State v. Hill

[Cite as State v. Hill, 2018-Ohio-67.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
: Case No. 16CA3
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
CITO E.L. HILL, :
:
Defendant-Appellant. : Released: 01/05/18
_____________________________________________________________
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Allen M. Vender,
Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M.
Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for
Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Cito Hill appeals the judgment of the Athens County Court of
Common Pleas convicting him of one count of aggravated trafficking in
drugs and sentencing him to an eighteen-month prison term. On appeal,
Appellant contends that 1) his conviction is not supported by sufficient
evidence; 2) the trial court abused its discretion when it permitted the State
to introduce evidence of other bad acts; 3) he received ineffective assistance
of counsel because his attorney failed to object to prosecutorial misconduct
Athens App. No. 16CA3 2
in closing argument; and 4) the trial court abused its discretion when it
admitted labels affixed to prescription bottles, which were both hearsay and
not authenticated. Because we fail to find merit in Appellant’s second, third
and fourth assignments of error, and because we have determined under
Appellant’s first assignment of error that his conviction was supported by
sufficient evidence, we overrule all of the assignments of error raised by
Appellant. Accordingly, the judgment of the trial court is affirmed.
FACTS
{¶2} On November 6, 2013, the Athens County Grand Jury indicted
Appellant on one count of aggravated trafficking in drugs (oxycodone) in
violation of R.C. 2925.03(A)(1), a third-degree felony, and one count of
aggravated trafficking in drugs (oxycodone) in violation of R.C.
2925.03(A)(2), a third-degree felony. Each count carried an attendant
forfeiture specification. Appellant pleaded not guilty and the matter
proceeded to trial on November 19, 2015. Just prior to trial, the State
dismissed count one of the indictment.
{¶3} The State presented several witnesses at trial, including Sergeant
Coy Lehman of the Ohio State Highway Patrol. Sergeant Lehman testified
that in the early morning hours of August 24, 2011, he received a call about
a possible impaired driver traveling on Route 33 in Athens County. After
Athens App. No. 16CA3 3
locating the car and observing it swerve multiple times, Sergeant Lehman
initiated a traffic stop. He testified that he asked Appellant, who was the
driver, for his license and registration. Appellant admitted that he did not
have a valid driver’s license but provided Sergeant Lehman with a Florida
identification card and a copy of the car’s rental agreement. The agreement
listed Tamara Cremeans, the mother of Appellant’s child, as the authorized
driver and showed an estimated return date of August 8, 2011.
{¶4} Sergeant Lehman testified that Appellant stated he and his
girlfriend were traveling from Florida to Columbus, and as Appellant was
speaking, Sergeant Lehman noticed that his “speech was very slurred, * * *
his pupils were pinpoint, which [was] odd because it was dark and they
should be dilated. His eyes were red. His actions were lethargic and slow.
His facial features were droopy.” Sergeant Lehman testified that because he
did not smell alcohol on Appellant, he suspected Appellant was under the
influence of drugs.
{¶5} Sergeant Lehman testified he noticed that Appellant’s girlfriend
also seemed impaired. While talking with her, Sergeant Lehman observed a
prescription pill bottle lying near the gas pedal. The label on the bottle
indicated that the pills were “Oxycodone” and that the prescription was
filled for Appellant on August 22, 2011, just two days prior to the traffic
Athens App. No. 16CA3 4
stop. Sergeant Lehman testified that of the 180 pills that the prescription
label indicated were originally in the bottle, “significantly less than 180
pills” remained. Sergeant Lehman testified that he then administered field
sobriety tests to Appellant and that despite the fact the test results did not
confirm his suspicions, he nevertheless placed Appellant under arrest for
driving while under the influence of alcohol or drugs. Subsequent urine
testing confirmed the presence of cocaine and marijuana metabolites in
Appellant’s system.
{¶6} During the search of Appellant’s person, Sergeant Lehman found
a “wad of cash” totaling $1,935.00 dollars. Sergeant Lehman testified that
based on the number of missing pills and the large amount of cash, he
suspected Appellant was transporting drugs. He further testified that after
additional officers arrived on the scene, a search of the car yielded two more
prescription pill bottles in Appellant’s name and two cell phones. The
record reveals that Appellant stated, on a recording of the traffic stop
admitted a trial, that both of the cell phones in the car were his.
{¶7} The record reveals that of the 180 tablets that the label indicated
were originally in the first bottle, which was found near the gas pedal in
plain view, there were only 70 tablets remaining. The label on a second
prescription pill bottle, which was found in the driver’s door storage
Athens App. No. 16CA3 5
compartment, indicated that the pills were “Alprazolam” and that the
prescription was filled for Appellant on August 22, 2011, as well. The label
on that bottle indicated there were 84 pills, but of the 84 pills that the label
indicated were originally in the bottle, there were only 37 whole and 14
broken pieces remaining. A third bottle containing oxycodone was found in
the center console of the vehicle. The label on that bottle, also dated August
22, 2011, indicated there were 140 pills, but there were only 11 pills
remaining.1 It was later determined that the bottles did in fact contain
oxycodone, a schedule II controlled substance, and alprazolam, a schedule
IV controlled substance. Thus, out of 320 oxycodone pills prescribed to
Appellant just two days prior, 239 pills were missing at the time Appellant
was stopped.
{¶8} The State also presented testimony from Detective Chuck
Haegele, employed by the Athens City Police Department and assigned to
the Athens Major Crimes Unit. Detective Haegele, though not involved with
Appellant’s stop or arrest, testified generally with respect to his specific
training and experience in drug interdiction. The trial court allowed the
detective’s testimony, over the objection of Appellant, “just for
background[,]” in response to the State’s asserted purpose of educating the
1
Officers also found another prescription pill bottle in Appellant’s girlfriend’s name, which was empty, as
well as a bottle of “Ultra Scent.”
Athens App. No. 16CA3 6
jury. Detective Haegele testified that he typically looks for certain drug
interdiction factors or common indicators, including rental vehicles, not
carrying identification, coming from other states, including Michigan,
Florida and Washington, D.C., and carrying prescription pills, the most
common being oxycontin or oxycodone.
{¶9} The jury ultimately found Appellant guilty of aggravated
trafficking in drugs. However, it found that the State had not proved that the
cash found on Appellant was derived through the commission of the offense.
Appellant was subsequently sentenced to an eighteen-month prison term, an
eighteen-month suspension of his operator’s license, and fines totaling
$6,935.00. Appellant now brings his timely appeal, assigning the following
errors for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT VIOLATED CITO HILL’S RIGHTS TO DUE
PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF
SUFFICIENT EVIDENCE, IT ENTERED A JUDGMENT OF
CONVICTION FOR AGGRAVATED TRAFFICKING OF DRUGS.
II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
PERMITTED THE STATE TO INTRODUCE EVIDENCE OF
OTHER BAD ACTS, AND THUS DENIED CITO HILL HIS
RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
III. CITO HILL RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL BECAUSE HIS ATTORNEY FAILED TO OBJECT TO
PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT,
IN VIOLATION OF MR. HILL’S RIGHTS UNDER THE FIFTH,
Athens App. No. 16CA3 7
SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION.
IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
ADMITTED LABELS AFFIXED TO PRESCRIPTION BOTTLES,
AND THE LABELS WERE BOTH HEARSAY AND NOT
AUTHENTICATED.”
ASSIGNMENT OF ERROR II
{¶10} For ease of analysis, we address Appellant’s assignments of
error out of order. In his second assignment of error, Appellant contends
that the trial court abused its discretion when it permitted the State to
introduce evidence of other bad acts, thus denying him his right to due
process and a fair trial. Appellant’s argument under this assignment of error
is twofold. First, Appellant argues the trial court erred by allowing the jury
to consider urinalysis results showing that he had ingested illicit drugs.
Second, Appellant argues the trial court erred in allowing evidence of “drug
interdiction” factors. Appellant argues the admission of this evidence
violated Evid.R. 404(B). The trial court denied Appellant’s motion in limine
requesting this evidence and testimony be excluded. The State argues, with
respect to the admission of the urine test results, that because defense
counsel failed to object to the admission of testimony by expert witness,
Emily McAnulty, this issue was not properly preserved for purposes of
appeal.
Athens App. No. 16CA3 8
{¶11} Generally, appellate courts do not directly review in limine
rulings. State v. Hapney, 4th Dist. Washington No. 01CA30–31, 2002–
Ohio–3250, ¶ 55; citing State v. White, 4th Dist. Gallia No. 95CA08, 1996
WL 614190. Such rulings are tentative and interlocutory and made by a
court only in anticipation of its actual ruling on evidentiary issues at trial.
See McCabe/Marra Co. v. Dover, 100 Ohio App. 3d 139, 160, 652 N.E.2d
236, 250 (8th Dist.1995); Collins v. Storer Communications, Inc., 65 Ohio
App.3d 443, 446, 584 N.E.2d 766 (1989). Thus, the grant or denial of a
motion in limine does not preserve any error for review. See State v. Hill, 75
Ohio St. 3d 195, 202–203, 661 N.E.2d 1068 (1996). Rather, in order to
preserve the error, the evidence must be presented at trial, and a proper
objection lodged. See State v. Brown, 38 Ohio St. 3d 305, 528 N.E.2d 523,
paragraph three of the syllabus (1988); State v. Grubb, 28 Ohio St. 3d 199,
503 N.E.2d 142, paragraph two of the syllabus (1986). An appellate court
will then review the correctness of the trial court's ruling on the objection
rather than the ruling on the motion in limine. See White, supra; Wray v.
Herrell, 4th Dist. Lawrence No. 93CA08, 1994 WL 64293.
{¶12} “A trial court has broad discretion in the admission or exclusion
of evidence, and so long as such discretion is exercised in line with the rules
of procedure and evidence, its judgment will not be reversed absent a clear
Athens App. No. 16CA3 9
showing of an abuse of discretion with attendant material prejudice to
defendant.” State v. Green, 184 Ohio App. 3d 406, 2009–Ohio–5199, 921
N.E.2d 276, ¶ 14 (4th Dist.); citing State v. Powell, 177 Ohio App. 3d 825,
2008–Ohio–4171, 896 N.E.2d 212, ¶ 33 (4th Dist). “ ‘Although the abuse of
discretion standard usually affords maximum [deference] to the lower court,
no court retains discretion to adopt an incorrect legal rule or to apply an
appropriate rule in an inappropriate manner. Such a course of conduct
would result in an abuse of discretion.’ ” See 2–J Supply, Inc. v. Garrett &
Parker, L.L.C., 4th Dist. Highland No. 13CA29, 2015-Ohio-2757, ¶ 9;
quoting Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 2013-
Ohio-5610, 5 N.E.3d 694, ¶ 16. When applying the abuse-of-discretion
standard of review, appellate courts must not substitute their judgment for
that of the trial courts. See In re Jane Doe 1, 57 Ohio St. 3d 135, 138, 566
N.E.2d 1181 (1991). Furthermore, an appellate court must presume that the
findings of the trial court are correct because the finder of fact is best able to
observe the witnesses and to use those observations to weigh witness
credibility. Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 81, 461
N.E.2d 1273 (1984); see also Mahlerwein v. Mahlerwein, 160 Ohio App. 3d
564, 2005-Ohio-1835, 828 N.E.2d 153, ¶ 19 (4th Dist.).
Athens App. No. 16CA3 10
{¶13} Appellant argues that the evidence related to urine testing and
drug interdiction factors should have been excluded under Evid.R. 404(B),
which provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith.” However, Evid.R. 404(B) also contains exceptions,
stating that evidence may be admissible “for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.”
{¶14} A review of the record reveals that the State sought to introduce
evidence, at the end of day one of the trial, regarding Appellant’s
impairment on the night of the traffic stop, in part with testimony and
evidence related to the field sobriety tests that were conducted. Appellant
objected, arguing such testimony constituted impermissible other acts
evidence. The trial court decided to adjourn the trial for the day so that
further discussion could be had outside the presence of the jury, but agreed
that the evidence might constitute inadmissible other acts evidence. The
trial resumed the next day with the State having filed a formal motion
requesting the trial court to reconsider its prior ruling on the OVI evidence.
The reason advanced by the State regarding the need for the evidence related
Athens App. No. 16CA3 11
to defense counsel’s claim during both voir dire and opening statements that
Appellant was stopped for nothing other than “driving while black.”
{¶15} Appellant objected to the motion to reconsider, arguing that
because he was not formally charged with Operating a Vehicle While
Intoxicated (OVI), such evidence was irrelevant and also consisted of other
bad acts evidence. After an extended bench conference at the beginning of
day two of the trial, the trial court agreed and ruled that evidence related to
Appellant’s impairment, beyond his driving and the video and of the initial
stop, were not relevant, would not be admitted, and thus the court denied the
motion to reconsider.
{¶16} However, on day three of the trial, the State sought to introduce
the urine test results from the urinalysis performed on Appellant the night of
the stop, arguing that the results were admissible because Sergeant Lehman
had stated one of the factors he considers in drug trafficking investigations is
whether or not an individual is a drug user as well. The trial court held off
ruling on the issue until later in the afternoon, and when it did it decided as
follows:
“As a preliminary matter as to the issues raised by the State, by
the State at the last break the Court will allow the testimony of
the State’s witness tomorrow morning. Defense counsel can
lodge any objections to her testimony at the appropriate time.
But the court will allow the testimony.”
Athens App. No. 16CA3 12
{¶17} The next morning, on day four of the trial, Appellant filed a
written motion in limine, arguing that the urine test results were
inadmissible. Appellant further asked the trial court to exclude “evidence
related to drug trafficking indicators,” including the urine test results.
Appellant argued in his motion that the State’s introduction of urine test
results showing drug use, as well as testimony describing “drug trafficking
indicators” such as “travelling between certain State’s [sic], using rental
cars, [and] using drugs * * *” is just another way of saying “that drug
traffickers have certain character traits[,]” and that Evid.R. 404(B)
specifically prohibits the use of other crimes, wrongs or acts to establish
character or action in conformity therewith. Appellant argued that all of the
drug trafficking indicators constituted other acts, wrongs or potential crimes,
which the State was using to attempt to establish that he was a drug
trafficker. The trial court denied the motion in limine, stating as follows:
“As an initial matter counsel for the defense has submitted a
written Motion in Limine excluding evidence related to the
indicators as was testified to yesterday. And as the Court has
already ruled on that, having denied that motion, I don’t believe
we need to re-address that. But it is good to have that down in
written form for the Court of Appeals to review.”
Thereafter, the State presented witness Emily McAnulty, who is employed
by the Ohio State Highway Patrol, and who was stipulated to as an expert by
defense counsel. Ms. McAnulty testified that testing of Appellant’s urine
Athens App. No. 16CA3 13
revealed the presence of marijuana metabolites and cocaine metabolites.
She confirmed on cross examination that Appellant’s urine was not tested
for the presence of opiates. Appellant did not object to McAnulty’s
testimony, but did object to the admission of the urinalysis report.
{¶18} With respect to Appellant’s argument that the trial court erred
in allowing the jury to consider urinalysis results showing that he had
ingested illicit drugs, we note that we do not actually review the trial court’s
ruling on the motion on the limine, but rather we review the trial court’s
ultimate ruling based upon a later objection to the admission of the evidence.
Based upon the foregoing, it is clear that Appellant, despite filing a motion
in limine seeking the exclusion of testimony by McAnulty and the urinalysis
report itself, did not object to McAnulty’s testimony. As such, we agree
with the State’s argument that this issue was not properly preserved for
review. Despite the fact that Appellant did object to the later admission of
the actual urinalysis report, McAnulty’s testimony regarding the results of
the urinalysis was already admitted into evidence.
{¶19} Further, assuming arguendo the issue was preserved by the
objection to the admission of the urine test results themselves, we reject
Appellant’s assertion that the urine tests results were not relevant or
admissible in the context of a charge of drug trafficking. The record reveals
Athens App. No. 16CA3 14
that Sergeant Lehman testified that an accused’s drug use is a factor
considered when investigating drug trafficking. Additionally, in State v.
Dixon, 2016-Ohio-1491, 63 N.E.3d 591, ¶ 39 (overruled on other grounds by
State v. Mozingo, 2016-Ohio-8292, 73 N.E.3d 661, Dixon argued that his
trial counsel was ineffective for failing to object to the admission of
testimony pertaining to his prior drug use, including his statement that he
smokes crack. Dixon argued that his statement should have been excluded
under Evid.R. 404(B) as evidence of other crimes, wrongs or acts, which are
not admissible to prove the character of a person or to show action in
conformity therewith. Id. The State argued that the testimony was not
improper character testimony, but instead was admissible as a statement
against interest, and also was evidence of motive, which is admissible under
other acts. Id. This Court ultimately found that Dixon’s statement regarding
his personal drug use “was admissible for purposes of showing knowledge
of the existence of the drugs at issue, as well as motive for his involvement
in the transportation of drugs.” Id. at ¶ 41. Thus, we found Dixon’s personal
drug use to be both relevant and admissible as an exception to Evid.R.
404(B), as it demonstrated Dixon’s motive and knowledge in the context of
drug trafficking. The same reasoning applies to the facts presently before us
and leads us to conclude that the trial court did not err or abuse its discretion
Athens App. No. 16CA3 15
in admitting the testimony of Emily McAnulty as well as the urinalysis
report. As such, we reject this portion of Appellant’s second assignment of
error.
{¶20} Next, with respect to Appellant’s argument that the trial court
erred in allowing evidence of “drug interdiction” factors, we note that
Appellant cites no authority whatsoever in support of his argument. Further,
this Court has been unable to locate any authority which indicates that
testimony regarding “drug interdiction” factors or common indicators of
drug trafficking, constitute impermissible other acts evidence. In fact, courts
in Ohio, including this Court, routinely review and consider testimony
regarding such factors given by law enforcement officers, based upon their
training and experience in drug interdiction. See State v. Dixon, supra, at ¶
18 (significance of admission of drug use better understood when considered
in light of trooper testimony that based on his experience working drug
interdiction, drugs travel south and money travels north); State v. Alexander-
Lindsey, 2016-Ohio-3033, 65 N.E.3d 129, ¶ 26-27 (noting drug interdiction
factors including the fact that the accused was travelling on a major drug
route and noting it has been held that “ ‘[t]he reputation of an area for
criminal activity is an articulable fact upon which a police officer may
legitimately rely * * *.’ ”) (internal citations omitted); State v. Fain, 5th
Athens App. No. 16CA3 16
Dist. Delaware No. 06CAA120094, 2007-Ohio-4854, ¶ 13, 38 (noting that
one common indicator of drug trafficking is the use of multiple cell phones
and that “drug traffickers frequently do not utilize their own vehicles.”).
{¶21} Here, Sergeant Lehman was permitted to define and describe
drug interdiction to educate the jury. He was permitted to testify regarding
common indicators of drug trafficking based upon his training and
experience in drug interdiction. Likewise, Detective Chuck Haegele with
the Athens City Police Department was permitted to testify regarding his
training in drug interdiction and common indicators seen in drug trafficking
cases. Appellant acknowledged in his motion in limine that drug
interdiction factors are admissible to establish the basis for stops and
seizures when evaluating Fourth Amendment issues, noting that the rules of
evidence do not apply at suppression hearings. Thus, Appellant seems to
argue that although such factors are relevant and admissible to justify an
initial stop or search, they are not relevant or admissible in determining guilt
at trial. We disagree.
{¶22} Again, Appellant cites no authority which suggests that these
factors, in a totality of the circumstances analysis, cannot constitute
circumstantial evidence to be considered by a jury in determining guilt. As
such, we find no error or abuse of discretion in the trial court’s allowance of
Athens App. No. 16CA3 17
this testimony herein. Accordingly, having found no merit in either of the
arguments raised under this assignment of error, Appellant’s second
assignment of error is overruled.
ASSIGNMENT OF ERROR IV
{¶23} In his fourth assignment of error, Appellant contends that the
trial court abused its discretion when it admitted labels affixed to
prescription bottles, arguing the labels were both hearsay and not
authenticated. Appellant contends, with respect to his authenticity
argument, that the authentication requirement demands that there be
“evidence sufficient to support a finding that the matter in question is what
its proponent claims[,]" citing Evid.R. 901(A) in support. Appellant argues
this requirement could not be satisfied because the State could not decide
throughout trial whether the prescription labels were authentic or not,
offering some witnesses who opined the prescriptions were filled at a
pharmacy, but then arguing during closing arguments that the labels may
have been printed by Appellant himself. Appellant further argues that the
labels constituted hearsay, were offered for the truth of the matter asserted
(the number of pills in each bottle), and not subject to a hearsay exception.
Based upon the following, we reject Appellant’s arguments.
Athens App. No. 16CA3 18
{¶24} “ ‘The admission or exclusion of relevant evidence rests within
the sound discretion of the trial court.’ ” State v. Jones, 135 Ohio St. 3d 10,
2012-Ohio-5677, 984 N.E.2d 948, ¶ 185; quoting State v. Sage, 31 Ohio
St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. We will
not reverse the trial court's decision absent an abuse of discretion, which
implies an unreasonable, unconscionable, or arbitrary attitude. State v.
Inman, 4th Dist. Ross No. 13CA3374, 2014-Ohio-786, ¶ 20. Hearsay is
defined as, “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Evid.R. 801(C). “To constitute hearsay, two elements are
needed. First, there must be an out-of-court statement. Second, the
statement must be offered to prove the truth of the matter asserted. If either
element is not present, the statement is not ‘hearsay.’ ” State v. Maurer, 15
Ohio St. 3d 239, 262, 473 N.E.2d 768 (1984). Further, "[h]earsay is
generally not admissible unless it falls within one of the recognized
exceptions." State v. Agosta, 5th Dist. Fairfield No. 11-CA-53, 2012-Ohio-
3225, ¶ 33; citing Evid.R. 802; State v. Steffen, 31 Ohio St. 3d 111, 119, 509
N.E.2d 383 (1987).
{¶25} In State v. Agosta, the court was confronted with an argument
the trial court erred in admitting hearsay statements, which consisted of
Athens App. No. 16CA3 19
testimony by an officer as to the written warnings on canisters found in a the
defendant's vehicle. Id. at ¶ 31. In analyzing the question before it, the
Agosta court looked to its previous decision in State v. Taylor, 5th Dist.
Ashland No. 05COA062, 05COA063, 2006-Ohio-6559, in which the
appellant therein argued that the warning label on a prescription bottle
constituted inadmissible hearsay that should not have been admitted as
evidence. The Agosta court noted that in Taylor, it had previously stated as
follows in holding that the references to the warning label did not constitute
hearsay:
" 'The prescription bottle was marked as evidence and received
as Exhibit 8. T. at 191. During oral argument, appellant's
counsel attempted to move for an App.R. 9(E) correction of the
record. Counsel argued an objection was made to the
prescription bottle's admission, but it was omitted from the
record. Although defense counsel objected at each mention of
the warning label, there is no specific assignment of error on the
prescription bottle's admission into evidence; therefore, we find
the App.R. 9(E) request to be irrelevant.' " Agosta at ¶36;
quoting Taylor at ¶ 12.
Agosta further noted the following reasoning in Taylor:
" 'The prescription bottle was seized during appellant's arrest
and qualified as relevant and admissible evidence under Evid.R.
401. Appellant admitted to taking Vicodin and it was in his
possession during his arrest. T. at 76. We therefore conclude
the references to the warning label did not constitute hearsay
and were relevant.' " Agosta at ¶ 37; quoting Taylor at ¶ 13.
Athens App. No. 16CA3 20
Much as in Taylor, Agosta had not assigned as error the admission of the
actual canisters. As such, and based upon the reasoning of Taylor, the court
held the canisters that were seized during the arrest were admissible
evidence under Evid.R. 401 and that testimony referencing the warning label
on the canister did not constitute hearsay. The same reasoning applies here
as Appellant has only assigned error related to the labels, and not admission
of the prescription bottles themselves, which were found in the vehicle being
driven by Appellant on the night of his arrest. Thus, we conclude that the
prescription bottles and affixed labels are relevant, admissible and, we
believe, also authenticated, by the fact they were found in Appellant's
possession when he was arrested.
{¶26} We further conclude that assuming arguendo the labels
constitute hearsay, they are admissible under the business records exception
to the hearsay rule. See State v. Mitchell, 18 Ohio App. 2d 1, 9, 246 N.E.2d
586 (10th Dist.1969) (holding that "[t]he labels in question are not hearsay,
but if they are so regarded, they are an exception to the hearsay rule, as
provided by the uniform-business-records statute, but, still further, they are
real evidence, which could well have been used as an exhibit, and admitted
as evidence, supported by circumstantial probability of trustworthiness.")
Athens App. No. 16CA3 21
{¶27} Based upon the foregoing case law and reasoning, we conclude
that the prescription labels at issue did not constitute hearsay, but instead
were real evidence seized during Appellant's arrest that were properly
admitted as exhibits during trial. We further note that much like Agosta and
Taylor, Appellant's arguments involve the admission of the labels, not the
bottles themselves, which were properly admitted as exhibits. Further, even
if the labels could be considered hearsay, we conclude they fall under the
business records exception to the hearsay rule. See State v. Mitchell, supra.
Accordingly, Appellant's fourth assignment of error is overruled.
ASSIGNMENT OF ERROR I
{¶28} In his first assignment of error, Appellant contends his rights to
due process and a fair trial were violated when, in the absence of sufficient
evidence, the trial court entered a judgment of conviction for aggravated
trafficking of drugs. The State contends Appellant's conviction is supported
by sufficient evidence. We begin by considering the appropriate standard of
review when confronted with a sufficiency of the evidence argument.
{¶29} A claim of insufficient evidence invokes a due process concern
and raises the question whether the evidence is legally sufficient to support
the verdict as a matter of law. State v. Thompkins, 78 Ohio St. 3d 380, 386,
678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence, an
Athens App. No. 16CA3 22
appellate court's 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. Thompkins, 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 (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 at
390.
{¶30} 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 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).
Athens App. No. 16CA3 23
Here, after our review of the record we believe that the State presented
sufficient evidence to support Appellant's drug trafficking conviction.
{¶31} R.C. 2925.03(A)(2) sets forth the offense of drug trafficking as
charged in the indictment and states: “No person shall knowingly do any of
the following: * * * [p]repare 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.” Drug trafficking offenses involve
an element of knowledge. “A person acts knowingly, regardless of his
purpose, when he is aware that his conduct will probably cause a certain
result or will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances probably exist.”
R.C. 2901.22(B).
{¶32} “ ‘[D]irect evidence of a fact is not required. Circumstantial
evidence * * * may also be more certain, satisfying, and persuasive than
direct evidence.’ ” State v. Grube, 987 N.E.2d 287, 2013–Ohio–692, ¶ 30;
quoting State v. Lott, 51 Ohio St. 3d 160, 555 N.E.2d 293 (1990); citing
Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S. Ct. 6 (1960);
citing Rogers v. Missouri Pacific RR Co, 352 U.S. 500, 508, 77 S. Ct. 443,
Athens App. No. 16CA3 24
fn.17 (1957). “ ‘Even murder convictions and death sentences can rest
solely on circumstantial evidence.’ ” Grube, supra; citing State v.
Apanovitch, 33 Ohio St. 3d 19, 514 N.E.2d 394 (1987); State v. Nicely, 39
Ohio St. 3d 147, 151, 529 N.E.2d 1236, 1239 (1988); State v. Adkins, 4th
Dist. Scioto No. 14CA3674, 2016–Ohio–7250, ¶ 15. Further, as we
reasoned in State v. Woodruff, 4th Dist. Ross No. 07CA2972, 2008–Ohio–
967, ¶ 9, “[a]bsent an admission by a defendant, the state must rely on
circumstantial evidence to satisfy the reasonable cause to believe element.”
{¶33} Here, Appellant's argument that the State failed to prove
beyond a reasonable doubt that he knew or had reasonable cause to believe
that the oxycodone in his possession was intended for sale or resale fails due
to the circumstantial evidence presented by the State at trial. Specifically,
based upon the record before us, we believe it was reasonable for the jury to
conclude, based upon the reasonable inferences it was permitted to make,
that Appellant was trafficking in oxycodone. For instance, the jury was
presented with evidence that Appellant was driving a rented car that was not
rented in his name, and which had an estimated return date of more than two
weeks prior. The jury was also presented with evidence that in the thirty
days the car had been rented, it had been driven nearly 10,000 miles. The
Athens App. No. 16CA3 25
jury was informed that Appellant did not have a valid driver's license, but
that he produced an identification card from the State of Florida.
{¶34} Further, evidence was also presented to the jury indicating three
prescription pill bottles were found in the vehicle Appellant was driving, all
in Appellant's name and filled just two days prior from a pharmacy in
Florida. The jury heard testimony from Sergeant Lehman that of 320
oxycodone pills collectively prescribed to Appellant according to the
prescription labels, only 81 pills remained after just being filled just two
days prior. Thus, 239 oxycodone pills were missing. Additionally, with
regard to the third prescription, which was for Alprazolam, the jury heard
testimony that of the 84 pills prescribed just two days prior, only 37 whole
pills and 14 broken pills remained. The jury was presented with evidence
that in addition to the number of pills missing from the prescription bottles
found, law enforcement also found two cells phones in the vehicle and a
large sum of cash on Appellant's person.
{¶35} Moreover, the jury listened to testimony by Sergeant Lehman
that in his experience as a law enforcement officer and his work involving
drug interdiction, it is common to see drugs coming into the State of Ohio
from Florida, especially in vehicles rented in another person's name.
Sergeant Lehman also testified regarding certain other drug interdiction
Athens App. No. 16CA3 26
factors that indicate drug trafficking, including having multiple cell phones
and carrying large quantities of cash. He also testified that having broken
pills is a drug interdiction factor indicative of drug trafficking.
{¶36} We find, based on the evidence it had before it, that the jury
could have reasonably inferred that Appellant was engaging in drug
trafficking. Based upon the above evidence, the jury could reasonably infer
that the reason Appellant only had 81 oxycodone pills remaining from a total
of 320 prescribed just two days prior, was because he was trafficking in
drugs. See Westlake v. Wilson, 8th Dist. Cuyahoga No. 96948, 2012-Ohio-
2192, ¶ 38; citing State v. Byers, 8th Dist. Cuyahoga No. 94922, 2011-Ohio-
342, ¶ 9 ("Although this court has recognized that having a cell phone is
ubiquitous and therefore possession of one cell phone is not ipso facto proof
that it was used in drug trafficking, the same cannot be said about having
two cell phones."); State v. Young, 8th Dist. Cuyahoga No. 92744, 2010-
Ohio-3402, ¶ 19 ("We have held in several cases that police officers may
testify to the nature and amount of drugs and its significance in drug
trafficking."); State v. Nelson, 8th Dist. Cuyahoga No. 100439, 2014-Ohio-
2189, ¶ 20 (using a rental car is significant indicia of drug trafficking
because traffickers know that their own personal vehicles will be seized and
the rental cars are more difficult to identify during police surveillance); State
Athens App. No. 16CA3 27
v. Young, 8th Dist. Cuyahoga No. 92744, 2010-Ohio-3402, ¶¶ 15-19 (the
fact that no drug paraphernalia was found on appellant as well as the
quantity of crack recovered undercut argument the drugs were for personal
use).
{¶37} Here, evidence before the jury consisted of a finding of a large
quantity of missing drugs, multiple cell phones, a large quantity of cash, and
a rental car not in the driver's name that was overdue for return with a very
large number of miles on it, being driven from Florida to Ohio. Although
the amount of drugs recovered are not necessarily indicative of drug
trafficking, it is the amount of drugs missing from the prescription bottles
which gives rise to a reasonable inference that the drugs were being
trafficked, especially in light of the fact that the labels indicate the
prescriptions were filled just two days prior. Common sense dictates that
even if Appellant was using the drugs, he could not have possibly used the
number of pills that were unaccounted for in a two day time span and still be
living. Further, even though no charges were made with respect to the
prescription for Alprazolam, the fact that several of those pills were also
missing, along with the presence of several broken pills, is pertinent to a
totality of the circumstances analysis. We conclude, based upon the
Athens App. No. 16CA3 28
evidence before it and the totality of the circumstances, the inferences made
and conclusions reached by the jury are supported by the record.
{¶38} Consequently, we find that the State presented sufficient
evidence that, if believed, established that Appellant trafficked in oxycodone
by transporting a controlled substance when he knew or had reasonable
cause to believe that the controlled substance was intended for sale or resale
by the offender or another person. Accordingly, Appellant’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR III
{¶39} In his third assignment of error, Appellant contends that he
received ineffective assistance of counsel because his attorney failed to
object to prosecutorial misconduct in closing argument, thus denying him his
constitutional rights under the Fifth, Sixth and Fourteenth Amendments. We
initially note that failure to object to an alleged error waives all but plain
error. State v. Keeley, 4th Dist. Washington No. 11CA5, 2012–Ohio–3564,
¶ 28. Notice of Crim.R. 52(B) plain error must be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice. State v. Rohrbaugh, 126 Ohio St. 3d 421, 2010–Ohio–
3286, 934 N.E.2d 920, ¶ 6; State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804
(1978), paragraph three of the syllabus. To find plain error, the outcome of
Athens App. No. 16CA3 29
trial must clearly have been otherwise. State v. McCausland, 124 Ohio St. 3d
8, 2009–Ohio–5933, 918 N.E.2d 507, ¶ 15; State v. Braden, 98 Ohio St. 3d
354, 2003–Ohio–1325, 785 N.E.2d 439, ¶ 50.
{¶40} “The test for prosecutorial misconduct is whether the conduct
was improper and, if so, whether the rights of the accused were materially
prejudiced.” State v. Purdin, 4th Dist. Adams No. 12CA944, 2013–Ohio–22,
¶ 31; quoting State v. Leonard, 4th Dist. Athens No. 08CA24, 2009–Ohio–
6191, ¶ 36; citing State v. Smith, 97 Ohio St. 3d 367, 2002–Ohio–6659, 780
N.E.2d 221, ¶ 45, in turn citing State v. Smith, 14 Ohio St. 3d 13, 14, 470
N.E.2d 883 (1984). “The ‘conduct of a prosecuting attorney during trial
cannot be grounds for error unless the conduct deprives the defendant of a
fair trial.’ ” Purdin at ¶ 31; quoting State v. Givens, 4th Dist. Washington
No. 07CA19, 2008–Ohio–1202, ¶ 28; quoting State v. Gest, 108 Ohio
App.3d 248, 257, 670 N.E.2d 536 (8th Dist.1995). Accord State v.
Apanovitch, 33 Ohio St. 3d 19, 24, 514 N.E.2d 394 (1987). “Prosecutorial
misconduct constitutes reversible error only in rare instances.” Purdin,
supra; quoting State v. Edgington, 4th Dist. Ross No. 05CA2866, 2006–
Ohio–3712, ¶ 18; citing State v. Keenan, 66 Ohio St. 3d 402, 406, 613
N.E.2d 203 (1993). The “touchstone analysis * * * is the fairness of the
trial, not the culpability of the prosecutor. * * * The Constitution does not
Athens App. No. 16CA3 30
guarantee an ‘error free, perfect trial.’ ” Purdin at ¶ 31; quoting Leonard at ¶
36; quoting Gest at 257.
{¶41} Criminal defendants have a right to counsel, including a right to
the effective assistance from counsel. McMann v. Richardson, 397 U.S. 759,
770, 90 S. Ct. 1441 (1970); State v. Stout, 4th Dist. Gallia No. 07CA5, 2008–
Ohio–1366, ¶ 21. To establish constitutionally ineffective assistance of
counsel, a defendant must show (1) that his counsel's performance was
deficient and (2) that the deficient performance prejudiced the defense and
deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052 (1984); State v. Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d 904
(2001); State v. Goff, 82 Ohio St. 3d 123, 139, 694 N.E.2d 916 (1998). “In
order to show deficient performance, the defendant must prove that counsel's
performance fell below an objective level of reasonable representation. To
show prejudice, the defendant must show a reasonable probability that, but
for counsel's error, the result of the proceeding would have been different.”
State v. Conway, 109 Ohio St. 3d 412, 2006–Ohio–2815, 848 N.E.2d 810, ¶
95 (citations omitted). “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, 2000–Ohio–448, 721 N.E.2d 52,
Athens App. No. 16CA3 31
(stating that a defendant's failure to satisfy one of the elements “negates a
court's need to consider the other”).
{¶42} 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 at 689. Thus, “the defendant must
overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. “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 he or she failed to
function as the counsel guaranteed by the Sixth Amendment. State v.
Gondor, 112 Ohio St. 3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 62; State
v. Hamblin, 37 Ohio St. 3d 153, 524 N.E.2d 476 (1988).
{¶43} To establish prejudice, a defendant must demonstrate that a
reasonable probability exists that but for counsel's errors, the result of the
trial would have been different. State v. White, 82 Ohio St. 3d 16, 23, 693
N.E.2d 772 (1998); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373
Athens App. No. 16CA3 32
(1989), paragraph three of the syllabus. Furthermore, courts may not simply
assume the existence of prejudice, but must require that prejudice be
affirmatively demonstrated. See State v. Clark, 4th Dist. Pike No. 02CA684,
2003–Ohio–1707, ¶ 22; State v. Tucker, 4th Dist. Ross No. 01CA2592,
2002–Ohio–1597; State v. Kuntz, 4th Dist. Ross No. 1691, 1992 WL 42774.
{¶44} Here, Appellant claims that although trial counsel consistently
objected throughout the trial when the State tried to offer evidence of
Appellant’s possible driving while using illicit drugs, trial counsel did not
object when the State was arguing other acts as substantive evidence of guilt
in closing argument. Trial counsel's failure to object to alleged instances of
prosecutorial misconduct “does not necessarily constitute ineffective
assistance” of counsel. State v. Topping, 4th Dist. Lawrence No. 11CA6,
2012-Ohio-5617, ¶ 80; citing State v. Perez, 124 Ohio St. 3d 122, 2009–
Ohio–6179, 920 N.E.2d 104, ¶ 230; State v. Tenace, 109 Ohio St. 3d 255,
2006–Ohio–2417, 847 N.E.2d 386, ¶ 62. That is, a failure to object does not
necessarily fall below an objective standard of reasonableness. Topping,
supra. Instead, a failure to object to alleged instances of prosecutorial
misconduct may be considered sound trial strategy. Id; State v. Brown, 5th
Dist. Stark No. 2007CA15, 2008–Ohio–3118, ¶ 58 (stating that failure to
Athens App. No. 16CA3 33
object to prosecutor's statements during closing arguments may have been
trial strategy and thus did not constitute deficient performance).
{¶45} “ ‘A competent trial attorney might well eschew objecting * * *
in order to minimize jury attention to the damaging material.’ ” Topping,
supra; quoting State v. Mundt, 115 Ohio St. 3d 22, 2007-Ohio-4836, 873
N.E.2d 828, ¶ 90; quoting United States v. Payne, 741 F.2d 887, 891 (C.A.7
1984). Accord State v. Franklin, 97 Ohio St. 3d 1, 2002–Ohio–5304, 776
N.E.2d 26, ¶ 42 (stating that “[a] reasonable attorney may decide not to
interrupt his adversary's argument as a matter of strategy”); State v. Clay, 7th
Dist. Mahoning No. 08MA2, 2009–Ohio–1204, ¶ 141 (stating that
“[l]imiting objection during closing is a trial tactic to avoid trying to draw
attention to the statements.”). Thus, in order to establish that trial counsel
performed deficiently by failing to object to error at trial, the defendant
ordinarily must demonstrate that the error “is so compelling that competent
counsel would have been obligated to object to [it] at trial.” Topping, supra;
quoting State v. Hale, 119 Ohio St. 3d 118, 2008–Ohio–3426, 892 N.E.2d
864, ¶ 233.
{¶46} The Supreme Court of Ohio has recognized that if counsel
decides, for strategic reasons, not to pursue every possible trial strategy, the
defendant is not denied effective assistance of counsel. State v. Black, 4th
Athens App. No. 16CA3 34
Dist. Ross No. 12CA3327, 2013–Ohio–2105, ¶ 40; State v. Brown, 38 Ohio
St.3d 305, 319, 528 N.E.2d 523 (1988). “Speculation regarding the
prejudicial effects of counsel's performance will not establish ineffective
assistance of counsel.” Leonard, supra, at ¶ 68; quoting State v. Cromartie,
9th Dist. Medina No. 06CA0107–M, 2008–Ohio–273, ¶ 25. An appellate
court reviewing an ineffective assistance of counsel claim “must refrain
from second-guessing the strategic decisions of trial counsel.” Black, supra;
quoting State v. Carter, 72 Ohio St. 3d 545, 558, 651 N.E.2d 965 (1995).
{¶47} In this case, we have already determined that the trial court did
not err or abuse its discretion in admitting testimony and evidence indicating
Appellant's urine tests results revealed he had taken illicit drugs on the night
of his traffic stop and arrest. Thus, it cannot be said that the prosecutor's
statements were improper or constituted prosecutorial misconduct in light of
this ruling. Nor can it be argued defense counsel was ineffective for failing
to object in light of the trial court's prior ruling. In light of the prior ruling,
defense counsel could have reasonably determined it was a better strategy
not to continue to draw attention to the evidence by continuing to lodge
objections. Further, we are mindful that both the prosecution and the
defense have wide latitude during opening and closing arguments. State v.
Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109, ¶ 33; citing
Athens App. No. 16CA3 35
Sunbury v. Sullivan, 5th Dist. Delaware No. 11CACO30025, 2012-Ohio-
3699, ¶ 30. Even if it was not sound strategy for defense counsel not to
object to the complained of statement, we rely on the instructions given to
the jury, which inform the jury that statements of counsel are not to be
considered as evidence. For instance, the jury was instructed that “[t]he
evidence does not include * * * the opening or closing arguments of
counsel.” Further, the jury was instructed that “[t]he evidence does not
include the indictment or the opening statements or closing arguments of
counsel. The opening statements and closing arguments of counsel are
designed to assist you. They are not evidence.” “ ‘A presumption always
exists that the jury has followed the instructions given to it by the trial
court.’ ” State v. Murphy, 4th Dist. Scioto No. 09CA3311, 2010–Ohio–5031,
¶ 81; quoting Pang v. Minch, 53 Ohio St. 3d 186, 559 N.E.2d 1313 (1990),
paragraph four of the syllabus.
{¶48} As such, based upon a review of the record and considering the
complained of statements within the context of the entire trial, we cannot say
the Appellant would not have been convicted in the absence of the
statements. Further, we have already noted that Appellant's conviction was
based upon sufficient evidence. Based on the trial court's instructions, as
well as the other evidence in the record which sufficiently supports
Athens App. No. 16CA3 36
Appellant's conviction, we cannot say that the prosecutors' statements made
during closing argument, which were not objected to by defense counsel,
changed the outcome of the trial. Nor can we conclude that but for counsel's
errors, the result of the trial would have been different. Accordingly, we
cannot conclude Appellant's trial counsel was ineffective. Thus, we find no
merit to Appellant's third assignment of error and affirm the judgment of the
trial court.
JUDGMENT AFFIRMED.
Athens App. No. 16CA3 37
Hoover, J., dissenting:
{¶ 49} I respectfully dissent from the majority opinion because I
believe that Appellant’s conviction is supported by insufficient evidence.
{¶ 50} Appellant was charged with drug trafficking under R.C.
2925.03(A)(2). This section of the drug trafficking statute requires some
evidence that the offender actually prepares a drug for shipment, or ships
a drug, or transports a drug, or delivers a drug, or prepares for distribution
a drug, or actually distributes 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. (Emphasis
added.) Compare R.C. 2925.03(A)(2) with 2925.03(A)(1) (“No person shall
knowingly * * *[s]ell or offer to sell a controlled substance or a controlled
substance analog.”).
{¶ 51} “An element of an offense may be established by either
circumstantial or direct evidence or both.” State v. Lowe, 86 Ohio App. 3d
749, 753, 621 N.E.2d 1244 (4th Dist.1993). “In general, circumstantial
evidence and direct evidence possess the same probative value.” State v.
Husted, 4th Dist. Ross No. 14CA3447, 2014-Ohio-4978, ¶ 15, citing State v.
Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph one of the
syllabus.
Athens App. No. 16CA3 38
{¶ 52} “Circumstantial evidence has been defined as testimony not
grounded on actual personal knowledge or observation of the facts in
controversy, but of other facts from which inferences are drawn, showing
indirectly the facts sought to be established.” State v. Payne, 11th Dist.
Ashtabula No. 2014–A–0001, 2014–Ohio–4304, ¶ 22, citing State v.
Nicely, 39 Ohio St. 3d 147, 150, 529 N.E.2d 1236 (1988). “ ‘An ‘inference’
is a conclusion which, by means of data founded upon common experience,
natural reason draws from facts which are proven.’ ” State v. Nevius, 147
Ohio St. 263, 274, 71 N.E.2d 258 (1947), quoting Ensel v. Lumber Ins. Co.
of New York, 88 Ohio St. 269, 102 N.E. 955 (1913), paragraph thirteen of
the syllabus.
{¶ 53} “A trier of fact may not draw ‘[a]n inference based * * *
entirely upon another inference, unsupported by any additional fact or
another inference from other facts[.]’ ” State v. Cowans, 87 Ohio St. 3d 68,
78, 717 N.E.2d 298 (1999), quoting Hurt v. Charles J. Rogers Transp. Co.,
164 Ohio St. 329, 130 N.E.2d 820 (1955), paragraph one of the syllabus.
“When an inference, which forms the basis of a conviction, is drawn solely
from another inference and that inference is not supported by any additional
facts or inferences drawn from other established facts, the conviction is
improper.” Armstrong, 2014-Ohio-4304, at ¶ 23, citing State v.
Athens App. No. 16CA3 39
Maynard, 10th Dist. Franklin No. 11AP–697, 2012–Ohio–2946, ¶ 27. “The
rule against inference-stacking essentially forbids the drawing of
an inference from evidence, which is too uncertain or speculative or which
raises merely a possibility or conjecture. While reasonable inferences may
be drawn from the facts and conditions established, they cannot
be drawn from facts or conditions merely assumed.” Armstrong at ¶ 23. See
generally Ray v. Wal-Mart Stores, Inc., 4th Dist. Washington No. 12CA21,
2013-Ohio-2684, ¶ 35 (discussing improper inference stacking).
{¶ 54} The evidence presented at trial was that Appellant possessed
three, prescription-pill bottles containing significantly fewer pills than the
labels suggested they should. All three labels stated that the prescriptions
had been filled for Appellant at pharmacies in Florida roughly 48 hours
before the traffic stop. The first bottle contained only 70 of 180 oxycodone
pills; the second bottle contained only about 37 of 84 alprazolam pills; and
the third bottle contained only 11 of 140 oxycodone pills. Appellant also had
more than one cell phone and nearly two thousand dollars in cash in his
pocket.
{¶ 55} There were also several things about Appellant’s situation that
were consistent with someone trafficking in drugs. For example, Florida is a
known source of oxycodone; and traffickers often transport drugs in rental
Athens App. No. 16CA3 40
cars. Records also confirmed that the car Appellant was driving had been
driven nearly ten thousand miles since being rented on August 1, 2011.
{¶ 56} However, the State presented no evidence at trial from which a
jury could find beyond a reasonable doubt that Appellant transported his
remaining oxycodone pills when he knew or had reasonable cause to believe
that the drug was intended for sale or resale. For example, the State
presented no evidence that the remaining pills were cut for sale, that
Appellant possessed items to package the pills for sale (e.g., plastic baggies)
or that Appellant’s phones contained text messages about future sales.
{¶ 57} Furthermore, the State did not present any evidence at trial that
Appellant sold his missing oxycodone pills. For example, no testimony is in
the record that officers made a controlled buy from Appellant or that
Appellant’s cell phones contained text messages about past sales.
{¶ 58} The jury necessarily must have based an inference upon
another inferential assumption in order to find beyond a reasonable doubt
that Hill knew the oxycodone was intended for sale or resale. Specifically,
the jury had to have inferred that Hill had been selling oxycodone based on
the number of missing pills in the bottles and then inferred that he intended
to sell his remaining oxycodone pills. Because no evidence exists in the
record from which a jury could infer that Appellant sold his missing pills,
Athens App. No. 16CA3 41
this inference “was dependent not upon an established fact, but upon another
inferential assumption” and is therefore improper. (Emphasis sic.)
Armstrong, 2016-Ohio 7841, at ¶ 28.
{¶ 59} “Normally, convictions are based on specific facts that support
or establish the elements of a crime charged. While it is certainly acceptable
to infer certain facts or circumstances from the evidence at hand, inferences
that establish criminal elements based on other inferences not established in
fact thwart how criminal liability should be established in our system of
justice.” State v. Collins, 8th Dist. Cuyahoga No. 95422, 2011-Ohio-4808, ¶
25.
{¶ 60} Accordingly, I would sustain Appellant’s first assignment of
error and reverse the judgment of the trial court.
Athens App. No. 16CA3 42
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Dissents with Dissenting Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, 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.