State v. Blevins

[Cite as State v. Blevins, 2011-Ohio-3367.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, : Case No. 10CA3353
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
ALONZO BLEVINS, :
: RELEASED 04/18/11
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Gene Meadows, Portsmouth, Ohio, for appellant.
Mark E. Kuhn, SCIOTO COUNTY PROSECUTOR, and Julie Cooke Hutchinson,
SCIOTO COUNTY ASSISTANT PROSECUTOR, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Harsha, P.J.
{¶1} Alonzo Blevins was one of four back seat passengers in a vehicle stopped
by law enforcement for a cracked windshield. The driver, front seat passenger, and
Blevins had outstanding warrants. Upon their arrest, a search of the vehicle resulted in
the discovery of a trace amount of methamphetamine and numerous materials that
could be used to make the drug. Based upon this incident, a jury found Blevins guilty of
possession of chemicals for the manufacture of methamphetamine and possession of
methamphetamine.
{¶2} In this appeal, Blevins contends that his conviction for possession of
methamphetamine was against the manifest weight of the evidence. We agree. Law
enforcement only found a trace amount of the drug on a piece of a plastic baggie
located on the front passenger seat after that passenger exited the vehicle. No
Scioto App. No. 10CA3353 2
evidence supports a finding that Blevins would have been conscious of this object from
his position in the vehicle, let alone that it contained a trace amount of a controlled
substance. Moreover, aside from Blevins’ proximity to the plastic, there is no evidence
that he could exercise dominion or control over it, i.e. that he had constructive
possession of it. Accordingly, we reverse Blevins’ possession of methamphetamine
conviction.
{¶3} In addition, Blevins contends that his conviction for the possession of
chemicals charge was against the manifest weight of the evidence. However, the State
presented evidence from which the jury could conclude that Blevins had constructive
possession of ether (in starting fluid), lithium (in batteries), and pseudoephedrine, i.e.
chemicals that may be used to manufacture methamphetamine, with the intent to
manufacture the drug. And because the jury could reasonably return a guilty verdict
based on the State’s version of the events, we cannot say that the jury clearly lost its
way and created a manifest miscarriage of justice. Thus, we reject that argument.
{¶4} Next, Blevins contends that trial counsel rendered ineffective assistance
by failing to make a Crim.R. 29(A) motion for acquittal on the possession of chemicals
charge, i.e. counsel failed to challenge the sufficiency of the evidence supporting the
conviction. However, the failure to raise a sufficiency argument at trial does not waive
that argument on appeal. Moreover, in concluding that Blevins’ conviction for this
charge was not against the manifest weight of the evidence, we necessarily concluded
that sufficient evidence supported the conviction. Thus such a motion would have been
futile and Blevins cannot establish a deficient performance or prejudice.
{¶5} Finally, Blevins contends that the trial court erred by admitting unfairly
Scioto App. No. 10CA3353 3
prejudicial evidence. The court permitted an Ohio State Highway Patrol lieutenant to
testify that sometime in August 2009 (the month following the traffic stop) Blevins told
him that he was a “small time meth dealer user” while lodging a complaint about a
trooper’s behavior after a separate traffic stop. However, the court did not abuse its
discretion in concluding that the statement was probative of guilt as Blevins’ status as a
drug dealer and user supports the State’s theory that he was not merely an innocent
occupant of a vehicle laden with materials used to manufacture methamphetamine.
Moreover, we find that the probative value of this testimony was not substantially
outweighed by the danger of unfair prejudice. Therefore, we also reject this argument.
I. Facts
{¶6} The Scioto County grand jury indicted Blevins on: 1.) one count of
possession of chemicals for the manufacture of methamphetamine, in violation of R.C.
2925.041(A), a third-degree felony; and 2.) one count of possession of
methamphetamine, in violation of R.C. 2925.11(A) and (C)(1)(a), a fifth-degree felony.
After Blevins pleaded not guilty to the charges, the matter proceeded to a jury trial,
which produced the following evidence.
{¶7} On July 3, 2009 at approximately 9:00 p.m., Deputy David Fairchild and
Detective Matt Spencer with the Scioto County Sheriff’s Office and Trooper Nick Lewis
with the Ohio State Highway Patrol were patrolling U.S. 23 in Scioto County when they
observed a vehicle with a cracked windshield. Fairchild initiated a traffic stop, and
Spencer and Lewis assisted him. The vehicle contained six occupants. The driver,
Jason Craft, and the front seat passenger, Jillian Newman, had outstanding warrants for
their arrest. Craft’s father owned the vehicle but was not present. The following people
Scioto App. No. 10CA3353 4
were seated in the back seat from left (i.e. behind the driver’s seat) to right: Blevins,
Beth Vest, Anthony Blevins (“Anthony”), and Billy Stapleton. Blevins also had an
outstanding warrant out for his arrest. Law enforcement arrested Craft, Newman, and
Blevins based on the warrants.
{¶8} Law enforcement found the following items in the passenger compartment
of the vehicle: one can of Preston starting fluid, four cans of Johnson starting fluid,
crushed pseudoephedrine, uncrushed tablets containing pseudoephedrine, two four-
packs of lithium batteries, two rolls of black electrical tape, one siphon pump, three
copper fittings, and an empty box of CVS cold medicine (pseudoephedrine). They
found the uncrushed tablets between the driver’s seat and center console and the
crushed pseudoephedrine “very well hidden” stuffed under the center console. They
found the tape, batteries, and one can of Johnson starting fluid in a Walmart bag on the
floor behind the driver’s seat. In addition, they found the empty CVS box on the
“passenger rear floorboard” and “underneath some stuff.” The copper fittings were on
the floor behind the driver’s seat. The siphon pump was found in a Big Lots bag,
presumably in the back seat of the vehicle.
{¶9} Spencer and Detective Adam Giles of the Scioto County Sheriff’s Office
explained the role the items found in the vehicle play in the production of
methamphetamine. Giles testified that pseudoephedrine is a “precursor chemical”
found in common cold medicines, and it or ephedrine is needed to produce
methamphetamine. Giles also testified that a solvent, like starting fluid is added to the
crushed up cold pills to draw out the pseudoephedrine and lithium or sodium metal is
also added to the mixture later. Spencer testified that the ether in starting fluid is a key
Scioto App. No. 10CA3353 5
ingredient in the manufacturing process. In addition, Giles testified that a siphon pump
could be used in two steps of the manufacturing process – to either help extract the
pseudoephedrine or to create a gas generator needed later in the process. Spencer
testified that electrical tape is used to hold the siphon hose in place and that copper
fittings can be used to seal off anhydrous tanks used in the manufacturing process.
{¶10} A CVS receipt in the vehicle showed a purchase of a CVS brand
decongestant, i.e. a pseudoephedrine purchase, at 7:49 p.m. that day. CVS records
revealed that Stapleton made that purchase. And Spencer testified that through his
investigation, he learned that Anthony was with Stapleton at the time. Walmart records
revealed that Craft, Stapleton, and Newman purchased drugs containing
pseudoephedrine that day. Newman made her purchase at 7:54 p.m., Craft made his
purchase at 7:57 p.m., and Stapleton made his purchase at 8:10 p.m. A Walmart
receipt found in the vehicle revealed a cash purchase of various items at 8:15 p.m.,
including one can of starting fluid, batteries, two rolls of tape, and one container of tic
tacs. According to Spencer, Blevins and Vest (his girlfriend) were depicted on Walmart
surveillance footage of this transaction, and Vest appeared to pay for the items. Lisa
Payton, a Walmart Asset Protection Coordinator, testified that the Universal Product
Code for the starting fluid matched the code on the can of Preston starting fluid found in
the vehicle. Spencer also testified that the Big Lots receipt from the vehicle indicated
someone purchased a siphon pump at 8:47 p.m. To Spencer’s knowledge Blevins did
not make that purchase or go into Big Lots.
{¶11} Blevins had tic tacs and two syringes on his person when law enforcement
arrested him. One syringe was still in a package, but the other had been opened and
Scioto App. No. 10CA3353 6
loaded with a substance. The Sheriff’s Office did not test the substance. Instead, it
destroyed the syringes according to an office policy.
{¶12} Spencer and Lewis testified that when they instructed Newman to exit the
vehicle, she kept her legs together as she did so. Lewis testified that her actions made
him believe she was trying to conceal something between her legs, and after she stood,
he saw the corner of a clear plastic baggie on the seat, i.e. Newman had been sitting on
it. Lewis testified that people who possess drugs commonly put their stash into a
baggie, filter the drugs into one corner of the bag, cut that corner off, and twist the open
part of the corner to secure the drugs inside. He testified that this particular “corner
piece” contained white residue. Michelle Anderson, a forensic scientist for the Ohio
Bureau of Criminal Identification and Investigations identified the residue as a trace
amount of methamphetamine.
{¶13} Lieutenant Edward Crispen, the post commander at the Ohio State
Highway Patrol’s Portsmouth post testified that sometime in August 2009, Blevins came
to the post to complain about Lewis’ conduct during a different traffic stop. Blevins was
angry and complained that Lewis violated his constitutional rights on multiple occasions.
According to Crispen, Blevins felt he was “getting stopped more than he should have
been stopped.” In addition, Blevins told Crispen that he was “just a small time meth
dealer user,” and Lewis should focus on more serious criminals. Crispen advised
Blevins that what he was doing was still illegal. Blevins said, “I realize that but it[’]s still
small time stuff.”
{¶14} The jury found Blevins guilty on both counts of the indictment. After
sentencing, Blevins filed this appeal.
Scioto App. No. 10CA3353 7
II. Assignments of Error
{¶15} Blevins assigns three errors for our review:
The Defendant-Appellant was denied effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments of the United States
Constitution as a result of Trial Counsel’s failure to move for a Criminal
Rule 29 motion of acquittal at the close of the Plaintiff-Appellee’s case in
chief.
The trial court abused its discretion and erred to the prejudice of the
Defendant-Appellant by allowing prejudicial testimony in violation of
Evid.R. 403(A).
The verdict and conviction is against the manifest weight of the evidence
presented at trial.
For ease of analysis, we will address these assignments of error out of order.
III. Manifest Weight of the Evidence
{¶16} In his third assignment of error, Blevins contends that his convictions were
against the manifest weight of the evidence. “In determining whether a criminal
conviction is against the manifest weight of the evidence, an appellate court must
review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine whether, in resolving conflicts in the evidence, the
trier of fact clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed.” State v. Brown, Athens App. No. 09CA3, 2009-Ohio-
5390, at ¶24, citing State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541. A reviewing court “may not reverse a conviction when there is substantial
evidence upon which the trial court could reasonably conclude that all elements of the
offense have been proven beyond a reasonable doubt.” State v. Johnson (1991), 58
Ohio St. 3d 40, 42, 567 N.E.2d 266, citing State v. Eskridge (1988), 38 Ohio St. 3d 56,
526 N.E.2d 304, at paragraph two of the syllabus.
Scioto App. No. 10CA3353 8
{¶17} Even in acting as a thirteenth juror we must still remember that the weight
to be given evidence and the credibility to be afforded testimony are issues to be
determined by the trier of fact. State v. Frazier, 73 Ohio St. 3d 323, 339, 1995-Ohio-235,
652 N.E.2d 1000, citing State v. Grant, 67 Ohio St. 3d 465, 477, 1993-Ohio-171, 620
N.E.2d 50. The fact finder “is best able to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland (1984), 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (per curiam). Thus, we will only interfere if the fact finder
clearly lost its way and created a manifest miscarriage of justice. Moreover, “[t]o
reverse a judgment of a trial court on the weight of the evidence, when the judgment
results from a trial by jury, a unanimous concurrence of all three judges on the court of
appeals panel reviewing the case is required.” Thompkins, supra, at paragraph four of
the syllabus, construing and applying Section 3(B)(3), Article IV of the Ohio Constitution.
A. Possession of Drugs
{¶18} The jury found Blevins guilty of possession of drugs, i.e.
methamphetamine, in violation of R.C. 2925.11(A), which states: “No person shall
knowingly obtain, possess, or use a controlled substance.” Blevins contends that the
evidence does not support his conviction. We agree.
{¶19} Possession may be actual or constructive. “Actual possession exists
when the circumstances indicate that an individual has or had an item within his
immediate physical possession. Constructive possession exists when an individual is
able to exercise dominion or control of an item, even if the individual does not have the
item within his immediate physical possession.” State v. Fry, Jackson App. No.
Scioto App. No. 10CA3353 9
03CA26, 2004-Ohio-5747, at ¶39, citing State v. Hankerson (1982), 70 Ohio St. 2d 87,
434 N.E.2d 1362, at syllabus and State v. Wolery (1976), 46 Ohio St. 2d 316, 329, 348
N.E.2d 351. For constructive possession to exist, “[i]t must also be shown that the
person was conscious of the presence of the object.” Hankerson at 91. “Dominion and
control, as well as whether a person was conscious of the presence of an item of
contraband, may be established by circumstantial evidence.” State v. Matteson, Vinton
App. No. 06CA642, 2006-Ohio-6827, at ¶23, citing State v. Jenks (1991), 61 Ohio St. 3d
259, 272-273, 574 N.E.2d 492.
{¶20} A defendant’s mere proximity to contraband is in itself insufficient to
establish constructive possession, but proximity to contraband may constitute some
evidence of constructive possession. Fry at ¶40. Therefore, presence in the vicinity of
contraband, coupled with another factor or factors probative of dominion or control over
the contraband, may establish constructive possession. State v. Riggs (Sept. 13,
1999), Washington App. No. 98CA39, 1999 WL 727952, at *5. Moreover, two or more
persons may have joint constructive possession of the same object. Id. at *4.
{¶21} Although Blevins had a loaded syringe on his person at the time of his
arrest, the Sheriff’s Office destroyed the syringe without testing it, and none of the
State’s witnesses testified about any characteristics of the substance that could lead the
jury to conclude it constituted methamphetamine. The “corner piece” law enforcement
found on the front passenger seat contained the only controlled substance seized
during the traffic stop. However, Blevins did not have actual possession of the piece,
and the evidence does not support a finding that he had constructive possession of it.
The piece only had trace amounts of methamphetamine on it and was small enough
Scioto App. No. 10CA3353 10
that Newman made an effort to conceal it between her legs when she exited the vehicle.
Moreover, law enforcement did not see the piece on the seat until after Newman stood
up, i.e. she successfully concealed it from view until forced to exit the vehicle. No
evidence supports a finding that Blevins would have been conscious of the presence of
the corner piece from his position behind the driver, let alone that the piece contained
trace amounts of a controlled substance. Likewise, no evidence supports a finding that
Blevins had dominion or control over the piece aside from his proximity to it. And
because no evidence supports a finding that Blevins knowingly obtained, possessed, or
used a controlled substance, we find that his conviction for possession of
methamphetamine was against the manifest weight of the evidence. We reverse
Blevins’ conviction for possession of methamphetamine and remand so that the trial
court can discharge Blevins on this charge.
B. Possession of Chemicals for the Manufacture of Methamphetamine
{¶22} The jury also found Blevins guilty of possession of chemicals for the
manufacture of a controlled substance, i.e. methamphetamine, in violation of R.C.
2925.041(A), which states: “No person shall knowingly assemble or possess one or
more chemicals that may be used to manufacture a controlled substance in schedule I
or II with the intent to manufacture a controlled substance in schedule I or II in violation
of section 2925.04 of the Revised Code.” Methamphetamine is a Schedule II controlled
substance. R.C. 3719.41, Schedule II(C)(2).
{¶23} Blevins apparently concedes that the chemicals found in the vehicle –
pseudoephedrine, ether in the starting fluid, and lithium in the batteries – may be used
to manufacture methamphetamine. He focuses instead, on the argument that the State
Scioto App. No. 10CA3353 11
failed to put forth evidence that he possessed these chemicals or did so with the intent
to manufacture methamphetamine. We disagree.
{¶24} The State presented evidence from which a jury could conclude that
Blevins possessed chemicals used in the manufacture of methamphetamine with intent
to make the drug. Although he did not pay for the starting fluid and batteries, Blevins
was present when Vest paid for the items at Walmart, had actual possession of one
other item from this transaction during his arrest (tic tacs), and had the starting fluid and
batteries sitting on the floor by him in the backseat. Blevins also sat within reach of the
crushed and uncrushed pseudoephedrine in the vehicle and within reach of non-
chemical items that play a role in the manufacture of methamphetamine, such as the
electrical tape and copper fittings.
{¶25} The State’s evidence of the timeline of events suggests that Blevins
participated in a carefully orchestrated plan with the other occupants of the vehicle to
acquire these items to make methamphetamine and to avoid suspicion by dividing up
the purchases. 1 Between 7:49 p.m. and 8:10 p.m., three of the vehicle occupants
purchased medicine containing pseudoephedrine and a fourth occupant was present
during at least one of those purchases. Three of the four purchases were made at
Walmart between 7:54 p.m. and 8:10 p.m. Blevins and Vest went through the checkout
line at the same Walmart store at 8:15 p.m. to purchase the starting fluid, batteries, and
tape. The jury could infer that once the Walmart purchases (which occurred within
1
The State argues that Blevins is guilty of complicity to possession of methamphetamine and complicity
to possession of chemicals for the manufacture of methamphetamine even if he is not the principal
offender of those crimes. However, the jury was not instructed on the elements of complicity at trial, see
R.C. 2923.03, nor did the jury find Blevins guilty of complicity. Therefore, we do not address this
argument.
Scioto App. No. 10CA3353 12
minutes of each other) were finished at 8:15 p.m., the group of six converged at Craft’s
father’s vehicle, went to Big Lots so someone could make the 8:47 p.m. siphon pump
purchase, and was stopped minutes later by law enforcement.
{¶26} The evidence reasonably supports the conclusion that Blevins had
constructive possession of chemicals used in the manufacture of methamphetamine –
lithium (in the batteries), ether (in the starting fluid), and pseudoephedrine – and that he
intended to manufacture methamphetamine along with the other vehicle occupants.
The jury chose to believe the State’s version of events, and we will not substitute our
judgment for that of the jury under these circumstances. After reviewing the entire
record, we cannot say that the jury lost its way or created a manifest miscarriage of
justice when it found Blevins guilty of possession of chemicals for the manufacture of a
controlled substance.
IV. Ineffective Assistance of Counsel
{¶27} In his first assignment of error, Blevins contends that trial counsel
rendered ineffective assistance. To prevail on an ineffective assistance of counsel
claim, an appellant must show that: 1.) his counsel’s performance was deficient and, 2.)
the deficient performance prejudiced his defense so as to deprive him of a fair trial.
State v. Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, at ¶205,
citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674. To establish deficient performance, an appellant must show that trial counsel’s
performance fell below an objective level of reasonable representation. State v.
Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶95. To establish
prejudice, an appellant must show a reasonable probability exists that, but for the
Scioto App. No. 10CA3353 13
alleged errors, the result of the proceeding would have been different. Id. The
appellant has the burden of proof on the issue of counsel’s ineffectiveness because a
properly licensed attorney is presumed competent. State v. Gondor, 112 Ohio St. 3d
377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶62.
{¶28} Blevins contends that trial counsel rendered ineffective assistance by not
moving for a Crim.R. 29(A) motion for acquittal on the possession of chemicals for the
manufacture of methamphetamine charge.2 A Crim.R. 29(A) motion for acquittal tests
the sufficiency of the evidence presented at trial. State v. Umphries, Ross App. No.
02CA2662, 2003-Ohio-599, at ¶6, citing State v. Williams, 74 Ohio St. 3d 569, 576,
1996-Ohio-91, 660 N.E.2d 724 and State v. Miley (1996), 114 Ohio App. 3d 738, 742,
684 N.E.2d 102. The trial court must enter a judgment of acquittal when the state’s
evidence is insufficient as a matter of law to sustain a conviction. Crim.R. 29(A).
{¶29} However, the failure to raise a sufficiency argument at trial does not waive
that argument on appeal. State v. Cooper, 170 Ohio App. 3d 418, 2007-Ohio-1186, 867
N.E.2d 493, at ¶13. Moreover, “[w]hen an appellate court concludes that the weight of
the evidence supports a defendant’s conviction, this conclusion necessarily includes a
finding that sufficient evidence supports the conviction.” State v. Puckett, Ross App.
No. 10CA3153, 2010-Ohio-6597, at ¶34, citing State v. Pollitt, Scioto App. No.
08CA3263, 2010-Ohio-2556, at ¶14. “Thus, a determination that [a] conviction is
supported by the weight of the evidence will also be dispositive of the issue of
sufficiency.” Id., quoting State v. Lombardi, Summit App. No. 22435, 2005-Ohio-4942,
at ¶9, in turn, quoting State v. Roberts (Sept. 17, 1997), Lorain App. No. 96CA006462,
1997 WL 600669.
2
Blevins does not raise a similar claim for the possession of methamphetamine charge.
Scioto App. No. 10CA3353 14
{¶30} In resolving Blevins’ third assignment of error, we already determined that
his conviction for possession of chemicals for the manufacture of methamphetamine
was not against the manifest weight of the evidence. Therefore, a Crim.R. 29(A) motion
would have been futile. Because the law does not require counsel to take a futile act,
the failure to make the Crim.R. 29(A) motion was not deficient. We overrule Blevins’
first assignment of error.
V. Prejudicial Testimony
{¶31} In his second assignment of error, Blevins contends that the trial court
erred under Evid.R. 403(A) when it permitted Crispen to testify about a statement
Blevins allegedly made to him. Blevins complains that Crispen testified that he told
Crispen that he “cooked meth.” However, from our review of the transcript, Crispen
actually testified that Blevins stated that he was “a small time meth dealer user.”
Evid.R. 403(A) prohibits the introduction of relevant evidence if its “probative value is
substantially outweighed by the danger of unfair prejudice * * *.” Relevant evidence is
“evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be
without the evidence.” Evid.R. 401. “The admission or exclusion of relevant evidence
rests within the sound discretion of the trial court[.]” State v. Haines, 112 Ohio St. 3d
393, 2006-Ohio-6711, 860 N.E.2d 91, at ¶50. Absent an abuse of that discretion, an
appellate court will not disturb a trial court’s ruling on the admissibility of evidence.
State v. Martin (1985), 19 Ohio St. 3d 122, 129, 483 N.E.2d 1157 (per curiam). The
term “abuse of discretion” implies that the court’s attitude was unreasonable, arbitrary,
or unconscionable. State v. Adams (1980), 62 Ohio St. 2d 151, 157, 404 N.E.2d 144.
Scioto App. No. 10CA3353 15
{¶32} Blevins contends that the probative value of Crispen’s testimony was
substantially outweighed by the danger of unfair prejudice. However, “[o]nly in rare
cases are an accused’s own actions or language unfairly prejudicial.” State v. Lee,
Franklin App. No. 06AP226, 2007-Ohio-1594, at ¶7, citing State v. Bailey, Franklin App.
No. 04AP-553, 2005-Ohio-4068, at ¶11. Clearly Blevins’ alleged statement was
relevant to establishing his guilt. Blevins’ status as a user and dealer of
methamphetamine would make it more probable that he understood the ingredients and
process for the manufacture of the drug and in fact intended to manufacture the drug to
both sell and use it.
{¶33} Blevins primarily complains that his alleged statement was “prejudicial”
because Crispen’s testimony lacked credibility. Specifically, he complains that Crispen
could not recall exactly when Blevins made the statement and did not follow up on the
statement even though Blevins had presumably admitted to being a criminal. Blevins
also complains that the statement was not explicitly related to the traffic stop in this
case. However, Crispen’s testimony was not inherently unreliable. The jury was
capable of determining what weight, if any, Blevins’ alleged statement deserved in light
of the other evidence in the case. Admission of the testimony, harmful as it may have
been to Blevins’ case, was not unfairly prejudicial and was not a violation of Evid.R.
403(A). We overrule Blevins’ second assignment of error.
VI. Conclusion
{¶34} In summary, we overrule Blevins’ first and second assignments of error.
We sustain Blevins’ third assignment of error in part and overrule it in part. We reverse
his conviction for possession of methamphetamine and remand so that the trial court
Scioto App. No. 10CA3353 16
can discharge Blevins on that charge.
JUDGMENT AFFIRMED IN PART,
REVERSED IN PART,
AND CAUSE REMANDED.
Scioto App. No. 10CA3353 17
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART, and that the CAUSE IS REMANDED. Appellant and Appellee shall split the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
Abele, J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________________
William H. Harsha, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry
and the time period for further appeal commences from the date of filing with the
clerk.