State v. Smith

[Cite as State v. Smith, 2022-Ohio-371.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 20CA3934
v. :
HENRY DEANDRE SMITH, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
James H. Banks, Dublin, Ohio, for appellant.1
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay
Willis, Scioto County Assistant Prosecuting Attorney,
Portsmouth, Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:2-2-22
ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas
Court judgment of conviction and sentence. A jury found Henry
Deandre Smith, defendant below and appellant herein, guilty of:
Attorney Michael H. Mearan initially represented
appellant. Later, Attorney Banks entered a notice of appearance
as counsel for appellant. On July 24, 2020, Banks filed a
motion to withdraw. The trial court granted Banks’ request to
withdraw and appointed Attorney Gene Meadows to represent
appellant.
2
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(1) trafficking in heroin in violation of R.C. 2925.03(A)(2);2
(2) possessing heroin in violation of R.C. 2925.11(A); and (3)
possessing criminal tools in violation of R.C. 2923.24(A).
After the trial court merged the possession offense with the
trafficking offense, the court sentenced appellant to serve an
eight-year prison term. The court also sentenced appellant to
serve 180 days in jail for possessing criminal tools, but
ordered that sentence to be served concurrently with the
trafficking offense.
{¶2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN ALLOWING THE
IMPROPER INTRODUCTION OF EVIDENCE.”
SECOND ASSIGNMENT OF ERROR:
“THE DEFENDANT’S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.”
THIRD ASSIGNMENT OF ERROR:
“DEFENDANT SMITH’S CONVICTIONS ARE
CONTRADICTORY ACCORDING TO THE JURY VERDICTS
SUCH TO REQUIRE REVERSAL.”
2
The trial court’s sentencing entry and verdict form
contain a clerical error. Both recite the offense as R.C.
2925.03(A)(1). The trial court, however, amended the indictment
to charge R.C. 2925.03(A)(2).
3
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FOURTH ASSIGNMENT OF ERROR:
“THE DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL SUCH THAT HE IS
ENTITLED TO A NEW TRIAL.”
FIFTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN SENTENCING THE
DEFENDANT.”
{¶3} During the late-night hours of August 10, 2018, Ohio
State Highway Patrol Trooper Nick Lewis stopped a black sport-
utility vehicle for following a vehicle too closely, for making
an unexpected lane change, and for driving 40 miles per hour in
a 55 mile-per-hour speed zone. During the ensuing traffic stop,
Lewis and another trooper discovered approximately 57 grams of
heroin stuffed inside the lining of the backside of the driver’s
seat. The troopers questioned the three occupants, Carvion
McKee, Ernest Whitehead, and appellant, and all stated they did
not know that the vehicle contained heroin. The troopers then
allowed the occupants to leave and advised them that the
prosecutor’s office likely would present the matter to a grand
jury.
{¶4} On August 22, 2019, a Scioto County Grand Jury
returned indictments that charged appellant, Whitehead, and
McKee with trafficking in heroin in violation of R.C.
2925.03(A)(1), possessing heroin in violation of R.C.
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2925.11(A), and possessing criminal tools in violation of R.C.
2923.24(A). Appellant and Whitehead entered not guilty pleas.3
{¶5} On April 23, 2020, appellant filed a motion to
suppress the evidence discovered during the traffic stop and
vehicle search. Appellant asserted that the trooper lacked a
lawful basis to stop and search the vehicle.
{¶6} At the July 23, 2020 hearing, appellant’s counsel,
Attorney Banks, indicated that the parties had agreed to resolve
the case, but that appellant recently changed his mind.
Apparently, the state offered to reduce the first-degree felony
offense, to recommend a two-year prison term, and agree not to
object to judicial release. The trial court questioned
appellant regarding his decision to reject the plea offer and
appellant indicated that he did not believe that he could “sign
away [his] freedom for something” he does not support. The
court explained the maximum penalties it could impose and
allowed appellant to again discuss the matter with counsel.
{¶7} After appellant again discussed the plea offer,
counsel informed the trial court that appellant wished to reject
the state’s offer. Attorney Banks also asked the court to allow
him to withdraw as counsel. After the court granted Banks’
3
According to the state, McKee later entered a guilty plea.
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motion to withdraw, the court appointed Attorney Gene Meadows to
represent appellant. Subsequently, appellant withdrew his
motion to suppress evidence.
{¶8} The morning of trial, the state filed a motion to
amend the indictment. The state asserted that the indictment
incorrectly recited the trafficking offense in terms of R.C.
2925.03(A)(1), rather than R.C. 2925.03(A)(2). The prosecutor
explained that the amendment did not change the name of the
offense or the penalty, and that the case “always [has] been a
transport, deliver, shipment type of case.”
{¶9} Whitehead’s counsel did not object to the motion to
amend the indictment and agreed that the amendment would not
change Whitehead’s defense strategy. The court asked Whitehead
whether he concurred, and Whitehead responded, “[y]es.”
{¶10} Appellant’s counsel likewise stated that “the case
laws [sic] clear on this.” Appellant’s counsel further stated,
“[w]e can tell by reading the discovery that it was a transport
* * * case.” Appellant also indicated that the amendment would
not change the defense strategy. The trial court thus granted
the state’s motion to amend the indictment to allege a violation
of R.C. 2925.03(A)(2).
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{¶11} At trial, Trooper Lewis testified that around 11:30
p.m. on August 10, 2018, he noticed a black vehicle “tailgating
a lead vehicle.” Lewis followed the vehicle and noticed a
change from the right lane to the left lane and speed at 40
miles per hour in a 55-mile-per-hour zone. At this point, Lewis
stopped the vehicle and asked the driver for identification.
McKee sat in the driver’s seat, appellant who had rented the
vehicle, sat in the front passenger seat, and Whitehead in the
left middle row, directly behind McKee. Lewis learned that all
three occupants are Michigan residents.
{¶12} After Trooper Lewis asked McKee to exit the vehicle,
they walked to the cruiser. Lewis stated that he asked McKee to
exit the vehicle as part of his drug interdiction protocol and
to check on the status of his well-being. Lewis related that,
when a vehicle is traveling 40 miles per hour in a 55-mile-per-
hour zone, “there’s typically a – a problem.” Lewis indicated
he thus instructed McKee to exit the vehicle so Lewis could “try
to figure out what was going on with him.” Lewis explained he
“had planned on placing [McKee] in the back of the cruiser while
[he] checked [McKee’s] driver’s license and just talk[ed] to him
about why he was driving erratically.” Because highway patrol
policy is to conduct pat-down searches of individuals before
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placing them in cruisers, Lewis asked McKee if he could conduct
a pat-down search. Lewis indicated that McKee agreed to the
search.
{¶13} As Trooper Lewis started to conduct the pat-down
search, he told McKee to keep his hands out of his pockets.
McKee, however, disobeyed that instruction and “the first thing
[McKee] does is takes his left hand[,] puts it in his pocket and
pulls out something in his – his fist.” Lewis noticed that
McKee’s fist was “balled up.” Lewis asked McKee what he had in
his hand and, rather than answering, McKee “shove[d his hand]
back down the front of his pants.” Lewis then “grab[bed]” McKee
and “put him against the – the rear of the vehicle.” As Lewis
handcuffed McKee, he noticed “a plastic baggie fall[] from his
chest to the ground.” The plastic bag contained “a small amount
of marijuana residue.” At this point, Lewis requested backup
assistance.
{¶14} After Ohio State Highway Patrol Trooper Matt Lloyd
responded to the call for backup, he removed appellant, the
front-seat passenger, patted him down for weapons, and placed
him in the rear of Trooper Lewis’ cruiser with McKee. Then, the
troopers removed Whitehead, patted him down, and placed him in
the rear of Lloyd’s cruiser. Lewis explained that the troopers
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removed the occupants because they knew that they would search
the vehicle based upon the discovery of marijuana residue.
{¶15} As Trooper Lewis began to search the vehicle, he also
noticed what appeared to be crack cocaine in the front passenger
seat. A field test confirmed that suspicion and indicated the
substance to be crack cocaine.
{¶16} Trooper Lewis also stated that Trooper Lloyd searched
the area where Whitehead had been seated and noticed that a trim
piece on the driver’s seat backrest appeared to have “been
tampered with.” Lloyd pulled the trim piece “back a little
bit,” and discovered a plastic bag in the back of the driver’s
seat that contained 57 grams of heroin worth around $6,000.
Lewis also testified that 57 grams of heroin is not an amount to
suggest personal use and, instead, “would be considered a
trafficking amount.”
{¶17} During Trooper Lewis’ testimony, the state played a
video of the traffic stop that included the vehicle search and
the conversation between McKee and appellant while seated in the
cruiser. McKee, who was extremely talkative, complained that
the handcuffs hurt his wrists and, as Trooper Lloyd started to
search the area where he found the heroin, McKee began to yell
for the trooper. After the troopers discovered the heroin,
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Lewis read appellant and McKee the Miranda warnings. Appellant
asked why they were being arrested and Lewis informed appellant
and McKee that they had discovered heroin in the vehicle.
Appellant and McKee both responded with disbelief. Appellant
claimed he did not know anything about the heroin, that the
vehicle is a rental car, that he is a truck driver, and that the
three occupants intended to visit “some females” in Kentucky.
Lewis agreed with appellant that the vehicle is a rental car,
but pointed out to McKee and appellant that appellant had rented
the vehicle approximately one week earlier. McKee likewise
denied any knowledge about the heroin and expressed surprise
about its discovery in the car. McKee also repeated appellant’s
statements that they intended to visit “some females” and that
appellant is a truck driver.
{¶18} The troopers then removed appellant from the back of
Trooper Lewis’ cruiser and placed Whitehead in the back seat
with McKee. McKee continued to express surprise to Whitehead
that the troopers discovered heroin and he stated he did not
know how heroin ended up in the vehicle. McKee told Whitehead
that they were merely traveling to Kentucky to visit “some
females” and did not understand how they ended up in this
predicament.
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{¶19} When the troopers spoke with Whitehead, he also
claimed that he knew nothing about the heroin in the back of the
driver’s seat, even though the heroin had been stuffed inside
the seat-back directly in front of him.
{¶20} During appellant’s cross-examination of Trooper Lewis,
counsel asked whether Lewis had performed a “drug test” to see
if appellant had “been using any cocaine.” Lewis stated that he
did not. Counsel also asked Lewis about McKee’s and appellant’s
conduct while seated in the back of the cruiser and whether
McKee was the individual who was “fidgeting, jumping around,
[and] yelling.” Lewis responded affirmatively. Counsel then
questioned whether appellant was “sitting there quiet,” and
Lewis stated: “I wouldn’t necessarily say quiet. Every time he
spoke he covered his mouth or whispered.” The trooper
continued: “[E]very time he speaks he takes his shirt and covers
up his mouth or would whisper.”
{¶21} Counsel next asked Trooper Lewis about appellant’s
response after he learned they found heroin in the vehicle and
whether appellant told Lewis that appellant is a truck driver.
Lewis stated that appellant mentioned earlier that he is a truck
driver and that “[p]retty much throughout the whole stop someone
had mentioned that he was a truck driver.”
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{¶22} On redirect, the prosecutor asked Lewis whether
appellant “offer[ed] to take a drug test for you,” and Lewis
responded that appellant did not. Appellant’s counsel then
objected and the trial court overruled the objection. The
prosecutor followed up on appellant’s counsel’s questions
regarding appellant’s statement that he is a truck driver and,
after the prosecutor asked Lewis whether appellant provided any
information about his employer, appellant’s counsel again
objected. The court overruled the objection and explained,
“[y]ou asked the question on cross. I’m going to let [the
prosecutor] follow up with it.”
{¶23} Next, Trooper Lloyd testified that he observed a gap
in the back of the driver’s seat that “easily pull[ed] back,”
and inside he discovered a plastic bag that contained heroin.
{¶24} The state also presented the testimony of Josie
Keating, a rental car agency representative who rented the
vehicle to Smith. Keating stated that the rental car would have
undergone an inspection before appellant took possession, and if
the vehicle had any damage, it would have been noted on the
inspection report. Keating testified that appellant’s
inspection report indicated “no damage documented.” Keating
also explained that appellant rented the vehicle on July 31,
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2018, was scheduled for return on August 8, but appellant did
not return the vehicle until August 25. Also, during the time
that appellant had the rental vehicle the mileage increased by
4,412 miles.
{¶25} After Keating’s testimony, the state called to the
witness stand Scioto County Sheriff’s Captain James Carter.
Before Carter took the stand, however, appellant’s counsel
objected to Carter’s expected testimony. Appellant pointed out
that the state intended to ask Carter about appellant’s recorded
jailhouse telephone conversations. During those calls,
appellant indicated he was not employed at the time Trooper
Lewis stopped the vehicle, and that he had not been traveling to
see “some females” in Kentucky. Appellant’s counsel asserted
that appellant’s statements about not being employed and his
destination on the night of the traffic stop involved “other
acts and they have nothing to do with the charges that he’s
facing here.” Counsel stated that, unless appellant chose to
testify, the recorded phone calls should be inadmissible. The
prosecutor argued, however, that the statements are admissible
under Evid.R. 801(D)(2). Appellant’s counsel then countered
that, even if the statements are relevant, the probative value
of the statements does not outweigh their prejudicial effect.
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{¶26} After consideration, the trial court overruled
appellant’s objection. The court noted that the state presented
evidence that appellant had stated he is a truck driver and that
he intended to visit “some females.” The court concluded that
the phone calls should be admissible as appellant’s own
statements and informed the parties that it would give the jury
a limiting instruction.
{¶27} Captain Carter testified he oversees jail operations,
including telephone calls, and that he obtained recordings of
two calls appellant made while in jail. The state played
portions of each call at trial and, during the first call,
appellant spoke with his grandfather who stated that he had
spoken with appellant’s lawyer and, when asked if appellant had
a job, grandfather told the lawyer that appellant did not.
Appellant stated in response that when he returned home he did
plan to apply for a job “do[ing] a line haul for Chrysler.”
{¶28} During the second call, appellant spoke with an
individual he referred to as “cuz.” Appellant informed the
individual that he had been arrested and was being held in
Portsmouth. Appellant stated that when Trooper Lewis “pulled my
man over who was driving,” appellant “was coming down to your
crib.” After Captain Carter’s testimony, the state rested.
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{¶29} At this juncture, appellant and Whitehead moved for
Crim.R. 29(A) judgments of acquittal and asserted that the state
failed to present sufficient evidence to show that they knew
about the heroin in the vehicle or that they constructively
possessed the heroin. The trial court overruled the motions.
{¶30} On October 8, 2020, the jury found appellant guilty of
trafficking and possessing heroin, both in an amount equal to or
exceeding 50 grams. The jury also found appellant guilty of
possessing criminal tools.
{¶31} On October 30, 2020, after the trial court merged the
possession and trafficking counts, the court sentenced appellant
to serve eight years in prison for trafficking in heroin. The
court also sentenced appellant to serve 180 days in jail for the
possessing criminal tools, but ordered it be served concurrently
with his prison sentence. This appeal followed.
I
{¶32} In his first assignment of error, appellant asserts
that the trial court erred by admitting Trooper Lewis’
statements that the troopers found cocaine residue on the
passenger seat where appellant had been sitting and that they
had also discovered marijuana residue. Within his first
assignment of error, appellant also argues that to allow the
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state to fault appellant for the failure to produce proof he is
employed as a truck driver and for the failure to offer to take
a drug test violated his Fifth Amendment right against self-
incrimination. Appellant further claims that to allow into
evidence his recorded jailhouse telephone conversations violated
his Fifth Amendment right.
{¶33} “‘The admission or exclusion of relevant evidence
rests within the sound discretion of the trial court.’” State
v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 91,
quoting State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987),
paragraph two of the syllabus. Consequently, “a reviewing court
should not disturb evidentiary decisions in the absence of an
abuse of discretion that created material prejudice.” State v.
Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶
14, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266,
900 N.E.2d 565, ¶ 66; accord State v. Adams, 144 Ohio St.3d 429,
2015-Ohio-3954, 45 N.E.3d 127, ¶ 198, citing State v. Sage, 31
Ohio St.3d 173, 182, 510 N.E.2d 343 (1987). “An abuse of
discretion is more than a mere error of law or judgment.” State
v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096,
¶ 91; accord State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-
4903, 45 N.E.3d 208, ¶ 75. Instead, “‘[a] trial court abuses
SCIOTO, 20CA3934
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its discretion when it makes a decision that is unreasonable,
unconscionable, or arbitrary.’” State v. Keenan, 143 Ohio St.3d
397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, quoting State v.
Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶
34. An abuse of discretion includes a situation in which a
trial court did not engage in a “‘sound reasoning process.’”
State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d
528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d
597 (1990). Moreover, “[a]buse-of-discretion review is
deferential and does not permit an appellate court to simply
substitute its judgment for that of the trial court.” Darmond
at ¶ 34.
{¶34} As a general rule, all relevant evidence is
admissible. Evid.R. 402. Evid.R. 401 defines relevant evidence
as “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 and Evid.R. 402. A trial court must,
however, exclude relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.” Evid.R.
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403. A trial court has broad discretion to determine whether to
exclude evidence under Evid.R. 403(A), and “‘an appellate court
should not interfere absent a clear abuse of that discretion.’”
State v. Yarbrough, 95 Ohio St.3d 227, 2002–Ohio–2126, 767
N.E.2d 216, ¶ 40.
{¶35} Evid.R. 403(A) “manifests a definite bias in favor of
the admission of relevant evidence, as the dangers associated
with the potentially inflammatory nature of the evidence must
substantially outweigh its probative value before the court
should reject its admission.” State v. White, 4th Dist. Scioto
No. 03CA2926, 2004–Ohio–6005, ¶ 50. Thus, “[w]hen determining
whether the relevance of evidence is outweighed by its
prejudicial effects, the evidence is viewed in a light most
favorable to the proponent, maximizing its probative value and
minimizing any prejudicial effect to the party opposing
admission.” State v. Lakes, 2nd Dist. Montgomery No. 21490,
2007–Ohio–325, ¶ 22.
{¶36} We also recognize that, to some degree, all relevant
evidence may be prejudicial in the sense that it “tends to
disprove a party’s rendition of the facts” and, thus,
“necessarily harms that party’s case.” State v. Crotts, 104
Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23. Evid.R.
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403(A) does not, however, “attempt to bar all prejudicial
evidence.” Id. Instead, the rules provide that only unfairly
prejudicial evidence is excludable. Id. “‘Evid.R. 403(A)
speaks in terms of unfair prejudice. Logically, all evidence
presented by a prosecutor is prejudicial, but not all evidence
unfairly prejudices a defendant. It is only the latter that
Evid.R. 403 prohibits.’” State v. Skatzes, 104 Ohio St.3d 195,
2004–Ohio–6391, 819 N.E.2d 215, ¶ 107, quoting State v. Wright,
48 Ohio St.3d 5, 8, 548 N.E.2d 923 (1990). “‘Unfair prejudice’
does “not mean the damage to a defendant’s case that results
from the legitimate probative force of the evidence; rather it
refers to evidence which tends to suggest decision on an
improper basis.”’” State v. Lang, 129 Ohio St.3d 512, 2011–
Ohio–4215, 954 N.E.2d 596, ¶ 89, quoting United States v. Bonds,
12 F.3d 540 (6th Cir.1993). Unfairly prejudicial evidence is
evidence that “might result in an improper basis for a jury
decision.” Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169,
172, 743 N.E.2d 890 (2001), quoting Weissenberger’s Ohio
Evidence (2000) 85–87, Section 403.3. It is evidence that
arouses the jury’s emotions, that “‘evokes a sense of horror,’”
or that “‘appeals to an instinct to punish.’” Id. “‘Usually,
although not always, unfairly prejudicial evidence appeals to
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the jury’s emotions rather than intellect.’” Id. Thus,
“[u]nfavorable evidence is not equivalent to unfairly
prejudicial evidence.” State v. Bowman, 144 Ohio App.3d 179,
185, 759 N.E.2d 856 (12th Dist.2001).
{¶37} In the case sub judice, we do not believe that the
trial court abused its discretion by allowing the state to
introduce evidence that, during the traffic stop, the troopers
discovered marijuana and cocaine residue. First, when Trooper
Lewis initially mentioned during his testimony that he
discovered marijuana residue inside the plastic baggie that
McKee dropped, appellant did not object. Appellant also did not
object the next time Lewis mentioned the marijuana residue.
Appellant did object when the prosecutor attempted to ask Lewis
whether anyone later admitted that the bag contained marijuana.
Appellant did assert that, because none of the individuals had
been charged with a marijuana-related offense, the evidence was
irrelevant. The trial court, however, overruled the objection.
{¶38} Here, because appellant did not object to Trooper
Lewis’ initial statements regarding the discovery of marijuana
residue, appellant did not properly preserve any error
concerning this testimony. Moreover, we do not believe that any
error that the trial court arguably made constitutes plain
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error. Thus, we disagree with appellant that the trial court
erred by allowing this testimony.
{¶39} Next, we do not believe the trial court’s decision to
permit Trooper Lewis to testify that he found cocaine residue on
the seat where appellant had been sitting constitutes an abuse
of discretion. Even if the evidence was prejudicial, it is not
so unfairly prejudicial that the jury decided the case on an
improper basis. Instead, as we explain in our discussion of
appellant’s second assignment of error, the state presented
ample evidence to support appellant’s convictions.
{¶40} We also do not believe that the trial court’s decision
to allow the state to ask Trooper Lewis questions on redirect to
counter appellant’s cross-examination constitutes an abuse of
discretion. During cross-examination, appellant’s counsel asked
Lewis whether appellant had stated that he is a truck driver and
whether Lewis asked appellant to take a drug test to see if
appellant had been using cocaine. “Once defense counsel posed
the question[s] * * *, he opened the door to further questioning
on that issue.” Portsmouth v. Wrage, 4th Dist. Scioto No.
08CA3237, 2009-Ohio-3390, ¶ 34. Appellant may not, therefore,
complain on appeal that the trial court erred by allowing the
state to raise those issues during Lewis’ redirect examination.
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Id., citing State v. Diar, 120 Ohio St.3d 460, 2008–Ohio–6266,
900 N.E.2d 565, ¶ 74.
{¶41} Additionally, appellant challenges the testimony that
appellant “whispered when he spoke or covered his mouth.” We
point out, however, that appellant’s counsel elicited this
testimony during Trooper Lewis’ cross-examination. Thus,
appellant invited any error that may have occurred. E.g., State
v. Hare, 2018-Ohio-765, 108 N.E.3d 172, ¶ 45 (2d Dist.)
(invited-error doctrine applies when defense counsel elicits
allegedly improper testimony on cross-examination). The
invited-error doctrine precludes a litigant from “‘tak[ing]
advantage of an error which [the litigant] invited or induced.’”
State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d
616, ¶ 279, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor
Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502 N.E.2d 590(1986), paragraph one of the syllabus. Consequently, appellant
cannot now challenge the testimony as improperly admitted.
{¶42} Appellant further contends that the trial court erred
by allowing the state to admit into evidence his jailhouse phone
calls. Although appellant appears to assert that the statements
should be deemed inadmissible because “he did not make
statements to the troopers,” he does not specifically explain
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the meaning of this assertion. Moreover, we observe that
appellant and McKee both repeated that appellant is a truck
driver and that they intended to visit “some females” in
Kentucky. Thus, appellant’s statements in the jailhouse calls
are relevant to show that appellant was less than truthful
during the traffic stop. Also, Evid.R. 801(D)(2)(a) explicitly
allows statements offered against a party if the statement is
“the party’s own statement, in either an individual or a
representative capacity.” In the case sub judice, appellant
made these statements and Evid.R. 801(D)(2)(a) allows the state
to introduce the statements into evidence.
{¶43} Appellant also contends that admitting into evidence
his jailhouse phone calls and allowing testimony regarding his
demeanor during the traffic stop violated his Fifth Amendment
right against self-incrimination.4 However, numerous Ohio courts
have determined that a defendant’s demeanor, conduct, and
statements that surround a criminal act are relevant to show a
defendant’s consciousness of guilt. State v. Johnson, 144 Ohio
St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 72 (a defendant’s
statements, “like other conduct following the completion of a
4
The Fifth Amendment to the United States Constitution
provides that no person “shall be compelled in any criminal case
to be a witness against himself.”
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crime, may be relevant evidence of consciousness of guilt”);
State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d
596, ¶ 126 (defendant’s “conduct and comments after the murders
were relevant in reflecting his consciousness of guilt”); State
v. Williams, 79 Ohio St.3d 1, 11, 679 N.E.2d 646 (1997) (“It is
today universally conceded that the fact of an accused’s flight,
escape from custody, resistance to arrest, concealment,
assumption of a false name, and related conduct, are admissible
as evidence of consciousness of guilt, and thus of guilt
itself.”); State v. A.W.M., 10th Dist. Franklin No. 18AP-523,
2020-Ohio-4707, ¶ 61 (“a prosecutor ‘may comment’ on matters
such as a defendant’s demeanor”); State v. Hill, 2018-Ohio-4800,
125 N.E.3d 158, ¶ 54 (11th Dist.), quoting State v. Thompson,
10th Dist. Franklin No. 05AP-1268, 2006-Ohio-3440, ¶ 21
(“exculpatory statements, ‘when shown to be false or misleading,
are circumstantial evidence of guilty consciousness and have
independent probative value’”); see generally Wilson v. United
States, 162 U.S. 613, 620-621, 16 S.Ct. 895, 40 L.Ed. 1090(1896) (“if the jury were satisfied, from the evidence, that
false statements in the case were made by defendant * * *, they
had the right * * * to regard false statements in explanation or
SCIOTO, 20CA3934
24
defense, made or procured to be made, as in themselves tending
to show guilt”).
{¶44} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II
{¶45} In his second assignment of error, appellant asserts
that his convictions are against the manifest weight of the
evidence and that sufficient evidence does not support his
convictions. Appellant contends that the state did not present
any evidence to prove that he knowingly possessed or trafficked
in the heroin found in the vehicle. Appellant argues that the
evidence adduced at trial shows that he was merely present in
the vehicle and lacked any knowledge about the heroin hidden in
the driver’s seat.
A
{¶46} Initially, we observe that “sufficiency” and “manifest
weight” present two distinct legal concepts. Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶
23 (“sufficiency of the evidence is quantitatively and
qualitatively different from the weight of the evidence”); State
v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997),
syllabus. A claim of insufficient evidence invokes a due process
SCIOTO, 20CA3934
25
concern and raises the question whether the evidence is legally
sufficient to support the verdict as a matter of law.
Thompkins, 78 Ohio St.3d at 386. When reviewing the sufficiency
of the evidence, our inquiry focuses primarily upon the adequacy
of the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable
doubt. Id. at syllabus. The standard of review is whether,
after viewing the probative evidence and inferences reasonably
drawn therefrom in the light most favorable to the prosecution,
any rational trier of fact could have found all the essential
elements of the offense beyond a reasonable doubt. E.g.,
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574
N.E.2d 492 (1991). Furthermore, a reviewing court is not to
assess “whether the state’s evidence is to be believed, but
whether, if believed, the evidence against a defendant would
support a conviction.” Thompkins, 78 Ohio St.3d at 390 (Cook,
J., concurring).
{¶47} Thus, when reviewing a sufficiency-of-the-evidence
claim, an appellate court must construe the evidence in a light
most favorable to the prosecution. E.g., State v. Hill, 75 Ohio
St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio
SCIOTO, 20CA3934
26
St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will
not overturn a conviction on a sufficiency-of-the-evidence claim
unless reasonable minds could not reach the conclusion that the
trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162,
749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484,
739 N.E.2d 749 (2001).
{¶48} “Although a court of appeals may determine that a
judgment of a trial court is sustained by sufficient evidence,
that court may nevertheless conclude that the judgment is
against the weight of the evidence.” Thompkins, 78 Ohio St.3d
at 387. “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 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
SCIOTO, 20CA3934
27
St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 328. 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, 2d Dist. Montgomery No. 21434, 2006-
Ohio-6312, ¶ 6, quoting State v. Lawson, 2d Dist. Montgomery No.
16288 (Aug. 22, 1997). As the Eastley court explained:
“‘[I]n determining whether the judgment below is
manifestly against the weight of the evidence, every
reasonable intendment 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 leave the issues of
SCIOTO, 20CA3934
28
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.”).
{¶49} Accordingly, if the prosecution presented substantial
credible evidence upon which the trier of fact reasonably could
conclude, beyond a reasonable doubt, that the essential elements
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);
SCIOTO, 20CA3934
29
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, 485 N.E.2d 717; 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).
{¶50} We also observe that, when 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. E.g., State v.
Waller, 4th Dist. Adams No. 17CA1044, 2018-Ohio-2014, ¶ 30.
Thus, a determination that the weight of the evidence supports a
conviction is also dispositive of the issue of sufficiency. Id.B
{¶51} Initially, we observe that, although the trial court
found appellant guilty of trafficking and possessing heroin, the
trial court merged the possession offense with the trafficking
offense. Thus, if sufficient evidence supports appellant’s
trafficking conviction, and if the conviction is not against the
manifest weight of the evidence, an erroneous verdict on the
SCIOTO, 20CA3934
30
merged count would be harmless. State v. Worley, 164 Ohio St.3d
589, 2021-Ohio-2207, 174 N.E.3d 754, ¶ 73; State v. Powell, 49
Ohio St.3d 255, 263, 552 N.E.2d 191 (1990); State v. Campbell,
4th Dist. Vinton No. 20CA723, 2021-Ohio-2482, ¶ 46; see State v.
Williams, 4th Dist. Scioto No. 11CA3408, 2012-Ohio-4693, ¶ 54
(because a trial court does not impose a sentence for merged
offenses, a defendant is not “convicted” of merged offenses and
thus there is no “conviction” on merged offenses for appellate
court to vacate). Consequently, if we determine that sufficient
evidence supports appellant’s trafficking conviction and that
conviction is also not against the manifest weight of the
evidence, we need not address appellant’s arguments regarding
the possession offense.
{¶52} R.C. 2925.03(A)(2)5 sets forth the essential elements
of trafficking in drugs:
No person shall knowingly
* * *
5
The trial court’s sentencing entry and the verdict form do
not conform to the trial court’s oral decision to amend the
indictment to charge a violation of R.C. 2925.03(A)(2).
Instead, the court’s entry and the verdict forms recite R.C.
2925.03(A)(1). None of the parties pointed out the discrepancy
during the trial. The court did, however, instruct the jury in
accordance with R.C. 2925.03(A)(2). Under these circumstances,
we believe that the trial court committed a clerical error that
it may correct at any time.
SCIOTO, 20CA3934
31
(2) Prepare for shipment, ship, transport,
deliver, prepare for distribution, or distribute a
controlled substance or a controlled substance analog,
when the offender knows or has reasonable cause to
believe that the controlled substance or a controlled
substance analog is intended for sale or resale by the
offender or another person.
Additionally, R.C. 2923.03(A)(2), Ohio’s complicity statute
provides, in relevant part, that “[n]o person, acting with the
kind of culpability required for the commission of an offense,
shall * * * [a]id or abet another in committing the offense.”
“[T]o aid or abet is ‘”[t]o assist or facilitate the commission
of a crime, or to promote its accomplishment.”’” State v.
McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶
27, quoting State v. Johnson, 93 Ohio St.3d 240,243, 754 N.E.2d
796 (2001), quoting Black’s Law Dictionary 69 (7th Ed.1999).
{¶53} A conviction for aiding and abetting under R.C.
2923.03(A)(2) requires the state to prove, beyond a reasonable
doubt, “that the defendant supported, assisted, encouraged,
cooperated with, advised, or incited the principal in the
commission of the crime, and that the defendant shared the
criminal intent of the principal.” Johnson at syllabus.
“‘Participation in criminal intent may be inferred from
presence, companionship and conduct before and after the offense
is committed.’” Id. at 245, quoting State v. Pruett, 28 Ohio
SCIOTO, 20CA3934
32
App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). However, “‘the
mere presence of an accused at the scene of a crime is not
sufficient to prove, in and of itself, that the accused was an
aider and abettor.’” Id. at 243, quoting State v. Widner, 69
Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). “This rule is to
protect innocent bystanders who have no connection to the crime
other than simply being present at the time of its commission.”
Id.{¶54} We further observe that the complicity statute does
not require the state to charge the defendant with complicity.
Instead, R.C. 2923.03(F) allows the state to charge the
defendant as a principal offender: “[a] charge of complicity may
be stated in terms of [the complicity statute], or in terms of
the principal offense.” R.C. 2923.03(F).
{¶55} In the case sub judice, the state charged appellant in
terms of the principal offense. At trial, the state asserted
that appellant also is guilty as an aider and abettor, and the
trial court gave the jury the complicity instructions. We
therefore will review whether the state presented sufficient
evidence to establish either that (1) appellant aided and
abetted the principal offender in trafficking in heroin, or (2)
appellant trafficked in heroin as a principal offender.
SCIOTO, 20CA3934
33
{¶56} As we noted above, a complicity conviction requires
the state to prove “the defendant supported, assisted,
encouraged, cooperated with, advised, or incited the principal
in the commission of the crime, and that the defendant shared
the criminal intent of the principal.” Johnson at syllabus.
R.C. 2925.03(A)(2) requires that an offender act knowingly in
committing the offense. Therefore, a complicity to trafficking
in drugs conviction requires the state to demonstrate that the
defendant knowingly “supported, assisted, encouraged, cooperated
with, advised, or incited the principal in the commission of the
crime.” Id.{¶57} R.C. 2901.22(B) defines when a person acts knowingly:
A person acts knowingly, regardless of purpose,
when the person is aware that the person’s conduct
will probably cause a certain result or will probably
be of a certain nature. A person has knowledge of
circumstances when a person is aware that such
circumstances probably exist. When knowledge of the
existence of a particular fact is an element of an
offense, such knowledge is established if a person
subjectively believes that there is a high probability
of its existence and fails to make inquiry or acts
with a conscious purpose to avoid learning the fact.
{¶58} We observe that “‘[t]he intent of an accused person
dwells in his mind’” and that intent “‘can never be proved by
the direct testimony of a third person.’” State v. Johnson, 56
Ohio St.2d 35, 38, 381 N.E.2d 637 (1978), quoting State v.
SCIOTO, 20CA3934
34
Huffman, 131 Ohio St. 27, 1 N.E.2d 313 (1936), paragraph four of
the syllabus. Rather, intent “‘must be gathered from the
surrounding facts and circumstances under proper instructions
from the court.’” Id., quoting Huffman, paragraph four of the
syllabus; e.g., State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-
791, 842 N.E.2d 996, ¶ 143; State v. Garner, 74 Ohio St.3d 49,
60, 656 N.E.2d 623 (1995). We further observe that “[i]ntention
is a question of fact, and not one of law.” Koenig v. State,
121 Ohio St. 147, 151, 167 N.E. 385 (1929); State v. Wamsley,
6th Dist. Butler No. CA2002-05-109, 2003-Ohio-1872, ¶ 18.
{¶59} To sustain an R.C. 2925.03(A)(2) trafficking
conviction as a principal offender, the state must prove that a
defendant had control over, i.e., possessed, the illegal
substance. State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d
181, 2008–Ohio–1625, ¶ 30, quoting R.C. 2925.01(K) (in order to
ship, transport, deliver, distribute, etc., “the offender must
‘hav[e] control over’” the illegal substance); see State v.
Floyd, 7th Dist. No. 18 MA 0106, 2019-Ohio-4878, ¶ 21 (R.C.
2925.03(A)(2) requires “possession of the controlled substance,
either constructive or actual”).
{¶60} “Possession” is generally defined as “having control
over a thing or substance, but may not be inferred solely from
SCIOTO, 20CA3934
35
mere access to the thing or substance through ownership or
occupation of the premises upon which the thing or substance is
found.” R.C. 2925.01(K). Whether a person knowingly possessed
a controlled substance “is to be determined from all the
attendant facts and circumstances available.” State v. Teamer,
82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998).
{¶61} “Possession * * * may be individual or joint, actual
or constructive.” State v. Wolery, 46 Ohio St.2d 316, 332, 348
N.E.2d 351 (1976); State v. Fry, 4th Dist. Jackson No. 03CA26,
2004-Ohio-5747, ¶ 39. “‘Actual possession exists when the
circumstances indicate that an individual has or had an item
within his immediate physical possession.’” State v. Kingsland,
177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶ 13 (4th
Dist.), quoting Fry at ¶ 39. “Constructive possession exists
when an individual knowingly exercises dominion and control over
an object, even though that object may not be within his
immediate physical possession.” State v. Hankerson, 70 Ohio
St.2d 87, 434 N.E.2d 1362 (1982), syllabus; State v. Brown, 4th
Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19. For constructive
possession to exist, the state must show that the defendant was
conscious of the object’s presence. Hankerson, 70 Ohio St.2d at
91; Kingsland at ¶ 13; accord State v. Huckleberry, 4th Dist.
SCIOTO, 20CA3934
36
Scioto No. 07CA3142, 2008-Ohio-1007, ¶ 34; State v. Harrington,
4th Dist. Scioto No. 05CA3038, 2006-Ohio-4388, ¶ 15.
{¶62} Both dominion and control, and whether a person was
conscious of the object’s presence, may be established through
circumstantial evidence. E.g., Brown at ¶ 19; see, e.g., State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph
one of the syllabus (“[c]ircumstantial evidence and direct
evidence inherently possess the same probative value”).
“Circumstantial evidence is defined as ‘[t]estimony not based on
actual personal knowledge or observation of the facts in
controversy, but of other facts from which deductions are drawn,
showing indirectly the facts sought to be proved. * * * ’ ”
State v. Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988),
quoting Black’s Law Dictionary 221 (5 Ed.1979).
{¶63} Furthermore, to establish constructive possession, the
state need not show that the defendant had “[e]xclusive control”
over the contraband. State v. Tyler, 8th Dist. Cuyahoga No.
99402, 2013-Ohio-5242, ¶ 24, citing State v. Howard, 8th Dist.
Cuyahoga No. 85034, 2005-Ohio-4007, ¶ 15, citing In re Farr,
10th Dist. Franklin No. 93AP-201, 1993 WL 464632, *6 (Nov. 9,
1993) (nothing in R.C. 2925.11 or 2925.01 “states that illegal
drugs must be in the sole or exclusive possession of the accused
SCIOTO, 20CA3934
37
at the time of the offense”). Instead, “‘[a]ll that is required
for constructive possession is some measure of dominion or
control over the drugs in question, beyond mere access to
them.’” Howard at ¶ 15, quoting Farr at *6. Thus, simply
because others may have access in addition to the defendant does
not mean that the defendant “could not exercise dominion or
control over the drugs.” Tyler at ¶ 24; accord State v. Walker,
10th Dist. Franklin No. 14AP-905, 2016-Ohio-3185, ¶ 75. We
further note that multiple persons may have joint constructive
possession of an object. State v. Philpott, 8th Dist. Cuyahoga
Nos. 109173, 109174, and 109175, 2020-Ohio-5267, ¶ 67; Wolery,
46 Ohio St.2d at 332, 329 (“[p]ossession * * * may be individual
or joint” and “control or dominion may be achieved through the
instrumentality of another”).
{¶64} Moreover, “a factfinder can ‘conclude that a defendant
who exercises dominion and control over an automobile also
exercises dominion and control over illegal drugs found in the
automobile.’” State v. Yakimicki, 10th Dist. Franklin No. 12AP–
894, 2013–Ohio–2663, ¶ 23, quoting State v. Rampey, 5th Dist.
Stark No. 2004CA00102, 2006–Ohio–1383, ¶ 37; accord State v.
Walker, 4th Dist. Athens No. 16CA26, 2017-Ohio-8814, ¶ 27.
SCIOTO, 20CA3934
38
{¶65} In the case sub judice, we believe that the
prosecution adduced sufficient evidence at trial that, if
believed, established that appellant knowingly transported, and
exercised dominion and control over, the heroin found in the
back of the driver’s seat, or that appellant knowingly aided or
abetted the principal offender in committing the offense.
Appellant rented the vehicle, apparently one week before the
troopers discovered the heroin hidden inside the vehicle, and
thus had dominion and control over the vehicle. His dominion
and control permitted an inference that he also had dominion and
control over the heroin discovered inside the vehicle.
Furthermore, the rental car representative stated that rental
vehicles undergo a thorough inspection between rentals and any
vehicle damage would have been noted on appellant’s inspection
report. When appellant rented the vehicle, the inspection did
not document any damage. When the troopers stopped the vehicle,
however, Trooper Lloyd noticed visible damage to the back of the
driver’s seat. From this testimony, the jury could have
reasonably inferred that the damage did not exist when appellant
rented the car and that appellant, having dominion and control
of the vehicle, is responsible for the damage, or that someone
under appellant’s direction is responsible for the damage.
SCIOTO, 20CA3934
39
Likewise, this testimony allowed the jury to reasonably infer
that appellant, or one of his two companions, stuffed the heroin
inside the back of the driver’s seat.
{¶66} The evidence additionally shows that the jury could
have inferred that appellant knew that the vehicle contained
more than 50 grams of heroin. Appellant, who denied knowing
anything about the heroin, also stated that he is a truck driver
and that he and his companions traveled from Michigan to visit
“some females” in Kentucky. The state, however, later played
appellant’s recorded jailhouse phone conversations in which he
stated that (1) he and his two companions had been traveling to
Kentucky when Trooper Lewis stopped the vehicle, and (2) he was
not employed at the time. Both statements tend to show that
appellant had not been truthful and are evidence of
consciousness of guilt.
{¶67} Moreover, the jury watched the video evidence of the
traffic stop, including appellant’s demeanor while seated in the
back of Trooper Lewis’ patrol cruiser. Because Lewis testified
that appellant covered his mouth when he spoke and whispered,
the jury could have reasonably determined that appellant’s
conduct further indicated his guilt. The jury also had the
opportunity to view appellant’s demeanor shortly after the
SCIOTO, 20CA3934
40
troopers revealed that they had discovered heroin in the vehicle
and could have determined that the combination of appellant’s
and McKee’s words and demeanor indicated that they may not be
telling the truth. The jury also could have considered the
evidence and determined that appellant, McKee, and Whitehead
acted in concert to concoct a cover story that Smith is a truck
driver and the three were simply on their way to Kentucky to
visit “some females.”
{¶68} After our review, we believe that when viewed in a
light most favorable to the prosecution, the evidence adduced at
trial supports the conclusion that appellant knowingly
transported heroin, or that he assisted, facilitated, or
supported the principal offender to transport the heroin. Here,
appellant was not simply an innocent bystander who, by mere
happenstance, found himself at a crime scene, but with no
connection to the crime other than being present. Rather, the
evidence established that appellant and his companions traveled
from Michigan in appellant’s rented vehicle that contained a
large amount of heroin concealed in the back of the driver’s
seat. Appellant’s actions, statements and conduct prior, during
and subsequent to the traffic stop established his involvement
and culpability in this criminal enterprise. Once again,
SCIOTO, 20CA3934
41
criminal intent may be inferred from circumstantial evidence,
including presence, companionship and conduct that occurred
before, during and after the commission of a criminal offense.
Furthermore, as we pointed out supra, multiple persons may have
simultaneous joint constructive possession of an object.
{¶69} Therefore, based upon all of the evidence presented at
trial, a rational trier of fact could have found that appellant
knowingly trafficked in heroin or that he knowingly aided and
abetted the principal offender in committing the offense of
trafficking in heroin. Consequently, we believe that the record
contains sufficient evidence to support appellant’s trafficking
conviction.
{¶70} Furthermore, we do not agree with appellant that the
state rested its case upon the discovery of marijuana and
cocaine residue. Instead, as we explained above, the state
presented ample evidence to prove appellant’s guilt for
trafficking in heroin, either as a principal offender or as an
aider and abettor.
{¶71} For similar reasons, we do not believe that the
evidence weighs heavily against appellant’s conviction for
complicity to trafficking in heroin. The state presented ample
circumstantial evidence to show that appellant knowingly
SCIOTO, 20CA3934
42
trafficked in heroin or that he knowingly aided or abetted the
principal offender in committing the offense. The jury
obviously credited the state’s theory of the case and we are
unable to conclude that the jury committed a manifest
miscarriage of justice by convicting appellant.6
{¶72} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
III
{¶73} In his third assignment of error, appellant asserts
that his conviction for possessing criminal tools contradicts
his trafficking and possession convictions. In particular,
appellant argues that because the jury found that appellant did
not intend to use the vehicle to commit a felony offense, “it is
inconceivable that the drugs found concealed in the vehicle
where [sic] knowingly transported or possessed.” Appellant,
however, does not cite any authority to support his argument.
{¶74} Under App.R. 16(A)(7), an appellant’s brief shall
include “[a]n argument containing the contentions of the
appellant with respect to each assignment of error presented for
6
Appellant did not raise a specific argument that his
possessing criminal tools conviction is against the manifest
weight of the evidence, or that sufficient evidence does not
support it. We therefore do not address it.
SCIOTO, 20CA3934
43
review and the reasons in support of the contentions, with
citations to the authorities, statutes, and parts of the record
on which appellant relies.” Appellate courts will not perform
independent research to create an argument for a litigant.
State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19
N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring
in part and dissenting in part), quoting Carducci v. Regan, 714
F.2d 171, 177 (D.C. Cir. 1983) (“‘“appellate courts do not sit
as self-directed boards of legal inquiry and research, but
[preside] essentially as arbiters of legal questions presented
and argued by the parties before them”’”); accord State v.
Lykins, 4th Dist. Adams No. 18CA1079, 2019-Ohio-3316, ¶ 57.
“[W]e cannot write a party’s brief, pronounce ourselves
convinced by it, and so rule in the party’s favor. That’s not
how an adversarial system of adjudication works.” Xue Juan Chen
v. Holder, 737 F.3d 1084, 1085 (7th Cir. 2013). In view of
appellant’s lack of authority in support of his position, we
reject his argument that the possessing criminal tools
conviction is inconsistent with his trafficking conviction. See
In re Application of Columbus S. Power Co., 129 Ohio St.3d 271,
SCIOTO, 20CA3934
44
2011-Ohio-2638, 951 N.E.2d 751, ¶ 14 (failure to cite legal
authority or present an argument that a legal authority applies
on these facts and was violated * * * is grounds to reject [a]
claim); Robinette v. Bryant, 4th Dist. Lawrence No. 14CA28,
2015-Ohio-119, ¶ 33 (“It is within our discretion to disregard
any assignment of error that fails to present any citations to
cases or statutes in support.”). We further note that it is
well-established that “‘[t]he several counts of an indictment
containing more than one count are not interdependent and an
inconsistency in a verdict does not arise out of inconsistent
responses to different counts, but only arises out of
inconsistent responses to the same count.’” State v. Ford, 158
Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 347, quoting
State v. Adams, 53 Ohio St.2d 223, 374 N.E.2d 137 (1978),
paragraph two of the syllabus.
{¶75} Accordingly, based upon the foregoing reasons, we
overrule appellant’s third assignment of error.
IV
{¶76} In his fourth assignment of error, appellant asserts
that he did not receive effective assistance of counsel. In
particular, appellant contends that his trial counsel was
ineffective for (1) withdrawing his motion to suppress evidence,
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(2) failing to file a motion for separate trials, and (3)
failing to object to the state’s motion to amend the indictment.
A
{¶77} 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) (the 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”).
{¶78} 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, ¶
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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
court need not analyze both. State v. Madrigal, 87 Ohio St.3d
378, 389, 721 N.E.2d 52 (2000) (a defendant’s failure to satisfy
one of the ineffective-assistance-of-counsel elements “negates a
court's need to consider the other”).
{¶79} 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; accord Hinton, 571 U.S. at 273. 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).
{¶80} Furthermore, “‘[i]n any case presenting an
ineffectiveness claim, “the performance inquiry must be whether
counsel’s assistance was reasonable considering all the
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circumstances.”’” Hinton, 571 U.S. at 273, 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 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).
{¶81} 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-
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6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153,
156, 524 N.E.2d 476 (1988).
{¶82} 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). “‘[T]he question is whether
there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.’”
Hinton, 571 U.S. at 275, quoting Strickland, 466 U.S. at 695.
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); see generally Roe v.
Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d
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985 (2008) (prejudice may be presumed in limited contexts, none
of which are relevant here).
{¶83} 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, 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). We further note that counsel’s failure to file a futile
or frivolous motion “‘cannot be the basis for claims of
ineffective assistance of counsel and is not prejudicial.’”
State v. Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109, ¶
12, quoting State v. Witherspoon, 8th Dist. Cuyahoga No. 94475,
2011-Ohio-704, ¶ 33.
B
{¶84} Appellant first argues that trial counsel performed
ineffectively by withdrawing his motion to suppress evidence
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because his motion had a reasonable probability of success.
Appellant asserts that Trooper Lewis did not have a lawful basis
to stop or to search the vehicle. Appellant also argues that
the trial court would have suppressed certain statements
appellant made during the traffic stop if counsel had not
withdrawn the motion to suppress evidence. In particular,
appellant alleges that he made statements without proper Miranda
warnings and that they should have been inadmissible.
{¶85} Initially, we point out that trial counsel’s “‘failure
to file a suppression motion does not constitute per se
ineffective assistance of counsel.’” State v. Madrigal, 87 Ohio
St.3d 378, 389, 721 N.E.2d 52 (2000), quoting Kimmelman v.
Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305(1986); accord State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-
1914, 12 N.E.3d 1112, ¶ 126. “To establish ineffective
assistance of counsel for failure to file a motion to suppress,
a defendant must prove that there was a basis to suppress the
evidence in question.” State v. Brown, 115 Ohio St.3d 55, 2007-
Ohio-4837, 873 N.E.2d 858, ¶ 65, citing State v. Adams, 103 Ohio
St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 35. “‘Where the
record contains no evidence which would justify the filing of a
motion to suppress, the appellant has not met his burden of
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proving that his attorney violated an essential duty by failing
to file the motion.’” State v. Drummond, 111 Ohio St.3d 14,
2006-Ohio-5084, 854 N.E.2d 1038, ¶ 208, quoting State v. Gibson,
69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th Dist.1980). “‘Even
if some evidence in the record supports a motion to suppress,
counsel is still considered effective if counsel could
reasonably have decided that filing a motion to suppress would
have been a futile act.’” State v. Moon, 8th Dist. Cuyahoga No.
101972, 2015-Ohio-1550, ¶ 28, quoting State v. Suarez, 12th
Dist. Warren No. CA2014-02-035, 2015-Ohio-64, ¶ 13; see State v.
Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109, ¶ 12,
quoting State v. Witherspoon, 8th Dist. Cuyahoga No. 94475,
2011-Ohio-704, ¶ 33 (“‘[t]he failure to do a futile act cannot
be the basis for claims of ineffective assistance of counsel and
is not prejudicial’”).
{¶86} In the case at bar, as we explain below, we do not
believe that appellant has shown a valid basis to suppress the
evidence discovered during the traffic stop. Thus, even if some
evidence in the record might support a suppression motion, trial
counsel reasonably could have decided that filing the motion
would have been a futile act. Appellant has not, therefore,
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shown that trial counsel violated an essential duty by failing
to file a motion to suppress evidence.
C
{¶87} 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.
{¶88} A traffic stop initiated by a law enforcement officer
constitutes a seizure within the meaning of the Fourth
Amendment. Whren v. United States, 517 U.S. 806, 809–810, 116
S.Ct. 1769, 135 L.Ed.2d 89 (1996); Prouse, 440 U.S. at 653.
Thus, a traffic stop must comply with the Fourth Amendment’s
general reasonableness requirement. Id. An officer’s decision
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to stop a vehicle is reasonable when the officer has probable
cause or reasonable suspicion to believe that a traffic
violation has occurred. Whren, 517 U.S. at 810 (citations
omitted); accord State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-
4539, 894 N.E.2d 1204, ¶ 23; Dayton v. Erickson, 76 Ohio St.3d
3, 11–12, 665 N.E.2d 1091 (1996). Law enforcement officers also
may stop a vehicle if they have reasonable suspicion “that
criminal activity ‘“may be afoot.”’” United States v. Arvizu,
534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002),
quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581,
104 L.Ed.2d 1 (1989), quoting Terry v. Ohio, 392 U.S. 1, 30, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968); accord State v. Tidwell, 165
Ohio St.3d 57, 2021-Ohio-2072, 175 N.E.3d 527, ¶ 19 (officer may
“make an investigatory stop, including a traffic stop, of a
person if the officer has reasonable suspicion to believe that
the person is or is about to be engaged in criminal activity”).
{¶89} Courts that are reviewing whether an officer had a
reasonable suspicion or probable cause to stop a vehicle must
consider the “totality of circumstances” as “viewed through the
eyes of the reasonable and prudent police officer on the scene
who must react to events as they unfold.” State v. Andrews, 57
Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991). The totality-of-
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the-circumstances approach “allows officers to draw on their own
experience and specialized training to make inferences from and
deductions about the cumulative information available to them
that ‘might well elude an untrained person.’” Arvizu, 534 U.S.
at 273, quoting United States v. Cortez, 449 U.S. 411, 418, 101
S.Ct. 690, 66 L.Ed.2d 621 (1981).
1
{¶90} Appellant first argues that Trooper Lewis did not have
a reasonable suspicion to stop the vehicle.7 Appellant asserts
that the trooper did not articulate any facts to suggest that
the driver of the vehicle committed a traffic violation.
Appellant thus contends that in the absence of a traffic
violation, Lewis lacked any reasonable suspicion to stop the
vehicle.
{¶91} Law enforcement officers need not necessarily observe
a distinct traffic violation in order to conduct an
investigative stop of an automobile. See State v. Hawkins, 158
Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶ 21-24. In
Hawkins, for example, the court held that an officer possessed
7
Passengers in a vehicle, as well as the driver, have
standing to challenge the constitutionality of a traffic stop.
Brendlin v. California, 551 U.S. 249, 259, 127 S.Ct. 2400, 168
L.Ed.2d 132 (2007); State v. Carter, 69 Ohio St.3d 57, 63, 630
N.E.2d 355 (1994).
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reasonable suspicion to stop a vehicle when the color of the
vehicle did not match the color listed on the vehicle’s
registration and when the officer stated that, “in his
experience, the color discrepancy could signify that the vehicle
either was stolen or had an illegal license plate.” Id. at ¶
24. The court explained that even though “color discrepancy”
may not be a crime and could have “an innocent explanation,”
this color discrepancy may nevertheless give an officer
reasonable suspicion to believe that criminal activity is afoot.
Id. at ¶ 23. The court reasoned:
To assign noncriminal behavior no weight would
“seriously undercut the ‘totality of the
circumstances’ principle which governs the existence
vel non of ‘reasonable suspicion.’” [Arvizu, 534 U.S.]
at 274-275. Behavior and circumstances that are
noncriminal by nature may “be unremarkable in one
instance * * * while quite unusual in another.” Id.
at 276, 122 S.Ct. 744. An officer is “entitled to
make an assessment of the situation in light of his
specialized training and familiarity with the customs
of the area's inhabitants.” Id.Id. at ¶ 23. Thus, the totality of the circumstances inquiry
allows officers to consider all of the surrounding circumstances
-– even seemingly innocuous ones -- when determining whether
they have reasonable suspicion to believe that criminal activity
may be afoot. See Arvizu, 534 U.S. at 275-276 (a vehicle’s
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deceleration may give an officer reasonable suspicion to stop a
vehicle depending upon the totality of the circumstances present
in the case).
{¶92} In the case sub judice, Trooper Lewis articulated
several factors to support his belief that criminal activity
might be afoot. First, Lewis noted that the vehicle was a
rental car. The trooper explained that, in his experience,
individuals who transport drugs commonly use rental cars as a
means to avoid detection. Additionally, Lewis observed that the
vehicle (1) failed to maintain a safe distance from the vehicle
traveling in front of it, (2) dropped its speed to 40 miles per
hour while in a 55-mile-per-hour zone, and (3) made an
unexpected lane change. The totality of the circumstances,
therefore, would support a finding that Lewis possessed a
reasonable suspicion that criminal activity may be afoot, and
probable cause to believe that a traffic violation had occurred.
{¶93} Consequently, we do not agree with appellant that
Trooper Lewis lacked a lawful basis to conduct the traffic stop.
Trial counsel thus was not ineffective for failing to file a
motion to suppress evidence on this basis.
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2
{¶94} To the extent appellant contends that trial counsel
performed ineffectively by failing to file a motion to suppress
evidence based upon Trooper Lewis’ pat-down search of McKee,
appellant lacks standing to challenge the search of McKee.
Rakas v. Illinois, 439 U.S. 128, 133–134, 99 S.Ct. 421, 58
L.Ed.2d 387 (1978), quoting Alderman v. United States, 394 U.S.
165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (“‘Fourth
Amendment rights are personal rights which * * * may not be
vicariously asserted’”). Instead, “defendants may only claim
the benefits of the exclusionary rule if their Fourth Amendment
rights have been violated.” State v. Horsley, 4th Dist. Scioto
No. 12CA3473, 2013-Ohio-901, ¶ 16.
{¶95} Consequently, in light of the fact that appellant
lacks standing to challenge the legality of Trooper Lewis’
search of the driver, trial counsel was not ineffective for
failing to file a motion to suppress evidence on this basis.
3
{¶96} Appellant further claims that his suppression motion
would have had a reasonable probability of success because the
troopers did not observe any unlawful activity to permit them to
search the vehicle. We do not agree.
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{¶97} When a law enforcement officer has probable cause to
believe that a vehicle contains contraband, the officer may
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); see State v. Lang, 117 Ohio App.3d 29, 36,
689 N.E.2d 994 (1st Dist.1996) (discovery of cocaine in a
vehicle in plain view provided probable cause to search the
remainder of the vehicle for contraband). 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).
{¶98} Additionally, courts have held that the observance of
marijuana “residue” or “flakes” will give officers “probable
cause to search the entire vehicle.” State v. Gordon, 5th Dist.
Fairfield No. 14-CA-13, 2014-Ohio- 5027, ¶ 25 (“marijuana flakes
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in plain view on [a] driver’s lap”); State v. Stone, 11th Dist.
No.2007–P–0048, 2008–Ohio–2615, ¶ 26, citing United States v.
Moxley, 6th Cir. No. 99–3453, 2000 WL 1234320, *3 (Aug. 23,
2000) (“marijuana residue” found in a vehicle’s interior
“sufficient to establish not just reasonable suspicion, but
probable cause to detain the suspect and to conduct a full
search of his car”). Contra State v. Grubbs, 2017-Ohio-41, 80
N.E.3d 1075, ¶ 39 (6th Dist.) (marijuana flakes on an individual
does not give officer probable cause to search the person).
{¶99} In the case at bar, Trooper Lewis testified that McKee
dropped a plastic baggie that contained marijuana residue. This
discovery gave the troopers probable cause to believe that the
vehicle contained contraband. E.g., Donaldson; Gordon; Young.
Thus, the troopers could properly search the vehicle.
{¶100} Consequently, we do not agree with appellant that
trial counsel performed ineffectively by withdrawing the
suppression motion because counsel reasonably could have
determined that the motion was futile.
4
{¶101} Appellant next argues that trial counsel should have
pursued a claim that some of his statements were obtained in
violation of Miranda.
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{¶102} The Fifth Amendment to the United States Constitution
provides that no person “shall be compelled in any criminal case
to be a witness against himself.” In order to safeguard a
suspect’s Fifth Amendment privilege against self-incrimination,
law enforcement officers that seek to perform a custodial
interrogation must warn the suspect “that he has the right to
remain silent, that anything he says can be used against him in
a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires.”
Miranda, 384 U.S. at 479. In the absence of these warnings, a
suspect’s incriminatory statements made during a custodial
interrogation are inadmissible at trial. Michigan v. Mosley,
423 U.S. 96, 99–100, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975)
(footnote and citation omitted) (“[U]nless law enforcement
officers give certain specified warnings before questioning a
person in custody, and follow certain specified procedures
during the course of any subsequent interrogation, any statement
made by the person in custody cannot over his objection be
admitted in evidence against him as a defendant at trial, even
though the statement may in fact be wholly voluntary.”);
Miranda, 384 U.S. at 479 (no evidence stemming from result of
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custodial interrogation may be used against defendant unless
procedural safeguards employed); State v. Maxwell, 139 Ohio
St.3d 12, 2014–Ohio–1019, 9 N.E.3d 930, ¶ 113 (“the prosecution
may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination.”).
{¶103} It is important to recognize that the Miranda rule
does not protect every person who is subjected to police
questioning; rather, the rule protects individuals subjected to
“custodial interrogation.” Miranda defined “custodial
interrogation” as “questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” 384
U.S. at 444; see also Stansbury v. California, 511 U.S. 318,
322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994); Oregon v.
Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714(1977) (Miranda protection attaches “only where there has been
such a restriction on a person’s freedom as to render him in
‘custody’ ”). Thus, “the requirement that police officers
administer Miranda warnings applies only when a suspect is
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subjected to both custody and interrogation.” State v. Dunn,
131 Ohio St.3d 325, 2012–Ohio–1008, 964 N.E.2d 1037, ¶ 24.
{¶104} “Determining whether questioning is ‘a custodial
interrogation requiring Miranda warnings demands a fact-specific
inquiry that asks whether a reasonable person in the suspect’s
position would have understood himself or herself to be in
custody while being questioned.’” State v. Myers, 154 Ohio
St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 57, quoting
Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d
810, ¶ 21. We observe that the custody determination “depends
on the objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers
or the person being questioned.” State v. Henry, 12th Dist.
Preble No. CA2008-04-006, 2009-Ohio-434, ¶ 13. “[T]he only
relevant inquiry is how a reasonable [person] in the suspect’s
position would have understood [the] situation.” Berkemer v.
McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317(1984).
{¶105} Moreover, determining whether an individual “has been
‘interrogated,’ * * * focuses on police coercion, and whether
the suspect has been compelled to speak by that coercion.”
State v. Tucker, 81 Ohio St.3d 431, 436, 692 N.E.2d 171 (1998).
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An individual may feel compelled to speak not only “by express
questioning, but also * * * by the ‘functional equivalent’ of
express questioning, i.e., ‘any words or actions on the part of
the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.’” Id.,quoting Rhode Island v. Innis, 446 U.S. 291, 300–301, 100 S.Ct.
1682, 64 L.Ed.2d 297 (1980). Consequently, a suspect who
volunteers information without being asked any questions is not
subject to a custodial interrogation and is not entitled to
Miranda warnings. Id. at 438; State v. McGuire, 80 Ohio St.3d
390, 401, 686 N.E.2d 1112 (1997); accord Miranda, 384 U.S. at
478 (stating that “[v]olunteered statements of any kind are not
barred by the Fifth Amendment and their admissibility is not
affected by our holding today”). “Moreover, there is no
requirement that officers interrupt a suspect in the course of
making a volunteered statement to recite the Miranda warnings.”
Tucker, 81 Ohio St.3d at 438. Moreover, roadside questioning of
a motorist detained pursuant to a routine traffic stop
ordinarily does not constitute “custodial interrogation.”
Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82
L.Ed.2d 317 (1984). If, however, the motorist “thereafter is
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subjected to treatment that renders him ‘in custody’ for
practical purposes, he will be entitled to the full panoply of
protections prescribed by Miranda.” Id.; accord State v.
Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985.
{¶106} In the case sub judice, appellant’s brief does not
identify precisely when the Miranda violation allegedly
occurred, or what statements allegedly were obtained in
violation of Miranda. We further note that the record shows
that Trooper Lewis administered Miranda warnings before he
revealed that the troopers had discovered heroin in the vehicle.
At that point, appellant volunteered that he is a truck driver
and that he and his companions were driving to Kentucky to visit
“some females.” Appellant has not, therefore, shown that his
suppression motion had a reasonable probability of success.
{¶107} Consequently, we disagree with appellant that trial
counsel was ineffective for withdrawing the motion to suppress.
D
{¶108} Appellant also asserts that trial counsel was
ineffective for failing to file a motion for separate trials.
Appellant claims that by holding a joint trial, Whitehead and
appellant “both were able to assert their Fifth Amendment rights
against self-incrimination,” and the failure to seek separate
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trials deprived appellant of his right to cross-examine
Whitehead.
{¶109} Crim.R. 8(B) specifies that multiple defendants may be
joined in a single indictment “if they are alleged to have
participated in the same act or transaction or in the same
series of acts or transactions constituting an offense or
offenses, or in the same course of criminal conduct.”
{¶110} As a general rule, the law favors joinder of
defendants and the avoidance of multiple trials. E.g., State v.
Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 18.
Joint trials “conserve[] judicial and prosecutorial time,
lessen[] the not inconsiderable expenses of multiple trials,
diminish[] inconvenience to witnesses, and minimize[] the
possibility of incongruous results in successive trials before
different juries.” State v. Thomas, 61 Ohio St.2d 223, 225, 400
N.E.2d 401 (1980); accord Zafiro v. United States, 506 U.S. 534,
537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), quoting Richardson
v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 95 L.Ed.2d 176(1987) (joint trials “promote efficiency and ‘serve the
interests of justice by avoiding the scandal and inequity of
inconsistent verdicts’”).
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{¶111} If, however, joinder prejudices a defendant, Crim.R.
14 gives a trial court discretion to sever the trials. Crim.R.
14 states: “If it appears that a defendant * * * is prejudiced
by a joinder of * * * defendants * * * for trial together * * *,
the court shall * * * grant a severance of defendants, or
provide such other relief as justice requires.”
{¶112} To establish that a trial court’s refusal to sever a
trial constitutes an abuse of discretion, a defendant must
establish that holding combined trials prejudiced the
defendant’s rights. Gordon at ¶ 21; State v. Schaim , 65 Ohio
St.3d 51, 59, 600 N.E.2d 661 (1992). The test is
whether a joint trial is so manifestly prejudicial
that the trial judge is required to exercise his or
her discretion in only one way—by severing the trial.
* * * A defendant must show clear, manifest and undue
prejudice and violation of a substantive right
resulting from failure to sever.
State v. Schiebel, 55 Ohio St.3d 71, 89, 564 N.E.2d 54 (1990),
quoting United States v. Castro, 887 F.2d 988, 996 (9th Cir.
1989. Moreover, a defendant must provide “the trial court with
sufficient information so that it [can] weigh the considerations
favoring joinder against the defendant’s right to a fair trial.”
State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981),
syllabus.
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{¶113} We observe that “defendants are not entitled to
severance merely because they may have a better chance of
acquittal in separate trials.” Zafiro, 506 U.S. at 540.
Additionally, “a trial court does not abuse its discretion in
refusing to grant severance where the prejudicial aspects of
joinder are too general and speculative.” State v. Payne, 10th
Dist. Franklin App. No. 02AP–723, 2003–Ohio–4891.
{¶114} In the case sub judice, appellant did not explain
precisely how being unable to cross-examine Whitehead prejudiced
his defense. Appellant did not identify testimony that he might
have been able to elicit in a separate trial, and whether that
testimony would have led to a different outcome. Here,
appellant can only speculate.
{¶115} Therefore, we do not agree with appellant that trial
counsel performed ineffectively for the failure to file a motion
for separate trials.
E
{¶116} Appellant further asserts that trial counsel was
ineffective for failing to object to the state’s motion to amend
the indictment.
{¶117} First, we note that because appellant specifically
agreed to the amendment, appellant invited any error that may
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have occurred. The invited-error doctrine precludes a litigant
from “‘tak[ing] advantage of an error which [the litigant]
invited or induced.’” State v. Ford, 158 Ohio St.3d 139, 2019-
Ohio-4539, 140 N.E.3d 616, ¶ 279, quoting Hal Artz Lincoln-
Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio
St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus.
The doctrine generally applies “‘when a party has asked the
court to take some action later claimed to be erroneous, or
affirmatively consented to a procedure the trial judge
proposed.’” Id., quoting State v. Campbell, 90 Ohio St.3d 320,
324, 738 N.E.2d 1178 (2000). In the criminal context, the
doctrine prevents a defendant from making “‘an affirmative * * *
decision at trial and then complain[ing] on appeal that the
result of that decision constitutes reversible error.’” State
v. Doss, 8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶ 7,
quoting United States v. Jernigan, 341 F.3d 1273, 1290 (11th
Cir. 2003); accord State v. Brunner, 4th Dist. Scioto No.
18CA3848, 2019-Ohio-3410, ¶ 15.
{¶118} Assuming, arguendo, that appellant had not invited any
error, as we explain below we do not believe that trial counsel
was ineffective for failing to object to the amendment.
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{¶119} Crim.R. 7(D) provides that a court may amend an
indictment “at any time before, during, or after a trial * * *,
provided no change is made in the name or identity of the crime
charged.” Thus, an amendment is “proper when the amendment
[does] not change the penalty or the degree of the offense.”
State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d
609, ¶ 6. Moreover, “[a]s long as the state complies with
Crim.R. 7(D), it may cure a defective indictment by amendment,
even if the original indictment omits an essential element of
the offense with which the defendant is charged.” State v.
Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 15.
{¶120} In the case sub judice, appellant did not argue that
the amendment changed the penalty or the degree of the offense.
Moreover, the record does not support such an argument.
Although the amendment changed the elements of the offense from
“sell or offer” to sell to “ship, transport, or deliver,” the
name of the offense and the penalty remained the same before and
after the amendment. Consequently, trial counsel did not need
to raise a meritless argument. See State v. Maxwell, 139 Ohio
St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 70 (amendment that
simply changes certain element of offense without changing the
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name of the offense or the penalty does not constitute an
improper amendment under Crim.R. 7(D)).
F
{¶121} Appellant also claims that counsel’s failures
constitute plain error. However, because that counsel was not
ineffective, appellant’s plain-error argument is without merit.
{¶122} Accordingly, based upon the foregoing reasons, we
overrule appellant’s fourth assignment of error.
V
{¶123} In his fifth assignment of error, appellant asserts
that the trial court erred by sentencing him to serve eight
years in prison. In particular, appellant argues that the trial
court penalized him after he rejected the state’s plea offer and
chose instead to exercise his right to a jury trial.
{¶124} When reviewing felony sentences, appellate courts
apply the standard of review outlined in R.C. 2953.08(G)(2).
State v. Prater, 4th Dist. Adams No. 18CA1069, 2019-Ohio-2745, ¶
12, citing State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-
Ohio-1277, ¶ 13. Under R.C. 2953.08(G)(2), “[t]he appellate
court’s standard for review is not whether the sentencing court
abused its discretion.” Instead, R.C. 2953.08(G)(2) specifies
that an appellate court may increase, reduce, modify, or vacate
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and remand a challenged felony sentence if the court clearly and
convincingly finds either:
(a) That the record does not support the
sentencing court’s findings under division (B) or (D)
of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of
the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to
law.
{¶125} A defendant bears the burden to establish, by clear
and convincing evidence, (1) that a sentence is either contrary
to law or (2) that the record does not support the specified
findings under R.C. 2929.13(B), R.C. 2929.13(D), R.C.
2929.14(B)(2)(e), 2929.14(C)(4), or R.C. 2929.20(I). State v.
Behrle, 4th Dist. Adams No. 20CA1110, 2021-Ohio-1386, ¶ 48;
State v. Shankland, 4th Dist. Washington Nos. 18CA11 and 18CA12,
2019-Ohio-404, ¶ 20. “[C]lear and convincing evidence is that
measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such
certainty as is required ‘beyond a reasonable doubt’ in criminal
cases, and which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d
118 (1954), paragraph three of the syllabus.
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{¶126} We additionally observe that “[n]othing in R.C.
2953.08(G)(2) permits an appellate court to independently weigh
the evidence in the record and substitute its judgment for that
of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12.” State v. Jones, 163
Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42.
Furthermore, “an appellate court’s determination that the record
does not support a sentence does not equate to a determination
that the sentence is ‘otherwise contrary to law’ as that term is
used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 32. Consequently,
appellate courts cannot review a felony sentence when “the
appellant’s sole contention is that the trial court improperly
considered the factors of R.C. 2929.11 or 2929.12 when
fashioning that sentence.” State v. Stenson, 6th Dist. Lucas
No. L-20-1074, 2021-Ohio-2256, ¶ 9, citing Jones at ¶ 42; accord
State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-
985, ¶ 13 (“In light of Jones, assigning error to the trial
court’s imposition of sentence as contrary to law based solely
on its consideration of R.C. 2929.11 and 2929.12 is no longer
grounds for this court to find reversible error.”); State v.
Loy, 4th Dist. Washington No. 19CA21, 2021-Ohio-403, ¶ 30.
SCIOTO, 20CA3934
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{¶127} In the case sub judice, appellant did not argue that
the record fails to support the specified findings under R.C.
2929.13(B), R.C. 2929.13(D), R.C. 2929.14(B)(2)(e),
2929.14(C)(4), or R.C. 2929.20(I). Instead, he appears to
challenge the trial court’s decision not to impose the shortest
prison term. Appellant contends that he has no criminal record
and that “no aggravating circumstances” exist. R.C.
2953.02(G)(2) does not, however, allow this court to
independently review the record to determine whether the trial
court chose an appropriate sentence. See Jones, supra; State v.
Hughes, 4th Dist. Adams No. 21CA1127, 2021-Ohio-3127, ¶ 41
(“R.C. 2953.08(G)(2) does not give appellate courts broad
authority to review sentences to determine if they are supported
by the record”). We therefore are unable to consider whether
the record supports the trial court’s decision to impose an
eight-year prison term. We may, however, review whether
appellant’s sentence is “contrary to law.”
{¶128} “[A] sentence vindictively imposed on a defendant for
exercising his constitutional right to a jury trial is contrary
to law.” State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80
N.E.3d. 431, ¶ 8, citing State v. O’Dell, 45 Ohio St.3d 140,
147, 543 N.E.2d 1220 (1989), and Bordenkircher v. Hayes, 434
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U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (“‘[t]o
punish a person because he has done what the law plainly allows
him to do is a due process violation of the most basic sort * *
*.’”). Thus, a trial court must not act vindictively when it
imposes a sentence upon a defendant who chooses to maintain his
not guilty plea and proceed to trial.
{¶129} We further note “there is not a presumption of
vindictiveness when a defendant rejects a plea bargain and is
subsequently sentenced to a harsher term.” Id. at ¶ 3.
Instead, the defendant must establish that “the judge acted
vindictively.” Id.
{¶130} Appellate courts review vindictive-sentence claims by
beginning “with the presumption that the trial court considered
the appropriate sentencing criteria.” Id. at ¶ 19. Then,
courts “review the entire record—the trial court’s statements,
the evidence adduced at trial, and the information presented
during the sentencing hearing—to determine whether there is
evidence of actual vindictiveness.” Id. A reviewing court
“will reverse the sentence only if [the court] clearly and
convincingly find the sentence is contrary to law because it was
imposed as a result of actual vindictiveness on the part of the
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trial court.” Id., citing R.C. 2953.08(G)(2); State v. Taylor,
4th Dist. No. 16CA1028, 2017-Ohio-4395, 93 N.E.3d 1, ¶ 25.
{¶131} In the case sub judice, we do not believe that the
record clearly and convincingly shows that the trial court’s
eight-year prison sentence is a result of actual vindictiveness.
Appellant does not point to any statement in the record or any
other indication to suggest that the court acted vindictively as
a result of appellant’s decision to reject the plea offer and to
proceed to trial. As the Rahab court noted, “there are
legitimate reasons a defendant who rejects a plea may end up
receiving a harsher sentence.” Id. at ¶ 17. The court
explained:
Acceptance of responsibility is an appropriate
sentencing consideration. Moreover, a plea bargain
is, after all, a bargain. In the bargain, the
prosecutor achieves certain benefits: a forgoing of
the risk that the defendant will be found not guilty,
relief from the burden of trying the case and a
concomitant ability to devote prosecutorial resources
to other cases, and limitations on the defendant’s
right to appeal an agreed sentence, see R.C.
2953.08(D)(1). In return, the prosecutor is able to
offer the defendant certain sentencing considerations.
Both sides exchange risk about the outcome for an
enhanced degree of certainty. For the bargain to be
worth anything to the defendant (at least in most
cases), the defendant must have a reasonable
probability of receiving a more lenient sentence than
he would following trial and conviction.
Id. (citation omitted).
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{¶132} We therefore reject appellant’s argument that the
trial court acted vindictively by imposing an eight-year prison
sentence. Instead, the trial court reasonably could have
determined, after hearing all of the evidence presented at
trial, that appellant’s conduct warranted an eight-year prison
term.
{¶133} Appellant also appears to assert that the trial court
erred by imposing an eight-year prison sentence without stating,
on the record or otherwise, that the court considered a
presentence investigation report. We observe, however, that a
presentence investigation report is only required if a trial
court imposes community control. Crim.R. 32.2 states: “Unless
the defendant and the prosecutor in the case agree to waive the
presentence investigation report, the court shall, in felony
cases, order a presentence investigation and report before
imposing community control sanctions or granting probation.”
R.C. 2951.03(A)(1) specifically states that “[n]o person who has
been convicted of or pleaded guilty to a felony shall be placed
under a community control sanction until a written presentence
investigation report has been considered by the court.” Accord
State v. Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, 17 N.E.3d
528, ¶ 15 (“the plain text of Crim.R. 32.2 and R.C.
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77
2951.03(A)(1) also places an unavoidable duty on the trial court
to obtain a presentence investigation report in every felony
case in which a prison sentence is not imposed”); State v.
Dennis, 2017-Ohio-4437, 93 N.E.3d 277, ¶ 25 (8th Dist.) (“a
presentence investigation report is not required if the court
imposes a prison term”).
{¶134} In the case at bar, the trial court imposed a prison
term. Thus, assuming, arguendo, that the trial court did not
consider a presentence investigation report as appellant
alleges, no error occurred.
{¶135} We further note that appellant alleges that the trial
court participated in the plea negotiations. However, even if
the record supports appellant’s assertion, and even if the court
arguably erred by doing so, appellant does not explain how the
court’s participation impacted the outcome of the proceedings or
otherwise affects our analysis of whether his sentence is
contrary to law.
{¶136} Accordingly, based upon the foregoing reasons, we
overrule appellant’s fifth 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 that
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 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, 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-five 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.
Hess, 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.