State v. King , 2022 Ohio 3388 ( 2022 )

[Cite as State v. King, 2022-Ohio-3388.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, : CASE NO. CA2022-01-001
Appellee, : OPINION
9/26/2022
:
- vs -
:
STEPHANIE LEE KING, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2019 CR 01168
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant
Prosecuting Attorney, for appellee.
Daniel E. Whiteley, Jr., for appellant.
M. POWELL, P.J.
{¶ 1} Appellant, Stephanie King, appeals her convictions in the Clermont County
Court of Common Pleas for aggravated possession of methamphetamine, aggravated
possession of morphine, and possession of a fentanyl-related compound.
{¶ 2} On November 26, 2019, King was indicted by the Clermont County Grand
Jury for second-degree felony aggravated possession of drugs (methamphetamine), fifth-
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degree felony aggravated possession of drugs (morphine) and fifth-degree felony
possession of a fentanyl-related compound. King entered not guilty pleas and the matter
proceeded to a jury trial.
{¶ 3} The trial testimony and other evidence disclosed that on July 1, 2019, Union
Township Police Sergeant Rodney Combs responded to a Walmart parking lot at 3:30 a.m.
to investigate a report that a male was passed out in a truck. Upon arriving at the scene,
Sergeant Combs observed the truck exit the parking lot. Sergeant Combs followed and
initiated a traffic stop of the truck for failing to signal a left turn. Sergeant Combs found the
truck contained three occupants, consisting of a male driver, and a male and female
passenger. King was sitting in the center of the truck between the two males. The sergeant
contacted the driver, obtained identifying information for all three individuals, and returned
to his police cruiser to check for active warrants. The sergeant discovered "multiple people,"
including King, were subject to active arrest warrants.
{¶ 4} By this time backup officers, including Officer Jeffrey Joehnk, had arrived on
the scene to assist. While Sergeant Combs was conducting the warrants check, Officer
Joehnk was observing the truck and saw King making furtive movements. Specifically,
Officer Joehnk saw King "raising up off the seat" and then "going towards the floorboard."
Officer Joehnk testified that he could not see King's hands, but it appeared to him that King
"was getting something from her waistband area and trying to get rid of it," or conceal
something. Officer Joehnk also noted that neither male made any movements at that time.
{¶ 5} Sergeant Combs wanted a K-9 unit to conduct an open-air sniff based in part
on his initial observations. Officer Perkins responded with his dog, Kaos. The truck's
occupants were removed from the vehicle and Kaos sniffed the truck. Kaos alerted to the
passenger side door. Based upon Kaos' alert, the truck was searched. Officers then
searched the vehicle and discovered what appeared to be illicit drugs inside an otherwise
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empty cigarette pack. The cigarette pack was located inside a Circle K bag that was on the
floorboard in the middle of the vehicle where King's feet would have been and in the area
where Officer Joehnk observed King directing her furtive movements. The search also
yielded a white purse in the truck bed which contained a "female makeup case" and a cell
phone. Inside the makeup case the police discovered two digital scales that had a powdery
residue on them consistent with methamphetamine. A black purse was also discovered in
the truck bed, which contained a medicine vial with King's name on it, three cell phones,
and a hypodermic needle. Officer Joehnk testified King had what appeared to be
hypodermic needle marks on her arms, and photographs of the needle marks were shown
to the jury and admitted at trial. Inside the truck, officers discovered "coin baggies" in plain
view on the "middle of the bench seat" where King had been sitting. Officer Joehnk
described the "coin baggies" as being consistent with bags used to store narcotics.
{¶ 6} The substances discovered in the cigarette pack found inside the Circle K bag
were submitted for laboratory analysis. The analysis revealed that the cigarette pack
contained approximately 18 grams of methamphetamine and approximately .05 grams of
acetyl fentanyl, fentanyl, and morphine.
{¶ 7} Based upon the foregoing, the jury returned guilty verdicts on all three counts.
The trial court sentenced King to an indefinite prison term of four to six years, imposed a
mandatory fine of $7,500, and ordered King to pay court costs.
{¶ 8} King now appeals her convictions, raising the following assignments of error.
{¶ 9} Assignment of Error No. 1:
{¶ 10} STEPHANIE KING'S CONVICTION WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.
{¶ 11} Assignment of Error No. 2:
{¶ 12} STEPHANIE KING'S CONVICTION WAS AGAINST THE MANIFEST
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WEIGHT OF THE EVIDENCE.
{¶ 13} King argues that her convictions were not supported by sufficient evidence
and were against the manifest weight of the evidence.
{¶ 14} "A claim challenging the sufficiency of the evidence invokes a due process
concern and raises the question whether the evidence is legally sufficient to support the
jury verdict as a matter of law." State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, ¶
165, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead, 194 Ohio
App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). "When reviewing the sufficiency of the
evidence underlying a criminal conviction, an appellate court examines the evidence in
order to determine whether such evidence, if believed, would convince the average mind of
the defendant's guilt beyond a reasonable doubt." State v. Intihar, 12th Dist. Warren No.
CA2015-05-046, 2015-Ohio-5507, ¶ 9. "The relevant inquiry is 'whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.'" State v.
Roper, 12th Dist. Clermont No. CA2021-05-019, 2022-Ohio-244, ¶ 39, quoting State v.
Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. This test "requires a
determination as to whether the state has met its burden of production at trial." State v.
Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 34. A reversal for
insufficient evidence requires the "discharge of the defendant." State v. Jones, 166 Ohio
St.3d 85, 2021-Ohio-3311, ¶ 30.
{¶ 15} A manifest weight of the evidence challenge examines the "inclination of the
greater amount of credible evidence, offered at a trial, to support one side of the issue rather
than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶
14. When determining whether a conviction is against the manifest weight of the evidence,
an appellate court "must look at the entire record, weigh the evidence and all reasonable
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inferences, consider the credibility of the witnesses, and determine whether in resolving the
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered." State
v. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶
34. But, even then, the determination of witness credibility is primarily for the trier of fact to
decide at trial. State v. Baker, 12th Dist. Butler No. CA2019-08-146, 2020-Ohio-2882, ¶ 30,
citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. This court,
therefore, "will overturn a conviction due to the manifest weight of the evidence only in
extraordinary circumstances when the evidence presented at trial weighs heavily in favor
of acquittal." State v. Kaufhold, 12th Dist. Butler No. CA2019-09-148, 2020-Ohio-3835, ¶
10, citing State v. Blair, 12th Dist. Butler No. CA2014-01-023, 2015-Ohio-818, ¶ 43. "[A]
new trial is the appropriate remedy when a reviewing court determines that a criminal
conviction is against the manifest weight of the evidence." State v. Fips, 160 Ohio St.3d
348, 2020-Ohio-1449, ¶ 10.
{¶ 16} Given these principles, it is now well established that "[t]he concepts of
sufficiency of the evidence and weight of the evidence are legally distinct." State v. Fannin,
12th Dist. Warren No. CA2020-03-022, 2021-Ohio-2462, ¶ 47, citing State v. Wright, 12th
Dist. Butler No. CA2012-08-152, 2014-Ohio-985, ¶ 10. That is to say, "[a] verdict can be
against the manifest weight of the evidence even though legally sufficient evidence supports
it." State v. Hundley, 162 Ohio St.3d 509, 2020-Ohio-3775, ¶ 80, citing State v. Robinson,
162 Ohio St. 486, 487 (1955). Because of this, "a finding that a conviction is supported by
the weight of the evidence must necessarily include a finding of sufficiency." State v.
Perkins, 12th Dist. Fayette No. CA2009-10-019, 2010-Ohio-2968, ¶ 9. This is because
legally sufficient evidence is required to take a case to the jury. State v. Hart, 12th Dist.
Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43. Therefore, although challenges to the
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sufficiency of the evidence and the manifest weight of the evidence require the application
of quantitatively and qualitatively different concepts, "[a] determination that a conviction is
supported by the manifest weight of the evidence will also be dispositive of the issue of
sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19;
State v. August, 12th Dist. Warren No. CA2018-12-136, 2019-Ohio-4126, ¶ 48.
{¶ 17} As noted above, King was convicted of three felony drug offenses all in
violation of R.C. 2925.11(A). Pursuant to that statute, "[n]o person shall knowingly obtain,
possess, or use a controlled substance or a controlled substance analog." R.C. 2901.22(B)
indicates a person acts "knowingly, regardless of purpose, when the person is aware that
the person's conduct will probably cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when the person is aware that such
circumstances probably exist."
{¶ 18} Whether a person was aware of an object's presence may be established
through circumstantial evidence. State v. York, 12th Dist. Butler No. CA2021-11-147, 2022-
Ohio-2457, ¶ 27, citing State v. Whitehead, 4th Dist. Scioto No. 20CA3931, 2022-Ohio-479,
¶ 90. "Circumstantial evidence is proof of certain facts and circumstances in a given case,
from which the jury may infer other, connected facts, which usually and reasonably follow
according to the common experience of mankind." State v. Stringer, 12th Dist. Butler No.
CA2012-04-095, 2013-Ohio-988, ¶ 31. Therefore, "[a]bsent a defendant's admission
regarding his knowledge, whether a person acts knowingly can only be determined from all
the surrounding facts and circumstances, including the doing of the act itself." State v.
Hilton, 12th Dist. Butler No. CA2015-03-064, 2015-Ohio-5198, ¶ 20. "Whether a defendant
knowingly possessed a controlled substance is a question of fact for the trier of fact." York
at ¶ 27, citing State v. Reyes, 6th Dist. Wood No. WD-02-069, 2004-Ohio-2217, ¶ 20.
{¶ 19} The terms "possess" and "possession" are defined by R.C. 2925.01(K) to
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mean "having control over a thing or substance, but may not be inferred solely from mere
access to the thing or substance through ownership or occupation of the premises upon
which the thing or substance is found." "Possession may be constructive or actual." State
v. Bollheimer, 12th Dist. Warren No. CA2019-02-014, 2020-Ohio-60, ¶ 33. "Actual
possession means appellant had the items within his immediate, physical control." State v.
Banks, 182 Ohio App.3d 276, 2009-Ohio-1892, ¶ 10 (12th Dist.). "Constructive possession
exists when one is conscious of the presence of the object and able to exercise dominion
and control over it, even if it is not within one's immediate physical possession." State v.
Lee, 12th Dist. Fayette Nos. CA2020-09-014 and CA2020-09-015, 2021-Ohio-2544, ¶ 21.
"Constructive possession may be proven by circumstantial evidence alone." State v.
Graves, 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 22. Therefore,
"[a]bsent a defendant's admission, the surrounding facts and circumstances, including a
defendant's actions, are evidence that a trier of fact may consider in determining whether
the defendant had constructive possession." State v. Fester, 12th Dist. Clermont No.
CA2019-05-043, 2021-Ohio-410, ¶ 58.
{¶ 20} There was ample evidence in the record from which the jury could have
concluded that King constructively possessed the drugs found in the cigarette pack. Officer
Joehnk testified that he observed King making furtive movements in the middle of the
vehicle, which he described as consistent with "getting something from her waistband area
and trying to get rid of it." The officer further testified he did not see any similar movements
from the driver or male passenger and noted that he found the Circle K bag, which contained
the cigarette pack, on the floorboard where King was sitting. Additionally, the officer
explained that King had an active warrant for her arrest, and that oftentimes, people with
warrants "believe that they're going to go to jail," and "they're not wanting to take that stuff
down to them to the [jail]," "[s]o a good place to get rid of it's inside of a vehicle[.]"
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{¶ 21} Officer Joehnk further testified that items related to drug possession were
discovered during the search of the truck, including coin baggies, digital scales with
suspected methamphetamine residue, and a hypodermic needle. The officer testified the
coin baggies were discovered inside the truck where King was sitting, the digital scales
were found in a makeup case located inside a purse in the truck bed, and the hypodermic
needle was found in a purse also containing a prescription vial with King's name on it.
Purses and makeup cases are typically associated with females, and it is undisputed that
King was the only female in the vehicle at the time of the traffic stop.
{¶ 22} If believed, we conclude the above testimony establishes sufficient
circumstantial evidence that King was conscious of the contraband's presence inside the
cigarette pack and was able to exercise dominion and control of the methamphetamine,
morphine, and fentanyl-related compound. See State v. Moore, 12th Dist. Warren No.
CA2014-10-121, 2015-Ohio-2466, ¶ 22-23. Although King argues the contraband at issue
could have belonged to either the driver or male passenger, who were also in the vehicle
at the time it was stopped, "[o]wnership of the controlled substance need not be proven to
establish constructive possession." State v. Adams, 12th Dist. Butler No. CA2012-11-240,
2013-Ohio-4639, ¶ 10. Thus, whether the contraband "belonged" to King does not negate
that she knowingly and constructively possessed the drugs in violation of R.C. 2925.11(A).
{¶ 23} Moreover, simply because other individuals were inside the vehicle does not
render King's convictions against the manifest weight of the evidence. See State v. Wright,
12th Dist. Butler No. CA2004-05-127, 2004-Ohio-2811, ¶ 13-18. As noted above, the jury
heard testimony regarding the other two individuals in the car, including that the male
passenger possessed a needle at the time of the stop and that the initial dispatch was
related to a male passenger passed out in the truck. It is evident from the jury's guilty verdict
that it gave greater weight to the testimony regarding the location of the contraband, as well
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as King's furtive movements near her waistband and the floorboard, and her connection to
other items discovered during the search relating to drug possession. "We must be mindful
that the original trier of fact was in the best position to judge the credibility of witnesses and
the weight to be given the evidence." Id. at ¶ 15, citing State v. DeHass, 10 Ohio St.2d 230(1967), paragraph one of the syllabus.
{¶ 24} In light of all of the foregoing, and after carefully reviewing the record, we find
that the jury did not lose its way in finding King guilty of aggravated possession of
methamphetamine, aggravated possession of morphine, and possession of a fentanyl-
related compound. Having found that King's convictions were not against the manifest
weight of the evidence, we necessarily conclude the state presented sufficient evidence to
support the jury's finding of guilty. Jones, 2013-Ohio-150 at ¶ 19.
{¶ 25} King's first and second assignments of error are overruled.
{¶ 26} Assignment of Error No. 3:
{¶ 27} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
DECLINED TO GRANT KING'S REQUEST FOR A MISTRIAL.
{¶ 28} In her third assignment of error, King argues the trial court abused its
discretion when it denied her request for a mistrial.
{¶ 29} "A trial court should not grant a motion for a mistrial unless it appears that
some error or irregularity has been injected into the proceeding that adversely affects the
substantial rights of the accused, and as a result, a fair trial is no longer possible." State v.
Thornton, 12th Dist. Clermont No. CA2008-10-092, 2009-Ohio-3685, ¶ 11, citing State v.
Reynolds, 49 Ohio App.3d 27, 33 (2d Dist.1988). The trial court's decision to grant or deny
a mistrial rests within its sound discretion, and this court will not disturb such a determination
absent an abuse of discretion. State v. Stevens, 12th Dist. Butler No. CA2009-01-031,
2009-Ohio-6045, ¶ 11, citing State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, ¶ 92;
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Thornton at ¶ 11. An abuse of discretion implies that the trial court's decision was
unreasonable, arbitrary, or unconscionable. State v. Hancock, 108 Ohio St.3d 57, 2006-
Ohio-160, ¶ 130.
{¶ 30} King moved for a mistrial during the state's direct examination of Officer
Joehnk. During its direct examination, the state presented evidence relating to a purported
ledger and $734 found in the white purse. King moved for a mistrial on several grounds,
including that the ledger and money were evidence of drug trafficking and should not have
been admitted as evidence of the possession offenses with which King was charged. After
hearing argument from the state and King's counsel, the trial court denied King's request
for a mistrial, but excluded any evidence relating to the money and ledger because it was
improper evidence pursuant to Evid.R. 404(B). Because any evidence relating to drug
trafficking was improper, the trial court directed the state not to present any additional
evidence or theory related to drug trafficking. The trial court also issued a limiting jury
instruction, wherein it instructed the jury to disregard any questions or evidence about the
money or ledger; not to consider the testimony that was previously provided relating to the
ledger and money; and not to speculate as to why the trial court decided to exclude the
evidence. In its final charge to the jury, the trial court reiterated that "[s]tatements or
answers that were stricken by the [c]ourt or which you were instructed to disregard are not
evidence and must be treated as though you had not heard them."
{¶ 31} King asserts the curative instruction was insufficient and the trial court should
have declared a mistrial because, once the jury heard the evidence relating to drug
trafficking, "the trial was tainted to an extent that King could not receive a fair trial." As this
court has observed, a trial court's decision as to whether to grant a mistrial or issue a
curative instruction to the jury is accorded great deference, as the trial court is most familiar
with the evidence and background of the case and has observed the jurors' reaction to the
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testimony or argument that caused the request for the mistrial. Thornton at ¶ 14, citing
State v. Kersey, 12th Dist. Warren No. CA2008-02-031, 2008-Ohio-6890.
{¶ 32} After our review, we find the trial court's issuance of the curative instruction,
as opposed to granting King's motion for a mistrial, was not unreasonable, arbitrary, or
unconscionable. See Hamilton v. Kuehne, 12th Dist. Butler No. CA97-10-198, 1998 Ohio
App. LEXIS 4168, *16-17 (Sept. 8, 1998). It is well established that curative instructions,
like the instruction provided by the trial court here, are presumed to be an effective way to
remedy errors that occur during trial. State v. Tyree, 12th Dist. Fayette No. CA2016-09-
012, 2017-Ohio-4228, ¶ 16. "A jury is presumed to follow instructions given by the trial
court." State v. Carpenter, 12th Dist. Butler No. CA2005-11-494, 2007-Ohio-5790, ¶ 20.
Furthermore, such specific curative instructions are generally presumed to be effective.
See State v. Ferguson, 5 Ohio St. 3d 160, 163 (1983). There is nothing in the record
indicating the jury in this case failed to follow the curative instruction given by the trial court
or that it was ineffective in remedying the state's error.
{¶ 33} Accordingly, King's third assignment of error is overruled.
{¶ 34} Assignment of Error No. 4:
{¶ 35} STEPHANIE KING WAS DEPRIVED OF HER SIXTH AMENDMENT RIGHT
TO THE EFFECTIVE REPRESENTATION OF COUNSEL AT TRIAL.
{¶ 36} King argues that her trial counsel was ineffective because he (1) failed to
advise her that she faced a mandatory prison term before rejecting a plea deal and
proceeding to trial, (2) volunteered that King was a drug user and had a drug problem, (3)
failed to object to inadmissible and prejudicial testimony, (4) failed to object to
"inappropriate" arguments by the state, and (5) failed to file an affidavit of indigency.
{¶ 37} To establish ineffective assistance of counsel, appellant must show (1)
deficient performance by counsel, that is, performance falling below an objective standard
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of reasonable representation, and (2) prejudice, that is, a reasonable probability that but for
counsel's errors, the result of the proceedings would have been different. Strickland v.
Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052 (1984); State v. Mundt, 115 Ohio
St.3d 22, 2007-Ohio-4836, ¶ 62. A "reasonable probability" is a probability that is "sufficient
to undermine confidence in the outcome." Strickland at 694. An appellate court must give
wide deference to the strategic and tactical choices made by trial counsel in determining
whether counsel's performance was constitutionally ineffective. Id. at 689. The failure to
satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel
claim. State v. Petit, 12th Dist. Madison No. CA2016-01-005, 2017-Ohio-633, ¶ 39.
{¶ 38} King initially argues her counsel was ineffective because he failed to advise
her that a conviction would result in a mandatory prison term. Due to this failure, King
claims she rejected a plea offer from the state because she was "under the impression that
she could receive community control even if the jury convicted her as charged." The record
reflects the state made two plea offers in this case, both of which were discussed on the
record the day of trial. In its first offer, the state offered to dismiss the underlying case
entirely if she pled to "some" of the charges in two other cases before the trial court and a
third case in Clermont County. The record indicates the three cases involved felonies of
the second, third, and fifth degrees. The second plea offer involved reducing count one of
the indictment to a third degree felony and similarly amending the charge in her third
Clermont County case.
{¶ 39} Upon inquiry by the trial court, King indicated she did not wish to enter into a
plea agreement because she maintained her innocence and wanted to proceed to trial. At
that point, the trial court informed King that she faced a maximum prison term of eight to
twelve years, but incorrectly stated count one carried a presumption of a prison sentence,
as opposed to a mandatory prison sentence. King's counsel did not correct the incorrect
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statement by the trial court and later stated he believed there was a presumption of a prison
sentence, but that he needed to research the issue.
{¶ 40} The state concedes defense counsel failed to correct the trial court's
misstatement but argues this does not rise to the level of ineffective assistance of counsel.
After a review, we agree. As an initial note, a counsel's failure to inform his client of the
sentencing possibilities does not necessarily require reversing the conviction on an
ineffective assistance of counsel claim. See State v. Wenker, 9th Dist. Summit No. 25185,
2011-Ohio-786, ¶ 27, citing State v. Lawson, 8th Dist. Cuyahoga No. 69899, 1996 Ohio
App. LEXIS 5631, *5-6 (Dec. 12, 1996); see also State v. Lewis, 10th Dist. Franklin No.
97APA09-1263, 1998 Ohio App. LEXIS 3429, *10 (July 21, 1998).
{¶ 41} Moreover, even assuming counsel's performance was deficient in this regard,
we find King cannot establish that "but for" counsel's alleged error, the outcome would have
been different and more favorable for King. First, the record does not support King's
contention that she rejected the state's plea offers because she believed she would be
sentenced to community control. Rather, King made clear that she wished to proceed to
trial because she was innocent.
{¶ 42} Additionally, even if King believed she would be sentenced to community
control if convicted, the record does not reflect a reasonable basis for this belief. During
the discussions before trial, the trial court informed King that to rebut the presumption of a
prison sentence, she was required to prove the instant offense was less serious and that
she was less likely to reoffend. Whether King could rebut the presumption is speculative
and the record does not suggest that she would have been successful in doing so.
Specifically, at the sentencing hearing, the trial court noted that it had reviewed the
presentence-investigative report, which detailed King's "long history" of prison sentences in
both Florida and Ohio, including a prison sentence of a "couple of years" imposed by the
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same trial judge in 2015 for a drug offense. The court indicated this has been a lifelong
struggle for King, but that she has been "given opportunities * * * to try to right this ship."
Based upon her extensive criminal history, the trial court stated that it could not "impose the
minimum [mandatory] sentence, because quite frankly, [her] history does not warrant that"
given her "numerous opportunities." The trial court further noted that, despite making some
strides in her sobriety, "these were serious charges."
{¶ 43} When considering the trial court's statements above, there is nothing in the
record to suggest the trial court would have imposed community control, even if it had the
opportunity to do so. Accordingly, King cannot establish any prejudice from counsel's failure
to advise her of the mandatory prison sentence accompanying a conviction of count one.
{¶ 44} King next maintains her counsel was ineffective because he volunteered that
King was a drug user and had a drug problem. According to King, this may have been
sound strategy in a drug trafficking case but was "a misguided strategy" in a possession
case. King takes specific issue with counsel's comments during voir dire that King was a
drug user and his elicitation on cross-examination that King admitted possession of the
hypodermic needle. Evidence that King was an active drug user establishes a motive for
drug possession rendering this evidence relevant and admissible. Counsel must have
anticipated that the state intended to introduce evidence relating to King's drug use,
including the discovery of the hypodermic needle in a purse containing a prescription bottle
in King's name and the alleged needle marks on her arms, and sought to lessen the impact
of such evidence by conceding at the outset that King was a drug user. This is consistent
with counsel's trial strategy that King should not be convicted of drug possession merely
because she was a user.
{¶ 45} As conceded by King, counsel's comments and questioning fall squarely
within trial strategy. This court has repeatedly held that trial strategy, even debatable
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strategy, is not a basis for finding ineffective assistance of counsel. State v. Bradford, 12th
Dist. Warren No. CA2010-04-032, 2010-Ohio-6429, ¶ 98; State v. Wood, 12th Dist. Madison
No. CA2018-07-022, 2020-Ohio-422, ¶ 28. It is not the role of a reviewing court to second-
guess trial strategy. State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, ¶ 52. As such,
we conclude King has failed to demonstrate that her trial counsel's performance was
deficient in the presentation of her defense in this regard. This is because it is not ineffective
assistance of counsel simply because the trial strategy was unsuccessful or there was
another possible, better strategy available. State v. Woody, 12th Dist. Clinton No. CA2019-
01-001, 2020-Ohio-621, ¶ 11, citing State v. Davis, 12th Dist. Butler No. CA2012-12-258,
2013-Ohio-3878, ¶ 25.
{¶ 46} We also reject King's claim that her trial counsel was ineffective because he
failed to object to evidence that was inadmissible pursuant to Evid.R. 403 and 404, including
the cash, paper ledger, and four cell phones, as well as testimony regarding King's needle
marks. Although King mentions Evid.R. 403 and 404 in passing, she makes no cogent
argument directed to why these rules render this evidence inadmissible. Regarding Evid.R.
403, King makes a conclusory claim that the evidence was "highly prejudicial" but fails to
suggest to us why the "probative value [of the evidence] is substantially outweighed by the
danger of unfair prejudice." Citing State v. Jones, 1st Dist. Hamilton No. C-170647, 2020-
Ohio-281, King argues that "evidence of past drug usage [is] absolutely inadmissible under
Evidence Rule 404(B)." However, Jones did not address whether evidence of past drug
usage is inadmissible under Evid.R. 404(B) but held that evidence of a murder victim's
association with drugs was irrelevant in the defense of a murder offense. King engages in
no analysis of Evid.R. 404(B) in arguing the evidence would have been excluded under the
rule had counsel objected on that basis. We decline King's invitation to construct an
argument on her behalf regarding the inadmissibility of this evidence under Evid.R. 403 and
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404(B). See In re Adoption of R.M.T., 12th Dist. Warren Nos. CA2017-12-177 and CA2017-
12-178, 2018-Ohio-1691, ¶ 14; see also State v. Quarterman, 140 Ohio St.3d 464, 2014-
Ohio-4034, ¶ 19 (noting that an appellate court is not obligated to "formulate legal
arguments on behalf of the parties").
{¶ 47} As discussed in King's third assignment of error, the record reflects King's trial
counsel objected to testimony regarding the ledger and cash, and moved for a mistrial on
the basis that the evidence was inadmissible evidence related to drug trafficking. The trial
court denied counsel's motion for a mistrial, but excluded the cash and ledger from
evidence, issued a curative instruction to the jury that it should not consider such evidence,
and admonished the state from further referencing any evidence related to drug trafficking.
The record reflects the state complied with the trial court's instruction, and there is no
evidence the jury did not follow the trial court's instruction. As such, King cannot establish
that, but for counsel's failure to more vigorously object to the evidence related to drug
trafficking, i.e., the ledger, cell phones, and cash, the outcome of the trial would have been
different.
{¶ 48} Regarding the needle marks, at least one Ohio court has held that, where a
defendant is charged with the possession of drugs, a trial counsel's failure to object to
testimony regarding needle marks on the defendant's arms does not amount to ineffective
assistance of counsel. See State v. Pariscau, 8th Dist. Cuyahoga No. 63023, 1993 Ohio
App. LEXIS 3515, *24 (July 15, 1993). This is because a claim for ineffective assistance of
counsel fails where the appellant fails to show there is a reasonable probability that the
results of the trial would have been different if this evidence were not offered or if counsel
objected to its introduction. Id. Here, the record reveals more than sufficient credible
evidence in support of King's conviction, and she has failed to demonstrate that the jury's
verdict would have been different if counsel had objected to the officer's testimony regarding
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her "needle marks." Accordingly, King fails to demonstrate how she was prejudiced by the
introduction of this evidence.
{¶ 49} King next argues her trial counsel was ineffective for failing to object to various
"inappropriate arguments by the prosecutor." First, King claims counsel should have
objected to the state's comments during its closing argument that officers' situational
awareness keeps officers safe and implying that defense counsel was trying to deceive the
jury.
{¶ 50} The trial court instructed the jury that opening statements and closing
arguments are not evidence. Consequently, it is within counsel's realm of tactical decision-
making to choose to avoid interrupting closing arguments to voice an objection. State v.
Brown, 12th Dist. Warren No. CA2002-03-026, 2002-Ohio-5455, ¶ 22, citing State v. Keene,
81 Ohio St.3d 646, 668 (1998). Therefore, the failure to object to prosecutorial misconduct
"does not constitute ineffective assistance of counsel per se, as that failure may be justified
as a tactical decision." State v. Gumm, 73 Ohio St.3d 413, 428 (1995). Additionally, it is
well established that a prosecutor's latitude in closing argument is wider on rebuttal where
the prosecutor has room to respond to closing arguments of defense counsel. State v.
Farwell, 12th Dist. Clermont No. CA2001-03-041, 2002 Ohio App. LEXIS 1888, *32 (Apr.
22, 2002).
{¶ 51} After reviewing the state's comments during closing argument in their entirety,
and given the wide latitude afforded to the prosecution on rebuttal, we conclude defense
counsel's failure to object was not indicative of deficient counsel. As the Ohio Supreme
Court has explained, experienced attorneys understand that an objection during trial could
be a detriment to their client, therefore, to find error in any single failure to object must be
so prejudicial as to essentially default the case to the prosecution or counsel must have so
consistently failed to object—despite clear reason to do so—that the failure cannot be
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attributed to reasonable strategy. State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404,
¶ 14. As a result, in order to prevail on her ineffective assistance of counsel claim, King
must show that the failure to object was a substantial violation of defense counsel's
essential duties to her. Id. at ¶ 139, citing State v. Holloway, 38 Ohio St.3d 239, 244 (1988).
King has failed to do so here. Rather, even if the comments made by the state were
objectionable, there is no evidence in the record that such comments had any influence on
the jury's verdicts or prejudiced King in any way.
{¶ 52} King also argues her counsel should have objected to the state's comment
during closing arguments that the grand jury indicted King, thereby implicitly suggesting the
grand jury had "already signed off on this case in a positive sense." A review of the
transcript reveals the prosecutor stated the following:
We told you that this all began as - - began with the filing of an
indictment, an indictment that citizens of Clermont County
rendered. Here we are today, and the State of Ohio is asking
you to find [King] guilty for all three counts on that indictment.
Isolated comments by a prosecutor are not to be taken out of context and given their most
damaging meaning. State v. Hill, 75 Ohio St.3d 195, 204 (1996). Rather, closing arguments
must be viewed in their entirety to determine whether the disputed remarks were unfairly
prejudicial. State v. Moritz, 63 Ohio St.2d 150, 157 (1980). When reviewing the state's
comments in their entirety, we fail to see any prejudicial or objectionable misconduct on
behalf of the prosecutor. Specifically, although the prosecutor mentioned King's indictment,
it did not imply that the indictment was akin to guilt and the jury was instructed thereafter
not to consider King's indictment for any purpose. As such, even if the failure to object
amounted to deficient performance, King has failed to establish she suffered any prejudice
as a result.
{¶ 53} Lastly, King argues her counsel was deficient in failing to file an affidavit of
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indigency. Because of her counsel's failure in this regard, King claims she was unable to
avoid the mandatory fine of $7,500.
{¶ 54} R.C. 2929.18(B)(1) establishes a procedure for avoiding imposition of
mandatory fines applicable to certain felony drug offenses. That section provides in
pertinent part:
If an offender alleges in an affidavit filed with the court prior to
sentencing that the offender is indigent and unable to pay the
mandatory fine and if the court determines the offender is an
indigent person and is unable to pay the mandatory fine
described in this division, the court shall not impose the
mandatory fine upon the offender.
R.C. 2929.19(B)(1). If, on the other hand, an affidavit of indigency is not filed, the court
"shall impose upon the offender a mandatory fine." State v. Moore, 135 Ohio St.3d 151,
2012-Ohio-5479, ¶ 13.
{¶ 55} It is undisputed that King's counsel did not file an affidavit of indigency,
however, trial counsel's failure to file such an affidavit "only establishes ineffective
assistance of counsel when the record shows a reasonable probability that the trial court
would have found the defendant indigent." State v. Ison, 5th Dist. Richland No. 15CA17,
2016-Ohio-1528, ¶ 37, citing State v. Foreman, 3rd Dist. Hancock No. 5-07-17, 2008-Ohio-
4408, ¶ 18; see also State v. Gore, 6th Dist. Lucas No. L-05-1242, 2006-Ohio-5622, ¶ 14.
{¶ 56} In considering whether a "reasonable probability" exists that a trial court would
have found a defendant indigent to avoid having to pay a mandatory fine, courts have
"considered factors such as age, criminal record, employment history, ability to post bond,
ability to retain counsel for trial, and the untimely affidavit of indigence[.]" Foreman at ¶ 19,
citing State v. Howard, 2d Dist. Montgomery No. 21678, 2007-Ohio-3582, ¶ 16.
{¶ 57} After a review of the record, including the presentence-investigative report,
we find no indication in this record that King would have been found indigent. The record
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reflects King was 52 years old at the time of sentencing. Although King was unemployed
at the time of the incident, she began her most recent employment as a "handyman/sub-
contracting" the month prior to the instant offense and was "working in the kitchen" while
incarcerated. Prior to that employment, the presentence-investigative report indicates King
had maintained employment between December 2020 and June 2021. As noted above,
King has a lengthy criminal record but reported being in fair health and that she had been
sober for approximately 15 months at the time of sentencing. The record also indicates
King posted bond in the amount of $1,250 and was found in possession of more than $700
at the time of her arrest. Additionally, although King was initially represented by an
appointed public defender, King retained private counsel before trial.
{¶ 58} In light of these facts, we find no reasonable probability exists that King would
have been found to be indigent and avoided the mandatory fine. King has, therefore, failed
to demonstrate ineffective assistance of counsel based upon counsel's failure to file an
affidavit of indigency.
{¶ 59} Based on all the foregoing, we conclude that King has failed to show that her
counsel's performance was deficient or that she suffered any prejudice as a result of the
alleged deficiencies. Accordingly, we overrule King's fourth assignment of error.
{¶ 60} Finding no merit to any of King's arguments raised on appeal, we affirm the
judgment of the trial court.
{¶ 61} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
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