she rented to drive back to Ohio from California. Bryan was also observed at
this address, although he had arrived in a separate vehicle. Two suitcases, one of which
was a pink suitcase, were removed from the rental vehicle and rolled over to Bryan's vehicle.
Shortly thereafter, Bryan returned the suitcases to the rental vehicle and both the rental
vehicle and Bryan's vehicle were driven to appellant's home. The suitcases were removed
from the rental vehicle and taken into appellant's home.
{¶8} Officers conducted a trash pull at appellant's home on January 21, 2018 and
found an empty vial with "THC 75.2 percent pure" written on it. Officers also found mail
addressed to appellant and to Bryan. From January 22, 2018 through January 29, 2018,
law enforcement continued to observe "a lot of traffic in and out" of appellant's residence,
with individuals carrying suitcases, duffle bags, and backpacks into and out of the home.
{¶9} On January 29, 2018, law enforcement followed a white minivan containing
Ken Ly and two other unidentified individuals to the Pacific Kitchen, a restaurant in
Montgomery, Ohio that Ken Ly's brother owned. The minivan was parked next to an Acura.
Four large, white boxes were loaded into the minivan. Two suitcases were taken from the
minivan and placed in the Acura. The two unidentified individuals entered the Acura and
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drove away. Ken Ly drove the minivan to appellant's residence, where the four large boxes
were unloaded into appellant's home.
{¶10} On January 31, 2018, law enforcement executed multiple search warrants in
Clermont County, Butler County, Hamilton County, and in Northern Kentucky at residences
and businesses believed to be involved in the drug operation that was run, in part, out of
appellant's home. Malin's apartment was searched and 120 pounds of marijuana and
$70,000 was recovered.
{¶11} Appellant's home was also searched pursuant to a warrant on January 31,
2018. Officers who searched appellant's home testified that as soon as appellant's front
door was opened, they immediately smelled a strong odor of marijuana. Upon entering
appellant's home, officers discovered an office immediately to the left.1 The door to the
office was unlocked. Inside the office, law enforcement located evidence related to drug
trafficking. Officers found the boxes that had been unloaded from Ken Ly's white minivan
after they had been picked up at Pacific Kitchen on January 29, 2018. Two of the boxes
were unopened and each contained 30 vacuum sealed bags of marijuana. A third box was
already opened and had 34 vacuum sealed bags of marijuana. The fourth box was empty.
The marijuana found in the boxes weighed more than 125 pounds, or more than 40,000
grams.2 Also found in the office was the pink suitcase appellant had transported to Ohio
from California. Inside the pink suitcase were sealed bags of marijuana. A tote bag found
1. Testimony from trial indicated that appellant's home contained three bedrooms: a master bedroom, a
second bedroom located directly across from the master bedroom, and a third bedroom near the front door.
The third bedroom was set up as an office. For purposes of clarity, the third bedroom will be referred to as
"the office" and the second bedroom across from the master bedroom will be referred to as the "spare
bedroom."
2. The marijuana contained in the boxes found in the office of appellant's home was sent to the Hamilton
County Crime Lab. Testing revealed that the marijuana found in the three boxes weighed, respectively,
17,334.6 grams, 15,035.1 grams, and 17,004.6 grams, for an aggregate weight of 49,374.3 grams.
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in the office contained marijuana and dryer sheets and a file cabinet drawer held two bags
of marijuana. In addition, vacuum seal bags, an envelope addressed to appellant, a
currency counter, a digital scale, a Dickey's BBQ cup containing marijuana, a drug ledger,
and additional dryer sheets were also found in the office.3
{¶12} In the hallway outside the office, officers found another drug ledger. In the
kitchen and dining room of appellant's home, officers found marijuana in a cabinet, two
vacuum sealers, a currency counter in the pantry, and a surveillance camera. In a spare
bedroom located across from the master bedroom, the officers found a drug ledger, mail
from Pacific Kitchen, a black bag containing $94,780 in currency, loose marijuana,
packaging material, pre-rolled marijuana joints, luggage containing $49,870, and a
checkbook belonging to Ken Ly. In appellant's master bedroom, officers found a
surveillance camera, $20,000 in a file cabinet drawer, a drug ledger next to the bed on the
floor, $1,969 in bundled currency in appellant's purse, $5,059.25 in a safe on the floor of
appellant's closet, two iPhones, an AK-47 in the closet, a box of 9mm ammunition, and a
plastic container containing $125 on the closet floor. When searching the trunk of
appellant's Lexus, officers found reusable grocery bags. One of these bags had marijuana
residue on the bottom of it.
{¶13} Law enforcement also obtained search warrants for appellant's bank
accounts. Appellant had more than ten bank accounts, with varying amounts of money in
each account. In one bank, appellant had a safety deposit box in which she stored vintage
coins, silverware, and a bag with $25,040 in cash with "To Joshua Adam Plummer" written
on it. In another bank, appellant had more than $44,000 in five accounts. Law
enforcement's review of appellant's tax records from 2013 to 2016 indicated she earned
3. Trial testimony from law enforcement officers indicated that it was common for those involved in trafficking
in marijuana to use dryer sheets in an effort to conceal the smell of the drug.
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less than $20,000 during each of those years. Appellant, who was on disability due to a
back injury, was employed as a PRN employee at a hospital, working a couple of times a
week.
{¶14} When law enforcement entered appellant's home to search her residence, the
officers found Ken Ly in the spare bedroom. Ken Ly and appellant were removed from the
home and placed in police vehicles. Appellant was transported to the police station where
she was interviewed by Agent Brian Taylor and Lieutenant Nic DeRose, officers on the
CCNU. During the interview, appellant told Agent Taylor that she knew something was
going on and that something was not right. She stated she did not want to get anyone in
trouble and that she had been yelling at Bryan for a couple of weeks to "get it out" of her
home. Appellant explained that Bryan paid her cellphone bill in exchange for the use of the
office in her home.
{¶15} Agent Taylor informed appellant that a search had also been conducted at
Malin's home and marijuana had been found at that location. Appellant stated that that
made sense, as Bryan had her drop off suitcases there twice. When appellant was told by
Agent Taylor that she was "in neck-deep" in the drug operation, appellant stated, "I know.
I told you, I'm just stupid. I shouldn't have done anything. I'm so stupid."
{¶16} Following her interview, appellant was released from custody. On September
11, 2018, appellant was indicted on one count of engaging in a pattern of corrupt activity in
violation of R.C. 2923.32(A)(1), a felony of the first degree, one count of trafficking in over
40,000 grams of marijuana in violation of R.C. 2925.03(A)(2), a felony of the second degree,
one count of possession of over 40,000 grams of marijuana in violation of R.C. 2925.11(A),
a felony of the second degree, one count of money laundering in violation of R.C.
1315.55(A)(1), a felony of the third degree, and possession of criminal tools in violation of
R.C. 2923.24(A), a felony of the fifth degree. The trafficking in marijuana and possession
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of marijuana offenses were accompanied by a specification seeking forfeiture of appellant's
residence, three motor vehicles, an AK-47 firearm, and $195,593.99 in currency.
{¶17} Appellant pled not guilty to the offenses and a four-day jury trial commenced
on April 29, 2019. The state dismissed the charges of engaging in a pattern of corrupt
activity, money laundering, and possession of criminal tools. The state also dismissed
appellant's residence from the forfeiture specification accompanying the trafficking in
marijuana and possession of marijuana charges. Thereafter, the state presented testimony
from law enforcement officers involved in the narcotics investigation and search of
appellant's home, including testimony from Agent Taylor and Lt. DeRose. Appellant's
recorded police interview and evidence obtained during the surveillance and search of
appellant's home were admitted into evidence.
{¶18} Appellant, Bryan, and Malin testified in appellant's defense. Bryan admitted
he had been incarcerated for running a drug organization. Bryan, a professional gambler,
stated he became involved in the drug organization after meeting Nhat Ly at a casino in
Cincinnati. Once Bryan's drug operation became too large for Nhat Ly, Nhat Ly involved
his brother, Ken Ly. Bryan explained that he picked up marijuana at various restaurants in
southwest Ohio and he would store the drugs at various places, including at Malin's and
appellant's homes. The drugs were stored in boxes, suitcases, and bags – often with dryer
sheets in an attempt to conceal the smell of the marijuana. Bryan explained that the pink
suitcase found during the search of appellant's home was a suitcase that he used to hold
bags of marijuana that were short product.
{¶19} Bryan testified that he largely worked out of the office in appellant's home,
which he claimed to keep locked. However, Bryan claimed that when appellant went to
Guam, he spread his drug operation outside the home-office. For instance, Bryan testified
that he used the master bedroom to count more than $400,000 in cash and to balance his
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drug ledgers and accounts. When he realized he had a $20,000 cash surplus, Bryan
claimed he bundled the money up, stuck it in a cabinet drawer, and forgot about it until law
enforcement found it in appellant's bedroom during execution of the warrant.
{¶20} Although Bryan denied that appellant was involved in his drug operation or
even knew the operation was being run out of her home, he later contradicted himself by
testifying that appellant had walked in on him once and told him to get his "stuff" out. Bryan
claimed that the drugs in appellant's home did not smell, as they were packaged in vacuum-
sealed bags. However, he also testified that appellant questioned him about why her home
smelled like marijuana and he told her it was because he smoked a joint in the house. Bryan
also contradicted himself when he first testified that he never weighed marijuana at
appellant's house, but then stated that the Dickey's BBQ cup found at appellant's house
was used to weigh marijuana. Bryan also claimed that appellant was never present when
he sold marijuana to others, but surveillance video from January 21, 2018 shows appellant
arriving home around the same time as Kendal Hollis, a known associate in Bryan's drug
organization. Appellant walked into her home at the same time as Hollis, who was carrying
an empty bag. A short time later, Hollis left the home with a full bag.
{¶21} Appellant took the stand and testified that she was unaware of and had not
participated in Bryan's drug operation. Appellant claimed she did not know marijuana was
being stored in her home or the drugs were being trafficked out of her home. Appellant
offered explanations for the evidence recovered in her home and for the large sums of
money found in her bank accounts. She claimed that money found in her various bank
accounts was from a trust that she managed and from a $60,608 settlement she received
in October 2017 after suffering injuries to her back. The $25,040 found in a safety deposit
box inside a bag with Plummer's name on it was allegedly cash appellant had withdrawn
for the purpose of buying a new car. As for the evidence collected in her home, she stated
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that she has a vacuum sealer and vacuum sealer bags that she uses to keep her food fresh.
She testified the iPhones recovered in her bedroom were for personal use – one phone was
broken and the other phone was to replace the broken phone. As for the AK-47 found in
her bedroom closet, appellant testified she bought the weapon for personal protection after
an ex-boyfriend started stalking her.
{¶22} After considering the evidence presented at trial, the jury found appellant
guilty of trafficking and possessing marijuana that equaled or exceeded 40,000 grams. With
respect to the forfeiture specification, the jury found that only $121,936 in currency and a
2012 Cadillac Escalade were subject to forfeiture.4 The matter proceeded to sentencing,
where the court determined that the trafficking and possession offenses were allied
offenses subject to merger. The state elected to proceed on the trafficking in marijuana
offense, and the trial court imposed an eight-year mandatory prison sentence and a $7,500
mandatory fine on appellant.
{¶23} Appellant appealed, raising four assignments of error for review. For ease of
discussion, appellant's third and fourth assignments of error will be addressed together.
{¶24} Assignment of Error No. 1:
{¶25} THE TRIAL COURT ERRED BY NOT ORDERING A SPECIAL
PROSECUTOR WHERE A COUNTY ASSISTANT PROSECUTOR SPENT A NIGHT
DRINKING AND THEN SLEEPING IN BED WITH APPELLANT.
{¶26} In her first assignment of error, appellant contends the trial court erred by not
granting her motion to disqualify the Clermont County Prosecutor's Office after it came to
light that appellant and a former assistant prosecutor spent an evening drinking and
socializing with one another. Appellant maintains that a conflict of interest should have
4. Prior to submitting the case to the jury, the trial court granted appellant's Crim.R. 29 motion as it related to
the forfeiture specifications for appellant's Lexus IS250, Nissan Altima, and the AK-47.
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precluded the Clermont County Prosecutor's Office from prosecuting the case and that the
court's failure to disqualify the prosecutor's office violated her right to a fair trial and due
process of law.
{¶27} The record indicates that on July 6, 2018, more than two months before
appellant was indicted, appellant had a chance meeting at a local bar with "RH," an
assistant prosecuting attorney with the Clermont County Prosecutor's Office. Appellant and
RH were both drinking. Appellant initiated contact with RH after learning from a friend that
RH was an attorney. When appellant mentioned to RH that her home had been "raided,"
RH interjected to ask where her home was located. After being advised appellant's home
was in Clermont County, RH informed appellant he was an assistant prosecutor with
Clermont County and he could not discuss the matter with her. At this point in time, RH
had no knowledge of appellant or of law enforcement's investigation into her activities.
{¶28} Appellant contends that despite RH stating he could not discuss the matter
with her, RH kept bringing the topic up during the evening, asking her if she had a lawyer,
and if she wanted him to call her attorney. RH denied that he had any further contact with
appellant regarding law enforcement's investigation of her activities. RH did not contact
appellant's attorney; however, RH admitted to texting Lt. DeRose around midnight to
confirm appellant was the target of an investigation. Lt. DeRose confirmed the investigation
the next morning, around 7:00 a.m. RH did not inform appellant he sent Lt. DeRose a text;
nor did he inform appellant of the response he received.
{¶29} On the evening of July 6, 2018, appellant and RH left the bar and went to a
mutual friend's home, where they continued drinking. Appellant, RH, and their mutual
friends spent time in a hot tub together. After getting out of the hot tub, the homeowner
offered to let everyone stay overnight so that they would not be driving after drinking. RH
and appellant slept in the same bed, although they did not engage in any sexual activity.
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Though appellant claimed she only stayed out of fear after RH grabbed her by the arm and
told her she was not going anywhere, text messages appellant sent to RH the following day
undercut this claim. In the text messages, appellant unsuccessfully sought to make future
plans with RH. RH did not, however, have any future contact with appellant.
{¶30} Approximately a month later, at the beginning of August 2018, a fellow
prosecutor mentioned appellant by name during a discussion at the prosecutor's office. RH
told the other prosecutor not to further discuss the case and disclosed his July 6, 2018
contact with appellant. RH did not have any further discussion or conversation with that
prosecutor or any other assistant prosecutors about appellant. On August 7, 2018, RH
resigned from the Clermont County Prosecutor's Office. More than a month later, on
September 11, 2018, appellant was indicted for her involvement in the drug operation.
{¶31} Following her indictment, appellant filed a "Motion Requesting
Withdrawal/Disqualification of Clermont County Prosecutor's Office" and supported her
memorandum with an affidavit. The prosecutor's office opposed the motion and submitted
an affidavit from RH. The trial court held a hearing on the motion on March 7, 2019, with
appellant and RH both testifying. During the hearing, no evidence was presented that RH
had obtained any incriminating statements or evidence from appellant or that RH had any
involvement in the investigation, charging decisions, indictment or prosecution of appellant.
At the close of the hearing, defense counsel conceded that he could not identify any way in
which the encounter between appellant and RH had violated appellant's due process rights
or prejudiced her.
{¶32} On March 12, 2019, the trial court issued a decision denying appellant's
motion to disqualify the Clermont County Prosecutor's Office. The court found that no
attorney-client relationship existed between appellant and RH and that the mere
appearance of impropriety was not sufficient to warrant disqualification of the entire
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prosecutor's office. Specifically, the court stated:
[RH's] testimony that he had no involvement or input into the
investigation, indictment, or prosecution of [appellant] is
unrefuted. Given his resignation from the prosecutor's office in
August of 2018, [RH] will play no role at trial. Frankly, [RH]
obtained no information from [appellant] that wasn't already
known by law enforcement after they executed the search
warrant on her residence in January of 2018. Given
[appellant's] inability to demonstrate any prejudice,
disqualification of the entire Clermont County Prosecutor's
Office is not warranted in this case.
{¶33} We review a trial court's decision on a motion to disqualify under an abuse-
of-discretion standard of review. State v. Goff, 4th Dist. Lawrence No. 11CA20, 2013-Ohio-
42, ¶ 59. An abuse of discretion connotes more than an error in law or judgment; it implies
that the court's decision was arbitrary, unreasonable, or unconscionable. State v. Gearhart,
12th Dist. Warren No. CA2017-12-168, 2018-Ohio-4180, ¶ 13.
{¶34} "A decree disqualifying a prosecutor's office should only be issued by a court
when actual prejudice is demonstrated." State v. Hennessey, 12th Dist. Clermont No.
CA2020-01-002, 2020-Ohio-5232, ¶ 23. "In making the determination, relevant factors may
include, 1) the type of relationship the disqualified prosecutor previously had with a
defendant, 2) the screening mechanism, if any, employed by the office, 3) the size of the
prosecutor's office, and 4) the involvement the disqualified prosecutor had in the case." Id.,citing State v. Morris, 5th Dist. Stark No. 2004CA00232, 2005-Ohio-4967, ¶ 15. "Prejudice
will not be presumed by an appellate court where none is demonstrated." Id., citing State
v. Freeman, 20 Ohio St.3d 55 (1985). Furthermore, "[t]he mere appearance of impropriety
is insufficient to warrant the disqualification of an entire prosecutor's office." State v. White,
8th Dist. Cuyahoga No. 82066, 2004-Ohio-5200, ¶ 25.
{¶35} Appellant contends consideration of the above-mentioned factors supports
her motion to disqualify the Clermont County Prosecutor's Office. With respect to the first
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factor, appellant asserts that she and RH established an attorney-client relationship which
required the entire prosecutor's office to be disqualified pursuant to Professional Conduct
Rule 1.10. This rule provides as follows:
While lawyers are associated in a firm, none of them shall
represent a client when the lawyer knows or reasonably should
know that any one of them practicing alone would be prohibited
from doing so by Rule 1.7 or 1.9, unless the prohibition is based
on a personal interest of the prohibited lawyer and does not
present a significant risk of materially limiting the representation
of the client by the remaining lawyers in the firm.
(Emphasis sic.) Prof.Cond.R. 1.10(a).
{¶36} However, as Comment 7 to this rule explains, "[u]nder Rule 1.11(d), where a
lawyer represents the government after having served clients in private practice * * * former-
client conflicts are not imputed to government lawyers associated with the individually
disqualified lawyer." Prof.Cond.R. 1.10, Comment 7. Moreover, "[b]ecause of the special
problems raised by imputation within a government agency, [Prof.Cond.R. 1.11(d)] does
not impute the conflicts of a lawyer currently serving as an officer or employee of the
government to other associated government officers or employees, although ordinarily it
will be prudent to screen such lawyers. Prof.Cond.R. 1.11, Comment 2.
{¶37} Neither the Rules of Professional Conduct nor consideration of the factors set
forth in Hennessey required disqualification of the Clermont County Prosecutor's Office.
RH did not have an attorney-client relationship with appellant. He provided no legal service
or advice to her. As soon as appellant stated her "raided" home was in Clermont County,
RH informed appellant he could not discuss her legal situation due to his employment as
an assistant prosecutor.
{¶38} RH's "relationship" with appellant consisted of a single night of socializing and
did not involve intimacy. RH was not involved in any aspect of the investigation or
prosecution of appellant's case. Rather, RH distanced himself from the case. RH informed
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his superiors of his encounter with appellant and then resigned from the prosecutor's office
without ever discussing the specifics of appellant's case. Finally, defense counsel
conceded appellant was unable to demonstrate any prejudice that resulted from appellant's
encounter with RH.
{¶39} Accordingly, based upon the facts and record before us, we conclude that the
trial court did not abuse its discretion in denying appellant's motion to disqualify the
Clermont County Prosecutor's Office. Appellant's first assignment of error is overruled.
{¶40} Assignment of Error No. 2:
{¶41} THE TRIAL COURT ERRED BY PROHIBITING THE JURY FROM VIEWING
THE ENTIRE UNINTERRUPTED INTERROGATION OF APPELLANT.
{¶42} In her second assignment of error, appellant argues the trial court abused its
discretion in denying her request to play for the jury and to admit into evidence the full
recording of her interview with law enforcement. Appellant contends by redacting certain
portions of the interview, she was denied the right to cross-examine Agent Taylor about his
claim that he established a good rapport with her during the interview. She also claims that
by redacting a two-hour portion of the video where she sat by herself in the interview room
while awaiting law enforcement, the jury was deprived of the opportunity to "determine
whether her subsequent statements were [made] out of duress, exhaustion, stress, or a
combination of those factors."
{¶43} "A trial court's decision to admit or exclude evidence will not be reversed by a
reviewing court absent an abuse of discretion." State v. McLaughlin, 12th Dist. Clinton No.
CA2019-02-002, 2020-Ohio-969, ¶ 42.
{¶44} The record reveals that over defense counsel's objection, the trial court
permitted the redaction of statements one of the officers made to appellant about the felony-
level of the offenses and the amount of prison-time she faced as a result of her involvement
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in the marijuana operation. In permitting this redaction, the court indicated that if on cross-
examination defense counsel challenged Agent Taylor on how he built rapport with
appellant, the evidence could become relevant and the court would address the
admissibility of the statements at that time. However, the record reveals that appellant
failed to question Agent Taylor or Lt. DeRose about their interview methods. The redacted
statements, therefore, never became relevant.
{¶45} Furthermore, admission of such statements would have been prejudicial and
improper. "A jury should not normally be told the potential sentences a criminal defendant
faces for the charged offenses." State v. Bajaj, 7th Dist. Columbiana No. 03 CO 16, 2005-
Ohio-2931, ¶ 163, citing State v. Hudson, 5th Dist. Delaware No. 02 CAA 12065, 2003-
Ohio-7049, ¶ 87-89. After all, "the subject of disposition is a matter for the court and not
the jury." State v. Rogers, 17 Ohio St.3d 174, 182 (1985). As appellant failed to cross-
examine either Agent Taylor or Lt. DeRose on their interview methods and the redacted
statements addressed sentencing issues that fall outside the province of the jury, we find
that the trial court did not abuse its discretion in excluding those statements from evidence.
{¶46} We further find that the trial court did not abuse its discretion in ruling
inadmissible that the portion of the recording which showed appellant waiting in the
interview room by herself for two hours prior to law enforcement questioning her about her
involvement in the marijuana operation. The video depicting appellant sitting alone in a
room for two hours was duplicative of testimony defense counsel obtained on cross-
examination, wherein Agent Taylor admitted appellant sat in a room at the police
department by herself "probably [for] a couple of hours" before the interview began. Since
defense counsel was given the opportunity to cross-examine Agent Taylor and Lt. DeRose
about the two-hour wait, the court did not abuse its discretion in excluding that portion of
the recording.
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{¶47} Furthermore, though appellant now claims that the two-hour delay in
questioning was relevant to show that her statements to law enforcement were made under
duress or as a result of exhaustion, she did not advance this defense at trial. When
questioned about the statements she made to Agent Taylor and Lt. DeRose during her
police interview, appellant did not testify the statements were inaccurate or brought on by
exhaustion or duress. Given these circumstances, the trial court did not err in finding that
the recording of the two-hour wait was not relevant, and it was properly excluded at trial.
{¶48} Appellant's second assignment of error is overruled.
{¶49} Assignment of Error No. 3:
{¶50} THE JURY ERRED BY FINDING APPELLANT GUILTY WHEN THE
EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION.
{¶51} Assignment of Error No. 4:
{¶52} THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
{¶53} In her third and fourth assignments of error, appellant contends that her
convictions for trafficking in marijuana and possession of marijuana are not supported by
sufficient evidence and are against the manifest weight of the evidence. Specifically,
appellant maintains that there was no evidence that she was knowingly "involved with or
complicit in trafficking in marijuana" as the state failed to present evidence that she engaged
in hand-to-hand transactions or transported or touched the contraband. She further argues
there was no evidence that she knowingly possessed or exercised physical control over the
contraband found in her home.
{¶54} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead,
194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency
of the evidence underlying a criminal conviction, an appellate court examines the evidence
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in order to determine whether such evidence, if believed, would convince the average mind
of the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No.
CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt."
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶55} On the other hand, a manifest weight of the evidence challenge examines the
"inclination of the greater amount of credible evidence, offered at a trial, to support one side
of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,
2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight
of the evidence, the reviewing court must look at the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of the witnesses, and determine whether
in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. State v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.
In reviewing the evidence, an appellate court must be mindful that the jury, as the original
trier of fact, was in the best position to judge the credibility of witnesses and determine the
weight to be given to the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-
Ohio-1289, ¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the
manifest weight of the evidence "only in the exceptional case in which the evidence weighs
heavily against the conviction." Id., citing State v. Thompkins, 78 Ohio St.3d 380, 387
(1997). Further, although the legal concepts of sufficiency of the evidence and weight of
the evidence are quantitatively and qualitatively different, "[a] determination that a
conviction is supported by the manifest weight of the evidence will also be dispositive of the
issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150,
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¶ 19.
{¶56} Appellant was convicted of complicity to trafficking in marijuana and
possession of marijuana. "A charge of complicity may be stated in terms of [the complicity
statute] or in terms of the principal offense." R.C. 2923.03(F). See also State v. Herring,
94 Ohio St.3d 246, 251 (2002).
{¶57} R.C. 2925.03(A)(2), the trafficking statute, provides that "[n]o person shall
knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or
distribute a controlled substance or a controlled substance analog, when the offender
knows or has reasonable cause to believe that the controlled substance or controlled
substance analog is intended for sale or resale by the offender or another person." If the
controlled substance is marijuana and the amount of marijuana equals or exceeds 40,000
grams, the offense is a second-degree felony. R.C. 2925.03(C)(3)(g).
{¶58} R.C. 2925.11(A), the possession statute, provides that "[n]o person shall
knowingly obtain, possess, or use a controlled substance or a controlled substance analog."
If the controlled substance is marijuana and the amount equals or exceeds 40,000 grams,
the offense is a second-degree felony. R.C. 2925.11(C)(3)(g). Possession is defined as
"having control over a thing or substance, but may not be inferred solely from mere access
to the thing or substance through ownership or occupation of the premises upon which the
thing or substance is found." R.C. 2925.01(K). Possession may be actual or constructive.
State v. Fultz, 12th Dist. Butler No. CA2015-06-103, 2016-Ohio-1486, ¶ 12. Constructive
possession exits when one is conscious of the presence of the object and able to exercise
dominion and control over it, even if it is not within one's immediate physical possession.
State v. Graves, 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 22.
"Constructive possession may be proven by circumstantial evidence alone." Fultz at ¶ 12.
Absent a defendant's admission, the surrounding facts and circumstances, including a
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defendant's actions, are evidence that a trier of fact may consider in determining whether
the defendant had constructive possession. Graves at ¶ 22. "The discovery of readily
accessible drugs in close proximity to the accused constitutes circumstantial evidence that
the accused was in constructive possession of the drugs." Fultz at ¶ 13. "[T]wo or more
persons may have possession of an object together if they have the ability to control it,
exclusive of others." State v. Peyton, 12th Dist. Butler No. CA2015-06-112, 2017-Ohio-
243, ¶ 44.
{¶59} Pursuant to the complicity statute, "[n]o person, acting with the kind of
culpability required for the commission of an offense shall * * * [a]id or abet another in
committing the offense." R.C. 2923.03(A)(2). A person must act "knowingly" to traffic in
marijuana or possess marijuana. R.C. 2925.03(A)(2); R.C. 2925.11(A). "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).
{¶60} To be complicit to a crime by aiding and abetting, "the evidence must show
that the defendant supported, assisted, encouraged, cooperated with, advised, or incited
the principal in the commission of the crime, and that the defendant shared the criminal
intent of the principal." State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. "[A] person's
mere association with a principal offender is not enough to sustain a conviction based upon
aiding and abetting." State v. Coldiron, 12th Dist. Clermont Nos. CA2003-09-078 and
CA2003-09-079, 2004-Ohio-5651, ¶ 17. The accused "must actively participate in some
way and contribute to the unlawful act to aid or to abet." State v. Davis, 12th Dist. Madison
No. CA2015-05-015, 2016-Ohio-1166, ¶ 49, citing State v. Salyer, 12th Dist. Warren No.
CA2006-03-039, 2007-Ohio-1659, ¶ 27. Aiding and abetting may be shown through either
direct or circumstantial evidence, and "'participation in criminal intent may be inferred from
the presence, companionship, and conduct before and after the offense is committed.'" In
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re B.T.B., 12th Dist. Butler No. CA2014-10-199, 2015-Ohio-2729, ¶ 19, quoting State v.
Lett, 160 Ohio App.3d 46, 2005-Ohio-1308, ¶ 29 (8th Dist.).
{¶61} After reviewing the record, weighing inferences and examining the credibility
of the witnesses, we find appellant's convictions for trafficking in over 40,000 grams of
marijuana and possession of over 40,000 grams of marijuana are supported by sufficient
evidence and are not against the manifest weight of the evidence. The state presented
testimony and evidence from which the jury could have found all the essential elements of
the offenses proven beyond a reasonable doubt. The state established that appellant
assisted and encouraged the trafficking in and possession of marijuana as part of her son's
drug enterprise. Appellant knowingly permitted Bryan to operate his business out of her
home-office and she knowingly permitted him to keep 49,374.3 grams, or 125 pounds, of
marijuana in her home. Appellant was aware that marijuana was in her home, as evidenced
by Bryan's testimony that appellant had walked in on him with the drugs on least one
occasion and appellant's admissions to law enforcement that she knew something was
going on and she had been yelling at Bryan to "get it," meaning the drugs, out of her home
for weeks. Appellant also admitted to smelling the marijuana and to being "neck-deep" in
the drug operation.
{¶62} Evidence of the drug operation was pervasive throughout appellant's home.
In addition to the odor and presence of marijuana, there were digital scales, packaging
materials, large amounts of cash, currency counters, and drug ledgers in multiple rooms
throughout the house. There was also a steady parade of people entering and leaving
appellant's residence, some of whom were known to have visited while appellant was at the
residence. These individuals went into the home with empty bags and backpacks and left
with full bags. The marijuana in appellant's home was readily accessible to appellant and
subject to her control, as evidenced by the fact that the office was not locked when law
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enforcement arrived to conduct the search, loose marijuana was found in the spare
bedroom, and a bag of marijuana was found in appellant's kitchen.
{¶63} The state also presented evidence that appellant assisted in transporting
marijuana from California to Ohio. After flying to California with Bryan and his family,
appellant rented a car so that she could drive two suitcases back to Ohio. Although
appellant and Bryan claimed that the suitcases held baby clothes and that appellant drove
the suitcases to Ohio in order to save Bryan an $85 luggage fee, the jury was entitled to
reject this claim. The jury could find that this explanation did not make sense in light of the
expenses associated with renting a vehicle and driving it across the country. Furthermore,
Bryan had admitted to making $50,000 a week from his trafficking operation, and he stated
he made so much money that he "forgot" about $20,000 that he left in his mother's bedroom.
That he would ask his mother to rent a vehicle to drive to Ohio to save $85 is, therefore,
incredulous. Especially in light of Bryan's testimony that he often used one of the suitcases
– the pink suitcase – to store marijuana.
{¶64} Based on the forgoing evidence, the trier of fact was entitled to find appellant
guilty of complicity to trafficking in marijuana and possession of marijuana. Though
appellant and Bryan attempted to shift appellant's involvement in the offenses away from
her and solely onto Bryan's shoulders, there was ample evidence presented that appellant
was an active participant in her son's trafficking business and that she knowingly possessed
the marijuana found in her home. In finding appellant guilty, the jury was free to disregard
appellant's and Bryan's testimony that appellant was not involved in the offenses. See State
v. Woodward, 12th Dist. Warren No. CA2016-09-084, 2017-Ohio-6941, ¶ 24 (noting that
"[t]the jury, as the trier of fact was free to believe all, part, or none of the testimony of each
witness who appear[ed] before it"). Furthermore, appellant's convictions are not against
the manifest weight of the evidence merely because the trier of fact believed the testimony
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of the state's witnesses. State v. Crossty, 12th Dist. Clermont Nos. CA2017-01-003 thru
CA2017-01-005, 2017-Ohio-8267, ¶ 68.
{¶65} Accordingly, given the overwhelming amount of evidence presented by the
state establishing that appellant participated and assisted in the trafficking and possession
offenses, we find that appellant's convictions are supported by sufficient evidence and are
not against the manifest weight of the evidence. The trier of fact did not lose its way or
create such a manifest miscarriage of justice that appellant's convictions must be reversed.
We therefore overrule appellant's third and fourth assignments of error.
{¶66} Judgment affirmed.
S. POWELL and M. POWELL, JJ., concur.
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