State v. Malone

[Cite as State v. Malone, 2022-Ohio-1409.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case
No. 21CA9
v. :
DONALD MALONE, : DECISION AND
JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Angela Miller, Jupiter, Florida, for appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and
Andrea M. Kratzenberg, Lawrence County Assistant Prosecuting
Attorney, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:4-21-22
ABELE, J.
{¶1} This is an appeal from a Lawrence County Common Pleas
Court judgment of conviction and sentence. A jury found Donald
Malone, defendant below and appellant herein, guilty of
aggravated drug possession, a second-degree felony. Appellant
assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
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“APPELLANT MALONE WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE I,
SECTION 10 OF THE OHIO CONSTITUTION WHEN HIS
ATTORNEY FAILED TO FILE AN AFFIDAVIT OF
INDIGENCY TO WAIVE THE MANDATORY FINE.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN DENYING APPELLANT
MALONE’S MOTION TO SUPPRESS AS THE SEARCH OF
THE LOCKED SAFE IN THE VEHICLE WAS
UNLAWFUL.”
THIRD ASSIGNMENT OF ERROR:
“APPELLANT MALONE’S CONVICTION FOR
AGGRAVATED POSSESSION OF DRUGS WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶2} On October 20, 2019, Lawrence County Sheriff’s
Sergeant Brian Chaffins stopped appellant’s vehicle for a
traffic violation. During the stop, Officer Chaffins learned
about appellant’s arrest warrant, he placed him under arrest and
conducted a search.
{¶3} During the search, Sergeant Chaffins found inside
appellant’s wallet a “jeweler’s bag” that contained what
appeared to be “crystal meth.” Based upon this discovery,
Chaffins suspected that additional drugs would be found inside
appellant’s vehicle, so he searched the vehicle. The vehicle
search revealed two hypodermic needles near the center of the
front passenger compartment and a small safe on the front
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passenger’s seat. When Chaffins moved the safe, he heard
“something inside of it” and asked appellant about the safe.
Chaffins obtained the key to open the safe and discovered
approximately 14 or 15 grams “of crystal meth.” Appellant later
admitted that the safe contained about one half ounce of
methamphetamine. The prosecutor filed a bill of information
that charged appellant with aggravated drug possession, in
violation of R.C. 2925.11(A), a second-degree felony. Appellant
entered a not-guilty plea.
{¶4} Subsequently, appellant filed a motion to suppress the
evidence discovered during the search of the locked safe located
inside his vehicle. Appellant argued that Sergeant Chaffins
should have applied for a warrant to search the safe rather than
a search during the traffic stop. After the hearing, the trial
court overruled appellant’s motion to suppress evidence.
{¶5} At the May 10 and 11, 2021 jury trial, the state
presented evidence that appellant possessed three bags of
methamphetamine that weighed a total of 16.33 grams. Sergeant
Chaffins testified that he found two bags of methamphetamine
inside the safe located within appellant’s vehicle. Chaffins
believed that the amount of methamphetamine contained in the two
bags weighed between 14 and 15 grams.
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{¶6} Lawrence County Sheriff’s Deputy Jonathan Spoljaric
testified that he found a third bag of methamphetamine when
appellant changed clothes at the jail. Spoljaric explained
that, when appellant changed into jail clothes, the deputy found
a bag of methamphetamine in appellant’s underwear. On cross-
examination, Spoljaric clarified that the bag of methamphetamine
had fallen out of appellant’s underwear. He stated: “I do
remember methamphetamine being in his underwear and it going
onto the floor.”
{¶7} Ohio Bureau of Criminal Investigation forensic
scientist Michelle Taylor testified that the two bags of
methamphetamine that Sergeant Chaffins discovered inside
appellant’s safe weighed 3.41 grams and 11.82 grams,
respectively. Taylor stated that the third bag discovered in
the jail weighed 1.10 grams.
{¶8} Appellant testified in his defense and did not dispute
that he possessed methamphetamine in his vehicle, but did
dispute the amount. Appellant stated that he had purchased 14.7
grams of methamphetamine. He explained that the methamphetamine
was weighed at the time of purchase and the amount he purchased
weighed “under fifteen grams.”
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{¶9} Appellant further disputed that he possessed the
methamphetamine found at the jail. He denied that the
methamphetamine had been in his underwear and had fallen to the
floor while he changed into jail clothes. Appellant instead
claimed that he noticed a bag of methamphetamine on the floor,
and when he tried to pick it up the deputy told appellant not to
touch it.
{¶10} After hearing the evidence, the jury found appellant
guilty of second-degree-felony aggravated drug possession. The
trial court sentenced appellant to serve six to nine years in
prison and ordered him to pay a $7,500 fine. This appeal
followed.
I
{¶11} In his first assignment of error, appellant asserts
that he did not receive the effective assistance of counsel. In
particular, appellant alleges that trial counsel performed
ineffectively by failing (1) to file an affidavit of indigency,
and (2) to ask the court to find appellant indigent and unable
to pay the mandatory fine. Appellant claims that, if trial
counsel had filed an affidavit of indigency before sentencing, a
reasonable probability exists that the court would have found
appellant indigent and unable to pay the mandatory fine.
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LAWRENCE, 21CA9
{¶12} The Sixth Amendment to the United States Constitution,
and Article I, Section 10 of the Ohio Constitution, provide that
defendants in all criminal proceedings shall have the assistance
of counsel for their defense. The United States Supreme Court
has generally interpreted this provision to mean a criminal
defendant is entitled to the “reasonably effective assistance”
of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); accord Hinton v. Alabama, 571 U.S.
263, 272, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (Sixth Amendment
right to counsel means “that defendants are entitled to be
represented by an attorney who meets at least a minimal standard
of competence”).
{¶13} To establish constitutionally ineffective assistance
of counsel, a defendant must show that (1) his counsel’s
performance was deficient, and (2) the deficient performance
prejudiced the defense and deprived the defendant of a fair
trial. E.g., Strickland, 466 U.S. at 687; State v. Myers, 154
Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶
85. “Failure to establish either element is fatal to the
claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-
Ohio-968, ¶ 14. Therefore, if one element is dispositive, a
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court need not analyze both. State v. Madrigal, 87 Ohio St.3d
378, 389, 721 N.E.2d 52 (2000) (defendant’s failure to satisfy
one ineffective- assistance-of-counsel element “negates a
court’s need to consider the other”).
{¶14} The deficient performance part of an ineffectiveness
claim “is necessarily linked to the practice and expectations of
the legal community: ‘The proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.’” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct.
1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466 U.S. at
688. Prevailing professional norms dictate that “a lawyer must
have ‘full authority to manage the conduct of the trial.’”
State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903
N.E.2d 270, ¶ 24, quoting Taylor v. Illinois, 484 U.S. 400, 418,
108 S.Ct. 646, 98 L.Ed.2d 798 (1988).
{¶15} Furthermore, “‘[i]n any case presenting an
ineffectiveness claim, “the performance inquiry must be whether
counsel’s assistance was reasonable considering all the
circumstances.”’” Hinton v. Alabama, 571 U.S. 263, 273, 134
S.Ct. 1081, 188 L.Ed.2d 1 (2014), quoting Strickland, 466 U.S.
at 688. Accordingly, “[i]n order to show deficient performance,
the defendant must prove that counsel’s performance fell below
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an objective level of reasonable representation.” State v.
Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95
(citations omitted).
{¶16} Moreover, when considering whether trial counsel’s
representation amounts to deficient performance, “a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. Thus, “the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id.Additionally, “[a] properly licensed attorney is presumed to
execute his duties in an ethical and competent manner.” State
v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10,
citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128(1985). Therefore, a defendant bears the burden to show
ineffectiveness by demonstrating that counsel’s errors were “so
serious” that counsel failed to function “as the ‘counsel’
guaranteed * * * by the Sixth Amendment.” Strickland, 466 U.S.
at 687; e.g., State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153,
156, 524 N.E.2d 476 (1988).
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{¶17} To establish prejudice, a defendant must demonstrate
that a reasonable probability exists that “‘but for counsel’s
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine the outcome.’” Hinton, 571 U.S. at 275, quoting
Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio
St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph
three of the syllabus; accord State v. Spaulding, 151 Ohio St.3d
378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 91 (prejudice component
requires a “but for” analysis). Furthermore, courts ordinarily
may not simply presume the existence of prejudice but, instead,
must require a defendant to affirmatively establish prejudice.
State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶
22; State v. Tucker, 4th Dist. Ross No. 01CA2592 (Apr. 2, 2002).
As we have repeatedly recognized, speculation is insufficient to
establish the prejudice component of an ineffective assistance
of counsel claim. E.g., State v. Tabor, 4th Dist. Jackson No.
16CA9, 2017-Ohio-8656, ¶ 34; State v. Jenkins, 4th Dist. Ross
No. 13CA3413, 2014-Ohio-3123, ¶ 22; State v. Simmons, 4th Dist.
Highland No. 13CA4, 2013-Ohio-2890, ¶ 25; State v. Halley, 4th
Dist. Gallia No. 10CA13, 2012-Ohio-1625, ¶ 25; State v. Leonard,
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4th Dist. Athens No. 08CA24, 2009-Ohio-6191, ¶ 68; accord State
v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶
86 (argument that is purely speculative cannot serve as the
basis for an ineffectiveness claim).
{¶18} In the case sub judice, appellant alleges that trial
counsel rendered ineffective assistance of counsel by failing to
file an affidavit of indigency before sentencing that stated
appellant is unable to pay the mandatory fine. Appellant
contends that if trial counsel had filed an affidavit, the trial
court would have found the appellant to be indigent and unable
to pay the mandatory fine.
{¶19} A criminal defendant who seeks to show that trial
counsel provided ineffective assistance by failing to file an
affidavit alleging indigency and an inability to pay a mandatory
fine must establish both of the following: (1) counsel’s failure
to file an affidavit constitutes deficient performance; and (2)
a reasonable probability exists that the trial court would have
found the defendant to be indigent and unable to pay the
mandatory fine. State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-
309, 146 N.E.3d 560, ¶ 16.
{¶20} In the case at bar, assuming, arguendo, that trial
counsel’s failure to file an affidavit of indigency constitutes
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deficient performance, we do not believe that appellant has
demonstrated that a reasonable probability exists that the trial
court would have found that appellant lacks the ability to pay
the mandatory fine.
R.C. 2929.18(B)(1) states:
If an offender alleges in an affidavit filed with the
court prior to sentencing that the offender is
indigent and unable to pay the mandatory fine and if
the court determines the offender is an indigent
person and is unable to pay the mandatory fine
described in this division, the court shall not impose
the mandatory fine upon the offender.
We note that “the burden is upon the offender to affirmatively
demonstrate that he or she is indigent and is unable to pay the
mandatory fine.” State v. Gipson, 80 Ohio St.3d 626, 635, 687
N.E.2d 750 (1998). A court must determine whether an offender
is indigent and unable to pay a mandatory fine should not limit
its inquiry to the offender’s circumstances “at the moment of
sentencing.” Id. at 636. Instead, the court “can (and should)
[consider the offender’s] future ability to pay.” Id. Courts
generally have identified some of the following factors as
relevant when considering an offender’s ability to pay a fine:
(1) the offender’s age; (2) the offender’s employment history
and potential; (3) the offender’s education; (4) the offender’s
health; (5) the length of the offender’s prison term; (6) the
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offender’s source of income; (7) the offender’s income
potential; (8) whether the offender is indigent; and (9) the
amount of the fine. State v. Lykins, 2017-Ohio-9390, 102 N.E.3d
503, ¶ 13 (4th Dist.) (citations omitted).
{¶21} Importantly, however, “a determination of indigency
alone does not rise to the level of creating a reasonable
probability that the trial court would have” found the defendant
unable to pay a mandatory fine. Davis at ¶ 15. Accordingly, a
trial court’s determination that a defendant is indigent for
purposes of appointing counsel does not preclude the court from
determining that a defendant has the ability to pay a mandatory
fine. E.g., State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶
76 (8th Dist.); State v. Palmison, 9th Dist. Summit No. 20854,
2002-Ohio-2900, ¶ 25. Likewise, a trial court is not precluded
from imposing a mandatory fine upon an offender who is sentenced
to a lengthy prison sentence. Nitsche at ¶ 76, citing State v.
Western, 2015-Ohio-627, 29 N.E.3d 245, ¶ 57 (2d Dist.).
{¶22} Appellant contends that the facts shown in the record
establish that a reasonable probability exists that the trial
court would have found appellant indigent and unable to pay the
mandatory fine. Appellant points out that he has “a long
history of drug addiction, a lengthy criminal record * * * and
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was unemployed both prior to and at the time of trial.” The
state, however, argues that the facts in the record fail to
support a conclusion that a reasonable probability exists that
the trial court would have found appellant indigent and unable
to pay the mandatory fine. The state notes that appellant told
Sergeant Chaffins that appellant “come[s] from a pretty good
family.” The state further observes that appellant informed
Chaffins: “I’ve got money. I ain’t gotta worry about selling
dope to supply my habit.” The state additionally points out
that appellant testified that he buys meth “almost daily,” that
he buys meth “all the time,” and that meth is “part of [his]
life.” The state also observes that appellant will be of
working age when released from prison and nothing in the record
shows appellant suffers from any mental or physical problems
that may inhibit his ability to earn income when released from
prison. The state further notes that appellant stated he has a
high-school degree and has completed some college.
{¶23} We agree with the state that appellant has failed to
show that a reasonable probability exists that the trial court
would have found him indigent and unable to pay the mandatory
fine if trial counsel had filed an affidavit before sentencing.
Appellant readily admitted that he has money and had no problems
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affording his daily drug habit. If appellant has money and the
ability to fund his daily drug habit, we do not believe that the
trial court likely would have found that appellant lacks the
future ability to pay the mandatory fine. We further note that
appellant’s September 24, 2020 financial disclosure form
indicated that he earned $1,000 per month. At trial, appellant
stated that he earned money working on computers and cell
phones. Nothing in the record suggests appellant would be
unable to work in this same capacity after his prison term.
{¶24} Moreover, the record contains no indication that
appellant “would be unemployable upon his release, such as a
health or medical condition that would preclude him from future
employment.” State v. Freeman, 1st Dist. Hamilton No. C-180090,
2018-Ohio-4973, ¶ 13, citing State v. Hale, 5th Dist. Perry No.
14-CA-00010, 2014-Ohio-4981, ¶ 18-20 (reasonable probability
existed that trial court would have waived the mandatory fine if
counsel had filed an affidavit of indigency due to defendant’s
medical conditions, including the use of an oxygen tank,
hypertension, COPD, IBS, coronary artery disease, obstructive
sleep apnea, a stroke, leg pains, and seizures); State v.
Campbell, 12th Dist. Warren No. CA2012-08-070, 2013-Ohio-3088, ¶
9-10 (trial court did not err in waiving the mandatory fine
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LAWRENCE, 21CA9
because defendant indigent and not able to work because of
diabetes, high blood pressure, nerve damage, torn rotator cuff,
depression, anxiety, acid reflux and need for drug treatment).
Instead, the record in the case sub judice shows that appellant
will be between 36 and 40 years old when released from prison
and has no health conditions that would prevent him from
obtaining gainful employment. See State v. Lenhert, 6th Dist.
Wood No. WD-08-078, 2009-Ohio-5392, ¶ 11 (“the trial court could
have determined that upon being released from prison, appellant
would be in his twenties, able to work and pursue productivity
and, therefore, would be able to pay the imposed sanction”);
State v. Johnson, 6th Dist. Lucas No. L-03-1046, 2004-Ohio-2458,
¶ 47 (defendant failed to demonstrate reasonable probability
trial court would have found him indigent when record did not
contain information about defendant’s finances except for
statement at arraignment that he did not have funds to hire
attorney).
{¶25} Thus, even though appellant is incarcerated and filed
an affidavit of indigency for purposes of obtaining appointed
appellate counsel, the record does not support a finding that
appellant lacks the future ability to pay the mandatory fine.
Thus, under these circumstances we are unable to conclude that a
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reasonable probability exists that the trial court would have
found appellant indigent and unable to pay the mandatory fine if
trial counsel had filed a proper affidavit before sentencing.
We therefore do not agree with appellant that trial counsel
failed to provide appellant with the effective assistance of
counsel.
{¶26} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II
{¶27} In his second assignment of error, appellant asserts
that the trial court erred by denying his motion to suppress the
methamphetamine discovered inside the locked safe located inside
his vehicle. Appellant contends that Sergeant Chaffins did not
have sufficient indicators of drug activity to give him probable
cause to open the locked safe.
{¶28} In general, appellate review of a trial court’s ruling
on a motion to suppress evidence involves a mixed question of
law and fact. E.g., State v. Castagnola, 145 Ohio St.3d 1, 2015-
Ohio-1565, 46 N.E.3d 638, ¶ 32; State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Moore,
2013-Ohio-5506, 5 N.E.3d 41 (4th Dist.), ¶ 7. Appellate courts
thus “‘must accept the trial court’s findings of fact if they
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are supported by competent, credible evidence.’” State v. Leak,
145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12, quoting
Burnside at ¶ 8. Accepting those facts as true, reviewing
courts “‘independently determine as a matter of law, without
deference to the conclusion of the trial court, whether the
facts satisfy the applicable legal standard.’” Id., quoting
Burnside at ¶ 8.
{¶29} The Fourth and Fourteenth Amendments to the United
States Constitution, as well as Section 14, Article I of the
Ohio Constitution, protect individuals against unreasonable
governmental searches and seizures. Delaware v. Prouse, 440
U.S. 648, 662, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); State
v. Gullett, 78 Ohio App.3d 138, 143, 604 N.E.2d 176 (1992).
“[S]earches [and seizures] conducted outside the judicial
process, without prior approval by judge or magistrate, are per
se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.” Katz
v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19
L.Ed.2d 576 (1967); State v. Roberts, 110 Ohio St.3d 71, 2006-
Ohio-3665, 850 N.E.2d 1168, ¶ 98.
{¶30} When a law enforcement officer has probable cause to
believe that a vehicle contains contraband, the officer may
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search a validly stopped motor vehicle based upon the well-
established automobile exception to the warrant requirement.
State v. Moore, 90 Ohio St.3d 47, 51, 734 N.E.2d 804 (2000),
citing Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144
L.Ed.2d 442 (1999). Probable cause exists when there is a “fair
probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238,
103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Furthermore, “Ohio
courts have held that the production of drugs by an occupant of
a vehicle independently provides an officer with additional
probable cause to believe that the vehicle contains evidence of
contraband.” State v. Donaldson, 6th Dist. Wood No. WD-18-034,
2019-Ohio-232, ¶ 29; State v. Young, 12th Dist. Warren No.
CA2011-06-066, 2012-Ohio-3131, ¶ 32-33 (once driver admitted he
possessed marijuana, officers obtained probable cause to search
vehicle).
{¶31} Additionally, under the automobile exception to the
warrant requirement, law enforcement officers may search
containers located within the vehicle so long as they have
probable cause to believe that contraband or evidence may be
concealed inside the automobile. California v. Acevedo, 500
U.S. 565, 580, 111 S. Ct. 1982, 114 L. Ed.2d 619 (1991); United
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States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572(1982). In other words, “[i]f probable cause justifies the
search of a lawfully stopped vehicle, it justifies the search of
every part of the vehicle and its contents that may conceal the
object of the search.” Ross at 825. Consequently, when
officers have “probable cause to search for contraband in a car,
it is reasonable for police officers * * * to examine packages
and containers without a showing of individualized probable
cause for each one.” Wyoming v. Houghton 526 U.S. 295, 320, 119
S.Ct. 1297, 143 L.Ed.2d 408 (1999); accord State v. Vega, 154
Ohio St.3d 569, 2018-Ohio-4002, 116 N.E.3d 1262 (officer could
lawfully open sealed envelope located inside vehicle when
officer possessed probable cause to search vehicle).
{¶32} In the case at bar, we do not agree with appellant
that Sergeant Chaffins lacked probable cause to search the
vehicle and its contents, including the locked safe, for
evidence of criminal activity. Chaffins discovered
methamphetamine inside a wallet that he had retrieved from
appellant’s person. Appellant also admitted that he possessed
drugs. The discovery of illegal drugs on appellant’s person
gave Chaffins probable cause to believe that the vehicle in
which appellant had been traveling contained drug-related
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evidence. Once Chaffins obtained probable cause to search the
vehicle, he could lawfully search the entire vehicle and any
place where evidence could be concealed, including the locked
safe. The trial court did not, therefore, err by overruling
appellant’s motion to suppress evidence.
{¶33} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
III
{¶34} In his third assignment of error, appellant asserts
that his second-degree-felony aggravated drug possession
conviction is against the manifest weight of the evidence.
Appellant does not dispute that he possessed methamphetamine,
but instead disputes the precise amount of methamphetamine that
he possessed. Appellant contends that the greater weight of the
evidence shows that he possessed less than 15 grams of
methamphetamine and, thus, he is not guilty of second-degree-
felony aggravated drug possession. Appellant instead suggests
that the evidence supports a conviction for third-degree-felony
aggravated drug possession.
{¶35} We observe that the “question to be answered when a
manifest-weight issue is raised is whether ‘there is substantial
evidence upon which a jury could reasonably conclude that all
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the elements have been proved beyond a reasonable doubt.’”
State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d
229, ¶ 81, quoting State v. Getsy, 84 Ohio St.3d 180, 193–194,
702 N.E.2d 866 (1998), citing State v. Eley, 56 Ohio St.2d 169,
383 N.E.2d 132 (1978), syllabus. A court that is considering a
manifest-weight challenge must “‘review the entire record, weigh
the evidence and all reasonable inferences, and consider the
credibility of witnesses.’” State v. Beasley, 153 Ohio St.3d
497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 208, quoting State v.
McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶
328; accord State v. Hundley, 162 Ohio St.3d 509, 2020-Ohio-
3775, 166 N.E.3d 1066, ¶ 80. The reviewing court must bear in
mind, however, that credibility generally is an issue for the
trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67,
752 N.E.2d 904 (2001); State v. Murphy, 4th Dist. Ross No.
07CA2953, 2008-Ohio-1744, ¶ 31. “‘Because the trier of fact
sees and hears the witnesses and is particularly competent to
decide “whether, and to what extent, to credit the testimony of
particular witnesses,” we must afford substantial deference to
its determinations of credibility.’” Barberton v. Jenney, 126
Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20, quoting
State v. Konya, 2nd Dist. Montgomery No. 21434, 2006-Ohio-6312,
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¶ 6, quoting State v. Lawson, 2nd Dist. Montgomery No. 16288
(Aug. 22, 1997). As the court in Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, explained:
“‘[I]n determining whether the judgment below is
manifestly against the weight of the evidence, every
reasonable intendment and every reasonable presumption
must be made in favor of the judgment and the finding
of facts. * * *
If the evidence is susceptible of more than one
construction, the reviewing court is bound to give it
that interpretation which is consistent with the
verdict and judgment, most favorable to sustaining the
verdict and judgment.’”
Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10
Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio
Jurisprudence 3d, Appellate Review, Section 60, at 191–192
(1978). Thus, an appellate court will generally leave the
issues of weight and credibility of the evidence to the fact
finder, as long as a rational basis exists in the record for its
decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9,
2012-Ohio-1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No.
07CA2948, 2007-Ohio-6331, ¶ 6 (“We will not intercede as long as
the trier of fact has some factual and rational basis for its
determination of credibility and weight.”).
{¶36} Consequently, if the prosecution presented substantial
credible evidence upon which the trier of fact reasonably could
conclude, beyond a reasonable doubt, that the essential elements
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of the offense had been established, the judgment of conviction
is not against the manifest weight of the evidence. E.g., Eley;
accord Eastley at ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387,
quoting Black’s Law Dictionary 1594 (6th ed.1990) (a judgment is
not against the manifest weight of the evidence when “‘”the
greater amount of credible evidence”’” supports it). A court
may reverse a judgment of conviction only if it appears that the
fact-finder, when it resolved the conflicts in evidence,
“‘clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial
ordered.’” Thompkins, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983);
accord McKelton at ¶ 328. A reviewing court should find a
conviction against the manifest weight of the evidence only in
the “‘exceptional case in which the evidence weighs heavily
against the conviction.’” Thompkins, 78 Ohio St.3d at 387,
quoting Martin, 20 Ohio App.3d at 175; accord State v. Clinton,
153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 166; State
v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000). We
additionally note that “a verdict is not against the manifest
weight of the evidence simply because the fact-finder opts to
24
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believe the state’s witnesses.” State v. Donohue, 4th Dist.
Ross No. 18CA3637, 2018-Ohio-4819, ¶ 20.
{¶37} In the case sub judice, R.C. 2925.11(A) contains the
essential elements of the offense at issue, possession of drugs.
The statute states: “No person shall knowingly obtain, possess,
or use a controlled substance * * *.”
{¶38} R.C. 2925.11(C)(1)(c) further provides that a person
who knowingly obtains, possesses, or uses a schedule II
controlled substance, like methamphetamine, is guilty of second-
degree-felony aggravated drug possession when “the amount of the
drug involved equals or exceeds five times the bulk amount but
is less than fifty times the bulk amount.” R.C. 925.11(C)(1)(b)
states that aggravated drug possession is a third-degree felony
if the amount of drug involved equals or exceeds bulk amount but
is less than five times bulk amount.
{¶39} In the case at bar, the state presented evidence that
appellant possessed an amount of methamphetamine that equals or
exceeds five times the bulk amount. Taylor testified that five
times bulk amount is 15 grams and that appellant possessed a
total of 16.33 grams of methamphetamine. Appellant contends,
however, that his testimony shows that he possessed less than 15
grams of methamphetamine. At trial, appellant (1) denied that
25
LAWRENCE, 21CA9
he possessed the bag of methamphetamine located on the jail
floor, and (2) testified that the methamphetamine discovered in
his vehicle weighed less than 15 grams. Appellant stated that
the methamphetamine had been weighed when purchased and weighed
only 14.7 grams.
{¶40} Even if for purposes of argument, we agreed with
appellant that the evidence fails to support a finding that he
possessed the 1.10 grams of methamphetamine on the jailhouse
floor, the state nevertheless presented substantial, competent
and credible evidence that the remaining two bags weighed 15
grams or more. Taylor testified that she weighed the bags that
Sergeant Chaffins found in the safe located within appellant’s
vehicle and one bag contained 3.41 grams of methamphetamine and
the other contained 11.82 grams of methamphetamine. The
combined weight of methamphetamine totals 15.23 grams. Taylor’s
testimony, therefore, supports a finding that appellant
possessed more than five times the bulk amount.
{¶41} We recognize that appellant testified that he
purchased 14.7 grams of methamphetamine and his claim that he
did not possess more than 15 grams of methamphetamine. The
jury, however, was in the best position to assess witness
credibility and not obligated to believe appellant’s testimony.
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LAWRENCE, 21CA9
The jury obviously chose to believe Taylor’s testimony and we
cannot conclude that the jury lost its way. A trier of fact is
free to believe all, part or none of the testimony from any
witness who appears before the trier of fact. Consequently,
after our review we do not believe that appellant’s conviction
for second-degree-felony aggravated drug possession is against
the manifest weight of the evidence.
{¶42} Accordingly, based upon the foregoing reasons, we
overrule appellant’s third assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Lawrence 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, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_______________________
Peter B. Abele, 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.