State v. Gray

[Cite as State v. Gray, 2023-Ohio-338.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-02-006
: OPINION
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:
LARRY WAYNE GRAY, JR., :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 21CR38196
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.
The Helbling Law Firm, LLC, and John J. Helbling, for appellant.
HENDRICKSON, J.
{¶1} Appellant, Larry Wayne Gray, appeals from his judgment of conviction in the
Warren County Court of Common Pleas for trafficking marijuana, possessing marijuana,
and engaging in a pattern of criminal activity. For the reasons below, we affirm the decision
of the trial court.
{¶2} In the fall of 2020, the Warren County Drug Task Force ("WCDTF") began
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reviewing phone calls between an inmate, Joseph Lawter, and his girlfriend, Deeion
Sandlin. The two spoke about a drug supplier from California named Burgess Faris. Due
to the nature of these phone calls, the WCDTF began surveilling Sandlin.
{¶3} On October 23, 2020, the WCDTF observed Sandlin drive to a storage facility
in Beavercreek where she spoke with another individual, later identified to be Faris. Once
Sandlin and Faris were in the storage facility, the officers observed Faris load an object into
Sandlin's vehicle. Sandlin and Faris left the storage facility in separate vehicles and were
immediately stopped by the officers.1 After a canine alerted to drugs in Sandlin's vehicle,
officers searched her vehicle. Faris consented to a search of his vehicle.
{¶4} The search of Sandlin's vehicle yielded five pounds of marijuana in vacuum-
sealed, one-pound bags, stored in the tire compartment of her trunk, along with a black
storage tote with a yellow lid. The search of Faris' vehicle yielded roughly $14,700 in cash.
Thereafter, Sandlin consented to a search of her apartment, which contained two more
identical black totes with yellow lids. Faris consented to a search of the Beavercreek
storage unit, which contained another black tote with a yellow lid.
{¶5} During a subsequent interview, Faris informed the WCDTF that Gray was
involved in this drug-related activity. Faris told the officers that Gray had a warehouse in
Indiana containing 100 pounds of marijuana. Faris worked with the WCDTF to set up a
controlled buy for the 100 pounds of marijuana to take place the next day in the parking lot
of a Hooters restaurant in Mason, Ohio. Faris gave details to Detective Schweitzer of the
WCDTF regarding Gray's appearance, as well as the make, model, and license plate
number of Gray's vehicle. With this information, the WCDTF independently obtained Gray's
full identity, including his social security number and a photograph.
1. The officers stopped Sandlin and Faris based on their reasonable suspicion that Faris and Sandlin were
engaged in criminal activity.
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{¶6} During the morning of October 24, 2020, prior to the controlled buy, Faris
provided real-time updates to Detective Schweitzer about the transaction, informing him
that because Gray had sold 50 pounds of the marijuana, the controlled buy would only
involve the other 50 pounds, and would take place around 1:00 p.m. Around that time, Gray
pulled into the Hooters parking lot driving the anticipated vehicle. The officers were able to
positively identify Gray based on the vehicle description and the photograph. Gray parked
the car, exited the vehicle, and walked around to the back of the car and opened the trunk.
The officers immediately converged on Gray, who was handcuffed and detained in a
marked cruiser.
{¶7} Trooper Lee read Gray his Miranda rights and then had his canine partner,
Ronnie, perform a free-air sniff around the exterior of the vehicle. The canine positively
alerted to drugs inside the vehicle, which was thereafter searched. The search of Gray's
vehicle yielded roughly 50 pounds of marijuana and $15,000 in cash. The marijuana was
individually packaged in one-pound, vacuum-sealed bags. There were also two black totes
with yellow lids found inside the vehicle. The black totes were identical to the ones found
in Sandlin's vehicle and Faris' storage unit.
{¶8} Gray was transported a short distance to the Deerfield Township post of the
Warren County Sheriff's office where he was interviewed by Detective Schweitzer. Prior to
conducting the interview, Detective Schweitzer asked Gray if he wanted to be informed of
his Miranda rights again. Gray declined and indicated that he understood his rights by
saying, "Yeah, I know my rights." Gray did not ask for a lawyer and did not exercise his
right to remain silent. During this interview, Gray told the Detective that Faris was a drug
dealer with a large marijuana farm in California. Gray stated that he first became involved
with Faris by purchasing small amounts of marijuana, but then began assisting Faris with
transporting larger amounts.
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{¶9} Gray was charged with trafficking in marijuana, a first-degree felony (Count I);
possession of marijuana, a second-degree felony (Count II); possession of criminal tools, a
fifth-degree felony (Count III); and engaging in a pattern of corrupt activity, a first-degree
felony (Count IV). Gray was found guilty on all but Count III.
{¶10} As reflected in its sentencing entry, the trial court merged Counts I and II, and
sentenced Gray as follows. On Count I, the court imposed an indefinite sentence of 5 years
minimum to 7 ½ years maximum. On Count IV, the court imposed an indefinite sentence
of 3 years minimum to 4 ½ years maximum to run consecutively to Count I, resulting in a
total minimum sentence of 8 years to 9 ½ years maximum.
{¶11} Gray now appeals his convictions, raising three assignments of error for our
review.
{¶12} Assignment of Error No. 1:
{¶13} THE TRIAL COURT ERRED TO THE DEFENDANT-APPELLANT'S
PREJUDICE WHEN IT DENIED THE DEFENDANT-APPELLANT'S MOTION TO
SUPPRESS.
{¶14} In his first assignment of error, Gray asserts that the trial court erred when it
denied his motion to suppress evidence obtained from the search of his vehicle.
Specifically, he argues that the automobile exception does not justify the warrantless search
of his vehicle's trunk. He further argues that because police had time to obtain a warrant,
a warrantless search of the vehicle was unreasonable. Additionally, Gray argues that the
motion to suppress was improperly denied because his initial Miranda warnings were no
longer effective when he was interviewed by the police.
A. STANDARD OF REVIEW
{¶15} In reviewing a motion to suppress, we are presented with a mixed question of
law and fact. State v. Thomas, 12th Dist. Warren No. CA2012-10-096, 2013-Ohio-3411, ¶
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18. The trial court, sitting as the trier of fact, is in the best position to evaluate witness
credibility and resolve factual questions. State v. Cochran, 12th Dist. Preble No. CA2006-
10-023, 2007-Ohio-3353, ¶ 12. Provided the trial court's findings are supported by
competent, credible evidence, a reviewing court accepts the trial court's findings of fact. Id.However, an appellate court independently reviews the trial court's legal conclusions based
on those facts to determine, without deference to the trial court's decision, whether the facts
satisfy the appropriate legal standard. State v. Wilson, 12th Dist. Warren No. CA2006-01-
007, 2007-Ohio-2298, ¶ 12.
{¶16} Gray's merit brief focuses only on the officer's failure to obtain a warrant for
the search of the vehicle as well as the scope of that search, but Gray makes no argument
challenging the initial stop of his vehicle. It is not until his reply brief that Gray argues that
the police officer's initial stop of his vehicle was unlawful, asserting that the automobile
exception is prefaced with either "some type of traffic violation" or "exigent circumstances."
As we have previously recognized, "[a]n appellant may not use a reply brief to raise new
issues or assignments of error." State v. Renfro, 12th Dist. Butler No. CA2011-07-142,
2012-Ohio-2848, ¶ 28. Thus, our analysis is limited only to whether the officers had
probable cause to search Gray's vehicle.
{¶17} With this in mind, we note, however, that the record shows that Gray's vehicle
was already stopped when the officers approached. Thus, the Fourth Amendment was not
implicated simply by the officers approaching Gray in the parking lot. Several Ohio courts
hold that when a vehicle is already stopped, an officer can approach the vehicle for the
purposes of conducting a routine investigation. State v. Murphy, 5th Dist. Fairfield No.
2005-CA-46, 2005-Ohio-6336, ¶ 10; State v. Cookson, 4th Dist. Washington No. 00CA53,
2001 Ohio App. LEXIS 4384, *9 (Sep. 25, 2001) ("[I]f a vehicle is already stopped or parked,
a police approach and encounter with the stationary vehicle and its driver does not implicate
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the Fourth Amendment."); State v. Cominsky, 11th Dist. Lake No. 2001-L-023, 2001 Ohio
App. LEXIS 5658, *5-6 (Dec. 14, 2001) (holding that because appellant's vehicle was
already stopped, the Fourth Amendment was not implicated when the officer approached
him). As such, the Fourth Amendment was not implicated when the officers initially
approached Gray's already stopped and parked vehicle.
B. THE AUTOMOBILE EXCEPTION
{¶18} Gray asserts that while Ohio recognizes the automobile exception, the
exception is limited in certain situations to the search of only the passenger compartment
and not the trunk of the vehicle. Gray argues that the case sub judice is one of these
situations.
{¶19} Under the Fourth Amendment, searches and seizures conducted without prior
approval by a judge or a magistrate are per se unreasonable, "subject to only a few
specifically established and well-delineated exceptions." State v. Shaibi, 12th Dist. Warren
No. CA2020-07-038, 2021-Ohio-1352, ¶ 25, quoting State v. Kessler, 53 Ohio St.2d 204,
207 (1978). One of the well-established exceptions to the search warrant requirement is
the automobile exception, which allows the warrantless search of an automobile by police
officers who have probable cause to believe that the vehicle contains contraband. Carroll
v. United States, 267 U.S. 132, 158-159, 45 S.Ct. 280 (1925); State v. Vega, 154 Ohio St.3d
569, 572 (2018).
{¶20} With respect to automobiles, 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. Lynn, 12th Dist.
Butler Nos. CA2017-08-129 and CA2017-08-132, 2018-Ohio-3335, ¶ 16. The
determination of probable cause is "fact-dependent and turns on what the officers knew at
the time they conducted the search." State v. Raphael, 12th Dist. Warren Nos. CA2014-
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11-138 and CA2014-11-139, 2015-Ohio-3179, ¶ 23. Thus, law enforcement officers may
search a vehicle without a warrant if the officers have probable cause to believe that the
vehicle contains contraband.
{¶21} The United States Supreme Court, as well as Ohio courts, have determined
that "the exterior 'sniff' by a trained narcotics dog to detect the odor of drugs is not a search
within the meaning of the Fourth Amendment to the United States Constitution." State v.
Rusnak, 120 Ohio App. 3d 24, 28 (6th Dist. 1997); see also United States v. Place, 462
U.S. 696, 707, 103 S.Ct. 2637 (1983). Therefore, the police need not have even a
reasonable suspicion of drug-related activity prior to subjecting the exterior of an otherwise
lawfully stopped vehicle to a canine sniff. State v. Cochran, 12th Dist. Preble No. CA2006-
10-023, 2007-Ohio-3353, ¶ 25. However, if a trained narcotics dog alerts to the odor of
drugs from that lawfully stopped vehicle, "an officer has probable cause to search the
vehicle for contraband." Id. Thus, a vehicle lawfully stopped may be subjected to a canine
sniff even without the presence of a reasonable suspicion of drug-related activity; if the dog
positively alerts, then the officers have probable cause to search the vehicle. Id.; State v.
Morales, 5th Dist. Licking No. 2004 CA 68, 2005-Ohio-4714, ¶ 68.
{¶22} In terms of the permissible scope of a search pursuant to the automobile
exception, the Ohio Supreme Court has held that "[w]here police officers have probable
cause to search an entire vehicle, they may conduct a warrantless search of every part of
the vehicle and its contents, including all movable containers and packages, that may
logically conceal the object of the search." (Emphasis added.) State v. Welch, 18 Ohio
St.3d 88, 92 (1985); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157 (1982), paragraph
(c) of the syllabus. The Ohio Supreme Court, however, has limited the scope of a search
when the officer's probable cause is based solely on the odor of burnt marijuana, holding
that "[a] trunk and a passenger compartment of an automobile are subject to different
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standards of probable cause to conduct searches." State v. Farris,109 Ohio St.3d 519, 529
(2006); State v. Lynn, 12th Dist. Butler Nos. CA2017-08-129 and CA2017-08-132, 2018-
Ohio-3335, ¶ 18 ("This proposition is established by the common sense observation that an
odor of burning marijuana would not create an inference that burning marijuana was located
in a trunk"); State v. Curry, 1st Dist. Hamilton No. C-210274, 2022-Ohio-627, ¶ 21 ("To
search a trunk, an officer must observe more than just an odor of burnt marijuana in the
passenger compartment").
{¶23} Nevertheless, Ohio courts have drawn a distinction between an officer
smelling burnt marijuana and a trained narcotics dog alerting to the presence of narcotics.
In the latter scenario, a positive alert by a trained drug sniffing dog is sufficient to establish
probable cause to search the trunk. State v. Ross, 9th Dist. Medina No. 15CA0021-M,
2016-Ohio-7082, ¶ 15-16 (noting that the Ohio Supreme Court, in reaching its ultimate
decision in Farris, relied on the Tenth Circuit's decision in United States v. Nielsen, 9 F.3d
1487, 1491 [10th Cir. 1993], where the Tenth Circuit stated that "[i]f this were a case of an
alert by a trained drug sniffing dog with a good record, we would not require corroboration
to establish probable cause" [to search the trunk]); see also State v. Waldroup, 100 Ohio
App. 3d 508, 514 (12th Dist. 1995) ("When the dog indicated that drugs were present in the
trunk of appellant's vehicle, the troopers had probable cause to search the trunk and the
container they found in the trunk").
{¶24} Trooper Brett Lee of the WCDTF testified that after Gray had been detained,
he and his canine partner, Ronnie, approached Gray's vehicle to perform a free-air sniff of
the outside of the vehicle.2 Prior to performing the free-air sniff, the car doors and trunk
2. The trial court heard testimony regarding Ronnie's level of training and no objections were raised at that
time, nor does Gray raise any objections to Ronnie's qualifications or skills in his brief.
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were closed.3 Ronnie alerted to the driver's side of the vehicle by "bracketing, deep
breathing and he indicated near the driver's side rear well and the rear driver's side door
seam, by sitting down and staring into the vehicle." Trooper Lee stated that Ronnie's
behavior gave a "positive indication on a narcotic inside the vehicle." This positive alert
from Ronnie gave the officers probable cause to search Gray's vehicle.
{¶25} This is not a case where an officer smelled burnt marijuana and then searched
the entirety of the vehicle. Rather, the canine, and not the officer, detected the scent of
illegal narcotics. As explained above, if a trained narcotics dog "alerts to the odor of drugs
from a lawfully detained vehicle, an officer has probable cause to search the vehicle for
contraband." State v. Wilson, 12th Dist. Butler No. CA2019-08-141, 2020-Ohio-3227, ¶ 19.
In this case, the contraband was 50 pounds of marijuana. Thus, the officers had probable
cause to search any part of the vehicle that may logically contain this large amount of
marijuana, including the trunk of the vehicle. As such, we find no error in the trial court's
denial of Gray's motion to suppress based on the scope of the search.
C. TIME TO OBTAIN A WARRANT
{¶26} Gray also argues that the trial court erred in denying his motion to suppress
because the officers had enough time to obtain a search warrant prior to conducting a
search of his vehicle.
{¶27} Implicit in this argument is that the automobile exception requires a separate
exigent circumstance to conduct a warrantless search. However, the United States
Supreme Court has recognized that the automobile exception has no separate exigency
requirement. Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013 (1999) ("[U]nder our
established precedent, the 'automobile exception' has no separate exigency requirement").
3. Gray opened the trunk himself after exiting the vehicle, and other officers opened the doors of the vehicle
to ensure there were no other individuals inside the vehicle.
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This is because the "mobility of automobiles creates the exigent circumstance and is the
traditional justification for this exception to the Fourth Amendment's warrant requirement."
State v. Fritz, 12th Dist. Clermont Nos. CA2019-12-094 and CA2019-12-095, 2020-Ohio-
5231, ¶ 32. "If a car is readily mobile and probable cause exists to believe it contains
contraband, the Fourth Amendment thus permits police to search the vehicle without more."
(Emphasis added.) State v. Ivery, 11th Dist. Lake No. 2011-L-081, 2012-Ohio-1270, ¶ 23;
Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485 (1996). It is of no consequence
that Gray was outside of the car near the trunk when police approached and thereafter
detained him during the search of the vehicle. A vehicle's "inherent mobility—not the
probability that it might actually be set in motion—is the foundation of the mobility rationale."
State v. Battle, 10th Dist. Franklin No. 10AP-1132, 2011-Ohio-666, ¶ 30.
{¶28} Gray further argues that because the officers obtained information regarding
Gray's identity by 9:00 a.m. on the day of the controlled buy, but the buy did not occur until
1:00 p.m. that day, this four-hour window gave the officers plenty of time to obtain a warrant.
However, as explained above, under the automobile exception, all that is required of law
enforcement to conduct a warrantless search of a readily mobile vehicle is probable cause.
{¶29} Here, the officers had probable cause to search Gray's vehicle based not only
on the canine's alert, but "on the events leading up to [the] stop or search." Bowling Green
v. Godwin, 110 Ohio St.3d 58, 62, 2006-Ohio-3563. Faris provided information to Detective
Schweitzer regarding Gray's physical appearance as well as the license plate number and
make, model, and color of Gray's car. Through this information, the officers were able to
independently verify Gray's identity, including his birth date, social security number, and a
photograph. Faris informed police officers that Gray had 100 pounds of marijuana stored
in a warehouse in Indiana, and he set up a controlled buy with the police for the purchase
of that marijuana. Faris also provided details and real-time updates of the drug transaction
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to law enforcement officers, informing them that the transaction would involve 50 pounds of
marijuana, as Gray had sold the other half. The events leading up to the search unfolded
in the precise way Faris described—Gray arrived in the vehicle Faris described, with the
license plate Faris provided, at the location and time that Faris provided.
{¶30} We agree with the trial court that these facts, taken together, in addition to the
free-air sniff, gave the officers probable cause to search Gray's vehicle, including the trunk.
The officers were informed by Faris that Gray was going to arrive with 50 pounds of
marijuana, and it was logical for the officers to infer that the trunk of the vehicle could contain
this large amount. Thus, Gray's argument that the officers had time to obtain a warrant,
and violated Gray's Fourth Amendment rights by not doing so, is without merit.
D. MIRANDA WARNINGS
{¶31} Gray also asserts that the trial court erred in denying his motion to suppress
because his initial Miranda warnings were rendered stale between the time he was initially
advised of his rights upon detention and when he was interviewed at the police station.
{¶32} A defendant who is subject to a custodial interrogation "must be advised of
his Miranda rights and make a knowing and intelligent waiver of those rights before
statements obtained during the interrogation will be admissible." State v. Treesh, 90 Ohio
St.3d 460, 470 (2001). However, it is "well-established that a suspect who receives
adequate Miranda warnings prior to a custodial interrogation need not be warned again
before each subsequent interrogation." State v. Rader, 12th Dist. Butler No. CA2010-11-
310, 2011-Ohio-5084, ¶ 8. That is, police are not required to re-administer Miranda
warnings when only a relatively short period of time has elapsed since the initial warnings.
Id.{¶33} In determining whether initial Miranda warnings remain effective in a
subsequent interrogation, the Ohio Supreme Court has found that the following factors are
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relevant: (1) the length of time between the initial warnings and the subsequent
interrogation; (2) whether the initial warnings and the subsequent interrogation were given
in the same or different locations; (3) whether the warnings and subsequent interrogation
were conducted by the same or different officers; (4) the extent to which the subsequent
statement in the interrogation differed from any previous statements; and (5) the apparent
intellectual and emotional state of the suspect. State v. Roberts, 32 Ohio St.3d 225, 232
(1987); State v. Renfro, 12th Dist. Butler No. CA2011-07-142, 2012-Ohio-2848, ¶ 19.
{¶34} Here, both Trooper Lee and Detective Schweitzer testified that Trooper Lee
provided Gray with Miranda warnings when Gray was detained in the Hooters parking lot.
This conversation was not memorialized, either through a recording or a written waiver.
After Gray's vehicle was searched, Gray was transported to the nearby Deerfield Township
post. Shortly after arriving there, Schweitzer conducted a formal interview, which was
recorded.
{¶35} During this formal interview, Schweitzer told Gray he was "advised of his
rights on the scene" and then asked Gray if he "understood" his rights as they were read or
if he wanted Schweitzer to "advise them again." Gray made it clear that he understood
those rights and did not have Schweitzer repeat them. Schweitzer also said to Gray, "You
understand we are different cops, but just because we are different cops, you still have the
same rights, right? Even though I am not the one who advised you of your rights, you still
have the same rights, does that make sense to you?" Gray responded with, "Yeah, I know
my rights. Yeah, I understand."
{¶36} Based upon this factual background, we conclude that Schweitzer was not
required to re-advise Gray of his rights prior to conducting an interview. The purpose of
examining the Roberts factors is to determine whether the initial warnings "became stale
and remote so as to create a substantial possibility that the defendant was unaware of his
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rights." State v. Pack, 2nd Dist. Montgomery No. 28459, 2020-Ohio-5210, ¶ 11. Ohio
courts have consistently held that anywhere from several to 24 hours between the initial
warnings and a subsequent interrogation is permissible when the offender remains in
continuous custody. State v. Grissom, 1st Dist. Hamilton No. C-100542, 2011-Ohio-1796,
¶ 14-15 (finding that three to four hours between the initial warnings and the interview did
not dilute the effectiveness of the initial warnings); State v. Brewer, 48 Ohio St.3d 50, 59-
60 (1990) (affirming the denial of defendant's motion to suppress when a statement was
made one day after defendant was advised of his Miranda rights by a different police
department); State v. Powell, 132 Ohio St.3d 233, 253 (2012) (finding that the Miranda
warnings were not stale where "[m]ore than 30 hours elapsed between the initial Miranda
warnings and [defendant's] second interview" and the defendant remained in continuous
custody).
{¶37} It is important to note that the Roberts factors present a question of degree;
simply because the factor exists does not give rise to an inherent violation. It is not clear
from the record how much time elapsed between Gray's initial warnings and the subsequent
interview. However, Detective Schweitzer testified that Gray was transported from the
Hooters parking lot to the Deerfield Township police station in about eight minutes.
Detective Schweitzer also testified that Gray sat in the interrogation room for roughly
another eight minutes before the interview began.4 Further, although the location of the
interview was different than the location of the initial warnings, the police station was mere
minutes from the location where Gray received his initial warnings. It is undisputed that the
officers conducting the interview were different from those who read Gray his rights, but
Gray remained in continuous custody during the interval between the initial warnings and
4. In his own brief, Gray does not provide specific details on the amount of elapsed time, and does not allege
that the length of time diluted the effectiveness of the initial warnings.
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the subsequent interview. In reviewing these facts, they do not raise any concern that Gray
was unaware of his rights when the interview was conducted.
{¶38} While we agree with the trial court that the officers' failure to "provide the
advisement of rights in a manner that preserves them for judicial review is poor practice,"
we also agree with the trial court that the recording of the second interview demonstrates
that Gray's waiver of his rights was "certain and unequivocable." Therefore, because the
Miranda warnings initially provided to Gray remained effective throughout the second
interview where he waived those rights, the trial court did not err by denying Gray's motion
to suppress. Accordingly, the first assignment of error is overruled.
{¶39} Assignment of Error No. 2:
{¶40} REPRESENTATION BY TRIAL COUNSEL WAS "INEFFECTIVE" UNDER
STRICKLAND V. WASHINGTON.
{¶41} In his second assignment of error, Gray asserts that he received ineffective
assistance of counsel because his trial counsel failed to subpoena a witness and failed to
object to the amount of marijuana shown to the jury.
A. STANDARD OF REVIEW
{¶42} The Sixth Amendment to the United States Constitution guarantees
individuals the right to effective counsel. Strickland v. Washington, 466 U.S. 668, 685-686,
104 S.Ct. 2052 (1984). Counsel is deemed ineffective where counsel's conduct undermines
the judicial process in such a way that the result of defendant's trial cannot be relied on has
having produced a just result. Id. at 686. To prevail on an ineffective assistance of counsel
claim, the defendant must make the two-prong showing outlined in Strickland by proving
that (1) counsel's performance fell below an objective standard of reasonableness, and (2)
but for counsel's errors, the outcome of the proceedings would have been different. State
v. Baker, 12th Dist. Clermont No. CA2005-11-103, 2006-Ohio-5507, ¶ 5.
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{¶43} In evaluating the first prong, we must give great deference to counsel's
performance and "indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance[.]" Id. at ¶ 6. With respect to the second prong,
the defendant must show that there is a reasonable probability, absent counsel's errors, the
outcome of the proceeding would have been different. State v. Schenck, 12th Dist. Preble
No. CA2021-02-003, 2022-Ohio-430, ¶ 30. "The prejudice inquiry thus focuses not only on
outcome determination, but also on 'whether the result of the proceeding was fundamentally
unfair or unreliable.'" Id., quoting Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838
(1993).
{¶44} Gray argues that he was prejudiced by his trial counsel for not calling Faris to
the stand to testify. Gray avers that, had Faris been given the opportunity to testify, Faris
would have provided information to support Gray's assertion that Gray agreed to purchase
legal hemp, and not marijuana, from Faris. Gray further argues that his trial counsel should
have objected to additional amounts of marijuana being shown to the jury that went beyond
what was found in Gray's vehicle. We will address each of these in turn.
B. FAILURE TO SUBPOENA A WITNESS
{¶45} While trial counsel should consult with their client in matters of important trial
decisions, Ohio law gives great latitude to defense counsel regarding trial strategy. State
v. Murphy, 12th Dist. Butler No. CA2009-05-0128, 2009-Ohio-6745, ¶ 24, citing State v.
Smith, 17 Ohio St.3d 98 (1985), fn. 1. This court has consistently held that "[t]he mere
failure to subpoena a witness for a trial is not a substantial violation of defense counsel's
essential duty absent a showing of prejudice." State v. Smith, 12th Dist. Fayette No.
CA20060-08-030, 2009-Ohio-197, ¶ 54. Further, the appellant bears the burden of showing
that the testimony of a witness not subpoenaed would have "significantly assisted the
defense and affected the outcome of the case." State v. Wells, 12th Dist. Warren No.
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CA2005-04-050, 2006-Ohio-874, ¶ 12.
{¶46} Gray asserts in his brief that he relied on Faris' representations that the
substances provided by Faris were legal hemp and not illegal marijuana. Gray argues that
Faris would have supported these assertions if given the opportunity to testify. In making
this argument, Gray offers mere speculation, which is "insufficient to find error on behalf of
trial counsel." Id. at ¶ 14. Aside from the speculative nature of Faris' testimony, there is no
reason to believe that the testimony would affect the outcome of the case. The state
presented evidence strongly indicating that Gray knew he was not dealing with a legal
substance.
{¶47} Among this evidence was Gray's custodial interview with Detective
Schweitzer. During the interview, Gray told Schweitzer that Faris "first wanted to send me
just a little personal weed and I dibbled and dabbled a little bit" and then "[Faris] came up
with the idea that he wanted to start shipping these containers to me with a bunch of pot in
them." Gray also told Schweitzer that, "according to [Faris], [Faris] has some sort of huge
marijuana farm out in California—that's what [Faris] does you know, he wheels and deals
marijuana." Several times, Gray mentions that Faris has people "all over" that Faris deals
with, and Gray described several encounters he had with Faris to assist him in unloading
"a bunch of weed." Gray does tell Schweitzer that some of what was located in his storage
facility was hemp, but when Schweitzer asked Gray, "Well how much weed is in there? I
don't care about no hemp," Gray responds, "About 20 pounds." Gray doesn't mention hemp
in the interview again.
{¶48} We do not find that counsel's decision to not subpoena Faris prejudiced Gray.
What Faris may have testified to is entirely speculative and Gray fails to demonstrate that
any potential testimony by Faris would have significantly assisted his defense and affected
the outcome of the case.
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C. FAILURE TO OBJECT TO THE PRESENTATION OF EVIDENCE
{¶49} Gray also argues that his defense counsel should have objected to the
presentation of the marijuana found in Sandlin's vehicle. He asserts that this evidence
prejudiced him in front of the jury because it was "contraband not attributable to his
conduct."
{¶50} Relevant to this assignment of error is Gray's charge for engaging in a pattern
of corrupt activity under R.C. 2923.32(A)(1). The statute mandates that no person who is
employed by or associated with any enterprise shall conduct or participate in, either directly
or indirectly, the affairs of the enterprise through a pattern of corrupt activity. R.C.
2923.32(A)(1). A "pattern of corrupt activity" requires "two or more incidents of corrupt
activity * * * that are related to the affairs of the same enterprise, are not isolated, and are
not so closely related to each other and connected in time and place that they constitute a
single event." R.C. 2923.31(E). "Corrupt activity" includes Gray's alleged acts of trafficking
in marijuana and possessing marijuana. R.C. 2923.30(I)(2)(c).
{¶51} Upon review, we find this assignment of error unpersuasive. Under Evid.R.
403(A), relevant evidence must be excluded "if its probative value is substantially
outweighed by the danger of unfair prejudice, or confusion of the issues, or of misleading
the jury." Evid.R. 403(A). To establish that Gray engaged in a pattern of corrupt activity,
"the state must show that the defendant was 'associated with' an 'enterprise.'" State v.
Sparks, 12th Dist. Warren Nos. CA2013-02-010 and CA2013-02-015, 2014-Ohio-1130, ¶
20. As the state is charged with proving each and every element of this offense, the state
presented evidence that Gray, Faris, and Sandlin were "associated-in-fact," meaning that
the group was a "continuing unit that function[ed] with a common purpose." Id.{¶52} The state's presentation of the marijuana found in Sandlin's vehicle was
probative of the charge of engaging in a pattern of corrupt activity. The presentation of this
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additional marijuana may have been prejudicial to Gray, but it's probative value far
outweighed any claim of prejudice, as it provided relevant evidence to the jury to allow them
to determine whether Gray engaged in a pattern of corrupt activity, or participated in an
isolated drug transaction unrelated to Sandlin or Faris. Therefore, trial counsel's objection
to the presentation of this evidence would have been futile. "An attorney is not ineffective
for failing to make futile requests[.]". State v. Brown, 12th Dist. Clermont No. CA2018-05-
027, 2018-Ohio-4939, ¶ 11; State v. Allen, 4th Dist. Ross No. 21CA3736, 2022-Ohio-1180,
¶ 36 ("[T]he failure to make a futile objection does not constitute deficient performance for
an ineffective assistance of counsel claim"). Further, the making of objections is a strategic
decision which should not be second-guessed by the court. Strickland at 686.
{¶53} Accordingly, because we find trial counsel was not ineffective for failing to
subpoena Faris or failing to make a futile objection, this assignment of error is overruled.
{¶54} Assignment of Error No. 3:
{¶55} THE TRIAL COURT ERRED TO DEFENDANT-APPELLANT'S PREJUDICE
WHEN IT SENTENCED DEFENDANT ON COUNT I.
{¶56} In his third assignment of error, Gray argues that the court should have only
sentenced him to a minimum of five years on Count 1 without including the indefinite term.
A. STANDARD OF REVIEW
{¶57} We note that Gray did not object to the calculation of his sentence, thus he is
limited to a review for plain error pursuant to Crim.R. 52(B). To constitute plain error, there
must be (1) a deviation from a legal rule, (2) an error that is "fundamental, palpable, and
obvious on the record such that it should have been apparent to the court without an
objection", and (3) the error must have "affected the defendant's substantial right, that is,
the error must have affected the outcome of the trial." State v. Dawson, 12th Dist. Butler
No. CA2021-08-099, 2022-Ohio-2984, ¶ 11. The defendant bears the burden of
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demonstrating that a plain error affected his substantial right. State v. Perry, 101 Ohio St.3d
118, 120, 2004-Ohio-297. However, even if the defendant satisfies this burden, an
appellate court has discretion to disregard the error, and should correct it only to "prevent
a manifest miscarriage of justice." State v. Barnes, 94 Ohio St.3d 21, 27 (2002) ("Even if a
forfeited error satisfies these three prongs, however, Crim.R. 52[B] does not demand that
an appellate court correct it. Crim.R. 52[B] states only that a reviewing court 'may' notice
plain forfeited errors; a court is not obliged to correct them").
B. CALCULATION OF INDEFINITE SENTENCES
{¶58} Gray asserts that the trial court deviated from the mandates of R.C. 2929.144,
which provide instructions for calculating indefinite sentences for qualifying felonies.
Specifically, Gray asserts that the trial court erred in sentencing him to multiple indefinite
sentences.
{¶59} The minimum terms for qualifying felonies are calculated pursuant to division
(A)(1)(a) or (2)(a) of R.C. 2929.14. Division (A)(1)(a) provides that, for a felony of the first
degree, the prison term shall be an indefinite term with a stated minimum term between
three and 11 years, as selected by the court, and a maximum term that is determined
pursuant to R.C. 2929.144(B)(2). Similarly, division (2)(a) provides that, for a felony of the
second degree, the prison term shall be an indefinite term with a stated minimum term
between two and eight years, as selected by the court, and a maximum term that is
determined pursuant to R.C. 2929.144(B)(2). Thus, the court has discretion when imposing
the minimum terms of imprisonment. The maximum terms, however, are determined from
a mathematical formula pursuant to R.C. 2929.144.
{¶60} Applicable here is R.C. 2929.144(B)(2), which provides that when an offender,
like Gray, is sentenced to more than one felony, and at least one of the felonies is of the
first or second degree, and the court orders at least some of the prison terms to be served
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consecutively, the court calculates the range of the total sentence in two steps. First, to
calculate the low-end of this range (the minimum), the court must add all of the minimum
terms for qualifying felonies that are to be served consecutively with all of the definite terms
for non-qualifying felonies. Second, to calculate the high-end of the range (the maximum),
the court must add the minimum terms from the first step plus 50 percent of the longest
minimum term or definite term for the most serious felony being sentenced. R.C.
2929.144(B)(2).
{¶61} As reflected in the sentencing entry, the court merged Counts I and II, both of
which are felonies of the second degree. For Count I, the court imposed a minimum
sentence of 5 years and a maximum sentence of 7 ½ years. For Count IV, a felony of the
first degree, the court imposed a minimum sentence of 3 years and a maximum sentence
of 4 ½ years to be served consecutively to the sentence for Count I. The court then
calculated the mandatory minimum sentence to be 8 years, with a possible maximum
sentence of 9 ½ years.
{¶62} Gray asserts that the sentencing entry for Count I should only reflect the
minimum of 5 years without any indefinite terms. We agree with Gray, as well as with the
Eighth District, that "when one or more qualifying felonies are ordered to be served
consecutively, R.C. 2929.144(B)(2) only allows the court to impose 50 percent of the longest
minimum term for the most serious felony being sentenced and does not allow the court to
impose consecutive indefinite prison terms." State v. Bond, 8th Dist. Cuyahoga No.
110022, 2022-Ohio-1487, ¶ 13. Thus, the trial court could only impose an indefinite term
for the "the most serious felony" which, in this case, was Count IV and not Count I. 5
5. At the sentencing hearing, the court did not state an indefinite sentence for Count 1. In sentencing Gray,
the court stated, "So with regard to the Count 1, I am going to sentenced you to 5 years in prison. That is a
mandatory prison period. The 5 years for Count 2 will merge into Count 1, so that is only one sentence. With
regard to Count 4, I am going to impose a 3-year prison sentence. That is going to be consecutive to the time
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{¶63} However, because we review the error under a plain error standard, Gray
bears the burden of demonstrating that the trial court's error "affected his substantial right."
We find that Gray has failed to do so. In sentencing Gray, the trial court did not err in its
calculation of the maximum prison terms. The court properly added both minimum terms—
5 years for Count I and 3 years for Count IV—for a total minimum sentence of 8 years. The
court also properly added 50 percent of the longest minimum term for the most serious
felony. The most serious felony in Gray's case was Count IV, where the court imposed a
minimum sentence of 3 years. Fifty percent of 3 years is 1 ½ years, and when added to the
minimum sentence of 8 years, the maximum sentence totals 9 ½ years.
{¶64} The trial court's sentencing entry does not affect Gray's substantial rights. The
court properly calculated the minimum prison sentence to be 8 years, and thus there is no
risk that Gray will serve an improper sentence based on the error in the sentencing entry.
As we find that Gray's challenge does not rise to the level of plain error, we overrule Gray's
third assignment of error.
CONCLUSION
{¶65} The trial court did not err in denying Gray's motion to suppress. The law
enforcement officers in this case had probable cause to search Gray's vehicle, including
the trunk, based not only on the response of the canine's free-air sniff, but the facts and
circumstances known at the time of the search. Further, the motion was properly denied
as Gray was provided Miranda warnings at the time of the search and those warnings were
not rendered stale by a short passage of time and an inconsequential change in location.
In addition, Gray's counsel was not ineffective for failing to subpoena Faris and failing to
that you do for the Count 1, for a total of 8 years in prison. Now, you have been convicted of a sentence that
carries with it an indefinite sentence. That means you get both a minimum prison term and a maximum prison
term. In this case, I believe that because the most serious offense that I am sentencing you for is the F1, that
means that your indefinite sentence is one-half of that term, which is 1 ½. So, your sentence is going to be 8
years to 9 ½ years because 1 ½ is the felony of the first degree because that is the most serious felony."
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object to evidence that was relevant and probative to the state's case. While the trial court's
sentencing entry contains a minor error, that error does not rise to the level of plain error in
this case as it has no effect on Gray's minimum mandatory prison sentence.
{¶66} Judgment affirmed.
M. POWELL, P.J., and PIPER, J., concur.
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