State v. King

[Cite as State v. King, 2020-Ohio-3065.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-19-013
Appellee Trial Court No. 2018CR0149
v.
Kyren Tavior King DECISION AND JUDGMENT
Appellant Decided: May 22, 2020
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
ZMUDA, P.J.
I. Introduction
{¶ 1} Appellant, Kyren King, appeals the judgment of the Wood County Court of
Common Pleas, sentencing him to five years in prison following his conviction for two
counts of trafficking in drugs and one count of trafficking in marijuana.
A. Facts and Procedural Background
{¶ 2} On June 7, 2018, appellant was indicted on one count of trafficking in
marijuana in violation of R.C. 2925.03(A)(2) and (C)(3)(c), a felony of the first degree,
one count of trafficking in drugs in violation of R.C. 2925.03(A)(2) and (C)(2)(c), a
felony of the fourth degree, one count of possession of marijuana in violation of R.C.
2925.11(A) and (C)(3)(c), a felony of the fifth degree, one count of possession of cocaine
in violation of R.C. 2925.11(A) and (C)(4)(e), a felony of the first degree, one count of
possession of drugs in violation of R.C. 2925.11(A) and (C)(2)(b), a felony of the fourth
degree, and one count of trafficking in cocaine in violation of R.C. 2925.03(A)(2) and
(C)(4)(f). The indictment stemmed from an incident that occurred on March 17, 2018, in
which appellant was found with drugs in his possession during the course of an OVI
checkpoint.
{¶ 3} Appellant entered a plea of not guilty, and the matter proceeded through
pretrial discovery and motion practice. On July 26, 2018, appellant filed a motion to
suppress, arguing that the OVI checkpoint at which he was apprehended was not
conducted lawfully. Specifically, appellant asserted that the “issue is whether the trooper
properly conducted the OVI checkpoint and whether the trooper improperly used
individual discretion in selecting the Defendant’s vehicle, which contained four African
American males, for a search.”
{¶ 4} On September 21, 2018, a hearing on appellant’s motion to suppress was
held. At the hearing, Trooper Codi Williams of the Ohio State Highway Patrol testified.
2.
After reciting his credentials, Williams testified regarding the Highway Patrol’s policy
and procedures regarding OVI checkpoints. According to Williams, the Highway
Patrol’s manual contains a section on OVI checkpoints that articulates the time and
location at which such checkpoints are to be conducted. As to the selection of time and
place, the Highway Patrol considers the statistical history of OVI crashes, and selects
locations within a three-mile radius of high-crash areas. Additionally, Williams testified
that the policy requires three media releases announcing the OVI checkpoint to the public
before the checkpoint is conducted. Williams indicated that the three required media
releases were issued in this case prior to the OVI checkpoint, and said releases were
submitted at the suppression hearing as state’s exhibit No. 4.
{¶ 5} As to the manner in which OVI checkpoints are conducted, Williams
testified: “We check every vehicle that comes through unless the line commander tells us
otherwise, such as if traffic is heavily backing up to the point of where it’s going to be a
safety concern for the people that are driving through – such as getting stuck in an
intersection and whatnot.” Williams confirmed that every OVI checkpoint conducted by
the Highway Patrol follows the foregoing policies and procedures.
{¶ 6} Williams was a participant in the OVI checkpoint that was conducted in this
case on March 17, 2018. With respect to this particular OVI checkpoint, Williams
indicated that the date was selected because it was St. Patrick’s Day, a day which,
according to Williams’ past experience, is commonly associated with drinking and
driving. The checkpoint occurred at a predetermined area near the campus of Bowling
3.
Green State University, at the intersection of South College Avenue and East Wooster
Street. This location was selected based upon prior “fatal injury and property crashes,”
and was described by Williams as the location in Bowling Green with “the majority of
bars.” According to state’s exhibit No. 3, a report from the Ohio State Highway Patrol
Office of Planning & Finance – Statistical Analysis Unit, there were 93 OVI-related
crashes within the three-mile radius surrounding the site of the OVI checkpoint.
{¶ 7} When asked to describe how this particular checkpoint was conducted,
Williams indicated that there were approximately 12 “line checkers” for vehicles
traveling eastbound and westbound on East Wooster Street. If a line checker detected
any criminal activity, including the odor of alcohol or marijuana, during the initial stop,
that vehicle would then be directed to a “divergent area.”
{¶ 8} During its direct examination of Williams, the state introduced a “Sobriety
Checkpoint Checklist” as state’s exhibit No. 2. According to the checklist, all vehicles
were to be stopped and checked by officers, unless a deviation from that rule was
approved by the line commander. The checklist required documentation of the time and
reason for said deviation. According to Williams, the OVI checkpoint in this case was
conducted in a manner consistent with the procedures set forth on the Highway Patrol’s
checklist.
{¶ 9} During the course of the OVI checkpoint, Williams encountered appellant.
At the time, appellant was a rear passenger in a vehicle that drove through the OVI
checkpoint and was stopped. As Williams approached the vehicle, the driver rolled the
4.
window down, and Williams testified that he “smelled an odor of raw marijuana coming
from the passenger compartment of the vehicle.” Williams asked the driver about the
odor, and the driver responded that “he had nothing in the vehicle that he was aware of.”
Due to the odor of marijuana, Williams “asked each of the individuals to get out of the
vehicle and [another officer] got inside the vehicle and drove it to the divergent area for
[Williams] so [the officers] could get out of the roadway.”
{¶ 10} On cross-examination, Williams was asked how the officers conducting the
checkpoint determined which cars to stop, to which he responded: “We stop each vehicle
that comes through unless * * * other reasons such as – a lot of vehicles clogging up the
road to where it’s getting backed up into an intersection or all of the way down the road.
Obviously, it’s just going to be a safety hazard.” Williams went on to reiterate that every
vehicle is stopped unless he is told otherwise by his lieutenant. He explained: “[a]t one
point, I know there [were] a lot of commercial vehicles coming through to where it was
clogging up the road quite a bit. Lieutenant Burgos let us know, “Let’s go ahead and
allow traffic to flow through a little bit so it’s not * * * so backed up and then we can
continue on checking each car.”
{¶ 11} At the conclusion of Williams’ testimony, the state rested. Appellant did
not call any witnesses, so the matter proceeded to closing statements. Following closing
statements, the trial court took the matter under advisement.
{¶ 12} On October 17, 2018, the trial court issued its decision on appellant’s
motion to suppress. In its decision, the trial court found that Williams exercised no
5.
individual discretion in stopping the vehicle in which appellant was a passenger during
the course of the OVI checkpoint. Relying upon Williams’ testimony, the court found
that Williams only stopped the vehicle because it was the next vehicle in line, and that all
vehicles were stopped unless they were allowed to pass through for safety concerns. The
court concluded that the Highway Patrol followed “established policies and procedures
and no part was left to the discretion of the line checkers who were manning the
checkpoint.” As such, the trial court denied appellant’s motion to suppress.
{¶ 13} On December 12, 2018, the matter proceeded to a two-day jury trial.
Following jury selection and opening statements, the state called Kyler Famble as its first
witness. Famble, appellant’s schoolmate and friend, was the driver of the vehicle that
was stopped at the OVI checkpoint on March 17, 2018. According to Famble, he picked
up three friends earlier in the day from Cincinnati; appellant, George Daniels, and Jerel
Horton. Appellant and another friend, George Daniels, were each carrying a bag when
they approached Famble’s vehicle prior to the OVI checkpoint. Daniels had a denim blue
teal backpack, and appellant had a blue Northwest cheerleading book bag bearing the
name of appellant’s girlfriend, Kayleigh. Famble identified state’s exhibit No. 3 as
appellant’s bag. Famble stated that he opened the trunk and appellant and Daniels placed
the bags inside. Famble did not detect any odor emanating from the bags at the time.
Famble acknowledged that he, too, had a black Nike book bag that he used for school.
{¶ 14} After picking up his friends, Famble drove to Toledo to a residence of
another friend, Tyler King. Upon arrival, Famble and Horton removed their luggage
6.
from Famble’s trunk. Sometime later, the group of men left King’s residence to go to the
mall. While at the mall, Famble observed appellant carrying a “bundle of cash with
him.” After completing their shopping, the group returned to King’s residence and
prepared to go out to a “social function” in Bowling Green later that evening.
{¶ 15} After leaving King’s residence, the group drove to Bowling Green, where
they were ultimately stopped at the OVI checkpoint at the intersection of South College
Avenue and East Wooster Street, leading to the discovery of marijuana, cocaine, and
Alprazolam pills in the trunk of Famble’s vehicle. Famble testified that he did not smell
any marijuana coming from appellant’s bag prior to the stop. Famble later testified that
the narcotics discovered in his trunk belonged to appellant, a conclusion he drew from his
observation of police removing the narcotics from appellant’s bag during the OVI
checkpoint.
{¶ 16} On cross-examination, Famble stated that he was certain that he did not
confuse appellant’s bag with Daniel’s bag, despite the fact that they were both blue.
When questioned about the charges that were filed against him following this incident,
Famble indicated that the charges were dismissed because the prosecutor believed
Famble to be innocent of any wrongdoing.
{¶ 17} As its second witness, the state called Horton to the stand. Like Famble,
Horton and appellant have been friends since they attended middle school together.
Horton corroborated Famble’s testimony that he and Famble took their bags into King’s
residence upon arrival. Horton also testified that he was not paying attention to any other
7.
bags, but denied having brought the bag that Famble identified as appellant’s bag, and
further denied bringing any narcotics with him on the trip.
{¶ 18} Following Horton’s testimony, the state called King as its third witness.
King and appellant have known each other since they were in eighth grade. Upon the
group’s arrival to King’s residence, King observed that each man “brought their own
personal belongings.” King was able to confirm that state’s exhibit No. 3 was the bag
that appellant brought with him to King’s residence. According to King, appellant
attempted to bring his bag into the residence, but King directed him to return it to
Famble’s vehicle because he did not like the “strong marijuana smell” that was
emanating from the bag.
{¶ 19} On cross-examination, defense counsel questioned King as to whether he
received a dismissal of charges in exchange for cooperation in the present case. King
replied in the negative, insisting that “I just told the truth. I came in and told the truth of
what happened. That was it. * * * I didn’t make no agreement. I just gave them my
knowledge – told the truth.”
{¶ 20} As its fourth witness, the state called Highway Patrol criminalist, Emily
Bocook, to the stand. As a criminalist, Bocook “analyze[s] evidence for the absence or
presence of controlled substances, write[s] reports on [her] findings, and [testifies] to
those findings.” As it relates to this case, Bocook analyzed the materials police seized
from appellant’s bag and prepared a report, which was admitted into evidence as state’s
exhibit No. 10. Pursuant to her analysis, Bocook determined that the materials seized by
8.
police included 25.949 grams of Alprazolam, a schedule IV substance, an unspecified
weight of Tetrahydrocannabinol (THC), a schedule I substance, an aggregate total of
316.461 grams of marijuana, a schedule I substance, and 33.987 grams of cocaine
hydrochloride, a schedule II substance.
{¶ 21} As its fifth and final witness, the state called trooper Williams to the stand.
Williams explained that he was the officer who stopped Famble’s vehicle at the OVI
checkpoint on March 17, 2018. Williams testified that Famble, Daniels, King, Horton,
and appellant were in the vehicle at the time of the stop. As Famble approached
Williams in his vehicle, he lowered his window “just a tiny bit” and Williams stated that
he smelled an odor of raw marijuana coming from the passenger compartment of the
vehicle. Williams ordered Famble to drive to the divergent area that the officers had
setup for the OVI checkpoint.
{¶ 22} Once Williams secured the vehicle in the divergent area, he asked all of the
passengers to exit the vehicle and searched the vehicle. Upon looking in the trunk of the
vehicle, Williams “located the bag that contained all the contraband.” Williams
confirmed that the bag containing the contraband was the bag that had previously been
marked state’s exhibit No. 3. When Williams looked inside the bag, he found
a large amount of marijuana in a plastic bag. [There were] two different
bags containing Alprazolam pills, one was whole pills, the other was
crushed up fragments that appeared to be the same pill. There was a bag of
9.
cocaine, a tiny piece of paper with white residue inside, a digital scale, and
two marijuana edibles packages – THC edibles.
{¶ 23} Based upon his prior experience as a drug interdiction officer, Williams
was able to identify the presence of marijuana from the odor emanating from the bag.
Williams testified that the large amount of narcotics present inside the bag, coupled with
the digital scale that was recovered, was not indicative of personal use, but instead
suggested narcotics trafficking. Moreover, Williams searched appellant after finding the
narcotics in his bag, and discovered a “thick wad of cash in his pocket” comprised of bills
of different amounts, which Williams testified was typically associated with drug
trafficking in his experience.
{¶ 24} At the conclusion of Williams’ testimony, the state rested. Appellant then
moved for acquittal under Crim.R. 29, arguing only that the evidence that was presented
should have been suppressed as requested in his previously-denied motion to suppress
and, absent such evidence, the state introduced insufficient evidence to support the
charges contained in the indictment. Upon consideration, the trial court denied
appellant’s Crim.R. 29 motion, finding that the state’s evidence, consisting of testimony
from several of appellant’s friends, established that the narcotics discovered in the trunk
of Famble’s vehicle belonged to appellant.
{¶ 25} Once the trial court denied appellant’s Crim.R. 29 motion, the defense
rested. The court instructed the jury, and the parties provided closing arguments.
10.
Following deliberations, the jury found appellant guilty of all charges contained in the
indictment. Thereafter, the court set the matter for sentencing.
{¶ 26} At sentencing, the trial court discussed its consideration of the seriousness
and recidivism factors under R.C. 2929.12 with the state and appellant’s defense counsel.
Thereafter, the court heard statements in mitigation, and discussed issues regarding
merger of certain offenses. Ultimately, the parties agreed that the possession and
trafficking charges merged with one another, and the state elected to proceed on the three
trafficking counts.
{¶ 27} Upon consideration, the trial court voiced its concern over appellant’s lack
of remorse at sentencing, noting appellant’s insistence that he did not commit the crimes
with which he was charged. Thereafter, the trial court imposed prison terms of five years
for trafficking in drugs (cocaine), 17 months for trafficking in marijuana, and 17 months
for trafficking in drugs (Alprazolam). The court ordered the sentences served
concurrently for a total prison term of five years. In its sentencing entry, the trial court
stated that “the purposes and principles of sentencing as well as the seriousness and
recidivism factors were carefully reviewed.”
{¶ 28} Thereafter, appellant filed a timely notice of appeal.
B. Assignments of Error
{¶ 29} On appeal, appellant asserts the following assignments of error for our
review:
11.
1. The trial court erred when it determined that the sobriety
checkpoint used to stop appellant was constitutional under the
Fourth and Fourteenth Amendments of the United States
Constitution and Article I, Section 14 of the Ohio Constitution.
2. The jury’s verdict was against the manifest weight of the
evidence presented at trial.
3. The trial court committed error to the prejudice of appellant
by imposing the costs of prosecution without consideration of
appellant’s present or future ability to pay.
II. Analysis
A. Motion to Suppress
{¶ 30} In his first assignment of error, appellant argues that the trial court erred
when it denied his motion to suppress after finding that the OVI checkpoint conducted in
this case was constitutional. Appellant only challenges the execution of the OVI
checkpoint; he does not independently challenge the reasonable suspicion garnered from
Williams’ detection of an odor of marijuana or Williams’ subsequent search of Famble’s
vehicle.
{¶ 31} Concerning appellate review of a trial court’s decision on a motion to
suppress, which involves mixed questions of law and fact, the Supreme Court of Ohio has
held:
12.
When considering a motion to suppress, the trial court assumes the
role of trier of fact and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses. Consequently, an
appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence. Accepting these facts as true,
the appellate court must then independently determine, without deference to
the conclusion of the trial court, whether the facts satisfy the applicable
legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8.
{¶ 32} In Michigan v. Sitz, 496 U.S. 444, 453, 110 S. Ct. 2481, 110 L. Ed. 2d 412
(1990), the United States Supreme Court applied a three-part balancing analysis that was
derived from its decision in Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357
(1979) to the state’s use of a highway sobriety checkpoint. In applying the test, we are to
balance “the State’s interest in preventing drunken driving, the extent to which this
system can reasonably be said to advance that interest, and the degree of intrusion upon
individual motorists who are briefly stopped.” Sitz at 455. In applying the foregoing test,
the court in Sitz held that the sobriety checkpoint at issue was constitutional.
{¶ 33} In reaching its decision, the court noted the magnitude of the drunken
driving problem and the state’s interest in eradicating it. Id. at 451. Further, the court
found that the intrusion to motorists who are stopped at OVI checkpoints “is slight.” Id.
13.
Finally, the court concluded that the particular sobriety checkpoint at issue in Sitz could
be reasonably said to advance the state’s interest in preventing drunken driving. Id. at
455. On the question of the checkpoint’s effectiveness at preventing drunken driving, the
court distinguished between checkpoints at which vehicles are stopped randomly from
those, like the one at issue in the present case, in which all vehicles are stopped, finding
the latter to be permissible. Id.
{¶ 34} Since the United States Supreme Court issued its decision in Sitz, “a
majority of state courts have followed the balancing analysis and have concluded that
roadblocks may survive constitutional scrutiny if they are operated under guidelines
which minimize intrusiveness and limit officers’ discretion.” State v. Hall, 5th Dist.
Ashland No. 03-COA-064, 2004-Ohio-3302, ¶ 15, citing State v. Downey, 945 S.W.2d
102, 108, n. 6 (Tenn.Sup.Ct.1997). Ohio is among the majority of jurisdictions who have
upheld the constitutionality of OVI checkpoints. Id. at ¶ 17, citing State v. Eggleston,
109 Ohio App. 3d 217, 671 N.E.2d 1325 (2d Dist.1996) and State v. Bauer, 99 Ohio
App.3d 505, 651 N.E.2d 46 (10th Dist.1994).
{¶ 35} Here, appellant does not challenge the constitutionality of the OVI
checkpoint under the three-part test set forth in Sitz. Instead, appellant asserts that the
checkpoint was unconstitutional under the following guidelines that were originally set
forth by the Iowa Supreme Court and later referenced by the Second District:
“* * * Where there is no consent, probable cause, or Terry-type reasonable
and articulable suspicion, a vehicle stop may be made only where there
14.
minimally exists (1) a checkpoint or roadblock location selected for its
safety and visibility to oncoming motorists; (2) adequate advance warning
signs, illuminated at night, timely informing approaching motorists of the
nature of the impending intrusion; (3) uniformed officers and official
vehicles in sufficient quantity and visibility to ‘show * * * the police power
of the community;’ and (4) a predetermination by policy-making
administrative officers of the roadblock location, time, and procedures to be
employed, pursuant to carefully formulated standards and neutral criteria.”
State v. Goines, 16 Ohio App. 3d 168, 170-171, 474 N.E.2d 1219 (2d Dist.1984), quoting
State v. Hilleshiem, 291 N.W.2d 314, 318 (Iowa 1980).
{¶ 36} The state asserts that the Ohio Supreme Court has not adopted the
guidelines referenced in Goines, and therefore argues that these guidelines are not
controlling in this case. We need not reach this issue, however, because our conclusion
in this case remains the same even if we apply the guidelines articulated in Goines.
{¶ 37} Appellant acknowledges the state’s compliance with the first three
guidelines in Goines, but argues under the fourth guideline that the Highway Patrol’s
procedures relating to the OVI checkpoint in this case were “arbitrary in that not every
vehicle that passes through the sobriety checkpoint is stopped.” Appellant’s contention
in this regard is premised upon “the fact that not every vehicle that [entered] the [OVI]
checkpoint [was] stopped.”
15.
{¶ 38} In its decision, the trial court expressly rejected appellant’s argument that
the OVI checkpoint in this case was conducted in an arbitrary fashion. The court found
that the OVI checkpoint was carried out with “military-like precision.” Having reviewed
the transcript of the suppression hearing, we agree.
{¶ 39} During his testimony at the hearing on appellant’s motion to suppress,
Williams articulated in detail the Highway Patrol’s policy and procedures regarding OVI
checkpoints. Taken together, these policies and procedures (media notification, selection
of time and place, manner in which the checkpoints are to be conducted, etc.) are
obviously designed to render the OVI checkpoints conducted by the Highway Patrol
neutral and impartial. Indeed, Williams indicated that officers conducting OVI
checkpoints under these policies and procedures check every vehicle that comes through
unless the line commander instructs the officers to allow traffic to flow through the
checkpoint for safety reasons, at which point every vehicle is allowed to pass through
uninspected until the safety issue is resolved.
{¶ 40} Contrary to appellant’s contention that the OVI checkpoint in this case was
conducted in an arbitrary fashion, Williams stated that every vehicle was stopped unless
he was told otherwise by his lieutenant, which happened in this case when “a lot of
commercial vehicles [were] coming through [the OVI checkpoint] to where it was
clogging up the road quite a bit.” This procedure, known as “flushing,” has previously
been reviewed and upheld by Ohio courts. See Hall, supra, 5th Dist. Ashland No.
16.
03-COA-064, 2004-Ohio-3302, at ¶ 24; see also Eggleston, supra, 109 Ohio App.3d at
225-226, 671 N.E.2d 1325 and Bauer, supra, 99 Ohio App.3d at 511, 651 N.E.2d 46.
Notably, the record is devoid of any indication as to when Famble’s vehicle was stopped
in relation to the flushing that occurred during this OVI checkpoint, and appellant does
not contend that his vehicle should have been passed through during the flushing.
{¶ 41} In sum, the testimony provided by Williams demonstrates that he had no
individual discretion to determine whether to stop the vehicle in which appellant was a
passenger. The officers conducting the stop were not given individual decision-making
authority over which vehicles would be required to stop and which vehicles would be
allowed to pass through. Rather, all vehicles were stopped unless safety concerns arose,
at which point all vehicles were allowed to pass through.
{¶ 42} On the facts found by the trial court, which we are required to accept since
they are supported by competent, credible evidence, we conclude that the OVI checkpoint
here was conducted according to carefully formulated standards and neutral criteria.
Therefore, applying, for the sake of argument, the guidelines set forth in Goines, we find
no merit to appellant’s contention that the OVI checkpoint in this case was carried out in
an arbitrary fashion such that it ran afoul of the constitutional protections guaranteed by
the Fourth Amendment. Accordingly, appellant’s first assignment of error is not well-
taken.
17.
B. Manifest Weight
{¶ 43} In his second assignment of error, appellant argues that the jury’s verdict
was against the manifest weight of the evidence.
{¶ 44} When reviewing a manifest weight of the evidence claim, the appellate
court reviews “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 reversed and a new trial ordered.” State v. Lang, 129 Ohio
St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220. A new trial should only be granted
in the “exceptional case in which the evidence weighs heavily against the conviction.”
State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983), citing Tibbs v.
Florida, 457 U.S. 31, 45, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982).
{¶ 45} In the present case, appellant was convicted of one count of trafficking in
marijuana in violation of R.C. 2925.03(A)(2) and (C)(3)(c), one count of trafficking in
drugs in violation of R.C. 2925.03(A)(2) and (C)(2)(c), one count of trafficking in
cocaine in violation of R.C. 2925.03(A)(2) and (C)(4)(f), one count of possession of
marijuana in violation of R.C. 2925.11(A) and (C)(3)(c), one count of possession of
cocaine in violation of R.C. 2925.11(A) and (C)(4)(e), and one count of possession of
drugs in violation of R.C. 2925.11(A) and (C)(2)(b). Ohio’s trafficking statute, R.C.
2925.03, provides, in relevant part:
18.
(A) No person shall knowingly do any of the following:
***
(2) Prepare for shipment, ship, transport, deliver, prepare for
distribution, or distribute a controlled substance or a controlled substance
analog, when the offender knows or has reasonable cause to believe that the
controlled substance or a controlled substance analog is intended for sale or
resale by the offender or another person.
***
(C) Whoever violates division (A) of this section is guilty of one of
the following:
***
(2) If the drug involved in the violation is any compound, mixture,
preparation, or substance included in schedule III, IV, or V, whoever
violates division (A) of this section is guilty of trafficking in drugs. The
penalty for the offense shall be determined as follows:
***
(c) Except as otherwise provided in this division, if the amount of
the drug involved equals or exceeds the bulk amount but is less than five
times the bulk amount, trafficking in drugs is a felony of the fourth degree,
and division (B) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term for the offense. If the amount
19.
of the drug involved is within that range and if the offense was committed
in the vicinity of a school or in the vicinity of a juvenile, trafficking in
drugs is a felony of the third degree, and there is a presumption for a prison
term for the offense.
***
(3) If the drug involved in the violation is marihuana or a compound,
mixture, preparation, or substance containing marihuana other than hashish,
whoever violates division (A) of this section is guilty of trafficking in
marihuana. The penalty for the offense shall be determined as follows:
***
(c) Except as otherwise provided in this division, if the amount of
the drug involved equals or exceeds two hundred grams but is less than one
thousand grams, trafficking in marihuana is a felony of the fourth degree,
and division (B) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender. If the
amount of the drug involved is within that range and if the offense was
committed in the vicinity of a school or in the vicinity of a juvenile,
trafficking in marihuana is a felony of the third degree, and division (C) of
section 2929.13 of the Revised Code applies in determining whether to
impose a prison term on the offender.
***
20.
(4) If the drug involved in the violation is cocaine or a compound,
mixture, preparation, or substance containing cocaine, whoever violates
division (A) of this section is guilty of trafficking in cocaine. The penalty
for the offense shall be determined as follows:
***
(f) If the amount of the drug involved equals or exceeds twenty-
seven grams but is less than one hundred grams of cocaine and regardless
of whether the offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in cocaine is a felony of the first degree,
and the court shall impose as a mandatory prison term a first degree felony
mandatory prison term.
{¶ 46} Ohio’s possession statute, R.C. 2925.11, provides, in relevant part:
(A) No person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.
***
(C) Whoever violates division (A) of this section is guilty of one of
the following:
***
(2) If the drug involved in the violation is a compound, mixture,
preparation, or substance included in schedule III, IV, or V, whoever
21.
violates division (A) of this section is guilty of possession of drugs. The
penalty for the offense shall be determined as follows:
***
(b) If the amount of the drug involved equals or exceeds the bulk
amount but is less than five times the bulk amount, possession of drugs is a
felony of the fourth degree, and division (C) of section 2929.13 of the
Revised Code applies in determining whether to impose a prison term on
the offender.
***
(3) If the drug involved in the violation is marihuana or a compound,
mixture, preparation, or substance containing marihuana other than hashish,
whoever violates division (A) of this section is guilty of possession of
marihuana. The penalty for the offense shall be determined as follows:
***
(c) If the amount of the drug involved equals or exceeds two
hundred grams but is less than one thousand grams, possession of
marihuana is a felony of the fifth degree, and division (B) of section
2929.13 of the Revised Code applies in determining whether to impose a
prison term on the offender.
***
22.
(4) If the drug involved in the violation is cocaine or a compound,
mixture, preparation, or substance containing cocaine, whoever violates
division (A) of this section is guilty of possession of cocaine. The penalty
for the offense shall be determined as follows:
***
(e) If the amount of the drug involved equals or exceeds twenty-
seven grams but is less than one hundred grams of cocaine, possession of
cocaine is a felony of the first degree, and the court shall impose as a
mandatory prison term a first degree felony mandatory prison term.
{¶ 47} At trial, the state introduced evidence to establish all of the elements of the
trafficking and possession statutes recited above. As to appellant’s possession of
marijuana, cocaine, and drugs under R.C. 2925.11(A), the state introduced unrefuted
evidence from several of appellant’s friends establishing that appellant was the owner of
the cheerleading bag containing marijuana, cocaine, and Alprazolam pills. The testimony
further establishes that appellant was the only individual who exercised dominion or
control over the bag during the relevant period.
{¶ 48} Additionally, under R.C. 2925.03(A)(2), appellant’s transport of the drugs
was obvious given the fact that the drugs were found stowed in a bag in the trunk of
Famble’s car after the group of men arrived in Bowling Green from Cincinnati by way of
Toledo, a drive of approximately three hours.
23.
{¶ 49} Appellant’s intent to sell the drugs under R.C. 2925.03(A)(2) was also
established by the state’s evidence. According to Williams’ testimony, the amount of
drugs present inside appellant’s bag indicated that the drugs were not being used for
individual personal use. Coupled with the digital scale that was recovered from the bag,
the large quantity of drugs found in the bag was indicative of narcotics trafficking.
Additionally, Williams testified that his search of appellant revealed a “thick wad of cash
in his pocket” comprised of bills of different amounts, which is typically associated with
drug trafficking in Williams’ experience.
{¶ 50} The drugs that were recovered from appellant’s bag were subsequently
analyzed by Bocook and found to contain 25.949 grams of Alprazolam, a schedule IV
substance, 316.461 grams of marijuana, a schedule I substance, and 33.987 grams of
cocaine hydrochloride, a schedule II substance. These amounts are sufficient to satisfy
R.C. 2925.03(C)(2)(c) and 2925.11(C)(2)(b) with respect to the Alprazolam, R.C.
2925.03(C)(3)(c) and 2925.11(C)(3)(c) with respect to the marijuana, and R.C.
2925.03(C)(4)(f) and 2925.11(C)(4)(e) with respect to the cocaine.
{¶ 51} Taken together, the foregoing evidence supports the jury’s verdict in this
case. Appellant does not contest this notion. Rather, appellant argues that “the jury’s
verdict was based upon the nature of the charges against him and the generally shared
societal view of dangerous and illegal drugs.” However, appellant offers no evidence to
support his argument, and points to nothing in the record to demonstrate that the state
attempted to elicit convictions in this case based merely upon such a “generally shared
24.
societal view.” On the contrary, our review of the record reveals that the state’s evidence
clearly and unequivocally established appellant’s guilt of the crimes with which he was
charged.
{¶ 52} Appellant also argues that the testimony provided by Famble, Horton, and
King was “suspect because they all testified that their criminal charges had been
dismissed.” In so arguing, appellant acknowledges that each of these witnesses explained
that their charges were dismissed only after it was determined that the cheerleading bag
containing the drugs belonged to appellant. According to these witnesses, none of the
dismissals were conditioned upon cooperation with law enforcement in this case.
Nonetheless, appellant invites us to “assume that the dismissal of all of their charges was
conditioned upon their cooperation in testifying against appellant.” Such an assumption
is baseless given the testimony in this case, and it runs afoul of the standard of review
that this court is required to apply to the state’s uncontroverted testimony.
{¶ 53} Upon our careful review of the entire record in this case, we find that there
is competent, credible evidence supporting the jury’s verdict. Accordingly, we cannot
say that a manifest injustice occurred with appellant’s conviction requiring us to reverse
such conviction. This is not the exceptional case in which the evidence weighs heavily
against appellant’s conviction, nor is this a case in which the jury has clearly lost its way.
Thus, we conclude that appellant’s convictions are not against the manifest weight of the
evidence, and we find appellant’s second assignment of error not well-taken.
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C. Costs
{¶ 54} In his third assignment of error, appellant argues that the trial court erred in
imposing costs of prosecution without consideration of appellant’s ability to pay such
costs.
{¶ 55} On review by this court, we must determine whether the trial court’s
imposition of costs was contrary to law. R.C. 2953.08(A)(4) and (G)(2)(b); State v.
Farless, 6th Dist. Lucas Nos. L-15-1060 and L-15-1061, 2016-Ohio-1571, ¶ 4, citing
State v. Collins, 12th Dist. Warren No. CA2014-11-135, 2015-Ohio-3710, 41 N.E.3d
899, ¶ 30 (“An appellate court may not modify a financial sanction unless it finds by
clear and convincing evidence that it is not supported by the record or is contrary to
law.”).
{¶ 56} In its sentencing entry, the trial court ordered that appellant is “ordered to
pay the costs of this prosecution, including the jury trial.” Appellant acknowledges that
costs of prosecution are mandatory under R.C. 2947.23(A)(1)(a), which provides: “In all
criminal cases, including violations of ordinances, the judge or magistrate shall include in
the sentence the costs of prosecution, including any costs under section 2947.231 of the
Revised Code, and render a judgment against the defendant for such costs.”
{¶ 57} In his brief, appellant challenges the trial court’s imposition of non-
mandatory costs, including the costs of confinement and assigned counsel. In order to
impose these costs, the trial court must first affirmatively find that appellant has, or
26.
reasonably may be expected to have, the ability to pay such costs. State v. Gray, 6th Dist.
Lucas No. L-15-1072, 2015-Ohio-5021, ¶ 21; State v. Wymer, 6th Dist. Lucas No.
{¶ 58} L-18-1108, 2019-Ohio-1563, ¶ 14.
{¶ 59} Notably, the trial court’s sentencing entry does not mention any non-
mandatory costs. Rather, the only costs referenced by the trial court in its entry, and
therefore the only costs imposed in this matter, were the costs of prosecution, which are
mandatory as set forth above. Since costs of prosecution must be imposed regardless of
appellant’s present or future ability to pay them, we find that the trial court’s imposition
of costs in this matter was not contrary to law.
{¶ 60} Accordingly, appellant’s third assignment of error is not well-taken.
III. Conclusion
{¶ 61} In light of the foregoing, the judgment of the Wood County Court of
Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
27.
State v. King
C.A. No. WD-19-013
Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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