State v. Love , 2019 Ohio 3168 ( 2019 )

[Cite as State v. Love, 2019-Ohio-3168.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28988
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JENTLE S. LOVE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2015-08-2502-B
DECISION AND JOURNAL ENTRY
Dated: August 7, 2019
TEODOSIO, Judge.
{¶1} Appellant, Jentle S. Love, appeals from her convictions in the Summit County
Court of Common Pleas. This Court affirms in part and reverses and remands in part.
I.
{¶2} A confidential informant offered information to the police that a Highland Hills
police officer (“A.B.”) was selling steroids and OxyContin pills. The Summit County Drug Unit
arranged for the informant to purchase steroids from A.B. on several occasions within
approximately one month. Ms. Love is A.B.’s live-in girlfriend and was present with him at all
three controlled buys: one in a Target parking lot, one in a Golden Corral parking lot, and one in
the driveway of the informant’s apartment. The police later executed a search warrant on the
couple’s home while Ms. Love was present and recovered various types of steroids, syringes,
firearms, OxyContin, Vicodin, Opana, Adderall, Xanax, U.S. currency, and other items related to
drug trafficking.
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{¶3} A.B. and Ms. Love were both indicted on a litany of drug-related offenses.
Following a jury trial, Ms. Love was found guilty of trafficking in drugs, aggravated trafficking
in drugs, and possessing drug abuse instruments. She was found not guilty on the remaining
counts in the indictment. The trial court suspended a twelve-month prison term and placed Ms.
Love on two years of community control.
{¶4} Ms. Love appealed from her convictions, but this Court, by judgment entry,
vacated the sentencing entry and remanded the matter back to the trial court for resentencing.
State v. Love, 9th Dist. Summit No. 28375 (June 27, 2017). Upon remand, the trial court issued
a new sentencing entry.
{¶5} Ms. Love now appeals from her convictions and raises four assignments of error
for this Court’s review. These proceedings were briefly stayed and the matter was remanded
back to the trial court once again to issue a nunc pro tunc entry correcting a clerical error in its
new sentencing entry. Upon remand, the trial court issued a corrected sentencing entry, which
has been made part of the record on appeal.
{¶6} For ease of analysis, we will consolidate two of Ms. Love’s assignments of error.
II.
ASSIGNMENT OF ERROR ONE
THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO
SUSTAIN A FINDING OF GUILT FOR TRAFFICKING IN DRUGS,
AGGRAVATED TRAFFICKING IN DRUGS AND POSSESSION OF DRUG
ABUSE INSTRUMENTS.
ASSIGNMENT OF ERROR THREE
THE TRIAL COURT ERRED BY NOT GRANTING DEFENSE COUNSEL’S
CRIMINAL RULE 29 MOTION.
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{¶7} In her first and third assignments of error, Ms. Love argues that the State
presented insufficient evidence to support her convictions and the trial court erred in denying her
Crim.R. 29 motion for acquittal. She specifically argues that the State failed to prove the
knowingly mens rea for the offenses and failed to prove venue for the possessing drug abuse
instruments offense. We disagree with the former, but agree with the latter.
{¶8} “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by
assessing the sufficiency of the State’s evidence.” State v. Frashuer, 9th Dist. Summit No.
24769, 2010-Ohio-634, ¶ 33. Whether a conviction is supported by sufficient evidence is a
question of law, which this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386
(1997). “Sufficiency concerns the burden of production and tests whether the prosecution
presented adequate evidence for the case to go to the jury.” State v. Bressi, 9th Dist. Summit No.
27575, 2016-Ohio-5211, ¶ 25, citing Thompkins at 386. “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.” Id., quoting
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, “we do not
resolve evidentiary conflicts or assess the credibility of witnesses, because these functions
belong to the trier of fact.” State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.
{¶9} Ms. Love was convicted of trafficking in drugs under R.C. 2925.03(A), which
states: “No person shall knowingly * * * [s]ell or offer to sell [anabolic steroids, or p]repare for
shipment, ship, transport, deliver, prepare for distribution, or distribute [anabolic steroids], when
the offender knows or has reasonable cause to believe that the [anabolic steroids are] intended
for sale or resale by the offender or another person.” Because the amount of anabolic steroids
involved equaled or exceeded the bulk amount but was less than five times the bulk amount, the
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offense was a felony of the fourth degree. See R.C. 2925.03(C)(2)(c). She was also convicted of
aggravated trafficking in drugs under R.C. 2925.03(A), which states: “No person shall
knowingly * * * [s]ell or offer to sell [oxycodone, or p]repare for shipment, ship, transport,
deliver, prepare for distribution, or distribute [oxycodone], when the offender knows or has
reasonable cause to believe that the [oxycodone] is intended for sale or resale by the offender or
another person.” Because oxycodone is a Schedule II drug, the offense was a felony of the
fourth degree. See R.C. 2925.03(C)(1)(a); R.C. 3719.41, Schedule II (A)(1)(n). Finally, Ms.
Love was convicted of possessing drug abuse instruments under R.C. 2925.12(A), which states:
No person shall knowingly make, obtain, possess, or use any instrument, article,
or thing the customary and primary purpose of which is for the administration or
use of a dangerous drug, other than marihuana, when the instrument involved is a
hypodermic or syringe, whether or not of crude or extemporized manufacture or
assembly, and the instrument, article, or thing involved has been used by the
offender to unlawfully administer or use a dangerous drug, other than marihuana,
or to prepare a dangerous drug, other than marihuana, for unlawful administration
or use.
“Knowingly” Mens Rea
{¶10} Ms. Love first argues that the State failed to present sufficient evidence as to the
knowingly mens rea for these offenses. “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.” R.C. 2901.22(B). Specifically, Ms. Love claims that she
was only present for the controlled buys by coincidence, as she was out shopping with A.B.
during one and out to dinner with him for another. She also directs us to the informant’s
testimony that he never called Ms. Love or knew she would be present for the transactions and
A.B.’s testimony that Ms. Love was not involved in his drug trafficking, the drugs were hidden
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in a shoebox in a spare bedroom closet, and he told Ms. Love that the informant simply owed
him money.
{¶11} The State presented testimony from three officers of the Summit County Drug
Unit at trial: Detective Eric Roach of the Cuyahoga Falls Police Department; Detective Robert
Scalise II of the Summit County Sheriff’s Office; and Detective Nicholas Gray of the University
of Akron Police Department. The State also presented testimony from the informant, while A.B.
testified as the court’s witness. Hidden camera videos from the first two controlled buys were
also introduced into evidence as well as a portion of an audio recording of a police interview
with A.B. at the time of his arrest.
{¶12} All of the witnesses testified that Ms. Love was present for the first controlled buy
in the Target parking lot. By all accounts, the informant remained seated in his vehicle while
A.B. opened the passenger side door and leaned inside. The two men conducted the illicit
transaction within the informant’s vehicle. Although it varied somewhat by witness, the
testimony placed Ms. Love no more than ten feet behind A.B. during the transaction. When the
informant handed A.B. the money, Detective Roach heard A.B. say the word “here” over the
audio equipment, and A.B. immediately turned and handed the money to Ms. Love. All of the
witnesses confirmed that A.B. handed the money to Ms. Love.
{¶13} Detectives Roach and Gray were the only officers present for the second
controlled buy in the Golden Corral parking lot. Detective Gray conducted surveillance with
binoculars while Detective Roach listened with audio equipment. A video from a hidden camera
on the informant was also introduced at trial. The video reveals a brief amount of small talk
between A.B., the informant, and Ms. Love before A.B. asks, “You have money on you?” The
informant replies, “Money? For what?” A.B. replies, “Man” in a dismissive manner and Ms.
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Love laughs. While A.B. returns to his truck to retrieve the drugs, the informant says, “Can I
just throw it in your purse?” and Ms. Love can be seen taking a few steps toward the informant.
Although the actual transfer of the money into the purse cannot be seen in the video, the
witnesses all testified that the informant gave the money to Ms. Love.
{¶14} A third controlled buy took place in the driveway of the informant’s apartment.
A.B., the informant, and Detective Gray all testified that Ms. Love was present. The informant
testified that he asked A.B. why he always brings Ms. Love with him, and A.B. replied,
“[E]verything is cool.” He further testified that, at one point, Ms. Love lifted up A.B.’s shirt to
show off his “abs,” giggled, and made the comment: “[T]he more stuff you take, the more
strength you get.”
{¶15} The State also introduced an audio recording of a police interview with A.B.
during his arrest. In the portion of the interview played for the jury, A.B. admits that Ms. Love
knows he sells steroids. At trial, A.B. testified that he still lives with Ms. Love, does not want
her to get in trouble, and would do anything to help her and keep her from getting in trouble.
{¶16} Detective Gray testified that when the police executed a search warrant on the
couple’s home, they recovered various drugs and contraband. According to the detective, a
“stack” of money was recovered from inside a dresser drawer in the master bedroom, near
female underwear and bras. A vitamin container with three vials of steroids and syringes inside
was found in the bathroom. A.B. testified that Ms. Love did not use that bathroom, but Detective
Gray testified that two toothbrushes—one pink and one green—can be seen in a picture of the
bathroom that was introduced into evidence.
{¶17} Detective Gray testified that more steroids and opiate pills were found in a
shoebox in a spare bedroom closet. A.B. testified that those drugs were his, but he admitted that
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he shared the bedroom with Ms. Love, they both used the room as a walk-in closet, and it
contained both of their belongings. A.B. testified that a picture of the spare bedroom closet
introduced at trial showed Ms. Love’s bra and other dirty clothes. He testified that another
picture of the spare bedroom showed both his and Ms. Love’s shoes.
{¶18} According to Detective Gray, small amounts of many different types and sizes of
opiate pills were also found inside a single, unmarked bottle. He testified that, based on his
training and experience, this was indicative of a person “stealing those from some sort of hospital
or caregiver place to where they only have access to one or two pills at a time.” He then testified
that Ms. Love is a nurse. Although Ms. Love contends in another assignment of error that this
particular evidence was improperly introduced and was the result of prosecutorial misconduct,
the Supreme Court of Ohio has emphasized that “the interest in the administration of justice
dictates that the appellate court review the issue of sufficiency in consideration of all evidence
presented by the State in its case in chief, whether such evidence was properly admitted or not.”
State v. Dixon, 9th Dist. Medina Nos. 11CA0065-M and 11CA0087-M, 2012-Ohio-4428, ¶ 18,
citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, ¶ 19.
{¶19} Detective Gray testified that another small container was recovered from inside of
a female’s shoe in the spare bedroom. It contained a Summa Health System tag on it and was
addressed to a man named “J.S.” Detective Gray testified that he went to the hospital on the
following day and was able to confirm with staff that Ms. Love, in fact, treated J.S. as a patient,
and her treatment included the administration of Promethazine, which was the same drug found
inside of the small container. While the detective conceded that Promethazine is not a controlled
substance, he testified that he was informed it can be used to enhance the effects of opiates.
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{¶20} Detective Gray testified that a box of syringes was also found in the spare
bedroom closet next to the “big box” of steroids and opiates. The box of syringes contained a
shipping label addressed to Ms. Love at the couple’s home address.
{¶21} We conclude that the State presented sufficient evidence at trial to establish that
Ms. Love knowingly committed the offenses of trafficking in drugs, aggravated trafficking in
drugs, and possessing drug abuse instruments. Despite Ms. Love’s attempt to downplay her role
in the trafficking of drugs, the State introduced ample evidence to show that she was not only
aware of the trafficking, but was actively involved to an extent. A.B. admitted to police that Ms.
Love knew he was trafficking drugs. Ms. Love was present at several controlled buys and was
given the buy money in at least two of them. When questioned as to why Ms. Love was always
present for the illicit transactions, A.B. told the informant, “[E]verything is cool.” A wealth of
contraband was also discovered inside of the couple’s home, near and among Ms. Love’s
personal items, including a box of syringes plainly addressed to Ms. Love. A.B. testified that
some of Ms. Love’s shoes were in the spare bedroom, and police found a container of drugs
inside one of those shoes, which contained drugs addressed to one of Ms. Love’s patients at the
hospital.
{¶22} While the informant never directly called Ms. Love to set up the transactions, Ms.
Love fails to explain why such phone calls would be necessary to establish that she was
knowingly involved in drug trafficking with A.B. And although A.B. maintained that Ms. Love
was not involved in any drug trafficking, he also admitted that he did not want her to get in
trouble and would do anything to keep her out of trouble.
{¶23} After reviewing the evidence in the record in a light most favorable to the
prosecution, we conclude that the State satisfied its burden of production and presented sufficient
9
evidence, if believed, that Ms. Love knowingly committed these three offenses. We further
conclude that any rational trier of fact could have found the knowingly element of these offenses
proven beyond a reasonable doubt. The trial court therefore did not err in denying Ms. Love’s
Crim.R. 29 motion for acquittal in this respect.
Venue
{¶24} Ms. Love also argues that the State failed to present sufficient evidence to
establish venue, specifically for the possessing drug abuse instruments offense. She claims no
evidence was introduced to show that her home in Mogadore, Ohio—where she allegedly
possessed drug abuse instruments—is actually located in Summit County. She claims that her
home is instead located in Portage County.
{¶25} “Venue is proper in any county where the offense, or any element of the offense,
was committed.” State v. Patterson, 9th Dist. Lorain No. 16CA011035, 2017-Ohio-8196, ¶ 17,
citing R.C. 2901.12(A). Venue is not a material element of an offense, but the State must
nevertheless prove venue beyond a reasonable doubt unless it is waived by the defendant. Id.“Venue need not be proved in express terms so long as it is established by all the facts and
circumstances in the case.” State v. Hobbs, 9th Dist. Lorain No. 89CA004600, 1990 WL 28102,
*1 (Mar. 14, 1990). See also State v. Dickerson, 77 Ohio St. 34 (1907), paragraph one of the
syllabus.
{¶26} The indictment charged Ms. Love with possessing drug abuse instruments “on or
about the 12th day of August, 2015, in the County of Summit * * *.” The State was therefore
required to prove beyond a reasonable doubt that any element of the offense occurred in Summit
County. Detective Gray testified that a search warrant was executed at Ms. Love’s home, and
police discovered syringes and other contraband inside. The parties stipulated at trial that Ms.
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Love’s home was located at “3952 Highland Drive, Mogadore, Ohio 44260.” However, defense
counsel argued during his Crim.R. 29 motion for acquittal that venue had not been established
for the charges related to the execution of the search warrant at Ms. Love’s home. He argued
specifically that the village of Mogadore is unique in that it is located partially in Summit County
and partially in Portage County. The State made no argument in opposition as to why venue in
Summit County was proper. The trial court stated that it “realize[d] Mogadore has a shared
jurisdiction with Portage County,” but nonetheless denied the Crim.R. 29 motion, noting the
parties’ stipulation to Ms. Love’s address and stating that it “recall[ed] some testimony that the
events in this matter took place in Summit County, Ohio.” In its merit brief, the State also relies
on trial testimony that these transactions occurred in Summit County, Ohio.
{¶27} Our review of the record reveals that witness testimony did, in fact, establish that
the controlled buys all took place in Summit County, thereby establishing venue for the two drug
trafficking offenses. However, no evidence was introduced at trial to establish that the address
of “3952 Highland Drive, Mogadore, Ohio 44260”—where Ms. Love allegedly possessed drug
abuse instruments on a later date—was actually in the section of Mogadore that is located in
Summit County.
{¶28} Generally, evidence of a street address by itself, without further reference to a
city, county, or state, is insufficient to establish venue at trial. See State v. Myers, 9th Dist.
Summit No. 21874, 2004-Ohio-4195, ¶ 7-9 (finding insufficient evidence to prove venue where
no evidence was introduced to show that the location of the assault—“the Suburb Inn on
Arlington Street”—was located in Summit County); State v. Jackson, 3d Dist. Seneca No. 13-14-
30, 2015-Ohio-1694, ¶ 8 (finding insufficient evidence to prove venue when the address where
the offense was committed—“346 Elm”—was introduced at trial, but there was no evidence of
11
the village, city, township, or county where that address was located); State v. Lahmann, 12th
Dist. Butler No. CA2006-03-058, 2007-Ohio-1795, ¶ 34 (“[T]estimony showing that an offense
occurred at a particular street address[—“5436 Lakeside Drive”—]standing alone, is generally
insufficient to prove venue, since such addresses often are not ‘sufficiently unique’ to permit a
conclusion that the address is located in a particular city or county.”); State v. Gardner, 42 Ohio
App.3d 157, 157-158 (1st Dist.1987) (determining evidence that the crime was committed at a
restaurant located at “‘1412 Vine’ across the street from the Red Horse Bar at ‘the corner next to
Krogers[]’” was “not sufficiently unique to permit the conclusion that the restaurant was in
Hamilton County, Ohio”).
{¶29} When coupled together, evidence of street addresses, cities, and states may,
however, be sufficient to establish venue in a certain county if the city lies exclusively within
that particular county. See State v. Williams, 8th Dist. Cuyahoga No. 107249, 2019-Ohio-992, ¶
18 (finding sufficient evidence of venue in Cuyahoga County when the street address, city, and
state—“West 104th Street in Cleveland, Ohio”—were introduced at trial); State v. Potter, 9th
Dist. Medina No. 05CA0029-M, 2005-Ohio-6458, ¶ 13 (distinguishing Myers and determining
that venue was established in Medina County because evidence was introduced of both the city
and state—the city of Medina and state of Ohio—where the crimes occurred); State v. Wilson,
6th Dist. Huron No. H-13-002, 2014 WL 1343680, *6 (Mar. 7, 2014) (finding sufficient
evidence to prove venue when the address where the offense was committed—“315 1/2 Dale
Avenue, Willard, Ohio”—was introduced, the city of Willard lies exclusively in Huron County,
and the arresting officers worked for the Huron County Sheriff’s Department). See also State v.
Brown, 7th Dist. Mahoning No. 03-MA-32, 2005-Ohio-2939, ¶ 82 (finding sufficient evidence to
establish venue where the victim could see her mother at Brown’s house when Brown drove the
12
victim out of the tree area where the crime occurred, Brown lived on Market Street, and a
Youngstown police officer was called to Brown’s home to arrest him).
{¶30} Although the parties stipulated in this case to Ms. Love’s street address, city,
state, and zip code, there is no indication in the record that “3952 Highland Drive, Mogadore,
Ohio 44260” is located within the Summit County section of Mogadore. Because Mogadore
spans across two different counties, we can therefore only conclude that the State failed to
present sufficient evidence to prove venue as to the possessing drug abuse instruments charge.
See State v. Marcum, 5th Dist. Fairfield No. 17-CA-35, 2018-Ohio-1135, ¶ 19 (concluding that
because the city of Reynoldsburg spans three counties, recitation of an address in the city of
Reynoldsburg is insufficient to establish venue in Fairfield County). We likewise conclude that
the trial court erred in not granting Ms. Love’s Crim.R. 29 motion for acquittal as to the
possessing drug abuse instruments charge. See State v. Hampton, 134 Ohio St.3d 447, 2012-
Ohio-5688, ¶ 24 (“[A] motion for judgment of acquittal must be granted when the evidence is
insufficient for reasonable minds to find that venue is proper.”). Ms. Love’s conviction for
possessing drug abuse instruments cannot stand and, upon remand, must be vacated.
{¶31} Accordingly, Ms. Love’s first and third assignments of error are overruled in part
and sustained in part.
ASSIGNMENT OF ERROR TWO
THE VERDICT OF GUILTY FOR TRAFFICKING IN DRUGS,
AGGRAVATED TRAFFICKING IN DRUGS, AND POSSESSION OF DRUG
ABUSE INSTRUMENTS WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶32} In her second assignment of error, Ms. Love argues that her convictions are
against the manifest weight of the evidence. We disagree.
{¶33} This Court has stated:
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In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the
basis that it was against the manifest weight of the evidence, an appellate court sits as a
‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”
State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary
power “should be exercised only in the exceptional case in which the evidence weighs heavily
against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v.
Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.
{¶34} Ms. Love’s manifest weight argument essentially mirrors her sufficiency
argument. She again directs us to A.B.’s testimony that Ms. Love was not involved in his drug
trafficking as well as the informant’s testimony that he never directly contacted Ms. Love to buy
drugs. She argues that her presence at the controlled buys was coincidental, as she was simply
out shopping and out to dinner with A.B.
{¶35} We note that Ms. Love argues once again that her residence is located in Portage
County, not Summit County. Because we have already determined above that Ms. Love’s
conviction for possessing drug abuse instruments was not supported by sufficient evidence, the
question of whether that conviction is against the manifest weight of the evidence has been
rendered moot. See App.R. 12(A)(1)(c). See also State v. Jones, 9th Dist. Summit No. 17213,
1996 WL 37725, *7 (Jan. 31, 1996).
{¶36} Upon review of the record, we cannot say that Ms. Love’s drug trafficking
convictions are against the manifest weight of the evidence. The trial court was presented with
14
testimony from several police officers, a confidential informant, and A.B. Videos from two
controlled buys, an audio recording of A.B.’s interview with police, contraband discovered in her
home, and pictures from inside of her home were also introduced into evidence at trial. “‘[T]he
weight to be given the evidence and the credibility of the witnesses are primarily for the trier of
the facts.’” State v. Haydon, 9th Dist. Summit No. 27737, 2016-Ohio-4683, ¶ 28, quoting State
v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. In resolving any conflicts
in testimony presented at trial, the trier of fact is free to believe or disbelieve any, or all, of the
testimony from each witness. See Haydon at ¶ 28. The jury was best able to view the witnesses
and observe their demeanor, gestures, and voice inflections, and use those observations in
weighing the credibility of the proffered testimony. See State v. Cook, 9th Dist. Summit No.
21185, 2003-Ohio-727, ¶ 30. This Court has consistently held that “[w]e will not overturn a
conviction as being against the manifest weight of the evidence simply because the trier of fact
chose to believe the State’s version of events over another version.” State v. Fry, 9th Dist.
Medina No. 16CA0057-M, 2017-Ohio-9077, ¶ 13. After reviewing the record and all of the
evidence, we cannot conclude that the jury, in resolving any purported conflicts in the evidence,
clearly lost its way and created a manifest miscarriage of justice. See Otten at 340. Moreover,
Ms. Love has not demonstrated how this is an exceptional case where the evidence presented
weighs heavily in her favor and against conviction. See Thompkins at 387.
{¶37} Ms. Love’s second assignment of error is overruled.
ASSIGNMENT OF ERROR FOUR
DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL DUE TO
THE PROSECUTORIAL MISCONDUCT OF THE STATE OF OHIO.
{¶38} In her fourth assignment of error, Ms. Love argues that the prosecutor engaged in
misconduct during Detective Gray’s testimony when he “deliberately asked a question meant to
15
mislead the jury and to insinuate that [Ms.] Love, a nurse working at a hospital, was stealing
drugs from her employer” even though she was not charged with theft. We disagree.
{¶39} Prosecutors must avoid insinuations and assertions calculated to mislead, and they
may not allude to matters not supported by admissible evidence. State v. Lott, 51 Ohio St.3d
160, 166 (1990), citing State v. Smith, 14 Ohio St.3d 13, 14 (1984). “In deciding whether a
prosecutor’s conduct rises to the level of prosecutorial misconduct, a court determines if the
prosecutor’s actions were improper, and, if so, whether the defendant’s substantial rights were
actually prejudiced.” State v. Moreland, 9th Dist. Summit No. 27910, 2016-Ohio-7588, ¶ 22.
“‘[A] judgment may only be reversed for prosecutorial misconduct when the improper conduct
deprives the defendant of a fair trial.’” Id., quoting State v. Knight, 9th Dist. Lorain No.
03CA008239, 2004-Ohio-1227, ¶ 6. The defendant must show that, but for the prosecutor’s
misconduct, the trier of fact would not have convicted her. Id. “The touchstone of the analysis
‘is the fairness of the trial, not the culpability of the prosecutor.’” State v. Diar, 120 Ohio St.3d
460, 2008-Ohio-6266, ¶ 140, quoting Smith v. Phillips, 455 U.S. 209, 219 (1982).
{¶40} At trial, Detective Gray testified that many different sizes and types of pills were
recovered inside of an unmarked bottle in the Ms. Love’s spare bedroom. The following
exchange then occurred during the prosecutor’s direct examination of Detective Gray:
Q: Now, based on your training and experience as a Summit County drug
detective, when you see both the quantity of the individual drugs and the various
varieties, what is that indicative of to you?
MR. RILLEY: Objection.
THE COURT: Overruled.
A: That’s indicative, when the person has small amounts of pills like that, that
those are - - first suspect, in my training and experience, they’re going to be
stealing those from some sort of hospital or caregiver place to where they only
have access to one or two pills at a time.
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Q: And [Ms.] Love is a nurse?
MR. RILLEY: Objection, Your Honor.
THE COURT: Overruled.
A: Yes, she is.
{¶41} Upon review, we see no indication that the prosecutor’s questions were improper
or intended to mislead the jury. The State was burdened with proving Ms. Love was knowingly
trafficking drugs and knowingly possessed the contraband found in her home. The prosecutor
inquired as to the detective’s training and experience as it related to the amounts and types of
drugs discovered in Ms. Love’s home. The detective revealed, based on his training and
experience, where offenders typically acquire small quantities of many different drugs, such as
those discovered in this case. The prosecutor’s follow-up question, noting Ms. Love’s
occupation as a nurse, supported the State’s theory that she was knowingly involved in
possessing and trafficking the drugs found in her home. Accordingly, we cannot agree with Ms.
Love’s claim of prosecutorial misconduct.
{¶42} Even assuming arguendo that the prosecutor’s questions were improper, Ms. Love
has failed to show that, but for this misconduct, the jury would not have convicted her. See State
v. Ecker, 9th Dist. Summit No. 28431, 2018-Ohio-940, ¶ 31. The State set forth a wealth of
evidence establishing Ms. Love’s involvement in drug trafficking with her boyfriend. We
therefore conclude that the testimony relating Detective Gray’s training and experience in typical
drug investigations to the drugs found in Ms. Love’s home, along with testimony that Ms. Love
is a nurse, did not affect the outcome of her trial.
{¶43} Ms. Love’s fourth assignment of error is overruled.
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III.
{¶44} Ms. Love’s first and third assignments of error are overruled in part and sustained
in part. The cause is remanded for further proceedings consistent with this opinion, specifically
for the trial court to vacate Ms. Love’s conviction for possessing drug abuse instruments. Her
second and fourth assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed in part and reversed in part.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
THOMAS A. TEODOSIO
FOR THE COURT
18
SCHAFER, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
JAMES W. ARMSTRONG, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.