State v. Smith

[Cite as State v. Smith, 2015-Ohio-2977.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 6-14-14

v.

ROBY LYNN SMITH, OPINION

DEFENDANT-APPELLANT.

Appeal from Hardin County Common Pleas Court
Trial Court No. CRI-2014-2026

Judgment Affirmed

Date of Decision: July 27, 2015

APPEARANCES:

Michael B. Kelley for Appellant

Jason M. Miller for Appellee
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SHAW, J.

{¶1} Defendant-appellant Roby Lynn Smith (“Smith”) appeals the October

6, 2014, judgment of the Hardin County Common Pleas Court sentencing Smith to

12 months in prison after Smith was found guilty in a jury trial of Illegal

Cultivation of Marihuana in the Vicinity of a School or in the Vicinity of a

Juvenile in violation of R.C. 2925.04(A),(C)(5)(c), a felony of the fourth degree.

For the reasons that follow we affirm the judgment of the trial court.

{¶2} On February 25, 2014, Smith was indicted for one count of Illegal

Cultivation of Marihuana in the Vicinity of a School or in the Vicinity of a

Juvenile in violation of R.C. 2925.04(A),(C)(5)(c), a felony of the fourth degree.

{¶3} On March 5, 2014, Smith made an initial appearance and attorney

Michael Short was appointed to represent him. (Doc. No. 5). On March 10, 2014,

Smith was arraigned and he pled not guilty to the charge. (Doc. No. 12).

{¶4} On April 30, 2014, attorney Short filed a written request to withdraw

as counsel because Smith had “indicated he does not trust counsel to file motions

and conduct a jury trial. Counsel states that the attorney-client relationship is

irretrievably broken, and counsel cannot adequately represent the defendant.”

(Doc. No. 15).

{¶5} On May 5, 2014, a hearing was held on attorney Short’s motion to

withdraw as counsel. Smith was sworn in at the hearing and presented testimony

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on his position that he would rather represent himself than have Short represent

him. (Doc. No. 16). Despite Smith’s indication that he would rather proceed pro

se, the trial court found attorney Short’s motion not well-taken, and ordered Short

to make himself available to advise Smith in his defense and to prepare for trial to

the extent that Smith would cooperate. (Doc. No. 16).

{¶6} On May 9, 2014, Smith, acting pro se, filed a motion to suppress

evidence, arguing that any statements he made to the police in interviews should

be suppressed, and that any property or testimony pertaining to him obtained as

the “fruit of the illegal interrogation” that occurred on November 14, 2013, should

be suppressed. (Doc. No. 19).

{¶7} On May 20, 2014, the State filed a response to Smith’s motion to

suppress, arguing that the interview recordings established that Smith’s statements

to officers were voluntary and that the interview recordings showed no coercive

practices. (Doc. No. 24).

{¶8} On May 21, 2014, the trial court held a pretrial hearing at which

attorney Short orally renewed his motion to withdraw as counsel. Smith did not

object to his attorney’s motion and the trial court released Short from further

representation. (Doc. No. 27). The court then appointed attorney Todd Workman

to represent Smith, who was already present in court and accepted the

appointment. (Id.)

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{¶9} On July 28, 2014, another pretrial hearing was held. At that hearing,

Smith’s counsel moved to withdraw Smith’s suppression motion, along with other

motions Smith had filed pro se before attorney Workman represented him.1 Plea

negotiations were then put on the record at the hearing; however, Smith indicated

he would prefer to go to trial and stand by his not guilty plea, so the case was set

for trial. (Doc. No. 44).

{¶10} On August 13, 2014, another pretrial hearing was held. At the

hearing, another plea offer was discussed and the offer was placed on the record.

Smith indicated that he still wished to proceed with trial. At the time of that

hearing, Smith tested positive for drugs so his bond was revoked. (Doc. No. 47).

{¶11} On August 18, 2014, Smith’s second attorney, Todd Workman, filed

a written request to withdraw as Smith’s counsel, citing that Smith no longer

wished for Workman to represent him. (Doc. No. 53).

{¶12} On August 19, 2014, the case came on for the scheduled trial. Prior

to the trial’s commencement, the court inquired into attorney Workman’s motion

to withdraw as counsel. Workman indicated that he filed the motion at Smith’s

request. Smith stated that he wished to proceed pro se, and have attorney

Workman as his advisor for the trial. The court then conducted a dialogue with

Smith to determine whether he understood the rights he was waiving. Smith

1
As none of these other motions are pertinent to this appeal or were further litigated we will not further
mention them.

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indicated that he understood, and that he wished to proceed pro se. Smith signed a

written waiver of counsel at that point, indicating that he was knowingly,

intelligently, and voluntarily waving counsel.

{¶13} The case then proceeded to a jury trial. The State called four

witnesses and introduced numerous exhibits including an interview of Smith

wherein Smith admitted to growing three marihuana plants in his basement. Smith

called one witness on his behalf, and the case was then submitted to the jury. The

jury found Smith guilty of the sole count against him. Sentencing was set for a

later date.

{¶14} On October 1, 2014, the case proceeded to sentencing. The State

requested that Smith be placed on community control, and Smith argued for

leniency. Citing, inter alia, Smith’s prior criminal record, which included two

felony convictions, the trial court sentenced Smith to serve 12 months in prison. A

judgment entry memorializing Smith’s sentence was filed October 6, 2014.

{¶15} It is from this judgment that Smith appeals, asserting the following

assignments of error for our review.

ASSIGNMENT OF ERROR 1
THE TRIAL COURT ERRED WHEN IT ACCEPTED THE
JURY’S GUILTY VERDICT WHICH WAS CLEARLY
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

ASSIGNMENT OF ERROR 2
THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED PLAIN ERROR BY FAILING TO EXCLUDE

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EVIDENCE AT SENTENCING THAT APPELLANT HAD
TOLD HIS ATTORNEY THAT HE WOULD NOT COMPLY
WITH COMMUNITY CONTROL, AS THAT EVIDENCE
WAS A COMMUNICATION DISCLOSED IN AND
INTENDED STRICTLY FOR NEGOTIATIONS, AND ITS
PROBATIVE VALUE WAS SUBSTANTIALLY
OUTWEIGHED BY THE DANGER OF UNFAIR
PREJUDICE.

ASSIGNMENT OF ERROR 3
THE TRIAL COURT ERRED, AND ABUSED ITS
DISCRETION, WHEN IT DENIED APPELLANT’S VERBAL
MOTION FOR A SUPPRESSION HEARING, BECAUSE
UNDER THE CIRCUMSTANCES, SUCH A HEARING
SHOULD HAVE BEEN ALLOWED IN THE INTEREST OF
JUSTICE.

ASSIGNMENT OF ERROR 4
THE TRIAL COURT ERRED, AND ABUSED ITS
DISCRETION, WHEN IT ALLOWED IMPROPER
EVIDENCE TO BE ADMITTED, AND/OR FAILED TO
DECLARE A MISTRIAL FOLLOWING THE
PROSECUTOR’S STATEMENT TO APPELLANT’S
WITNESS STEPHANIE RITCHIE, WHICH APPELLANT
PERCEIVED AS SUCH A THREAT TO HIS WITNESS THAT
SHE WAS EFFECTIVELY MADE UNAVAILABLE TO
TESTIFY AS A RESULT OF THE PROSECUTOR’S
STATEMENT, AND WHICH RESULTED IN DENIAL OF
APPELLANT’S RIGHT TO A FAIR TRIAL.

ASSIGNMENT OF ERROR 5
THE TRIAL COURT ERRED, AND ABUSED ITS
DISCRETION, WHEN IT ALLOWED IMPROPER
EVIDENCE TO BE ADMITTED, AND/OR FAILED TO
DECLARE A MISTRIAL FOLLOWING THE
PROSECUTOR’S CLOSING STATEMENT WHICH
IMPROPERLY CITED FACTS NOT IN EVIDENCE, AND
WHICH RESULTED IN DENIAL OF APPELLANT’S RIGHT
TO A FAIR TRIAL.

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ASSIGNMENT OF ERROR 6
THE TRIAL COURT ERRED, AND ABUSED ITS
DISCRETION, WHEN IT RULED FOR THE STATE AND
AGAINST APPELLANT ON NUMEROUS OBJECTIONS
WHEN APPELLANT WAS ATTEMPTING TO ESTABLISH
THE AFFIRMATIVE DEFENSE OF ‘PERSONAL USE’ AS
PROVIDED BY 292[5].04(F).

ASSIGNMENT OF ERROR 7
APPELLANT’S CONVICTION WAS ERROR AS IT WAS
[BASED] UPON INSUFFICIENT EVIDENCE.

{¶16} We elect to address some of the assignments of error together, and

we elect to address the assignments of error out of the order in which they were

raised.

Third Assignment of Error

{¶17} In his third assignment of error, Smith argues that the trial court erred

in denying his oral motion for a suppression hearing that was made on the day of

his jury trial. Specifically, Smith contends that while his motion was untimely, the

trial court should have granted it in the interest of justice, and thus the trial court

abused its discretion in denying Smith’s oral motion for a hearing.

{¶18} Smith initially filed a timely suppression motion pro se, on May 9,

2014. In that motion he argued that statements he made to police officers in the

interviews conducted while the search warrant was executed at his residence

should have been suppressed. Later, after Smith’s first counsel had withdrawn at

Smith’s request, Smith had new counsel appointed and Smith’s second counsel

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withdrew Smith’s suppression motion, along with other motions Smith had filed

pro se.

{¶19} In withdrawing the suppression motion, Smith’s attorney stated that

he could find no legal grounds or meritorious arguments to support the

suppression motion filed by Smith. Smith’s counsel then requested that the trial

court address Smith personally regarding the withdrawal of the suppression

motion, as Smith had filed it pro se, to ensure that he understood what was

happening. At that time, the trial court conducted the following dialogue with

Smith.

[COURT]: * * * [T]here’s a motion May 9th the Defendant, pro
se, filed to suppress * * * So Mr. Smith, do you understand what
your attorney’s saying?

[SMITH]: Yes I do Your Honor.

[COURT]: So I’m gonna ask you specifically, ‘cause you have
advice of counsel, do you need to talk with Mr. Workman
anymore?

[SMITH]: No.

[COURT]: Alright. Concerning the motion that you personally
filed on May 9th of this year to suppress, do you wish to dismiss
that motion?

[SMITH]: Yes Your Honor.

***

[COURT]: Alright. The Court will put on a motion—or entries
finding that those three motions have been dismissed. The

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responses that have been filed in each of those will be considered
then no longer relevant. * * *

(July 28, 2014, Tr. at 3-5). A journal entry formally dismissing the suppression

motion was filed July 29, 2014. (Doc. No. 44).

{¶20} When Smith’s case came on for trial on August 19, 2014, Smith

indicated that he wished to proceed pro se and dismiss his second attorney and

keep him as stand-by counsel only. After the trial court inquired into the matter

and Smith signed a written waiver of counsel, the following dialogue occurred

between Smith and the trial court.

[SMITH]: Before we go any further Your Honor, I had a[n]
issue to discuss. My motion to suppress evidence seems to have
been revoked, I believe is the word, Mr. Workman told me. I
had no idea that was happening. I would have liked to have had
that motion heard.

[COURT]: That was done in open court in the courtroom while
we were all present.

[SMITH]: My impression and Ms. Ritchie over here was
present and heard the same thing I did was that my other two
motions were being discarded willingly. I had no clue that was
part of the deal. I was told two of my motions and the
Prosecutor’s motion were [--]

[COURT]: Can you speak to that Mr. Workman, or
[prosecutor], perhaps, you can. I don’t have the file.

[PROSECUTOR]: Your Honor this is the time of trial, we’re
not here to discuss pretrial motion issues. They were all
withdrawn. The State’s prepared to go forth to trial. * * *

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[COURT]: Those were all done, Mr., we did, remember I’m
very careful to put things on the record to make sure that
everybody knows what’s happening, and we brought you in
when we talked plea negotiations. * * * And I do remember,
specifically, that those motions were addressed on the record.
Alright. Anything further?

[SMITH]: No Your Honor.

(Aug. 19, 2014, Tr. at 17-19).

{¶21} On appeal Smith now argues that the trial court abused its discretion

in denying his oral motion for a suppression hearing on the day of trial. Smith

cites no law supporting his argument, and actually concedes that Crim.R. 12(D)

and (H) generally require that all pre-trial motions have to be made within 35 days

of arraignment or 7 days before trial, whichever is earlier. Smith argues instead

that in the interests of justice, the trial court should have held a hearing on his

suppression motion.

{¶22} As the record makes clear, despite Smith’s claims on the day of trial,

he was specifically addressed by the trial court at a prior pretrial hearing and

Smith unequivocally indicated his desire to withdraw his motion to suppress both

through his counsel and by himself personally. He explicitly stated when he was

asked by the trial court if he wanted to dismiss his suppression motion that he did

want to dismiss that motion. Thus on the basis of the record before us, we cannot

find that the trial court erred in denying Smith’s oral motion made on the day of

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trial for a suppression hearing.2 Accordingly, Smith’s third assignment of error is

overruled.

First and Seventh Assignments of Error

{¶23} In Smith’s seventh assignment of error he argues that there was

insufficient evidence to convict him of Illegal Cultivation of Marihuana in the

Vicinity of a School or in the Vicinity of a Juvenile. In his first assignment of

error, he argues that his conviction was against the manifest weight of the

evidence.

{¶24} Whether there is legally sufficient evidence to sustain a verdict is a

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency

is a test of adequacy. Id. When an appellate court reviews a record upon a

sufficiency challenge, “ ‘the relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable

doubt.’ ” State v. Leonard, 104 Ohio St.3d 54, 2004–Ohio–6235, ¶

77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus.

2
Furthermore, notwithstanding the timing and Smith’s clear withdrawal of his suppression motion, there is
no indication that Smith had any remotely meritorious arguments to make in support of any suppression
motion. His attorney stated as much at the pretrial hearing where the motion was dismissed, and the
recordings of Smith’s interviews with the police, which he sought to suppress, clearly indicated that Smith
was mirandized and informed of his rights and that he willingly spoke with the police.

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{¶25} The Ohio Supreme Court has “carefully distinguished the terms

‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and

‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’ ” Eastley v.

Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, ¶ 10, quoting State v. Thompkins,

78 Ohio St.3d 380 (1997), paragraph two of the syllabus.

{¶26} Unlike our review of the sufficiency of the evidence, an appellate

court’s function when reviewing the weight of the evidence is to determine

whether the greater amount of credible evidence supports the verdict. Thompkins,

supra, at 387. In reviewing whether the trial court’s judgment was against the

weight of the evidence, the appellate court sits as a “thirteenth juror” and examines

the conflicting testimony. Id. In doing so, this Court must review the entire

record, weigh the evidence and all of the reasonable inferences, consider the

credibility of witnesses, and determine whether in resolving conflicts in the

evidence, the factfinder “ ‘clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial

ordered.’ ” State v. Andrews, 3d Dist. Allen No. 1–05–70, 2006–Ohio–3764, ¶ 30,

quoting Thompkins at 387.

{¶27} In this case, Smith was convicted of Illegal Cultivation of Marihuana

in the Vicinity of a School or in the Vicinity of a Juvenile in violation of R.C.

2925.04(A),(C)(5)(c), which reads,

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(A) No person shall knowingly cultivate marihuana or
knowingly manufacture or otherwise engage in any part of the
production of a controlled substance.

***

(C)(1) * * * [W]hoever commits a violation of division (A) of this
section that involves marihuana is guilty of illegal cultivation of
marihuana.

***

(5) If the drug involved in the violation is marihuana, the penalty
for the offense shall be determined as follows:

***

(c) If the amount of marihuana involved equals or exceeds two
hundred grams but is less than one thousand grams, illegal
cultivation of marihuana is a felony of the fifth degree or, if the
offense was committed in the vicinity of a school or in the
vicinity of a juvenile, 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 on the offender.

{¶28} Several of the pertinent words and phrases in the statute above have

been further defined in the Ohio Revised Code. Pursuant to R.C. 2925.01(F), “

‘[c]ultivate’ includes planting, watering, fertilizing, or tilling.”

{¶29} According to R.C. 2925.01(P), an offense is “committed in the

vicinity of a school” if the offender commits the offense “within one thousand feet

of the boundaries of any school premises, regardless of whether the offender

knows the offense is being committed * * * within one thousand feet of the

boundaries of any school premises.”

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{¶30} According to R.C. 2925.01(BB), an offense is “committed in the

vicinity of a juvenile” if the offender commits the offense “within one hundred

feet of a juvenile * * * regardless of whether the offender knows the age of the

juvenile, whether the offender knows the offense is being committed within one

hundred feet of or within view of the juvenile, or whether the juvenile actually

views the commission of the offense.”

{¶31} At trial, the State called four witnesses in order to convict Smith of

Illegal Cultivation of Marihuana in the Vicinity of a School or in the Vicinity of a

Juvenile. The first witness the State called was Detective Mike Conley of the

Hardin County Sheriff’s office, who was assigned to the Hardin County Crime

Task Force. (Tr. at 2). Detective Conley testified that he was involved in

investigating the case against Smith, and that during his investigation controlled

buys had been conducted that traced back to Smith’s residence at 201 South High

Street in Kenton. (Id. at 3-4). Detective Conley testified that he acquired a search

warrant to search Smith’s residence, and he was part of the team that executed the

search warrant. (Id. at 4).

{¶32} Detective Conley testified that when they executed the search

warrant at Smith’s residence, Smith was present, as was Smith’s girlfriend and her

child. Detective Conley testified that through the course of his investigation he

learned that three children were actually residing at the residence, though only one

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was present at the time the search warrant was executed.3 (Tr. at 5). Detective

Conley testified that Smith’s residence was also approximately 740 feet from

Lifeworks, a nearby school. (Id. at 6).

{¶33} Detective Conley testified that he photographed the exterior and

interior of the residence, that he collected evidence, logged that evidence, and did

an inventory sheet of the evidence collected. (Tr. at 5-10). Detective Conley

testified that while searching the residence, he located various pieces of drug

paraphernalia and plastic baggies that were later found to contain marihuana. (Id.

at 10-14).

{¶34} Detective Conley testified that in the basement of the residence, there

was a small “boxed off room.” (Tr. at 20-21). The boxed off room was framed by

wood, closed with cardboard and sealed with spray foam. (Id. at 20-21). Pictures

of the boxed off room were introduced into evidence. (Id.) Inside the small boxed

off room were three growing marihuana plants. (Id.) Photographs of the plants as

they were found were also introduced into evidence. (Id.)

{¶35} Detective Conley testified that there were exhaust pipes leading from

the small boxed off room. He also testified that in the basement, there were grow

lights, potting soil, pruning shears, plastic cups (used to start growing the plants),

pipes, a rolling machine, a digital scale, stems and marijuana debris. (Tr. at 20-

3
A photograph of the mother, Smith’s girlfriend, holding the young child at the scene on the day of the
warrant’s execution was introduced into evidence.

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30). Photographs of all these items were introduced into evidence. Detective

Conley also testified that $129 dollars was found on Smith, and that of that money,

$125 of it matched money that had been used in a controlled drug buy the day

prior. (Id. at 32).

{¶36} The State next called Wade Melton, Director of Hardin County

Juvenile Court and Hardin Community School, who corroborated that the nearby

school, Lifeworks, which Detective Conley had testified was 740 feet away, was a

school. Specifically, Melton testified, it was a school for children in grades 6-12

having difficulties in public schools either with behavior disorders, mental health,

drugs, or alcohol. (Tr. at 51-53).

{¶37} The State next called Detective Brian Beach. Detective Beach

testified that he was a detective for the city of Kenton and worked as part of the

Hardin County Crime Task Force. (Tr. at 55). Detective Beach testified that on

November 14, 2013, he went to 201 South High St. in Hardin County to execute a

search warrant. Detective Beach testified that it was his job to interview everyone

present and assist with the search. (Id. at 55-57).

{¶38} Detective Beach testified that he interviewed Smith twice while at

Smith’s residence. (Tr. at 66). Detective Beach testified that Smith was

cooperative, that he admitted he had three plants growing in the basement, and that

Smith admitted to selling some marihuana to his friends. (Id. at 68-72).

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Recordings of the interviews were played for the jury and were introduced into

evidence. (State’s Ex. 15).

{¶39} On the first recorded interview, Smith unequivocally admitted that he

was “growing a few plants” in his basement. (State’s Ex. 15). He clarified that he

was growing three plants. (Id.) Smith stated that this was his “first try” growing

marihuana and that he learned how to do it from the internet. (Id.) Smith stated

that it was a personal decision to grow plants, and that he started doing it because

it was costing him too much to purchase marihuana. (Id.) Smith stated multiple

times that he knew he was breaking the law by growing marihuana plants, but he

stated that he was under the impression he was only committing a misdemeanor.

(Id.)

{¶40} Smith further admitted that he would “look out for friends” that

“come by and need some” and that he sold them marihuana for the cost he had put

into it. (Id.) He first stated that he would “gift” his friends a “joint” if they asked

him for one. (Id.) Smith stated that he was trying not to traffic marihuana, but he

admitted that he had sold marihuana to as many as six different friends. (Id.) He

stated that he usually sold an “eighth” or 3.5 grams for $20, and that he would

occasionally sell as much as 7 grams. (Id.) He denied selling in larger bulk

amounts. (Id.)

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{¶41} On the second, shorter recorded interview, Smith stated that his usual

sale of marihuana was an “eighth” for $20.4 (State’s Ex. 15). He was also

questioned about the controlled buy money that had been found on him at the time

of the execution of the warrant, and about purchasing marihuana the day prior in

Lima. (Id.)

{¶42} The State next called Deputy Sergeant Dwight Underwood of the

Hardin County Sheriff’s Office. (Tr. at 92). Sergeant Underwood testified that he

was certified to test for marihuana and to his training relative to that certification.

(Id. at 93-100). Sergeant Underwood testified that he tested the marihuana taken

from Smith’s residence and he testified as to how it was tested. (Id. at 100-105).

He testified that five separate exhibits were submitted to him for testing, and that

he tested each of the five samples. (Id. at 105). Sergeant Underwood testified that

the biggest exhibit/sample, State’s Exhibit 7, weighed 426.3 grams, and the others

weighed 1.96 grams, 6.51 grams, .54 grams, and 54.42 grams respectively. (Id. at

112-113). Sergeant Underwood testified that after conducting a chemical analysis

he found all of the substances submitted to him for testing to be marihuana. (Id. at

113). Sergeant Underwood testified that he weighed and tested the vegetation

within 24 hours of receiving it. (Id. at 120).

4
The first interview with Smith lasted just under 10 minutes, and the second interview was just over 6
minutes.

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{¶43} At the conclusion of Sergeant Underwood’s testimony, the State

rested its case. At that time, Smith did not make a Crim.R. 29 motion for

acquittal. He similarly did not make a Crim.R. 29 motion for acquittal at the close

of evidence. Smith has thus waived his challenge to sufficiency of the evidence

for purposes of appeal, absent plain error. State v. LeMasters, 11th Dist. Lake No.

2007-L-129, 2008-Ohio-2139, ¶ 17, citing State v. McCrory, 11th Dist. Portage

No.2006-P-0017, 2006-Ohio-6348, at ¶ 39 (additional citation omitted).

{¶44} Nevertheless, looking at the evidence in the light most favorable to

the State, the State clearly presented testimony that a rational trier of fact could

find proved beyond a reasonable doubt that Smith was guilty of the crime as

alleged. The State presented testimony that Smith’s residence was searched and

three marihuana plants were found growing in the basement. The State presented

an interview with Smith where Smith admitted he was growing the marihuana that

was found. The State presented evidence that there was in excess of 400 grams of

marihuana seized.

{¶45} In addition, the State presented evidence that there were various

items used in cultivating marihuana found in the basement such as grow lamps,

potting soil, and pruning shears. Moreover, the State presented testimony that

Smith’s grow operation was done in the same house where three juveniles resided,

one of whom was present at the time of the search warrant. Furthermore, the State

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also presented testimony that Smith’s grow operation was within 1000 feet of a

school. The State only had to prove that the grow operation was done either in the

vicinity of a juvenile or in the vicinity of a school, and it actually established both.

Thus even if Smith had properly made a Crim.R. 29 motion, we find that sufficient

evidence was presented to convict him. Therefore his seventh assignment of error

is overruled.

{¶46} Smith next argues in his first assignment of error that his conviction

was against the manifest weight of the evidence. In Smith’s case-in-chief, Smith

called Dr. Yousif Rojeab, an associate professor of pharmaceutics at Ohio

Northern University. Dr. Rojeab testified that he weighed the plants in question

on June 27, 2014, approximately eight months after they had been weighed by

Sergeant Underwood. Dr. Rojeab testified that he weighed the evidence submitted

to him and it weighed approximately 131.02 grams. (Tr. at 135). On cross-

examination Dr. Rojeab testified that a wet plant will weigh different than a dry

plant. (Id. at 139).

{¶47} On appeal, Smith argues that his conviction was against the weight

of the evidence because Dr. Rojeab’s testimony was that the evidence submitted to

him weighed less than 200 grams. However, Sergeant Underwood testified that he

weighed the evidence within 24 hours of receiving it and that it totaled in excess

of 400 grams. Sergeant Underwood testified that drier vegetation gets lighter over

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time, which could explain the difference between the weights. (Tr. at 119). To an

extent, Dr. Rojeab corroborated this in his testimony when he testified that he was

not an expert on moisture contents of plants, but the weight would be different

between a wet plant and a dry plant. (Id. at 139).

{¶48} Thus while Dr. Rojeab did test the marihuana submitted to him, he

did so nearly eight months after Sergeant Underwood and the testimony

established that vegetation can lose weight over time as it dries out. On the basis

of the record before us, we cannot find that the factfinder clearly lost its way in

convicting Smith. This argument is thus not well-taken.

{¶49} Smith next argues that the witnesses in this case were not credible,

for instance citing that Detective Beach’s report stated that it was filed at 8:33

a.m., when the raid did not actually begin until 9 a.m. However, Detective Beach

testified that sometimes officers did not bother to change the time stamps on their

reports. Moreover, this timing inconsistency does nothing to invalidate the

evidence found at Smith’s residence or Smith’s admissions, therefore the

argument is not well-taken.

{¶50} Lastly, Smith contends that the State of Ohio failed to establish

venue in this case, even though Hardin County is mentioned half a dozen times or

more and the city of Kenton was mentioned multiple times at trial. Despite this

clear mention of venue, Smith argues that none of the State’s witnesses ever

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established that the crime occurred in the State of Ohio. Notwithstanding the

numerous assumptions that a jury could properly make based on mentions of the

county and city, multiple exhibits introduced by the State in this case mentioned

Ohio as the location, such as State’s Exhibit 1, an Ohio Uniform Incident Report,

State’s Exhibit 2, which states that the search warrant was served at “201 S. High

[S]t. Kenton, Oh,” and State’s Exhibit 6, the marihuana examination report from

the Hardin County Sheriff’s Office, indicating the office was in Kenton, Ohio.

(State’s Ex. 1, 2, 6). Therefore, Smith’s argument on this issue is similarly not

well-taken.

{¶51} On the basis of the record before us we cannot find that the factfinder

clearly lost its way or created a manifest miscarriage of justice in convicting

Smith. The weight of the evidence supports Smith’s conviction. Accordingly,

Smith’s first assignment of error is overruled.

Fourth Assignment of Error

{¶52} In Smith’s fourth assignment of error, he contends that the trial court

abused its discretion by allowing “improper evidence” to be admitted in the form

of statements by the prosecutor to a witness made outside the presence of the jury

and that the trial court erred by failing to declare a mistrial. Specifically, Smith

contends that the prosecutor threatened one of his witnesses when the prosecutor

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advised a defense witness to confer with independent counsel to determine

whether she was in danger of incriminating herself by testifying.

{¶53} In reviewing claims of prosecutorial misconduct, the test is whether

the prosecutor’s remarks were improper and, if so, whether those comments

prejudicially affected the substantial rights of the defendant. State v. Jones, 90

Ohio St.3d 403, 420 (2000). “In making this determination, an appellate court

should consider several factors: (1) the nature of the remarks, (2) whether an

objection was made by counsel, (3) whether corrective instructions were given by

the court, and (4) the strength of the evidence against the defendant.” State v.

Braxton, 102 Ohio App.3d 28, 41 (8th Dist.1995) (citation omitted). “The

touchstone of analysis ‘is the fairness of the trial, not the culpability of the

prosecutor.’” Braxton, quoting State v. Underwood, 73 Ohio App3d 834, 840-841

(4th Dist.1991), citing Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940 (1982).

{¶54} Prosecutorial misconduct is generally not grounds for reversal unless

it so taints the proceedings as to deprive the defendant of a fair trial. State v.

Johns, 3d. Dist. Seneca No. 13-04-23, 13-04-24, 13-04-25, 2005-Ohio-1694, ¶ 25.

Where it is clear beyond a reasonable doubt that the jury would have found the

defendant guilty, even absent the alleged misconduct, the defendant has not been

prejudiced, and his conviction will not be reversed. See State v. Underwood, 2d

Dist. Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review allegations of

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Case No. 6-14-14

prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d

Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v.

Wainwright, 477 U.S. 168, 106 S.Ct. 2464 (1986).

{¶55} Smith’s argument under this assignment of error is based on the

following exchange at trial.

[COURT]: Call your next witness Mr. Smith.

[SMITH]: I’d like to call Stephanie Ritchie.

[PROSECUTOR]: State would ask for a sidebar hearing. Can
we have a hearing outside the presence of the Jury?

[COURT]: We may. Ladies and gentleman, once again, there
are these details that come up, and I apologize, but it’s
necessary. So the jury will be dismissed for a few moments.
Alright. Do you wish to call the witness, is that what you wish to
do Mr. Smith?

[SMITH]: Yes.

[JUDGE]: Alright. You may be seated.

[BAILIFF]: Justin is getting her.

[SMITH]: Your Honor, respectfully, after you guys admonish
her, may I make a statement to her so that she don’t feel
pressured to testify?

[COURT]: No, that wouldn’t be appropriate, I don’t think, you
know, in this context. Mr. Bailey?

[PROSECUTOR]: I would object.

[BAILIFF]: Come on in please. Are you wanting me to go
ahead and swear her?

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Case No. 6-14-14

[COURT]: Pardon me?

[BAILIFF]: Are you wanting me to go ahead and swear her at
this point or wait until the

[COURT]: No, not at this point

[BAILIFF]: Okay. You can go ahead and have a seat. I’m just
gonna put this onto your jacket.

[STEPHANIE RITCHIE]: Okay.

[BAILIFF]: Maybe the other side.

[RITCHIE]: Get my hair out of the way.

[BAILIFF]: There you go. Thank you.

[COURT]: Okay. Gentleman, you may be seated. Ma’am,
would you state your name please?

[RITCHIE]: Stephanie Ritchie.

[COURT]: Alright. Ma’am, the Defendant has told us that he
wishes to call you as a witness in this matter, and we’ve had a
sidebar5 and the Prosecutor has raised the thought that you
might be testifying to things that would subject you to criminal
prosecution. That, you know, your testimony may lead to
testimony by you under oath of illegal activity. I don’t know
what that is, I mean I don’t know what that is. However, it’s my
duty as Judge to advise you, of course, that you have a right to
remain silent, that you need not answer questions that would
subject you to criminal prosecution in any form, and to just
make sure you understand that you have a right to, you know,
under the Fifth Amendment of the United States Constitution,
you have a right to refuse to answer questions that might or

5
Although there is no break in the transcript indicating that the sidebar occurred, the sidebar had apparently
taken place at this point. Regardless, it was done off the record.

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Case No. 6-14-14

would subject you to criminal prosecution. Mr. Bailey, is that [--
]

[PROSECUTOR]: Yes Your Honor, but more specifically, what
the State’s alluding to is there is a charge on the books of
permitting drug abuse, and it states no person who is the owner,
lessee, occupant, or has custody or control of the premises or
real estate shall another [sic] to commit a felony drug abuse.
This charge of cultivation fits under that. She, we have evidence
that she is the lessee under the lease of this residence. If she
testifies that she is the lessee, she could be incriminating herself,
giving us more evidence on the felony of the fifth degree
permitting drug abuse.

[COURT]: I believe I have advised her that anything that she
says can be used against her in criminal prosecution.

[PROSECUTOR]: I just wanted the Court to know where we’re
coming from, and the evidence may get better as to other
activities of a drug nature. But it will remain to see [sic] what
she testifies to and what we get out of cross.

[COURT]: I believe I have done that.

[PROSECUTOR]: Alright.

[SMITH]: Your Honor I’d like to request that she not testify.

[COURT]: Alright. Mr. Smith that’s totally up to you.

[SMITH]: I’m not comfortable with the threats that he’s—I’m
not comfortable with putting her on the stand right now. I’d
rather lose and go to prison than make both of us go to prison
because he’s being a bully.

[COURT]: Mr. Smith I just want you to know that I believe I’ve
done what is appropriate to be done under the law just to
protect somebody’s rights, but you have every right to call that
person and require that person answer your questions under
oath. We’re not doing anything to stop your ability to do that.

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Case No. 6-14-14

[SMITH]: I agree. You haven’t done anything wrong Your
Honor.

(Tr. at 142-147).

{¶56} On appeal, Smith argues that “the prosecutor’s statement that Ritchie

would be subject to criminal charges for ‘permitting drug abuse’ functioned to

intimidate the witness, served as a backhanded impeachment, and expressed the

prosecutor’s opinion about the credibility of the witness. As a result, Appellant

was denied a fair trial, and the verdict should be reversed.” (Appt’s Br. at 15).

{¶57} First, Smith’s claims that the prosecutor’s statement served as

“backhanded impeachment” and that the prosecutor expressed his opinion about

the witness’s credibility are wholly irrelevant as this conversation was done

outside the presence of the jury and thus had no impact whatsoever on the

outcome of the trial. While it may not be clear from the preceding dialogue that

the conversation was held outside the presence of the jury, as the dialogue

continues and Smith states that he intends to rest his case, the court states that it

needs to bring the jury back in so that Smith can rest in front of them. (Tr. at 147).

In addition, at the beginning of the dialogue the trial court expresses that it

intended to conduct the conversation outside the presence of the jury.

{¶58} Second, dealing with Smith’s claim that the prosecutor was

intimidating the witness, Smith is unable to establish that the prosecutor did

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Case No. 6-14-14

anything improper. The prosecutor initially requested the sidebar to ensure that

the witness was aware of her rights. While the prosecutor perhaps did not need to

make the witness aware of a specific charge she could incriminate herself for

based upon her anticipated testimony we find no indication from the record that

the prosecutor engaged in witness intimidation.

{¶59} Moreover, we certainly can find no fault with the trial court’s actions

in the preceding dialogue, and we further cannot find that the trial court erred in

failing to declare a mistrial, as Smith suggests. Smith never objected to the

prosecutor’s statement and he certainly never went so far as to request a mistrial.

There is no remote indication that a mistrial was appropriate here, particularly

given that all of the preceding dialogue happened outside the jury’s presence.

Finally, we would note that it was ultimately Smith who stated that he did not

want the witness to testify. He was never prevented from calling her as a witness

and he never proffered any testimony she may have given.

{¶60} For all of these reasons we cannot find that the trial court committed

plain error or improperly failed to declare a mistrial where one was neither asked

for nor appropriate. Accordingly, Smith’s fourth assignment of error is overruled.

Fifth Assignment of Error

{¶61} In Smith’s fifth assignment of error, he argues that the prosecutor

made improper, prejudicial remarks in closing argument.

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Case No. 6-14-14

{¶62} “Parties have wide latitude in their closing statements, particularly

‘latitude as to what the evidence has shown and what inferences can be drawn

from the evidence.’ ” State v. Wolff, 7th Dist. Mahoning No. 07 MA 166, 2009-

Ohio-7085, at ¶ 13, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, at

¶ 213. A prosecutor may comment upon the testimony of witnesses and suggest

the conclusions to be drawn. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, at

¶ 116.

{¶63} Because Smith failed to object to any of the alleged instances of

prosecutorial misconduct, the alleged improprieties are waived, absent plain error.

State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 139; State v. Saleh, 10th

Dist. Franklin No. 07AP–431, 2009-Ohio-1542, ¶ 68. A court recognizes plain

error with the utmost caution, under exceptional circumstances, and only to

prevent a miscarriage of justice. Id. We may reverse only when the record is clear

that defendant would not have been convicted in the absence of the improper

conduct. State v. Williams, 79 Ohio St.3d 1, 12, (1997).

{¶64} In this case Smith specifically objects to the following portions of the

State’s closing argument.

Now in this particular case, the Defendant in his own words, out
of his own mouth in his opening statement said I was cultivating
marihuana. He doesn’t even deny that fact. He admits it. So
right now, as far as the State’s concerned, besides our own
evidence, his own admission and his own statement up front was
that he’s growing marihuana. That’s cultivating.

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Case No. 6-14-14

***

* * * [Y]ou first have to find out did he or did he not guilty [sic]
guilty of cultivation or manufacture? That’s an admitted fact by
the Defendant. I think it’s been established both from the
cultivation as well as the manufacturing. In the evidence of the
pictures, which you have numerous, you can see the evidence of
the cultivation.

***

We submit to you that evidence without exception, we ask you to
find Mr. Roby Smith, based on his own statements and the
cumulative evidence, everything’s in front of you, guilty of the
charge of illegal cultivation in the vicinity of a juvenile and the
vicinity of a school. Thank you.

(Tr. at 160, 165, 169).

{¶65} Dealing first with the latter two statements cited by Smith as

improper, the State did enter into evidence an interview with Smith where Smith

admitted to growing the marihuana plants. Thus we cannot find the State’s

characterization in the latter two statements as improper at all.

{¶66} However, in the first statement cited by Smith, the State specifically

referred to an alleged admission made by Smith during his own opening statement.

We would note that neither Smith nor the State reproduced the transcript from

opening statements. Nevertheless, even assuming the State was referring to

opening statements as though they were evidence any such reference, even if error

for a defendant making his own opening statement, would be harmless error.

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Case No. 6-14-14

{¶67} Most illustrative of the fact that the State’s erroneous statement was

harmless are the multitude of admissions by Smith that he was growing

marihuana. In the interview recording Smith admits multiple times that the plants

were his and that he was growing marihuana. In addition, when Smith was

questioning his witness, Dr. Rojeab, he refers to the marihuana plants as “my

plants.” (Tr. at 133). Furthermore, in Smith’s own closing argument he stated, “I

think we all can agree I was growing weed. I was growing marihuana. I think

what we disagree on is the 131.2 grams.” (Tr. at 170).

{¶68} Finally, we would note that the trial court gave instructions that

opening and closing statements were not to be considered as evidence, and the jury

is presumed to follow those instructions. (Tr. at 154); State v. Twyford, 94 Ohio

St.3d 340, 356, 2002-Ohio-894 (citation omitted). Based on the numerous

admissions made by Smith presented at trial and the trial court’s curative

instruction, we cannot find that the State’s comment in closing argument was

anything but harmless in this case even if it was improper. Therefore, Smith’s

fifth assignment of error is overruled.

Sixth Assignment of Error

{¶69} In his sixth assignment of error, Smith argues that the trial court

erred in ruling against Smith on multiple objections when Smith “was attempting

to establish the affirmative defense of ‘personal use’ as provided by 292[5].04(F).”

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Case No. 6-14-14

{¶70} The affirmative defense referred to by Smith is codified in R.C.

2925.04(F), and reads,

(F) It is an affirmative defense, as provided in section 2901.05 of
the Revised Code, to a charge under this section for a fifth
degree felony violation of illegal cultivation of marihuana that
the marihuana that gave rise to the charge is in an amount, is in
a form, is prepared, compounded, or mixed with substances that
are not controlled substances in a manner, or is possessed or
cultivated under any other circumstances that indicate that the
marihuana was solely for personal use.

Notwithstanding any contrary provision of division (F) of this
section, if, in accordance with section 2901.05 of the Revised
Code, a person who is charged with a violation of illegal
cultivation of marihuana that is a felony of the fifth degree
sustains the burden of going forward with evidence of and
establishes by a preponderance of the evidence the affirmative
defense described in this division, the person may be prosecuted
for and may be convicted of or plead guilty to a misdemeanor
violation of illegal cultivation of marihuana.

{¶71} At the outset, the affirmative defense characterized above in R.C.

2925.04(F) provides an affirmative defense to a fifth degree felony charge of

Illegal Cultivation of Marihuana. By its plain language, it does not apply to a

fourth degree felony charge of Illegal Cultivation of Marihuana in the Vicinity of a

School or in the Vicinity of a Juvenile as we have in this case.

{¶72} Nevertheless, Smith’s assertion on appeal that he had wished to

establish a “personal use” affirmative defense at trial is not supported by the

record. First, it was clear from Smith’s statements to Detective Beach in Smith’s

interview that Smith was not growing the marihuana merely for personal use. He

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Case No. 6-14-14

both sold it and gave it away to at least six other people according to his own

statements.

{¶73} Second, the questions that Smith claims the trial court improperly

prevented him from asking to establish his affirmative defense do not even pertain

to the establishment of a personal use affirmative defense. While Detective Beach

was on the stand, Smith attempted to ask Detective Beach, “How many grams of

marihuana constitutes a felony?” (Tr. at 86). The State objected, citing that it was

irrelevant, and that it was asking the witness for a “point of law.” (Id.) The trial

court sustained the objection, stating that the question was “not [within] the

witness’s purview. The Court will instruct the Jury about the charge that’s before

it and what is required to prove the charge.” (Id.) Smith now claims the trial court

erred, as this statement would have helped Smith establish his affirmative defense.

However, there is nothing in this exchange that suggests that the question

pertained to any alleged affirmative defense regarding “personal use.”

{¶74} Similarly, Smith asked Detective Beach while he was on the stand

“what kind of charge [would] gifting marihuana * * * be?” (Tr. at 85). The State

objected, stating that it was irrelevant, and that objection was sustained. As the

charge of Illegal Cultivation does not have anything to do with “gifting”

marihuana, Smith’s question does not appear to be relevant here as the State

suggests. However, Smith contends that the objection was improperly sustained

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Case No. 6-14-14

as the question went to creating his affirmative defense of “personal use.” Despite

Smith’s arguments, the question does not, in any way, further an affirmative

defense for Smith. In fact, Smith “gifting” the marihuana would hurt his claim to

an affirmative defense because it would prove that he was not growing the

marihuana merely for his own “personal use.” This argument is thus not well-

taken.

{¶75} Lastly, Smith argues that while he was cross examining Sergeant

Underwood, the following discourse occurred and he was prevented from

establishing testimony toward his affirmative defense.

[SMITH]: Okay. Are you aware that a month before you
conducted your weight, the Ohio Attorney General released a
law enforcement bulletin [--]

[PROSECUTOR]: Objection. Where are we going with the law
and providers by third party. [sic] It’s not even before the
Court. It’s all pure hearsay.

[SMITH]: It’s Ohio law from our own [--]

[PROSECUTOR]: Attorney General (inaudible-talking over
one another)

[SMITH]: (inaudible-talking over one another) Hardin County.

[COURT]: I don’t know where you’re going with this Mr.
Smith, but the [--]

[SMITH]: The Ohio Attorney General sent out a bulletin saying
that—and I’m only trying to explain where I’m going with
this—that the stem should be [--]

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Case No. 6-14-14

[PROSECUTOR]: Objection. (Inaudible-talking over one
another)

[SMITH]: (Inaudible- talking over one another)

[PROSECUTOR]: Objection. Have this argument by sidebar.

[COURT]: The Court will instruct the Jury on the law of Ohio.
The law is clear, and I will instruct the Jury what the law of
Ohio is.

(Tr. at 122).

{¶76} Despite his attempt to question Sergeant Underwood regarding the

Ohio Attorney General’s Law Enforcement Bulletin, Smith does not cite to the

“Attorney General’s Bulletin” in his brief to show how it was relevant, and he

similarly does not attach the bulletin to his brief. It appears, however, that he is

referring to a Law Enforcement Bulletin made on October 16, 2013 on “Proper

Protocol” to weigh marihuana. It is not remotely clear from the Bulletin how this

relates to any alleged affirmative defense of personal use as the bulletin pertains to

weighing marihuana. There is no indication that the trial court erred in excluding

any testimony related to this bulletin, and there is no allegation that the trial court

improperly instructed the jury on the law regarding what was weighed in this case.

Regardless, the exclusion of this testimony has absolutely no relevance to Smith’s

claimed affirmative defense of personal use. Smith’s arguments are thus not well-

taken, and his sixth assignment of error is overruled.

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Case No. 6-14-14

Second Assignment of Error

{¶77} In Smith’s second assignment of error he argues that the trial court

committed plain error by “failing to exclude evidence at sentencing that [Smith]

had told his attorney that he would [not] comply with community control, as that

evidence was a communication disclosed in and intended strictly for negotiations,

and its probative value was substantially outweighed by the danger of unfair

prejudice.”

{¶78} Smith specifically argues in this assignment of error that the

prosecutor improperly referenced plea negotiations at the sentencing hearing.

Smith did not object to the allegedly improper statements when they were made.

In arguing that the State’s reference was improper, Smith cites Evid.R. 408 for the

principle that, “[e]vidence of conduct or statements made in compromise

negotiations is * * * not admissible.” He also cites to Evid.R. 103(D) for the

principle that “[n]othing * * * precludes taking notice of plain errors affecting

substantial rights although they were not brought to the attention of the court.”

{¶79} Despite citing multiple rules of evidence, Smith omits the most

relevant rule of evidence to his case, Evid.R. 101(C)(3), which clearly states that

the rules of evidence do not apply to miscellaneous criminal proceedings, such as

sentencing hearings. See also State v. Johnson, 7th Dist. Mahoning No. 10MA32,

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Case No. 6-14-14

2010-Ohio-6387, ¶ 10. Thus Smith’s argument is not well-taken and his second

assignment of error is overruled.6

{¶80} Having found no error prejudicial to Smith in the particulars

assigned, his assignments of error are overruled and the judgment of the Hardin

County Common Pleas Court is affirmed.

Judgment Affirmed

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr

6
We would note that the trial court did not follow the State’s recommendation for sentencing regardless of
the propriety of the State’s comments at the sentencing hearing, as the State recommended community
control and the trial court ultimately sentenced Smith to 12 months in prison. According to the record the
sentence was based in large part on Smith’s criminal history of two felonies, which included one prior
lengthy prison term. In addition, the trial court was also clearly concerned with the fact that Smith had
been to the W.O.R.T.H. center previously, he tested positive for drugs during the pendency of this case, and
his offense was in the vicinity of a juvenile.

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