State v. Kolle , 2022 Ohio 4322 ( 2022 )

[Cite as State v. Kolle, 2022-Ohio-4322.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
State of Ohio, : Case No. 21CA8
Plaintiff-Appellee, :
DECISION AND
v. : JUDGMENT ENTRY
John Lamar Kolle,1 :
Defendant-Appellant. : RELEASED 12/02/2022
______________________________________________________________________
APPEARANCES:
John Lamar Kolle, Columbus, Ohio, pro se appellant.
Judy C. Wolford, Pickaway County Prosecutor, Circleville, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} John Lamar Kolle appeals from a judgment of the Pickaway County Court
of Common Pleas convicting him of aggravated trafficking in drugs (Count Nine) and
engaging in a pattern of corrupt activity (Count One). Kolle contends that there is
insufficient evidence to support his convictions and that the trial court erred when it
allowed testimony concerning money allegedly recovered during the execution of a
search warrant at his apartment and admitted into evidence a photograph of that money.
For the reasons that follow, we conclude that there is sufficient evidence to support the
conviction on Count Nine, but not Count One. We also conclude that the trial court did
not abuse its discretion when it admitted the photograph. But the court did abuse its
1Appellant capitalizes the “m” in his middle name in his appellate briefs. In this decision, we have spelled
his name as it appears in the judgment entry from which he appeals.
Pickaway App. No. 21CA8 2
discretion in allowing testimony about where the money in the photograph was found,
which was not based on personal knowledge. The state has not met its burden to show
this error did not affect Kolle’s substantial rights. Thus, we affirm in part and reverse in
part the trial court’s judgment, vacate the convictions, and remand for the trial court to
enter a judgment of acquittal on Count One and conduct a new trial on Count Nine.
I. FACTS AND PROCEDURAL HISTORY
A. The Indictment
{¶2} On November 7, 2019, the Pickaway County grand jury returned a 14-count
indictment against Kolle and two others. The indictment charged Kolle with seven counts:
(1) engaging in a pattern of corrupt activity on or about September 1, 2019, through
October 23, 2019 (Count One); (2) aggravated trafficking in drugs on or about September
17, 2019 (Count Five); (3) aggravated possession of drugs on or about September 17,
2019 (Count Six); (4) aggravated trafficking in drugs on or about September 18, 2019
(Count Seven); (5) aggravated possession of drugs on or about September 18, 2019
(Count Eight); (6) aggravated trafficking in drugs on or about September 24, 2019 (Count
Nine); and (7) aggravated possession of drugs on or about September 24, 2019 (Count
Ten). Each count carried a forfeiture specification. After Kolle pleaded not guilty, the
court dismissed Counts Seven and Eight on the state’s motion, and the matter proceeded
to a jury trial.
B. The Evidence
1. Testimony of Detective Sergeant Alan Lewis
{¶3} Detective Sergeant Alan Lewis of the Ross County Sheriff’s Office testified
that he is assigned to the U.S. 23 Major Crimes Task Force. In 2019, Angela Auten
Pickaway App. No. 21CA8 3
agreed to be a confidential informant for the task force and gave Det. Lewis a list of people
she knew who trafficked drugs, which included James Shea. Auten introduced Shea to
Det. Lewis, who was working undercover. Det. Lewis testified about four videotaped
controlled buys he made from Shea at a Love’s truck stop in Pickaway County using
money supplied by Lieutenant John Strawser.
{¶4} The first buy was initially scheduled for September 1, 2019, but Shea was
stopped by police. His passenger, who was not Auten, hid the drugs, and the buy was
rescheduled for September 3, 2019. Auten accompanied Shea to the buy. Det. Lewis
testified that he was supposed to buy “a couple of ounces of methamphetamine” from
Shea for $1,000. On the video footage, Det. Lewis can be heard counting out the money
and asks when Shea is “gonna be good again.” Shea says, “I gotta feel him out first
before I * * * re-up,” but then states, “I can get it elsewhere.” Det. Lewis testified that
Exhibit 3—a photograph of a clear bag containing a substance—depicted the
methamphetamine he bought from Shea and gave Lt. Strawser for processing. According
to a laboratory report from the Ohio Bureau of Criminal Investigation (“BCI”), the
“crystalline substance” weighed 55.29 grams and was “found to contain
Methamphetamine.”
{¶5} On September 5, 2019, Det. Lewis and Lt. Strawser went to Columbus with
Auten for the purpose of having her identify the location of Shea’s supplier. Auten pointed
out an apartment complex near “Cleveland and Radnor.” She identified the supplier’s
apartment building and pointed out two different apartments, but Det. Lewis could not
recall whether one of them was Kolle’s apartment, which law enforcement later raided.
Pickaway App. No. 21CA8 4
{¶6} The second buy occurred on September 17, 2019. Prior to the buy, Det.
Lewis and Lt. Strawser met with the Franklin County Sheriff’s Office Special Investigations
Unit (“SIU”) to get assistance with identifying the supplier. Shea came to the buy alone.
Det. Lewis testified that he was supposed to buy three ounces of methamphetamine from
Shea for $2,200, but during the buy, Shea told Det. Lewis he only had an ounce and sold
it to Det. Lewis for $500. On the video footage, Det. Lewis asks Shea, “Your phone not
working?” Shea says, “No, it’s off right now,” and he needs “Wi-Fi to make a call.” Det.
Lewis asks Shea whether he got “the stuff,” and Shea says, “I got one.” Det. Lewis says,
“You only got one?” Shea says that his “boy freaked out” and “got spooked” because an
“undercover ran through his parking lot taking pictures and shit.” Shea mentions that he
was “up there” since 10:00 a.m. and went to a McDonald’s to try to get a signal to try to
call “him.” At one point, Det. Lewis says that he was “hoping for a bunch more” but asks
Shea, “How much for the one?” Shea says, “Five,” and later in the footage, Det. Lewis
counts to five. Shea tells Det. Lewis he will “try again” and that Shea has “another guy”
he “can go through.” Later, Shea says, “I just went up there for no reason, you know what
I mean, cause I had that already. I already had that. I was gonna add two more to it.”
Det. Lewis testified that Exhibit 6—a photograph of a clear bag containing a substance
on top of an evidence bag which describes the evidence as a “Crystal Like Substance”—
depicted the methamphetamine he bought from Shea and gave Lt. Strawser for
processing. However, Det. Lewis admitted that he did not test or weigh the substance.
{¶7} The third buy occurred on September 18, 2019. Auten accompanied Shea.
Det. Lewis testified that he was supposed to buy two ounces of methamphetamine from
Shea for $1,000 and that the exchange occurred. On the video footage, Det. Lewis can
Pickaway App. No. 21CA8 5
be heard counting out the money. Det. Lewis tells Shea he needs “four to six” more
ounces the next week, and Shea says he may need the cash upfront. Shea says, “I’ll talk
to him” and “get all that in the works.” Later, Det. Lewis asks, “Will your dude be good for
that?” Shea says, “Should be.” Det. Lewis asks what “his deal” was yesterday. Shea
says, “He was fucking paranoid.” Shea explains that “he” complained that Shea called
too early and “changed places” and said that right before Shea “pulled in a fuckin’
undercover pulled through his parking lot and was taking pictures of his place and his
vehicle and shit.” Shea makes an indiscernible comment, and Det. Lewis asks whether
“this stuff came from the same guy.” Shea says, “Yeah.” Det. Lewis says, “So what did
you do go back up again?” Shea says, “Yeah,” and that he “made two trips up there
yesterday.” Det. Lewis says, “Well he should have made gave you a fuckin’ discount then
[sic],” and Shea says, “He should have, but he didn’t.” Det. Lewis testified that to his
knowledge, Auten was not with Shea when he purchased the drugs sold to Det. Lewis
that day. Det. Lewis testified Exhibit 7—a photograph of what appears to be a clear bag
containing a substance on top of an evidence bag which describes the evidence as a
“Crystal Substance”—depicted the methamphetamine he bought from Shea and gave Lt.
Strawser for processing. However, Det. Lewis admitted he did not test or weigh the
substance.
{¶8} The fourth buy occurred on September 24, 2019. Det. Lewis testified that
he was supposed to buy six ounces of methamphetamine from Shea for $2,800. Det.
Lewis testified that around 4:40 p.m., he met Shea and Auten and gave Shea $2,800, but
Shea did not give him drugs in return at that time. On the video footage, Det. Lewis
counts out the money and asks if Shea is going with his “regular guy” or “someone
Pickaway App. No. 21CA8 6
different.” Shea says it will be the “same guy,” that he “cut me a little slack on this,” and
that if you “buy more than four he cuts a little slack.” Shea says he will return in “an hour
and a half tops.” However, Shea and Auten did not return to Love’s to complete the
exchange until around 8:30 p.m. On the video footage, Shea explains the delay occurred
because, “I had to wait for him. He had to go pick it up and come back.” Shea mentions
Columbus, and Det. Lewis says that it sounds like Shea has “a good guy up there you
can go with.” Shea agrees. Det. Lewis testified that Exhibit 8—a photograph of a white
bag on top of an evidence bag which describes the evidence as a “Crystal Like
Substance”—depicted the methamphetamine he bought from Shea and gave Lt.
Strawser. Det. Lewis admitted he did not “measure” the drugs. Det. Lewis testified that
after Kolle’s arrest on September 25, 2019, Det. Lewis made one more large purchase of
drugs from Shea, who got those drugs from a “different source.”
2. Testimony of Lieutenant John Strawser
{¶9} Lt. Strawser of the Pickaway County Sheriff’s Office testified that in
September 2019, he was assigned to the task force. He testified that prior to a narcotics
purchase, the buy money is photographed or the serial numbers on it are logged. Lt.
Strawser identified photographs of the buy money used in the four controlled buys from
Shea, which the trial court admitted into evidence. Lt. Strawser testified that after a buy,
he photographs the evidence purchased, and it is sealed in a bag and submitted to BCI
for testing and weighing. At one point during Lt. Strawser’s testimony, defense counsel
objected “to continuously calling these items ‘drugs’ and ‘narcotics’ ” because it had “not
been determined,” and the trial court agreed the term “substance” should be used.
Pickaway App. No. 21CA8 7
{¶10} Lt. Strawser testified about three additional events related to the controlled
buys. On September 5, 2019, he went to Columbus with Det. Lewis and Auten for the
purpose of identifying Shea’s supplier. They went to the intersection of Cleveland Avenue
and Radnor Road. There was an apartment complex with two-story buildings with five or
six apartments on each story. They were able to identify the supplier’s building, but not
the exact apartment. Auten said that she thought the supplier lived in Apartment C, but
that she “was parked down the road.” Through later surveillance, law enforcement
learned the suspected supplier—Kolle—lived in Apartment A.
{¶11} On September 17, 2019, Lt. Strawser participated in a surveillance
operation with SIU in the vicinity of Kolle’s apartment. Auten was supposed to be coming
there with Shea, and the goal of the operation was to witness Shea purchase drugs from
Kolle and then sell them to Det. Lewis at a controlled buy later in the day. However, Shea
came to Columbus without Auten. Shea drove to a McDonald’s and sat there for a while
on his phone. At some point, Kolle caught one of the surveillance team members trying
to take a picture of his vehicle and drove around in a manner typical of drug traffickers
who think they are under surveillance. Later, Shea and Kolle met in an alley behind the
apartment complex. Afterwards, Shea went to another McDonald’s and then met Det.
Lewis.
{¶12} On the morning of September 25, 2019, law enforcement officers executed
a search warrant at Kolle’s apartment. Strawser testified that Kolle was taken into custody
and that his apartment and vehicles were searched. The prosecutor asked Lt. Strawser,
“And what did you find,” and defense counsel objected on the ground that there was “no
basis” for what Lt. Strawser “was about to testify to.” The court stated, “Well, I’m going to
Pickaway App. No. 21CA8 8
wait. Lay the foundation.” The prosecutor then asked Lt. Strawser, “Did you find anything
that related to Pickaway County,” and Lt. Strawser testified, “Yes, we did.” Defense
counsel objected and stated that he would like to know if Lt. Strawser “found it” and “has
personal knowledge.” The court overruled the objection. Lt. Strawser testified that $2,030
of the September 24th buy money was found. The prosecutor asked to approach Lt.
Strawser with Exhibit 12, a photograph of money and an evidence bag. Defense counsel
objected to the photograph because it was “not the original,” “not the best piece,” and “a
copy.” The court overruled the objection. Lt. Strawser identified the photograph as being
of “the $2,030 of buy money that we had taken from Mr. Kolle,” which Lt. Strawser
determined from the serial numbers.
{¶13} Later, Lt. Strawser testified that for safety reasons, he was across the street
from Kolle’s apartment when the money was found. He testified the apartment was very
small, and about 15 members of the Franklin County SWAT team went inside. The SWAT
team removed Kolle from the apartment, and the “Franklin County Sheriff’s Office” told
Lt. Strawser the money was found on Kolle—in his wallet and pants pocket. Lt. Strawser
testified that he “would imagine” SWAT team members and SIU detectives handled the
money before he did. He acknowledged the “chain of custody” notes on the evidence
bag in Exhibit 12 state “Phillips” gave him the money, but Lt. Strawser suggested that was
not the case and that Officer Phillips’s name was only on the bag because he was “the
case agent.” At the request of defense counsel, Lt. Strawser reviewed an affidavit related
to the search which was not admitted into evidence and then testified that some money
was found on a table in the apartment and that according to Officer Phillips, no money
was found on Kolle’s person. Lt. Strawser testified that the money was counted at the
Pickaway App. No. 21CA8 9
SIU office “[d]irectly after the search.” Detective Elise Hardee put the wallet in a bag and
took it to the office. He was present when Det. Hardee went through the money in the
wallet, and he saw the serial numbers on the money as it was extracted from the wallet.
They “compared the buy money -- the pictures of the buy money to the pictures of the
money in [Kolle’s] wallet.” Defense counsel later objected to Exhibit 12 again, stating:
There was a clear break in the chain of custody. These are not the originals.
These are unclear photocopies. The State had the originals. They chose
to dispose of the originals before I could ever review them. This was not
self-authenticated. It does not say on there the time and date and location
that this money was retrieved. It’s simply a rough photocopy of cash. And
there is a serious break in the chain of custody.
The court overruled the objection and admitted the exhibit.
3. Testimony of Angela Auten
{¶14} Auten testified that she has a misdemeanor criminal record. She agreed to
be an informant for money, maybe $2,000 in total, and to “get out of” charges for
interference with custody, contributing to the delinquency of a minor, and violating
probation. She was a drug user at the time and agreed to participate in controlled buys
from Shea, her friend and regular dealer whom she had sold methamphetamine for in the
past. In September 2019, Auten accompanied Shea on trips to Kolle’s apartment in
Columbus to buy methamphetamine. Auten had seen Kolle at Shea’s home once and
knew he “was the dope man.” However, she never talked to Kolle or entered his
apartment. During the trips, she waited in a truck and saw Shea walk up the stairs of an
apartment building and return about 10 minutes later. Although she did not witness any
transactions between Shea and Kolle, she overhead phone calls between them, and
Shea told her “what he was doing.”
Pickaway App. No. 21CA8 10
{¶15} Auten initially testified that she was present for the September 3rd controlled
buy and that the drugs came from Kolle. But on cross-examination, she admitted that
she was not sure whether she was present that day. Auten could not recall the events of
September 17th and 18th. She testified that she was present for the September 24th
controlled buy. After the money exchange, she and Shea went to Kolle’s apartment and
then to Love’s “to give the dope” to Det. Lewis. When asked if she was involved in any
transactions on October 23rd she testified: “Probably. I don’t know. I don’t know the
dates. I do not remember the dates.” Later, she testified that she was present for a buy
on that date and that the drugs came from Kolle. Defense counsel said, “Do you not recall
Lamar Kolle was in jail on October 23rd?” Auten said, “Okay. If we went to Columbus to
buy dope, then we had bought from him. I’m telling you.”
4. Testimony of Detective Elise Hardee
{¶16} Det. Hardee of the Franklin County Sheriff’s Office SIU testified that on
September 17, 2019, she assisted Det. Lewis and Lt. Strawser with surveillance for a
narcotics transaction near Cleveland Avenue and Radnor Avenue. She saw Kolle exit
Apartment A on the second floor of an apartment building and meet Shea in an alley. She
“observed an exchange,” but was parked one street over from the alley and could not tell
what was exchanged or whether both men had something to exchange.
C. The Verdict and Sentencing
{¶17} Prior to resting its case, the state moved to dismiss Counts Six and Ten,
i.e., the remaining aggravated possession of drugs counts, because the court would not
let the state introduce laboratory reports related to those offenses. The court granted the
motion to dismiss. At some point, the state also moved to dismiss the forfeiture
Pickaway App. No. 21CA8 11
specifications, and the court granted that motion as well. Kolle made a Crim.R. 29(A)
motion for judgment of acquittal on the remaining charges, which the trial court denied.
Thus, the court instructed the jury on Counts One, Five, and Nine. The jury found Kolle
not guilty of Count Five, but guilty of Counts One and Nine. The trial court denied Kolle’s
post-verdict motion for judgment of acquittal and sentenced him.
II. ASSIGNMENTS OF ERROR
{¶18} Kolle presents three assignments of error2:
I. The state presented insufficient evidence to support all of the essential
elements of the charges of a first-degree engaging in a pattern of corrupt
activity conviction in violation of R.C. 2923.32(A)(1) beyond a reasonable
doubt, and appellant’s conviction for engaging in a corrupt activity therefore
violates his rights to due process.
II. The state presented insufficient evidence to support all of the essential
elements of the charges of a first-degree aggravated trafficking in drugs
conviction in violation of R.C. 2925.03(A)(1)/(C)(1)(e) beyond a reasonable
doubt. Therefore, the appellant’s conviction violates his right to due process
* * *.
III. The court erred in allowing Detective Strawser’s testimony concerning
money allegedly recovered in the search of appellant’s apartment and in
admitting State’s Exhibit 12, the photograph of that money, because Det.
Strawser did not have personal knowledge of the search and [seizure] and
the exhibit was not properly authenticated.
For ease of discussion, we review the assignments of error out of order.
III. SUFFICENCY OF THE EVIDENCE
{¶19} In reviewing the sufficiency of the evidence for a conviction, “[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 elements of the crime proven
beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
2The assignments of error are taken from the Table of Contents of the appellant’s brief. There are slight
variations in how they are stated in other parts of the brief.
Pickaway App. No. 21CA8 12
paragraph two of the syllabus, superseded by constitutional amendment on other grounds
as stated in State v. Smith, 80 Ohio St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4, and
following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[T]he
reviewing court considers all the evidence admitted against the appellant at trial.” State
v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 80, citing Lockhart
v. Nelson, 488 U.S. 33, 40-42, 109 S.Ct. 285, 102 L.E.2d 265 (1988). “[W]e must consider
whether the evidence that the state offered and the trial court admitted, whether the trial
court admitted the evidence erroneously or not, would have been sufficient to sustain a
guilty verdict.” State v. Dotson, 2018-Ohio-2481, 114 N.E.3d 390, ¶ 64 (7th Dist.).
{¶20} “A sufficiency assignment of error challenges the legal adequacy of the
state’s prima facie case, not its rational persuasiveness.” State v. Anderson, 4th Dist.
Highland No. 18CA14, 2019-Ohio-395, ¶ 13. “That limited review does not intrude on the
jury’s role ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.’ ” Musacchio v. United States,
577 U.S. 237, 243, 136 S.Ct. 709, 193 L.Ed.2d 639 (2016), quoting Jackson at 319. “A
conviction that is based on legally insufficient evidence constitutes a denial of due
process.” State v. Bradford, 4th Dist. Adams No. 11CA928, 2013-Ohio-480, ¶ 13. And
“[i]f the evidence is legally insufficient, ‘the Double Jeopardy Clause precludes a second
trial’; the ‘only “just” remedy available’ is ‘the direction of a judgment of acquittal.’ ” State
v. Montgomery, 4th Dist. Ross No. 19CA3679, 2021-Ohio-1831, ¶ 19, quoting Burks v.
United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.E.2d 1 (1978).
Pickaway App. No. 21CA8 13
A. Aggravated Trafficking in Drugs
{¶21} In his second assignment of error, Kolle contends that the state presented
insufficient evidence to support his conviction on Count Nine, aggravated trafficking in
drugs on or about September 24, 2019. Kolle acknowledges one can traffic by selling or
offering to sell a controlled substance, but asserts the state “alleged a direct sale where
drugs were recovered and subjected to testing.” He claims that pursuant to State v.
Chandler, 109 Ohio St.3d 223, 2006-Ohio-2285, 846 N.E.2d 1234, as clarified in Garr v.
Warden, Madison Corr. Inst., 126 Ohio St.3d 334, 2010-Ohio-2449, 933 N.E.2d 1063, the
state had to prove there was a detectable amount of a relevant controlled substance in
what it recovered. Kolle claims the state failed to prove the identity and weight of the
substance recovered because the trial court did not admit the laboratory report related to
it, and the state conceded its failure when it dismissed Count Ten. Kolle suggests
Chandler precludes the use of circumstantial evidence to prove Count Nine and that R.C.
2925.03(I) does not impact Chandler as evidenced by Garr; State v. Davis, 2017-Ohio-
495, 85 N.E.3d 136 (12th Dist.); and State v. Siggers, 9th Dist. Medina No. 09CA0028-
M, 2010-Ohio-1353. He also directs our attention to State v. Bledsoe, 5th Dist. Stark No.
2003CA00403, 2004-Ohio-4764. In addition, Kolle asserts that the state failed to present
even circumstantial evidence that he sold or offered to sell a controlled substance. He
maintains that there is no evidence he made a verbal offer to sell methamphetamine,
knew of or participated in Shea’s offer to sell to Det. Lewis, presented drugs for
acceptance, or represented the substance at issue to be methamphetamine.
Pickaway App. No. 21CA8 14
1. Relevant Statutory Provisions
{¶22} R.C. 2925.03(A)(1) states: “No person shall knowingly * * * [s]ell or offer to
sell a controlled substance * * * [.]” The trial court instructed the jury that the term “sell”
included “delivery, barter, exchange, transfer or gift, or offer thereof, and each such
transaction made by any person, whether as principal, proprietor, agent, servant, or
employee.” See R.C. 3719.01(U) (defining “sale” in a similar manner); see also R.C.
2925.01(A) (stating that as used in R.C. Chapter 2925, “sale” has the same meaning as
in R.C. 3719.01). The trial court instructed the jury that the term “offer” meant “to present
for acceptance or rejection.”
{¶23} R.C. 2925.03(C)(1) states that “[i]f the drug involved in the violation is any
compound, mixture, preparation, or substance included in schedule I or schedule II, * * *
whoever violates division (A) of this section is guilty of aggravated trafficking in drugs.”
R.C. 2925.03(C)(1)(e) makes the offense a first-degree felony “[i]f the amount of the drug
involved equals or exceeds fifty times the bulk amount but is less than one hundred times
the bulk amount.” R.C. 2925.03(I) states: “As used in this section, ‘drug’ includes any
substance that is represented to be a drug.” The trial court instructed the jury that
methamphetamine is a schedule II controlled substance and that the bulk amount is three
grams.
2. Inapposite Authority
{¶24} Chandler is inapposite. In Chandler, at separate trials, juries found co-
defendants guilty of trafficking in cocaine in violation of prior versions of R.C.
2925.03(A)(1) and 2925.03(C)(4)(g). Chandler, 109 Ohio St.3d 223, 2006-Ohio-2285,
846 N.E.2d 1234, at ¶ 4. Although testing revealed the substance offered as crack
Pickaway App. No. 21CA8 15
cocaine was baking soda, id. at ¶ 3, both juries found that the amount of the drug involved
equaled or exceeded 100 grams of crack cocaine, id. at ¶ 4. The Supreme Court of Ohio
explained that “a person can be convicted for offering to sell a controlled substance in
violation of R.C. 2925.03(A)(1) without actually transferring a controlled substance to the
buyer,” so there was “no doubt” that the “convictions can stand despite the fact that the
substance offered as crack cocaine was actually baking soda.” Id. at ¶ 9. However, the
issue was “whether R.C. 2925.03(C)(4)(g), the specific section relating to major-drug-
offender penalties, provides a penalty for offering to sell crack cocaine when the
substance offered as crack cocaine does not actually contain any detectable amount of
the drug.” (Emphasis sic.) Id.
{¶25} The court explained that “[t]he General Assembly has authorized a
hierarchy of criminal penalties for drug trafficking based upon the identity and amount of
the controlled substance involved.” Id. at ¶ 18. “By the terms of the penalty statute for
cocaine, R.C. 2925.03(C)(4), the substance involved in the violation is to be cocaine or,
at the very least, ‘a compound, mixture, preparation, or substance containing cocaine.’ ”
(Emphasis sic.) Id. at ¶ 18. “This language presumes that a detectable amount of cocaine
is present within the substance before the penalty enhancement applies.” Id. Thus, “[a]
substance offered for sale must contain some detectable amount of the relevant
controlled substance before a person can be sentenced as a major drug offender
under R.C. 2925.03(C)(4)(g).” Id. at syllabus. The defendants could not be sentenced
under that provision because the “finding that the amount of the drug equaled or exceeded
100 grams of crack cocaine was contrary to fact, for the substance involved was 130.87
grams of baking soda.” Id. at ¶ 16.
Pickaway App. No. 21CA8 16
{¶26} In Garr, the Supreme Court of Ohio considered the following certified
question of state law from a federal court:
“Whether the Supreme Court of Ohio’s decision in State v. Chandler * * *
extends to cases where the substance offered for sale was never observed,
tested, or recovered to ascertain whether it contained a detectable amount
of the controlled substance, but no affirmative evidence was presented to
call into question the defendant’s representation in his offer to sell, or to
refute the jury’s factual finding, that the substance was in fact a controlled
substance in an amount that equaled or exceeded 1000 grams.”
Garr, 126 Ohio St.3d 334, 2010-Ohio-2449, 933 N.E.2d 1063, at ¶ 1. The Supreme Court
answered the question in the negative and clarified “Chandler does not extend to cases
where a substance offered for sale is not recovered or tested in order to ascertain whether
it contains a detectable amount of a controlled substance.” Id. at ¶ 2. The court explained:
Chandler did not address the principle that the state can establish
any element of any crime through circumstantial evidence. As we stated in
State v. Jenks (1991), 61 Ohio St.3d 259, 272-273, 574 N.E.2d 492, “there
is but one standard of proof in a criminal case, and that is proof of guilt
beyond a reasonable doubt. This tenet of the criminal law remains true,
whether the evidence against a defendant is circumstantial or direct.”
Our decision in Chandler that a substance offered for sale must
contain “some detectable amount” of the relevant controlled substance
before a person can be sentenced as a major drug offender is limited to
those cases where the substance offered for sale is recovered and
subjected to testing to determine whether it contains a detectable amount
of the drug offered for sale. It does not apply to situations where no drug is
recovered and no testing is performed. Hence, where an offender offers to
sell a controlled substance in a quantity that would implicate the MDO
specification, and where no substance is ever recovered or
tested, Chandler is factually distinguishable, as it is a counterfeit drug case
where the alleged drug was recovered and tested.
Therefore, Chandler does not apply to the situation as presented here
where [the defendant] offered to sell a drug that was not recovered. In such
a case, the offender may be convicted of an MDO specification in a properly
proven case.
Id. at ¶ 27-28.
Pickaway App. No. 21CA8 17
{¶27} Chandler, as clarified by Garr, does not support the conclusion that because
the state recovered and tested the substance at issue in Count Nine, it could not have
proven the elements of R.C. 2925.03(A)(1) and (C)(1)(e) unless test results showing a
detectable amount of methamphetamine had been admitted into evidence. As Garr
observed, “Chandler did not address the principle that the state can establish any element
of any crime through circumstantial evidence.” Garr at ¶ 27. Moreover, Chandler
recognized that “a person can be convicted for offering to sell a controlled substance in
violation of R.C. 2925.03(A)(1) without actually transferring a controlled substance to the
buyer.” Chandler, 109 Ohio St.3d 223, 2006-Ohio-2285, 846 N.E.2d 1234, at ¶ 9. The
problem in Chandler arose because the penalty provision required proof that the
substance offered for sale contained cocaine, and testing showed the substance in that
case was baking soda. Id. at ¶ 3, 18.
{¶28} In this case, no test results were admitted into evidence showing whether
the substance at issue in Count Nine was methamphetamine or not, and unlike the
penalty provision in Chandler, R.C. 2925.03(C)(1)(e) does not require proof that the
substance offered for sale contains the relevant controlled substance. R.C.
2925.03(C)(1)(e) applies “[i]f the drug involved in the violation is any compound, mixture,
preparation, or substance included in schedule I or schedule II” and “[i]f the amount of the
drug involved equals or exceeds fifty times the bulk amount but is less than one hundred
times the bulk amount.” However, “[e]ffective September 30, 2008, the General Assembly
amended R.C. 2925.03 to include subsection (I),” presumably “in response to Chandler.”
Siggers, 9th Dist. Medina No. 09CA0028-M, 2010-Ohio-1353, at ¶ 13. R.C. 2925.03(I)
defines “drug” to include “any substance that is represented to be a drug.” Thus, the state
Pickaway App. No. 21CA8 18
did not need to prove the substance it recovered contained methamphetamine to secure
a conviction under R.C. 2925.03(A)(1) and (C)(1)(e).
{¶29} Bledsoe, Garr, Davis, and Siggers do not support a contrary conclusion.
Bledsoe was one of the decisions Chandler reviewed, see Chandler at ¶ 6-7, and was
decided before the enactment of R.C. 2925.03(I). Garr did not consider R.C. 2925.03(I)
and had no reason to do so because it took effect after the trafficking offense in that case
occurred, and the certified question of state law did not address it. See Garr, 126 Ohio
St.3d 334, 2010-Ohio-2449, 933 N.E.2d 1063, at ¶ 1, 5. Davis did not consider R.C.
2925.03(I). Siggers did and found it modified R.C. 2925.03 such that certain penalty
provisions of the statute could be implemented when a substance is represented to be
crack cocaine and no detectable cocaine is in the substance. Siggers at ¶ 13.
{¶30} Kolle emphasizes the fact that Siggers vacated a sentence on a trafficking
count for which the jury found the amount of crack cocaine involved was equal to or
greater than five grams but less than ten grams. Id. at ¶ 21. The defendant had promised
to sell 10.5 grams of crack cocaine but evidence indicated he actually sold 4.6 grams of
crack cocaine. Id. at ¶ 20. Siggers interpreted the penalty provision at issue “to mean
that an actual amount of a substance must exist rather than a purely hypothetical promise
of a volume of drugs that may or may not exist.” Id. at ¶ 19. Thus, the jury’s finding was
contrary to the evidence, and the enhanced sentence rested on insufficient evidence. Id.
at ¶ 21. Contrary to what Kolle suggests, Siggers does not support the conclusion that in
a case such as this where test results exist but are not admitted, R.C. 2925.03(I) does
not apply and the state cannot prove its case via circumstantial evidence.
Pickaway App. No. 21CA8 19
3. Evidentiary Analysis
{¶31} After viewing the evidence in a light most favorable to the prosecution, we
conclude that any rational trier of fact could have found the essential elements of R.C.
2925.03(A)(1) and (C)(1)(e) proven beyond a reasonable doubt with respect to Count
Nine, aggravated trafficking in drugs on or about September 24, 2019. During the
September 18th controlled buy, Det. Lewis told Shea he needed four to six ounces of
methamphetamine the following week. Shea indicated that he would reach out to his
supplier and made comments from which one can infer he is referring to Kolle. Shea
talked about how his supplier was paranoid the day before, i.e., the day of the surveillance
operation, because he saw an undercover officer taking pictures. This had caused Shea
to be two ounces short during the September 17th controlled buy. Shea agreed with Det.
Lewis that the supplier should have given Shea a discount for having to make a second
trip to get the “stuff” sold to Det. Lewis during the September 18th controlled buy.
{¶32} After the September 18th controlled buy, Det. Lewis made a deal with Shea
to buy six ounces of methamphetamine for $2,800. Lt. Strawser testified that there are
28.349 grams in an ounce, which meant the deal was for 170.094 grams of
methamphetamine. There is evidence that on September 24, 2019, around 4:40 p.m.,
Det. Lewis met Shea and Auten at Love’s and gave Shea the money. When Det. Lewis
asked Shea if he was going with his “regular guy” or “someone different,” Shea said it
would be the “same guy” and indicated the supplier had agreed to give a discount
because he “cuts a little slack” in deals for more than four ounces.
{¶33} Auten testified that after the money exchange, she and Shea went to Kolle’s
apartment in Columbus. Even though Auten did not witness any transaction between
Pickaway App. No. 21CA8 20
Shea and Kolle or see the exact apartment Shea went to, she saw Shea go up the stairs
of an apartment building and return about 10 minutes later. Auten previously identified
this two-story building for Det. Lewis and Lt. Strawser, and surveillance confirmed Kolle
lived on the second floor. Although Kolle challenges Auten’s credibility, an evaluation of
witness credibility is not proper in a sufficiency of the evidence review. Yarbrough, 95
Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, at ¶ 79. When Shea and Auten
returned to Love’s, Shea gave Det. Lewis a white bag containing a crystal-like substance
and agreed with a comment Det. Lewis made about Shea having a “good guy” in
Columbus. There is evidence that law enforcement found $2,030 of the money from the
September 24th controlled buy during the execution of a search warrant the next morning
at Kolle’s apartment, on Kolle (in his wallet and pants pocket) and on a table. Although
Kolle challenges the admissibility of this evidence, in a sufficiency of the evidence review,
we must consider all evidence the state offered and the trial court admitted, regardless
whether the admission was erroneous. Dotson, 2018-Ohio-2481, 114 N.E.3d 390, at ¶
64.
{¶34} Based on the foregoing, any rational trier of fact could have found that on
or about September 24, 2019, Kolle knowingly sold or offered to sell methamphetamine
and that the amount of the drug involved equaled or exceeded 50 times the bulk amount
but was less than 100 times the bulk amount. Because sufficient evidence supports the
conviction on Count Nine, we overrule the second assignment of error.
B. Engaging in a Pattern of Corrupt Activity
{¶35} In his first assignment of error, Kolle contends that the state presented
insufficient evidence to support his conviction on Count One, engaging in a pattern of
Pickaway App. No. 21CA8 21
corrupt activity. Kolle asserts that the state failed to prove at least two incidents of corrupt
activity because “the jury instructions specifically limited the corrupt activities that could
form the required pattern to ‘aggravated trafficking, as charged herein,[’] ” “the jury was
only instructed on two aggravated trafficking charges,” and the jury acquitted him of one
of those charges. He relies on State v. Reyes, 6th Dist. Wood No. WD-03-059, 2005-
Ohio-2100, to support his position. Kolle notes that the Supreme Court of Ohio “has
recognized that a conviction on a compound offense may stand although a jury acquits
on its predicate offense.” But he maintains this principle does not apply to a conviction
for engaging in a pattern of corrupt activity because the definition of corrupt activity
requires proof of specific conduct in connection with a predicate offense, and the court
must instruct the jury on the predicate offenses at issue. Kolle also asserts that there is
no evidence that he engaged in, attempted to engage in, conspired to engage in, or
solicited, coerced, or intimidated another person to engage in aggravated trafficking as
charged in Count Five. And he asserts Count Five does not meet the monetary threshold
to qualify as a corrupt activity because the proceeds of the September 17th controlled
buy were only $500.3 The state conceded it presented insufficient evidence to support
the conviction on Count One, but did not articulate the basis for this concession.
1. Relevant Statutory Provisions
{¶36} “The federal Racketeering Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. 1961 et seq., was the general model for Ohio’s own corrupt-activity
statute.” State v. Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116, ¶ 3.
3 We observe that under the first assignment of error, Kolle indicated one of the issues for review is: “Must
the enhancement to first degree felony be vacated?” However, his argument regarding the first assignment
of error does not address this issue.
Pickaway App. No. 21CA8 22
Ohio’s RICO statute, R.C. 2923.32(A)(1), provides: “No person employed by, or
associated with, any enterprise shall conduct or participate in, directly or indirectly, the
affairs of the enterprise through a pattern of corrupt activity * * *.” “Whoever violates this
section is guilty of engaging in a pattern of corrupt activity,” which is a first-degree felony
“if at least one of the incidents of corrupt activity is a felony of the first, second, or third
degree.” R.C. 2323.32(B)(1).
{¶37} R.C. 2923.31(I)(2)(c) defines “[c]orrupt activity” to include “engaging in,
attempting to engage in, conspiring to engage in, or soliciting, coercing, or intimidating
another person to engage in” conduct constituting any violation of R.C. 2925.03
when the proceeds of the violation, * * * or the value of the contraband or
other property illegally possessed, sold, or purchased in the violation
exceeds one thousand dollars, or any combination of violations described
in division (I)(2)(c) of this section when the total proceeds of the combination
of violations, * * * or value of the contraband or other property illegally
possessed, sold, or purchased in the combination of violations exceeds one
thousand dollars[.]
R.C. 2923.31(E) defines a “pattern of corrupt activity” as “two or more incidents of corrupt
activity, whether or not there has been a prior conviction, that are related to the affairs of
the same enterprise, are not isolated, and are not so closely related to each other and
connected in time and place that they constitute a single event.”
{¶38} “[F]or drug trafficking in violation of R.C. 2925.03 to constitute a corrupt
activity the total proceeds of a violation of that statute or a combination of violations of
that statute must exceed $1,000.” State v. Liggins, 6th Dist. Sandusky No. 16 CAS 32,
2018-Ohio-243, ¶ 23, citing R.C. 2923.31(I)(2)(c). Thus, individual transactions can be
aggregated to form a single corrupt activity. See Liggins at ¶ 23-24. However, “in order
for the state to establish a pattern of corrupt activity it must produce evidence of at least
Pickaway App. No. 21CA8 23
two corrupt activities where the proceeds of each corrupt activity exceeded $1,000.” Id.
at ¶ 23. “[A]t the minimum, the proceeds of [a] ‘pattern of corrupt activity’ must be at least
$2,000.02, since the proceeds of each ‘corrupt activity’ must at least be $1,000.01.” Id.
2. Impact of Count Five Not Guilty Verdict
{¶39} The trial court instructed the jury that “[c]orrupt activity means engaging in,
attempting to engage in, conspiring to engage in, or soliciting, coercing or intimidating
another person to engage in, aggravated trafficking in drugs, as charged herein. The
value of the contraband or other property illegally possessed, sold, or purchased in the
combination of violations must exceed $1,000.” (Emphasis added.) The court also
instructed the jury that Kolle was charged with aggravated trafficking in drugs in two
counts, Counts Five and Nine. The jury found him not guilty of Count Five, but guilty of
Count Nine and of engaging in a pattern of corrupt activity.
{¶40} The not guilty verdict on Count Five does not compel the conclusion that
there is insufficient evidence to support the conviction for engaging in a pattern of corrupt
activity. Kolle’s reliance on Reyes is misplaced. In that case, the defendant was indicted
on two counts of trafficking in cocaine and one count of engaging in a pattern of corrupt
activity. Reyes, 6th Dist. Wood No. WD-03-059, 2005-Ohio-2100, at ¶ 2. A jury found
him not guilty of one trafficking count, but guilty of the other two counts. Id. On appeal,
he asserted there was insufficient evidence to convict him of engaging in a pattern of
corrupt activity, and the appellate court agreed. Id. at ¶ 26. The appellate court explained:
Pursuant to R.C. 2923.31(E), in order to find the appellant guilty of
engaging in a pattern of corrupt activity, the jury had to find, beyond a
reasonable doubt, that appellant committed two or more predicate acts that
are not so closely related that they constitute the same event. The jury
specifically found that the act upon which it found the appellant guilty of in
Count 1 served as one of the predicate acts. However, the jury’s explicit
Pickaway App. No. 21CA8 24
not guilty verdict on Count 2 establishes that the state failed to prove its
occurrence beyond a reasonable doubt. Finally, because the jury was not
instructed as to the elements of any un-indicted offense, it could not find
beyond a reasonable doubt, that appellant committed any un-indicted
offense. * * *
In sum, with a not guilty verdict on Count 2, and no jury instruction
as to any other offense that could serve as a predicate act, the state proved
only one predicate act beyond a reasonable doubt. Because R.C.
2923.31(E) requires that the state prove the occurrence of two or more
predicate acts beyond a reasonable doubt, there was insufficient evidence
upon which the jury could convict appellant of engaging in a pattern of
corrupt activity. * * *
(Emphasis sic.) Id. at ¶ 34-35.
{¶41} Reyes is not persuasive because it essentially holds that an acquittal on a
predicate offense necessitates a finding of insufficient evidence on a compound offense.
The Supreme Court of Ohio has “long recognized” that inconsistent verdicts on different
counts of a multi-count indictment do not justify overturning a verdict. State v. Gardner,
118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 82 (plurality opinion), citing State
v. McNicol, 143 Ohio St. 39, 47, 53 N.E.2d 808 (1944), citing Griffin v. State, 18 Ohio St.
438 (1868). The court has “reiterated” this principle by citing the holding in United States
v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Gardner at ¶ 82, citing
State v. Hicks, 43 Ohio St.3d 72, 78, 538 N.E.2d 1030 (1989).
{¶42} In Powell, the United States Supreme Court explained that Dunn v. United
States, 284 U.S. 390, 52 S.Ct. 189, 76 L.E.356 (1932), “held that a criminal defendant
convicted by a jury on one count could not attack that conviction because it was
inconsistent with the jury’s verdict of acquittal on another count.” Powell at 58. This is
because “ ‘[c]onsistency in the verdict is not necessary. Each count in an indictment is
regarded as if it was a separate indictment.’ ” Id. at 62, quoting Dunn at 393. “ ‘ “The
Pickaway App. No. 21CA8 25
most that can be said” ’ ” when there are inconsistent verdicts “ ‘ “is that the verdict shows
that either in the acquittal or the conviction the jury did not speak their real conclusions,
but that does not show that they were not convinced of the defendant’s guilt.” ’ ” Id. at
63, quoting Dunn at 393, quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir.1925).
{¶43} Powell rejected the contention “that an exception to the Dunn rule should
be made where the jury acquits a defendant of a predicate felony, but convicts on the
compound felony.” Id. at 67. The court explained that “the acceptability of this exception
is belied by the facts of Dunn itself,” because in that case “the defendant was acquitted
of unlawful possession, and unlawful sale, of liquor, but was convicted of maintaining a
nuisance by keeping unlawful liquor for sale at a specified place,” and “the jury could not
have convicted on the nuisance count without finding that the defendant possessed, or
sold, intoxicating liquor.” Id. at 67-68. Therefore, the proposed exception “threatens to
swallow the rule.” Id. at 68. Moreover, the argument
that an acquittal on a predicate offense necessitates a finding of insufficient
evidence on a compound felony count simply misunderstands the nature of
the inconsistent verdict problem. Whether presented as an insufficient
evidence argument, or as an argument that the acquittal on the predicate
offense should collaterally estop the Government on the compound offense,
the argument necessarily assumes that the acquittal on the predicate
offense was proper—the one the jury “really meant.” This, of course, is not
necessarily correct; all we know is that the verdicts are inconsistent. The
Government could just as easily—and erroneously—argue that since the
jury convicted on the compound offense the evidence on the predicate
offense must have been sufficient. The problem is that the same jury
reached inconsistent results * * *.
This problem is not altered when the trial judge instructs the jury that
it must find the defendant guilty of the predicate offense to convict on the
compound offense. Although such an instruction might indicate that the
counts are no longer independent, if inconsistent verdicts are nevertheless
reached those verdicts still are likely to be the result of mistake, or lenity,
and therefore are subject to the Dunn rationale. * * *
Pickaway App. No. 21CA8 26
Id. at 68.
{¶44} Powell noted that
a criminal defendant already is afforded protection against jury irrationality
or error by the independent review of the sufficiency of the evidence
undertaken by the trial and appellate courts. This review should not be
confused with the problems caused by inconsistent verdicts. Sufficiency-
of-the evidence review involves assessment by the courts of whether the
evidence adduced at trial could support any rational determination of guilty
beyond a reasonable doubt. This review should be independent of the jury’s
determination that evidence on another count was insufficient. The
Government must convince the jury with its proof, and must also satisfy the
courts that given this proof the jury could rationally have reached a verdict
of guilty beyond a reasonable doubt. We do not believe that further
safeguards against jury irrationality are necessary.
(Citations omitted and emphasis added.) Id. at 67.
{¶45} Kolle has offered no convincing reason for us to depart from these principles
in the context of a conviction for engaging in a pattern of corrupt activity. Therefore, we
conclude that our sufficiency of the evidence review of Count One should be independent
of the jury’s determination on Count Five.
3. Evidentiary Analysis
{¶46} After viewing the evidence in a light most favorable to the prosecution, we
conclude no rational trier of fact could have found the essential elements of engaging in
a pattern of corrupt activity proven beyond a reasonable doubt. The state presented
sufficient evidence from which the jury could have found that Kolle engaged in, attempted
to engage in, conspired to engage in, or solicited, coerced, or intimidated another person
to engage in aggravated trafficking in drugs as charged in Count Nine, see Section III.A.3,
and that the proceeds of the violation exceeded $1,000. However, the state did not make
a similar showing with respect to Count Five.
Pickaway App. No. 21CA8 27
{¶47} The state presented evidence that on September 17, 2019, Kolle and Shea
met in an alley, and Det. Hardee observed an exchange between them. However, Det.
Hardee could not tell what was exchanged or whether both men had something to
exchange. Subsequently, during the September 17th controlled buy, Shea made
statements from which one can infer Kolle did not give him any drugs during the meeting
because he became aware of the surveillance operation near his apartment. As a result,
Shea was unable to sell Det. Lewis the promised three ounces of methamphetamine and
could only sell him one ounce, which Shea “already had” and the source of which is
unknown.
{¶48} There is some evidence that Kolle and Shea met a second time on
September 17, 2019, and that Kolle gave Shea the substance he sold to Det. Lewis during
the September 18th controlled buy.4 During the September 18th controlled buy, Shea
and Det. Lewis discussed how Shea’s supplier was paranoid the day before, how Shea
got the “stuff” sold to Det. Lewis from the “same guy,” and how Shea should have gotten
a discount for having to make a second trip “up there yesterday.” However, the proceeds
of the September 18th controlled buy were exactly $1,000, which is just below the
monetary threshold for a corrupt activity under R.C. 2923.31(I)(2)(c).
{¶49} The state did not produce evidence of at least two corrupt activities.
Therefore, it did not present sufficient evidence to support Kolle’s conviction for engaging
in a pattern of corrupt activity. Accordingly, we sustain the first assignment of error,
4We recognize there were separate charges for aggravated trafficking in drugs and aggravated possession
of drugs on or about September 18, 2019, i.e., Counts Seven and Eight, which were dismissed prior to trial.
However, the jury was instructed that the relevant timeframe for Count Five was “on or about” September
17, 2019, and events related to the September 18th controlled buy are within that timeframe.
Pickaway App. No. 21CA8 28
reverse and vacate the conviction on Count One, and remand to the trial court to enter a
judgment of acquittal on Count One.
IV. ADMISSIBILITY OF EVIDENCE
{¶50} In his third assignment of error, Kolle contends that the trial court erred
when it allowed Lt. Strawser to testify about money allegedly recovered during the
execution of the search warrant and admitted into evidence Exhibit 12, a photograph of
that money. Kolle asserts Lt. Strawser did not have personal knowledge of the search
and seizure of the money because he was across the street when that happened, and his
testimony that the money was recovered from Kolle was based on information from the
Franklin County Sheriff’s Office. Kolle also contends that the state did not properly
authenticate Exhibit 12 under Evid.R. 901. He asserts that the state tried to authenticate
Exhibit 12 using the pictorial testimony theory, but failed because Lt. Strawser could not
testify to details about the recovery of the money as he was not present when that
occurred. He also asserts Lt. Strawser’s testimony about seeing the money at the SIU
office is not credible because he “clearly lied about being present and participating in the
search.” Kolle maintains that there is therefore “no direct testimony or evidence
establishing that the money in the photograph was recovered from the search of [his]
apartment.” Kolle also asserts the admission of the photograph instead of the actual
money violates Evid.R. 1003 and Crim.R. 41(D)(1).
A. Standard of Review
{¶51} “ ‘The admission or exclusion of evidence generally rests within a trial
court’s sound discretion.’ ” State v. Allen, 4th Dist. Ross No. 21CA3736, 2022-Ohio-1180,
¶ 21, quoting State v. McCoy, 4th Dist. Pickaway No. 19CA1, 2020-Ohio-1083, ¶ 20.
Pickaway App. No. 21CA8 29
“ ‘Thus, absent an abuse of discretion, an appellate court will not disturb a trial court’s
ruling regarding the admissibility of evidence.’ ” Id., quoting McCoy at ¶ 20. An abuse of
discretion is “an unreasonable, arbitrary, or unconscionable use of discretion, or * * * a
view or action that no conscientious judge could honestly have taken.” State v. Brady,
119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23.
B. Lt. Strawser’s Testimony
{¶52} Evid.R. 602 states: “A witness may not testify to a matter unless evidence
is introduced sufficient to support a finding that the witness has personal knowledge of
the matter.” “ ‘Personal knowledge’ is ‘[k]nowledge gained through firsthand observation
or experience, as distinguished from a belief based on what someone else has said.’ ”
Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 767
N.E.2d 707, ¶ 26, quoting Black’s Law Dictionary 875 (7th Ed.Rev.1999). “Thus, ‘ “[t]he
subject of a witness’s testimony must have been perceived through one or more of the
senses of the witness,” ’ and a witness is incompetent to testify to any fact ‘ “unless he or
she possesses firsthand knowledge of that fact.” ’ ” State v. Teets, 4th Dist. Pickaway
No. 17CA21, 2018-Ohio-5019, ¶ 28, quoting Bonacorsi at ¶ 26, quoting
Weissenberger’s Ohio Evidence, Section 602.1, at 213 (2002).
{¶53} The trial court abused its discretion when it allowed Lt. Strawser to testify
about where the money depicted in Exhibit 12 was found. Lt. Strawser did not find the
wallet or any of the money and was not in Kolle’s apartment when those items were
discovered or seized. Lt. Strawser was across the street from Kolle’s apartment. Even
though Lt. Strawser testified that someone from the Franklin County Sheriff’s Office told
him that the money was found on Kolle, Evid.R. 602 precludes a witness “from testifying
Pickaway App. No. 21CA8 30
to the truth of the subject matter of [a] hearsay statement if [the witness] has no personal
knowledge of it.” 1980 Staff Note, Evid.R. 602.
C. Exhibit 12
1. Authentication
{¶54} “Before a trial court may admit evidence, Evid.R. 901 requires the
proponent to identify or authenticate the evidence.” State v. Stapleton, 4th Dist. Pickaway
No. 19CA7, 2020-Ohio-4479, ¶ 34. Evid.R. 901(A) states: “The 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. Spencer, 4th Dist. Pickaway No.
19CA6, 2019-Ohio-3800, ¶ 14, quoting State v. Pyles, 4th Dist. Scioto No. 17CA3790,
2018-Ohio-4034, ¶ 48. “The proponent of the evidence need only show a reasonable
likelihood of authenticity.” Id., citing Pyles at ¶ 48.
{¶55} “Two of the methods for authenticating photographic evidence” are the
pictorial testimony theory and silent witness theory. Midland Steel Prods. Co. v. Internatl.
Union, United Auto., Aerospace & Agricultural Implement Workers of Am., Local 486, 61
Ohio St.3d 121, 129-130, 573 N.E.2d 98 (1991). Under the pictorial testimony theory, “
‘the photographic evidence is merely illustrative of a witness’ testimony and it only
becomes admissible when a sponsoring witness can testify that it is a fair and accurate
representation of the subject matter, based on that witness’ personal observation.’ ” Id. at
129, quoting Fisher v. State, 7 Ark.App. 1, 5, 643 S.W.2d 571 (1982). Under the silent
witness theory, “ ‘the photographic evidence is a “silent witness” which speaks for itself,
Pickaway App. No. 21CA8 31
and is substantive evidence of what it portrays independent of a sponsoring witness.’
” Id. at 130, quoting Fisher at 6. The “photographic evidence may be admitted upon a
sufficient showing of the reliability of the process or system that produced the
evidence.” Id. at paragraph three of the syllabus. However, Evid.R. 901 does not limit the
means by which evidence may be authenticated, and we have recognized that “
‘[c]ircumstantial, as well as direct, evidence may be used to show authenticity.’ ” Spencer
at ¶ 14, quoting State v. Vermillion, 4th Dist. Athens No. 15CA17, 2016-Ohio-1295, ¶ 14.
{¶56} “ ‘Chain of custody is a part of the authentication and identification mandate
set forth in Evid.R. 901, and the state has the burden of establishing the chain of custody
of a specific piece of evidence.’ ” State v. Corder, 2012-Ohio-1995, 969 N.E.2d 787, ¶
15 (4th Dist.), quoting State v. Brown, 107 Ohio App.3d 194, 200, 668 N.E.2d 514 (3d
Dist.1995). However, the state’s burden “ ‘is not absolute.’ ” Id., quoting Brown at 200.
The state is “not required to present the testimony of every individual who might have
handled the evidence.” Id. at ¶ 20. “[A] chain of custody may be established by direct
testimony or by inference.” State v. Hardesty, 5th Dist. Stark No. 2018CA00178, 2020-
Ohio-246, ¶ 33. “ ‘The state need only establish that it is reasonably certain that
substitution, alteration or tampering did not occur.’ ” Corder at ¶ 15, quoting State v.
Blevins, 36 Ohio App.3d 147, 150, 521 N.E.2d 1105 (10th Dist.1987).
{¶57} “ ‘[E]ven if the chain of custody is broken, that fact alone will not render the
evidence inadmissible.’ ” Corder at ¶ 15, quoting State v. Lenoir, 5th Dist. Delaware No.
10CAA010011, 2010-Ohio-4910, ¶ 19. Generally, “ ‘breaks in the chain of custody go not
to the admissibility of evidence, but to the weight afforded it.’ ” Id. at ¶ 15, quoting Blevins
at 150. “Before a break in the chain will prevent an item from being admitted into
Pickaway App. No. 21CA8 32
evidence, that break must be very substantial because the standard for a court to admit
evidence under Evid.R. 901(A)-i.e., proof ‘sufficient to support a finding’ that the evidence
is what its proponent claims it to be-is a very low threshold, considerably less demanding”
than the burden of proof beyond a reasonable doubt. State v. Winfield, 4th Dist. Ross
No. 1641, 1991 WL 28291, *2 (Feb. 7, 1991).
{¶58} In this case, the state presented evidence sufficient to support a finding that
Exhibit 12 is what the state claimed it to be—a photograph of $2,030 from the September
24th controlled buy money which was found during the execution of the search warrant.
As previously explained, during the September 18th controlled buy, Shea made
statements indicating he intended to reach out to Kolle to supply four to six ounces of
methamphetamine Det. Lewis wanted the following week. There is evidence that on
September 24, 2019, Lt. Strawser gave Det. Lewis $2,800, and Det. Lewis gave that
money to Shea at Love’s around 4:40 p.m. There is evidence that after the money
exchange, Shea went to Kolle’s apartment building and climbed the stairs to the second
floor, which is where Kolle’s apartment was located. Afterwards, Shea returned to Love’s
and gave Det. Lewis a bag containing a crystal-like substance which was supposed to be
the promised six ounces of methamphetamine. The next morning, Lt. Strawser saw
members of the Franklin County SWAT team enter Kolle’s apartment to execute a search
warrant. Although no witness with personal knowledge testified that any of the buy money
was found on Kolle or in his apartment, Det. Strawser gave testimony indicating he
personally saw the SWAT team remove Kolle from the apartment and saw Det. Hardee
put a wallet in a bag at the scene. And directly after the search, Det. Strawser saw Det.
Hardee remove money from the wallet at SIU, saw the serial numbers on that money,
Pickaway App. No. 21CA8 33
and determined it came from the September 24th controlled buy by comparing the serial
numbers in pictures of the buy money to the serial numbers in pictures of money from the
wallet. Therefore, even though there is a break in the chain of custody because it is
unknown who found and handled the money prior to Det. Hardee, the state showed a
reasonable likelihood that the money depicted in Exhibit 12 came from the September
24th controlled buy and was found during the execution of the search warrant.
2. Originals vs. Duplicate
{¶59} Evid.R. 1002 states: “To prove the content of a writing, recording, or
photograph, the original * * * is required, except as otherwise provided in these rules * *
*.” Writings include numbers set down by printing. Evid.R. 1001(1). An “original” is the
writing “itself or any counterpart intended to have the same effect by a person executing
or issuing it.” Evid.R. 1001(3). A “duplicate” includes “a counterpart” produced “by means
of photography.” Evid.R. 1001(4). “A duplicate is admissible to the same extent as an
original unless (1) a genuine question is raised as to the authenticity of the original or (2)
in the circumstances it would be unfair to admit the duplicate in lieu of the original.”
Evid.R. 1003. “The party seeking to exclude a duplicate has the burden of demonstrating
that the duplicate should be excluded.” State v. Tibbetts, 92 Ohio St.3d 146, 160, 749
N.E.2d 226 (2001).
{¶60} Kolle has not met this burden. The bills depicted in Exhibit 12 qualify as
writings because they contain numbers, i.e., serial numbers, set down by printing. Instead
of presenting the original bills at trial, the state presented a duplicate of them—a single
photograph of all the bills together. Defense counsel did not raise a genuine question as
to the authenticity of original bills. And while Exhibit 12 is slightly blurry, the serial
Pickaway App. No. 21CA8 34
numbers are legible, so the blurriness is not a circumstance which would make it unfair
to admit the duplicate in lieu of the originals. Moreover, Crim.R. 41(D)(1) is inapplicable.
It states: “Property seized under a warrant shall be kept for use as evidence by the court
which issued the warrant or by the law enforcement agency which executed the warrant.”
Crim.R. 41(D)(1). This provision does not require the state to present the property seized
at trial or preclude the state from presenting a photograph in lieu of the evidence itself.
Accordingly, we conclude that the trial court did not abuse its discretion when it admitted
Exhibit 12 into evidence.
D. Harmless Error Analysis
{¶61} Because the trial court erred by admitting some of the challenged evidence,
i.e., Lt. Strawser’s testimony about where law enforcement found the money depicted in
Exhibit 12, we must assess whether that error was harmless. Crim.R. 52(A) states: “Any
error, defect, irregularity, or variance which does not affect substantial rights shall be
disregarded.” The Supreme Court of Ohio has established the following analysis “to guide
appellate courts in determining whether an error has affected the substantial rights of a
defendant, thereby requiring a new trial”:
First, it must be determined whether the defendant was prejudiced by the
error, i.e., whether the error had an impact on the verdict. Second, it must
be determined whether the error was not harmless beyond a reasonable
doubt. Lastly, once the prejudicial evidence is excised, the remaining
evidence is weighed to determine whether it establishes the defendant’s
guilt beyond a reasonable doubt.
(Citations omitted.) State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256,
¶ 37. “Under the harmless-error standard of review, ‘the government bears the burden
of demonstrating that the error did not affect the substantial rights of the defendant.’ ”
(Emphasis sic.) Id. at ¶ 36, quoting State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297,
Pickaway App. No. 21CA8 35
802 N.E.2d 643, ¶ 15, citing United States v. Olano, 507 U.S. 725, 741, 113 S.Ct. 1770,
123 L.Ed.2d 508 (1993). “An appellate court must reverse a conviction if the government
does not satisfy this burden; unlike Crim.R. 52(B), Crim.R. 52(A) is mandatory, not
permissive, and thus affords the appellate court no discretion to disregard the error.”
Perry at ¶ 15.
{¶62} The state has not satisfied its burden. In overruling the Crim.R. 29 motion
Kolle made at the close of the state’s case, the trial court characterized evidence that
money from the September 24th controlled buy was found on Kolle as the “most damning”
evidence against him, stating: “[I]t’s been established to me that the most damning is
finding the buy money * * * on [Kolle’s] person the next day. It shows that he’s in this up
to his eyeballs in terms of his participation in this enterprise.” The prosecutor emphasized
this evidence in closing arguments, stating, “And at the end of the day, where was our
buy money? On this defendant,” and, “[O]n the 24th, what do you have? You’ve got
$2,030 of our $2,800. And where is it? It’s with the defendant.” Other than Lt. Strawser’s
inadmissible testimony, there is no evidence that the money was found on Kolle himself.
And while we have concluded the state presented sufficient evidence to authenticate
Exhibit 12 as depicting a portion of the buy money which was found during the execution
of the search warrant at Kolle’s apartment, the burden to authenticate evidence is
“considerably less demanding” than the burden to prove guilt beyond a reasonable doubt.
Winfield, 4th Dist. Ross No. 1641, 1991 WL 28291, at *2.
{¶63} In its appellate brief, the state does not present this court with any argument
as to how the error in the admission of Lt. Strawser’s testimony about where the money
was found constitutes harmless error under Crim.R. 52(A). Instead, the state maintains
Pickaway App. No. 21CA8 36
that Lt. Strawser did not testify outside his personal knowledge, which is not the case as
we explained in Section IV.B. Consequently, the state has not met its burden to
demonstrate that the error in this case did not affect Kolle’s substantial rights.
E. Conclusion on Third Assignment of Error
{¶64} We overrule the third assignment of error to the extent it challenges the
admission of Exhibit 12. However, we sustain the third assignment of error to the extent
it challenges the admission of Lt. Strawser’s testimony about where law enforcement
found the money depicted in that exhibit. Because the state failed in its burden to
demonstrate that this error did not affect Kolle’s substantial rights, we reverse and vacate
the conviction on Count Nine and remand for a new trial on that count.
V. SUMMARY
{¶65} We sustain the first assignment of error, overrule the second assignment of
error, and sustain in part and overrule in part the third assignment of error. We affirm in
part and reverse in part the trial court’s judgment, vacate the convictions, and remand to
the trial court to enter a judgment of acquittal on Count One and conduct a new trial on
Count Nine.
JUDGMENT AFFIRMED IN PART
AND REVERSED IN PART.
CAUSE REMANDED
Pickaway App. No. 21CA8 37
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellant and appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway
County Court of Common Pleas 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 60 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 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-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 60 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.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, 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.