State v. York , 2022 Ohio 2457 ( 2022 )

[Cite as State v. York, 2022-Ohio-2457.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-11-147
: OPINION
- vs - 7/18/2022
:
TYLER JACOB YORK, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2020-12-1524
Michael T. Gmoser, Butler County Prosecuting Attorney, and John Heinkel, Assistant
Prosecuting Attorney, for appellee.
Michelle Temmel, for appellant.
S. POWELL, J.
{¶ 1} Appellant, Tyler Jacob York, appeals from his conviction in the Butler County
Court of Common Pleas after a jury found him guilty of three felony drug offenses. For the
reasons outlined below, we affirm York's conviction.
{¶ 2} On May 12, 2021, a Butler County Grand Jury returned a three-count
Butler CA2021-11-147
indictment charging York with three felony drug offenses all in violation of R.C. 2925.11(A).
Those three felony drug offenses were single counts of third-degree felony aggravated
possession of methamphetamine, fifth-degree felony possession of a fentanyl-related
compound, and fifth-degree felony possession of drugs. The charges arose after York was
found to be in possession of 9.88 grams of methamphetamine, .14 grams of fentanyl, and
3.49 grams of psilocin following a traffic stop of a vehicle in Trenton, Butler County, Ohio
at approximately 1:00 a.m. on November 17, 2020.1 There is no dispute that York was a
passenger sitting in the vehicle's front seat when that traffic stop was effectuated. There
is also no dispute that the stop and subsequent search of that vehicle were constitutionally
permissible and not violative of York's rights guaranteed to him under the Fourth
Amendment to be free from unreasonable searches and seizures.
{¶ 3} On November 8, 2021, a one-day jury trial was held on the matter. During
trial, the jury heard testimony from three witnesses. The first two witnesses were Officers
David Foley with the Trenton Police Department and Officer Lindsey Schwarber with the
Middletown Police Department. Officers Foley and Schwarber testified regarding the traffic
stop and subsequent canine sniff of the vehicle in which York had been a passenger. The
third witness was Mary Kern, an investigator with the Butler County Prosecutor's Office.
Kern testified regarding the authenticity of an audio recording of two jail-house phone calls
York purportedly made while York was in jail awaiting trial. The following is a summary of
those three witnesses' trial testimony.
{¶ 4} Shortly before 1:00 a.m. on November 17, 2020, Officer Foley saw a vehicle
parked in front of an apartment located at 310 Maple Avenue, Trenton, Butler County,
1. Psilocin is a naturally occurring substance that is found in most psychedelic mushrooms. Or, as this court
has stated previously, psilocin is "a substance commonly known as hallucinogenic mushrooms." State v. Fox,
12th Dist. Fayette No. CA2008-03-009, 2009-Ohio-556, ¶ 3.
-2-
Butler CA2021-11-147
Ohio. Officer Foley was familiar with that apartment because of prior drug complaints from
the apartment's neighbors. After seeing where the vehicle was parked, Officer Foley
watched as the vehicle left the apartment's parking lot and turned out onto the street. Once
there, Officer Foley began following the vehicle and watched as someone in the vehicle
committed a littering violation by flicking a lit cigarette butt out one of the vehicle's windows.
Upon seeing this, Officer Foley initiated a traffic stop of the vehicle for littering.
{¶ 5} Once that traffic stop was effectuated, Officer Foley approached the vehicle
and explained to the vehicle's driver, C.H., why the vehicle was being stopped. As noted
above, there is no dispute that York was a passenger sitting in the vehicle's front passenger
seat when that traffic stop was made. Officer Foley then asked C.H., as well as the
vehicle's other two occupants, York and another unnamed individual, to identify
themselves. This included Officer Foley asking York for his last name. To this, Officer
Foley testified that York "stuttered" and asked "why it mattered." The record indicates
Officer Foley later positively identified York as the man sitting in the vehicle's front
passenger seat by looking at York's image filed with the Ohio Bureau of Motor Vehicles.
{¶ 6} After speaking with the vehicle's three occupants, Officer Foley then returned
to his cruiser and requested a canine unit be sent from the Middletown Police Department
so that a canine sniff could be conducted on the vehicle. Shortly thereafter, Officer
Schwarber arrived at the scene with her canine partner, Maverick. The vehicle's three
occupants were then removed from the vehicle to allow Maverick to complete his work.
York, however, did not immediately exit from the vehicle. Officer Foley testified that York
instead "started fidgeting with his seat belt," "looking around," and "looking down at the
floorboard of the car" while "holding on very tightly," with a "white-knuckle kind of death
grip," to a black backpack sitting "between his legs." There is no dispute that York left the
backpack in the vehicle when he eventually did exit from the vehicle so that Maverick could
-3-
Butler CA2021-11-147
complete his sniff of the vehicle.
{¶ 7} Upon York exiting from the vehicle, Officer Foley had York sit in the rear of
his cruiser while Officer Schwarber led Maverick around the outside of the vehicle. This
includes the area where York had just moments before been sitting in the vehicle's front
passenger seat. There is no dispute that during this canine sniff Maverick alerted on the
vehicle's passenger side door seam near to where the vehicle's passenger side door
handle is located indicating the presence of drugs inside the vehicle. Once Maverick
alerted on the vehicle's passenger side door seam, Officer Schwarber notified Officer Foley
of the alert. Officer Foley then conducted a complete search of the vehicle. This included
a search of the black backpack Officer Foley had seen York holding with a "white-knuckle
kind of death grip" between his legs a few minutes prior.
{¶ 8} Officer Foley's search of that black backpack resulted in the discovery of (1)
a "tied-off" piece of a plastic grocery bag containing a white/clear crystalized substance
that Officer Foley believed to be crystal methamphetamine, (2) a glasses case containing
two folded coupons that had within those folds two bindles of a white powdery substance
that Officer Foley believed to be fentanyl, and (3) a plastic baggy containing a brown
mushroom-like substance that Officer Foley believed to be psilocin. Officer Foley also
discovered a syringe underneath the vehicle's front passenger seat where York had been
sitting. Subsequent tests of the three substances located in the black backpack revealed
those substances were 9.88 grams of methamphetamine, .14 grams of fentanyl, and 3.49
grams of psilocin. Officer Foley did not discover any other drugs in the vehicle except for
the drugs located in the black backpack York had been holding between his legs.
{¶ 9} York was subsequently arrested and taken to jail. While in jail awaiting trial,
York's personal identification number was used to make 999 phone calls to one phone
number with another 348 phone calls to another phone number. Within those over one
-4-
Butler CA2021-11-147
thousand phone calls, portions of two of those calls were admitted into evidence over
York's objection and played for the jury. The first phone call played for the jury took place
on November 23, 2020. During that phone call, an individual believed to be York stated,
"Whenever you get in somebody's car, the person's whose car it is knows that they are
responsible for you and whatever you got, you feel me? * * * So I'm free, you know what I
mean?" That same individual also stated that the passwords to his two "Pandemic
Unemployment Assistance" accounts, accounts this individual referred to as "PUA,"
included York's full name, a number, and, for one of the accounts, a special character. The
second phone call played for the jury took place on October 12, 2021. During that phone
call, an individual believed to be York stated, "What? The fact that the bookbag was
between my legs? * * * I was always taught that whatever you bring in my car is my
responsibility, no matter what."
{¶ 10} After providing the jury with its final jury instructions, and following the jury's
deliberations, the jury returned a verdict finding York guilty as charged. Two days later, on
November 10, 2021, the trial court held a sentencing hearing and sentenced York to a
total, aggregate 48-month prison term, less 101 days of jail-time credit.2 The trial court
also notified York that he would be subject to an optional two-year postrelease control term
upon his release from prison. The trial court issued its judgment of conviction entry on
November 16, 2021. York filed a timely notice of appeal from his conviction on November
24, 2021. York's appeal now properly before this court for decision, York raises two
assignments of error for review.
{¶ 11} Assignment of Error No. 1:
2. York's total, aggregate 48-month prison term consisted of 36 months for the third-degree felony aggravated
possession of methamphetamine, a consecutive 12 months for the fifth-degree felony possession of a
fentanyl-related compound, and a concurrent 12 months for the other fifth-degree felony possession of drugs.
-5-
Butler CA2021-11-147
{¶ 12} THE TRIAL COURT ERRED WHEN IT ALLOWED THE ADMISSION OF JAIL
HOUSE PHONE CALLS.
{¶ 13} In his first assignment of error, York argues the trial court erred by admitting
into evidence the audio recording Mary Kern testified she had made of the two jail-house
phone calls York purportedly made from jail while awaiting trial in this case. To support
this claim, York argues it was error for the trial court to admit that audio recording into
evidence because the recording was not properly authenticated by Kern as required by
Evid.R. 901(A). We disagree.
{¶ 14} Pursuant to Evid.R. 901(A), "[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims." "This threshold
requirement for authentication of evidence is low and does not require conclusive proof of
authenticity." State v. Blake, 12th Dist. Butler No. CA2011-07-130, 2012-Ohio-3124, ¶ 28,
citing State v. Easter, 75 Ohio App.3d 22, 25 (4th Dist.1991). "The state instead needs
only to demonstrate a 'reasonable likelihood' that the evidence is authentic." State v.
Panzeca, 12th Dist. Warren No. CA2019-03-023, 2020-Ohio-326, ¶ 26. Both
circumstantial evidence and direct evidence may be used to prove the authenticity of
evidence. State v. Vermillion, 4th Dist. Athens No. 15CA17, 2016-Ohio-1295, ¶ 14.
{¶ 15} "Such evidence may be supplied by the testimony of a witness with knowledge
that a matter is what it is claimed to be." State v. Brantley, 12th Dist. Warren No. CA2006-
08-093, 2008-Ohio-281, ¶ 34, citing Evid.R. 901(B)(1). This creates a "liberal standard for
authentication of telephone calls," State v. Reno, 4th Dist. Ross No. 04CA2759, 2005-
Ohio-1294, ¶ 18, citing State v. Vrona, 47 Ohio App.3d 145, 149 (9th Dist.1988), that this
court reviews for an abuse of discretion. State v. Searles, 1st Dist. Hamilton Nos. C-
180339 and C-180340, 2019-Ohio-3109, ¶ 7. "An abuse of discretion implies that the
-6-
Butler CA2021-11-147
court's attitude was unreasonable, arbitrary, or unconscionable." State v. Worley, 164 Ohio
St.3d 589, 2021-Ohio-2207, ¶ 90.
{¶ 16} As noted above, the state called Kern, an investigator with the Butler County
Prosecutor's Office, to authenticate the audio recording that she made of two jail-house
phone calls York purportedly made while in jail awaiting trial in this case. To do this, Kern
testified that as an investigator she has an account that allows her access to the "jail phone
call system" that the Butler County Sheriff's Office uses to record and store phone calls
made by the inmates of the Butler County Jail. This account includes a username and
password that Kern testified she uses to "log in" to the system and "do a search." Kern
testified that these searches are done by entering into the system "the inmate's name" and
the "particular date range" to be searched.
{¶ 17} Kern testified that the search of York's name returned over one thousand
phone calls made from York's personal identification number between November 17, 2020
and November 2, 2021. Kern testified that within those over one thousand phone calls
were the two jail-house phone calls at issue here. Kern testified that both of those phone
calls included references to York's name, including one where the person who answered
says, "Hi, Ty," as well as passwords being discussed that included York's full name, a
number, and a special character, and to "a traffic stop in Trenton containing drugs in a
bag." Kern also testified the audio recording she made of those two phone calls was not
edited, but was instead an exact copy of the two jail-house phone calls she downloaded
from the "jail phone call system."
{¶ 18} York argues Kern's testimony did not lay a "proper foundation as to the
authenticity" of the audio recording she made of the two jail-house phone calls at issue.
According to York, this is because: (1) Kern could not herself identity York's voice on either
of the two calls; (2) Kern was not a records custodian with the Butler County Sheriff's Office,
-7-
Butler CA2021-11-147
but instead an investigator with the Butler County Prosecutor's Office; and (3) Kern had
"no idea as to the mechanism" that the Butler County Sheriff's Office used to record the
two jail-house phone calls at issue. According to York, this is also because (4) Kern could
not herself testify as to the "reliability" of the system used by the Butler County Sheriff's
Office to "record and store" jail-house phone calls, and because (5) Kern had "no idea as
to the phone call's truth or accuracy."
{¶ 19} However, although Kern may not have been the best, most knowledgeable
witness the state could have called to authenticate the audio recording at issue, Kern's
testimony was still more than enough to satisfy the low bar for authentication under Evid.R.
901(A). This is because Kern was a person with knowledge of how the audio recording
was made. This holds true even though Kern could not herself identify York's voice on the
audio recording when considering York's identity was plainly established through the
specific content of the calls, as well as the jail phone call system, and the personal
identification number associated with York. See, e.g., State v. Wade, 11th Dist. Lake No.
2019-L-065, 2020-Ohio-2894, ¶ 16 ("the identity of the inmate [in a jail-house phone call]
was established through the jail calling system and [personal identification number]
associated with the inmate"). That Kern could not identify York's voice goes to the weight
of the evidence rather than to the audio recording's admissibility. Therefore, finding no
merit to any of the arguments raised by York herein, Kern's first assignment of error lacks
merit and is overruled.
{¶ 20} Assignment of Error No. 2:
{¶ 21} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT APPELLANT'S
CONVICTION FOR AGGRAVATED POSSESSION OF DRUGS (METHAMPHETAMINE),
POSSESSION OF A FENTANYL-RELATED COMPOUND AND AGGRAVATED
POSSESSION OF DRUGS.
-8-
Butler CA2021-11-147
{¶ 22} In his second assignment of error, York argues the state presented insufficient
evidence to support the jury's verdict finding him guilty of the three felony drug offenses for
which he was charged. York also argues his conviction for each of those three felony drug
offenses was against the manifest weight of the evidence. We disagree with both of York's
claims.
{¶ 23} "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.
{¶ 24} 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-
-9-
Butler CA2021-11-147
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 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.
{¶ 25} 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
- 10 -
Butler CA2021-11-147
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 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.
{¶ 26} As noted above, York 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." 3 R.C.
2901.22(B) defines when a person acts "knowingly" and states:
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. When knowledge of the
existence of a particular fact is an element of an offense, such
knowledge is established if a person subjectively believes that
there is a high probability of its existence and fails to make
inquiry or acts with a conscious purpose to avoid learning the
fact.
{¶ 27} Whether a person was aware of an object's presence may be established
through circumstantial evidence. 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,
3. There is no dispute that all three substances, i.e., methamphetamine, fentanyl, and psilocin, giving rise to
the felony drug offenses of which York was convicted, are controlled substances.
- 11 -
Butler CA2021-11-147
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." State v. Reyes, 6th Dist. Wood No. WD-02-069, 2004-Ohio-2217, ¶
20, citing State v. Jones, 1st Dist. Hamilton No. C-880620, 1990 Ohio App. LEXIS 18 (Jan.
10, 1990).
{¶ 28} The terms "possess" and "possession" are defined by R.C. 2925.10(K) to
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. "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.
- 12 -
Butler CA2021-11-147
{¶ 29} York argues the evidence presented by the state to prove he knowingly
possessed, either actually or constructively, any of the three substances giving rise to the
three felony drug offenses for which he was convicted was lacking in both sufficiency and
weight. This is because, according to York, "no one really knew who owned what in the
car." To support this claim, York notes that there was no "identifying information" in the
backpack where the drugs were found that "tied" him to either the backpack or its contents.
However, while we agree that there were no photos, driver's licenses, credit cards, or utility
bills found within that backpack indicating to whom the backpack belonged or was owned
by, the record nevertheless indicates Officer Foley saw York holding onto that backpack
"very tightly," with a "white-knuckle kind of death grip," when Officer Foley asked York to
get out of the car so that Officer Schwarber could have her canine partner, Maverick,
conduct a canine sniff of the vehicle.
{¶ 30} The record also contains the incriminating statements York made during the
two jail-house phone calls played for the jury that he was "free" because the only evidence
the state had to prove the drugs were his was "[t]he fact that the bookbag was between
[his] legs" given that "[he] was always taught that whatever you bring [into another person's]
car is [that person's] responsibility, no matter what." When taken together, this is more
than enough evidence to support the jury's guilt finding for each of the three felony drug
offenses that York was convicted. This is because, contrary to what York had apparently
been taught, "[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. This is also because "[t]he discovery of readily accessible drugs in close
proximity to the accused constitutes circumstantial evidence that the accused was in
constructive possession of the drugs." State v. Fultz, 12th Dist. Butler No. CA2015-06-
103, 2016-Ohio-1486, ¶ 13. Therefore, finding York's conviction for all three felony drug
- 13 -
Butler CA2021-11-147
offenses was supported by sufficient evidence and not against the manifest weight of the
evidence, York's second assignment of error also lacks merit and is overruled.
{¶ 31} Judgment affirmed.
PIPER, P.J., and BYRNE, J., concur.
- 14 -