State v. Oder

[Cite as State v. Oder, 2022-Ohio-3048.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2021 CA 00061
:
JEFFREY R. ODER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court
of Common Pleas, Case No. 21 CR
00159
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 31, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
WILLIAM C. HAYES STEPHEN T. WOLFE
LICKING COUNTY PROSECUTOR WOLFE LAW GROUP LLC
1350 West Fifth Ave., Suite 330
CLIFFORD J. MURPHY Columbus, OH 43212
20 North Second Street, 4th Floor
Newark, OH 43055
Licking County, Case No. 2021 CA 00061 2
Delaney, J.
{¶1} Defendant-Appellant Jeffrey R. Oder appeals his July 7, 2021 conviction
and sentence by the Licking County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
The Stolen Motor Vehicle
{¶2} On December 14, 2020, the Asset Protection Technician with Carvana,
located in Heath, Licking County, Ohio, called the Heath Police Department to report two
stolen vehicles from the Carvana car lot. The stolen vehicles were a black Ford Mustang
and a black Dodge Challenger. The patrolman with the Heath Police Department entered
the vehicles into the LEADS database as stolen vehicles.
The Pursuit
{¶3} Trooper Samuel Moon with the Ohio State Highway Patrol was on duty
during the early morning hours of March 11, 2021. At approximately 3:28 a.m., Trooper
Moon was traveling northbound on State Route 79 near Heath, Ohio. When Trooper
Moon was approaching the intersection of State Route 79 and Ridgley Tract Road, he
noticed a two-door vehicle turning into the intersection at a high rate of speed.
{¶4} Based on the infraction, Trooper Moon attempted to initiate a traffic stop of
the vehicle. He activated the emergency light bars on his cruiser and followed the vehicle,
but the vehicle did not slow down. While the speed limit on the roadway was 50 miles
per hour, Trooper Moon had to increase his speed to approximately 120 miles per hour
to catch up to the vehicle.
{¶5} During the pursuit, the vehicle entered the wrong lane of traffic on State
Route 79 and began traveling south in a northbound lane. Trooper Moon noticed the
Licking County, Case No. 2021 CA 00061 3
vehicle did not have its headlights activated while traveling into oncoming traffic. When
the vehicle suddenly slowed its speed, Trooper Moon attempted to drive parallel with the
vehicle. The vehicle made a sharp left turn onto the off-ramp for Interstate 70, entering
the highway driving against oncoming traffic.
{¶6} The vehicle moved to the right-side berm of the highway, where it continued
to move forward against traffic, but at a slower speed. Trooper Moon pulled his cruiser
behind the vehicle, with lights and sirens activated, and used his cruiser’s loudspeaker
to verbally order the driver to shut the car off. The driver ignored the trooper’s
repeated commands to stop the vehicle and continued to move forward, revving the
engine while Trooper Moon followed.
{¶7} The vehicle finally stopped when backup from the Buckeye Lake Police
Department, Licking County Sheriff’s Department, and Hebron Police Department
arrived on the scene. The police officers formulated a plan and approached the vehicle
with weapons drawn and a stop stick to place under the driver’s side rear tire. The officers
found two occupants in the vehicle: Defendant-Appellant Jeffrey R. Oder was the driver
and Bradley Hinkle was the passenger. Oder and Hinkle initially failed to comply with
police officer’s commands to the open the doors to the vehicle, but they finally exited the
vehicle, were placed in handcuffs, and searched by the officers. Oder was secured in
the rear of Trooper Moon’s cruiser. Hinkle was placed in the rear of the Buckeye Lake
Police officer’s cruiser.
Licking County, Case No. 2021 CA 00061 4
The Post-Pursuit Search
{¶8} Trooper Moon returned to the stopped vehicle and determined it was a
black Ford Mustang. He ran the plates of the vehicle in LEADS and found the vehicle
identification number matched the vehicle stolen from the Carvana car lot in December
2020.
{¶9} When Trooper Moon looked inside the Ford Mustang, he observed a white
crystalline substance scattered all over the cabin of the vehicle. The substance looked
like amphetamines to him, based on his training and prior experience. He next found a
small scale on the driver’s side door pocket. In the rear driver’s side seat, he found a
box. Inside the box was a large glass bong. Next to that was a small black zip-up bag.
The bag contained two small, clear plastic bags containing the same white to clear
crystalline substances wrapped inside. A crystalline substance was scattered over the
passenger floorboard and there was a broken small plastic bag on the passenger seat.
In the glove box, Trooper Moon found a glass smoking device with burnt residue. In the
front passenger side door pocket, he found $1000 in cash.
{¶10} After the stop, Trooper Moon observed that Oder exhibited signs of
methamphetamine use, such as anxiety, sweating, and constricted pupils that did not
react to light. Trooper Moon conducted Standardized Field Sobriety Tests on Oder in the
rear passenger seat of the cruiser for officer safety purposes. He then conducted an
Advanced Roadside Impairment Drug Enforcement field test, specifically the modified
Romberg Test, which indicated an impairment from methamphetamine. He asked Oder
for a urine sample, but Oder refused.
Licking County, Case No. 2021 CA 00061 5
{¶11} Heath Steele, formerly a patrolman with the Buckeye Lake Police
Department on March 11, 2021, searched Hinkle, the passenger of the vehicle. Steele
discovered $1,200 in cash in Hinkle’s pocket. Steele also observed the scale in the car
door, the large bong in the backseat of the car, and a large amount of what he identified
as methamphetamine in the car, based on his training and experience.
The Indictment
{¶12} On April 8, 2021, the Licking County Grand Jury returned a four-count,
Superseding Indictment against Oder. He was charged with: (1) receiving stolen property
(motor vehicle), a fourth-degree felony in violation of R.C. 2913.51(A); (2) aggravated
possession of methamphetamine, a second-degree felony in violation of R.C.
2925.11(A)(C)(1)(C); (3) aggravated trafficking in methamphetamine, a second-degree
felony in violation of R.C. 2925.03(A)(2)(C)(1)(d); and (4) failure to comply with the order
or signal of a police officer, a third-degree felony in violation of R.C. 2921.331(B). The
indictment also contained a forfeiture specification.
{¶13} Oder entered a not guilty plea to the charges. The matter was set for a jury
trial.
{¶14} Prior to the jury trial, Oder filed a motion in limine on July 6, 2021. Oder
requested the trial court prohibit the State from introducing evidence at trial of Oder’s
conviction in the municipal court for Operating a Motor Vehicle Under the Influence of
Alcohol or Drugs, a violation of R.C. 4511.19(A)(1)(a). Oder argued the introduction of
the evidence of his conviction based on the events of March 11, 2021, was not relevant
to the charged offenses in the present case and/or would constitute “other bad acts”
Licking County, Case No. 2021 CA 00061 6
evidence pursuant to Evid.R. 404. The State did not file a response to the motion in
limine.
The Jury Trial
{¶15} The matter came on for jury trial on July 6, 2021. Prior to jury selection, the
trial court addressed Oder’s motion for limine. Counsel for Oder argued that any
discussion or reference to the OVI case arising from the March 11, 2021 incident would
be prejudicial and outweigh the probative value. (T. 6). The State responded that while
the motion in limine was styled as an Evid.R. 404(B) motion, the evidence did not involve
other acts. (T. 7). Oder was charged with possession of methamphetamine, which
included the elements to “obtain, possess or use.” (T. 7). Oder engaged in a high-speed
chase, Trooper Moon conducted field sobriety tests, and Oder refused to consent to a
urine test. (T. 7). The State argued the information was not related to Evid.R. 404(B) and
went to the heart of the charge for possession of methamphetamine. (T. 7). The
information was prejudicial, but relevant. (T. 7). The trial court agreed with the State’s
argument and denied the motion in limine. (T. 7).
{¶16} Trooper Moon testified as to the pursuit and arrest on March 11, 2021.
State’s Exhibit 1, the dash cam video from Trooper Moon’s cruiser recorded on March
11, 2021, was played for the jury. Trooper Moon testified he sent the suspected drugs
seized from Oder’s vehicle to the Ohio State Highway Patrol Crime Lab. (T. 107). The
lab report showed the following: (1) one Ziploc plastic bag containing a crystal-like
substance identified as methamphetamines, weighing 16.16 grams; (2) one knotted
plastic bag containing a crystal-like substance identified as methamphetamines,
weighing 14.09 grams; and (3) one knotted plastic bag containing a crystal-like
Licking County, Case No. 2021 CA 00061 7
substance identified as methamphetamines, weighing 5.67 grams. (T. 108). The total
weight of the tested methamphetamines, a Schedule II controlled substance, seized from
the vehicle was 35.9363 grams, which was greater than five times bulk. (T. 134). The
parties stipulated to the lab report in State’s Exhibit 10. (T. 133). The scale found in the
driver’s side door was not tested for the presence of drugs.
{¶17} Trooper Moon testified that Oder showed signs of methamphetamine use
during the field sobriety testing. (T. 109). There was no testimony that Oder was charged
and convicted of OVI based on the failed field sobriety tests. Counsel for Oder did not
object to the testimony regarding the field sobriety tests.
{¶18} At the conclusion of the State’s case, Oder made a Crim.R. 29 motion for
dismissal. He argued that while Oder conceded to receiving stolen property and failure
to comply, he contested the charges of aggravated trafficking and aggravated
possession of methamphetamine. (T. 136). The evidence presented by the State showed
the methamphetamine and cash found in the vehicle were on the passenger side. (T.
136). There was no methamphetamine found on the scale found in the vehicle. (T. 137).
The trial court denied the motion. (T. 138).
{¶19} Oder testified on his own behalf. He admitted on March 11, 2021, he was
driving the 2017 Mustang DT Premium that he had stolen from the Carvana car lot in
December 2020. (T. 143). He was driving to Buckeye Lake with his “homie” Hinkle, but
he was driving poorly when Trooper Moon activated his lights. (T. 139, 145). When he
saw Trooper Moon following him, Oder “freaked” and asked Hinkle what to do. Hinkle
told him to “drive.” (T. 145). Oder drove on the wrong side of the road to get away from
Trooper Moon, but the chase ended when his clutch went out. (T. 146). He kept trying to
Licking County, Case No. 2021 CA 00061 8
get his clutch to reengage instead of stopping the car when ordered by Trooper Moon.
(T. 146).
{¶20} Oder denied having any methamphetamine on him when he was stopped.
He testified that the cash, bong, and methamphetamine found in the bags and spread
throughout the vehicle belonged to Hinkle. (T. 147). He admitted the scales belonged to
him and that he was a drug addict. (T. 160). Because Oder was concentrating on driving
and evading Trooper Moon, he did not know Hinkle was spreading the
methamphetamine all over the car. (T. 165).
{¶21} At the conclusion of Oder’s case, counsel for Oder renewed his motion for
Crim.R. 29. (T. 174). The trial court denied the motion.
{¶22} The jury returned its verdict, finding Oder guilty of Count One, receiving
stolen property; Count Two, aggravated possession of methamphetamine; and Count
Four, failure to comply with the order or signal of a police officer. The jury found Oder
not guilty on Count Three, aggravated trafficking in methamphetamine.
The Sentencing
{¶23} The trial court moved immediately to sentencing after Oder waived his right
to a presentence investigation report. The trial court sentenced Oder to 12 months in
prison on Count One; 24 months in prison on Count Four; and an indefinite prison term
for Count Two, with a minimum period of four years and a maximum period of six years.
{¶24} The trial court next imposed consecutive sentences. It stated at the
sentencing hearing:
Imposing consecutive sentences here because I find that it’s necessary to
protect the public and punish the offender. That concurrent terms would
Licking County, Case No. 2021 CA 00061 9
demean the seriousness of these offenses and, frankly, that Mr. Oder’s
term – or prior record will certainly justify here. Also, the term imposed on
Count Four is required to be served consecutively by operation of law.
(T. 232).
{¶25} Oder’s aggregate prison term was seven years indefinite to nine years.
{¶26} The trial court journalized the verdict and sentence in a judgment entry filed
on July 7, 2021. In the judgment entry, the trial court stated:
Pursuant to R.C. 2929.14(C)(4), the Court orders that the sentences
imposed on Counts 1 and 2 be served consecutively to each other because
the Court finds that consecutive terms are necessary to protect the public
from future crime, and, to punish the offender; and that consecutive
sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public. Additionally,
the Court finds that the Defendant’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the
public from future crime by the offender.
(Judgment Entry, July 7, 2021).
{¶27} It is from this conviction and sentence that Oder now appeals.
Licking County, Case No. 2021 CA 00061 10
ASSIGNMENTS OF ERROR
{¶28} Oder raises six Assignments of Error:
{¶29} “I. THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE PRIOR
BAD ACTS OF ODER, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO
CONSTITUTION.
{¶30} “II. JEFFREY ODER’S CONVICTION FOR AGGRAVATED DRUG
POSSESSION IS BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE
PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTIONS AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO
CONSTITUTION.
{¶31} “III. JEFFREY ODER’S CONVICTION FOR AGGRAVATED DRUG
POSSESSION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN
VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16,
ARTICLE I OF THE OHIO CONSTITUTION.
{¶32} “IV. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED
CODE’S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES
VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF
OHIO.
{¶33} “V. THE TRIAL COURT UNLAWFULLY ORDERED ODER TO SERVE
CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS,
Licking County, Case No. 2021 CA 00061 11
GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
{¶34} “VI. ODER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN
VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
ANALYSIS
I. and VI.
{¶35} In his first Assignment of Error, Oder argues the trial court committed plain
error when it permitted the State to introduce the evidence of Oder’s field sobriety tests.
In his sixth Assignment of Error, Oder contends that he received the ineffective
assistance of counsel for trial counsel’s failure to object to the introduction of the
evidence. On both Assignments of Error, we disagree.
Plain Error Review
{¶36} Prior to the jury trial, Oder filed a motion in limine to prevent the State from
introducing evidence of Oder’s operation of the motor vehicle while under the influence
of methamphetamine and his resulting conviction for OVI. Oder argued the evidence was
prohibited by Evid.R. 404(B) as “other acts evidence.” The trial court denied the motion
in limine. During the trial, Trooper Moon testified that he gave Oder field sobriety tests
based on Oder’s observable physical symptoms of methamphetamine use, including
anxiety, sweating, and constricted pupils that did not react to light. The result of the field
sobriety tests indicated that Oder was under the influence of methamphetamine. Trooper
Licking County, Case No. 2021 CA 00061 12
Moon testified he requested Oder to take a urine test, but Oder refused. Counsel for
Oder did not object to the line of questioning.
{¶37} Because Oder raises this matter as an Assignment of Error and trial
counsel failed to object to the alleged error, we review the matter under the plain error
standard of review. Under the plain error rule, “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court.” Crim.R. 52(B). The rule places the following limitations on a reviewing court's
determination to correct an error despite the absence of timely objections at trial: (1)
“there must be an error, i.e. a deviation from a legal rule,” (2) “the error must be plain,”
that is an error that constitutes “an ‘obvious’ defect in the trial proceedings,” and (3) the
error must have affected “substantial rights” such that “the trial court's error must have
affected the outcome of the trial.” State v. Wood, 5th Dist. Knox No. 20CA000010, 2020-
Ohio-4251, 2020 WL 5092841, ¶ 18 citing State v. Dunn, 5th Dist. Stark No. 2008-CA-
00137, 2009-Ohio-1688, 2009 WL 943968, ¶ 89, citing State v. Morales, 10th Dist.
Franklin Nos. 03-AP-318, 2004-Ohio-3391, 2004 WL 1446117, ¶ 19.
{¶38} Oder contends the introduction of the evidence was prohibited under
Evid.R. 404(B) as “other acts evidence.” Evid.R. 404(B) states in pertinent part:
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. * * * *.”1 Oder contends Trooper
1Evid.R. 404(B) was amended, effective July 1, 2022. It now reads: “(1) Prohibited Uses. Evidence of
any other crime, wrong or act is not admissible to prove a person's character in order to show that on a
particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice. This
Licking County, Case No. 2021 CA 00061 13
Moon’s testimony about the field sobriety tests, Oder’s failure of the test indicating that
he was under the influence of methamphetamine, and Oder’s refusal to take a urine test
was inadmissible under Evid.R. 404(B) because the evidence was not probative to the
issue of whether Oder was in possession of methamphetamine. The jury could have
construed the evidence as tending to show that Oder acted in conformity with having a
propensity toward committing crimes.
{¶39} Oder was charged with aggravated possession of methamphetamine, a
second-degree felony in violation of R.C. 2925.11(A)(C)(1)(C). R.C. 2925.11(A) states,
“No person shall knowingly obtain, possess, or use a controlled substance or a controlled
substance analog.” The trial court found the evidence regarding the field sobriety tests
admissible because it was relevant to the elements of aggravated possession of
methamphetamine, which includes “use.” The admission or exclusion of relevant
evidence rests in the sound discretion of the trial court. State v. Juarez, 5th Dist. Stark
No. 2020CA00067, 2020-Ohio-6692, 2020 WL 7353343, ¶ 41 citing State v. Sage, 31
Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). Generally, all relevant evidence is
admissible. Evid.R. 402. Abuse of discretion means more than an error of law or
judgment. Rather, it implies that the court's attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Absent an abuse of discretion resulting in material prejudice to the defendant, a
reviewing court should be reluctant to interfere with a trial court's decision in this regard.
Sage, 31 Ohio St.3d 173, 510 N.E.2d 343.
evidence may be admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Licking County, Case No. 2021 CA 00061 14
{¶40} We find that Oder has failed to meet the first element of the plain error rule
because there was no error. The trial court did not deviate from any legal rule when it
admitted Trooper Moon’s testimony regarding Oder’s indications of methamphetamine
impairment and the results of the field sobriety testing. The evidence was relevant to the
elements of aggravated possession of methamphetamine and therefore admissible.
{¶41} Oder’s first Assignment of Error is overruled.
Ineffective Assistance of Counsel
{¶42} To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell
below an objective standard of reasonable representation, and (2) that counsel's errors
prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the
result of the trial would have been different. Strickland v. Washington, 466 U.S. 668,
687–688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable
probability” is “probability sufficient to undermine confidence in the outcome.” Strickland
at 694, 104 S.Ct. 2052.
{¶43} Based on our determination that the trial court did not commit plain error in
finding the evidence of the field sobriety tests was relevant and therefore admissible, we
find that Oder cannot demonstrate the first prong of the Strickland test. His trial counsel
did not fall below the objective standard of reasonable representation when counsel did
not object to the admission of the evidence at trial.
{¶44} Oder’s sixth Assignment of Error is overruled.
Licking County, Case No. 2021 CA 00061 15
II. and III.
{¶45} In Oder’s second and third Assignments of Error, he contends his
conviction for aggravated possession of methamphetamine was against the sufficiency
and manifest weight of the evidence. We disagree.
{¶46} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard
of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the
Ohio Supreme Court held, “An appellate court's function when reviewing the sufficiency
of the evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average mind
of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable
doubt.”
{¶47} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the
jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78
Ohio St.3d at 387, 678 N.E.2d 541. Reversing a conviction as being against the manifest
Licking County, Case No. 2021 CA 00061 16
weight of the evidence and ordering a new trial should be reserved for only the
“exceptional case in which the evidence weighs heavily against the conviction.” Id.{¶48} Pursuant to R.C. 2925.11(A), the State was required to prove beyond a
reasonable doubt that Oder knowingly obtained, possessed, or used a controlled
substance or a controlled substance analog, in this case, methamphetamine. Oder
asserts the State failed to produce sufficient evidence that he knowingly obtained,
possessed, or used methamphetamine. He testified the methamphetamine, black bag,
and bong found in the Ford Mustang belonged to Hinkle. When searched by the police,
there were no drugs found on Oder. The police found $1,200 in cash on Hinkle when he
was searched and there was $1,000 in the passenger door side pocket.
{¶49} R.C. 2925.01(K) defines “possession” as “having control over a thing or
substance, but may not be inferred solely from mere access to the thing or substance
through ownership or occupation of the premises upon which the thing or substance is
found.” R.C. 2901.21 provides the requirements for criminal liability and provides that
possession is a “voluntary act if the possessor knowingly procured or received the thing
possessed, or was aware of the possessor's control of the thing possessed for sufficient
time to have ended possession.” R.C. 2901.21(D)(1).
{¶50} Possession may be actual or constructive. State v. Granados, 5th Dist.
Fairfield No. 13-CA-50, 2014-Ohio-1758, ¶ 25, citing State v. Butler, 42 Ohio St.3d 174,
176, 538 N.E.2d 98 (1989). To establish constructive possession, the evidence must
prove that the defendant was able to exercise dominion and control over the contraband.
State v. Wolery, 46 Ohio St.2d 316, 332, 348 N.E.2d 351 (1976). Dominion and control
may be proven by circumstantial evidence alone. State v. Trembly, 137 Ohio App.3d
Licking County, Case No. 2021 CA 00061 17
134, 738 N.E.2d 93 (8th Dist.2000). Circumstantial evidence that the defendant was in
very close proximity to the contraband may show constructive possession. Granados,
supra, citing State v. Barr, 86 Ohio App.3d 227, 235, 620 N.E.2d 242 (8th Dist.1993);
State v. Morales, 5th Dist. Licking No. 2004 CA 68, 2005–Ohio–4714, ¶ 50; State v.
Underdew, 5th Dist. Muskingum No. CT2021-0006, 2021-Ohio-3811, 2021 WL 4980659,
¶¶ 18-19.
{¶51} Oder admitted that he stole the Ford Mustang in December 2020 and had
sole possession of the vehicle. Oder admitted that he was a drug addict. Trooper Moon
testified he saw a white, crystalline substance, which based on his training and
experience he identified as methamphetamine, scattered all over the cabin of the vehicle.
It was observed on the passenger side floorboard and the floorboards behind the driver
and passenger sides. Trooper Moon found a broken plastic bag containing
methamphetamine on the passenger seat. There was a drug scale found in the driver’s
side pocket that Oder admitted belonged to him. A box was located behind the driver’s
seat that contained a glass bong and a black bag with two baggies filled with
methamphetamine. The lab report showed that 35.92 grams of methamphetamine were
in the Ford Mustang.
{¶52} When he was arrested, Trooper Moon noticed that Oder showed signs of
methamphetamine impairment. He was anxious, sweating, and his constricted pupils did
not react to light. After Trooper Moon conducted the field sobriety tests, the tests
indicated Oder was under the influence of methamphetamine.
{¶53} In this case, the jury could reasonably infer that Oder knowingly obtained,
possessed, or used the methamphetamine found in the Ford Mustang. Oder was in very
Licking County, Case No. 2021 CA 00061 18
close proximity to the methamphetamine in the motor vehicle, close enough where a jury
could reasonably find that he exercised dominion and control over the methamphetamine
in the motor vehicle. At the time of his arrest, he also showed signs of methamphetamine
impairment as confirmed by field sobriety tests.
{¶54} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Oder possessed methamphetamine. The weight to be given to the evidence and the
credibility of the witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d
230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Although the evidence may
have been circumstantial, we note that circumstantial evidence has the same probative
value as direct evidence. State v. Jenks, supra. The jury in this case was presented with
multiple charges; specifically, aggravated possession of methamphetamine and
aggravated trafficking in methamphetamine. The jury found Oder not guilty of aggravated
trafficking in methamphetamine, showing it considered the evidence and discerned
beyond a reasonable doubt that Oder knowingly obtained, possessed, or used
methamphetamine.
{¶55} We find that this is not an “ ‘exceptional case in which the evidence weighs
heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387. Upon our review of
the entire record in this matter, Oder’s conviction for aggravated possession of
methamphetamine is not against the sufficiency or the manifest weight of the evidence.
{¶56} Oder’s second and third Assignments of Error are overruled.
Licking County, Case No. 2021 CA 00061 19
IV. and VI.
{¶57} In his fourth Assignment of Error, Oder challenges the constitutionality of
the Reagan Tokes Act. The trial court sentenced Oder pursuant to the Reagan Tokes
Act upon his conviction for aggravated possession of methamphetamine, a second-
degree felony. Oder contends in his sixth Assignment of Error that his trial counsel was
ineffective for failing to object to the constitutionality of the Reagan Tokes Act.
Reagan Tokes Act
{¶58} We first note that pursuant to State v. Maddox, Ohio St.3d, 2022-Ohio-764,
N.E.3d, constitutional challenges to the Reagan Tokes Act are ripe for review on direct
appeal.
{¶59} In State v. Householder, 5th Dist. Muskingum No. CT2021-0026, 2022-
Ohio-1542, we set forth this Court's position on the arguments raised in Oder’s fourth
Assignment of Error:
For the reasons stated in the dissenting opinion of The Honorable W. Scott
Gwin in State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-
5501, we find the Reagan Tokes Law does not violate Appellant's
constitutional rights to trial by jury and due process of law, and does not
violate the constitutional requirement of separation of powers. We hereby
adopt the dissenting opinion in Wolfe as the opinion of this Court. In so
holding, we also note the sentencing law has been found constitutional by
the Second, Third, Sixth, and Twelfth Districts, and also by the Eighth
District sitting en banc. See, e.g., State v. Ferguson, 2nd Dist. Montgomery
No. 28644, 2020-Ohio-4153; State v. Hacker, 3rd Dist. Logan No. 8-20-01,
Licking County, Case No. 2021 CA 00061 20
2020-Ohio-5048; State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2022-
Ohio-1350; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-
Ohio-3837; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-
470. Further, we reject Appellant's claim the Reagan Tokes Act violates
equal protection for the reasons stated in State v. Hodgkin, 12th Dist.
Warren No. CA2020-08-048, 2021-Ohio-1353.
State v. Stevens, 5th Dist. Muskingum No. CT2020-0010, 2022-Ohio-2474, 2022 WL
2801202, ¶ 2.
{¶60} Based on the foregoing authority, Oder’s fourth Assignment of Error is
overruled.
Ineffective Assistance of Counsel
{¶61} Oder’s sixth Assignment of Error argues his trial counsel rendered
ineffective assistance by failing to challenge the constitutionality of the Reagan Tokes
Act. We disagree.
{¶62} To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell
below an objective standard of reasonable representation, and (2) that counsel's errors
prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the
result of the trial would have been different. Strickland v. Washington, 466 U.S. 668,
687–688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable
probability” is “probability sufficient to undermine confidence in the outcome.” Strickland
at 694, 104 S.Ct. 2052.
Licking County, Case No. 2021 CA 00061 21
{¶63} Because we have found the Reagan Tokes Act is constitutional, Oder
cannot demonstrate prejudice from counsel's failure to raise the claim in the trial court.
{¶64} The sixth Assignment of Error is overruled.
V.
{¶65} In Oder’s final Assignment of Error, he argues the trial court’s imposition of
consecutive sentences was contrary to law. Upon our review of the record, we disagree.
{¶66} R.C. 2953.08(G)(2) sets forth the standard of review for all felony
sentences. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 ¶ 1.
Pursuant to R.C. 2953.08(G)(2), an appellate court may only “increase, reduce, or
otherwise modify a sentence * * * or may vacate the sentence and remand the matter to
the sentencing court for resentencing” if the court finds by clear and convincing evidence
“(a) [t]hat the record does not support the sentencing court's findings[,]” or “(b) [t]hat the
sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a)-(b).
{¶67} In Ohio, there is a statutory presumption in favor of concurrent sentences
for most felony offenses. R.C. 2929.41(A). The trial court may overcome this
presumption by making the statutory, enumerated findings set forth in R.C.
2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659, 2014-Ohio-3177, ¶
23. R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences and provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the
Licking County, Case No. 2021 CA 00061 22
seriousness of the offender's conduct and to the danger the offender poses
to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶68} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” State v. Newman, 5th Dist. Fairfield No. 20-CA-44, 2021-
Ohio-2124, 2021 WL 2628079, ¶ 100 quoting State v. Bonnell, 140 Ohio St.3d 209, 16
N.E.3d 659, 2014-Ohio-3177, syllabus. In other words, the sentencing court does not
have to perform “a word-for-word recitation of the language of the statute.” Id. at ¶ 29.
Therefore, “as long as the reviewing court can discern that the trial court engaged in the
correct analysis and can determine that the record contains evidence to support the
Licking County, Case No. 2021 CA 00061 23
findings, consecutive sentences should be upheld.” Id. If a sentencing court fails to make
the findings required by R.C. 2929.14(C)(4), a consecutive sentence imposed is contrary
to law. Id. at ¶ 34. The trial court is not required “to give a talismanic incantation of the
words of the statute, provided that the necessary findings can be found in the record and
are incorporated into the sentencing entry.” Id. at ¶ 37.
{¶69} Oder argues on appeal that the trial court failed to make the requisite
findings at the sentencing hearing to impose consecutive sentences. In his appellate
brief, Oder specifically declares the trial court’s error to be that “the court failed to specify
whether consecutive sentences were not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public” under to R.C.
2929.14(C)(4). Oder does not point this Court to any other alleged error pursuant to R.C.
2929.14(C)(4) to argue the imposition of consecutive sentences was contrary to law.
{¶70} During the sentencing hearing when the trial court imposed consecutive
sentences, it stated:
Imposing consecutive sentences here because I find that it’s necessary to
protect the public and punish the offender. That concurrent terms would
demean the seriousness of these offenses and, frankly, that Mr. Oder’s
term – or prior record will certainly justify here. Also, the term imposed on
Count Four is required to be served consecutively by operation of law.
(T. 232).
{¶71} The State argues we should consider another statement made by the trial
court at the sentencing hearing to find that its imposition of consecutive sentences was
not contrary to law:
Licking County, Case No. 2021 CA 00061 24
THE COURT: All right. Mr. Oder, do you want to say anything?
MR. ODER: Just that I’m sorry for my actions. It – it – I’m sorry.
THE COURT: I agree. Man, you could have killed somebody that night
driving on the wrong side of the highway, that speed, turning your lights off,
with these prior convictions. What is your suggestion? Five?
MR. DEPUE: The State asked for five on Count 2, Your Honor, and then
two years on the failure to comply, one year on the RSP. * * *
(Emphasis added.) (T. 229). Oder waived his right to a presentence investigation report.
During Oder’s direct testimony at trial, he testified as to his prior felony convictions for
aggravated possession of drugs in 2015, receiving stolen property in 2016, illegal
assembly of chemical for manufacture in 2010, aggravated possession of drug
paraphernalia in 2010, illegal assembly for manufacture and illegal manufacturing in
2006, and grand theft of an auto in 2020. (T. 139-140).
{¶72} In State v. Bonnell, the trial court stated at the sentencing hearing where it
imposed consecutive sentences, “Going through all of the sentencing factors, I can not
overlook the fact your record is atrocious. The courts have given you opportunities. * * *
On the PSI pages 4 through 16, it’s pretty clear that at this point in time you’ve shown
very little respect for society and the rule of society. The Court feels that a sentence is
appropriate.” Bonnell, 2014-Ohio-3177, ¶ 9. The Ohio Supreme Court reviewed the
requirements of R.C. 2929.14(C)(4) with the trial court record in Bonnell to find the trial
court had met some of the mandated statutory findings of R.C. 2929.14(C)(4), but not
all. The Supreme Court discerned from the trial court’s statement that Bonnell “had
shown very little respect for society” so there was a need to protect the public from future
Licking County, Case No. 2021 CA 00061 25
crimes or to punish Bonnell. Id. at ¶ 33. The Court also concluded by the trial court’s
description of Bonnell’s record as “atrocious” that it knew of Bonnell’s criminal record,
and that record related to a history of criminal conduct demonstrating a need to protect
the public from future crime. Id. at ¶ 33. The Supreme Court found the trial court,
however, never addressed the proportionality of consecutive sentences to the
seriousness of Bonnell’s conduct and the danger he posed to the public; therefore, it
vacated the sentence and remanded the matter to the trial court for resentencing. Id. at
¶ 33, 37.
{¶73} As stated above, Oder only argues to this Court that the trial court failed to
specify whether consecutive sentences were not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public under to R.C.
2929.14(C)(4). Unlike Bonnell, we can discern from the trial court’s statements at the
sentencing hearing “that concurrent terms would demean the seriousness of these
offenses” and “it’s necessary to protect the public and punish the offender,” the trial court
addressed the proportionality of consecutive sentences to the seriousness of Oder’s
conduct and the danger he posed to the public. The trial court’s imposition of consecutive
sentences was not contrary to law.
{¶74} Oder’s fifth Assignment of Error is overruled.
Licking County, Case No. 2021 CA 00061 26
CONCLUSION
{¶75} The judgment of the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, John, J., concur.