State v. Thompson ( 2021 )

[Cite as State v. Thompson, 2021-Ohio-3184.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NO. C-200388
TRIAL NO. B-1902260
Plaintiff-Appellee, :
vs. : O P I N I O N.
:
TYLON THOMPSON,
:
Defendant-Appellant.
:
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 15, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista M. Gieske, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} A stop sign violation spiraled into the arrest and conviction of defendant-
appellant Tylon Thompson for three counts of drug possession. Now facing a 42 month
sentence, Mr. Thompson challenges the denial of his suppression motion, an array of
evidentiary determinations, as well as his underlying convictions and sentences. After
reviewing the evidence and record, we overrule all four of his assignments of error and
affirm the judgment below.
I.
{¶2} This case stems from a College Hill traffic stop in August 2019, when Officer
Michael Smith observed a black Hyundai Elantra with heavily tinted windows roll through a
stop sign at Elkton Place. Officer Smith pulled the vehicle over and activated his body
camera, which captured the entire encounter. Because of the window tint, he approached
the car from the passenger side. The passenger-side window was rolled down, with Mr.
Thompson seated in the passenger seat and his significant other at the wheel.
{¶3} Officer Smith informed both occupants of the reasons for the stop and asked
for identification, which they provided. As Officer Smith walked back to his cruiser to run
the couple’s names through his computer, he expressed concern to accompanying officers
about movements Mr. Thompson made around the center console of the car as he
approached. Officer Smith’s search of the couple’s names revealed that the driver was
driving under a suspended license, and Mr. Thompson did not have a license. Officer Smith
then summoned the nearest drug dog, expressing his belief that Mr. Thompson was
concealing drugs in the center console area.
{¶4} Roughly 17 minutes into the stop, Officer Smith finished writing the citation
for the stop sign violation and driving under suspension, delivering it to the driver. He
instructed the driver and Mr. Thompson to “sit tight for a couple more minutes.” For the
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next six minutes, Officer Smith chatted with other officers on the scene and with Mr.
Thompson. Around 23 minutes into the stop, K-9 handler Officer Michael Bricker arrived
on the scene with his dog. Out of Mr. Thompson’s earshot, Officer Smith informed Officer
Bricker that “he’s covering up the whole left side of him and the center console area, so you
can’t see.” He further explained that the couple had just traveled from an area known for
drug activity.
{¶5} After conversing with Officer Smith, Officer Bricker explained the drug dog
procedure to Mr. Thompson and the driver. Pursuant to a departmental policy dictating
that passengers cannot remain in a vehicle during a canine sniff, Officer Bricker opened the
car door and ordered the couple out of the vehicle. When Mr. Thompson stood up to exit
the car, a plastic baggie containing a white substance became visible in the passenger seat
next to the center console. Officers then handcuffed Mr. Thompson, placed him under
arrest, and conducted a pat-down and full search of the car. This search revealed $463 of
United States currency and raw marijuana wrapped in a dollar bill. At the Hamilton County
Justice Center later that day, Mr. Thompson was subjected to a strip search. Police found
three small baggies in Mr. Thompson’s anal cavity, which ultimately tested positive for a
cocaine-methamphetamine compound and fentanyl.
{¶6} The Hamilton County Grand Jury returned a six-count indictment against
Mr. Thompson, charging: 1) trafficking in a fentanyl-related compound; 2) possession of a
fentanyl-related compound; 3) trafficking in cocaine; 4) possession of cocaine; 5)
aggravated trafficking in drugs; and 6) aggravated possession of drugs. Mr. Thompson
rejected the state’s plea offer and asserted his right to a jury trial.
{¶7} Mr. Thompson moved to suppress the plastic baggie containing a white
substance, which the trial court denied. When the case proceeded to trial, the court
admitted the raw marijuana seized on the scene over Mr. Thompson’s objection
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OHIO FIRST DISTRICT COURT OF APPEALS
(emphasizing the absence of any marijuana-related charges). The trial court also permitted
Melissa Sterling, the analyst who tested the substances seized during Mr. Thompson’s
arrest, to provide expert testimony on her findings. Mr. Thompson again objected, arguing
that Ms. Sterling provided an insufficient summary of her expert testimony in contravention
of Crim.R. 16(K).
{¶8} The jury found Mr. Thompson not guilty of the three trafficking counts, but
guilty of the three possession counts. After reviewing Mr. Thompson’s pre-sentence
investigation, the trial court imposed maximum, consecutive sentences for an aggregate
term of 42 months’ incarceration.
II.
{¶9} Mr. Thompson now appeals from his convictions, asserting four assignments
of error. He challenges 1) the denial of his motion to suppress, 2) the admission of the raw
marijuana and Ms. Sterling’s expert testimony, 3) the convictions as against the manifest
weight of the evidence, and 4) the imposition of maximum, consecutive sentences.
A.
{¶10} Mr. Thompson’s first assignment of error challenges the denial of his motion
to suppress the plastic baggie containing a white substance that became visible as he exited
the vehicle. Our review of a motion to suppress “presents a mixed question of law and fact.
We must accept the trial court’s findings of fact as true if competent, credible evidence
supports them. But we must independently determine whether the facts satisfy the
applicable legal standard.” State v. Taylor, 174 Ohio App.3d 477, 2007-Ohio-7066, 882
N.E.2d 945, ¶ 11 (1st Dist.). However, we consider “whether the facts satisfy the applicable
legal standard” de novo. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} In general, “warrantless searches are per se unreasonable.” State v. Bacher,
170 Ohio App.3d 457, 2007-Ohio-727, 867 N.E.2d 864, ¶ 8 (1st Dist.). See State v. Ward,
2017-Ohio-8141, 98 N.E.3d 1257, ¶ 13 (1st Dist.). But myriad exceptions to the warrant
requirement have evolved over the years, and in this case the parties debate whether the
plain view exception justified the warrantless search and seizure of the plastic baggie.
1.
{¶12} When the United States Supreme Court first articulated the plain view
exception in Coolidge v. New Hampshire, it prescribed “a three-part analysis. First, the
initial intrusion that brought the police into a position to view the object must have been
legitimate. Second, the police must have inadvertently discovered the object. Third, the
incriminating nature of the object must have been immediately apparent.” State v.
Halczyszak, 25 Ohio St.3d 301, 303, 496 N.E.2d 925 (1986), citing Coolidge v. New
Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Ohio adopted this three-
part analysis in State v. Williams, 55 Ohio St.2d 82, 84, 377 N.E.2d 1013 (1978).
{¶13} By 1990, however, the United States Supreme Court refined the Coolidge
test—specifically regarding the inadvertence requirement. Horton v. California, 496 U.S.
128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). Emphasizing that the Coolidge inadvertence
requirement commanded only a plurality of the justices, Horton held that “even though
inadvertence is a characteristic of most legitimate ‘plain-view’ seizures, it is not a necessary
condition.” Id. at 130, 136.
{¶14} Although one does not have to look too far to find Ohio cases continuing to
cite Coolidge, we clarify that, pursuant to Horton, the Fourth Amendment does not impose
an inadvertence requirement in the plain view analysis under the United States
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OHIO FIRST DISTRICT COURT OF APPEALS
Constitution.1 We therefore reject Mr. Thompson’s argument that, in this case, the plain
view exception under the United States Constitution is not met because the discovery of the
contraband was not inadvertent.
{¶15} Given that federal law does not require inadvertence and that Mr. Thompson
did not timely raise arguments under the Ohio Constitution, we are left with a two-prong
plain view analysis here under Horton. The warrantless search of Mr. Thompson satisfies
the plain view exception if: 1) the initial intrusion bringing the officer into a position to view
the object was legitimate, and 2) the incriminating nature of the object was immediately
apparent. Mr. Thompson does not contest the immediately incriminating nature of the
plastic baggie containing a white substance, which confines our review to the legitimacy of
the initial intrusion bringing the officer into a position to view the object. For the intrusion
to be legitimate in this case, the police must have 1) lawfully extended the initial traffic stop,
and 2) lawfully ordered Mr. Thompson out of his vehicle.
2.
{¶16} The parties agree that Officer Smith’s initial traffic stop of Mr. Thompson’s
vehicle was justified, and that Officer Smith could permissibly retain him and the driver for
as long as necessary to prepare the citation. But Mr. Thompson protests that Officer Smith
unlawfully extended the traffic stop beyond that limited time window. See Illinois v.
Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842. (“A seizure that is justified
solely by the interest in issuing a warning ticket to the driver can become unlawful if it is
prolonged beyond the time reasonably required to complete that mission.”). In other words,
1 In his reply brief, Mr. Thompson makes a passing argument regarding the Ohio Constitution. It is too
late in the day to advance that argument on reply, and thus we have no occasion to explore any potential
distinctions between the inquiry under the Ohio and federal Constitutions. State v. Spaulding, 151 Ohio
St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 179, quoting State v. Quarterman, 140 Ohio St.3d 464,
2014-Ohio-4034, 19 N.E.3d 900, ¶ 18 (“ ‘Appellate courts generally will not consider a new issue
presented for the first time in a reply brief.’ ”).
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OHIO FIRST DISTRICT COURT OF APPEALS
an officer cannot orchestrate a four-corners offense on the hopes that reasonable suspicion
or probable cause will eventually emerge.
{¶17} In general, to determine the reasonableness of the extension of a traffic stop,
“our inquiry is a dual one—[we ask] whether the officer’s action was justified at its
inception, and whether it was reasonably related in scope to the circumstances which
justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968). See State v. Bobo, 37 Ohio St.3d 177, 178, 524 N.E.2d 489 (1988).
If a traffic stop is extended past the time reasonably required to prepare the citation, “the
question then becomes whether the officer had a reasonable, articulable suspicion that the
vehicle contained drugs or that the occupant was engaged in a drug-related activity at that
time.” Ohio v. Skaggs, 3d Dist. Crawford No. 3-20-13, 2021-Ohio-2803, ¶ 17, citing State v.
Lawler, 2020-Ohio-849, 152 N.E.3d 962, ¶ 36 (3d Dist.) (“It is well established that if a law
enforcement officer has a reasonable, articulable suspicion that a vehicle contains drugs or
that the vehicle’s occupants are engaged in drug-related activity, the officer may detain the
vehicle and its occupants beyond the time reasonably necessary to complete the traffic-
related investigation in order to allow a drug-detection dog to be brought to the scene.”).
Since the parties agree that the officer’s action was justified at its inception, and the state
acknowledges that the traffic stop extended beyond its initial purpose, the only question is
whether “additional facts [were] encountered that [gave] rise to a reasonable, articulable
suspicion of criminal activity beyond that which prompted the initial stop.” State v.
Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 15.
{¶18} The state points to four factors supporting a reasonable, articulable suspicion
justifying the extension of the stop: 1) Mr. Thompson’s “furtive movements” toward the
center console as Officer Smith approached the car (consistent with efforts to conceal
contraband or possibly a weapon); 2) Mr. Thompson’s alleged chattiness during the stop,
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OHIO FIRST DISTRICT COURT OF APPEALS
contrasted with the silence and apparent nervousness of the driver; 3) Mr. Thompson’s
tendency to lean forward and over the center console area when speaking with Officer
Smith; and 4) the location of the stop in a high-crime area known for drug trafficking.
{¶19} Mr. Thompson contests Officer Smith’s account of “furtive movements,”
insisting that the body camera footage demonstrates that the officer could not have seen
into the car as he approached. He further points out that many people are nervous when
interacting with police officers, and that silence or nervous discourse are both perfectly
reasonable responses to this anxiety. Finally, he asserts that presence in a high crime area is
simply not enough to justify the continued detention.
{¶20} Mr. Thomson is correct that “simply being in a ‘high crime’ area is ‘not
sufficient to justify an investigative stop. To hold otherwise would result in the wholesale
loss of the personal liberty of those with the misfortune of living in high crime areas.’ ”
State v. Ward, 2017-Ohio-8141, 98 N.E.3d 1257, ¶ 19 (1st Dist.), quoting State v. Carter, 69
Ohio St.3d 57, 65, 630 N.E.2d 355 (1994). State v. Ferrante, 196 Ohio App.3d 113, 2011-
Ohio-4870, 962 N.E.2d 383, ¶ 26 (2d Dist.) (“ ‘[A]cts that are essentially neutral or
ambiguous,’ ” like nervous chatting or silence, “ ‘do not become specifically criminal in
character because they occur in a high crime area.’ ”), quoting State v. Maldonado, 2d Dist.
Montgomery No. 13530, 1993 WL 402772, *4 (Sept. 24, 1993). And “[f]urtive movements
alone are not sufficient to justify the search of an automobile without a warrant.” State v.
Kessler, 53 Ohio St.2d 204, 208, 373 N.E.2d 1252 (1978).
{¶21} However, each of the factors that contributed to Officer Smith’s suspicions are
recognized as legitimate considerations that—when combined—can justify a reasonable
suspicion conclusion. See Bobo, 37 Ohio St.3d at 179, 524 N.E.2d 489 (“ ‘The reputation of
an area for criminal activity is an articulable fact upon which a police officer may
legitimately rely in determining whether an investigative stop is warranted.’ ”), quoting
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OHIO FIRST DISTRICT COURT OF APPEALS
United States v. Magda, 547 F.2d 756, 758 (2d Cir.1976); Batchili, 113 Ohio St.3d 403,
2007-Ohio-2204, 865 N.E.2d 1282, at ¶ 19 (“nervous interaction” and “tinted windows,”
along with other factors, supported reasonable suspicion). See also United States v. Arvizu,
534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (“A determination that reasonable
suspicion exists * * * need not rule out the possibility of innocent conduct.”). And Ohio
courts have recognized, under analogous circumstances, the permissible extension of a
traffic stop upon a consideration of multiple factors generating reasonable suspicion. See
State v. Howard, 12th Dist. Preble Nos. CA2006–02–002 and CA2006–02–003, 2006-
Ohio-5656, ¶ 23-26 (during 14 minute episode, trooper “encountered additional facts which
gave him a reasonable, articulable suspicion that * * * [defendants] were engaged in
criminal behavior,” including inconsistent or illogical statements by both passengers and
the female passenger’s sudden (and in the officer’s view, disingenuous) complaint of
menstrual cramps).
{¶22} The body camera footage also supports the state’s argument. Although Mr.
Thompson depicts the windows of the car as too dark for Officer Smith to witness any
reaching toward the center console as he approached, the passenger window was down,
enabling Officer Smith to see inside (both directly and through the side mirror). And this
footage aligns with the officer’s testimony, even though it does not disclose the precise
nature of the furtive movements.
{¶23} Once we combine these furtive movements with Mr. Thompson’s nervous
behavior, movements about the center console, and presence in a high drug trafficking area,
we believe that sufficient evidence existed to support a reasonable, articulable suspicion of
drug activity. Although “none of the individual factors taken alone would provide
reasonable, articulable suspicion for delaying the traffic stop,” “when taken as a whole, they
could be found to provide a reasonable, articulable suspicion.” Skaggs, 3d Dist. Crawford
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OHIO FIRST DISTRICT COURT OF APPEALS
No. 3-20-13, 2021-Ohio-2803, at ¶ 22. In light of the trial court’s ruling and the record at
hand, we find that the extension of the initial traffic stop did not violate Mr. Thompson’s
federal constitutional rights.
3.
{¶24} Next, Mr. Thompson argues that even if the officer could legitimately extend
the stop, he could not order Mr. Thompson out of the vehicle. If ordering Mr. Thompson
out of the vehicle represented an unreasonable search or seizure, then the immediate result
of the order—the contraband that emerged in plain view—would be excluded as “fruit of the
poisonous tree.” See State v. Warren, 129 Ohio App.3d 598, 606, 718 N.E.2d 936 (1st
Dist.1998). Alternatively, Mr. Thompson argues that even if the officer could lawfully take
that step, any contraband revealed as Mr. Thompson exited the vehicle was not in plain
view.
{¶25} There is little question that if Officer Smith had ordered Mr. Thompson out of
the vehicle immediately upon making the traffic stop, this would not raise constitutional
alarm. In State v. Evans, the Ohio Supreme Court followed the United States Supreme
Court’s decision in Pennsylvania v. Mimms to hold that “a police officer may order a
motorist to get out of a car, which has been properly stopped for a traffic violation, even
without suspicion of criminal activity.” State v. Evans, 67 Ohio St.3d 405, 407, 618 N.E.2d
162 (1993), citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331(1977). See State v. Leonard, 1st Dist. Hamilton No. C-060595, 2007-Ohio-3312, ¶ 16
(where police officer had lawfully stopped a driver for a window-tint violation, he could
order the driver to get out of his van).
{¶26} Complicating this case is the fact that the initial purpose of the stop—to issue
a citation for a stop sign violation and driving under suspension—was already accomplished
when the officer ordered Mr. Thompson out of his vehicle (i.e., a Mimms order). Mr.
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OHIO FIRST DISTRICT COURT OF APPEALS
Thompson maintains that, under these circumstances, and because the Mimms decision
was grounded in officer safety, a threat to officer safety is necessary to support a Mimms
order.
{¶27} On the contrary, the Ohio Supreme Court has held that “Mimms merely
dispenses with the requirement that the police officer possess reasonable suspicion of
criminal activity before the officer may order the driver out of an already lawfully stopped
vehicle.” Evans at 408. So long as a motor vehicle is “already lawfully stopped,” a police
officer may make a Mimms order without reasonable suspicion, a threat to officer safety, or
any other prerequisite. Id. (“Unlike an investigatory stop, * * * a Mimms order does not
have to be justified by any constitutional quantum of suspicion.”), citing Terry, 392 U.S. 1,
21, 88 S.Ct. 1868, 20 L.Ed.2d 889. This is because where “police have already lawfully
decided that the driver shall be briefly detained; the only question is whether he shall spend
that period sitting in the driver’s seat of his car or standing alongside it.” Evans at 407.
Compare id. at 408, quoting Terry at 24 (“[A] protective search of the detainee’s person for
concealed weapons is justified only when the officer has reasonably concluded that ‘the
individual whose suspicious behavior he is investigating at close range is armed and
presently dangerous to the officer or to others * * * .”). Because a Mimms order is a
“minimal and insignificant * * * intrusion,” unlike a pat-down search or investigatory stop, if
a motor vehicle has been lawfully stopped, an officer needs no additional justification to
order the individual out of the vehicle. Evans at 408. Since we have already decided that
Mr. Thompson’s vehicle was lawfully stopped, and the stop was lawfully extended because
of reasonable suspicion of drug activity, the officer could make a Mimms order without
additional justification.
{¶28} Mr. Thompson also contends, in the alternative, that any contraband revealed
as he exited his vehicle could not be seized under the plain view exception. The facts of this
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OHIO FIRST DISTRICT COURT OF APPEALS
case bear similarities to State v. Jackson, 1st Dist. Hamilton No. C-190676, 2021-Ohio-517,
which we recently decided. In that case, officers opened the defendant’s driver’s side door
and ordered him out. Id. at ¶ 6. Instead of closing the door after the driver exited the car,
the officer shone a flashlight inside the car, revealing a marijuana cigarette resting on the
floor below the driver’s seat. Id. at ¶ 7. We rejected the driver’s claim that “because the
police ordered him out of the car and the police officers left the car door open, the
marijuana cigarette was not in plain view,” labeling it “a distinction without a difference.”
Id. at ¶ 17.
{¶29} The Ohio Supreme Court subsequently accepted Jackson for review on the
following two propositions of law: 1) an officer’s act of opening a driver’s door and ordering
the driver to step outside the vehicle constitutes a search under the Fourth Amendment and
Article I, Section 14 of the Ohio Constitution, and 2) after a driver is asked to step out of the
vehicle, the responding officer must have an independent justification to search the interior
of the vehicle in order for an item to be properly observed in plain view. Needless to say, the
Supreme Court’s forthcoming decision certainly could impact our present analysis. But
under our current precedent, Mr. Thompson’s argument fails.
{¶30} We find that Mr. Thompson was lawfully ordered out of his vehicle and that
any contraband revealed as he exited his vehicle was in plain view. We therefore overrule
Mr. Thompson’s first assignment of error in full.
B.
{¶31} Next, Mr. Thompson argues that the trial court committed evidentiary errors
that deprived him of his constitutional rights. The admission of evidence sits “within the
broad discretion of the trial court and subject to review on an abuse-of-discretion standard.”
State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19. We will find
that a trial court abused its discretion if it “act[ed] unreasonably, arbitrarily, or
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OHIO FIRST DISTRICT COURT OF APPEALS
unconscionably in determining the evidentiary issue at hand.” State v. O’Connell, 2020-
Ohio-1369, 153 N.E.3d 771, ¶ 14 (1st Dist.). However, “[w]e will not disturb a trial court's
ruling on evidentiary issues on appeal absent an abuse of discretion and proof of material
prejudice.” State v. Lavender, 2019-Ohio-5352, 141 N.E.2d 1000, ¶ 9 (1st Dist.).
1.
{¶32} Mr. Thomas challenges the admission of the marijuana seized during the stop
under Evid.R. 404(B) and R.C. 2945.59, which “preclude admission of other acts evidence
to prove a character trait in order to demonstrate conduct in conformity with that trait.”
State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 16, citing State
v. Lowe, 69 Ohio St.3d 527, 530, 634 N.E.2d 616 (1994), and State v. Hector, 19 Ohio St.2d
167, 174, 249 N.E.2d 912 (1969). Noting that he was not charged with any marijuana-
related offenses, Mr. Thompson insists that the state admitted the raw marijuana solely to
paint a portrait of him as a prolific drug dealer.
{¶33} To be sure, “[e]vidence of other acts may not be used to prove by inference
that the accused acted in conformity with those other acts or that he has a propensity to act
in that way.” State v. Worley, Slip Opinion No. 2021-Ohio-2207, ¶ 118, citing Evid.R.
404(B). We have recently explained that “ ‘Evid.R. 404(B) exists to guard against the
“propensity” inference—in other words, wielding past bad acts to prove action in conformity
therewith, which facilitates a conviction based on prior conduct rather than the evidence at
hand.’ ” State v. McDaniel, 2021-Ohio-724, 168 N.E.3d 910, ¶ 15 (1st Dist.), quoting State
v. O'Connell, 2020-Ohio-1369, 153 N.E.3d 771, ¶ 1 (1st Dist.). However, “Evid.R. 404(B)
does permit the admission of other acts for limited purposes ‘such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.’ ” McDaniel at ¶ 15, quoting Evid.R. 404(B).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶34} Although the state does not clearly articulate how the admission of this
evidence comports with Evid.R. 404(B), we need not decide whether Evid.R. 404(B) and
R.C. 2945.59 preclude admission of the marijuana. Even if the admission of the state’s
marijuana exhibits constituted error, we could only reverse the conviction if we found that
the error was not harmless error. O’Connell at ¶ 31. See Crim.R. 52(A) (“Any error, defect,
irregularity, or variance which does not affect substantial rights shall be disregarded.”).
{¶35} Mr. Thompson’s trial counsel stipulated to the admission of body camera
footage, which shows the police’s recovery of raw marijuana from inside the vehicle. The
marijuana is clearly visible in the video and the officers speak with each other about finding
it. The admission of the video (without any redactions or edits) ensured that the jury would
learn that Mr. Thompson possessed marijuana at the time of the stop. Since the jury
appreciated the presence of marijuana on the scene through properly-admitted evidence, we
find that the admission of the raw marijuana, if erroneous, would constitute harmless error
on this record. In other words, it did not tell the jury anything that it did not already know.
Moreover, the marijuana evidence posed a risk that the jury would convict Mr. Thompson
for the trafficking offenses, but of course it acquitted him on those charges.
2.
{¶36} Next, Mr. Thompson argues that the trial court erred by permitting Ms.
Sterling, the Hamilton County Crime Lab drug analyst who tested and identified the
substances recovered during Mr. Thompson’s arrest, to present expert testimony without
providing an adequate pretrial expert report. Under Crim.R. 16(K), expert witnesses “shall
prepare a written report summarizing the expert witness’s testimony, findings, analysis,
conclusions, or opinion, and shall include a summary of the expert’s qualifications.” The
Ohio Supreme Court dictates that “the plain language of Crim.R. 16(K) limits the trial
court’s discretion and provides its own specific remedy for a violation of the rule,” namely,
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OHIO FIRST DISTRICT COURT OF APPEALS
that the expert testimony is inadmissible. State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-
1061, 153 N.E.3d 44, ¶ 54-55; State v. Hall, 1st Dist. Hamilton Nos. C-170699 and C-170700,
2019-Ohio-2985, ¶ 11, appeal not allowed, 157 Ohio St.3d 1485, 2019-Ohio-4600, 134
N.E.3d 204 (“Providing the report in advance of trial affords the opposing party an
opportunity to secure its own expert in response, but even if it elects not to do that, it may
well consult with an expert on how to best cross-examine the other side’s expert.”).
{¶37} The key dispute in this case centers on whether the “Official Crime Laboratory
Report” provided by the state satisfied Crim.R. 16(K). The report, which is one page in
length, describes the four “specimens” tested by Ms. Sterling. It records the weight of each
specimen and lists the substances identified, which include a cocaine-methamphetamine
compound, cocaine, marijuana, and fentanyl.
{¶38} Mr. Thompson argues that this cursory summary of data should not be
considered a Crim.R. 16(K) report. We disagree. Ms. Sterling’s expert opinion was confined
to describing and identifying the four substances she tested; her report reflects all of this
information. This case is unlike Hall, where the state sought to use a detective’s
investigatory report to satisfy Crim.R. 16(K). Hall, 1st Dist. Hamilton Nos. C-170699 and C-
170700, 2019-Ohio-2985, at ¶ 12. We held that the investigatory report did not satisfy
Crim.R. 16(K) because “a world of difference exists between an investigatory report (‘I
observed this during my investigation’) and an expert report (‘I'm qualified as an expert and
here are my opinions’).” (Emphasis sic.) Id. Ms. Sterling’s report contains her opinions
classifying the recovered substances; it’s not just a recounting of her personal observations.
This case is also unlike Davis, where we found that an expert exceeded the scope of a
toxicology report by testifying on the effects of a drug on driving ability. State v. Davis, 1st
Dist. Hamilton No. C-190302, 2021-Ohio-1693, ¶ 74-75. Ms. Sterling’s testimony was
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OHIO FIRST DISTRICT COURT OF APPEALS
limited to classifying the substances she analyzed, not the effect these substances have on a
person who ingests them.
{¶39} Accordingly, we find that Ms. Sterling’s report complied with Crim.R. 16(K)
and overrule Mr. Thompson’s second assignment of error.
C.
{¶40} Turning to Mr. Thompson’s third assignment of error, Mr. Thompson asserts
that his convictions are against the manifest weight of evidence. When we review a
challenge to the manifest weight of the evidence, we sit as a “thirteenth juror.” State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We will reverse the trial court’s
decision to convict and grant a new trial only in “ ‘exceptional cases in which the evidence
weighs heavily against the conviction.’ ” State v. Sipple, 2021-Ohio-1319, 170 N.E.3d 1273¶ 7, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶41} Mr. Thompson attempts to portray the record of the state’s various drug
exhibits as contradictory, conjuring a dispute over whether the bags admitted into evidence
actually were recovered from the vehicle or his person. But scrutiny of the record does not
bear this out. The purported “mix-up” around state’s exhibit 4A never occurred. Officer
Smith consistently testified that exhibit 4A was retrieved from Mr. Thompson’s anal cavity,
while exhibit 5A was retrieved from the Elantra. Officer Smith did not know whether
exhibit 5A ultimately tested positive for cocaine or for cocaine-methamphetamine, because
he did not conduct the testing. Ms. Sterling later clarified that exhibit 5A was labeled
exhibit 2-1 on her lab report, which she identified as cocaine. Exhibit 4A corresponded with
exhibit 1-1 on the lab report, which Ms. Sterling identified as cocaine-methamphetamine.
{¶42} Mr. Thompson also complains that the methamphetamine in exhibit 4A must
have been introduced from Officer Smith’s sweep of the back of his cruiser, because he
believed that the powder from the sweep was tested at the laboratory. However, this is not
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OHIO FIRST DISTRICT COURT OF APPEALS
necessarily the case—and even if it is, it does not rebut the state’s assertion that Mr.
Thompson possessed methamphetamine. Ms. Sterling testified that exhibit 4A contained
two “specimens,” one smaller and one larger. She tested only the larger specimen, because
“if something is not going to get over the next weight threshold, we do not analyze further *
* * [t]he charges are based on weight.” It is possible that the sweepings from Officer Smith’s
car made it into exhibit 4A as the smaller substance (and thus were not tested), or that they
never made it to testing at all (and both specimens in exhibit 4A were recovered from Mr.
Thompson’s anal cavity). Either way, the substance tested was fairly attributable to Mr.
Thompson.
{¶43} Finally, Mr. Thompson asserts that “slipshod handling and repackaging of the
evidence” undercut the credibility of Ms. Sterling’s identification. But this argument is
unsupported by the record. Ms. Sterling testified that the drugs were re-packaged because
the packaging they arrived in was insecure or contaminated with bodily fluids. She
explained how the re-packaging occurred and how the state’s cross-referencing system
worked. The cross-referencing was a source of some confusion at trial, but not to an extent
that “weighs heavily against conviction.” See Sipple, 2021-Ohio-1319, 485 N.E.2d 717, at ¶ 7.
{¶44} We find that Mr. Thompson has failed to demonstrate that the evidence
weighs heavily against conviction. We, thus, overrule Mr. Thompson’s third assignment of
error.
D.
{¶45} For Mr. Thompson’s fourth assignment of error, he asserts that 1) the trial
court erred in failing to impose community control and 2) the trial’s imposition of
consecutive sentences was improper.
1.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶46} We review criminal sentences “under the standard set forth in R.C.
2953.08(G)(2).” State v. Conley, 1st Dist. Hamilton No. C-200144, 2021-Ohio-837, ¶ 20.
Pursuant to R.C. 2953.08(G)(2), we “may increase, reduce or otherwise modify a sentence,
or may vacate the sentence and remand the matter to the sentencing court for resentencing,
if the court clearly and convincingly finds that (1) the record does not support the
sentencing court’s findings under R.C. 2929.13(B) or other relevant statutes, or (2) if the
sentence is contrary to law.” Id., citing R.C. 2953.08(G)(2)(a).2 However, the Ohio
Supreme Court recently clarified that R.C. 2953.08(G)(2)(a) “does not provide a basis for an
appellate court to modify or vacate a sentence if it concludes that the record does not
support the sentence under R.C. 2929.11 and 2929.12.” State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729, 169 N.E.3d 649, ¶ 31. A sentence may be modified or vacated under R.C.
2953.08(G) only if it implicates one of the enumerated provisions in R.C. 2953.08(G)(2)(a)
or is “otherwise contrary to law.” Id.{¶47} Mr. Thompson’s argument that the court should have imposed community
control directly parallels the argument we recently rejected in Conley. In that case, the
defendant was convicted of aggravated possession of drugs and sentenced to the maximum
12 months of incarceration. Conley at ¶¶ 9, 21. He argued that “the trial court failed to
properly consider the statutory sentencing factors under R.C. 2929.11 and 2929.12.” Id. at
¶ 24. After concluding that “the record d[id] not demonstrate that the trial court failed to
consider the statutory factors,” we cited Jones for the proposition that “we are not permitted
to independently weigh the statutory sentencing factors in R.C. 2929.11 and 2929.12” and
upheld the maximum sentence. Id. at ¶ 25.
2 Mr. Thompson previously served a prison sentence, rendering R.C. 2929.13(B)’s presumption of
community control inapplicable here.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶48} Here, the trial court explicitly stated that it had considered “all the sentencing
factors under 2929 of the Ohio Revised Code.” It noted Mr. Thompson’s criminal record,
which included prior convictions for illegal possession of drugs, disorderly conduct,
possession of heroin, possession of cocaine, obstructing official business, weapons under
disability, criminal damaging, aggravated possession of drugs, and domestic violence. It
also found that Mr. Thompson “did not step up and take responsibility * * * [for having]
drugs on [him] in a body cavity.” Given these statements, the record does not demonstrate
a failure by the trial court to consider the statutory factors.
2.
{¶49} Mr. Thompson also contests the trial court’s imposition of consecutive
sentences. He concedes that the court made the required findings under R.C.
2929.14(C)(4), but argues that the record does not contain sufficient evidence to support
them. The record does not bear out Mr. Thompson’s consecutive sentences challenge. The
trial court made the required R.C. 2929.14(C)(4) findings and explained its decision,
stating: “The offender’s criminal history shows the need to protect the public. Quite frankly,
the record is not good.” We see nothing in the record to create any issues with the
imposition of consecutive sentences, and accordingly we overrule Mr. Thompson’s fourth
assignment of error.
III.
{¶50} For all of the foregoing reasons, we overrule all four of Mr. Thompson’s
assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
CROUSE, J., concurs.
BOCK, J., concurs separately.
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OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, J., concurring separately.
{¶51} I respectfully concur in Judge Bergeron’s opinion because I believe that Mr.
Thompson’s behavior—namely, his furtive movements, nervousness, and attempts to hide
the center console of the car—justified the extended stop. But I write separately to discuss
courts’ review of “high-crime areas”—one of the factors that the state cited to justify Mr.
Thompson’s extended stop.
{¶52} “[L]abeling an area ‘high-crime’ raises special concerns of racial, ethnic, and
socioeconomic profiling.” United States v. Caruthers, 458 F.3d 459, 467 (6th Cir.2006).
And unfortunately, research suggests that the “high crime” label is more likely invoked
when stopping young Black males. See Ben Grunwald & Jeffrey Fagan, The End of
Intuition-Based High-Crime Areas, 107 Calif.L.Rev. 345, 351 (2019).
{¶53} While any bias may be unconscious, it is nevertheless vital to take steps to
avoid discrimination and racial profiling. As such, courts should engage in meaningful
judicial review before accepting the state’s claim that an area is “high crime.” I believe that
courts should develop a framework to rigorously review the “high-crime area” designation.
Reasonable Suspicion
{¶54} To justify an investigative stop and temporary detention of a person under the
Fourth Amendment and Article I, Section 14 of the Ohio Constitution, an officer must point
to “specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that” stop. State v. Carter, 69 Ohio St.3d 57, 64, 630 N.E.2d 335(1994), quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A
seizure requires a “particularized and objective basis,” not general suspicions or inchoate
hunches. Ornales v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 18 L.Ed.2d 134 (1996).
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OHIO FIRST DISTRICT COURT OF APPEALS
High-Crime Areas
{¶55} This court and the Supreme Court of Ohio have recognized that an area’s
reputation “for criminal activity is an articulable fact upon which a police officer may
legitimately rely” to justify an investigative stop. State v. Ward, 2017-Ohio-8141, 98 N.E.3d
1257, ¶ 9 (1st Dist.), quoting State v. Bobo, 37 Ohio St.3d 177, 179, 524 N.E.2d 489 (1988).
While officers may rely on it as a factor, this court has cautioned against a person’s presence
in a “high-crime area” as a sole justification for an investigative stop to prevent subjecting
the community to wholesale deprivations of constitutional rights. Id., citing State v. Carter,
69 Ohio St.3d 57, 65, 630 N.E.2d 355 (1994).
{¶56} Despite decades of use in suppression hearings, the “high-crime area”
designation remains undefined and an increasingly malleable factor. At least one article
suggests that courts rarely question whether the label is grounded in any objective,
verifiable, or factual evidence. Andrew Guthrie Ferguson & Damien Bernache, The "High-
Crime Area" Question: Requiring Verifiable and Quantifiable Evidence for Fourth
Amendment Reasonable Suspicion Analysis, 57 Am.U.L.Rev. 1587, 1590 (2008). And while
police have used crime-mapping technology for years, few courts request the empirical data,
crime maps, or analyst reports substantiating the designation. Andrew Guthrie Ferguson,
Crime Mapping and the Fourth Amendment: Redrawing “High-Crime Areas,” 63 Hastings
L.J. 179, 198 (2011). Thus, while the evidence exists to support the “high-crime area”
designation, that evidence evades any judicial review.
1. High-Crime Areas and Particularity
{¶57} When reasonable suspicion is based on particularized evidence of a high-
crime area—for example, when a defendant is loitering outside of a house in which law
enforcement has verified that its occupants are engaged in drug trafficking—it enhances
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OHIO FIRST DISTRICT COURT OF APPEALS
judicial review of police decisions and narrows the category of “stop-eligible” people in a
“high crime” neighborhood. But when the “high crime” label is more imprecise—such as
when it is used to characterize neighborhoods or streets—entire sectors of an urban
community fall within that designation. Kristin Henning, The Reasonable Black Child:
Race, Adolescence, and the Fourth Amendment, 67 Am. U.L.Rev. 1513, 1559 (2018).
{¶58} Recently, Ohio’s Sixth Appellate District warned that, absent any
particularized evidence, “officers patrolling in high crime areas would be given carte blanche
to stop” any individual, which “would encourage the arbitrary exercise of law enforcement
power, and usher in something akin to ‘Fourth-Amendment-free zones’ in certain
locations.” State v. Mosby, 6th Dist. Lucas No. 20-1010, 2021-Ohio-2255, ¶ 34, fn. 1.
{¶59} Often, law-abiding people—as well as their family and friends—do not have
the financial ability to choose where to live. As such, many law-abiding people are forced to
live in neighborhoods with higher crime rates. Narrowing the scope of “high-crime areas” to
specific locations in which crimes recently have occurred will help to ensure that people are
not stopped based on where they live or visit.
2. High Crime Areas and Articulable Facts
{¶60} A general assertion of a “high-crime area” as a factor for suspecting unlawful
activity, without more, dispenses with the Fourth Amendment’s requirement that facts must
be articulable. Rather, there must be an “ ‘objective basis’ for suspecting legal wrongdoing.”
United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). And
reasonable suspicion demands a fact-intensive review. Ornales, 517 U.S. at 703, 116 S.Ct.
1657, 18 L.Ed.2d 134. In other words, there should be a nexus between the crimes that have
occurred at the specific location and the criminal behavior in which police suspect the
person is involved.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶61} But the lack of “consistent and reproducible guidance for courts or the police”
creates an inconsistent body of law where different people’s behavior in a high-crime area
leads to substantially different outcomes. Margaret Raymond, Down on the Corner, Out in
the Street: Considering the Character of the Neighborhood in Evaluating Reasonable
Suspicion, 60 Ohio St.L.J. 99, 121, 124 (1999). Courts should provide such guidance.
Reviewing “high-crime area” designation
{¶62} A few courts have provided some guidance for examining whether the state
properly relied upon the “high-crime area” designation to justify an investigative stop.
{¶63} The United States Court of Appeals for the Ninth Circuit instructed that
“citing an area as ‘high crime’ requires careful examination by the court, because such a
description, unless properly limited and factually based, can easily serve as a proxy for race
or ethnicity.” United States v. Montero–Camargo, 208 F.3d 1122, 1138 (9th Cir.2000). It
instructed district courts to carefully examine police testimony, conduct a fair and honest
evaluation of the evidence, and carefully ensure that the “high-crime area” designation “is
limited to specific, circumscribed locations where particular crimes occur with unusual
regularity.” Id.{¶64} The United States Court of Appeals for the First Circuit requires courts to
consider 1.) a nexus between the type of crime most prevalent or common in the area and
the type of crime suspected in the case, 2.) a limited geographic boundary of the area or
neighborhood evaluated, and 3.) a temporal proximity between the evidence of criminal
activity and the date of the search at issue. United States v. Wright, 485 F.3d 45, 54 (1st
Cir.2007). An Illinois court analyzed these same factors in determining whether a location
was a high-crime area. People v. Foreman, Ill.App. No. 5-15-0017, 2016 WL 769517, ¶ 13
(Feb. 26, 2016).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶65} Likewise, New York and Indiana courts have required a nexus between the
possibility that some crime might have occurred in the area and articulable facts leading the
police officer to believe that the defendant was involved in similar crime. People v.
McIntosh, 96 N.Y.2d 521, 527, 730 N.Y.S.2d 265, 755 N.E.2d 329 (2001) (“it has been
crucial whether a nexus to conduct existed, that is, whether the police were aware of or
observed conduct which provided a particularized reason to request information.”); Webb v.
State, 714 N.E.2d 787, 789 (Ind.App.1999) (state’s argument that the defendant’s presence
in a high-crime area supported a reasonable inference that he was engaged in criminal
activity “lack[ed] a nexus between the very real possibility that some crime might have been
occurring in the area and the necessary articulable facts from [the officer] leading him to
believe that [defendant] was involved in a crime.”).
{¶66} This court correctly holds that a “high-crime area” may be one of several
factors justifying an investigative stop. But I believe we must strengthen our review of the
“high-crime area” designation because, as stated by the Sixth Circuit, the “special concerns
of racial, ethnic, and socioeconomic profiling” arise when designating an area “high crime.”
Caruthers, 458 F.3d at 467.
Please note:
The court has recorded its entry on the date of the release of this opinion
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