State v. Walker

[Cite as State v. Walker, 2019-Ohio-1458.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 17AP-588
(C.P.C. No. 16CR-3447)
v. :
(REGULAR CALENDAR)
William L. Walker, Jr., :
Defendant-Appellant. :
D E C I S I O N
Rendered on April 18, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and
Kimberly M. Bond, for appellee. Argued: Kimberly M. Bond.
On brief: Blake Law Firm Co., LLC, and Dustin M. Blake, for
appellant. Argued: Dustin M. Blake.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, William L. Walker, Jr., appeals from a judgment entry
of the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict,
of one count of engaging in a pattern of corrupt activity, one count of possession of cocaine,
one count of illegal manufacture of drugs, and three counts of trafficking in cocaine. For
the following reasons, we affirm in part and reverse in part.
I. Facts and Procedural History
{¶ 2} By indictment filed June 24, 2016, plaintiff-appellee, State of Ohio, charged
Walker with one count of engaging in a pattern of corrupt activity in violation of
R.C. 2923.32, a first-degree felony; one count of trafficking in cocaine in violation of
R.C. 2925.03, a first-degree felony; one count of possession of cocaine in violation of
No. 17AP-588 2
R.C. 2925.11, a first-degree felony; one count of illegal manufacture of drugs in violation of
R.C. 2925.04, a second-degree felony; and two counts of trafficking in cocaine in violation
of R.C. 2925.03, fifth-degree felonies. All six charges contained accompanying one-year
firearm specifications pursuant to R.C. 2941.141(A). The indictment charged Walker along
with three codefendants, Alvin Clayton Dent, Jr., Wendell Edward Brandon, and Drakkar
Dashawn Groce, for their alleged conduct related to the sale of narcotics out of a house on
Greenway Avenue. Walker entered a plea of not guilty.
{¶ 3} On December 28, 2016, Walker filed a motion seeking to have the state
disclose the identity of the confidential informant who assisted police in their investigation.
The state orally opposed the motion, and the trial court held a hearing. Following the
January 12, 2017 hearing, the trial court denied Walker's motion for the state to disclose
the identity of the confidential informant.
{¶ 4} At a joint trial for Walker, Dent, and Groce beginning May 15, 2017,
Lawrence E. Gauthney, a detective with the Columbus Division of Police, testified that
police began receiving community complaints in February 2016 about activities taking
place in and around 1639 Greenway Avenue.1 These community complaints prompted
Detective Gauthney to conduct "spot checks" and visual surveillance of the property. (Tr.
Vol. II at 396.) Detective Gauthney testified that his observations of the property were
consistent with what he would expect to find at a drug house used for drug trafficking.
These observations included seeing numerous individuals approach the residence, go
inside the residence for short periods, and exit the residence.
{¶ 5} After conducting surveillance, Detective Gauthney decided to use a
confidential informant who, on March 28, 2016, successfully purchased crack cocaine in
the house. Detective Gauthney testified he then obtained a no-knock warrant to search the
house based on his personal observations and on the controlled buy of narcotics.
{¶ 6} The next day, on March 29, 2016, Detective Gauthney led a team of law
enforcement officers in executing the search of 1639 Greenway Avenue. Detective
Gauthney testified that three individuals, namely Brandon, Anthony McNair, and Taiwain
Johnson, were inside the residence at the time and all three were detained. Police seized
evidence from the house including drugs, money, guns, scales, baggies, and other items
1 Brandon entered into a plea agreement prior to trial.
No. 17AP-588 3
indicative of drug trafficking activity. Detective Gauthney testified that Johnson had $1,256
in cash on his person when police searched him. During the search, Detective Gauthney
noticed security cameras and a security monitor in the house. Detective Gauthney testified
he seized the cameras and equipment and subsequently downloaded the security camera
footage to a disc.
{¶ 7} Over the objections of the codefendants, the state played the video footage
obtained from the security system at trial while Detective Gauthney narrated the video
clips, giving his description of the events portrayed on the video. The trial court provided
a limiting instruction to the jury that Detective Gauthney was testifying to his "belief and
understanding" of what the video showed. (Tr. Vol. II at 544.) The trial court further
instructed the jury that it was for the jury to decide the ultimate issue of whether the
individuals in the video had cocaine.
{¶ 8} The state's presentation of the surveillance footage contained 25 separate
clips purporting to document at least 15 drug sales. All of the video clips show activity from
March 29, 2016, the day police executed their search warrant of the house. In his narration
of the surveillance footage, Detective Gauthney identified Walker, Groce, and Dent, as well
as other individuals who appear in the footage. Detective Gauthney testified that video clips
16 and 17 show Walker making at least two drug sales. Further, Detective Gauthney
testified that video clips 1, 2, 3, 5, 6, and 20-24 show men preparing crack cocaine and
conducting drug transactions inside the residence. Walker is present, seen walking on
crutches, in video clips 12, 13, 15, 16, and 17.
{¶ 9} Detective Gauthney also testified about the activities of the other men
captured on video. Video clips 1, 5, and 20-24 show Brandon appearing to prepare drugs
for sale and/or conducting drug transactions. Video clips 2, 3, and 6 show Groce preparing
baggies of what appears to be crack and selling those baggies. In video clip 9, Groce is seen
leaving the house with a baggie. Video clips 18 and 19 show Groce working in the kitchen,
cutting up what Detective Gauthney testified appears to be a large rock of cocaine, as well
as exchanging drugs for money.
{¶ 10} Detective Gauthney further testified that video clip 7 shows an apparent drug
transaction, and it also shows Dent working with Groce to adjust the surveillance camera.
Groce and Dent spend approximately 14 minutes adjusting the camera. Video clips 10 and
No. 17AP-588 4
11 show Groce and Dent working together and individually to prepare what appears to be
crack cocaine for sale. More specifically, these videos show Dent weighing crack and giving
it to Groce to put in a baggie, and it further shows Groce and Dent working together as Dent
breaks down a large chunk of crack, weighs the pieces, and bags them.
{¶ 11} Video clips 12, 13, and 15 show Walker, Groce, and Dent all working together.
In video 12, the three men are seen packing baggies of what appears to be crack cocaine.
Dent appears to watch as Groce cooks crack, and Dent then appears to inspect the product.
At one point, Dent hands Walker a baggie with a large piece of crack that Detective
Gauthney estimates to be approximately one-fourth of an ounce, and Walker inspects the
baggie and hands it back. It appears the three men are talking to each other as they prepare
their product. Video clip 12 also shows Dent and Walker counting large wads of cash. Video
clip 13 shows Walker, Dent, and Groce talking in the kitchen. Dent and Walker are eating
something while they count money. In video clip 15, Dent and Walker are present while
Groce breaks off a piece of crack and weighs it.
{¶ 12} In video clip 16, Walker appears to cook crack cocaine and then conduct a
transaction. Again in video clip 17, Walker is seen cooking what appears to be crack cocaine.
While Walker is cooking, Groce walks in, carrying cash, with an unidentified individual. It
then appears that Groce places drugs in and removes drugs from the same cabinet where
police seized drugs during their search. The surveillance footage also shows police entering
the house approximately three hours after the defendants are last seen on camera.
{¶ 13} During the search, police found cocaine in the kitchen cabinet as well as in
other places inside the house. The Columbus Police Crime Laboratory tested and weighed
the drugs. The total weight of cocaine seized from the house was 28.942 grams. Detective
Gauthney testified that the total value of that cocaine was $1,400. Lisa Malloure, the
analyst from the Columbus Police Crime Laboratory, explained the difference between
powder cocaine and crack cocaine, testifying that powder cocaine is "cook[ed]," or
processed, into crack cocaine. (Tr. Vol. IV at 821.) Malloure testified she examined several
items seized from the house, and she confirmed the presence of cocaine in a measuring cup
and on two scales.
{¶ 14} Additionally, police seized three guns during the execution of the search
warrant. The parties stipulated that all three handguns were operable.
No. 17AP-588 5
{¶ 15} At the conclusion of trial, the jury returned guilty verdicts on all counts
related to Walker. However, the jury found Walker did not possess a firearm during these
offenses and, thus, did not attach the accompanying firearm specifications. Following a
July 20, 2017 sentencing hearing, the trial court sentenced Walker to an aggregate prison
term of 20 years. The trial court journalized Walker's convictions and sentence in a July 21,
2017 judgment entry. Walker timely appeals.
II. Assignments of Error
{¶ 16} Walker assigns the following errors for our review:
[1.] Walker's convictions for engaging in a pattern of corrupt
activity, illegal manufacture of drugs, possession of cocaine,
and trafficking in cocaine, are not supported by sufficient
evidence to satisfy the requirements of the due process clause
of the Fourteenth Amendment to the US Constitution.
[2.] The admission of the lead detective's narration of multiple
video clips from the home security surveillance system and his
opinions that the images showed Walker engaging in the drug
offenses charged in the indictment, violated the Rules of
Evidence, invaded the province of the jury, and deprived him
of his right to due process and a fundamentally fair jury trial
under the Fifth, Sixth, and Fourteenth Amendments to the US
Constitution.
[3.] The admission of photographs of anti-"snitch" and gang
membership tattoos of a co-defendant (who did not proceed to
trial) and the lead detective's testimony about witnesses'
hypothetical fears of cooperating with law enforcement
violated the Rules of Evidence and deprived Walker of his right
under the confrontation clause and to due process and
fundamentally fair jury trial under the Fifth, Sixth, and
Fourteenth Amendments to the US Constitution.
[4.] Walker was denied his right to due process and a
fundamentally fair jury trial under the Fifth, Sixth and
Fourteenth Amendments to the US Constitution due to
improper closing remarks by the prosecutor: A) falsely
representing to the jury that the home security video recording
equipment was motion activated, B) expanding the scope of the
corrupt activity count beyond the predicate acts listed in the
indictment, and C) urging the jury to consider the erroneously
admitted anti-"snitch" tattoo photographs for a forbidden
purpose.
No. 17AP-588 6
[5.] Walker was denied his right to the effective assistance of
counsel as guaranteed by the Sixth and Fourteenth
Amendments to the US Constitution.
[6.] The prosecutor's peremptory strike of an African-American
juror on account of her race violated Walker's rights under the
equal protection clause of the Fourteenth Amendment to the
United States Constitution.
[7.] The trial court's failure to merge Walker's RICO conviction,
trafficking convictions, and manufacturing conviction for
sentencing violated R.C. 2941.25 and/or R.C. 2929.14 and his
rights under the double jeopardy clause of the Fifth and
Fourteenth Amendments to the United States Constitution and
Article I, Section 10 of the Ohio Constitution.
[8.] The trial court's denial of Walker's motion to disclose
information regarding the confidential informant violated
Brady and deprived him of his right to due process and a
fundamentally fair jury trial under the Fifth, Sixth, and
Fourteenth Amendments to the US Constitution.
III. First Assignment of Error – Sufficiency of the Evidence
{¶ 17} In his first assignment of error, Walker argues his convictions were not
supported by sufficient evidence.
{¶ 18} Whether there is legally sufficient evidence to sustain a verdict is a question
of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy.
Id. The relevant inquiry for an appellate court is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier of fact to
find the essential elements of the crime proven beyond a reasonable doubt. State v.
Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio
St.3d 255, 2006-Ohio-2417, ¶ 37.
A. Engaging in a Pattern of Corrupt Activity
{¶ 19} Walker was convicted of one count of engaging in a pattern of corrupt activity.
Pursuant to R.C. 2923.32(A)(1), Ohio's Racketeer Influenced and Corrupt Organizations
("RICO") statute, "[n]o person employed by, or associated with, any enterprise shall
conduct or participate in, directly or indirectly, the affairs of the enterprise through a
pattern of corrupt activity." As defined in R.C. 2923.31(I), corrupt activity includes
"engaging in, attempting to engage in, conspiring to engage in, or soliciting, coercing, or
No. 17AP-588 7
intimidating another person to engage in" conduct including the predicate offenses of
possession, manufacturing, and trafficking of drugs. See also State v. Johnson, 10th Dist.
No. 13AP-997, 2015-Ohio-3248, ¶ 61-62.
{¶ 20} Walker argues the evidence was insufficient to show he engaged in a "pattern"
of corrupt activity. More specifically, he asserts that the only evidence at trial showed
alleged drug activity all occurring within a few hours of the same day and, therefore, there
was insufficient evidence to demonstrate the requisite longevity of a "pattern" of corrupt
activity. The state responds that the definition of "pattern of corrupt activity" contained in
R.C. 2923.31 does not contain a duration requirement. Pursuant to R.C. 2923.31(E),
" '[p]attern of corrupt activity' means two or more incidents of corrupt activity * * * that are
related to the affairs of the same enterprise, are not isolated, and are not so closely related
to each other and connected in time and place that they constitute a single event."
{¶ 21} Despite the lack of a durational requirement in the statutory definition,
Walker argues there was insufficient evidence here to conclude he engaged in a pattern of
corrupt activity. While R.C. 2923.32 does not contain a durational requirement, it
nonetheless requires that the defendant be "associated" with an "enterprise." R.C.
2923.32(A)(1); State v. Sparks, 12th Dist. No. CA2013-02-010, 2014-Ohio-1130, ¶ 19, citing
State v. Campbell, 5th Dist. No. 07-CA-A-08-0041, 2008-Ohio-2143, ¶ 23. As Walker
notes, the Supreme Court of Ohio has emphasized that "merely committing successive or
related crimes is not sufficient to" prove there was a pattern of corrupt activity. State v.
Schlosser, 79 Ohio St.3d 329, 333 (1997). Additionally, "[b]oth the federal and Ohio RICO
statutes require an 'enterprise.' " Id. Pursuant to R.C. 2923.31(C), " '[e]nterprise' includes
any individual, sole proprietorship, partnership, limited partnership, corporation, trust,
union, government agency, or other legal entity, or any organization, association, or group
of persons associated in fact although not a legal entity."
{¶ 22} In Boyle v. United States, 556 U.S. 938 (2009), the United States Supreme
Court set forth a test for determining when there is an association-in-fact enterprise.
Appellate courts of this state have concluded the Boyle test applies to the definition of
enterprise utilized in R.C. 2923.31(C). See State v. Dodson, 12th Dist. No. CA2010-08-191,
2011-Ohio-6222, ¶ 20; State v. Yavorcik, 8th Dist. No. 104465, 2018-Ohio-1824, ¶ 80;
State v. Christian, 2d Dist. No. 25256, 2016-Ohio-516, ¶ 26; State v. Kozic, 7th Dist. No. 11
No. 17AP-588 8
MA 135, 2014-Ohio-3807, ¶ 105-07; State v. Birdsong, 11th Dist. No. 2013-L-003, 2014-
Ohio-1353, ¶ 46. Under the Boyle test, "an association-in-fact enterprise must have at least
three structural features: a purpose, relationships among those associated with the
enterprise, and longevity sufficient to permit these associates to pursue the enterprise's
purpose." Boyle at 946. Thus, we agree with Walker that longevity is among the factors to
be considered in determining whether there is sufficient evidence of a pattern of corrupt
activity.
{¶ 23} The state argues that although longevity may be a proper consideration in
determining whether a defendant was part of an enterprise, the "longevity" itself need last
only long enough to permit the members of the enterprise to pursue the enterprise's
purpose. In other words, the state submits that there is nothing prohibiting the "longevity"
of an enterprise to occur over a single day. However, the Supreme Court of Ohio has stated
that a pattern of corrupt activity under R.C. 2923.32(A)(1) " 'must include both a
relationship and continuous activity, as well as proof of the existence of an enterprise.' "
(Emphasis added.) State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, ¶ 13, quoting
State v. Dudas, 11th Dist. No. 2008-L-109, 2009-Ohio-1001, ¶ 46. The use of the word
"continuous" seems to contemplate that the activity occurs over some not insignificant
period of time.
{¶ 24} Though the state is correct that the pertinent statutes and case law do not
define "longevity" in terms of finite, quantifiable amounts of time, the framework of the
Boyle test is instructive in that the requirement of longevity relates back to the requirement
of the enterprise's purpose and the relationships of the enterprise's associates. Sufficient
longevity is required to determine whether there is a common purpose and whether the
associates have relationships in furtherance of that purpose. This court has not had
occasion to determine what length of time is sufficient to demonstrate longevity under the
Boyle test, but other Ohio appellate districts who have considered the matter have approved
longevity of at least a month or predicate offenses occurring on different dates at different
locations. See State v. Montoya, 12th Dist. No. CA2012-02-015, 2013-Ohio-3312, ¶ 55 ("the
transactions transpired over the course of a month, indicating some longevity"); State v.
Sultaana, 8th Dist. No. 101492, 2016-Ohio-199, ¶ 30 ("the fact that these transactions
occurred on different dates and locations demonstrates the longevity of the enterprise");
No. 17AP-588 9
State v. Kozic, 7th Dist. No. 11 MA 160, 2014-Ohio-3788, ¶ 64 ("the burglaries occurred
over the span of months," indicating sufficient longevity under the Boyle test).
{¶ 25} Here, all of the predicate offenses occurred on the same day in the same
location. Moreover, the state presented no evidence that the relationships of these men
extended beyond a single day. The cocaine purchased by the confidential informant as part
of the controlled buys during Detective Gauthney's investigation was not part of the
indictment, and the state does not argue those controlled buys are attributable to Walker.
While the surveillance footage obtained from the house clearly shows Walker and his
codefendants working together on March 29, 2016, there is no other evidence in the record
demonstrating that the codefendants worked together in furtherance of a common purpose
for any length of time preceding their arrest. See H.J. Inc. v. Northwestern Bell Tel. Co.,
492 U.S. 229, 241-43 (1989) (noting "[p]redicate acts extending over a few weeks or months
and threatening no future criminal conduct do not" show continuous racketeering activity,
noting the goal of the RICO laws was to combat "longterm criminal conduct," and stating
the predicate offenses need to be attributable to the defendant "operating as part of a long-
term association that exists for criminal purposes").
{¶ 26} Additionally, turning back to the definition of "pattern of corrupt activity" in
R.C. 2923.31(E), the revised code specifically requires that the two or more predicate
incidents of corrupt activity "are not isolated." Because the state limited its presentation of
evidence to what was captured on surveillance video on March 29, 2016, the state did not
put forth sufficient evidence that these predicate offenses were not isolated. For these
reasons, we conclude the evidence here was insufficient to satisfy both the longevity prong
of the Boyle test and the statutory definition of a pattern of corrupt activity.
{¶ 27} This conclusion should not be construed to suggest that the predicate
offenses underlying a charge of engaging in a pattern of corrupt activity can never occur on
the same day, as different facts or a more complete exploration of the relationships of the
associates of an enterprise may compel a different conclusion in a different case. Had the
state presented additional evidence in furtherance of the relationship among the
codefendants and how that relationship facilitated a common purpose, including, but not
limited to, evidence tending to establish that Walker or his codefendants had previously
spent time together in the house, that any of them had an ownership or tenancy interest in
No. 17AP-588 10
the house, or that any of them had worked together on another day, we might be compelled
to reach a different conclusion. Instead, we hold that on these specific facts, where the state
put forth no evidence that these men worked together beyond the single day of the
surveillance video, there is insufficient evidence for a trier of fact to conclude beyond a
reasonable doubt that Walker engaged in a pattern of corrupt activity as that term is defined
through the statute and relevant case law.
B. Fifth-Degree Felony Trafficking in Cocaine
{¶ 28} Walker next argues there was insufficient evidence to support his convictions
for two counts of fifth-degree felony trafficking in cocaine. R.C. 2925.03(A)(1) provides
that "[n]o person shall * * * [s]ell or offer to sell a controlled substance or a controlled
substance analog."
{¶ 29} Walker's convictions for fifth-degree felony trafficking in cocaine relate to the
surveillance video in video clips 16 and 17. On appeal, Walker argues the state did not
produce sufficient evidence that the substance sold in those video clips was, in fact, cocaine.
Walker asserts that because the state did not put forth laboratory or expert opinion that the
substance in those video clips was cocaine, the state did not meet its burden.
{¶ 30} Because the substance sold during those transactions was not recovered by
police, the state acknowledges that its case as it relates to these two counts is based on
circumstantial evidence. "Circumstantial evidence is the 'proof of facts by direct evidence
from which the trier of fact may infer or derive by reasoning other facts in accordance with
the common experience of mankind.' " (Internal quotations omitted.) State v. Robinson,
10th Dist. No. 17AP-5, 2018-Ohio-1809, ¶ 20, quoting State v. Griesheimer, 10th Dist. No.
05AP-1039, 2007-Ohio-837, ¶ 26. Circumstantial evidence has the same probative value
as direct evidence. Robinson at ¶ 20; State v. Teitelbaum, 10th Dist. No. 14AP-310, 2016-
Ohio-3524, ¶ 120. "[C]ircumstantial evidence is sufficient to sustain a conviction if that
evidence would convince the average mind of the defendant's guilt beyond a reasonable
doubt." State v. Heinish, 50 Ohio St.3d 231, 238 (1990). As relevant here, circumstantial
evidence can be used to prove the identity of the controlled substance at issue in a charge
of trafficking in drugs under R.C. 2925.03. Robinson at ¶ 19-32.
{¶ 31} The video footage from clips 16 and 17 show Walker engaging in a transaction
of small baggies. Police found similar small baggies of crack cocaine that weighed less than
No. 17AP-588 11
5 grams. Additionally, police recovered scales with cocaine residue, weights, baggies, and
a measuring cup with cocaine residue from the house, and the video footage showed the
men counting stacks of cash, all of which is circumstantial evidence of drug trafficking. See
State v. Phillips, 10th Dist. No. 14AP-362, 2014-Ohio-4947, ¶ 19. The surveillance footage
also showed the buyers hiding their purchases, further circumstantial evidence that the
transaction was not lawful. Based on the entire record, we conclude there was sufficient
evidence that a trier of fact could conclude beyond a reasonable doubt that the substance
Walker sold related to the two fifth-degree felony charges of trafficking in drugs was, in fact,
cocaine.
C. Illegal Manufacture of Drugs
{¶ 32} Walker next argues there was insufficient evidence to sustain his conviction
for the illegal manufacture of drugs. R.C. 2925.04 provides "[n]o person shall * * *
knowingly manufacture or otherwise engage in any part of the production of a controlled
substance." Similar to his argument related to the fifth-degree felony convictions of
trafficking in cocaine, Walker argues the state did not provide evidence that the substance
he appeared to be "cooking" on the surveillance footage was, indeed, crack cocaine. Walker
asserts the state's failure to provide laboratory or expert identification of the substance in
the video footage he appears to be cooking prohibits his conviction for the illegal
manufacture of drugs.
{¶ 33} Again, the state presented sufficient circumstantial evidence that the product
Walker was seen "cooking" in the surveillance footage was, in fact, crack cocaine. Both
Detective Gauthney and Malloure testified to the process of creating crack cocaine from
powdered cocaine by mixing it with baking soda and heating the mixture. The scales and
measuring cups recovered from the house had cocaine residue on them, and police
recovered cocaine from the kitchen cabinet during the search warrant raid. We conclude
this is sufficient evidence for a reasonable trier of fact to infer, beyond a reasonable doubt,
that the substance Walker was "cooking" was crack cocaine. Thus, there was sufficient
evidence to support Walker's conviction of illegal manufacture of drugs.
D. First-Degree Felony Trafficking in Cocaine and Possession of Cocaine
{¶ 34} Finally under this assignment of error, Walker argues there was insufficient
evidence to sustain his convictions of first-degree felony trafficking in cocaine under R.C.
No. 17AP-588 12
2925.03 and first-degree felony possession of cocaine under R.C. 2925.11. Both of these
charges relate to the 28.9 grams of cocaine police recovered from the house during the
execution of the search warrant.
{¶ 35} Possession is an explicit element of the offense of possession of cocaine under
R.C. 2925.11, which requires the offender must "knowingly obtain, possess, or use a
controlled substance." To be guilty of first-degree felony trafficking in cocaine, the offender
must knowingly "[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." Thus,
possession is an implicit element of trafficking in cocaine under R.C. 2925.03(A)(2). State
v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, ¶ 30 ("[i]n order to ship a controlled
substance, deliver it, distribute it, or prepare it for shipping, etc., the offender must 'hav[e]
control over' it," citing the definition of "possession" contained in R.C. 2925.01(K)). Here,
Walker argues there was insufficient evidence that he possessed the 28.9 grams of cocaine
that forms the basis of these two charges.
{¶ 36} Walker argues he could not be convicted of these two counts because he was
not present at the house at the time of the search. However, "Ohio courts have rejected the
proposition that 'the underlying drug possession offense * * * occurs only at the moment
the police execute the search warrant.' " State v. Walker, 10th Dist. No. 14AP-905, 2016-
Ohio-3185, ¶ 85, quoting State v. Benton, 8th Dist. No. 82810, 2004-Ohio-3116, ¶ 29.
Moreover, possession of drugs may be actual or constructive. State v. Pilgrim, 184 Ohio
App.3d 675, 2009-Ohio-5357, ¶ 27 (10th Dist.), citing State v. Saunders, 10th Dist. No.
06AP-1234, 2007-Ohio-4450, ¶ 10. Actual possession occurs when a person has an item
within his immediate physical control. Pilgrim at ¶ 27, citing Saunders at ¶ 10.
Constructive possession, on the other hand, occurs "when a person knowingly exercises
dominion and control over an object, even though the object may not be within the person's
immediate physical possession." Pilgrim at ¶ 27, citing State v. Hankerson, 70 Ohio St.2d
87 (1982), syllabus. Circumstantial evidence, on its own, is sufficient to support a finding
of constructive possession. Pilgrim at ¶ 27.
No. 17AP-588 13
{¶ 37} The surveillance footage here showed Walker and his codefendants were the
only ones handling the cocaine. Police found cocaine in the kitchen cabinet and in a drink
box, the same locations the surveillance showed the men storing their cocaine throughout
the course of the day. As Detective Gauthney testified, had anyone else been in the kitchen
after Walker and his codefendants left the house, the surveillance system would have
captured that activity.
{¶ 38} Moreover, to the extent Walker argues the video footage tends to indicate that
Groce and Dent were the ones who possessed the larger quantities of cocaine, we note that
Walker and his codefendants were each charged for the principal offense and as a
complicitor. R.C. 2923.03(F) provides that "[a] charge of complicity may be stated in terms
of this section, or in terms of the principal offense." Thus, we conclude there was sufficient
evidence for the trier of fact to conclude Walker constructively possessed the cocaine for
the offenses of first-degree felony trafficking and first-degree felony possession.
{¶ 39} Additionally, there was sufficient evidence that Walker had the requisite
intent to support his conviction for trafficking in cocaine. The surveillance footage captured
Walker and his codefendants trafficking small rocks of crack cocaine, so the jury could
reasonably infer that Walker and his codefendants had the same intent for the bulk amount
of cocaine police recovered from the house. Accordingly, we conclude sufficient evidence
supports Walker's convictions for trafficking in cocaine and possession in cocaine under
Counts 2 and 3 of the indictment.
{¶ 40} Thus, having found sufficient evidence supports Walker's convictions for
trafficking in cocaine, possession of cocaine, and illegal manufacture of drugs, and also
having found insufficient evidence to support Walker's conviction for engaging in a pattern
of corrupt activity, we sustain in part and overrule in part Walker's first assignment of error.
IV. Second Assignment of Error – Narration of the Surveillance Video
{¶ 41} In his second assignment of error, Walker argues the trial court erred in
allowing Detective Gauthney to provide narrative testimony of the surveillance footage.
{¶ 42} Generally, the admission or exclusion of evidence lies in the sound discretion
of the trial court. State v. Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 33, citing
State v. Bartolomeo, 10th Dist. No. 08AP-969, 2009-Ohio-3086, ¶ 24. An abuse of
No. 17AP-588 14
discretion implies that the court's attitude was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 43} Pursuant to Evid.R. 602, "[a] witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter." Walker argues Detective Gauthney lacked the requisite personal
knowledge of the activities depicted in the surveillance video in order to permit him to
render lay opinion testimony about what was happening. As the state notes, however,
Detective Gauthney was the lead investigator in this matter, he seized the surveillance
system from the home, reviewed all the images as part of his investigation, and, through his
testimony, identified the individuals on the video and explained how the images were
reviewed for suspected criminal activity. Thus, although Detective Gauthney did not
personally make or appear in the surveillance video, he had personal knowledge of the
contents of the video as it related to his investigation.
{¶ 44} Walker additionally argues that Detective Gauthney offered impermissible
lay opinion testimony about the activities depicted in the video. Evid.R. 701 permits a lay
witness to offer an opinion or inference that is "(1) rationally based on the perception of the
witness and (2) helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue." Here, Detective Gauthney limited his testimony to his
opinions, based on his experience in law enforcement and investigating narcotics cases, of
what he thought the video depicted in terms of drug trafficking and manufacture.
{¶ 45} Additionally, the trial court provided a limiting instruction to the jury as
follows:
As the witness speaks to and answers questions about this
video, folks, that the State is introducing, he may or may not
refer to the illicit substance of cocaine. The idea that this
witness may refer to a substance as cocaine is actually an
ultimate issue that you as fact finders must determine in this
case whether the substance is indeed cocaine because it's an
essential element of some of the offenses charged in the
indictment.
When this witness, if or when he refers to a substance as
cocaine or crack cocaine, he is - - I'm giving you a blanket
instruction now that every time he refers to that it is his belief
that that substance is cocaine or crack cocaine, but you may
ultimately decide whether or not you believe it is. Okay?
No. 17AP-588 15
(Tr. Vol. III at 594.) We presume a jury follows the court's instructions. State v. Morock,
10th Dist. No. 14AP-559, 2015-Ohio-3152, ¶ 18, citing State v. Raglin, 83 Ohio St.3d 253,
264 (1998).
{¶ 46} The jury was able to view the video during the trial and reach its own
conclusions about the activities it saw depicted therein. Furthermore, laboratory testing of
the items seized from the house demonstrated cocaine was present in the house. Because
the trial court appropriately limited the weight of Detective Gauthney's opinion testimony,
and in light of the other evidence presented at trial, we find no abuse of discretion in the
trial court allowing Detective Gauthney to provide testimony related to the events depicted
in the video. Accordingly, we overrule Walker's second assignment of error.
V. Third Assignment of Error – Evidentiary Rulings
{¶ 47} In his third assignment of error, Walker argues the trial court erred in certain
evidentiary rulings. More specifically, Walker asserts the trial court erred in admitting
photographs of Brandon's tattoos and Detective Gauthney's testimony about witnesses'
hypothetical fears about cooperating with law enforcement.
{¶ 48} As we stated in our analysis of Walker's second assignment of error, we
review the trial court's evidentiary rulings for an abuse of discretion. " 'A trial court has
broad discretion over the admission or exclusion of evidence, and a reviewing court
generally will not reverse an evidentiary ruling absent an abuse of discretion that materially
prejudices the affected party.' " State v. Hughes, 10th Dist. No. 14AP-360, 2015-Ohio-151,
¶ 41, quoting Darazim at ¶ 16.
{¶ 49} At issue under this assignment of error are a photograph of Brandon's tattoo
that read "Death B4 Dishonor, Stop Snitchin" and Detective Gauthney's testimony
regarding the possible significance of that tattoo. (State Ex. C-131.) Detective Gauthney
testified that people who utilize drug houses are "scared to come to court * * * and point the
finger at somebody that's accused of a crime and they feel as though they're by themselves
out in the street." (Tr. Vol. II at 506.) Walker argues this photograph and the related
testimony were not relevant and unfairly prejudicial. Evid.R. 403(A) provides that
"[a]lthough relevant, evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading
the jury."
No. 17AP-588 16
{¶ 50} Even if we were to agree with Walker that the photograph of the tattoo and
related testimony should have been excluded under Evid.R. 403(A), we find any error from
the admission of this evidence to be harmless. Where there is no reasonable possibility the
challenged evidence contributed to a conviction, the error is harmless and thus does not
constitute grounds for reversal. State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, ¶ 62.
Even if the testimony related to the tattoo was not relevant, there was ample other evidence
supporting Walker's convictions. Walker is seen on video making what appear to be drug
transactions, manufacturing cocaine, and preparing the product for sale. Thus, Walker
cannot demonstrate material prejudice from the admission of the photograph of the tattoo
and related testimony, and any error in the admission of this evidence is harmless.
{¶ 51} Thus, we overrule Walker's third assignment of error.
VI. Fourth Assignment of Error – Prosecutor's Closing Remarks
{¶ 52} In his fourth assignment of error, Walker argues the prosecutor made several
remarks during the state's closing argument that deprived Walker of his right to a fair trial.
More specifically, Walker challenges as improper and prejudicial the prosecutor's
statements (1) that represented the surveillance video equipment to be motion activated;
(2) expanded the scope of the engaging in a pattern of corrupt activity charge to events
beyond the predicate offenses listed in the indictment; and (3) urged the jury to consider
the photograph of Brandon's tattoo for an impermissible purpose.
{¶ 53} Courts afford prosecutors wide latitude in closing arguments, and
prosecutors may draw reasonable inferences from the evidence at trial, commenting on
those inferences during closing argument. State v. Hunt, 10th Dist. No. 12AP-1037, 2013-
Ohio-5326, ¶ 18. The test for prosecutorial misconduct in closing arguments "is whether
the remarks were improper and, if so, whether they prejudicially affected substantial rights
of the defendant." State v. Smith, 14 Ohio St.3d 13, 14 (1984), citing United States v. Dorr,
636 F.2d 117 (5th Cir.1981). " '[T]he touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.' "
State v. Wilkerson, 10th Dist. No. 01AP-1127, 2002-Ohio-5416, ¶ 38, quoting Smith v.
Phillips, 455 U.S. 209, 219 (1982). Thus, prosecutorial misconduct is not grounds for
reversal unless the defendant has been denied a fair trial. State v. Maurer, 15 Ohio St.3d
239, 266 (1984).
No. 17AP-588 17
A. Whether the Surveillance System is Motion Activated
{¶ 54} The first instance of alleged prosecutorial misconduct that Walker challenges
occurred after Groce's defense counsel argued in his closing that because there was a several
hour gap between the last video clip of Brandon and the forced entry of the police, it is
possible that someone else was in the kitchen during that time frame and that the large
amount of cocaine seized by police during the raid could have belonged to someone else
who left it there. The prosecutor then responded to this argument in the state's closing
argument by stating "Detective Gauthney testified that these cameras are motion activated.
They - - they come on when people move around." (Tr. Vol. IV at 982.) Defense counsel
objected to this statement, arguing Detective Gauthney did not testify that the cameras were
motion activated. The trial court then provided an instruction to the jury to remember that
"closing remarks of counsel are not evidence. They're what the attorneys believe the
evidence showed." (Tr. Vol. IV at 983.)
{¶ 55} On appeal, Walker maintains that this statement by the prosecutor was an
unfair misrepresentation of the evidence. A review of the record reveals that on cross-
examination, defense counsel attempted to get Detective Gauthney to agree that he would
have no way to be sure that the cocaine that was recovered from the kitchen cabinet during
the police raid was the same item that the video showed Groce place in the cabinet during
one of the video clips because of the three-hour time difference between the last clip of the
codefendants and when the police entered the house. The following exchange then
occurred:
Q. But you have no way of knowing whether or not that was
changed or something happened to that during the 3 hours
where we don't have video, correct?
A. Well, if there was video inside that kitchen, it would have
picked it up because there's a reason why those cameras were
inside that kitchen, to catch anybody possibly going into -- [.]
(Tr. Vol. III at 734.)
{¶ 56} The state argues that the prosecutor's statement that the cameras were
motion activated was a fair characterization of Detective Gauthney's testimony on this
matter. Having reviewed the record, we agree. Even if the cameras were not, in fact, motion
activated, the point of this testimony from Detective Gauthney is that had any other
No. 17AP-588 18
individual approached the kitchen cabinet during that three-hour period, there would have
been video footage of that occurrence. Whether we construe Detective Gauthney's
testimony as indicating that the cameras were motion activated or as indicating that the
cameras were functional during that time but that no one was in the kitchen during that
three-hour gap, the main thrust of the testimony remains the same. Defense counsel was
attempting to break the chain of control of the cocaine seized from the kitchen cabinet and
Detective Gauthney's testimony refuted that attempt.
{¶ 57} Even if the prosecutor was technically incorrect about whether the cameras
were motion activated, the point that he was making was consistent with the testimony.
Moreover, defense counsel objected to this statement at trial and the trial court instructed
the jurors to rely on their own memories of what the evidence showed. Thus, Walker does
not demonstrate that this characterization of the evidence during closing arguments
prejudiced him or deprived him of a fair trial.
B. The Existence of the Drug House Prior to March 29, 2016
{¶ 58} Walker next argues the state deprived him of a fair trial when, during its
rebuttal argument, the prosecutor commented that as of March 29, 2016, the drug house
had all of the items it would need to engage in a pattern of corrupt activity and that it was
"an ongoing place of business." (Tr. Vol. IV at 966.) Defense counsel objected that the state
was attempting to expand the predicate offenses to the charge of engaging in a pattern of
corrupt activity beyond the one day contained in the indictment. This argument relates
solely to the fairness of the trial as it relates to Walker's conviction for engaging in a pattern
of corrupt activity. Having determined in our resolution of Walker's first assignment of
error that there was insufficient evidence to support his conviction of engaging in a pattern
of corrupt activity, this argument is moot and we need not address it.
C. Arguments Related to Tattoo Photograph
{¶ 59} Lastly under this assignment of error, Walker argues the state deprived him
of a fair trial when the prosecutor, in commenting on the lack of civilian witnesses in the
case, argued that Brandon's "Death B4 Dishonor, Stop Snitchin" tattoo helps explain why
no civilian witnesses would be willing to come forward or cooperate with law enforcement.
Walker argues these comments were highly prejudicial and were intended only to urge the
No. 17AP-588 19
jury to draw an improper inference from Walker's association with Brandon about his
possible guilt.
{¶ 60} As we have noted throughout our analysis, however, the evidence of these
crimes was based entirely on the surveillance video confiscated from the house. Even
without civilian witnesses to corroborate the events in the video, there was ample evidence
of Walker's guilt. Thus, the prosecutor's remarks about Brandon's tattoo and the lack of
civilian witnesses could not have operated to deprive Walker of a fair trial.
{¶ 61} Because Walker does not show that the state deprived him of a fair trial when
the prosecutor commented on the motion activated nature of the surveillance footage or
when the prosecutor commented on Brandon's tattoo, and because Walker's argument
about the evidence related to the engaging in a pattern of corrupt activity charge is moot,
Walker's fourth assignment of error is overruled in part and moot in part.
VII. Fifth Assignment of Error – Ineffective Assistance of Counsel
{¶ 62} In his fifth assignment of error, Walker argues he received ineffective
assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel,
Walker must satisfy a two-prong test. First, he must demonstrate that his counsel's
performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first
prong requires Walker to show that his counsel committed errors which were "so serious
that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Id. If Walker can so demonstrate, he must then establish that he was
prejudiced by the deficient performance. Id. To show prejudice, Walker must establish
there is a reasonable probability that, but for his counsel's errors, the result of the trial
would have been different. A "reasonable probability" is one sufficient to undermine
confidence in the outcome of the trial. Id. at 694.
{¶ 63} In considering claims of ineffective assistance of counsel, courts indulge in a
strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101.
Walker contends his trial counsel was ineffective in (1) failing to object to Detective
Gauthney's identification of Walker; (2) failing to object to the admission of the police
report; (3) failing to request a continuity instruction related to the charge of engaging in a
No. 17AP-588 20
pattern of corrupt activity; and (4) failing to insist that the trial court correct the
prosecutor's characterization of the surveillance system as motion activated.
A. Failure to Object to Identification
{¶ 64} Walker argues his trial counsel was deficient in failing to object to Detective
Gauthney's identification of Walker as the person seen in the video. Walker asserts the
state failed to lay a foundation for Detective Gauthney as having personal knowledge to be
able to identify Walker, so his counsel's failure to object was prejudicial.
{¶ 65} The surveillance video played at trial clearly shows Walker inside the house;
the jury would have been able to identify Walker from the video even in the absence of
Detective Gauthney's affirmative identification of him. Thus, it is entirely possible that trial
counsel made the strategic decision not to object to any supposed lack of foundation.
Hughes at ¶ 58 (defense counsel's decision "not to rehash or highlight" unfavorable
evidence can be a tactical decision), citing State v. Ryan, 10th Dist. No. 08AP-481, 2009-
Ohio-3235, ¶ 77 ("[t]actical or strategic trial decisions, even if ultimately unsuccessful, will
not substantiate a claim of ineffective assistance of counsel").
B. Failure to Object to Admission of Police Report
{¶ 66} Walker next argues his trial counsel was ineffective in failing to object to the
admission of Detective Gauthney's police report as that report provided the jury with the
state's theory of Walker's guilt. Walker asserts the police report contained hearsay
statements and, thus, was inadmissible. See, e.g., Amoako-Okyere v. Church of the
Messiah United Methodist Church, 10th Dist. No. 14AP-441, 2015-Ohio-3841, ¶ 50 (noting
that a police report is generally hearsay unless it meets one of the exceptions in the Rules
of Evidence, and that "hearsay statements contained in a police report that do not have an
independent source of admissibility are inadmissible under Evid.R. 803(8)").
{¶ 67} Even if it was deficient for Walker's counsel to fail to object to the admission
of the police report, error in the admission of evidence "may be considered harmless where
such [evidence] is cumulative of other, properly admitted [evidence]." State v. Fort, 10th
Dist. No. 15AP-704, 2016-Ohio-1242, ¶ 53, citing State v. Arnold, 10th Dist. No. 07AP-789,
2010-Ohio-5622, ¶ 8. There was ample evidence of Walker's guilt in the form of the
surveillance footage; the police report was cumulative to the properly admitted evidence.
No. 17AP-588 21
Thus, Walker does not show prejudice from the admission of the police report, and thus his
counsel's failure to object does not amount to ineffective assistance.
C. Failure to Request a Continuity Instruction
{¶ 68} Walker's next alleged instance of ineffective assistance of counsel is his trial
counsel's failure to request an instruction that the offense of engaging in a pattern of corrupt
activity requires the state to prove "continuous activity." Miranda at ¶ 13. However, having
already determined Walker's conviction for engaging in a pattern of corrupt activity is not
supported by sufficient evidence, this argument is moot.
D. Failure to Insist that the Trial Court Correct the Prosecutor's
Misstatement
{¶ 69} Walker's final instance of alleged ineffective assistance of counsel is his trial
counsel failed to insist the trial court provide an affirmative instruction to the jury that
Detective Gauthney never testified the surveillance system was motion activated. Trial
counsel objected to the prosecutor's statement and the trial court provided a general
instruction that the jury was to rely on its memory of the evidence rather than the state's
characterization of it.
{¶ 70} As we noted in our resolution of Walker's fourth assignment of error, the
prosecutor's statements regarding whether the surveillance system was motion activated
were meant to convey the point that Detective Gauthney made about the lack of any video
footage of anyone else approaching the kitchen cabinet where police found the cocaine.
Had Walker's counsel insisted on an affirmative instruction that the term "motion
activated" did not appear in the testimony, it would have provided the state with an
opportunity to highlight further Detective Gauthney's testimony about no other individuals
appearing on video during that time. Thus, Walker's counsel's decision not to insist on a
more specific instruction was a matter of trial strategy and will not form the basis of a claim
of ineffective assistance of counsel. Hughes at ¶ 58.
{¶ 71} Because Walker cannot demonstrate that his trial counsel's representation
was deficient or that he suffered any prejudice from his trial counsel's representation, we
reject his claim that he received the ineffective assistance of counsel. Accordingly, Walker's
fifth assignment of error is overruled in part and moot in part.
No. 17AP-588 22
VIII. Sixth Assignment of Error – Jury Selection
{¶ 72} In his sixth assignment of error, Walker argues the trial court erred in
allowing the prosecution to exercise a peremptory challenge in violation of Batson v.
Kentucky, 476 U.S. 79 (1986). "Under well-established principles of equal protection
jurisprudence, * * * a peremptory challenge may not be used purposefully to exclude
members of a cognizable racial group from jury service solely on the basis of their race."
State v. Powers, 92 Ohio App.3d 400, 405 (10th Dist.1993), citing Batson at 84.
{¶ 73} "A court adjudicates a Batson claim in three steps." State v. Murphy, 91 Ohio
St.3d 516, 528 (2001). "First, the opponent of the peremptory challenge must make a prima
facie case of racial discrimination. Second, if the trial court finds this requirement fulfilled,
the proponent of the challenge must provide a racially neutral explanation for the
challenge." State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, ¶ 106, citing Batson at 96-
98. The third and final step requires the trial court to "decide based on all the
circumstances, whether the opponent has proved purposeful facial discrimination." Bryan
at ¶ 106, citing Batson at 98.
{¶ 74} "The prosecution's race-neutral explanation need not rise to the level of a
challenge for cause." State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 18,
citing State v. Cook, 65 Ohio St.3d 516, 519 (1992), citing Batson at 96-98. "Instead, the
issue in the second step is 'the facial validity of the prosecution's explanation. Unless a
discriminatory intent is inherent in the prosecution's explanation, the reason offered will
be deemed race neutral.' " Jennings at ¶ 18, quoting Hernandez v. New York, 500 U.S. 352,
360 (1991) (plurality opinion). On appeal, we will not reverse a trial court's ruling that finds
no discriminatory intent unless the ruling is clearly erroneous. Jennings at ¶ 18, citing
Bryan at ¶ 106, citing State v. Hernandez, 63 Ohio St.3d 577, 583 (1992).
{¶ 75} Walker's counsel made the Batson challenge to potential juror number 7,
stating "[t]hat's now two African-Americans that have been excused in this matter by the
State and * * * I don't have anything from my notes that would indicate reasons why
[potential juror number 7] should be excused." (Tr. Vol. II at 339.) The state responded
that the potential juror's father had a federal conviction and, although the potential juror
had disclosed that information in her juror questionnaire, she wanted to talk to the court
and counsel to know whether that would have any impact on her chances to be on the jury.
No. 17AP-588 23
The trial court found there was no discriminatory intent in the state's peremptory strike of
the potential juror.
{¶ 76} We conclude there is no clear error in the trial court's determination. The
state's reason for exercising a peremptory challenge was that her father had a federal
criminal conviction. The criminal history of a relative of a potential juror is a race-neutral
explanation for a peremptory strike. State v. Santiago, 10th Dist. No. 02AP-1094, 2003-
Ohio-2877, ¶ 10 ("[r]emoving a juror based on the past criminal history of him or her, or
his or her family member, is a valid, race-neutral reason for raising a peremptory
challenge"); see also State v. Powell, 9th Dist. No. 28170, 2017-Ohio-5629, ¶ 35; State v.
Lacey, 7th Dist. No. 10 MA 122, 2012-Ohio-1685, ¶ 127. The trial court was able to consider
the validity of the state's response and determined there was no discriminatory intent.
Accordingly, the trial court did not clearly err when it determined the state had credible,
race-neutral reasons for exercising its peremptory strike. We overrule Walker's sixth
assignment of error.
IX. Seventh Assignment of Error – Merger
{¶ 77} In his seventh assignment of error, Walker argues the trial court erred in
failing to merge his convictions for purposes of sentencing. In imposing Walker's sentence,
the trial court merged his convictions under Counts 2 and 3 of the indictment, first-degree
felony trafficking in cocaine and first-degree felony possession of cocaine. On appeal,
Walker asserts the trial court additionally should have merged his convictions for first-
degree felony trafficking, first-degree felony possession, and illegal manufacture of drugs
with his conviction for engaging in a pattern of corrupt activity. He additionally argues the
trial court should have merged his two fifth-degree felony convictions for trafficking in
cocaine with his first-degree felony conviction for trafficking in cocaine.
{¶ 78} In reviewing a trial court's determination of whether a defendant's offenses
should merge pursuant to the multiple counts statute, an appellate court reviews the trial
court's R.C. 2941.25 determination de novo. State v. S.S., 10th Dist. No. 13AP-1060, 2014-
Ohio-5352, ¶ 28, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1.
" 'Appellate courts apply the law to the facts of individual cases to make a legal
determination as to whether R.C. 2941.25 allows multiple convictions. That facts are
No. 17AP-588 24
involved in the analysis does not make the issue a question of fact deserving of deference to
a trial court.' " S.S. at ¶ 28, quoting Williams at ¶ 25.
{¶ 79} R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and
the defendant may be convicted of all of them.
{¶ 80} Walker argues the trial court erred when it failed to merge the offenses of
first-degree felony trafficking in cocaine, possession of cocaine, and illegal manufacture of
drugs with the offense of engaging in a pattern of corrupt activity for purposes of
sentencing. However, having already determined in our resolution of Walker's first
assignment of error that there was insufficient evidence to sustain his conviction for
engaging in a pattern of corrupt activity, his merger argument as it relates to engaging in a
pattern of corrupt activity is moot and we need not address it.
{¶ 81} Walker additionally argues, however, that his two fifth-degree felony
convictions for trafficking in cocaine should have merged for purposes of sentencing with
his first-degree felony conviction for trafficking in cocaine. "When the defendant's conduct
constitutes a single offense, the defendant may be convicted and punished only for that
offense. When the conduct supports more than one offense, however, a court must conduct
an analysis of allied offenses of similar import to determine whether the offenses merge or
whether the defendant may be convicted of separate offenses." State v. Ruff, 143 Ohio St.3d
114, 2015-Ohio-995, ¶ 24.
{¶ 82} "To determine whether two offenses are allied offenses that merge into a
single conviction, a court must evaluate three separate factors: the conduct, the animus,
and the import." State v. Harris, 10th Dist. No. 15AP-683, 2016-Ohio-3424, ¶ 42, citing
Ruff at paragraph one of the syllabus. "If any of the following is true, the offenses cannot
merge and the defendant may be convicted and sentenced for multiple offenses: (1) the
No. 17AP-588 25
offenses are dissimilar in import or significance—in other words, each offense caused
separate, identifiable harm, (2) the offenses were committed separately, and (3) the
offenses were committed with separate animus or motivation." Ruff at ¶ 25. Ultimately, if
the harm resulting from each offense is separate and identifiable, the offenses are of
dissimilar import and do not merge. Harris at ¶ 42, citing Ruff at ¶ 25.
{¶ 83} In conducting an analysis of whether two offenses are allied offenses of
similar import, the Supreme Court of Ohio directs an appellate court to look beyond the
statutory elements and to consider the defendant's conduct. "A trial court and the
reviewing court on appeal when considering whether there are allied offenses that merge
into a single conviction under R.C. 2941.25(A) must first take into account the conduct of
the defendant. In other words, how were the offenses committed?" Ruff at ¶ 25.
{¶ 84} Here, Walker argues the state relied on the more than 28 grams of cocaine
seized from the house to support all three of his trafficking convictions and, thus, those
convictions should all merge. Walker is mistaken. The cocaine seized from the house was
used to support Walker's first-degree felony trafficking conviction. However, his two fifth-
degree felony trafficking convictions related to two separate transactions for which the
cocaine was never recovered, in amounts under 5 grams each. As we discussed in our
resolution of Walker's first assignment of error, because the cocaine for those two
transactions was never recovered, the jury was required to infer the quantity based on the
other direct and circumstantial evidence. Thus, each of those two sales were their own
offenses and were unrelated to the more than 28 grams of cocaine seized from the house,
which related to his first-degree felony trafficking conviction. Accordingly, the trial court
properly rejected Walker's merger argument.
{¶ 85} For these reasons, Walker's seventh assignment of error is overruled in part
and moot in part.
X. Eighth Assignment of Error – Confidential Informant
{¶ 86} In his eighth and final assignment of error, Walker argues the trial court erred
when it denied his motion for the state to disclose information regarding the confidential
informant.
{¶ 87} Generally, "[t]he state has a privilege to withhold from disclosure the
identities of those who give information to the police about crimes." State v. Bays, 87 Ohio
No. 17AP-588 26
St.3d 15, 24 (1999). "However, the privilege must give way where disclosure of the
informant's identity would be helpful to the accused in making a defense to a criminal
charge." Id. at 24-25. An appellate court reviews a trial court's decision on a motion to
disclose the identity of a confidential informant for an abuse of discretion. Id. at 25.
{¶ 88} The Supreme Court of Ohio has held that "the identity of an informant must
be revealed to a criminal defendant when the testimony of the informant is vital to
establishing an element of the crime or would be helpful or beneficial to the accused in
preparing or making a defense to criminal charges." State v. Williams, 4 Ohio St.3d 74, 77
(1983). However, where the informant's role is limited to providing information
concerning the offense, disclosure is not required. Bays at 25.
{¶ 89} Walker additionally argues the trial court violated his rights under Brady v.
Maryland, 373 U.S. 83 (1963), when it denied his motion to compel disclosure of the
identity of the confidential informant. Under Brady, "[t]he 'suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.' " State v. Bethel, 10th Dist. No. 09AP-924, 2010-Ohio-3837, ¶ 17, quoting
Brady at 87. Evidence is "material" within the meaning of Brady "only if there exists a
'reasonable probability' that the result of the trial would have been different had the
evidence been disclosed to the defense." Bethel at ¶ 18, quoting Kyles v. Whitley, 514 U.S.
419, 433 (1995).
{¶ 90} Here, the identity of the confidential informant was not material or necessary
for Walker's defense. The informant's role was contained to Detective Gauthney's
surveillance of the house and his decision to seek a search warrant for the property. All of
the charges in the indictment related to March 29, 2016, a day on which the parties agree
the confidential informant was not present and provided no additional information to the
police. Further, all of the evidence at trial related to the indicted offenses was from the
surveillance footage and unrelated to the role of the confidential informant. Walker does
not explain how knowing the identity of the informant would have aided in his defense to
those charges.
{¶ 91} Thus, the trial court did not abuse its discretion in denying Walker's motion
to compel disclosure of the confidential informant, and the state did not violate Walker's
No. 17AP-588 27
rights under Brady by not disclosing the informant's identity. Accordingly, we overrule
Walker's eighth and final assignment of error.
XI. Disposition
{¶ 92} Based on the foregoing reasons, there was insufficient evidence to support
Walker's conviction for engaging in a pattern of corrupt activity; as such, Walker's
remaining arguments relating to his conviction for engaging in a pattern of corrupt activity
are moot. However, there was sufficient evidence to support Walker's convictions for
trafficking in cocaine, possession of cocaine, and illegal manufacture of drugs. The trial
court did not abuse its discretion in making its evidentiary rulings, the prosecutor's
statements in closing arguments did not deprive Walker of a fair trial, Walker did not
receive the ineffective assistance of counsel, the trial court did not err in ruling on Walker's
Batson challenge, the trial court did not err in declining to merge Walker's fifth-degree
felony trafficking convictions with his first-degree felony trafficking conviction, and the
trial court did not abuse its discretion in denying Walker's motion to compel the disclosure
of the identity of the confidential informant. Having sustained in part and overruled in part
Walker's first assignment of error and having overruled the portions of Walker's second,
third, fourth, fifth, sixth, seventh, and eighth assignments that are not moot, we affirm in
part and reverse in part the judgment of the Franklin County Court of Common Pleas. We
remand this matter to that court to vacate the conviction for engaging in a pattern of corrupt
activity.
Judgment affirmed in part and reversed in part;
cause remanded.
DORRIAN and BRUNNER, JJ., concur.