State v. Rardon , 112 N.E.3d 380 ( 2018 )


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  • [Cite as State v. Rardon, 
    2018-Ohio-1935
    .]
    COURT OF APPEALS
    DELAWARE COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                :      JUDGES:
    :      Hon. William B. Hoffman, P.J.
    Plaintiff - Appellee                 :      Hon. Craig R. Baldwin, J.
    :      Hon. Earle E. Wise, J.
    -vs-                                         :
    :
    BRENT RARDON                                 :      Case No. 17 CAA 04 0027
    :
    Defendant - Appellant                :      OPINION
    CHARACTER OF PROCEEDING:                            Appeal from the Delaware County
    Court of Common Pleas, Case No.
    16CR-I-08-0409
    JUDGMENT:                                           Affirmed
    DATE OF JUDGMENT:                                   May 15, 2018
    APPEARANCES:
    For Plaintiff-Appellee                              For Defendant-Appellant
    CAROL HAMILTON O'BRIEN                              CHARLES A. KOENIG
    Prosecuting Attorney                                TODD A. LONG
    Koenig & Long, LLC
    By: KIMBERLY E. BURROUGHS                           5354 North High Street
    Assistant Prosecuting Attorney                      Columbus, Ohio 43214
    Delaware Co. Prosecutor’s Office
    140 North Sandusky Street
    Delaware, Ohio 43015
    Delaware County, Case No. 17 CAA 04 0027                                           2
    Baldwin, J.
    {¶1}   Defendant-appellant Brent Rardon appeals his conviction and sentence
    from the Delaware County Court of Common Pleas on one count each of trafficking in
    drugs and possession of drugs. Plaintiff-appellee is the State of Ohio.
    STATEMENT OF THE FACTS AND CASE
    {¶2}   On August 26, 2016, the Delaware County Grand Jury indicated appellant
    on two counts of trafficking in drugs in violation of R.C. 2925.03(A)(2), one (Count One)
    a felony of the second degree and one (Count Three) a felony of the fourth degree, and
    two counts of possession of drugs in violation of R.C. 2925.11(A), one (Count Two) a
    felony of the second degree and one (Count Four) a felony of the fourth degree. The
    indictment covered the period from January 1, 2015 through September 9, 2015. At his
    arraignment on November 18, 2016, appellant entered a plea of not guilty to the charges.
    {¶3}   A jury trial commenced on February 28, 2017. The following testimony was
    adduced at trial.
    {¶4}   Keven Liston, along with Wade Kirk, founded and is the co-owner of Supzilla
    Sport Nutrition, a health and wellness business which sells supplements, vitamins, protein
    powders and other health and wellness items. Supzilla has eleven retail stores throughout
    central Ohio and Indiana. In late 2013/early 2014, appellant, who was a personal trainer,
    purchased the Powell, Ohio location and operated that location in partnership with Liston
    and other Supzilla owners.
    {¶5}   Liston testified that on September 3, 2015, he was contacted by Austin
    Pagani, who was working at the Powell store. Pagani sent Liston a picture stating that he
    did not feel comfortable selling what was in the picture. Liston then went immediately to
    Delaware County, Case No. 17 CAA 04 0027                                                3
    the Powell store and inspected and photographed the item. He testified that the item “was
    a two pound UMP [Ultimate Muscle Provider] container, which is a protein container, and
    it had packing material in there along with vials of steroids.” Trial Transcript, Vol. I at 145.
    Typically, UMP containers contain powder protein. Liston testified that based upon his
    own experience using steroids in the past, he believed that the vials found in the UMP
    container contained illegal anabolic steroids. At the time, appellant was in Nebraska.
    {¶6}   Because he was concerned with how appellant’s sale of the illegal steroids
    out of a Supzilla storefront would negatively impact the Supzilla brand and with the
    potential damage to customers, Liston contacted appellant by phone on September 4,
    2015 and told him that Austin Pagani had informed him about the anabolic steroids. Liston
    testified that he told appellant that they could no longer do business with him and that
    when appellant returned, appellant should meet Liston at the Powell location, grab his
    belongings and they could discuss buy-out options. According to Liston, appellant, who
    appeared agreeable to a buy-out, initially denied ownership of the steroids, but then
    admitted that the steroids were his. Appellant also denied selling the steroids, but,
    according to Liston, apologized for having the steroids at the store.
    {¶7}   Liston testified that he never called the police and that he also found two
    boxes with syringes and vials of liquid steroids and oral steroids in the back room behind
    the retail store and photographed them.
    {¶8}   When appellant was out of town from September 4, 2015 through
    September 8, 2015, Liston and Austin Pagani continued operating the Powell Supzilla
    store. On September 8, 2015, the Powell Police Department was contacted by Ryan
    McFann, appellant’s friend, regarding a civil matter at the Powell Supzilla. After McFann
    Delaware County, Case No. 17 CAA 04 0027                                             4
    told Officer Scott Sanford of the Powell Police Department that the business should be
    closed and that there should not be anyone in the store, the police left a message for
    appellant to get in touch with them. When the police spoke with appellant, he indicated to
    them that Liston and Wade Kirk were at the store and had changed out his account routing
    numbers for the store and that no one was supposed to be on the premises. Appellant
    also told the police that he was the only one on the lease. After determining that appellant
    was the only one on the lease, the police escorted Liston, Kirk and Austin Pagani off the
    premises. Based on information received from Liston about what was inside the store,
    Powell police obtained a search warrant and searched the Powell Supzilla location. They
    seized the UMP container, vials with pink and orange caps, and a number of syringes.
    {¶9}   At trial, Austin Pagani testified that he was hired in August of 2015 to work
    at the Powell Supzilla store. He testified that he knew that appellant was using steroids
    during this period because he was shown the box in the back of the store and observed
    appellant inject himself with steroids in the back of the store “at least a minimum of two
    times a week.” Trial Transcript, Vol. II at 214. According to Pagani, the vials of anabolic
    steroids that appellant used had either pink or orange caps and appellant told him that
    one contained testosterone cypionate and the other testosterone propionate. When asked
    if he was using steroids during this time period, Pagani stated that he was because he
    was preparing for the world championships in 2015. Appellant, he testified, showed him
    how to inject them into his buttocks and thighs. While Pagani initially obtained his personal
    supply of anabolic steroids from someone else, he testified that he asked appellant to
    supply him with DBOL (methandrostenolone) and Anavar, which is another anabolic
    steroid.
    Delaware County, Case No. 17 CAA 04 0027                                            5
    {¶10} When asked if he had ever seen appellant selling steroids out of the Powell
    Supzilla, Pagani testified that he had and that people would walk into the back of the store
    and leave with a container that he knew was empty. He testified that appellant was “very
    open” about the sale of steroids and told Pagani what he was selling, who was buying it
    and what they were buying it for. Trial Transcript, Vol. II at 218. Appellant asked him to
    give pre-packaged containers to specific individuals.     On two or three occasions, the
    people came in and the container was exchanged without any money collected. The third
    time, in September of 2015, when appellant was leaving Ohio to visit family, he asked
    Pagani to hand the customer the UMP container, collect the money and then put the
    money into a blue money bag that was near the store’s iPad –based cash register. The
    $200.00 to $300.00 that Pagani collected from the customer was not registered on the
    iPad in accordance with appellant’s instructions. When he looked into the UMP container,
    Pagani observed the same orange and pink capped vials that he had seen appellant use
    to inject himself with anabolic steroids along with silver packages of DBOL and Anavar,
    anabolic steroids.
    {¶11} Pagani testified that he saw appellant purchase various items from Ryan
    McFann, who he thought was appellant’s supplier. He further testified that he observed
    appellant open packages from McFann and split the items in the packages up.
    {¶12} Because he had never exchanged a package containing what he thought
    were illegal steroids for cash before and thought that he could get in trouble, Pagani
    testified that he contacted Keven Liston and photographs were taken of the UMP
    container. According to Pagani, between September 4, 2015 and September 8, 2015,
    attempts were made to remove the UMP container from the store. He testified that Cody
    Delaware County, Case No. 17 CAA 04 0027                                            6
    Martin, who he believed had purchased anabolic steroids from appellant, came to the
    store on September 4, 2015 and asked to use the bathroom at the back of the store.
    Pagani testified that he saw Martin take the vials that were in the UMP container and put
    them into a different container in an attempt to remove them from the store. Martin, after
    being confronted by Pagani, left the store without the steroids. On September 8, 2015,
    Ryan McFann arrived shortly after the store opened to look for the steroids in the back of
    the store and took Pagani’s store key.
    {¶13} Jessica Kaiser, who is a forensic scientist with the Bureau of Criminal
    Investigation, testified that 20 glass vials with orange caps that had been seized by the
    police tested positive for testosterone enanthate, a Schedule III controlled substance. The
    total weight was 170.20 grams. She further testified that 69 glass vials with pink caps that
    were seized contained testosterone propionate, also a Schedule III controlled substance.
    The weight was 624.36 grams.        She testified that three glass vials with pink caps
    contained 27.33 grams of testosterone propionate. Testing revealed that another vial
    seized contained 9.17 grams of testosterone enanthate although the label said
    testosterone cypionate. Kaiser testified that capsules that were seized during the search
    were found to contain 29.73 grams of methandrostenolone, a Schedule III controlled
    substance. A total of 831.50 grams of testosterone was seized during the search.
    {¶14} Over appellant’s objection on the basis of Evid.R. 404(B), the trial court
    permitted Powell Detective Ryan Pentz to testify about over 26,000 text messages
    appellant participated in between January 1, 2015 through September 8, 2015. As part of
    his investigation, Detective Pentz obtained a search warrant for appellant’s phone and
    had a forensic download performed on the phone generating a roughly 2,500 page report.
    Delaware County, Case No. 17 CAA 04 0027                                           7
    Detective Pentz testified that as he was reviewing the messages, he would write down
    certain terms and then search for them in the report. The following testimony was
    adduced when he was asked what those terms were:
    {¶15} A: You know, one of the very first terms I did a search for, because it’s a
    term I saw was steroids. And then, you know, I learned a new term, cypionate. I would
    learn a new term of CYP. I would learn a new test, testosterone. I would learn a term of
    SARMS. And I noticed how they would reference certain terms. Sometimes it might be
    - - testosterone might be referenced test. And so I just started doing research for all
    these different terms that I was learning through this report.
    {¶16} Q: Was one of those terms gear?
    {¶17} A: I learned the word gear, and learned through the report that gear was
    being referenced as steroids. So then I would do a search for gear and come up - - every
    time I could find the word gear.
    {¶18} Q: And after you did the search, you mentioned something about seeing
    the context of how that was used?
    {¶19} A: Correct. So once I found these terms and where they were at within the
    report, I would read the context of what’s going on, who is saying what, who is sending
    what, who is replying, what are they saying, and look at the context of that terminology,
    and how it’s being referenced.
    {¶20} Trial Transcript, Vol. II at 403-404.
    {¶21} Detective Pentz testified that State’s Exhibit 16 was a message between
    appellant and Hailey Clark, who had worked for appellant at the Powell Supzilla from 2014
    until May of 2015 and who testified at trial, in which appellant talked about having legal
    Delaware County, Case No. 17 CAA 04 0027                                                8
    troubles involving “roids and Supzilla.” Trial Transcript, Vol. III at 413. Appellant, in one of
    the messages to Clark that was admitted as Exhibit 16, stated when asked why he was
    being accused of selling steroids that it was “Probably cuz I have it. And I’ve gave some
    to friends out of my personal stash.” He further told Clark in a message dated September
    4, 2015 that he had “gear” at the store that Liston had found. In conversations with Cody
    Martin dated between January 22, 2015 and August 23, 2015 (Exhibit 74), appellant was
    asked by Martin how much it would cost to be hooked up with steroids and was asked if
    “tren and test for starters” would be okay. Appellant indicated to Martin that the cost would
    be $220.00 for tren and $200.00 for “test” and in later messages instructed Martin on how
    to inject the substances. Appellant also informed Martin that there were side effects from
    steroid use and, in one exchange dated April 21, 2015, sent Martin a photograph of what
    appears to be four vials of anabolic steroids in a row and indicated that they were for sale.
    The vials appear to contain “Trenbolene Enanthate,“ “Testosterone Cypionate,” “Tri Test”
    and “Masteron.” Detective Pentz testified that he researched the name of the company
    on the vials, which was Boehringer Ingelheim, and that it was a pharmaceutical company.
    {¶22} Detective Pentz also testified about the contents of conversations between
    appellant and Jake Coyler, which were admitted as Exhibit 76. On April 23, 2015, the two
    talked about “tren” and “test” in their messages and a reference was made to “Boehringer
    test”.     One of the vials that was in the photograph that appellant sent to Cody Martin
    contained “Tri Test.” In messages dated starting on January 14, 2015 between appellant
    and Jeff Yates that were admitted as Exhibit 77, appellant suggested that Yates get “on
    some gear” and recommended that Yates use “Tren, test, mast.” When asked where he
    can get some mast, appellant responded that he might have some in his personal stash
    Delaware County, Case No. 17 CAA 04 0027                                             9
    and that the cost was $85.00. On February 2, 2015, Yates sent a message to appellant
    stating that he needed “test cyp x 2 Mast and tren” and appellant indicated that he will let
    Yates know.
    {¶23} Appellant’s conversations with Josh Rodrigez were testified to by the
    Detective and admitted as Exhibit 78. In a message to appellant dated June 23, 2015,
    Rodrigez told appellant that he needed his “gear” and appellant indicated that he should
    have it by Friday and that the cost was $300.00 for the gear, which included tren.
    Detective Pentz, when asked the significance of the term “gear” used in this context,
    testified that the term was being used “as a slang word for steroids.” Trial Transcript, Vol.
    III at 453. Detective Pentz also was questioned about conversations between appellant
    and Tim Cronin, a friend of appellant’s who was a police officer in Nebraska, which were
    admitted as Exhibit 81. During the conversations, which started on June 12, 2015 and
    continued until August 14, 2015, Cronin asked appellant about Anavar and appellant
    referred him to a website named Roidsource.biz. In a message to Cronin dated August
    14, 2015, appellant asked him how much “var” he wants and Cronin indicated that he
    wants 200 tabs. Appellant then sent a message to Ryan McFann, asking how much the
    200 tabs would cost and after receiving a reply, sent a message to Cronin stating that the
    cost was $300.00. In another message, appellant informed Cronin that “var” was a light
    steroid. Appellant, in a message to Cronin dated August 14, 2015, tells Cronin that “[i]f
    you run your gear correctly you won’t get gyno”.
    {¶24} Detective Pentz testified that he discovered text message exchanges
    between appellant and Ryan McFann that led him to believe that appellant was buying
    drugs from McFann. The messages were admitted as Exhibit 83. On June 16, 2015,
    Delaware County, Case No. 17 CAA 04 0027                                            10
    McFann sent appellant a detailed list of the prices for various drugs including “Enanthate”,
    “test”, “Prop”, “Cyp”, “Tren” and “Mast”, among other items, and indicated that there was
    a $200.00 minimum order. In a message to appellant dated June 20, 2015, McFann told
    appellant that he had “a bunch of prop I over ordered” and asked appellant if he wanted
    “to work a bulk buy on em.” Throughout the messages, which date from May 4, 2015 to
    August 28, 2015, appellant indicated that he needed “cyp”, “tren”, “test” and “var” and was
    quoted prices by McFann.
    {¶25} Detective Pentz also examined appellant’s chronological messages from
    September 4, 2015 through September 8, 2015 (Exhibits 85-88).            In a message to
    appellant from Cody Martin dated September 4, 2015, Martin indicated that he could not
    get “it” because “Austin said he wasn’t’ aloud (sic).” Detective Pentz testified that this
    confirmed with what Austin Pagani had said about Cody Martin coming into the store to
    try to remove items. In another message from Ryan McFann to appellant dated
    September 4, 2015, McFann told appellant to say that they were trying to blackmail him.
    On the same date, McFann sent a message to appellant advising him to say that the UMP
    container with the “gear” in it was not his. In a September 7, 2015 message to appellant,
    McFann advised him to contact the police and act like the “gear” found in his Supzilla
    store was a “complete setup.” On September 8, 2015, appellant and McFann agreed, as
    evidenced by messages, that appellant would call the police and tell them that Kevin
    Liston and his associates had been in control of the store for a week and “anything in
    there illegal was put thwre (sic) by them in an attempt to blackmail you.” Tim Cronin, in
    a September 8, 2015 message to appellant, instructed him to tell the police that he had
    not been at the store for over a week and that he had found the steroids.
    Delaware County, Case No. 17 CAA 04 0027                                               11
    {¶26} On cross-examination, after testifying at length about the messages,
    Detective Pentz testified that prior to this case, his involvement in drug cases was pretty
    minimal and that he did not consult with an expert on steroids.
    {¶27} After the State rested, appellant called Kyle Brammer as a witness.
    Brammer testified that he worked for a sports supplement distributor and was familiar with
    the ban on pro-hormones in late 2014 or early 2015. He testified that some pro-hormones
    had not been banned and were still on the market. According to him, manufacturers of
    pro-hormones used the names of commonly known steroids for their products as a
    marketing tactic to attract more purchasers who would be intrigued that they might get
    the same result as from an illegal substance. He testified that Hi-Tech Pharmaceuticals
    produced and marketed pro-hormones under the brand names Anavar, Sustanon 250
    and Anabol which were “basically illegal precursor names, but they are not the actual
    product.” Trial Transcript, Vol. III at 585.
    {¶28} Appellant testified on his own behalf at trial. He testified that he was a
    personal trainer and body builder and that, as a body builder, he had used steroids and
    pro-hormones. Appellant testified that some common names of steroids were “ren, cyp,
    sus, EQ, Anavar,,…mast.” Trial Transcript, Vol. IV at 618. When asked if they were
    associated with anything other than steroids, appellant testified that they also were
    associated with pro-hormones. According to appellant, pro-hormones were legal to sell
    prior to their ban in 2014 and mirrored the effects of steroids. He testified that not all pro-
    hormones were banned, but that “[i]t was the compound that was banned.” Trial
    Transcript, Vol. IV at 625. Following the ban, pro-hormones which did not contain the
    Delaware County, Case No. 17 CAA 04 0027                                           12
    prohibited compounds remained to be legal to sell. Appellant testified that after the ban,
    the same names were used for the pro-hormones.
    {¶29} Prior to the ban, appellant had been selling pro-hormones. He testified that
    he had purchased pro-hormones from Ryan McFann and that, after the ban, there were
    still pro-hormones available. He testified that in early 2015, he started selling new
    supplements being developed by a company owned by McFann which were a mixture of
    legal pro-hormones and SARMS (selective androgen receptor modulators). When asked
    if he put these products on his shelf, appellant said that he did not because they did not
    have labels “and came under the shady gray area.” Trial Transcript, Vol. IV at 635.
    Appellant testified that he did not sell steroids, but sold pro-hormones. He testified that
    the vials of steroids recovered during the search of the store were not his.
    {¶30} On cross-examination, appellant admitted that he possessed small amount
    of illegal steroids or “gear” in the Powell Supzilla store.
    {¶31} The jury, at the conclusion of the evidence and the end of deliberations,
    found appellant guilty of a lesser included offense of trafficking in drugs as charged in
    Count One and possession of drugs as charged in Count Two. The jury found appellant
    not guilty of the other two counts.    The parties agreed that Count One and Two were
    allied offenses and the State elected to proceed at sentencing on Count Two due to
    merger. As memorialized in a Judgment Entry filed on April 18, 2017, appellant was
    sentenced to three years in prison and fined $10,000.00.
    {¶32} Appellant now raises the following assignments of error on appeal:
    {¶33} I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED
    THE STATE TO INTRODUCE INADMISSIBLE AND HIGHLY PREJUDICIAL EVIDENCE
    Delaware County, Case No. 17 CAA 04 0027                                              13
    OF PRIOR BAD ACTS OF THE APPELLANT, IN VIOLATION OF RULE 404(B) OF THE
    OHIO RULES OF EVIDENCE.
    {¶34} II. THE TRIAL COURT ERRED WHEN IT PERMITTED LAY WITNESS
    OPINION TESTIMONY OF THE MEANING OF APPELLANT’S COMMUNICATIONS, IN
    VIOLATION OF RULE 701 OF THE OHIO RULES OF EVIDENCE.
    {¶35} III. THE VERDICTS RETURNED BY THE JURY WERE INCONSISTENT
    WITH THE PHYSICAL EVIDENCE AND COULD NOT SUPPORT THE FINDINGS OF
    GUILTY ON COUNTS ONE AND TWO.
    {¶36} IV. THE VERDICTS WERE NOT SUPPORTED BY THE MANIFEST
    WEIGHT OF THE EVIDENCE.
    I
    {¶37} Appellant, in his first assignment of error, argues that the trial court erred in
    allowing Detective Pentz to testify about the more than 26,000 text communications
    between appellant and various other individuals between January 1, 2015 and September
    8, 2015 because this was inadmissible and highly prejudicial evidence of other bad acts
    in violation of Evid.R. 404(B).
    {¶38} Evid. R. 404(B) provides, in relevant part, as follows:
    (B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs,
    or acts is not admissible to prove the character of a person in order to show
    action in conformity therewith. It may, however, be admissible for other
    purposes, such as proof of motive, opportunity, intent, preparation, plan,
    knowledge, identity, or absence of mistake or accident.
    {¶39} R.C. 2945.59 similarly provides:
    Delaware County, Case No. 17 CAA 04 0027                                               14
    In any criminal case in which the defendant's motive or intent, the
    absence of mistake or accident on his part, or the defendant's scheme, plan,
    or system in doing an act is material, any acts of the defendant which tend
    to show his motive or intent, the absence of mistake or accident on his part,
    or the defendant's scheme, plan, or system in doing the act in question may
    be proved, whether they are contemporaneous with or prior or subsequent
    thereto, notwithstanding that such proof may show or tend to show the
    commission of another crime by the defendant.
    {¶40} As noted by the court in State v. Nucklos, 2nd Dist. Clark No. 06CA0023,
    
    2007-Ohio-1025
     at paragraph 78:
    Evid.R. 404(B) and its companion statutory provision, R.C. 2945.59,
    are concerned with extrinsic acts. “An extrinsic act is simply any act which
    is not part of the operative facts or episode of the case; i.e., it is ‘extrinsic’
    usually because of a separation of time, space, or both.” Weissenberger's
    Ohio Evidence Treatise (2006), Section 402.21. “Generally, extrinsic acts
    may not be used to suggest that the accused has the propensity to act in a
    certain manner.” State v. Crotts, 
    104 Ohio St.3d 432
    , 
    2004-Ohio-6550
    , 
    820 N.E.2d 302
    , ¶ 18.
    {¶41} “Because R.C. 2945.59 and Evid.R. 404(B) codify an exception to the
    common law with respect to evidence of other acts of wrongdoing, they must be construed
    against admissibility, and the standard for determining admissibility of such evidence is
    strict.” State v. Broom, 
    40 Ohio St.3d 277
    , 281–82, 
    533 N.E.2d 682
    , 689–90 (1988).
    Evidence to prove the “type” of person the defendant is in order to show he acted in
    Delaware County, Case No. 17 CAA 04 0027                                               15
    conformity therewith in the instant case is barred by Evid.R. 404(B). State v. Greene, 5th
    Dist. Tuscarawas No. 2012 AP 02 0018, 2012–Ohio–5624, 
    983 N.E.2d 773
    , ¶ 35.
    {¶42} The Ohio Supreme Court has set forth a three-part test for determining the
    admissibility of other acts evidence:
    The first step is to consider whether the other acts evidence is
    relevant to making any fact that is of consequence to the determination of
    the action more or less probable than it would be without the evidence.
    Evid.R. 401. The next step is to consider whether evidence of the other
    crimes, wrongs, or acts is presented to prove the character of the accused
    in order to show activity in conformity therewith or whether the other acts
    evidence is presented for a legitimate purpose, such as those stated in
    Evid.R. 404(B). The third step is to consider whether the probative value of
    the other acts evidence is substantially outweighed by the danger of unfair
    prejudice. See Evid.R 403.
    {¶43} State v. Williams, 
    134 Ohio St.3d 521
    , 2012–Ohio–5695, 
    983 N.E.2d 1278
    ,
    ¶ 20.
    {¶44} The trial court's admission of other acts evidence is reviewed under an
    abuse of discretion standard. State v. Morris, 
    132 Ohio St.3d 337
    , 2012–Ohio–2407, 
    972 N.E.2d 528
    . In order to find an abuse of discretion, we must find the trial court's decision
    was arbitrary, unconscionable, or unreasonable. Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    , 219, 
    450 N.E.2d 1140
     (1983).
    {¶45} At trial, appellant objected to Detective Pentz’s testimony about the text
    messages which covered the period from January 1, 2015 through September 8, 2015
    Delaware County, Case No. 17 CAA 04 0027                                                   16
    between appellant and various individuals. Appellant specifically argued that none of the
    messages related to the substances seized from his store on September 8, 2015.
    Appellant argued, therefore, that such evidence “constitutes 404B evidence…” Trial
    Transcript, Vol. II at 282.
    {¶46} However, we concur with appellee that the text message conversations did
    not constitute evidence of prior bad acts in violation of Evid.R. 404(B). The indictment
    alleged that appellant had trafficked in drugs and/or possessed drugs during the period
    from January 1, 2015 through September 9, 2015. As appellee argued before the trial
    court:
    [w]ith regard to the question about whether or not this is 404B evidence, it’s
    not. It’s evidence of trafficking in steroids and possession of steroids during
    the period of the indictment. Yes, for the bulk amount, we have to weigh the
    stuff that we actually recovered. But all of that evidence during the period of
    the indictment from January 1, 2015 through September 8, demonstrates
    that he [appellant] was receiving steroids, he was packaging them for sale.
    He was distributing them to other people, that he was in possession of them.
    And all of that then reflects that the steroids that were located in the back of
    his store amongst his personal items in those boxes are, in fact, his steroids.
    {¶47} Trial Transcript, Vol. II at 285.
    {¶48} We find that the evidence relates to the counts charged in the indictment
    and the circumstances surrounding appellant’s prosecution, which leaves this evidence
    outside the purview of Evid.R. 404(B). The text message conversations were not
    Delaware County, Case No. 17 CAA 04 0027                                             17
    “extrinsic acts” because they were part of the operative facts in this case and related
    directly to conduct alleged in the indictment.
    {¶49} Appellant’s first assignment of error is, therefore, overruled.
    II
    {¶50} Appellant, in his second assignment of error, contends that the trial court
    violated Evid.R.701 when it permitted lay witness opinion testimony pertaining to the
    meaning of appellant’s communications. Appellant specifically argues that the trial court
    erred in permitting Detective Pentz to testify regarding his conclusions as to the meaning
    of terms used in appellant’s over 26,000 text messages and in permitting him to testify
    regarding the believability of one witness’ testimony over appellant’s testimony.
    {¶51} Initially, we note that appellee argues that appellant did not properly
    preserve for appeal his argument relating to Detective Pentz’s opinion testimony
    regarding the meaning of terminology used in the text messages. Appellee concedes that
    at trial, appellant’s defense counsel objected twice to such testimony, but his objections
    were overruled. The trial court, in overruling the second objection, stated that Detective
    Pentz was entitled to give his opinion under Evid.R. 701.
    {¶52} Evid.R 103(A) states, in relevant part, as follows: “Effect of Erroneous
    Ruling. Error may not be predicated upon a ruling which admits or excludes evidence
    unless a substantial right of the party is affected; and
    {¶53} (1)   Objection. In case the ruling is one admitting evidence, a timely
    objection or motion to strike appears of record, stating the specific ground of objection, if
    the specific ground was not apparent from the context; or…”
    Delaware County, Case No. 17 CAA 04 0027                                             18
    {¶54} We find that appellant objected twice to Detective Pentz’s testimony and
    that he did not need to continually reassert his objection to the admissibility of such
    testimony. See State v. Davis, 10th Dist. No. 96APC04-524, 
    1996 WL 673541
    .
    {¶55} The admission or exclusion of relevant evidence rests in the sound
    discretion of the trial court. State v. Sage, 
    31 Ohio St.3d 173
    , 
    510 N.E.2d 343
     (1987),
    paragraph two of the syllabus. The term “abuse of discretion” connotes more than an
    error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or
    unconscionable. Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co., 
    60 Ohio St.3d 120
    , 122, 
    573 N.E.2d 622
    , 624 (1991).
    {¶56} “ Evid.R. 701 affords the trial court considerable discretion in controlling the
    opinion testimony of lay witnesses.” State v. Harper, 5th Dist. Licking No. 07 CA 151,
    
    2008-Ohio-6926
    , ¶ 42, citing City of Urbana ex rel. Newlin v. Downing, 
    43 Ohio St.3d 109
    ,
    113, 
    539 N.E.2d 140
     (1989) and State v. Kehoe, 
    133 Ohio App.3d 591
    , 603, 
    729 N.E.2d 431
     (12th Dist.1999). “If the witness is not testifying as an expert, the witness' testimony
    in the form of opinions or inferences is limited to those opinions or inferences which are
    (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.” Lay
    opinion, inferences, impressions or conclusions are therefore admissible if they are those
    that a rational person would form on the basis of the observed facts and if they assist the
    jury in understanding the testimony or delineating a fact in issue. 
    Id.
     “[A]n opinion or
    inference otherwise admissible is not objectionable solely because it embraces an
    ultimate issue to be decided by the trier of fact”. Evid.R. 704.
    Delaware County, Case No. 17 CAA 04 0027                                            19
    {¶57} The distinction between lay and expert-witness opinion testimony is that lay
    testimony results from a process of reasoning familiar in everyday life, while expert
    testimony results from a process of reasoning that only specialists in the field can master.
    State v. McKee, 
    91 Ohio St.3d 292
    , 
    2001-Ohio-41
    , 
    744 N.E.2d 737
    .
    {¶58} We find that the trial court did not abuse its discretion in holding that
    Detective Pentz’s lay opinion testimony regarding the text messages was admissible
    under Evid.R. 701 and that the trial court’s decision was not arbitrary, unconscionable or
    unreasonable. Detective Pentz’s testimony was rationally based on his perceptions and
    helpful to a clear understanding of the witness' testimony or the determination of a fact in
    issue. At trial, Detective Pentz testified that he reviewed a 2,500 page PDF report that
    contained 26,000 text messages taken from appellant’s phone. He testified that he did
    not review every text message, but reviewed the report, starting at the beginning. He
    further testified that he kept a note pad next to him and would write down certain terms
    and then search the report for words and phrases that matched that context. According
    to him, as he located the terms and where they were within the report, “I would read the
    context of what’s going on, who is saying what, who is sending what, who is replying,
    what are they saying, and look at the context of that terminology, and how it’s being
    referenced.” Trial Transcript, Vol. II at 404. We further note that a binder of the text
    messages was marked as more than one Exhibit and admitted at trial. The jury thus had
    the chance to independently review the text messages including, for example, Exhibit 74,
    which specifically discussed the sale of “steroids”. Furthermore, the jury also heard
    testimony from Kevin Liston and others as to the meaning of the terms used in the
    messages. Liston, for example, testified that the term “gear” was “just a short-term for
    Delaware County, Case No. 17 CAA 04 0027                                             20
    steroids where if you’re talking in public, you don’t want people to,…understand what
    you’re talking about with steroids, so you say gear.” Trial Transcript, Vol. I at 142. Austin
    Pagani also testified that “gear” referred to steroids and not pro-hormones. Trial
    Transcript, Vol. II at 225.
    {¶59} Appellant, as is stated above, also maintains that the trial court erred in
    permitting Detective Pentz to give an opinion as to the credibility of Austin Pagani. Pagani
    testified that Cody Martin, on September 4, 2015, had attempted to remove vials of
    steroids from the back room of the Powell Supzilla store but was not successful. During
    his testimony, Detective Pentz later testified about text messages found on appellant’s
    phone. The following is an excerpt from his testimony at trial:
    {¶60}    Then text messaging, 3:18 to Cody Martin: Call me when you get a
    chance. 3:19, phone call from Cody. 3:58: You get it? Cody - - from the defendant to
    Cody: You get it?
    Cody: No man.
    Defendant says why.
    Cody says: I couldn’t. Austin said he wasn’t allowed.
    {¶61} Q: Detective, did you put any significance in into this after having talked to
    Austin?
    {¶62} A: I did. Cody, after talking to Austin - -
    MR. LONG: Objection, Your Honor.
    MR. WALTER: This is already in the record as testimony from Austin.
    MR. LONG: He’s rendering a conclusion.
    That’s for the jury to reach.
    Delaware County, Case No. 17 CAA 04 0027                                                 21
    THE COURT: I’ll overrule.
    {¶63} Q: You’ve heard Austin testify here, right?
    {¶64} A: Correct.
    {¶65} Q: Did you take what you saw in the text messages and what you heard
    from Austin, what was the significance you heard from that?
    {¶66} A: It backed up what Austin was saying, that Cody came to the store to try
    to remove the packages.
    {¶67} Trial Transcript, Vol. III at 497-498.
    {¶68} Appellant later testified that he had asked Cody Martin to go to the store
    and get appellant’s personal items out of the store, including his sweater, vest, shirt and
    some shoes.
    {¶69} Appellant now argues that Detective Pentz‘s testimony was impermissible
    credibility testimony that established that Pagani was being truthful while appellant was
    not. However, Detective Pentz did not state that he believed the witness was telling the
    truth or give an explicit opinion as to Pagani’s credibility. See, for example, State v. Myers,
    5th Dist. Richland No. 03–CA–61, 
    2004 WL 1327929
     at paragraph 64 (June 9, 2004)
    (“The detective conducted an initial interview with Ms. Adkins that was not tape recorded.
    Over a week later he interviewed her and this time made a recording of the interview. The
    testimony objected to by appellant was that the second statement was consistent with the
    first statement (T. at 910). The officer was testifying to a fact, not expressing an opinion
    about the credibility or veracity of the complainant.”). We find, therefore, that the trial court
    did not err in allowing his testimony since it was not impermissible credibility testimony.
    Delaware County, Case No. 17 CAA 04 0027                                            22
    Detective Pentz was testifying as to a fact, not expressing an opinion at to Pangani’s
    credibility or veracity.
    {¶70} Appellant’s second assignment of error is, therefore, overruled.
    III
    {¶71} Appellant, in his third assignment of error, argues that the jury verdicts were
    inconsistent with the physical evidence and could not support a finding of guilty on Counts
    One and Two.
    {¶72} Appellant, in the case sub judice, was indicted on one count (Count One) of
    trafficking in drugs (testosterone), one count (Count Two) of possession of drugs
    (testosterone), one count (Count Three) of trafficking in drugs (methandrostenolone), and
    one count (Count 4) of possession of drugs (methandrostenolone). While appellant was
    found not guilty of the two counts related to methandrostenolone, he was found guilty of
    the two counts involving testosterone. Appellant notes that there was testimony at trial
    that all of the drugs were located in the same UMP container in the Powell Supzilla back
    room and argues that his convictions, therefore, were inconsistent with the physical
    evidence. According to appellant, “[t]he jury could not reasonably come to the conclusion
    that Appellant owned or possessed only part of the contents of the UMP container.”
    {¶73} An inconsistent verdict may be a result of leniency and compromise by the
    jurors, rather than being caused by jury confusion. State v. Fraley, 5th Dist. Perry App.
    No. 03CA12, 2004–Ohio–4898, ¶ 15, citing United States v. Powell , 
    469 U.S. 57
    , 
    105 S.Ct. 471
    , 
    83 L.Ed.2d 461
     (1984). See, also, State v. Ballard, 8th Dist. No. 88279, 2007–
    Ohio–4017, ¶ 18. “Consistency between verdicts on several counts of an indictment is
    Delaware County, Case No. 17 CAA 04 0027                                            23
    unnecessary where the defendant is convicted on one or some counts and acquitted on
    others; the conviction generally will be upheld irrespective of its rational incompatibility
    with the acquittal.” State v. Trewartha, 
    165 Ohio App.3d 91
    , 2005–Ohio–5697, 
    844 N.E.2d 1218
     at paragraph 15 (10th Dist), citing State v. Adams, 
    53 Ohio St.2d 223
    , 
    374 N.E.2d 137
     (1978) vacated in part on other grounds in Adams v. Ohio, 
    439 U.S. 811
    , 
    99 S.Ct. 69
    , 
    58 L.Ed.2d 103
    . Every count of a multiple-count indictment is considered to be distinct
    and independent of all the other counts; therefore, inconsistent verdicts on different
    counts do not justify overturning a verdict of guilt. 
    Id.
     (Citations omitted). As the Ohio
    Supreme Court has stated, “the sanctity of the jury verdict should be preserved and could
    not be upset by speculation or inquiry into such matters to resolve the inconsistency.”
    State v. Lovejoy, 
    79 Ohio St.3d 440
    , 444, 
    1997-Ohio-371
    , 
    683 N.E.2d 1112
    .
    {¶74} Because appellant’s argument is that the juror’s verdicts were inconsistent
    across multiple counts rather than within a single count, based on the law set forth above,
    we cannot justify overturning the jury verdict.
    {¶75} Accordingly, appellant’s third assignment of error is overruled.
    IV
    {¶76} Appellant, in his fourth and final assignment of error, maintains that the
    verdicts were against the manifest weight of the evidence.
    {¶77} In determining whether a conviction is against the manifest weight of the
    evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
    entire record, weighs the evidence and all reasonable inferences, considers the credibility
    of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
    lost its way and created such a manifest miscarriage of justice that the conviction must
    Delaware County, Case No. 17 CAA 04 0027                                              24
    be overturned and a new trial ordered.” State v. Thompkins, 
    78 Ohio St.3d 380
    , 387, 1997
    -Ohio- 52, 678 N.E. 2nd 541, superseded by constitutional amendment on other grounds
    as stated by State v. Smith, 
    80 Ohio St.3d 89
    , 
    1997-Ohio-355
    , 
    684 N.E.2d 668
    . Reversing
    a conviction as being against the manifest weight of the evidence and ordering a new trial
    should be reserved for only the “exceptional case in which the evidence weighs heavily
    against the conviction.” 
    Id.
    {¶78} Appellant's argument focuses on the credibility of the witnesses. Appellant
    argues that Kevin Liston, Austin Pagani and Detective Pentz were not credible witnesses.
    However, the weight to be given to the evidence and the credibility of the witnesses are
    issues for the trier of fact. State v. DeHass, 
    10 Ohio St.2d 230
    , 231, 
    237 N.E.2d 212
    (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and
    credibility of each witness, something that does not translate well on the written page.”
    Davis v. Flickinger, 
    77 Ohio St.3d 415
    , 418, 
    1997-Ohio-260
    , 
    674 N.E.2d 1159
    . The jury
    as the trier of fact was free to accept or reject any and all of the evidence offered by the
    parties and assess the witness's credibility. “While the jury may take note of the
    inconsistencies and resolve or discount them accordingly * * * such inconsistencies do
    not render defendant's conviction against the manifest weight or sufficiency of the
    evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 
    1999 WL 29752
     (Mar 23,
    2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 
    1996 WL 284714
    (May 28, 1996). Indeed, the jury need not believe all of a witness' testimony, but may
    accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP–604, 2003–
    Ohio–958, ¶ 21, citing State v. Antill, 
    176 Ohio St. 61
    , 67, 
    197 N.E.2d 548
     (1964).
    Delaware County, Case No. 17 CAA 04 0027                                             25
    {¶79} In the case sub judice, the jury heard the witnesses, viewed the evidence,
    which included the text messages, and heard appellant testify. There was testimony from
    Austin Pagani that he had observed appellant selling testosterone in the Powell Supzilla
    store. Kevin Liston testified that when he confronted appellant, appellant admitted to
    owning the substances found in the store. Moreover, during the text message
    conversations between appellant and numerous other individuals that were admitted,
    appellant, as noted by appellee, “discussed the use and sale of testosterone over the
    eight months leading up to this discovery of more than 800 grams of testosterone at the
    Powell Supzilla.” In text messages between Ryan McFann and appellant, the two discuss
    telling the police that Liston and others had planted the steroids in the store in an attempt
    to blackmail appellant.
    {¶80} We find, upon reviewing the facts as set forth in detail above, that this is not
    an “ ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” State
    v. Thompkins, 
    78 Ohio St.3d 380
    , 386–387, 
    678 N.E.2d 541
     (1997), quoting Martin, 20
    Ohio App.3d at 175, 
    485 N.E.2d 717
    . The jury neither lost its way nor created a
    miscarriage of justice in convicting appellant.
    {¶81} Appellant’s fourth assignment of error is, therefore, overruled.
    Delaware County, Case No. 17 CAA 04 0027                                    26
    {¶82} Accordingly, the judgment of the Delaware County Court of Common Pleas
    is affirmed.
    By: Baldwin, J.
    Hoffman, P.J. and
    Earle Wise, J. concur.
    

Document Info

Docket Number: 17 CAA 04 0027

Citation Numbers: 2018 Ohio 1935, 112 N.E.3d 380

Judges: Baldwin

Filed Date: 5/15/2018

Precedential Status: Precedential

Modified Date: 1/12/2023