State v. Lopez-Olmedo

[Cite as State v. Lopez-Olmedo, 2022-Ohio-2817.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 21CA011745
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CARLOS RAUL LOPEZ-OLMEDO COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 18CR099742
DECISION AND JOURNAL ENTRY
Dated: August 15, 2022
CALLAHAN, Judge.
{¶1} Appellant, Carlos Raul Lopez-Olmedo, appeals from the judgment of the Lorain
County Court of Common Pleas. For the reasons set forth below, this Court affirms.
I.
{¶2} On November 12, 2018, law enforcement officers from local police departments
and state and federal agencies executed a search warrant for the house, vehicles, and persons
located at 1680 East 31st Street in Lorain, Ohio in connection with an investigation regarding the
sale of drugs at that location. Inside the house officers found a box of gallon-sized plastic freezer
bags, a silver drug press, a digital scale, a blender, three bars of mannite, and a digital video
recorder. Testing of a swab for residue on the digital scale revealed the presence of heroin and
fentanyl.
{¶3} As part of the execution of the search warrant, law enforcement officers detained
Mr. Lopez-Olmedo at the side door of the house and searched him. As he was being detained, a
2
small amount of cash fell out of Mr. Lopez-Olmedo’s pocket. The search of Mr. Lopez-Olmedo
uncovered two bars of mannite and a baggie containing a substance believed to be contraband.
Laboratory testing determined that the substance was 188.16 grams of heroin and 6-
Monoacetylmorphine.
{¶4} Mr. Lopez-Olmedo was indicted and pleaded not guilty to two counts of trafficking
in drugs, one count of possessing drugs with accompanying forfeiture and major drug offender
specifications, and one count of drug paraphernalia. Prior to trial, the State dismissed one of the
trafficking in drugs counts, the drug paraphernalia count, and the forfeiture specifications. A jury
found Mr. Lopez-Olmedo guilty of trafficking in drugs in violation of R.C.
2925.03(A)(2)/(C)(6)(g) and possession of drugs in violation of R.C. 2925.11(A)/(C)(6)(f), and
that the weight of the heroin constituted a major drug offender violation as to both charges. The
trial court merged the counts for purposes of sentencing and sentenced Mr. Lopez-Olmedo to a
mandatory term of eleven years in prison for trafficking in drugs.
{¶5} Mr. Lopez-Olmedo appeals his conviction raising three assignments of error for
this Court’s review.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN FAILING TO CONTINUE THE TRIAL
WHERE MR. LOPEZ-OLMEDO NEEDED AN INTERPRET[E]R IN ORDER
TO UNDERSTAND THE PROCEEDINGS AND WHERE HE COULD NOT
HEAR THE INTERPRET[E]R DUE TO COVID-19 ISSUES NECESSITATING
THE COURT REPORTER TO BE PRESENT BY ZOOM.
{¶6} In his first assignment of error, Mr. Lopez-Olmedo maintains that the trial court
erred in proceeding with the jury trial when he was unable to hear the Spanish interpreters and
understand the proceedings, and thereby depriving him of his right to due process.
3
{¶7} At the beginning of the jury trial, Mr. Lopez-Olmedo notified the trial court that he
was unable to hear the Spanish interpreters. The trial court proceeded with the trial despite Mr.
Lopez-Olmedo’s assertion that he was unable to hear the interpreters. Mr. Lopez-Olmedo did not
object or in any other way notify the court that the problem with the volume persisted and that he
was unable to hear the interpreters and understand the proceedings throughout the entirety of the
trial. Accordingly, he has forfeited all but plain error. We, therefore, review Mr. Lopez-Olmedo’s
arguments under a plain-error standard. See generally Crim.R. 52(B).
{¶8} Pursuant to Crim.R. 52(B), despite the absence of an objection in the trial court,
this Court may notice plain errors or defects affecting a substantial right. Plain error exists only
when there has been a deviation from a legal rule that constitutes an obvious defect in the trial
proceedings that affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
This Court’s decision to correct plain error is discretionary and should only be done in exceptional
circumstances to prevent a manifest miscarriage of justice. Id., quoting State v. Long, 53 Ohio
St.2d 91 (1978), paragraph three of the syllabus.
{¶9} “In Ohio, R.C. 2311.14 establishes the right to a court-appointed interpreter and
case law has confirmed that right.” State v. Razo, 157 Ohio App.3d 578, 2004-Ohio-3405, ¶ 21
(9th Dist.) (Carr, J., concurring in judgment only), citing R.C. 2311.14 and State v. Pina, 49 Ohio
App.2d 394 (2d Dist.1975). R.C. 2311.14(A) provides that a qualified interpreter shall be
appointed to assist in legal proceedings where a party or witness is unable to communicate or
understand due to an impairment, such as speaking a language other than English. Additionally,
Sup.R. 88 provides guidance to the courts regarding when to appoint a foreign language interpreter
in a case: a foreign language interpreter shall be appointed by the court for a party or witness with
limited English proficiency or who is non-English speaking when the court determines, either by
4
motion or sua sponte, that the “services of the interpreter are necessary for the meaningful
participation of the party or witness.” Sup.R. 88(A)(1). The failure to appoint an interpreter for a
non-English speaking or limited-English proficient criminal defendant compromises the
defendant’s right to due process. Columbus v. Lopez-Antonio, 153 Ohio Misc.2d 4, 2009-Ohio-
4892, ¶ 3 (M.C.).
{¶10} It is well established that a defendant in a criminal case “is entitled to hear the
proceedings in a language he can understand.” Pina at 399. Accord State v. Bravo, 9th Dist.
Summit No. 27881, 2017-Ohio-272, ¶ 34. While the trial court has discretion on how this is
accomplished, it nonetheless “must be accomplished.” Pina at 399. An abuse of discretion is
present when a trial court’s decision “‘is contrary to law, unreasonable, not supported by evidence,
or grossly unsound.’” Menke v. Menke, 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting
Tretola v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 25.
{¶11} In this matter, the trial court swore-in two Spanish interpreters for Mr. Lopez-
Olmedo. After the court addressed matters related to amending the indictment, the interpreter
notified the trial judge that Mr. Lopez-Olmedo was unable to hear the interpreter:
The Interpreter: Your Honor, just because he cannot hear really good, I
guess he’s listening to both --
The Court: What do you need us to do? What does he need us to
do?
The Interpreter: Okay. I guess the volume from -- the volume from the
microphone, it’s interfering because he hears the English
version and he also hears the Spanish version, and he
said he can’t hear. So he’s not really catching --
The Court: Well, we have to amplify the English part of this to have
the court reporter pick it up in the other room.
So what would you suggest we do?
5
The Interpreter: Let me consult with the other interpreter to see if there’s
anything we can do.
(Unintelligible.)
The Deputy: Your Honor?
The Court: Yeah.
The Deputy: Between my broken Spanish and his broken English,
I’ve had numerous conversations with the defendant --
(Unintelligible.)
***
The Deputy: This is Deputy Rico. He just wants to continue in
English and have an interpreter stand by in case he
doesn’t understand something.
[Mr. Lopez-Olmedo]: I do want to go forward.
The Interpreter: I’m just going to interpret what he’s saying. He prefers
to listen to the interpreter so that he can understand
everything. His voice and her voice are commingling, so
he cannot hear.
[Mr. Lopez-Olmedo]: All you hear is --
(Unintelligible noise.)
The Court: And it’s only from that microphone?
[Mr. Lopez-Olmedo]: When he was talking, they go right with hers, both
voices, together.
The Court: Let’s continue now as best we can and if there’s a
problem, you let us know. We want you, of course, to
be able to hear everything.
{¶12} Based upon the above exchange, the trial court was made aware of a problem with
the volume of the microphone interfering with Mr. Lopez-Olmedo’s ability to hear the Spanish
interpreters. While the trial court explained that the volume needed to be turned up for the court
reporter to be able to hear for transcription purposes, the trial court did not attempt to adjust the
6
volume of the microphone, relocate the court reporter, or explore any other options to resolve the
problem. Rather, the trial court placed the burden on the interpreters to find a solution. While the
interpreters discussed the matter, the deputy interjected, claiming that Mr. Lopez-Olmedo wanted
to continue in English and have the interpreters on standby. Similarly, the interpreters suggested
that they only interpret what Mr. Lopez-Olmedo said.
{¶13} Only a party, and not his counsel or the court, may waive the right to an interpreter.
State v. Nasser, 10th Dist. Franklin No. 02AP 1112, 2003-Ohio-5947, ¶ 25, citing United State v.
Osuna, 189 F.3d 1289, 1292 (10th Cir.1999). See generally Sup.R. 88(H). Based upon the
transcript, Mr. Lopez-Olmedo did not waive the use of an interpreter at trial. Mr. Lopez-Olmedo’s
statement to the trial court was “I do want to go forward.” He did not make any further statements
that he did not need the interpreters or that he only needed the interpreters on standby for when he
did not understand something. Compare Nasser at ¶ 26. Additionally, neither the deputy nor the
interpreters could have waived Mr. Lopez-Olmedo’s right to an interpreter. See id. at ¶ 25.
Furthermore, the record does not reflect that the trial court treated or accepted the exchange
between the deputy, Mr. Lopez-Olmedo, and the interpreters as a waiver by Mr. Lopez-Olmedo of
his right to an interpreter. Nor does the record indicate that the trial court permitted the interpreters
to only interpret what Mr. Lopez-Olmedo said.1
{¶14} In the absence of a viable solution from the interpreters and making no further
attempts to resolve the problem, the trial court decided to continue with the trial “as best we can”
and instructed the interpreters and the defense to notify the court “if there’s a problem” because
1
The transcript shows that the interpreters were present each day of the trial and continued
interpreting the proceedings for Mr. Lopez-Olmedo. For instance, on the first day of trial the
interpreter asked to have the plea terms repeated and during the second day of trial the State
requested a witness to slow down while speaking because there was an interpreter.
7
the court wanted Mr. Lopez-Olmedo “to be able to hear everything.” Although the trial court
acknowledged the problem with the volume of the English version and the need for Mr. Lopez-
Olmedo to hear the proceedings, it abused its discretion when it did not attempt to resolve Mr.
Lopez-Olmedo’s inability to hear the Spanish translation and continued with the trial.
{¶15} Although the trial court should have taken steps to insure that Mr. Lopez-Olmedo
was able to hear the Spanish interpreters before proceeding with the trial, we cannot say that the
trial court’s failure constituted plain error in this case. Mr. Lopez-Olmedo claims that he was
unable to understand the proceedings and was deprived of his right to due process. The record,
however, does not support his claim.
{¶16} Following the discussion regarding Mr. Lopez-Olmedo’s ability to hear the
interpreters, the trial court addressed Mr. Lopez-Olmedo regarding his decision as to the plea offer.
Defense counsel indicated to the court that he had explained to Mr. Lopez-Olmedo the State’s offer
of nine years and his eligibility for judicial release and that the offer would be rejected. When the
court inquired of Mr. Lopez-Olmedo, the interpreter asked to have it repeated. Defense counsel
repeated the terms and then engaged in a discussion with Mr. Lopez-Olmedo. Next, the court
advised Mr. Lopez-Olmedo of the mandatory sentence of eleven years if he was found guilty, set
forth the terms of the State’s offer, and explained judicial release. Mr. Lopez-Olmedo, speaking
in Spanish, interrupted the court during its explanation of the foregoing. The court stopped Mr.
Lopez-Olmedo, instructing him to let the court finish explaining these points. Once it finished
explaining the penalties, the court asked Mr. Lopez-Olmedo if he understood, to which Mr. Lopez-
Olmedo directly responded in English “Yes[]” and the following exchange occurred:
The Court: All right. And you still want to go forward here?
[Mr. Lopez-Olmedo]: Yes, because the first offer was for eight and they’re not
counting all the time that I already was incarcerated.
8
The Court: Yes, the time that you’ve been incarcerated counts. So
it would be seven years -- essentially seven years left on
your sentence. You’ve got two in, right?
[Defense counsel]?
[Defense counsel]: Yes, he does.
The Court: So you get credit for that.
[Mr. Lopez-Olmedo]: For the first time, they said I was going to be -- coming
out in five years, but they’re not counting that.
The Court: No.
[Mr. Lopez-Olmedo]: Yes, let’s go with the trial.
{¶17} A second exchange occurred between the court and Mr. Lopez-Olmedo after the
verdict was read and prior to the court sentencing him.
The Court: Okay. Mr. Lopez-Olmedo, is there anything you want to
say before I sentence you, sir?
***
[Mr. Lopez-Olmedo]: I don’t have enough to pay for it -- (unintelligible.)
[Defense counsel]: He would like to appeal. That’s all.
The Court: That’s his right.
It is your right to have an appeal, and I will assign
counsel for you. Okay.
[Mr. Lopez-Olmedo]: I want to appeal because it’s a lot of stuff that they don’t
bring. One informant walked with that bag to the house,
and they go -- (unintelligible) -- and it was not fair. And
I’ve been saying -- (unintelligible) -- I want to believe
that, but everything, they haven’t -- (unintelligible.) One
of the informants, they bring the stuff, bring it out and
count it. They don’t play that in here, you know what I
mean?
9
The Court: Okay. The appeal will take place and it will not be a part
of this Court. It will be another court that will handle the
appeal, three charges.
[Mr. Lopez-Olmedo]: I asked for the impurity of the drugs. They never did
that.
[Defense counsel]: He said “impurity[”].
[Mr. Lopez-Olmedo]: They didn’t do that. I asked for the impurity of the drugs.
They didn’t do that. It’s the whole thing, that they blow
it up. I didn’t do this. They didn’t bring it --
(unintelligible.)
After he was sentenced, Mr. Lopez-Olmedo responded to the court’s questions regarding his
finances relative to the appointment of appellate counsel.
{¶18} In both of these instances, the transcript reflects that the interpreters did not
translate Mr. Lopez-Olmedo’s responses to the court, but rather Mr. Lopez-Olmedo engaged in a
dialogue with the judge and responded appropriately to the judge’s questions in English. See, e.g.,
In the Matter of M.A., 10th Dist. Franklin No. 20AP-345, 2021-Ohio-1078, ¶ 25, 31. The fact that
Mr. Lopez-Olmedo was able to provide appropriate responses to the court’s inquiries despite his
assertion on appeal that he was unable to hear the Spanish interpreter supports a finding that he
understood the proceedings.
{¶19} Further, Mr. Lopez-Olmedo did not simply answer “yes” or “no” to the questions
asked by the court. Rather, he also explained his bases for an appeal and his reason for declining
the plea offer by referencing prior plea offers and jail time credit. In doing so, Mr. Lopez-Olmedo
demonstrated his command of English and familiarity with legal terms. See, e.g., In re Marriage
of Beynenson, 11th Dist. Geauga No. 2012-G-3066, 2013-Ohio-341, ¶ 28. Moreover, Mr. Lopez-
Olmedo’s explanation to the court as to what he perceived to be deficiencies in the evidence and
10
issues presented at trial that he wanted to raise in an appeal does not support his assertion that he
was unable to understand the evidence and testimony presented during the trial.
{¶20} Notably, during the entirety of the three-day trial, Mr. Lopez-Olmedo spoke
through the interpreters on only two occasions: first, when the interpreters advised the court that
Mr. Lopez-Olmedo was unable to hear them, and second, when the interpreters asked that the plea
offer be repeated. See, e.g., State v. Resendiz, 12th Dist. Preble No. CA2009-04-012, 2009-Ohio-
6177, ¶ 21. In both instances, Mr. Lopez-Olmedo also participated in the dialogue by speaking
directly to the court in English. Finally, neither Mr. Lopez-Olmedo nor the interpreters raised any
additional concerns during the remainder of the three-day trial that he was unable to hear the
interpreters and understand the proceedings. See, e.g., id.{¶21} Based upon the foregoing, the transcript in this matter does not support Mr. Lopez-
Olmedo’s assertion that he was unable to understand the proceedings and that the outcome of the
trial would clearly have been different but for the trial court’s error. Therefore, no plain error
existed, and Mr. Lopez-Olmedo was not deprived of due process.
{¶22} Mr. Lopez-Olmedo’s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE
EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE
FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE
CONSTITUTION OF THE STATE OF OHIO.
{¶23} In his second assignment of error, Mr. Lopez-Olmedo argues that his convictions
for trafficking in drugs are based on insufficient evidence.2 This Court disagrees.
2
Mr. Lopez-Olmedo states in his brief that he was convicted of trafficking in drugs in
violation of R.C. 2925.03(A)(1) and (A)(2) and presents arguments regarding the sufficiency of
the evidence for both of these convictions. While Mr. Lopez-Olmedo was charged with both
11
{¶24} “Whether a conviction is supported by sufficient evidence is a question of law that
this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶
18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the
prosecution has met its burden of production by presenting sufficient evidence to sustain a
conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this
Court must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443
U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in
favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it
allows the trier of fact to reasonably conclude that the essential elements of the crime were proven
beyond a reasonable doubt. Id. The trier of fact is entitled to rely on direct, as well as
circumstantial evidence. See id.{¶25} Mr. Lopez was convicted of trafficking in drugs in violation of R.C. 2925.03(A)(2).
R.C. 2925.03(A)(2) provides that “[n]o person shall knowingly * * * [p]repare for shipment, ship,
transport, deliver, prepare for distribution, or distribute a controlled substance * * *, when the
offender knows or has reasonable cause to believe that the controlled substance * * * is intended
for sale or resale by the offender or another person.” Mr. Lopez-Olmedo asserts that the State did
not prove that he prepared a controlled substance for shipping or distribution.
{¶26} Detective Christian Franco of the Lorain Police Department Narcotics Unit testified
that on November 12, 2018, he prepared and obtained a search warrant for the house, vehicles, and
persons located at 1680 East 31st Street in Lorain, Ohio. Detective Franco described the house as
being divided into three levels with apartments: Melvin Garcia resided on the first floor, someone
counts of trafficking in drugs, he was only convicted of trafficking in drugs in violation of R.C.
2925.03(A)(2). The State dismissed the other count of trafficking in drugs brought under R.C.
2925.03(A)(1) prior to the commencement of the trial. We will limit our review accordingly.
12
lived on the second floor, and the third floor attic had a mattress. He had no knowledge of Mr.
Lopez-Olmedo having an ownership interest in the house.
{¶27} Detective Howard Heathcoat, also from the Lorain Police Department Narcotics
Unit, described the house as having three different levels which consisted of an up and down
duplex with an attic space that was also used as a living space. During the execution of the search
warrant, Detective Heathcoat took photographs of the inside and outside of the house and the items
found inside the house. Detective Heathcoat’s photographs admitted as exhibits included a sign
in the window on the front of the house indicating a security camera is in use; in the bedroom on
the first floor, a DVR box and computer screen with real time video footage of the outside of the
house; a camera connected to the DVR; the back of the house; different views of the stairs leading
to the second and third floors; money, two bars of mannite, and a substance in a plastic bag sitting
on the bottom step outside of the house; a lid with bars of mannite and a white powder on the
kitchen floor on the first floor; and a box of baggies, a hand press, a digital scale, and blender in
the attic. Detective Heathcoat testified that based upon his prior investigations conducted by the
narcotics unit, he has seen digital scales, baggies, blenders, hand presses, and mannite used in
manufacturing a product to sell. He testified that mannite is used “as a cut for heroin, cocaine,
drugs, in general, to stretch out your drug.” He explained in drug trafficking that “[t]he mannite
is mixed with the heroin to -- and then obviously the scale to weigh it out to figure out how much
you want. They usually do that to stretch out their drugs to make more money.”
{¶28} Detective Todd Straub of the Elyria Police Department Narcotics Unit was called
by the Lorain Police Department to assist with the search of the attic of the house on November
12, 2018. Detective Straub testified that the box of baggies, digital scale, blender, and drug press
that were admitted as exhibits at trial were the same items that he found when searching the attic
13
and as depicted in the photographs taken by Detective Heathcoat. Detective Straub further testified
that he had seen these items “[q]uite often[]” in prior investigations of drug trafficking and
explained how these items are used in drug trafficking:
Obviously the scale is used to, you know, weigh out the drugs during or prior to
packaging. The bags are obviously used for packaging. The blender, typically if
they have raw or pure, whether it’s heroin, fentanyl, cocaine, a lot of times they’ll
add to the product. They’ll use other cutting agents, such as lactose, Mannitol,
other agents. They’ll mix it up in the blender to basically create more product, and
then hand presses like this are usually after they’re powered down in the blender,
then they’ll compact it in a hand press like that.
Detective Straub indicated that Mannitol is also referred to as mannite and is used in drug
trafficking.
{¶29} Sergeant Dennis Camarillo of the Lorain Police Department Narcotics Unit testified
that he, Detective Heathcoat, and Special Agent White met with a confidential informant who
placed a controlled phone call to Melvin Garcia on November 12, 2018. After the phone call, the
confidential informant went to 1680 East 31st Street in Lorain, where the informant met with Mr.
Lopez-Olmedo at approximately 3:00 p.m. This meeting was captured on video by the DVR found
in the first floor bedroom. Using the video footage in State’s Exhibit 1, Sergeant Camarillo pointed
to the confidential informant arriving at the house and Mr. Lopez-Olmedo appearing from the back
southwest corner of the house, walking across the backyard, and turning the corner to where the
confidential informant was on the northeast side of the house. The video then shows the
confidential informant and Mr. Lopez-Olmedo hug, walk toward the back of the house and across
the backyard, enter the door on the southwest corner, go up the stairs to the second floor, go down
the hallway, and turn into the stairwell leading to the third floor attic. Sergeant Camarillo indicated
the confidential informant was inside the house approximately thirty minutes. Based on this
information, a search warrant was obtained.
14
{¶30} Next Sergeant Camarillo testified regarding State’s Exhibit 2, which was a DVD
containing videos downloaded from the DVR found inside the house pertaining to the execution
of the search warrant on November 12, 2018 at 6:00 p.m. This video depicts Mr. Lopez-Olmedo
being detained by SWAT and searched by Special Agent William Meholif. Sergeant Camarillo
identified Mr. Lopez-Olmedo as the second person who exited the side door of the house. The
video shows that, as SWAT pulled Mr. Lopez-Olmedo off the steps and onto the ground, multiple
items fell out of his pockets. Sergeant Camarillo indicated that he was present when Special Agent
Meholif found two packages of mannite and 188 grams of heroin on Mr. Lopez-Olmedo. Sergeant
Camarillo testified that mannite is a cutting agent and that the street value of “188 grams [of heroin]
at $80 a gram would be just over $15,000[.]”
{¶31} Special Agent Meholif from the Drug Enforcement Administration was called to
assist with the search warrant on November 12, 2018, by securing and searching persons outside
the house. Prior to searching Mr. Lopez-Olmedo, Special Agent Meholif testified that he picked
up a small amount of loose money on the ground that was believed to have come from Mr. Lopez-
Olmedo and placed it near him. The video then shows Special Agent Meholif searching Mr.
Lopez-Olmedo. Special Agent Meholif testified that the first thing he found on Mr. Lopez-Olmedo
were two bars of mannite with the marking “‘Mannite Cicogna.’” Next, Special Agent Meholif
stated that he found State’s Exhibit 49, a white substance in a plastic bag, rolled up in the front
waistband of Mr. Lopez-Olmedo’s shorts.
{¶32} Elizabeth Doyle, a forensic drug analyst at the Lorain County Crime and Drug Lab,
testified that she received from the Lorain Police Department State’s Exhibit 45, a digital scale,
and State’s Exhibit 49, a plastic baggie containing a white substance, for analysis. Forensic Drug
Analyst Doyle explained that she weighed and tested a sample of the white substance in the baggie
15
and concluded that the white substance in State’s Exhibit 49 was heroin and 6-
Monoacetylomorphine, both schedule I controlled substances, and it weighed 188.16 grams. She
also tested and analyzed a sample of residue from the digital scale. Based upon the testing,
Forensic Drug Analyst Doyle opined that the residue on the digital scale was heroin and fentanyl.
{¶33} Drug trafficking may be proven by circumstantial evidence. State v. Delaney, 9th
Dist. Summit No. 28663, 2018-Ohio-727, ¶ 11, quoting State v. Washington, 6th Dist. Ottawa No.
OT-12-032, 2014-Ohio-1008, ¶ 36. This Court and our sister courts have “‘held that the
convergence of illegal drugs, drug paraphernalia (including baggies), and large sums of cash
permit a reasonable inference that a person was preparing drugs for shipment.’” Delaney at ¶ 11,
quoting State v. Fry, 9th Dist. Summit No. 23211, 2007-Ohio-3240, ¶ 50 and State v. Rutledge,
6th Dist. Lucas No. L-12-1043, 2013-Ohio-1482, ¶ 15 (“collecting cases and stating that
‘numerous courts have determined that items such as plastic baggies, digital scales, and large sums
of money are often used in drug trafficking and may constitute circumstantial evidence * * *.’”).
Large amounts of drugs and the street value of the drugs are also circumstantial evidence of drug
trafficking. See State v. Townsend, 8th Dist. Cuyahoga No. 107177, 2019-Ohio-544, ¶ 16-17.
{¶34} In this case, there was circumstantial evidence that Mr. Lopez-Olmedo prepared a
controlled substance for shipping or distribution. The State presented evidence that, during the
search of Mr. Lopez-Olmedo, Special Agent Meholif found a baggie containing a white substance
and two bars of mannite on his person. Forensic Drug Analysist Doyle confirmed through
laboratory testing that the white substance found on Mr. Lopez-Olmedo was 188.16 grams of
heroin and 6-Monoacetylomorphine, which are schedule I controlled substances. Sergeant
Camarillo testified regarding the street value of 188 grams of heroin and that mannite is a cutting
16
agent. Detective Straub and Detective Heathcoat also identified mannite as a cutting agent and
testified how it is used in drug trafficking.
{¶35} There was also testimony from Detective Straub that he found a box of gallon-sized
Ziploc freezer baggies, a digital scale, a blender, and a drug press in the attic, that he has seen these
items “[q]uite often[]” in prior drug trafficking investigations, and explained how each is used in
drug trafficking. Similarly, Detective Heathcoat, who photographed these items in the attic,
testified that they are used in manufacturing a product to sell and explained how mannite and a
digital scale are used in drug trafficking.
{¶36} Mr. Lopez-Olmedo, however, claims that the State’s evidence of the digital scale,
baggies, drug press, and blender is insufficient to support his conviction for trafficking in drugs
because those items could not be attributed to him. Mr. Lopez specifically points out that there
were no fingerprints or DNA taken from those items and there were seventeen other persons in the
house when the search warrant was executed. Although there was no direct evidence attributing
the items found in the attic to Mr. Lopez-Olmedo, there was circumstantial evidence attributing
those items to him and circumstantial evidence has the same probative value as direct evidence.
Jenks, 61 Ohio St.3d 259 at paragraph one of the syllabus.
{¶37} To this end, Sergeant Camarillo testified and the video footage showed that three
hours prior to the execution of the search warrant the confidential informant and Mr. Lopez-
Olmedo entered the stairwell that ends at the third floor attic. Additionally, Sergeant Camarillo
testified that the confidential informant met with Mr. Lopez-Olmedo for approximately thirty
minutes. Based on the video footage and Sergeant Camarillo’s testimony, it is reasonable to infer
that the confidential informant and Mr. Lopez-Olmedo entered the attic room where the box of
baggies, drug press, digital scale, and blender were found by Detective Straub. Furthermore,
17
relying upon the inference that Mr. Lopez-Olmedo was in the attic, in conjunction with Detectives
Straub and Heathcoat’s testimony that those items were found in the attic and how those items and
mannite are used in drug trafficking, Special Agent Meholif’s testimony that he found two bars of
mannite and a white substance in a baggie on Mr. Lopez-Olmedo, and Forensic Drug Analysist
Doyle’s testimony that the residue on the digital scale was heroin and fentanyl and the white
substance found on Mr. Lopez-Olmedo was 188.16 grams of heroin and 6-Monoacetylmorphine,
it is reasonable to make a parallel inference that Mr. Lopez-Olmedo was connected to the digital
scale, blender, drug press, and baggies.
{¶38} Even assuming arguendo that there was no circumstantial evidence attributing the
digital scale, blender, drug press, and baggies to Mr. Lopez-Olmedo, there was other circumstantial
evidence that was sufficient to prove that he prepared a controlled substance for shipment or
distribution: the 188.16 grams of heroin valued at over $15,000 and the two bars of mannite found
on Mr. Lopez-Olmedo and the testimony of three law enforcement officers that mannite is used in
drug trafficking as a cutting agent to stretch out drugs to make more money. See State v. Heald,
5th Dist. Richland No. 17CA50, 2018-Ohio-1789, ¶ 30-31 (relying on evidence of a large amount
of heroin and the street value of 297.51 grams of heroin to support trafficking in heroin); State v.
McDonald, 8th Dist. Cuyahoga No. 105276, 2018-Ohio-484, ¶ 14, 32 (relying on testimony from
law enforcement officers regarding the process of cutting drugs in drug trafficking); State v.
Burton, 8th Dist. Cuyahoga No. 107054, 2019-Ohio-2431, ¶ 48 (also considering evidence of “the
presence of ‘cut mixes[]’”). Compare State v. Howard, 8th Dist. Cuyahoga No. 105327, 2017-
Ohio-8734, ¶ 6 (concluding that even when no heroin or cocaine is recovered, the presence of
Mannitol is indicative of drug trafficking). See also R.C. 2925.14(A)(7) (drug paraphernalia
includes mannite used for cutting a controlled substance). The evidence of a large quantity of
18
heroin and two bars of mannite found on Mr. Lopez-Olmedo permit a reasonable inference that he
was preparing drugs for shipment or distribution.
{¶39} Viewing the evidence in a light most favorable to the prosecution, a rational trier
of fact reasonably could have concluded that the State proved Mr. Lopez-Olmedo’s conviction
beyond a reasonable doubt. See Jenks, 61 Ohio St.3d at 273.
{¶40} Mr. Lopez-Olmedo’s second assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 3
THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH
AMENDMENT TO THE U.S. CONSTITUTION AND OF THE OHIO
CONSTITUTION.
{¶41} In his third assignment of error, Mr. Lopez-Olmedo argues that his convictions3 are
against the manifest weight of the evidence because there was no evidence of the handling of the
substance or the chain of custody and there were multiple and substantial breaks in the chain of
custody which weighed on the credibility of the evidence. This Court disagrees.
{¶42} When considering whether a conviction is against the manifest weight of the
evidence, this Court must:
review the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State
v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
3
As we explained in footnote 2, Mr. Lopez-Olmedo was only convicted of trafficking in
drugs in violation of R.C. 2925.03(A)(2). Again, we will limit our review accordingly.
19
{¶43} Evid.R. 901(A) provides that “[t]he requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims.” Chain of custody is part of the authentication
and identification requirement for the admission of evidence under Evid.R. 901(A) and the
prosecution has the burden of proving the chain of custody of a specific piece of evidence. State
v. Ohara, 9th Dist. Summit No. 27342, 2014-Ohio-5532, ¶ 8. However, the prosecution’s burden
of proving chain of custody is not absolute. State v. Hickman, 9th Dist. Summit No. 20883, 2002-
Ohio-3406, ¶ 20. The prosecution is not required to disaffirm all possibilities of evidence
tampering or substitution; rather, the prosecution is merely required to “‘establish that it is
reasonably certain that substitution, alteration, or tampering did not occur.’” Ohara at ¶ 8, quoting
Hickman at ¶ 20. Nor is the State “‘required to prove a perfect, unbroken chain of custody.’” State
v. Meyers, 9th Dist. Summit Nos. 23864, 23903, 2008-Ohio-2528, ¶ 49, quoting State v. Semedo,
5th Dist. Stark No. 2006 CA 00108, 2007-Ohio-1805, ¶ 12. “Any breaks in the chain of custody
go to the weight afforded to the evidence, not to its admissibility.” Hickman at ¶ 20.
{¶44} On appeal, Mr. Lopez-Olmedo maintains that his conviction for trafficking in
drugs was against the manifest weight of the evidence because there were breaks in the chain of
custody for the items found in the attic and the bag of white substance found on him. To that end,
Mr. Lopez-Olmedo asserts that there was “no evidence as to the handling of the substance or the
chain of custody[]” and thus the State did not meet its burden of showing that no tampering,
substitution, or alteration occurred.
{¶45} In this case, Forensic Drug Analyst Doyle testified on cross-examination that the
Lorain Police Department gave her the white substance found on Mr. Lopez-Olmedo and the scale
found in the attic for testing. State’s Exhibit 3, a certified copy of the laboratory report prepared
20
by Forensic Drug Analyst Doyle, indicates that she received this evidence on November 16, 2018
at 10:07 a.m. and the officer and agency submitting the evidence was Officer Payne of the Lorain
Police Department. Forensic Drug Analyst Doyle explained on direct examination that everything
that comes into the laboratory is assigned and marked with an unique identifier as a laboratory
number and how the laboratory numbers are generated. She then identified the laboratory numbers
that were assigned to State’s Exhibits 45, the digital scale, and 49, the white substance, and testified
that both of those exhibits contained their assigned laboratory numbers. Additionally, the
laboratory numbers and a description of the evidence were listed in the laboratory report.
{¶46} Forensic Drug Analyst Doyle indicated that after the evidence is marked with a
laboratory number it is placed in the evidence locker until she is ready to test it. According to the
laboratory report, Forensic Drug Analyst Doyle tested the evidence on November 16, 2018. She
then explained how she tested the white substance and the digital scale and the results of the tests:
the white substance was 188.16 grams of heroin and 6-Monoacetylmorphine and heroin and
fentanyl was detected on the digital scale. These findings were also included in the laboratory
report.
{¶47} Forensic Drug Analyst Doyle also testified regarding other markings made by her
on the evidence bags in this case. She explained that when she opened the evidence bags to
perform the tests, she wrote the word “‘Open[,]’” the date and time, and her initials and when she
was done testing, she sealed the evidence bag with red evidence tape, and wrote “‘Sealed,’” the
date and time, and her initials. Forensic Drug Analyst Doyle further testified that, based on the
markings on the evidence bags and the lab results, State’s Exhibits 45, the digital scale, and 49,
the white substance, were the items that pertained to the laboratory report.
21
{¶48} Special Agent Meholif testified that when he searched Mr. Lopez-Olmedo he found
a bag with a substance that he believed to be contraband rolled up in Mr. Lopez-Olmedo’s
waistband and that State’s Exhibit 49 was the same substance he found in the search. Special
Agent Meholif testified and State’s Exhibit 2, the DVD with video footage of the search, shows
that Special Agent Meholif set the bag with the substance on the bottom step coming from the
house. Also in the video and according to Special Agent Meholif’s testimony, he additionally
found two bars of mannite on Mr. Lopez-Olmedo and placed those on the outside edge of the same
step that he had placed the bag of substance. Additionally, Agent Meholif testified that there was
loose money on the ground in that area that was believed to belong to Mr. Lopez-Olmedo.
Detective Heathcoat testified that State’s Exhibits 14 and 15, photographs taken by him, showed
two bars of mannite and a baggie containing a white substance on the bottom step of the house and
loose money on the ground below the step.
{¶49} The State also admitted as evidence the actual box of baggies, drug press, digital
scale, and blender found in the attic. The State corroborated the identity of these items through
photographs admitted into evidence and testimony from Detective Heathcoat and Detective Straub.
Detective Heathcoat testified that he photographed each of these items in the attic and described
the items in the pictures. Detective Straub testified that he searched the attic and that the actual
box of baggies, digital scale, blender, and drug press that were admitted as exhibits at trial were
the same items that he found when searching the attic and as depicted in the photographs taken by
Detective Heathcoat.
{¶50} Mr. Lopez-Olmedo points out there was no testimony as to how the above evidence
was handled after it was found, and thus the State has failed to establish that it was reasonably
certain that no substitution, alteration, or tampering occurred. While there is a possible break in
22
the chain of custody in the testimony, the State carried its burden in this case. The State offered
the actual items into evidence, along with photographs of the items, and Detective Straub’s and
Special Agent Meholif’s testimony that those were the same items that they recovered during the
execution of the search warrant. Additionally, there was evidence that Forensic Drug Analyst
Doyle received the bag containing a white substance and the digital scale from Officer Payne of
the Lorain Police Department, that she marked the evidence bags with unique laboratory numbers
and as being opened and closed by her, and that State’s Exhibits 45, the digital scale, and 49, the
bag of white substance, contained all of those marking and were the items she received and tested.
{¶51} Based upon the foregoing, the State offered evidence showing the identity of the
items found during the execution of the search warrant, tested in the laboratory, and produced at
trial. Mr. Lopez-Olmedo, however, does not point to any evidence contradicting the State’s
evidence or suggesting that substitution, alteration, or tampering had occurred. See generally State
v. Wilson, 8th Dist. Cuyahoga No. 102231, 2015-Ohio-4979, ¶ 46-50 (concluding that an
appellant’s drug trafficking and possession convictions were not against the manifest weight of
the evidence due to alleged improper handling of evidence and evidence contamination where the
State presented chain of custody evidence and appellant did not “point to any evidence suggesting
that the evidence was improperly collected, transported, or analyzed[]”). Nor did he attempt to
challenge the credibility of the State’s evidence during the trial. See generally State v. Jenkins,
4th Dist. Highland No. 12CA10, 2013-Ohio-595, ¶ 11 (noting that defense counsel could have
presented the chain of custody issue to the jury during cross-examination of the State’s witness, in
the defense’s case-in-chief, or in closing argument and thereby challenged the credibility of the
state’s chain of custody evidence). Accordingly, we conclude that the State’s evidence
23
“‘establish[ed] that it is reasonably certain that substitution, alteration, or tampering did not
occur.’” See Ohara, 2014-Ohio-5532, at ¶ 8, quoting Hickman, 2002-Ohio-3406, at ¶ 20.
{¶52} Having reviewed the record, this Court cannot conclude that the jury clearly lost its
way and created a manifest miscarriage of justice when it found Mr. Lopez-Olmedo guilty of
trafficking in drugs. See Otten, 33 Ohio App.3d at 340. Given the positive identification of the
evidence from various witness, and the jury’s ability to compare and scrutinize the actual baggie
of white substance, the box of baggies, the digital scale, the drug press, and the blender to the
photographs of each of those items, the jury could have reasonably believed that each of those
items presented at trial, and the items submitted for testing, were the same items collected during
the execution of the search warrant. Mr. Lopez-Olmedo has not shown that this is the exceptional
case where the evidence weighs heavily against his conviction. See id. at 340, citing Martin, 20
Ohio App.3d at 175.
{¶53} Mr. Lopez-Olmedo’s third assignment of error is overruled.
III.
{¶54} Each of Mr. Lopez-Olmedo’s assignments of error are overruled. The judgment of
the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
24
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
TEODOSIO, P. J.
CONCURS.
HENSAL, J.
DISSENTING.
{¶55} Criminal Rule 52(B) provides that a plain error or defect affecting a substantial
right may be noticed although it was “not brought to the attention of the court.” The majority
acknowledges that Mr. Lopez-Olmedo made the trial court aware of a problem with him hearing
the Spanish interpreters. It also acknowledges that the court did not do anything to correct the
25
issue and concludes that it was an abuse of discretion for the court to continue the trial without
attempting to resolve the problem. Nevertheless, it reasons that Mr. Lopez-Olmedo had to object
again after the court decided to proceed with the trial. I do not agree that a party must, under these
circumstances, raise a second objection to preserve an issue after the trial court is made aware of
it and does nothing about it. “The purpose of objections is to put the court on notice of a party’s
particular complaint, at a time when errors can be corrected.” Messer v. Messer, 2d Dist. Darke
No. 1570, 2002-Ohio-4196, ¶ 21. There is no requirement in Rule 52(B) that a party must object
a second time if it does not like how the trial court addressed (or did not address) the issue it raised.
{¶56} Even if Mr. Lopez-Olmedo were required to establish plain error, I do not agree
with the majority’s attempt to address the merits of the issue. Mr. Lopez-Olmedo has not argued
plain error in his appellate brief, and this Court has been clear that it “will not construct a plain
error argument on behalf of an appellant who has failed to argue plain error on appeal.” State v.
Irvine, 9th Dist. Summit No. 28998, 2019-Ohio-959, ¶ 42. Developing a plain-error argument for
Mr. Lopez-Olmedo as the majority has done could jeopardize Mr. Lopez-Olmedo’s ability to argue
that his appellate counsel was ineffective for not making a plain-error argument in an application
for reopening under Appellate Rule 26(B). I, therefore, respectfully dissent.
APPEARANCES:
GIOVANNA V. BREMKE, Attorney at Law, for Appellant.
J.D. TOMLINSON, Prosecuting Attorney, and LINDSEY POPROCKI, Assistant Prosecuting
Attorney, for Appellee.