State v. Hill

[Cite as State v. Hill, 2018-Ohio-67.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY

STATE OF OHIO, :
: Case No. 16CA3
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
CITO E.L. HILL, :
:
Defendant-Appellant. : Released: 01/05/18
_____________________________________________________________
APPEARANCES:

Timothy Young, Ohio State Public Defender, and Allen M. Vender,
Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M.
Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

{¶1} Cito Hill appeals the judgment of the Athens County Court of

Common Pleas convicting him of one count of aggravated trafficking in

drugs and sentencing him to an eighteen-month prison term. On appeal,

Appellant contends that 1) his conviction is not supported by sufficient

evidence; 2) the trial court abused its discretion when it permitted the State

to introduce evidence of other bad acts; 3) he received ineffective assistance

of counsel because his attorney failed to object to prosecutorial misconduct
Athens App. No. 16CA3 2

in closing argument; and 4) the trial court abused its discretion when it

admitted labels affixed to prescription bottles, which were both hearsay and

not authenticated. Because we fail to find merit in Appellant’s second, third

and fourth assignments of error, and because we have determined under

Appellant’s first assignment of error that his conviction was supported by

sufficient evidence, we overrule all of the assignments of error raised by

Appellant. Accordingly, the judgment of the trial court is affirmed.

FACTS

{¶2} On November 6, 2013, the Athens County Grand Jury indicted

Appellant on one count of aggravated trafficking in drugs (oxycodone) in

violation of R.C. 2925.03(A)(1), a third-degree felony, and one count of

aggravated trafficking in drugs (oxycodone) in violation of R.C.

2925.03(A)(2), a third-degree felony. Each count carried an attendant

forfeiture specification. Appellant pleaded not guilty and the matter

proceeded to trial on November 19, 2015. Just prior to trial, the State

dismissed count one of the indictment.

{¶3} The State presented several witnesses at trial, including Sergeant

Coy Lehman of the Ohio State Highway Patrol. Sergeant Lehman testified

that in the early morning hours of August 24, 2011, he received a call about

a possible impaired driver traveling on Route 33 in Athens County. After
Athens App. No. 16CA3 3

locating the car and observing it swerve multiple times, Sergeant Lehman

initiated a traffic stop. He testified that he asked Appellant, who was the

driver, for his license and registration. Appellant admitted that he did not

have a valid driver’s license but provided Sergeant Lehman with a Florida

identification card and a copy of the car’s rental agreement. The agreement

listed Tamara Cremeans, the mother of Appellant’s child, as the authorized

driver and showed an estimated return date of August 8, 2011.

{¶4} Sergeant Lehman testified that Appellant stated he and his

girlfriend were traveling from Florida to Columbus, and as Appellant was

speaking, Sergeant Lehman noticed that his “speech was very slurred, * * *

his pupils were pinpoint, which [was] odd because it was dark and they

should be dilated. His eyes were red. His actions were lethargic and slow.

His facial features were droopy.” Sergeant Lehman testified that because he

did not smell alcohol on Appellant, he suspected Appellant was under the

influence of drugs.

{¶5} Sergeant Lehman testified he noticed that Appellant’s girlfriend

also seemed impaired. While talking with her, Sergeant Lehman observed a

prescription pill bottle lying near the gas pedal. The label on the bottle

indicated that the pills were “Oxycodone” and that the prescription was

filled for Appellant on August 22, 2011, just two days prior to the traffic
Athens App. No. 16CA3 4

stop. Sergeant Lehman testified that of the 180 pills that the prescription

label indicated were originally in the bottle, “significantly less than 180

pills” remained. Sergeant Lehman testified that he then administered field

sobriety tests to Appellant and that despite the fact the test results did not

confirm his suspicions, he nevertheless placed Appellant under arrest for

driving while under the influence of alcohol or drugs. Subsequent urine

testing confirmed the presence of cocaine and marijuana metabolites in

Appellant’s system.

{¶6} During the search of Appellant’s person, Sergeant Lehman found

a “wad of cash” totaling $1,935.00 dollars. Sergeant Lehman testified that

based on the number of missing pills and the large amount of cash, he

suspected Appellant was transporting drugs. He further testified that after

additional officers arrived on the scene, a search of the car yielded two more

prescription pill bottles in Appellant’s name and two cell phones. The

record reveals that Appellant stated, on a recording of the traffic stop

admitted a trial, that both of the cell phones in the car were his.

{¶7} The record reveals that of the 180 tablets that the label indicated

were originally in the first bottle, which was found near the gas pedal in

plain view, there were only 70 tablets remaining. The label on a second

prescription pill bottle, which was found in the driver’s door storage
Athens App. No. 16CA3 5

compartment, indicated that the pills were “Alprazolam” and that the

prescription was filled for Appellant on August 22, 2011, as well. The label

on that bottle indicated there were 84 pills, but of the 84 pills that the label

indicated were originally in the bottle, there were only 37 whole and 14

broken pieces remaining. A third bottle containing oxycodone was found in

the center console of the vehicle. The label on that bottle, also dated August

22, 2011, indicated there were 140 pills, but there were only 11 pills

remaining.1 It was later determined that the bottles did in fact contain

oxycodone, a schedule II controlled substance, and alprazolam, a schedule

IV controlled substance. Thus, out of 320 oxycodone pills prescribed to

Appellant just two days prior, 239 pills were missing at the time Appellant

was stopped.

{¶8} The State also presented testimony from Detective Chuck

Haegele, employed by the Athens City Police Department and assigned to

the Athens Major Crimes Unit. Detective Haegele, though not involved with

Appellant’s stop or arrest, testified generally with respect to his specific

training and experience in drug interdiction. The trial court allowed the

detective’s testimony, over the objection of Appellant, “just for

background[,]” in response to the State’s asserted purpose of educating the

1
Officers also found another prescription pill bottle in Appellant’s girlfriend’s name, which was empty, as
well as a bottle of “Ultra Scent.”
Athens App. No. 16CA3 6

jury. Detective Haegele testified that he typically looks for certain drug

interdiction factors or common indicators, including rental vehicles, not

carrying identification, coming from other states, including Michigan,

Florida and Washington, D.C., and carrying prescription pills, the most

common being oxycontin or oxycodone.

{¶9} The jury ultimately found Appellant guilty of aggravated

trafficking in drugs. However, it found that the State had not proved that the

cash found on Appellant was derived through the commission of the offense.

Appellant was subsequently sentenced to an eighteen-month prison term, an

eighteen-month suspension of his operator’s license, and fines totaling

$6,935.00. Appellant now brings his timely appeal, assigning the following

errors for our review.

ASSIGNMENTS OF ERROR

“I. THE TRIAL COURT VIOLATED CITO HILL’S RIGHTS TO DUE
PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF
SUFFICIENT EVIDENCE, IT ENTERED A JUDGMENT OF
CONVICTION FOR AGGRAVATED TRAFFICKING OF DRUGS.

II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
PERMITTED THE STATE TO INTRODUCE EVIDENCE OF
OTHER BAD ACTS, AND THUS DENIED CITO HILL HIS
RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

III. CITO HILL RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL BECAUSE HIS ATTORNEY FAILED TO OBJECT TO
PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT,
IN VIOLATION OF MR. HILL’S RIGHTS UNDER THE FIFTH,
Athens App. No. 16CA3 7

SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION.

IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
ADMITTED LABELS AFFIXED TO PRESCRIPTION BOTTLES,
AND THE LABELS WERE BOTH HEARSAY AND NOT
AUTHENTICATED.”

ASSIGNMENT OF ERROR II

{¶10} For ease of analysis, we address Appellant’s assignments of

error out of order. In his second assignment of error, Appellant contends

that the trial court abused its discretion when it permitted the State to

introduce evidence of other bad acts, thus denying him his right to due

process and a fair trial. Appellant’s argument under this assignment of error

is twofold. First, Appellant argues the trial court erred by allowing the jury

to consider urinalysis results showing that he had ingested illicit drugs.

Second, Appellant argues the trial court erred in allowing evidence of “drug

interdiction” factors. Appellant argues the admission of this evidence

violated Evid.R. 404(B). The trial court denied Appellant’s motion in limine

requesting this evidence and testimony be excluded. The State argues, with

respect to the admission of the urine test results, that because defense

counsel failed to object to the admission of testimony by expert witness,

Emily McAnulty, this issue was not properly preserved for purposes of

appeal.
Athens App. No. 16CA3 8

{¶11} Generally, appellate courts do not directly review in limine

rulings. State v. Hapney, 4th Dist. Washington No. 01CA30–31, 2002–

Ohio–3250, ¶ 55; citing State v. White, 4th Dist. Gallia No. 95CA08, 1996

WL 614190. Such rulings are tentative and interlocutory and made by a

court only in anticipation of its actual ruling on evidentiary issues at trial.

See McCabe/Marra Co. v. Dover, 100 Ohio App.3d 139, 160, 652 N.E.2d

236, 250 (8th Dist.1995); Collins v. Storer Communications, Inc., 65 Ohio

App.3d 443, 446, 584 N.E.2d 766 (1989). Thus, the grant or denial of a

motion in limine does not preserve any error for review. See State v. Hill, 75

Ohio St.3d 195, 202–203, 661 N.E.2d 1068 (1996). Rather, in order to

preserve the error, the evidence must be presented at trial, and a proper

objection lodged. See State v. Brown, 38 Ohio St.3d 305, 528 N.E.2d 523,

paragraph three of the syllabus (1988); State v. Grubb, 28 Ohio St.3d 199,

503 N.E.2d 142, paragraph two of the syllabus (1986). An appellate court

will then review the correctness of the trial court's ruling on the objection

rather than the ruling on the motion in limine. See White, supra; Wray v.

Herrell, 4th Dist. Lawrence No. 93CA08, 1994 WL 64293.

{¶12} “A trial court has broad discretion in the admission or exclusion

of evidence, and so long as such discretion is exercised in line with the rules

of procedure and evidence, its judgment will not be reversed absent a clear
Athens App. No. 16CA3 9

showing of an abuse of discretion with attendant material prejudice to

defendant.” State v. Green, 184 Ohio App.3d 406, 2009–Ohio–5199, 921

N.E.2d 276, ¶ 14 (4th Dist.); citing State v. Powell, 177 Ohio App.3d 825,

2008–Ohio–4171, 896 N.E.2d 212, ¶ 33 (4th Dist). “ ‘Although the abuse of

discretion standard usually affords maximum [deference] to the lower court,

no court retains discretion to adopt an incorrect legal rule or to apply an

appropriate rule in an inappropriate manner. Such a course of conduct

would result in an abuse of discretion.’ ” See 2–J Supply, Inc. v. Garrett &

Parker, L.L.C., 4th Dist. Highland No. 13CA29, 2015-Ohio-2757, ¶ 9;

quoting Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 2013-

Ohio-5610, 5 N.E.3d 694, ¶ 16. When applying the abuse-of-discretion

standard of review, appellate courts must not substitute their judgment for

that of the trial courts. See In re Jane Doe 1, 57 Ohio St.3d 135, 138, 566

N.E.2d 1181 (1991). Furthermore, an appellate court must presume that the

findings of the trial court are correct because the finder of fact is best able to

observe the witnesses and to use those observations to weigh witness

credibility. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 81, 461

N.E.2d 1273 (1984); see also Mahlerwein v. Mahlerwein, 160 Ohio App.3d

564, 2005-Ohio-1835, 828 N.E.2d 153, ¶ 19 (4th Dist.).
Athens App. No. 16CA3 10

{¶13} Appellant argues that the evidence related to urine testing and

drug interdiction factors should have been excluded under Evid.R. 404(B),

which provides that “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in

conformity therewith.” However, Evid.R. 404(B) also contains exceptions,

stating that evidence may be admissible “for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.”

{¶14} A review of the record reveals that the State sought to introduce

evidence, at the end of day one of the trial, regarding Appellant’s

impairment on the night of the traffic stop, in part with testimony and

evidence related to the field sobriety tests that were conducted. Appellant

objected, arguing such testimony constituted impermissible other acts

evidence. The trial court decided to adjourn the trial for the day so that

further discussion could be had outside the presence of the jury, but agreed

that the evidence might constitute inadmissible other acts evidence. The

trial resumed the next day with the State having filed a formal motion

requesting the trial court to reconsider its prior ruling on the OVI evidence.

The reason advanced by the State regarding the need for the evidence related
Athens App. No. 16CA3 11

to defense counsel’s claim during both voir dire and opening statements that

Appellant was stopped for nothing other than “driving while black.”

{¶15} Appellant objected to the motion to reconsider, arguing that

because he was not formally charged with Operating a Vehicle While

Intoxicated (OVI), such evidence was irrelevant and also consisted of other

bad acts evidence. After an extended bench conference at the beginning of

day two of the trial, the trial court agreed and ruled that evidence related to

Appellant’s impairment, beyond his driving and the video and of the initial

stop, were not relevant, would not be admitted, and thus the court denied the

motion to reconsider.

{¶16} However, on day three of the trial, the State sought to introduce

the urine test results from the urinalysis performed on Appellant the night of

the stop, arguing that the results were admissible because Sergeant Lehman

had stated one of the factors he considers in drug trafficking investigations is

whether or not an individual is a drug user as well. The trial court held off

ruling on the issue until later in the afternoon, and when it did it decided as

follows:

“As a preliminary matter as to the issues raised by the State, by
the State at the last break the Court will allow the testimony of
the State’s witness tomorrow morning. Defense counsel can
lodge any objections to her testimony at the appropriate time.
But the court will allow the testimony.”
Athens App. No. 16CA3 12

{¶17} The next morning, on day four of the trial, Appellant filed a

written motion in limine, arguing that the urine test results were

inadmissible. Appellant further asked the trial court to exclude “evidence

related to drug trafficking indicators,” including the urine test results.

Appellant argued in his motion that the State’s introduction of urine test

results showing drug use, as well as testimony describing “drug trafficking

indicators” such as “travelling between certain State’s [sic], using rental

cars, [and] using drugs * * *” is just another way of saying “that drug

traffickers have certain character traits[,]” and that Evid.R. 404(B)

specifically prohibits the use of other crimes, wrongs or acts to establish

character or action in conformity therewith. Appellant argued that all of the

drug trafficking indicators constituted other acts, wrongs or potential crimes,

which the State was using to attempt to establish that he was a drug

trafficker. The trial court denied the motion in limine, stating as follows:

“As an initial matter counsel for the defense has submitted a
written Motion in Limine excluding evidence related to the
indicators as was testified to yesterday. And as the Court has
already ruled on that, having denied that motion, I don’t believe
we need to re-address that. But it is good to have that down in
written form for the Court of Appeals to review.”

Thereafter, the State presented witness Emily McAnulty, who is employed

by the Ohio State Highway Patrol, and who was stipulated to as an expert by

defense counsel. Ms. McAnulty testified that testing of Appellant’s urine
Athens App. No. 16CA3 13

revealed the presence of marijuana metabolites and cocaine metabolites.

She confirmed on cross examination that Appellant’s urine was not tested

for the presence of opiates. Appellant did not object to McAnulty’s

testimony, but did object to the admission of the urinalysis report.

{¶18} With respect to Appellant’s argument that the trial court erred

in allowing the jury to consider urinalysis results showing that he had

ingested illicit drugs, we note that we do not actually review the trial court’s

ruling on the motion on the limine, but rather we review the trial court’s

ultimate ruling based upon a later objection to the admission of the evidence.

Based upon the foregoing, it is clear that Appellant, despite filing a motion

in limine seeking the exclusion of testimony by McAnulty and the urinalysis

report itself, did not object to McAnulty’s testimony. As such, we agree

with the State’s argument that this issue was not properly preserved for

review. Despite the fact that Appellant did object to the later admission of

the actual urinalysis report, McAnulty’s testimony regarding the results of

the urinalysis was already admitted into evidence.

{¶19} Further, assuming arguendo the issue was preserved by the

objection to the admission of the urine test results themselves, we reject

Appellant’s assertion that the urine tests results were not relevant or

admissible in the context of a charge of drug trafficking. The record reveals
Athens App. No. 16CA3 14

that Sergeant Lehman testified that an accused’s drug use is a factor

considered when investigating drug trafficking. Additionally, in State v.

Dixon, 2016-Ohio-1491, 63 N.E.3d 591, ¶ 39 (overruled on other grounds by

State v. Mozingo, 2016-Ohio-8292, 73 N.E.3d 661, Dixon argued that his

trial counsel was ineffective for failing to object to the admission of

testimony pertaining to his prior drug use, including his statement that he

smokes crack. Dixon argued that his statement should have been excluded

under Evid.R. 404(B) as evidence of other crimes, wrongs or acts, which are

not admissible to prove the character of a person or to show action in

conformity therewith. Id. The State argued that the testimony was not

improper character testimony, but instead was admissible as a statement

against interest, and also was evidence of motive, which is admissible under

other acts. Id. This Court ultimately found that Dixon’s statement regarding

his personal drug use “was admissible for purposes of showing knowledge

of the existence of the drugs at issue, as well as motive for his involvement

in the transportation of drugs.” Id. at ¶ 41. Thus, we found Dixon’s personal

drug use to be both relevant and admissible as an exception to Evid.R.

404(B), as it demonstrated Dixon’s motive and knowledge in the context of

drug trafficking. The same reasoning applies to the facts presently before us

and leads us to conclude that the trial court did not err or abuse its discretion
Athens App. No. 16CA3 15

in admitting the testimony of Emily McAnulty as well as the urinalysis

report. As such, we reject this portion of Appellant’s second assignment of

error.

{¶20} Next, with respect to Appellant’s argument that the trial court

erred in allowing evidence of “drug interdiction” factors, we note that

Appellant cites no authority whatsoever in support of his argument. Further,

this Court has been unable to locate any authority which indicates that

testimony regarding “drug interdiction” factors or common indicators of

drug trafficking, constitute impermissible other acts evidence. In fact, courts

in Ohio, including this Court, routinely review and consider testimony

regarding such factors given by law enforcement officers, based upon their

training and experience in drug interdiction. See State v. Dixon, supra, at ¶

18 (significance of admission of drug use better understood when considered

in light of trooper testimony that based on his experience working drug

interdiction, drugs travel south and money travels north); State v. Alexander-

Lindsey, 2016-Ohio-3033, 65 N.E.3d 129, ¶ 26-27 (noting drug interdiction

factors including the fact that the accused was travelling on a major drug

route and noting it has been held that “ ‘[t]he reputation of an area for

criminal activity is an articulable fact upon which a police officer may

legitimately rely * * *.’ ”) (internal citations omitted); State v. Fain, 5th
Athens App. No. 16CA3 16

Dist. Delaware No. 06CAA120094, 2007-Ohio-4854, ¶ 13, 38 (noting that

one common indicator of drug trafficking is the use of multiple cell phones

and that “drug traffickers frequently do not utilize their own vehicles.”).

{¶21} Here, Sergeant Lehman was permitted to define and describe

drug interdiction to educate the jury. He was permitted to testify regarding

common indicators of drug trafficking based upon his training and

experience in drug interdiction. Likewise, Detective Chuck Haegele with

the Athens City Police Department was permitted to testify regarding his

training in drug interdiction and common indicators seen in drug trafficking

cases. Appellant acknowledged in his motion in limine that drug

interdiction factors are admissible to establish the basis for stops and

seizures when evaluating Fourth Amendment issues, noting that the rules of

evidence do not apply at suppression hearings. Thus, Appellant seems to

argue that although such factors are relevant and admissible to justify an

initial stop or search, they are not relevant or admissible in determining guilt

at trial. We disagree.

{¶22} Again, Appellant cites no authority which suggests that these

factors, in a totality of the circumstances analysis, cannot constitute

circumstantial evidence to be considered by a jury in determining guilt. As

such, we find no error or abuse of discretion in the trial court’s allowance of
Athens App. No. 16CA3 17

this testimony herein. Accordingly, having found no merit in either of the

arguments raised under this assignment of error, Appellant’s second

assignment of error is overruled.

ASSIGNMENT OF ERROR IV

{¶23} In his fourth assignment of error, Appellant contends that the

trial court abused its discretion when it admitted labels affixed to

prescription bottles, arguing the labels were both hearsay and not

authenticated. Appellant contends, with respect to his authenticity

argument, that the authentication requirement demands that there be

“evidence sufficient to support a finding that the matter in question is what

its proponent claims[,]" citing Evid.R. 901(A) in support. Appellant argues

this requirement could not be satisfied because the State could not decide

throughout trial whether the prescription labels were authentic or not,

offering some witnesses who opined the prescriptions were filled at a

pharmacy, but then arguing during closing arguments that the labels may

have been printed by Appellant himself. Appellant further argues that the

labels constituted hearsay, were offered for the truth of the matter asserted

(the number of pills in each bottle), and not subject to a hearsay exception.

Based upon the following, we reject Appellant’s arguments.
Athens App. No. 16CA3 18

{¶24} “ ‘The admission or exclusion of relevant evidence rests within

the sound discretion of the trial court.’ ” State v. Jones, 135 Ohio St.3d 10,

2012-Ohio-5677, 984 N.E.2d 948, ¶ 185; quoting State v. Sage, 31 Ohio

St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. We will

not reverse the trial court's decision absent an abuse of discretion, which

implies an unreasonable, unconscionable, or arbitrary attitude. State v.

Inman, 4th Dist. Ross No. 13CA3374, 2014-Ohio-786, ¶ 20. Hearsay is

defined as, “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Evid.R. 801(C). “To constitute hearsay, two elements are

needed. First, there must be an out-of-court statement. Second, the

statement must be offered to prove the truth of the matter asserted. If either

element is not present, the statement is not ‘hearsay.’ ” State v. Maurer, 15

Ohio St.3d 239, 262, 473 N.E.2d 768 (1984). Further, "[h]earsay is

generally not admissible unless it falls within one of the recognized

exceptions." State v. Agosta, 5th Dist. Fairfield No. 11-CA-53, 2012-Ohio-

3225, ¶ 33; citing Evid.R. 802; State v. Steffen, 31 Ohio St.3d 111, 119, 509

N.E.2d 383 (1987).

{¶25} In State v. Agosta, the court was confronted with an argument

the trial court erred in admitting hearsay statements, which consisted of
Athens App. No. 16CA3 19

testimony by an officer as to the written warnings on canisters found in a the

defendant's vehicle. Id. at ¶ 31. In analyzing the question before it, the

Agosta court looked to its previous decision in State v. Taylor, 5th Dist.

Ashland No. 05COA062, 05COA063, 2006-Ohio-6559, in which the

appellant therein argued that the warning label on a prescription bottle

constituted inadmissible hearsay that should not have been admitted as

evidence. The Agosta court noted that in Taylor, it had previously stated as

follows in holding that the references to the warning label did not constitute

hearsay:

" 'The prescription bottle was marked as evidence and received
as Exhibit 8. T. at 191. During oral argument, appellant's
counsel attempted to move for an App.R. 9(E) correction of the
record. Counsel argued an objection was made to the
prescription bottle's admission, but it was omitted from the
record. Although defense counsel objected at each mention of
the warning label, there is no specific assignment of error on the
prescription bottle's admission into evidence; therefore, we find
the App.R. 9(E) request to be irrelevant.' " Agosta at ¶36;
quoting Taylor at ¶ 12.

Agosta further noted the following reasoning in Taylor:

" 'The prescription bottle was seized during appellant's arrest
and qualified as relevant and admissible evidence under Evid.R.
401. Appellant admitted to taking Vicodin and it was in his
possession during his arrest. T. at 76. We therefore conclude
the references to the warning label did not constitute hearsay
and were relevant.' " Agosta at ¶ 37; quoting Taylor at ¶ 13.
Athens App. No. 16CA3 20

Much as in Taylor, Agosta had not assigned as error the admission of the

actual canisters. As such, and based upon the reasoning of Taylor, the court

held the canisters that were seized during the arrest were admissible

evidence under Evid.R. 401 and that testimony referencing the warning label

on the canister did not constitute hearsay. The same reasoning applies here

as Appellant has only assigned error related to the labels, and not admission

of the prescription bottles themselves, which were found in the vehicle being

driven by Appellant on the night of his arrest. Thus, we conclude that the

prescription bottles and affixed labels are relevant, admissible and, we

believe, also authenticated, by the fact they were found in Appellant's

possession when he was arrested.

{¶26} We further conclude that assuming arguendo the labels

constitute hearsay, they are admissible under the business records exception

to the hearsay rule. See State v. Mitchell, 18 Ohio App.2d 1, 9, 246 N.E.2d

586 (10th Dist.1969) (holding that "[t]he labels in question are not hearsay,

but if they are so regarded, they are an exception to the hearsay rule, as

provided by the uniform-business-records statute, but, still further, they are

real evidence, which could well have been used as an exhibit, and admitted

as evidence, supported by circumstantial probability of trustworthiness.")
Athens App. No. 16CA3 21

{¶27} Based upon the foregoing case law and reasoning, we conclude

that the prescription labels at issue did not constitute hearsay, but instead

were real evidence seized during Appellant's arrest that were properly

admitted as exhibits during trial. We further note that much like Agosta and

Taylor, Appellant's arguments involve the admission of the labels, not the

bottles themselves, which were properly admitted as exhibits. Further, even

if the labels could be considered hearsay, we conclude they fall under the

business records exception to the hearsay rule. See State v. Mitchell, supra.

Accordingly, Appellant's fourth assignment of error is overruled.

ASSIGNMENT OF ERROR I

{¶28} In his first assignment of error, Appellant contends his rights to

due process and a fair trial were violated when, in the absence of sufficient

evidence, the trial court entered a judgment of conviction for aggravated

trafficking of drugs. The State contends Appellant's conviction is supported

by sufficient evidence. We begin by considering the appropriate standard of

review when confronted with a sufficiency of the evidence argument.

{¶29} A claim of insufficient evidence invokes a due process concern

and raises the question whether the evidence is legally sufficient to support

the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386,

678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence, an
Athens App. No. 16CA3 22

appellate court's inquiry focuses primarily upon the adequacy of the

evidence; that is, whether the evidence, if believed, reasonably could support

a finding of guilt beyond a reasonable doubt. Thompkins, syllabus. The

standard of review is whether, after viewing the probative evidence and

inferences reasonably drawn therefrom in the light most favorable to the

prosecution, any rational trier of fact could have found all the essential

elements of the offense beyond a reasonable doubt. E.g., Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781 (1979); State v. Jenks, 61 Ohio St.3d 259,

273, 574 N.E.2d 492 (1991). Furthermore, a reviewing court is not to assess

“whether the state's evidence is to be believed, but whether, if believed, the

evidence against a defendant would support a conviction.” Thompkins at

390.

{¶30} Thus, when reviewing a sufficiency-of-the-evidence claim, an

appellate court must construe the evidence in a light most favorable to the

prosecution. E.g., State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068

(1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A

reviewing court will not overturn a conviction on a sufficiency-of-the-

evidence claim unless reasonable minds could not reach the conclusion that

the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d

226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).
Athens App. No. 16CA3 23

Here, after our review of the record we believe that the State presented

sufficient evidence to support Appellant's drug trafficking conviction.

{¶31} R.C. 2925.03(A)(2) sets forth the offense of drug trafficking as

charged in the indictment and states: “No person shall knowingly do any of

the following: * * * [p]repare for shipment, ship, transport, deliver, prepare

for distribution, or distribute a controlled substance or a controlled substance

analog, when the offender knows or has reasonable cause to believe that the

controlled substance or a controlled substance analog is intended for sale or

resale by the offender or another person.” Drug trafficking offenses involve

an element of knowledge. “A person acts knowingly, regardless of his

purpose, when he is aware that his conduct will probably cause a certain

result or will probably be of a certain nature. A person has knowledge of

circumstances when he is aware that such circumstances probably exist.”

R.C. 2901.22(B).

{¶32} “ ‘[D]irect evidence of a fact is not required. Circumstantial

evidence * * * may also be more certain, satisfying, and persuasive than

direct evidence.’ ” State v. Grube, 987 N.E.2d 287, 2013–Ohio–692, ¶ 30;

quoting State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990); citing

Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6 (1960);

citing Rogers v. Missouri Pacific RR Co, 352 U.S. 500, 508, 77 S.Ct. 443,
Athens App. No. 16CA3 24

fn.17 (1957). “ ‘Even murder convictions and death sentences can rest

solely on circumstantial evidence.’ ” Grube, supra; citing State v.

Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394 (1987); State v. Nicely, 39

Ohio St.3d 147, 151, 529 N.E.2d 1236, 1239 (1988); State v. Adkins, 4th

Dist. Scioto No. 14CA3674, 2016–Ohio–7250, ¶ 15. Further, as we

reasoned in State v. Woodruff, 4th Dist. Ross No. 07CA2972, 2008–Ohio–

967, ¶ 9, “[a]bsent an admission by a defendant, the state must rely on

circumstantial evidence to satisfy the reasonable cause to believe element.”

{¶33} Here, Appellant's argument that the State failed to prove

beyond a reasonable doubt that he knew or had reasonable cause to believe

that the oxycodone in his possession was intended for sale or resale fails due

to the circumstantial evidence presented by the State at trial. Specifically,

based upon the record before us, we believe it was reasonable for the jury to

conclude, based upon the reasonable inferences it was permitted to make,

that Appellant was trafficking in oxycodone. For instance, the jury was

presented with evidence that Appellant was driving a rented car that was not

rented in his name, and which had an estimated return date of more than two

weeks prior. The jury was also presented with evidence that in the thirty

days the car had been rented, it had been driven nearly 10,000 miles. The
Athens App. No. 16CA3 25

jury was informed that Appellant did not have a valid driver's license, but

that he produced an identification card from the State of Florida.

{¶34} Further, evidence was also presented to the jury indicating three

prescription pill bottles were found in the vehicle Appellant was driving, all

in Appellant's name and filled just two days prior from a pharmacy in

Florida. The jury heard testimony from Sergeant Lehman that of 320

oxycodone pills collectively prescribed to Appellant according to the

prescription labels, only 81 pills remained after just being filled just two

days prior. Thus, 239 oxycodone pills were missing. Additionally, with

regard to the third prescription, which was for Alprazolam, the jury heard

testimony that of the 84 pills prescribed just two days prior, only 37 whole

pills and 14 broken pills remained. The jury was presented with evidence

that in addition to the number of pills missing from the prescription bottles

found, law enforcement also found two cells phones in the vehicle and a

large sum of cash on Appellant's person.

{¶35} Moreover, the jury listened to testimony by Sergeant Lehman

that in his experience as a law enforcement officer and his work involving

drug interdiction, it is common to see drugs coming into the State of Ohio

from Florida, especially in vehicles rented in another person's name.

Sergeant Lehman also testified regarding certain other drug interdiction
Athens App. No. 16CA3 26

factors that indicate drug trafficking, including having multiple cell phones

and carrying large quantities of cash. He also testified that having broken

pills is a drug interdiction factor indicative of drug trafficking.

{¶36} We find, based on the evidence it had before it, that the jury

could have reasonably inferred that Appellant was engaging in drug

trafficking. Based upon the above evidence, the jury could reasonably infer

that the reason Appellant only had 81 oxycodone pills remaining from a total

of 320 prescribed just two days prior, was because he was trafficking in

drugs. See Westlake v. Wilson, 8th Dist. Cuyahoga No. 96948, 2012-Ohio-

2192, ¶ 38; citing State v. Byers, 8th Dist. Cuyahoga No. 94922, 2011-Ohio-

342, ¶ 9 ("Although this court has recognized that having a cell phone is

ubiquitous and therefore possession of one cell phone is not ipso facto proof

that it was used in drug trafficking, the same cannot be said about having

two cell phones."); State v. Young, 8th Dist. Cuyahoga No. 92744, 2010-

Ohio-3402, ¶ 19 ("We have held in several cases that police officers may

testify to the nature and amount of drugs and its significance in drug

trafficking."); State v. Nelson, 8th Dist. Cuyahoga No. 100439, 2014-Ohio-

2189, ¶ 20 (using a rental car is significant indicia of drug trafficking

because traffickers know that their own personal vehicles will be seized and

the rental cars are more difficult to identify during police surveillance); State
Athens App. No. 16CA3 27

v. Young, 8th Dist. Cuyahoga No. 92744, 2010-Ohio-3402, ¶¶ 15-19 (the

fact that no drug paraphernalia was found on appellant as well as the

quantity of crack recovered undercut argument the drugs were for personal

use).

{¶37} Here, evidence before the jury consisted of a finding of a large

quantity of missing drugs, multiple cell phones, a large quantity of cash, and

a rental car not in the driver's name that was overdue for return with a very

large number of miles on it, being driven from Florida to Ohio. Although

the amount of drugs recovered are not necessarily indicative of drug

trafficking, it is the amount of drugs missing from the prescription bottles

which gives rise to a reasonable inference that the drugs were being

trafficked, especially in light of the fact that the labels indicate the

prescriptions were filled just two days prior. Common sense dictates that

even if Appellant was using the drugs, he could not have possibly used the

number of pills that were unaccounted for in a two day time span and still be

living. Further, even though no charges were made with respect to the

prescription for Alprazolam, the fact that several of those pills were also

missing, along with the presence of several broken pills, is pertinent to a

totality of the circumstances analysis. We conclude, based upon the
Athens App. No. 16CA3 28

evidence before it and the totality of the circumstances, the inferences made

and conclusions reached by the jury are supported by the record.

{¶38} Consequently, we find that the State presented sufficient

evidence that, if believed, established that Appellant trafficked in oxycodone

by transporting a controlled substance when he knew or had reasonable

cause to believe that the controlled substance was intended for sale or resale

by the offender or another person. Accordingly, Appellant’s first

assignment of error is overruled.

ASSIGNMENT OF ERROR III

{¶39} In his third assignment of error, Appellant contends that he

received ineffective assistance of counsel because his attorney failed to

object to prosecutorial misconduct in closing argument, thus denying him his

constitutional rights under the Fifth, Sixth and Fourteenth Amendments. We

initially note that failure to object to an alleged error waives all but plain

error. State v. Keeley, 4th Dist. Washington No. 11CA5, 2012–Ohio–3564,

¶ 28. Notice of Crim.R. 52(B) plain error must be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice. State v. Rohrbaugh, 126 Ohio St.3d 421, 2010–Ohio–

3286, 934 N.E.2d 920, ¶ 6; State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph three of the syllabus. To find plain error, the outcome of
Athens App. No. 16CA3 29

trial must clearly have been otherwise. State v. McCausland, 124 Ohio St.3d

8, 2009–Ohio–5933, 918 N.E.2d 507, ¶ 15; State v. Braden, 98 Ohio St.3d

354, 2003–Ohio–1325, 785 N.E.2d 439, ¶ 50.

{¶40} “The test for prosecutorial misconduct is whether the conduct

was improper and, if so, whether the rights of the accused were materially

prejudiced.” State v. Purdin, 4th Dist. Adams No. 12CA944, 2013–Ohio–22,

¶ 31; quoting State v. Leonard, 4th Dist. Athens No. 08CA24, 2009–Ohio–

6191, ¶ 36; citing State v. Smith, 97 Ohio St.3d 367, 2002–Ohio–6659, 780

N.E.2d 221, ¶ 45, in turn citing State v. Smith, 14 Ohio St.3d 13, 14, 470

N.E.2d 883 (1984). “The ‘conduct of a prosecuting attorney during trial

cannot be grounds for error unless the conduct deprives the defendant of a

fair trial.’ ” Purdin at ¶ 31; quoting State v. Givens, 4th Dist. Washington

No. 07CA19, 2008–Ohio–1202, ¶ 28; quoting State v. Gest, 108 Ohio

App.3d 248, 257, 670 N.E.2d 536 (8th Dist.1995). Accord State v.

Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). “Prosecutorial

misconduct constitutes reversible error only in rare instances.” Purdin,

supra; quoting State v. Edgington, 4th Dist. Ross No. 05CA2866, 2006–

Ohio–3712, ¶ 18; citing State v. Keenan, 66 Ohio St.3d 402, 406, 613

N.E.2d 203 (1993). The “touchstone analysis * * * is the fairness of the

trial, not the culpability of the prosecutor. * * * The Constitution does not
Athens App. No. 16CA3 30

guarantee an ‘error free, perfect trial.’ ” Purdin at ¶ 31; quoting Leonard at ¶

36; quoting Gest at 257.

{¶41} Criminal defendants have a right to counsel, including a right to

the effective assistance from counsel. McMann v. Richardson, 397 U.S. 759,

770, 90 S.Ct. 1441 (1970); State v. Stout, 4th Dist. Gallia No. 07CA5, 2008–

Ohio–1366, ¶ 21. To establish constitutionally ineffective assistance of

counsel, a defendant must show (1) that his counsel's performance was

deficient and (2) that the deficient performance prejudiced the defense and

deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904

(2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In

order to show deficient performance, the defendant must prove that counsel's

performance fell below an objective level of reasonable representation. To

show prejudice, the defendant must show a reasonable probability that, but

for counsel's error, the result of the proceeding would have been different.”

State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, 848 N.E.2d 810, ¶

95 (citations omitted). “Failure to establish either element is fatal to the

claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008–Ohio–968, ¶

14. Therefore, if one element is dispositive, a court need not analyze both.

State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–Ohio–448, 721 N.E.2d 52,
Athens App. No. 16CA3 31

(stating that a defendant's failure to satisfy one of the elements “negates a

court's need to consider the other”).

{¶42} When considering whether trial counsel's representation

amounts to deficient performance, “a court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance.” Strickland at 689. Thus, “the defendant must

overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id. “A properly licensed

attorney is presumed to execute his duties in an ethical and competent

manner.” State v. Taylor, 4th Dist. Washington No. 07CA11, 2008–Ohio–

482, ¶ 10; citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128

(1985). Therefore, a defendant bears the burden to show ineffectiveness by

demonstrating that counsel's errors were so serious that he or she failed to

function as the counsel guaranteed by the Sixth Amendment. State v.

Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 62; State

v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988).

{¶43} To establish prejudice, a defendant must demonstrate that a

reasonable probability exists that but for counsel's errors, the result of the

trial would have been different. State v. White, 82 Ohio St.3d 16, 23, 693

N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
Athens App. No. 16CA3 32

(1989), paragraph three of the syllabus. Furthermore, courts may not simply

assume the existence of prejudice, but must require that prejudice be

affirmatively demonstrated. See State v. Clark, 4th Dist. Pike No. 02CA684,

2003–Ohio–1707, ¶ 22; State v. Tucker, 4th Dist. Ross No. 01CA2592,

2002–Ohio–1597; State v. Kuntz, 4th Dist. Ross No. 1691, 1992 WL 42774.

{¶44} Here, Appellant claims that although trial counsel consistently

objected throughout the trial when the State tried to offer evidence of

Appellant’s possible driving while using illicit drugs, trial counsel did not

object when the State was arguing other acts as substantive evidence of guilt

in closing argument. Trial counsel's failure to object to alleged instances of

prosecutorial misconduct “does not necessarily constitute ineffective

assistance” of counsel. State v. Topping, 4th Dist. Lawrence No. 11CA6,

2012-Ohio-5617, ¶ 80; citing State v. Perez, 124 Ohio St.3d 122, 2009–

Ohio–6179, 920 N.E.2d 104, ¶ 230; State v. Tenace, 109 Ohio St.3d 255,

2006–Ohio–2417, 847 N.E.2d 386, ¶ 62. That is, a failure to object does not

necessarily fall below an objective standard of reasonableness. Topping,

supra. Instead, a failure to object to alleged instances of prosecutorial

misconduct may be considered sound trial strategy. Id; State v. Brown, 5th

Dist. Stark No. 2007CA15, 2008–Ohio–3118, ¶ 58 (stating that failure to
Athens App. No. 16CA3 33

object to prosecutor's statements during closing arguments may have been

trial strategy and thus did not constitute deficient performance).

{¶45} “ ‘A competent trial attorney might well eschew objecting * * *

in order to minimize jury attention to the damaging material.’ ” Topping,

supra; quoting State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873

N.E.2d 828, ¶ 90; quoting United States v. Payne, 741 F.2d 887, 891 (C.A.7

1984). Accord State v. Franklin, 97 Ohio St.3d 1, 2002–Ohio–5304, 776

N.E.2d 26, ¶ 42 (stating that “[a] reasonable attorney may decide not to

interrupt his adversary's argument as a matter of strategy”); State v. Clay, 7th

Dist. Mahoning No. 08MA2, 2009–Ohio–1204, ¶ 141 (stating that

“[l]imiting objection during closing is a trial tactic to avoid trying to draw

attention to the statements.”). Thus, in order to establish that trial counsel

performed deficiently by failing to object to error at trial, the defendant

ordinarily must demonstrate that the error “is so compelling that competent

counsel would have been obligated to object to [it] at trial.” Topping, supra;

quoting State v. Hale, 119 Ohio St.3d 118, 2008–Ohio–3426, 892 N.E.2d

864, ¶ 233.

{¶46} The Supreme Court of Ohio has recognized that if counsel

decides, for strategic reasons, not to pursue every possible trial strategy, the

defendant is not denied effective assistance of counsel. State v. Black, 4th
Athens App. No. 16CA3 34

Dist. Ross No. 12CA3327, 2013–Ohio–2105, ¶ 40; State v. Brown, 38 Ohio

St.3d 305, 319, 528 N.E.2d 523 (1988). “Speculation regarding the

prejudicial effects of counsel's performance will not establish ineffective

assistance of counsel.” Leonard, supra, at ¶ 68; quoting State v. Cromartie,

9th Dist. Medina No. 06CA0107–M, 2008–Ohio–273, ¶ 25. An appellate

court reviewing an ineffective assistance of counsel claim “must refrain

from second-guessing the strategic decisions of trial counsel.” Black, supra;

quoting State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).

{¶47} In this case, we have already determined that the trial court did

not err or abuse its discretion in admitting testimony and evidence indicating

Appellant's urine tests results revealed he had taken illicit drugs on the night

of his traffic stop and arrest. Thus, it cannot be said that the prosecutor's

statements were improper or constituted prosecutorial misconduct in light of

this ruling. Nor can it be argued defense counsel was ineffective for failing

to object in light of the trial court's prior ruling. In light of the prior ruling,

defense counsel could have reasonably determined it was a better strategy

not to continue to draw attention to the evidence by continuing to lodge

objections. Further, we are mindful that both the prosecution and the

defense have wide latitude during opening and closing arguments. State v.

Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109, ¶ 33; citing
Athens App. No. 16CA3 35

Sunbury v. Sullivan, 5th Dist. Delaware No. 11CACO30025, 2012-Ohio-

3699, ¶ 30. Even if it was not sound strategy for defense counsel not to

object to the complained of statement, we rely on the instructions given to

the jury, which inform the jury that statements of counsel are not to be

considered as evidence. For instance, the jury was instructed that “[t]he

evidence does not include * * * the opening or closing arguments of

counsel.” Further, the jury was instructed that “[t]he evidence does not

include the indictment or the opening statements or closing arguments of

counsel. The opening statements and closing arguments of counsel are

designed to assist you. They are not evidence.” “ ‘A presumption always

exists that the jury has followed the instructions given to it by the trial

court.’ ” State v. Murphy, 4th Dist. Scioto No. 09CA3311, 2010–Ohio–5031,

¶ 81; quoting Pang v. Minch, 53 Ohio St.3d 186, 559 N.E.2d 1313 (1990),

paragraph four of the syllabus.

{¶48} As such, based upon a review of the record and considering the

complained of statements within the context of the entire trial, we cannot say

the Appellant would not have been convicted in the absence of the

statements. Further, we have already noted that Appellant's conviction was

based upon sufficient evidence. Based on the trial court's instructions, as

well as the other evidence in the record which sufficiently supports
Athens App. No. 16CA3 36

Appellant's conviction, we cannot say that the prosecutors' statements made

during closing argument, which were not objected to by defense counsel,

changed the outcome of the trial. Nor can we conclude that but for counsel's

errors, the result of the trial would have been different. Accordingly, we

cannot conclude Appellant's trial counsel was ineffective. Thus, we find no

merit to Appellant's third assignment of error and affirm the judgment of the

trial court.

JUDGMENT AFFIRMED.
Athens App. No. 16CA3 37

Hoover, J., dissenting:

{¶ 49} I respectfully dissent from the majority opinion because I

believe that Appellant’s conviction is supported by insufficient evidence.

{¶ 50} Appellant was charged with drug trafficking under R.C.

2925.03(A)(2). This section of the drug trafficking statute requires some

evidence that the offender actually prepares a drug for shipment, or ships

a drug, or transports a drug, or delivers a drug, or prepares for distribution

a drug, or actually distributes a controlled substance, when the offender

knows or has reasonable cause to believe that the controlled substance is

intended for sale or resale by the offender or another person. (Emphasis

added.) Compare R.C. 2925.03(A)(2) with 2925.03(A)(1) (“No person shall

knowingly * * *[s]ell or offer to sell a controlled substance or a controlled

substance analog.”).

{¶ 51} “An element of an offense may be established by either

circumstantial or direct evidence or both.” State v. Lowe, 86 Ohio App.3d

749, 753, 621 N.E.2d 1244 (4th Dist.1993). “In general, circumstantial

evidence and direct evidence possess the same probative value.” State v.

Husted, 4th Dist. Ross No. 14CA3447, 2014-Ohio-4978, ¶ 15, citing State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the

syllabus.
Athens App. No. 16CA3 38

{¶ 52} “Circumstantial evidence has been defined as testimony not

grounded on actual personal knowledge or observation of the facts in

controversy, but of other facts from which inferences are drawn, showing

indirectly the facts sought to be established.” State v. Payne, 11th Dist.

Ashtabula No. 2014–A–0001, 2014–Ohio–4304, ¶ 22, citing State v.

Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988). “ ‘An ‘inference’

is a conclusion which, by means of data founded upon common experience,

natural reason draws from facts which are proven.’ ” State v. Nevius, 147

Ohio St. 263, 274, 71 N.E.2d 258 (1947), quoting Ensel v. Lumber Ins. Co.

of New York, 88 Ohio St. 269, 102 N.E. 955 (1913), paragraph thirteen of

the syllabus.

{¶ 53} “A trier of fact may not draw ‘[a]n inference based * * *

entirely upon another inference, unsupported by any additional fact or

another inference from other facts[.]’ ” State v. Cowans, 87 Ohio St.3d 68,

78, 717 N.E.2d 298 (1999), quoting Hurt v. Charles J. Rogers Transp. Co.,

164 Ohio St. 329, 130 N.E.2d 820 (1955), paragraph one of the syllabus.

“When an inference, which forms the basis of a conviction, is drawn solely

from another inference and that inference is not supported by any additional

facts or inferences drawn from other established facts, the conviction is

improper.” Armstrong, 2014-Ohio-4304, at ¶ 23, citing State v.
Athens App. No. 16CA3 39

Maynard, 10th Dist. Franklin No. 11AP–697, 2012–Ohio–2946, ¶ 27. “The

rule against inference-stacking essentially forbids the drawing of

an inference from evidence, which is too uncertain or speculative or which

raises merely a possibility or conjecture. While reasonable inferences may

be drawn from the facts and conditions established, they cannot

be drawn from facts or conditions merely assumed.” Armstrong at ¶ 23. See

generally Ray v. Wal-Mart Stores, Inc., 4th Dist. Washington No. 12CA21,

2013-Ohio-2684, ¶ 35 (discussing improper inference stacking).

{¶ 54} The evidence presented at trial was that Appellant possessed

three, prescription-pill bottles containing significantly fewer pills than the

labels suggested they should. All three labels stated that the prescriptions

had been filled for Appellant at pharmacies in Florida roughly 48 hours

before the traffic stop. The first bottle contained only 70 of 180 oxycodone

pills; the second bottle contained only about 37 of 84 alprazolam pills; and

the third bottle contained only 11 of 140 oxycodone pills. Appellant also had

more than one cell phone and nearly two thousand dollars in cash in his

pocket.

{¶ 55} There were also several things about Appellant’s situation that

were consistent with someone trafficking in drugs. For example, Florida is a

known source of oxycodone; and traffickers often transport drugs in rental
Athens App. No. 16CA3 40

cars. Records also confirmed that the car Appellant was driving had been

driven nearly ten thousand miles since being rented on August 1, 2011.

{¶ 56} However, the State presented no evidence at trial from which a

jury could find beyond a reasonable doubt that Appellant transported his

remaining oxycodone pills when he knew or had reasonable cause to believe

that the drug was intended for sale or resale. For example, the State

presented no evidence that the remaining pills were cut for sale, that

Appellant possessed items to package the pills for sale (e.g., plastic baggies)

or that Appellant’s phones contained text messages about future sales.

{¶ 57} Furthermore, the State did not present any evidence at trial that

Appellant sold his missing oxycodone pills. For example, no testimony is in

the record that officers made a controlled buy from Appellant or that

Appellant’s cell phones contained text messages about past sales.

{¶ 58} The jury necessarily must have based an inference upon

another inferential assumption in order to find beyond a reasonable doubt

that Hill knew the oxycodone was intended for sale or resale. Specifically,

the jury had to have inferred that Hill had been selling oxycodone based on

the number of missing pills in the bottles and then inferred that he intended

to sell his remaining oxycodone pills. Because no evidence exists in the

record from which a jury could infer that Appellant sold his missing pills,
Athens App. No. 16CA3 41

this inference “was dependent not upon an established fact, but upon another

inferential assumption” and is therefore improper. (Emphasis sic.)

Armstrong, 2016-Ohio 7841, at ¶ 28.

{¶ 59} “Normally, convictions are based on specific facts that support

or establish the elements of a crime charged. While it is certainly acceptable

to infer certain facts or circumstances from the evidence at hand, inferences

that establish criminal elements based on other inferences not established in

fact thwart how criminal liability should be established in our system of

justice.” State v. Collins, 8th Dist. Cuyahoga No. 95422, 2011-Ohio-4808, ¶

25.

{¶ 60} Accordingly, I would sustain Appellant’s first assignment of

error and reverse the judgment of the trial court.
Athens App. No. 16CA3 42

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court to carry this judgment into
execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Dissents with Dissenting Opinion.

For the Court,

BY: ______________________________
Matthew W. McFarland, Judge

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.