State v. Chafin , 2017 Ohio 7622 ( 2017 )

[Cite as State v. Chafin, 2017-Ohio-7622.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
: Case No. 16CA3769
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
ELSWORTH CHAFIN, III, :
:
Defendant-Appellant. : Released: 09/12/17
_____________________________________________________________
APPEARANCES:
Matthew F. Loesch, Portsmouth, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Elsworth Chafin appeals from his convictions on multiple felony
counts of trafficking in drugs, possession of drugs, receiving stolen property
and possession of criminal tools, after a two-day jury trial in the Scioto
County Court of Common Pleas. On appeal, Appellant contends that 1) his
convictions for receiving stolen property and possession and trafficking in
drugs (heroin) were against the manifest weight and sufficiency of the
evidence; 2) the trial court committed reversible error when it failed to
exclude his admissions from evidence after his right to counsel was violated;
3) the trial court committed plain error in allowing testimony regarding his
Scioto App. No. 16CA3769 2
other bad acts; and 4) cumulative errors committed during his trial deprived
him of a fair trial and require a reversal of his convictions.
{¶2} Because we find no reversible, plain or cumulative error in the
trial court's admission and exclusion of evidence in the trial of this matter,
and because we have determined that Appellant's convictions were
supported by sufficient evidence and were not against the manifest weight of
the evidence, we reject the arguments raised under all four of Appellant's
assignments of error. Accordingly, the judgment of the trial court is
affirmed.
FACTS
{¶3} On May 26, 2016, Appellant was indicted on twenty felony
counts, which included three counts of trafficking in heroin, three counts of
possession of heroin, one count of failure to comply with an order or signal
of a police officer, one count of endangering children, ten counts of
receiving stolen property (nine four-wheelers and a firearm), one count of
possessing criminal tools (digital scales), and one count of having weapons
while under a disability. A review of the record indicates these charges
stemmed from three separate incidents which included a controlled drug buy
with the use of a confidential informant, a traffic stop which resulted in
heroin being found on Appellant's person, and a probation-led search of
Scioto App. No. 16CA3769 3
Appellant's home which resulted in the discovery of a large amount of
heroin located in a safe in Appellant's master bedroom, along with drug
paraphernalia including baggies, digital scales and Mannitol. The search
also led to the discovery of several stolen four-wheelers, some of which
were parked right outside of Appellant's house, and some of which were
found on a hill by Appellant's house that had a path from Appellant's home
leading to the location of the four-wheelers.
{¶4} Appellant denied the charges and the matter proceeded to a jury
trial. Just prior to trial, the State dismissed count twenty (having weapons
while under a disability). At trial, the State presented several witnesses,
including the individual owners of all of the recovered four-wheelers, as
well as Deputy James Keaton, Detectives Adam Giles, Matt Spender, Lee
Bower and Jodi Conkel, Sergeant John Koch, Chief Probation Officer Eric
Flannery, Captain John Murphy, confidential informant Joshua
Conschafsky, and forensic scientists Ashley Owen and Stanton Wheasler
from the Ohio Bureau of Criminal Identification & Investigation (BCI). The
pertinent witness testimony will be discussed below. Appellant presented no
witnesses or evidence on his own behalf.
{¶5} Some of the pertinent trial testimony is set forth as follows, and
additional testimony will be discussed as needed in our analysis of
Scioto App. No. 16CA3769 4
Appellant’s arguments. Sergeant Koch testified he works by special
assignment on the drug task force and had been investigating an individual
referred to as “Booter.” He testified that he received a call from Detective
Jodi Conkel on April 1, 2016 in reference to an individual named “Booter”
who lived on Slab Run in West Portsmouth, Ohio, who had been receiving a
lot of stolen four-wheelers. Koch informed Conkel they were attempting a
controlled buy with Booter later in the day and they could work together to
try to determine Booter’s real identity and where he lived. Booter was
eventually identified as Appellant, Elsworth Chafin. Koch further testified
that he arranged and participated in a controlled buy between Appellant and
a confidential informant, Joshua Conschafsky. Koch testified the
confidential informant was searched prior to the buy, was provided with
“recorded money” and a recording device, and that a controlled buy was
arranged to take place in the Burger King parking lot. Koch testified that
after the transaction, he and Detective Giles met the confidential informant
at a predetermined location and collected heroin purchased from Appellant.
The record reflects that a video of the controlled buy was played for the jury
at that point. The confidential informant also testified at trial.
{¶6} Sergeant Koch further testified that after the controlled buy was
completed, he notified Detective Conkel, who was also working with the
Scioto App. No. 16CA3769 5
probation department. He explained Conkel later contacted him and advised
of the number of four-wheelers that had been found, which prompted Koch,
Detective Giles and Detective Bowers to respond to the residence as well.
He testified that just after he arrived at Appellant’s residence, he was
contacted by Deputy Keaton, who advised he had stopped Appellant on a
motorcycle and that $345.00 in cash, a cell phone, and a brown
substance/powder had been seized from Appellant. Koch testified that it
was later determined that $90.00 of the $345.00 recovered from Appellant
consisted of the marked money from the controlled buy.
{¶7} Detective Koch testified that he spoke with Appellant’s
girlfriend, Tiffany Hatfield, when he arrived at Appellant’s house and
informed her he believed illegal drugs were inside the residence. He
testified that Hatfield led him to an electronic safe in the closet of the master
bedroom where, after her second attempt to open it, he found a bag of
heroin. When asked if there were any other drug-related items in the room,
Hatfield pointed to a set of digital scales in a chest of drawers. Koch
testified an empty bottle of Mannitol was also found. He explained during
his testimony that digital scales are a very common tool used by drug
traffickers to “weigh their dope” and that Mannitol is a substance used as a
cutting agent that is added to drugs for more volume in order to make more
Scioto App. No. 16CA3769 6
money. Koch also found an open box of sandwich baggies in the room,
which he testified were commonly used to package drugs.
{¶8} Chief Probation Officer Eric Flannery testified that he was
contacted by Detective Conkel on April 1, 2016, who stated that she had
information that a probationer (Appellant) was involved with several stolen
four-wheelers and had them at his residence. Flannery confirmed
Appellant’s address and took several of his officers and went to Appellant’s
residence to look around. Flannery testified that when he arrived at
Appellant’s residence Appellant’s girlfriend was there and let him in to
conduct a search. He testified at that point he called Detectives Jodi Conkel
and Matt Spencer and asked them to respond, as he found several four-
wheelers around Appellant’s house and up on a hill.
{¶9} Detective Jodi Conkel also testified at trial. She testified that she
had been working on several cases involving stolen four-wheelers and that
the name “Booter” kept coming up as being involved. She testified
regarding her cooperation with Detective Koch, who kept her informed on
the status of the controlled buy. Once she was advised the buy had been
completed she called probation. She testified that when Eric Flannery
arrived at Appellant’s house, he called her to come over because he found
four-wheelers. She testified that when she arrived at Appellant’s house she
Scioto App. No. 16CA3769 7
saw four-wheelers in front of the house and a Can-Am on the side, as well as
four-wheelers that went up the path beside the house. Photographs of the
scene taken by Conkel were shown to the jury at that point, and Conkel
identified the various four-wheelers that were found as well as the owners
they had been stolen from at trial. Conkel also identified photos depicting
various four-wheeler keys found in Appellant’s bedroom. Conkel further
testified regarding a statement she obtained from Appellant, a recording of
which was played for the jury, as well as statements made by Appellant
during the fingerprinting process and on recorded jail phone calls, which
will be discussed in detail below.
{¶10} Detective Lee Bower also testified at trial. He testified that he
responded to Appellant’s residence to assist with the search and that his
duties included trying to locate keys to four-wheelers. He testified he found
several four-wheeler keys, but that he also found some keys from tractor
ignitions. He testified that the search revealed that several of the four-
wheelers had those types of ignitions (tractor ignitions). He testified that
one of these types of keys, which he found on a shelf in Appellant’s house,
matched up to a four-wheeler that was found on the hill.
{¶11} After hearing the evidence presented at trial, the jury acquitted
Appellant on counts three, six and eighteen, which respectively charged with
Scioto App. No. 16CA3769 8
failure to comply with an order or signal of a police officer, endangering
children, and receiving stolen property (a firearm). The jury found
Appellant guilty of counts one, four and seven (trafficking in heroin), counts
two, five and eight (possession of heroin), counts nine through seventeen
(receiving stolen property, four-wheelers), and count nineteen, possessing
criminal tools. As a result, the trial court sentenced Appellant to an
aggregate twenty-year term of imprisonment. It is from the trial court's
decision that Appellant now brings his timely appeal, assigning the
following errors for our review.
ASSIGNMENTS OF ERROR
“I. APPELLANT’S CONVICTIONS FOR (A) RECEIVING STOLEN
PROPERTY AND (B) POSSESSION/TRAFFICKING OF HEROIN
WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
II THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN
IT FAILED TO EXCLUDE THE ADMISSIONS OF THE
APPELLANT FROM EVIDENCE AFTER APPELLANT’S RIGHT
TO COUNSEL WAS VIOLATED.
III. THE TRIAL COURT COMMITTED PLAIN ERROR IN
ALLOWING TESTIMONY REGARDING OTHER BAD ACTS OF
THE APPELLANT.
IV. CUMULATIVE ERRORS COMMITTED DURING APPELLANT’S
TRIAL DEPRIVED HIM OF A FAIR TRIAL.”
Scioto App. No. 16CA3769 9
ASSIGNMENT OF ERROR II
{¶12} For ease of analysis, we address Appellant’s assignments of
error out of order, beginning with the second assignment of error. In his
second assignment of error, Appellant contends that the trial court
committed reversible error when it failed to exclude his admissions from
evidence after his right to counsel was violated when Detective Conkel
obtained incriminating statements from him while obtaining a fingerprint
exemplar. Stated another way, Appellant argues that his Sixth Amendment
right to counsel was violated when Detective Conkel went to the jail to
obtain fingerprints from him without first contacting his attorney. The
record reveals that while having his fingerprints taken, Appellant made
incriminating statements that were voluntary and not in response to any
questioning by Detective Conkel, indicating that he was guilty of four of the
receiving stolen property charges.
{¶13} Appellant relies on United States v. Wade, 388 U.S. 218, 87
S.Ct. 1926 (1967) in support of his argument. This Court recently discussed
the holding in Wade, noting that in Wade, the Supreme Court of the United
States held as follows:
“ ‘a post-indictment pretrial lineup at which the accused is
exhibited to identifying witnesses is a critical stage of the
criminal prosecution; that police conduct of such a lineup
without notice to and in the absence of his counsel denies the
Scioto App. No. 16CA3769 10
accused his Sixth Amendment right to counsel and calls
in question the admissibility at trial of the in-court
identifications of the accused by witnesses who attended the
lineup.’ ” State v. Crocker, 2015-Ohio-2528, 38 N.E.3d 369,
¶ 45 (4th Dist.); citing Gilbert v. California, 388 U.S. 263, 272,
87 S.Ct. 1951 (1967), describing the holding in Wade.
In Crocker, the appellant objected at trial to the testimony of a police captain
that had obtained a post-indictment voice exemplar from him in order to
authenticate his voice on phone calls recorded at the jail. Crocker at ¶ 14.
On appeal, based upon the reasoning of Wade, we agreed that Crocker's
Sixth Amendment right to counsel had been violated as a result, however,
we ultimately determined that the police captain's post-indictment contact
with Crocker in the absence of counsel was harmless beyond a reasonable
doubt. Id. at ¶ 48.
{¶14} Appellant has provided this Court with no authority that
obtaining a fingerprint exemplar from an accused, post-indictment and in the
absence of counsel, violates the accused's Sixth Amendment right to
counsel. Nonetheless, Appellant asks this Court to apply the reasoning of
Wade and Crocker to find that it does. However, we find that Appellant has
not properly preserved this issue for purposes of appeal.
{¶15} The record reveals that here, Appellant did not file a pretrial
motion to suppress the statements obtained during the fingerprinting process,
which he argues was an improper procedure in and of itself that violated his
Scioto App. No. 16CA3769 11
Sixth Amendment right to counsel. Further, although Appellant did object
to the admission of the statements at trial, he did not raise the objection
based upon constitutional grounds.1 While it does not appear that Crocker
filed a motion to suppress, he did object to the introduction of the evidence
at trial.
{¶16} The admission or exclusion of evidence generally rests within
the trial court's sound discretion. State v. Green, 184 Ohio App.3d 406,
2009–Ohio–5199, 921 N.E.2d 276, ¶ 14 (4th Dist.). Thus, absent a clear
showing of an abuse of discretion with attendant material prejudice to
defendant, an appellate court will not disturb a trial court's ruling regarding
the admissibility of evidence. Id. An abuse of discretion implies that a
court's attitude is unreasonable, arbitrary, or unconscionable. State v. Adams,
62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶17} Crim.R. 12 provides in pertinent part as follows:
“(C) Pretrial Motions. Prior to trial, any party may raise by
motion any defense, objection, evidentiary issue, or request that
is capable of determination without the trial of the general
issue. The following must be raised before trial:
***
(3) Motions to suppress evidence, including but not limited to
statements and identification testimony, on the ground that it
1
Defense counsel objected to Detective Conkel obtaining statements from a defendant who was
represented by counsel, arguing that the prohibition against lawyers speaking directly with represented
clients is prohibited. The trial court overruled the objection based upon the fact that Detective Conkel was
a member of law enforcement, not an attorney, as well as the fact that Appellant's statements were
voluntary, and not made in response to questioning by Detective Conkel.
Scioto App. No. 16CA3769 12
was illegally obtained. Such motions shall be filed in the trial
court only.
***
(H) Effect of Failure to Raise Defenses or Objections. Failure
by the defendant to raise defenses or objections or to make
requests that must be made prior to trial, at the time set by the
court pursuant to division (D) of this rule, or prior to any
extension of time made by the court, shall constitute waiver of
the defenses or objections, but the court for good cause shown
may grant relief from the waiver.”
Thus, pursuant to Crim.R. 12(H), a party's failure to raise defenses,
objections, or requests that must be made prior to trial results in a waiver.
See State v. Brewer, 4th Dist. Highland No. 95CA870, 1997 WL 82821, *10
(Feb. 21, 1997) (referring to Crim.R. 12(G), which is now Crim.R. 12(H);
citing State v. Moody, 55 Ohio St.2d 64, 377 N.E.2d 1008 (1978) (holding
that the failure to move for the suppression of evidence based on a claim of
an illegally obtained statement constitutes a waiver of that claim or error.)
(internal citations omitted).
{¶18} Further, this Court has noted as follows with respect to the
purpose of a motion to suppress:
" 'A "motion to suppress" is defined as a "[d]evice used to
eliminate from the trial of a criminal case evidence which has
been secured illegally, generally in violation of the Fourth
Amendment (search and seizure), the Fifth Amendment
(privilege against self incrimination), or the Sixth Amendment
(right to assistance of counsel, right of confrontation etc.), of
U.S. Constitution." Black's Law Dictionary (6 Ed.1990) 1014.
Thus, a motion to suppress is the proper vehicle for raising
constitutional challenges based on the exclusionary rule first
Scioto App. No. 16CA3769 13
enunciated by the United States Supreme Court in Weeks v.
United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652,
and made applicable to the states in Mapp v. Ohio (1961), 367
U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Further, this court has
held that the exclusionary rule will not ordinarily be applied to
suppress evidence which is the product of police conduct that
violates a statute but falls short of a constitutional violation,
unless specifically required by the legislature. Kettering v.
Hollen (1980), 64 Ohio St.2d 232, 235, 416 N.E.2d 598, 600.
* * *.' State v. French (1995), 72 Ohio St.3d 446, 449, 650
N.E.2d 887." State v. Moon, 4th Dist. Adams No. 08CA875,
2009-Ohio-4830, ¶ 27.
Thus, exclusion of a statement improperly obtained in violation of the Sixth
Amendment right to counsel is properly achieved through the filing of a
pretrial motion to suppress.
{¶19} Here, Appellant's failure to file a motion to suppress and further
failure to object on these specific grounds at trial results in a waiver and is
fatal to his argument on appeal. See State v. Harris, 4th Dist. Adams No.
03CA760, 2003-Ohio-3476, ¶ 21 (the proper time to object to the admission
of evidence is not after the trial court has rendered a verdict); City of Logan
v. McKinney, 4th Dist. Hocking No. 95CA12, 1997 WL 79887, *2 (motions
to suppress evidence on the grounds that it was illegally obtained must be
filed prior to trial); State v. King, 4th Dist. Gallia No. 94CA9, 1994 WL
590434, *2 (failure to file proper motion to suppress is fatal to claim of
error); State v. Cross, 4th Dist. Highland No. 805, 1993 WL 171602, *3
(May 19, 1993) (failure to file motion to suppress or object at trial results in
Scioto App. No. 16CA3769 14
waiver); State v. Bradley, 4th Dist. Scioto No. 1583, 1987 WL 17303, *9
(Sept. 22, 1987) (failure to move prior to trial for suppression of certain
inculpatory statements made by a defendant during his detention constitutes
waiver of the defense or objection.). Accordingly, Appellant's second
assignment of error is overruled.
ASSIGNMENT OF ERROR III
{¶20} In his third assignment of error, Appellant contends that the
trial court committed plain error in allowing the jury to hear testimony
regarding his probation, which Appellant argues placed him under an “air of
criminality” throughout his trial. Appellant concedes that he did not object
to this testimony at trial and thus, asks this Court to review the argument for
plain error. As set forth above, the admission or exclusion of evidence
generally rests within the trial court's sound discretion. State v. Green,
supra, at ¶ 14. However, because Appellant did not object to the admission
of the probation officer's testimony at trial, we will review Appellant's
argument under a “plain error” standard of review.
{¶21} Failure to object to an alleged error waives all but plain error.
State v. Keeley, 4th Dist. Washington No. 11CA5, 2012–Ohio–3564, ¶ 28.
Notice of Crim.R. 52(B) plain error must be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage
Scioto App. No. 16CA3769 15
of justice. State v. Rohrbaugh, 126 Ohio St.3d 421, 2010–Ohio–3286, 934
N.E.2d 920, ¶ 6; State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus. To find plain error, the outcome of trial
must clearly have been otherwise. State v. McCausland, 124 Ohio St.3d 8,
2009–Ohio–5933, 918 N.E.2d 507, ¶ 15; State v. Braden, 98 Ohio St.3d 354,
2003–Ohio–1325, 785 N.E.2d 439, ¶ 50.
{¶22} Appellant argues that his probation officer should not have been
permitted to testify at trial because "his very identity as a probation officer
constituted the introduction of other bad acts evidence, namely, that
Appellant had been convicted of an unnamed crime." Appellant claims that
allowing his probation officer to testify violated Evid.R. 404(B) and R.C.
2945.59, which provide that evidence of other bad acts is not admissible to
establish a defendant's bad character or criminal propensity. Appellant
argues that no exceptions to these evidentiary rules applied to allow the
probation officer's testimony in this case.
{¶23} Evid.R. 404(B), provides as follows:
"(B) Other Crimes, Wrongs or Acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. In criminal cases,
the proponent of evidence to be offered under this rule shall
provide reasonable notice in advance of trial, or during trial if
Scioto App. No. 16CA3769 16
the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at
trial."
R.C. 2945.59, which governs proof of a defendant's motive, provides as
follows:
"In any criminal case in which the defendant's motive or intent,
the absence of mistake or accident on his part, or the
defendant's scheme, plan, or system in doing an act is material,
any acts of the defendant which tend to show his motive or
intent, the absence of mistake or accident on his part, or the
defendant's scheme, plan, or system in doing the act in question
may be proved, whether they are contemporaneous with or prior
or subsequent thereto, notwithstanding that such proof may
show or tend to show the commission of another crime by the
defendant."
{¶24} Further, even if other bad acts evidence is deemed admissible
under both Evid.R. 404(B) and R.C. 2945.59, "it must still pass the test set
forth in Evid.R. 403, namely, that the probative value of the evidence must
not be substantially outweighed by the danger of unfair prejudice, or the
danger of confusing or misleading the jury." State v. Anderson, 7th Dist.
Mahoning No. 03MA252, 2006-Ohio-4618, ¶ 31; citing State v. Myers, 97
Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186. Evid.R. 403, which
governs exclusion of relevant evidence on grounds of prejudice, confusion,
or undue delay, provides as follows:
"(A) Exclusion Mandatory. Although relevant, evidence is not
admissible if its probative value is substantially outweighed by
Scioto App. No. 16CA3769 17
the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.
(B) Exclusion Discretionary. Although relevant, evidence may
be excluded if its probative value is substantially outweighed by
considerations of undue delay, or needless presentation of
cumulative evidence."
{¶25} Appellant primarily relies upon the reasoning of State v.
Anderson, supra, in support of his argument. In Anderson, it was held that a
probation officer's testimony violated the general rule against other bad acts
evidence, where the State's overall purpose of having the probation officer
testify "was to show that he was Appellant's probation officer, and that
Appellant was subject to numerous conditions as part of his probation." Id.
at ¶ 68. In reaching its decision, however, the Anderson court noted that the
facts before it were distinguishable from the facts in State v. Cowans, 87
Ohio St.3d 68, 717 N.E.2d 298 (1999).
{¶26} In Cowans, the Supreme Court of Ohio held that a parole
officer may testify in the guilt phase of trial without violating Evid.R.
404(B) if the parole officer's status as a parole officer is "inextricably
linked" to the State's presentation of its case." Anderson at ¶ 73, describing
the holding in Cowans. The Anderson court further noted that in Cowans,
Cowan's status as a parolee was relevant because the parole officer searched
his house and found property that had been stolen, and the reason the parole
officer was able to search the house was because he was Cowan's parole
Scioto App. No. 16CA3769 18
officer, unlike the case presently before it. Id. at ¶ 74. The Cowans court
reasoned that without knowing the relationship between Cowans and the
probation officer, the jury could not have understood why the probation
officer was searching Cowan's home. Cowans at 78.
{¶27} We believe the facts presently before us are much more akin to
the facts in Cowans than Anderson. We disagree with Appellant's
contention that the State's purpose in having Appellant's probation officer
testify at trial was to illustrate that he was on probation and had violated
conditions of his probation. Instead, as argued by the State, the probation
officer's testimony was inextricably linked to the State's presentation of its
case. Here, Appellant's arrest occurred as a result of detectives working with
the probation department to identify Appellant and search his home. It was
the probation officer that ultimately identified Appellant, confirmed the
location of his residence and led the search, by virtue of the fact that
Appellant was subject to searches by the probation department.
{¶28} We further note that both Anderson and Cowans filed pretrial
motions in limine to prevent introduction of the evidence of prior bad acts.
Appellant herein did not, and did not object to the introduction of the
probation officer testimony at trial. In light of our plain error standard, and
also because we find the probation officer's testimony to be similar to
Scioto App. No. 16CA3769 19
testimony approved by the Supreme Court of Ohio in Cowans, we find no
error, let alone plain error, in the trial court's admission of the probation
officer's testimony. Accordingly, Appellant's third assignment of error is
overruled.
ASSIGNMENT OF ERROR I
{¶29} In his first assignment of error, Appellant contends that his
convictions for receiving stolen property, as well as his convictions for
possession and trafficking in drugs were against the manifest weight and
sufficiency of the evidence. Appellant primarily argues, with respect to the
receiving stolen property convictions, that he did not have reasonable cause
to believe four four-wheelers found on his property were stolen, and that he
had no knowledge that four additional four-wheelers found on a hill near his
house were even there. As to the drug possession and trafficking
convictions, Appellant argues that the State failed to demonstrate he had
actual or constructive possession of the drugs found in the safe located at his
home, and that the State failed to prove any hand-to-hand transaction during
the controlled buy.
{¶30} “When a court reviews a record for sufficiency, ‘[t]he 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
Scioto App. No. 16CA3769 20
elements of the crime proven beyond a reasonable doubt.’ ” State v.
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146; quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the
syllabus (1991); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).
“The court must defer to the trier of fact on questions of credibility and the
weight assigned to the evidence.” State v. Dillard, 4th Dist. Meigs No.
13CA9, 2014-Ohio-4974, ¶ 27; citing State v. Kirkland, 140 Ohio St.3d 73,
2014-Ohio-1966, 15 N.E.3d 818, ¶ 132.
{¶31} 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. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.
{¶32} “Although a court of appeals may determine that a judgment is
sustained by sufficient evidence, that court may nevertheless conclude that
the judgment is against the weight of the evidence.” Thompkins at 387. But
the weight and credibility of evidence are to be determined by the trier of
Scioto App. No. 16CA3769 21
fact. Kirkland at ¶ 132. The trier of fact is free to believe all, part, or none of
the testimony of any witness, and we defer to the trier of fact on evidentiary
weight and credibility issues because it is in the best position to gauge the
witnesses' demeanor, gestures, and voice inflections, and to use these
observations to weigh their credibility. Dillard at ¶ 28; citing State v. West,
4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23.
Trafficking and Possession of Heroin
{¶33} On appeal, Appellant challenges four of his six drug
convictions. Specifically, Appellant challenges his convictions on counts
one and two, which are the trafficking and possession of heroin charges
stemming from the controlled buy with the confidential informant. He also
challenges his convictions on counts seven and eight, which are the
trafficking and possession of heroin charges stemming from the discovery of
heroin found in a safe in the master bedroom of his home after law
enforcement searched his residence.
{¶34} As set forth above, Appellant was indicted on three counts of
trafficking in heroin and three counts of possession of heroin. R.C. 2925.03
governs trafficking offenses and provides, in pertinent part, as follows:
“(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a controlled
substance analog;
Scioto App. No. 16CA3769 22
(2) Prepare for shipment, ship, transport, deliver, prepare for
distribution, or distribute a controlled substance or a controlled
substance analog, when the offender knows or has reasonable
cause to believe that the controlled substance or a controlled
substance analog is intended for sale or resale by the offender
or another person.
***
(C) Whoever violates division (A) of this section is guilty of
one of the following:
***
(6) If the drug involved in the violation is heroin or a
compound, mixture, preparation, or substance containing
heroin, whoever violates division (A) of this section is guilty of
trafficking in heroin. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division (C)(6)(b), (c), (d),
(e), (f), or (g) of this section, trafficking in heroin is a felony of
the fifth degree, and division (B) of section 2929.13 of the
Revised Code applies in determining whether to impose a
prison term on the offender.
***
(c) Except as otherwise provided in this division, if the amount
of the drug involved equals or exceeds ten unit doses but is less
than fifty unit doses or equals or exceeds one gram but is less
than five grams, trafficking in heroin is a felony of the fourth
degree, and division (B) of section 2929.13 of the Revised
Code applies in determining whether to impose a prison term
for the offense. If the amount of the drug involved is within that
range and if the offense was committed in the vicinity of a
school or in the vicinity of a juvenile, trafficking in heroin is a
felony of the third degree, and there is a presumption for a
prison term for the offense.
***
(e) Except as otherwise provided in this division, if the amount
of the drug involved equals or exceeds one hundred unit doses
but is less than five hundred unit doses or equals or exceeds ten
grams but is less than fifty grams, trafficking in heroin is a
felony of the second degree, and the court shall impose as a
mandatory prison term one of the prison terms prescribed for a
Scioto App. No. 16CA3769 23
felony of the second degree. If the amount of the drug involved
is within that range and if the offense was committed in the
vicinity of a school or in the vicinity of a juvenile, trafficking in
heroin is a felony of the first degree, and the court shall impose
as a mandatory prison term one of the prison terms prescribed
for a felony of the first degree.”2
{¶35} R.C. 2925.11 governs possession offenses and provides, in
pertinent part, as follows:
“(A) No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.
***
(C) Whoever violates division (A) of this section is guilty of
one of the following:
***
(6) If the drug involved in the violation is heroin or a
compound, mixture, preparation, or substance containing
heroin, whoever violates division (A) of this section is guilty of
possession of heroin. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division (C)(6)(b), (c), (d),
(e), or (f) of this section, possession of heroin is a felony of the
fifth degree, and division (B) of section 2929.13 of the Revised
Code applies in determining whether to impose a prison term
on the offender.
***
(c) If the amount of the drug involved equals or exceeds fifty
unit doses but is less than one hundred unit doses or equals or
exceeds five grams but is less than ten grams, possession of
heroin is a felony of the third degree, and there is a presumption
for a prison term for the offense.
(d) If the amount of the drug involved equals or exceeds one
hundred unit doses but is less than five hundred unit doses or
2
Each trafficking count involved a different subsection of the statute based upon the amount of heroin
involved with each count. The amount of heroin involved as to each count is not at issue on appeal and
will not be detailed.
Scioto App. No. 16CA3769 24
equals or exceeds ten grams but is less than fifty grams,
possession of heroin is a felony of the second degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the second degree.”3
{¶36} As to counts one and two, the counts stemming from the
controlled buy, Appellant simply argues that the video of the controlled buy
did not reveal any hand-to-hand transaction of narcotics or money, and that
another individual, Brandi Fitzpatrick, was present during the transaction.
The State concedes that the video played for the jury does not show the
moment Appellant hands the heroin to the confidential informant and in
return receives the marked buy money. However, as argued by the State, the
video does show Appellant sitting in the confidential informant’s vehicle.
Further, the confidential informant testified that he made a transaction with
Appellant and then gave the heroin he bought from Appellant to narcotics
officers. Additionally, ninety dollars of the marked buy money was
recovered from Appellant’s person later that day during a traffic stop. As set
forth above, heroin was also discovered on Appellant’s person during the
traffic stop, but Appellant is not challenging those convictions on appeal.
Moreover, as noted by the State, Appellant made statements to his girlfriend
during a recorded jail telephone call that “they got the wired buy on me
3
As with the trafficking counts, each possession count involved a different subsection of the statute based
upon the amount of heroin involved with each count. The amount of heroin involved as to each count is
not at issue on appeal and will not be detailed.
Scioto App. No. 16CA3769 25
* * *.”
{¶37} With respect to Appellant’s argument that his convictions are
against the manifest weight of the evidence because the video does not
actually show him exchanging heroin for cash with the confidential
informant and that another individual, Brandi Fitzpatrick, was present at the
time, we note that:
“ ‘[D]irect evidence of a fact is not required. Circumstantial
evidence * * * may also be more certain, satisfying, and
persuasive than direct evidence.’ State v. Grube, 987 N.E.2d
287, 2013–Ohio–692, ¶ 30, quoting State v. Lott, 51 Ohio St.3d
160, 555 N.E.2d 293 (1990), citing Michalic v. Cleveland
Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 10, (1960), citing
Rogers v.[] Missouri Pacific RR Co, 352 U.S. 500[,] 508, [] 77
S.Ct. 443, 449, fn.17, (1957). Even murder convictions and
death sentences can rest solely on circumstantial evidence.
Grube, supra, citing State v. Apanovitch, 33 Ohio St.3d 19, 514
N.E.2d 394 (1987); State v. Nicely, 39 Ohio St.3d 147, 151, 529
N.E.2d 1236, 1239 (1988).’ ” State v. Adkins, 4th Dist. Scioto
No. 14CA3674, 2016-Ohio-7250, ¶ 15.
We also note in resolving conflicts of the evidence, the jury was in the best
position to observe the witnesses, weigh their demeanor, and any gestures or
voice inflections, and determine their credibility. The jury was instructed as
to the legal definitions of direct evidence, circumstantial evidence, and
credibility. The jury was instructed that as to the weight of the evidence,
they were free to believe all, part or none of any witness's testimony.
Scioto App. No. 16CA3769 26
{¶38} Based upon the record before us, we believe it was reasonable
for the jury to conclude, based upon the reasonable inferences it was
permitted to make, that even though hand-to-hand contact between
Appellant and the confidential informant could not be seen on the video,
Appellant did in fact sell heroin to the confidential informant. This
inference is supported by the fact that marked buy money from the
controlled buy, as well as additional heroin, was found on Appellant’s
person later that day. Further, the jury was free to believe all, part or none of
the confidential informant’s testimony, and it apparently found the testimony
to be credible. This credibility determination was properly within the
province of the jury and this Court will defer to that determination.
Accordingly, we reject Appellant’s argument that his convictions for counts
one and two are against the manifest weight of the evidence.
{¶39} As to counts seven and eight, which involve the charges
stemming from the heroin found in Appellant’s safe, the only argument
Appellant appears to raise is that the State failed to establish that he either
actually or constructively possessed the heroin found in the safe because
Appellant was not at home when it was discovered. Drug trafficking and
possession offenses both involve an element of knowledge. “A person acts
knowingly, regardless of his purpose, when he is aware that his conduct will
Scioto App. No. 16CA3769 27
probably cause a certain result or will probably be of a certain nature. A
person has knowledge of circumstances when he is aware that such
circumstances probably exist.” R.C. 2901.22(B). “[P]ossession” is defined
as “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.” R.C.
2925.01(K). “Possession may be actual or constructive.” State v. Moon,
supra, at ¶ 19; citing State v. Butler, 42 Ohio St.3d 174, 175, 538 N.E.2d 98(1989) (“[t]o constitute possession, it is sufficient that the defendant has
constructive possession”).
{¶40} “ ‘Actual possession exists when the circumstances indicate
that an individual has or had an item within his immediate physical
possession.’ ” State v. Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148,
895 N.E.2d 633, ¶ 13 (4th Dist.); quoting State v. Fry, 4th Dist. Jackson No.
03CA26, 2004-Ohio-5747, ¶ 39. “Constructive possession exists when an
individual knowingly exercises dominion and control over an object, even
though that object may not be within his immediate physical possession.”
State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus;
State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19. For
constructive possession to exist, the State must show that the defendant was
Scioto App. No. 16CA3769 28
conscious of the object's presence. Hankerson at 91; Kingsland at ¶ 13.
Both dominion and control, and whether a person was conscious of the
object's presence may be established through circumstantial evidence.
Brown at ¶ 19. “Moreover, two or more persons may have joint constructive
possession of the same object.” Id.{¶41} “Although a defendant's mere proximity is in itself insufficient
to establish constructive possession, proximity to the object may constitute
some evidence of constructive possession. * * * Thus, presence in the
vicinity of contraband, coupled with another factor or factors probative of
dominion or control over the contraband, may establish constructive
possession.” Kingsland at ¶ 13; State v. Criswell, 4th Dist. Scioto No.
13CA3588, 2014-Ohio-3941, ¶ 11.
{¶42} The following evidence supported the jury’s conclusion that
Appellant had knowledge of and exercised dominion and control over the
drugs found in the safe. Upon searching a residence which Appellant had
informed the probation department was his home, law enforcement
discovered an amount of heroin exceeding ten grams but less than fifty
grams, in a safe in the closet of Appellant’s master bedroom. Also found in
the bedroom were baggies and Mannitol. The State presented testimony at
trial that the baggies found were consistent with the baggies used in the
Scioto App. No. 16CA3769 29
controlled buy earlier that day and also found in Appellant’s pocket during
the traffic stop. The State presented further evidence that digital scales
containing Appellant’s fingerprints were found. Finally, the record indicates
that Mannitol is commonly used as a cutting agent for narcotics and that
digital scales are used to weigh narcotics.
{¶43} Further, recorded jail telephone calls between Appellant and his
girlfriend were played for the jury. Appellant states as follows during one of
the calls in response to his girlfriend telling him that had she known heroin
was in the safe, she would not have opened it for law enforcement during the
search:
“Exactly. That’s what I said. You didn’t know that she wanted
to leave it there. I didn’t tell you that she wanted to leave it
there. I didn’t tell you it was in there. I didn’t tell you she left
it there. I didn’t tell you that I got seven grams from her. She
was supposed to give me a thousand dollars on that bike and the
dope.”4
{¶44} Based on this evidence the jury could reasonably conclude that
Appellant knew about the heroin in the safe and that he exercised dominion
and control over the drugs. The evidence indicated Appellant constructively
possessed the heroin found in the safe located in the master bedroom of his
house, even though he was not home at the time, and that he additionally
4
The “she” Appellant is referencing is Brandi Fitzpatrick, who was present with Appellant during the
controlled buy.
Scioto App. No. 16CA3769 30
possessed it in a quantity, along with other items found in Appellant’s
master bedroom such as baggies, Mannitol, and digital scales, that
established not only drug possession, but drug trafficking. Contrary to his
suggestion that the heroin belonged to Brandi Fitzpatrick and not him,
Appellant’s statements to his wife on recorded jail phone calls indicated he
knew the heroin was in the safe. Further, even if the heroin was owned by
Brandi Fitzpatrick, the evidence indicated he had knowledge of it and jointly
possessed it with her.
{¶45} After reviewing the record, weighing the evidence and all
reasonable inferences, and considering the credibility of witnesses, we find
that the trial court did not clearly lose its way and create such a manifest
miscarriage of justice that we must reverse these drug convictions. Thus,
these convictions are not against the manifest weight of the evidence.
Moreover, “[w]hen an appellate court concludes that the weight of the
evidence supports a defendant's conviction, this conclusion necessarily also
includes a finding that sufficient evidence supports the conviction.” State v.
Adkins, 4th Dist. Lawrence No. 13CA17, 2014-Ohio-3389, ¶ 27. Having
already determined that Appellant’s drug trafficking and possession
convictions are not against the manifest weight of the evidence, we
necessarily reject Appellant’s additional claims that these convictions are not
Scioto App. No. 16CA3769 31
supported by sufficient evidence. Therefore, we overrule this portion of his
first assignment of error.
Receiving Stolen Property
{¶46} Appellant also contends that eight of his nine convictions for
receiving stolen property were not supported by sufficient evidence and
were against the manifest weight of the evidence. R.C. 2913.51 prohibits
receiving stolen property and provides, in pertinent part, as follows:
“(A) No person shall receive, retain, or dispose of property of
another knowing or having reasonable cause to believe that the
property has been obtained through commission of a theft
offense.
***
(C) Whoever violates this section is guilty of receiving stolen
property. Except as otherwise provided in this division or
division (D) of this section, receiving stolen property is a
misdemeanor of the first degree. If the value of the property
involved is one thousand dollars or more and is less than seven
thousand five hundred dollars, if the property involved is any of
the property listed in section 2913.71 of the Revised Code,
receiving stolen property is a felony of the fifth degree. If the
property involved is a motor vehicle, as defined in section
4501.01 of the Revised Code, if the property involved is a
dangerous drug, as defined in section 4729.01 of the Revised
Code, if the value of the property involved is seven thousand
five hundred dollars or more and is less than one hundred fifty
thousand dollars, or if the property involved is a firearm or
dangerous ordnance, as defined in section 2923.11 of the
Revised Code, receiving stolen property is a felony of the
fourth degree. If the value of the property involved is one
hundred fifty thousand dollars or more, receiving stolen
property is a felony of the third degree.”
Scioto App. No. 16CA3769 32
{¶47} Appellant first challenges his convictions of counts twelve,
fourteen, fifteen and seventeen, which stem from law enforcement’s
discovery of four stolen four-wheelers atop a hill near Appellant’s residence.
Appellant argues that these four-wheelers were found a significant distance
away from his house, and that the State failed to present any testimony or
evidence that Appellant knew of or had access to these four-wheelers.
Appellant further argues the State failed to provide any evidence which
indicated Appellant was in possession of these four-wheelers at any time.
{¶48} Like the drug possession and trafficking offenses discussed
above, the offense of receiving stolen property has a knowledge element. As
we have already explained, “[a] person has knowledge of circumstances
when he is aware that such circumstances probably exist.” R.C. 2901.22(B).
As set forth above, direct evidence of a fact is not required. State v. Adkins,
supra, at ¶ 15. As we reasoned in State v. Woodruff, 4th Dist. Ross No.
07CA2972, 2008-Ohio-967, ¶ 9, “[a]bsent an admission by a defendant, the
state must rely on circumstantial evidence to satisfy the reasonable cause to
believe element.” Here, Appellant’s argument that he had no knowledge
that four stolen four-wheelers were on a hill behind his house fails due to the
circumstantial evidence presented by the State at trial.
Scioto App. No. 16CA3769 33
{¶49} Contrary to Appellant’s argument that the four-wheelers on the
hill were a significant distance from his house, and that the State failed to
provide he had knowledge of, access to, or possession of the four-wheelers,
the State presented evidence that there was a well-worn path that began only
about fifty feet from Appellant’s house, right beside Appellant’s dog’s
house, which led directly to the four-wheelers on the hill. Photos of the area
were introduced at trial and show a path leading from where the four-
wheelers were parked on the hill to Appellant’s driveway. Further, and most
importantly, a key to one of these four four-wheelers was found inside
Appellant’s residence during a search of the house. The State was not
required to prove actual possession, but rather constructive possession may
suffice. Woodruff at ¶ 7. We believe the jury could reasonably conclude that
if Appellant had knowledge of and constructive possession of one of the
four-wheelers on the hill, he had knowledge of and possession of all of them.
{¶50} We likewise reject Appellant’s argument that the State failed to
prove he possessed these four-wheelers at any point, as the discovery of a
key to one of the four-wheelers in Appellant’s house constitutes
circumstantial evidence that would allow the jury to infer otherwise.
Additionally, the record reflects Appellant admitted to Detective Conkel that
once he was explicitly told the four-wheelers were stolen, he did not buy any
Scioto App. No. 16CA3769 34
more, but that he knew someone was going up on the hill. While R.C.
2913.51(A) explicitly prohibits a person from receiving stolen property, it
also prohibits a person from retaining it. “Retain” is defined as “[t]o
continue to hold, have, use, recognize, etc., and to keep.” State v. Steward,
4th Dist. Washington No. 02CA43, 2003-Ohio- 4082, ¶ 10; Citing Black's
Law Dictionary (5th Ed.). Even if he was not the purchaser of some of the
four-wheelers on the hill, we conclude Appellant’s act of retaining the four-
wheelers after he became aware they were stolen, and permitting someone
else, if not himself, to keep them on the hill by his house constituted a
violation of R.C. 2913.51(A) .
{¶51} Thus, accepting that Appellant either knew of or had reason to
believe that the four wheelers were on top of the hill, based upon the fact
that a path led directly from his house to the four-wheelers and a key to one
of the four-wheelers was found in his house, the jury could permissively
infer that Appellant had knowledge of and constructively possessed them
and also had knowledge they were stolen, based upon the additional
evidence introduced by the State indicating that the four-wheelers had been
hot-wired. Accordingly, we cannot conclude that Appellant’s convictions on
counts twelve, fourteen, fifteen and seventeen are against the manifest
weight of the evidence.
Scioto App. No. 16CA3769 35
{¶52} Our analysis, however, does not end here. Appellant also
challenges his convictions on counts nine, ten, thirteen and sixteen, which
stem from law enforcement’s discovery of four stolen four-wheelers right
outside of Appellant’s residence. Appellant concedes he knew these four-
wheelers were at his residence, but he contends the State failed to
demonstrate he either knew or had reasonable cause to believe the four-
wheelers were stolen. Appellant contends the State’s presentation of
evidence as to the condition of the four-wheelers, including decals being
painted over, and the price Appellant paid for the four-wheelers is not
enough to satisfy knowledge element of the offense of receiving stolen
property.
{¶53} Once again, we are reminded that “[a] person acts knowingly,
regardless of his purpose, when he is aware that his conduct will probably
cause a certain result or will probably be of a certain nature. A person has
knowledge of circumstances when he is aware that such circumstances
probably exist.” R.C. 2901.22(B). As pointed out by the State, one of the
four-wheelers discovered just outside of Appellant’s house had been hot-
wired and the other three had decals that had been painted over with spray
paint. In Appellant’s interview with Detective Conkel that was played for
the jury, Appellant stated that he bought all of the four-wheelers that were
Scioto App. No. 16CA3769 36
sitting in his yard. Later in the interview Appellant’s stated he had only
purchased two of the four-wheelers, but that he “kind of figured” that the
four-wheelers he purchased were stolen because of the good price ($300.00)
and also because he knew that the seller could not have that many four-
wheelers. Appellant further stated that he was simply holding one of the
more expensive four-wheeler’s (a Can-Am) for another person, but was also
riding it, which is evidence that even if Appellant did not actually purchase
the four-wheeler, he was retaining stolen property by holding it and riding it.
{¶54} Further, and importantly, we have already determined under
Appellant’s second assignment of error that voluntary statements he made to
Detective Conkel while having his fingerprints taken were properly admitted
at trial. Detective Conkel testified that when having his fingerprints taken,
Appellant voluntarily stated “I’m only guilty of four of those.” She testified
he further stated “I’m not guilty of them other four. * * * I was just holding
them for buddies and the other one was Brent’s.” Finally, recorded jail calls
between Appellant and his girlfriend were played for the jury. In the first
call Appellant can be heard telling his girlfriend that he bought two four-
wheelers, but that they had keys to them and that he didn’t ask and the seller
did not say if they were stolen. In the second call Appellant can be heard
telling his girlfriend that “only three of them [four-wheelers] was mine.”
Scioto App. No. 16CA3769 37
{¶55} After reviewing the record, weighing the evidence and all
reasonable inferences, and considering the credibility of witnesses, we find
that the trial court did not clearly lose its way and create such a manifest
miscarriage of justice that we must reverse these receiving stolen property
convictions. Thus, these convictions are not against the manifest weight of
the evidence. Moreover, and as we explained above, “[w]hen an appellate
court concludes that the weight of the evidence supports a defendant's
conviction, this conclusion necessarily also includes a finding that sufficient
evidence supports the conviction.” State v. Adkins, supra, ¶ 27. Having
already determined that Appellant’s receiving stolen property convictions
are not against the manifest weight of the evidence, we necessarily reject
Appellant’s additional claims that these convictions are not supported by
sufficient evidence. Therefore, we also overrule this portion of his first
assignment of error. Accordingly, Appellant’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR IV
{¶56} In his fourth and final assignment of error, Appellant contends
that errors committed during his trial deprived him of a fair trial and require
a reversal of his convictions. We disagree. As set forth above, we have
found no merit to the errors Appellant alleges occurred at trial. If a
Scioto App. No. 16CA3769 38
reviewing court finds no prior instances of error, then the cumulative error
doctrine does not apply. State v. Smith, 2016-Ohio-5062, 70 N.E.3d 150,
¶ 65 (4th Dist.); quoting State v. Jackson, 4th Dist. Pickaway No. 11CA20,
2012-Ohio-6276, ¶ 52; quoting State v. McKnight, 4th Dist. Vinton No.
07CA665, 2008-Ohio-2435, ¶ 108. As such, Appellant’s fourth assignment
of error is overruled. Accordingly, the judgment of the trial court is
affirmed.
JUDGMENT AFFIRMED.
Scioto App. No. 16CA3769 39
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Concurs in Judgment and Opinion as to Assignments of Error I,
III, and IV; Concurs in Judgment Only as to Assignment of
Error II.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with the clerk.