State v. Fleming

[Cite as State v. Fleming, 2022-Ohio-1876.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-40
:
v. : Trial Court Case No. 2020-CR-416
:
JAMAL FLEMING : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 3rd day of June, 2022.
...........
IAN A RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
ADAM JAMES STOUT, Atty. Reg. No. 0080334, 5335 Far Hills Avenue, Suite 109,
Dayton, Ohio 45429
Attorney for Defendant-Appellant
.............
EPLEY, J.
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{¶ 1} After a jury trial in the Clark County Court of Common Pleas, Jamal Fleming
was found guilty of aggravated trafficking in drugs (methamphetamine), aggravated
possession of drugs (methamphetamine), trafficking in cocaine, and possession of
cocaine. After merging the possession and trafficking charges, the trial court imposed
consecutive sentences totaling 30 months in prison.
{¶ 2} Fleming appeals from his conviction, claiming that the trial court erred in
overruling his pretrial motion to suppress, that his convictions for aggravated trafficking in
drugs and trafficking in cocaine were based on insufficient evidence and against the
manifest weight of the evidence, and that the court erred in allowing the State to present
Facebook Messenger texts at trial. For the following reasons, the trial court’s judgment
will be reversed, and the matter will be remanded for resentencing on the possession
offenses.
I. Facts and Procedural History
{¶ 3} On April 15, 2020, Springfield police officers observed Fleming driving his
girlfriend’s Chevy Equinox. After confirming through LEADS (a state law enforcement
database) that Fleming did not have a valid license, Officer Tim Melvin initiated a traffic
stop and arrested Fleming on an active warrant for driving under suspension. The officer
searched Fleming and felt a hard crystal-like substance. A small baggie containing that
substance fell down the leg of Fleming’s pants and onto the ground. Lab testing revealed
that the baggie contained approximately 1.08 grams of methamphetamine and 0.33
grams of cocaine.
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{¶ 4} As a result of a prior unrelated incident, Detective Justin Allender was
investigating Fleming for drug trafficking. Allender became aware of a Facebook
account with the profile name “Flipp Royal,” which he believed Fleming was using.
Allender obtained a search warrant for the account and reviewed messages from March
2020 which were indicative of drug trafficking in cocaine, crystal meth, heroin, fentanyl,
and marijuana.
{¶ 5} Fleming was indicted on aggravated trafficking in drugs (methamphetamine),
a fourth-degree felony; aggravated possession of drugs (methamphetamine), a fifth-
degree felony; trafficking in cocaine, a fifth-degree felony; and possession of cocaine, a
fifth-degree felony. The date of the offense for all charges was April 15, 2020.
{¶ 6} Fleming moved to suppress the evidence obtained as a result of his stop and
seizure on April 15. He claimed that the police had lacked reasonable suspicion of
criminal activity to justify the stop. After a hearing, the trial court overruled the motion.
{¶ 7} The matter proceeded to a one-day jury trial during which the State presented
four witnesses and offered four exhibits, including Facebook messages from the account
purportedly used by Fleming. Fleming testified in his own defense. The jury found
Fleming guilty of each offense. The court merged the trafficking and possession
offenses and sentenced him to 18 months in prison for aggravated trafficking in drugs
(Count 1) and 12 months in prison for trafficking in cocaine (Count 3), to be served
consecutively.
{¶ 8} Fleming appeals from his convictions, raising four assignments of error. We
will address them in an order that facilitates our analysis.
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II. Motion to Suppress
{¶ 9} In his third assignment of error, Fleming claims that the trial court erred in
finding that the Springfield police officer had reasonable suspicion to stop the vehicle that
he was driving.
{¶ 10} The weight of the evidence and the credibility of the witnesses at a
suppression hearing are primarily for the trial court to determine. State v. Brinkley, 105
Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 58; State v. Moore, 2d Dist.
Montgomery No. 29143, 2022-Ohio-283, ¶ 8. Accordingly, when we review suppression
decisions, we must accept the trial court’s findings of fact if they are supported by
competent, credible evidence. State v. Retherford, 93 Ohio App.3d 586, 592, 639
N.E.2d 498 (2d Dist.1994). “Accepting those facts as true, we must independently
determine as a matter of law, without deference to the trial court’s conclusion, whether
they meet the applicable legal standard.” Id.{¶ 11} The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). “The touchstone of the Fourth Amendment is
reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d
297 (1991). Whether a stop and search is reasonable under the Fourth Amendment
depends upon the particular facts and circumstances, viewed objectively by examining
the totality of the circumstances. See State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-
154, 47 N.E.3d 821, ¶ 14.
{¶ 12} Police officers may briefly stop and temporarily detain individuals to
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investigate possible criminal activity if the officers have a reasonable, articulable
suspicion that criminal activity has occurred, is occurring, or is about to occur. Terry;
State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8; State v.
Laster, 2d Dist. Montgomery No. 27762, 2018-Ohio-3601, ¶ 49. Reasonable suspicion
of any criminal offense, even a minor traffic-related offense, is sufficient to justify an
investigatory detention. See, e.g., Mays at ¶ 8 (stop based on reasonable suspicion of
a traffic violation is constitutionally valid).
{¶ 13} We determine the existence of reasonable suspicion by evaluating the
totality of the circumstances, considering those circumstances “through the eyes of the
reasonable and prudent police officer on the scene who must react to events as they
unfold.” State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting
State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991). “Although a mere
‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires
is considerably less than proof of wrongdoing by a preponderance of the evidence, and
obviously less than is necessary for probable cause.” (Citation omitted.) Kansas v.
Glover, __ U.S. __, 140 S.Ct. 1183, 1187, 206 L.Ed.2d 412 (2020).
{¶ 14} In this case, Officers Tim Melvin and Joshua Lish of the Springfield Police
Department testified at the suppression hearing on behalf of the State. Their evidence
established that on April 15, 2020, Officer Melvin ran the license plate of a black Chevy
Equinox behind which he was driving on John Street in Springfield. The plate came back
to a woman that Melvin knew to be Fleming’s girlfriend. Looking through the vehicle’s
rear window, Officer Melvin saw that the driver was taller and had long dreadlocks, and
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he was suspicious that Fleming might be the driver. (Officer Melvin had encountered
Fleming a couple of times a month or two earlier.) Melvin ran Fleming’s information
through LEADS and learned that Fleming did not have a valid driver’s license. Officer
Melvin asked Officers Lish and Williams Sanders, who were nearby in another police
vehicle, to confirm the identity of the driver.
{¶ 15} Officer Lish pulled his marked Chevy Tahoe to the right side of the Equinox,
which was stopped at a red light. The vehicles were approximately three or four feet
apart, and the weather was sunny and clear. When asked if the windows of the Equinox
were tinted, Lish did not recall. Officer Melvin stated that the Tahoe probably sat a little
higher than the Equinox.
{¶ 16} Officer Lish looked over at the Equinox for about five seconds and saw that
Fleming was driving it. He recognized Fleming from their five or six prior interactions, of
which three or four had occurred within the past year. Fleming looked the same as he
had during those prior encounters. According to Officer Lish, Officer Sanders agreed
with the identification. Officer Lish communicated to Officer Melvin that Fleming was
driving the Equinox, and Officer Melvin initiated a traffic stop.
{¶ 17} As Officer Melvin approached Fleming, the dispatcher informed him that
Fleming had an active warrant for driving under suspension. Melvin arrested Fleming on
the warrant and conducted a search incident to the arrest. During the search, Melvin felt
a hard rock substance between Fleming’s buttocks. The substance fell down Fleming’s
pant leg to the ground. The officer saw that the object was a crystal-like hard substance.
{¶ 18} Fleming testified on his own behalf. He emphasized that the windows of
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the Equinox were tinted, which would have made it difficult for the officers to view him
inside the vehicle. He also testified that Officers Lish and Sanders were driving a police
van, which sat almost two feet higher than the Equinox, and that Officer Sanders had
previously confused him with his brother. As for the weather conditions, Fleming
indicated that it had snowed earlier and the weather was starting to clear up. Fleming
stated that he was “positive” that the officers could not have seen him.
{¶ 19} In denying Fleming’s motion to suppress, the trial court concluded that
Officer Melvin had had reasonable suspicion of criminal activity to justify the traffic stop.
It found, in part: “Officer Melvin made the traffic stop on his partial identification, the
positive identification of two other officers, and the fact that the vehicle involved was
registered to the defendant’s girlfriend, a fact that significantly narrowed the pool of
potential drivers. The Court is not persuaded that the tinted windows or the point of view
undermines their positive identification.”
{¶ 20} We find no error in the trial court’s ruling. All three Springfield police
officers were familiar with Fleming from prior encounters. While driving along John
Street, Officer Melvin discovered that the vehicle behind which he was driving was
registered to Fleming’s girlfriend, and he saw that the silhouette of the driver resembled
Fleming. Melvin ran Fleming’s information and learned that he did not have a valid
driver’s license.
{¶ 21} Before initiating a stop of the vehicle, Officer Melvin asked Officer Lish to
confirm the identification of the driver. Lish testified that he drove beside the Equinox
and confirmed, based on prior encounters, that Fleming was the individual driving the
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vehicle. Although Fleming disputed that Officer Lish had been able to make that
identification due to the tint of the Equinox’s windows and the relative heights of the two
vehicles, the trial court reasonably credited the officers’ testimony, and we defer to that
determination.
{¶ 22} Under the collective knowledge doctrine, Officer Melvin was permitted to
rely on the information provided to him by the other officers in helping to develop
reasonable suspicion to justify a stop of Fleming’s vehicle. See State v. Ojezua, 2016-
Ohio-2659, 50 N.E.3d 14, ¶ 30 (2d Dist.); State v. Jones, 2d Dist. Montgomery No. 23926,
2011-Ohio-1984, ¶ 20. Based on Officer Lish’s confirmatory identification and
information that Fleming did not have a valid license, Officer Melvin was justified in pulling
over the Equinox to investigate.
{¶ 23} After initiating the traffic stop, the dispatcher informed Officer Melvin that
Fleming was subject to a valid warrant for driving under suspension. Officer Melvin was
entitled to arrest Fleming for his outstanding warrant and conduct a search incident to
that arrest. “Pursuant to a search incident to arrest, the police may conduct a full search
of the arrestee’s person, and that search is not limited to the discovery of weapons, but
may include evidence of a crime as well.” State v. Jones, 112 Ohio App.3d 206, 215,
678 N.E.2d 285 (2d Dist.1996.) Officer Melvin lawfully found the drugs during such a
search. Accordingly, the trial court did not err in denying Fleming’s motion to suppress.
{¶ 24} Fleming’s third assignment of error is overruled.
III. Sufficiency of the Evidence
{¶ 25} In his fourth assignment of error, Fleming claims that his convictions were
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based on insufficient evidence.
{¶ 26} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, viewing
the evidence in a light most favorable to the State, could have found the essential
elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio
St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal
unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.” Id.{¶ 27} We note that, in his first assignment of error, Fleming has challenged the
trial court’s admission of Facebook Messenger posts. In reviewing claims based on the
sufficiency or manifest weight of the evidence, we are required to consider all of the
evidence admitted at trial, regardless of whether it was admitted erroneously. State v.
Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284; State v. Lawson, 2020-
Ohio-6852, 164 N.E.3d 1130, ¶ 86 (2d Dist.); State v. Rosales, 2d Dist. Montgomery No.
27117, 2018-Ohio-197, ¶ 16, citing State v. Johnson, 2015-Ohio-5491, 55 N.E.3d 648,
¶ 95 (2d Dist.). Accordingly, the outcome of that assignment of error has no bearing on
whether the evidence at trial supported Fleming’s convictions.
{¶ 28} Fleming was convicted of two counts of trafficking in drugs, in violation of
R.C. 2925.03(A)(2). That statute provides that “[n]o person shall knowingly * * * [p]repare
for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled
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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.”
{¶ 29} “Circumstantial evidence has long been used to successfully support drug
trafficking convictions.” State v. Batdorf, 2d Dist. Greene No. 2020-CA-3, 2020-Ohio-
4396, ¶ 16, citing State v. Delaney, 2018-Ohio-727, 106 N.E.3d 920, ¶ 11 (9th Dist.). For
example, “the convergence of illegal drugs, drug paraphernalia (including baggies), and
large sums of cash permit a reasonable inference that a person was preparing drugs for
shipment.” Id., quoting Delaney at ¶ 11; see also State v. Rutledge, 6th Dist. Lucas No.
L-12-1043, 2013-Ohio-1482, ¶ 15. Circumstantial evidence and direct evidence have
the same probative value. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph one of the syllabus.
{¶ 30} At trial, the State presented the testimony of four witnesses: Officers Melvin
and Lish, Detective Allender, and Megan Snyder, a forensic scientist with the Ohio Bureau
of Criminal Investigations (BCI). Officers Melvin’s and Lish’s testimony about their
actions leading to the traffic stop was similar to their suppression hearing testimony.
Officer Melvin added that he suspected that the substance in the baggie contained
methamphetamine and he sent it to BCI for testing. He also testified that Fleming made
unsolicited statements about the baggie after it fell out of his pant leg. Fleming reportedly
said, “Okay, you got me, man. I’m a user. I’m just a user. That was my personal use.
You got me.”
{¶ 31} Officer Lish provided additional testimony that he and Officer Sanders
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circled around and assisted with the traffic stop. Lish saw Officer Melvin search Fleming
and the baggie of drugs fall out of Fleming’s pant leg. After the drugs fell to the ground,
Lish heard Fleming volunteer something along the lines of “That’s something that I use.”
Both Officer Melvin and Officer Lish identified Fleming as the individual who was stopped
and searched on April 15, 2020.
{¶ 32} Snyder testified that one item was submitted to BCI for analysis, but when
she opened it, she noticed two different types of substances inside and, therefore,
analyzed them separately. She determined that the crystalline substance weighed 1.08
grams, plus or minus 0.04 grams, and contained methamphetamine, a Schedule II
controlled substance. That amount was less than the bulk amount of methamphetamine.
The second item, an off-white solid substance, weighed 0.33 grams, plus or minus 0.04
grams, and contained cocaine.
{¶ 33} Detective Allender, a member of the Springfield Police Department Drug
Unit, testified that he was trained on cell phone evidence recovery and the applications
that are found on cell phones. He also stated that he was experienced in reviewing social
media data to help with drug trafficking investigations. In March 2020, another detective
learned that a person using a Facebook account with the profile name “Flipp Royal” had
sold drugs to a homicide victim, and the detective passed the information along to
Detective Allender for further investigation of the drug activity. Allender was familiar with
Fleming and knew that “Flipp Royal” was a Facebook account that he likely was using.
{¶ 34} Detective Allender looked at profile photographs associated with the “Flipp
Royal” account and recognized Fleming in those photographs. The account also listed
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a date of birth, which was the same as Fleming’s. After looking at conversations
associated with the “Flipp Royal” account, Allender obtained a search warrant to search
through the account. While waiting for a response from Facebook, Detective Allender
learned that Fleming had been arrested with suspected drugs on his person on April 15.
{¶ 35} Detective Allender later received approximately 1,300 pages of data from
Facebook. While going through those communications, Allender recognized the names
of several drug users and drug dealers in the Springfield area, including Jeremy Barclay
and Harley Leigh. He stated that the messages discussed multiple different types of
drugs being sold and Flipp Royal was selling ounces and even grams of drugs.
Detective Allender testified that a gram of methamphetamine was “probably just the
standard user amount. It might be less,” and that drug users often requested drugs in
terms of dollar amounts, which would break down into tenths of a gram. The detective
stated that it is common for drug traffickers to insist that drugs found on them are for their
own personal use.
{¶ 36} Detective Allender was asked about two sets of Facebook Messenger
exchanges involving Flipp Royal. The first set (State’s Exhibit 3) consisted of a series of
messages between Barclay and Flipp Royal between March 16 and March 29, 2020.
The State focused on communications on March 22, when Barclay reached out to Flipp
Royal and said that he needed “Hard. Ice. N boi,” which Detective Allender translated to
mean crack, crystal meth, and heroin or fentanyl. Flipp Royal indicated that he had them
and asked how much Barclay wanted. Barclay replied, “Whats the ice look line n whats
the ticket?” meaning what was the quality of the crystal meth and how much did it cost.
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Flipp Royal said that he had enough and the quality was “fire,” meaning more pure or
excellent. Detective Allender testified that the comment “they say its fire” implied that
Fleming relied on others to vouch for the quality of the drugs.
{¶ 37} Flipp Royal and Barclay had additional exchanges concerning quantities,
price, and where to meet. Flipp Royal agreed to bring “2 gs” of marijuana, but Barclay
later complained that he only had received one. Over the course of the day, the men
communicated about additional drug transactions. Fleming offered to sell Barclay
powder cocaine for $65, saying it was “fire.” In other communications, Barclay stated he
needed “boi” and “weed.” Some of Flipp Royal’s additional messages expressed anger
that he had obtained drugs for Barclay from his supplier, but Barclay had not bought them.
During this exchange, Flipp Royal pointed out to Barclay that he (Barclay) said he had “a
dude to test it u was waiting to cum back.”
{¶ 38} On March 24, 2020, Flipp Royal had a series of Facebook Messenger
exchanges with Leigh. (State’s Exhibit 4.) In those messages, Leigh negotiated to
purchase drugs, including cocaine, from Flipp Royal to sell to other people. Several of
the messages concerned small quantities of drugs. Leigh asked Flipp Royal to bring the
drugs to her.
{¶ 39} On cross-examination, Detective Allender acknowledged that State’s
Exhibit 3 concerned messages that began on March 15, approximately a month prior to
the traffic stop in which Fleming was found with drugs. When asked if drug trafficking
communications planned that far ahead, the detective responded that it could for large
amounts, but he had “never seen it” and it was “not likely” for the small quantities alleged
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here. Detective Allender agreed that some of the back-and-forth between Flipp Royal
and Barclay related to claims that Flipp Royal had not provided what Barclay had asked
for. Allender indicated that he had requested Facebook messages before the April 15
incident, and the drugs discussed in the messages likely would have been gone by April
15.
{¶ 40} Detective Allender did not know Fleming to be a drug user based on his
prior experience with him. Contrastingly, Allender could not say that Fleming was not a
drug user.
{¶ 41} Fleming testified on his own behalf. He stated that he had access to the
Flipp Royal account, but he had not used it, and three other individuals also had access
to the account (identified on cross-examination as his two brothers and an ex-girlfriend).
Fleming denied putting photos on the account or having pictures of him placed on the
account.
{¶ 42} Addressing the events of April 15, 2020, Fleming stated that he had been
driving to his mother’s home when he was pulled over by the police. He denied that he
had been going there with the intention of buying or selling drugs. Fleming testified that
he had been a drug user since he was a juvenile, but he had been trying to “dial back on
that” since his daughter was born, which was around the time the traffic stop occurred.
He admitted to the officers that he was a drug user.
{¶ 43} On cross-examination, the State showed Fleming State’s Exhibit 4, which
began with some messages exchanged between Flipp Royal and Erin Murray, whom
Fleming identified as the mother of his child. In those messages, Murray referred to Flipp
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Royal as “baby.” Fleming begrudgingly identified the other individuals who had access
to the Flipp Royal account and said that Murray would not have referred to the other users
as “baby.”
{¶ 44} Fleming admitted that he had possessed methamphetamine and cocaine
when he was stopped on April 15, 2020. He denied that he used the Flipp Royal account
for drug trafficking. Fleming acknowledged, however, that he knew of Barclay and Leigh.
{¶ 45} In challenging his convictions on appeal, Fleming emphasizes that the
Facebook messages were from March 2020 and were unlikely to refer to the drugs he
possessed on April 15, 2020. He further notes that the amount of drugs found on him
on April 15 was consistent with personal use. He thus argues that the State did not
sufficiently connect the Facebook statements to the April 15 traffic stop to prove that the
drugs found on April 15 were for sale.
{¶ 46} In this case, the evidence at trial demonstrated that Fleming had possessed
methamphetamine and cocaine during an investigatory traffic stop on April 15, 2020.
The officers and Fleming all agreed that Fleming was pulled over on April 15, 2020, and
that drugs fell out of his pant leg while he was being searched. Laboratory analysis
identified the suspected drugs as cocaine and methamphetamine. The officers testified
that Fleming had claimed to possess the drugs for personal use, and Fleming admitted
at trial to telling the officers that he was a drug user.
{¶ 47} To prove that Fleming was trafficking those drugs and not merely in
possession of them, the State relied primarily on Facebook Messenger communications
involving “Flipp Royal” and the testimony of Detective Allender. On appeal, the State
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asserts that Detective Allender was able to identify Fleming as the owner of the Flipp
Royal account, and that the Facebook text messages showed that Fleming regularly sold
drugs, including methamphetamine and cocaine, in varying amounts, including small
personal-use quantities. The State continues: “Defendant was found to be in possession
of methamphetamine and cocaine during the traffic stop, and a reasonable jury could find
that he was trafficking it based on the Facebook messages. * * * Defendant did not merely
possess it for personal use, as the Facebook messages indicated he did not use or test
drugs himself.”
{¶ 48} We agree with the State that the jury could have reasonably concluded that
Fleming sent Facebook Messenger texts under the profile name “Flipp Royal.” Detective
Allender was familiar with Fleming and recognized Fleming in the profile photographs on
the Flipp Royal account. The birthday (month and day) on the account was the same as
Fleming’s birthday. Fleming acknowledged that he had access to the account, although
he claimed not to use it. When pressed, Fleming identified his brothers and an ex-
girlfriend as the other individuals with access to the account, and he indicated that the
mother of his child, who had sent a message to Flipp Royal and referred to him as “baby,”
would not have used that term of endearment with the others. The evidence supported
a reasonable conclusion that Fleming was the individual posting messages to the
account.
{¶ 49} The Facebook Messenger texts, as interpreted by Detective Allender,
consisted of communications where Flipp Royal/Fleming arranged to sell drugs to Barclay
and Leigh in March 2020. On March 22, Barclay contacted Fleming about buying crack,
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crystal meth, and heroin or fentanyl; Fleming made arrangements to sell drugs to Barclay
and to bring the drugs to him. Fleming and Leigh also exchanged text messages on
several dates in late March where Leigh arranged to buy drugs from Fleming. The
State’s exhibits clearly established that Fleming engaged in drug trafficking in March
2020, including the sale of small amounts of drugs, and that he met Barclay and Leigh at
different locations to consummate the sales.
{¶ 50} The State further asserts that two statements in State’s Exhibit 3 –
Fleming’s statement that someone else said the drugs were “fire” and his statement that
Barclay said he had a “dude to test it” – demonstrated that Fleming was not a drug user.
Detective Allender testified that the message that “they say it’s fire” implied that Fleming
depended on others to vouch for the quality of the drugs. We disagree with the State’s
contention.
{¶ 51} Reading the text messages in context, it is apparent that Fleming purchased
drugs from a supplier to sell to Barclay. Fleming apparently relied on his “people’s”
statements concerning the quality of those drugs, and Barclay expressed a desire to have
the drugs tested with his own expert. None of the messages indicated whether Fleming
was or was not a drug user generally, and although Detective Allender testified that he
did not know Fleming to be a drug user, he also testified that he could not say that Fleming
was not. The jury could not have reasonably inferred, based on the State’s evidence,
that Fleming did not use drugs, particularly on April 15, 2020.
{¶ 52} Construing the evidence in the light most favorable to the State, as we are
required to do with a sufficiency challenge, we cannot conclude that the State’s evidence
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was sufficient to support the jury’s conclusion that Fleming engaged in drug trafficking on
April 15, 2020. The State’s evidence established that Fleming was in possession of a
single baggie containing a small amount of drugs when he was pulled over by a
Springfield police officer on April 15th. Nothing in the circumstances surrounding the
April 15, 2020 incident suggested that Fleming was engaged in drug trafficking. There
was no evidence that the police officers found money, drug packaging materials (such as
baggies), scales, or any other items indicative of drug trafficking on Fleming’s person or
in the Equinox.
{¶ 53} The State’s additional evidence, primarily in the form of the Facebook
Messenger texts, established that, up to two weeks prior to date at issue, Fleming was
actively engaged in drug trafficking. His drug marketing activities included the sale of
methamphetamine and cocaine, even in small amounts, and that he would drive to
different locations to complete the transactions. However, as acknowledged by
Detective Allender, it was highly unlikely that the March 2020 messages related to the
small amount of drugs in Fleming’s possession on April 15, 2020, and the messages
themselves reflected completed transactions with Barclay and Leigh. None of the
Facebook Messenger communications concerned or even suggested a future sale of
drugs on April 15. Furthermore, the Facebook Messenger texts did not indicate that
Fleming engaged in specific conduct while engaged in drug trafficking (a modus operandi)
such that Fleming’s behavior on April 15 could be linked to his prior drug trafficking.
{¶ 54} The State’s case boiled down to evidence that Fleming was a drug dealer,
and because he was a drug dealer, he must have been trafficking the small amount of
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drugs with which he was found on April 15, 2020. Indeed, in its closing argument, the
prosecutor addressed the trafficking charges, saying:
* * * One of the ways that a person can traffic drugs is to transport those
drugs. But how do we know that he’s going to sell them? We know that
from his conversations in prior sales with known drug users and dealers
within the City of Springfield. The defendant traffics and sells drugs.
That’s what he does, and that’s what his Facebook messages show; and
he can sit up there after hearing all of the testimony and tell you, “Well, I
didn’t send those messages” * * * but Detective Allender went through that
1,300 pages of Facebook records, and he saw that that account belongs to
Jamal Fleming. * * * So it’s my argument, ladies and gentleman, that the
defendant was transporting these drugs to eventually prepare them for sale.
Knowing that eventually he would sell them.
In her rebuttal closing argument, the prosecutor again stated that “those Facebook
messages show that he had been ongoing engaging in trafficking behavior, and there is
no reason to think that in a couple of weeks after these messages that that behavior had
changed in any way.” The prosecutor added that the messages showed he was not a
drug user, because he did not personally attest to the quality of the drugs he sold.
{¶ 55} While it is possible that Fleming was transporting drugs on April 15, 2020,
knowing that the drugs were intended for sale or resale by him or someone else, the jury
could not have reasonably drawn the inference that Fleming actually was engaged in drug
trafficking on April 15, 2020 based on the evidence before us. There was simply no
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evidence to support a conclusion that, on April 15 specifically, Fleming was transporting
the drugs at issue to traffic them. We therefore conclude that Fleming’s convictions for
trafficking in cocaine and aggravated trafficking in drugs (methamphetamine) were based
on insufficient evidence. Accordingly, his fourth assignment of error is sustained.
{¶ 56} In light of our disposition of the fourth assignment of error, Fleming’s first
assignment of error (challenging the trial court’s admission of the Facebook Messenger
communications) and his second assignment of error (raising manifest weight of the
evidence) are overruled as moot.
{¶ 57} Fleming has not challenged the jury’s verdicts on the two counts related to
possession of cocaine and aggravated possession of drugs (methamphetamine), and
they are unaffected by our ruling on the trafficking offenses. Accordingly, the matter
must be remanded for resentencing on those counts.
V. Conclusion
{¶ 58} The trial court’s judgment will be reversed, and the matter will be remanded
for resentencing on possession of cocaine and aggravated possession of drugs
(methamphetamine).
.............
DONOVAN, J. and LEWIS, J., concur.
Copies sent to:
Ian A. Richardson
Adam James Stout
Hon. Douglas M. Rastatter