State v. Hashi

[Cite as State v. Hashi, 2020-Ohio-177.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 18 CAA 12 0097
ABDI HASHI

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 18 CRI 040196

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 22, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL APRIL F. CAMPBELL
PROSECUTING ATTORNEY CAMPBELL LAW, LLC
DOUGLAS DUMOLT 545 Metro Place South
ASSISTANT PROSECUTOR Suite 100
35 North Sandusky Street Dublin, Ohio 43017
Delaware, Ohio 43015
Delaware County, Case No. 18 CAA 12 0097 2

Wise, J.

{¶1} Defendant-Appellant Abdi Hashi appeals his conviction and sentence

entered in the Delaware County Common Pleas Court following a jury trial.

{¶2} Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE CASE

{¶3} On April13, 2018, the Delaware County Grand Jury indicted Appellant Abdi

Hashi on one count of aggravated trafficking in drugs and one count of possession of

drugs. Both counts were felonies of the first degree and contained specifications that

Appellant was a major drug offender.

{¶4} On July 13, 2018, Appellant filed a motion to suppress.

{¶5} On July 27, 2018, the State filed a response to Appellant's motion to

suppress.

{¶6} On October 17, 2018, a hearing was held on Appellant's motion to suppress.

{¶7} On October 22, 2018, the trial court denied Appellant's motion to suppress.

{¶8} After several requests for continuances, the matter was set for trial on

November 13, 2018.

{¶9} On the morning of trial, Appellant filed a motion to continue. The trial court

denied said motion, and the case proceeded to trial.

{¶10} At the trial in this matter, the jury heard the following testimony:

{¶11} Amanda Carson testified that she is a manager at a UPS Store in Delaware

County, and that on August 17, 2017, a package arrived unexpectedly and without a

recipient mailbox. T. at 217. The label indicated it was coming from Germany, and no one

had called ahead to let her know to receive a delivery. T. at 216- 218. She didn't know
Delaware County, Case No. 18 CAA 12 0097 3

the business name and did not have it listed as a package on the list of packages

scheduled to be delivered to the store. T. at 216. She explained that it was unusual to

receive a package for someone who did not have a mailbox at the store. Upon receipt,

Carson noticed damage to the package; the cardboard box was wet, and it was starting

to break and open up. T. at 226. As she began to tape the package, she saw a leafy

asparagus-like substance inside the box. It was green, wet, and musty. T. at 225-226.

She did not open the box further at that time. However, she noted the smell of the box

was similar to one she received in 2009. T. at 226.

{¶12} Carson explained that back in 2009, she became familiar with a plant called

khat when she as working at a different UPS store. T. at 221. At that time, khat had been

shipped to her store, and she had the opportunity to observe it. She recalled it was a

green, leafy, asparagus like plant with a musty damp smell to it. T. at 223. When she

looked online, back in 2009, the pictures of khat she observed matched what she

observed was delivered to her store at that time. T. at 225. The smell of the package in

this case, as well as the plant material inside, was similar to what she previously observed

in 2009. T. at 226. Based upon her prior experience, she became suspicious of the

package and contacted the Delaware County Sherriff. T. at 229.

{¶13} Deputy Gibson arrived approximately two hours and forty-five minutes after

the package arrived at the UPS store. T. at 229. While he was there and Carson was

filling out a statement, Appellant arrived to retrieve the package. T. at 230. Deputy Gibson

advised Carson to give Appellant the package. Another employee checked Appellant's

identification and had Appellant pay the Five Dollars ($5.00) to receive the package,
Delaware County, Case No. 18 CAA 12 0097 4

which is the standard fee for individuals who do not have a box at the store. T. at 232.

Shortly thereafter, Deputy Gibson made contact with Appellant. Id.

{¶14} Deputy Gibson testified regarding his extensive law enforcement training

and experience; this experience included advanced drug detection and identification. T.

at 419-424. He explained that on August 17, 2017, he was on duty and received a call

from Amanda Carson about a suspicion package that had been delivered to her UPS

store on Polaris Parkway in Delaware County. T. at 423-424. Deputy Gibson then

travelled to the UPS store and parked his marked cruiser behind the building. T. at 426.

After talking with Carson, he examined the suspicious package. It was addressed to

"Bronson Auto Tuning," a business he determined to be a fictitious business, with

Appellant's name underneath. T. at 428. When he examined the package on that date,

he could only see "a little" inside the package. However, he noticed a unique odor that

was coming from inside the package that he had never smelled before. T. at 429. This all

occurred in the back of the UPS store. T. at 430.

{¶15} Roughly twenty minutes after Deputy Gibson arrived at the UPS store,

Appellant arrived to pick up his package. T. at 430. After he saw Appellant enter the store,

Deputy Gibson waited out of view until he was informed Appellant had paid for the

package. At that point, he made himself known to Appellant. T. at 431. Appellant was

holding the suspicious package when Deputy Gibson first made contact with him. T. at

453. Deputy Gibson then had a conversation with Appellant that was recorded. T. at 433.

The recording of the encounter, which lasted roughly ten minutes, was played for the jury.

T. at 433.
Delaware County, Case No. 18 CAA 12 0097 5

{¶16} Appellant said he was at the UPS store to pick up the package. T. at 436:1.

He claimed that Ali, a friend of his, sent him there to pick up the package. T. at 436; 439.

Deputy Gibson told Appellant that he knew what was in the package and asked Appellant

if it was khat. T. at 437. When asked about the weight of the package, Appellant explained

that it was not just for him, but was for the community. T. at 440. Appellant informed

Deputy Gibson that they chew khat. T. at 438. Deputy Gibson described Appellant as

acting extremely nervous even in response to general questions. T. at 438. Deputy

Gibson also described Appellant as being evasive. T. at 438.

{¶17} Appellant stated he would pay approximately Four Dollars ($4.00) per piece

to get the khat from Germany. T. at 442. Appellant further explained that he chewed no

more than two pieces a day and estimated there were seventy to eighty pieces were

contained in the box. T. at 443. Appellant again explained he was there to pick up the

package for his friend, that they chew the khat together, and that he would receive five

(5) pieces as his share for getting the package. T. at 444. Appellant said there were twenty

(20) or thirty (30) pieces of khat in each bundle in the package. T. at 444.

{¶18} Based upon Appellant's estimated value, the 99 bundles of Khat would be

valued at approximately $8,000 dollars. T. at 448. Deputy Gibson stated that it was his

opinion the khat was not solely for personal use as there were approximately 2000 stalks

in the package. Chewing only two pieces a day, as Appellant claims he did, would take a

very long time to use the quantity he received in this case. He explained this belief was

consistent with Appellant's statement that the khat was for the community. T. at 448.

{¶19} Matthew Congleton testified in this case regarding the testing and analysis

of the khat in this case. T. at 245-418. Congleton is a forensic scientist employed by BCI
Delaware County, Case No. 18 CAA 12 0097 6

since 1998 trained to perform laboratory testing on suspected controlled substances. T.

at 246-255. He testified the suspected khat in this case was received by BCI in September

of 2017 and frozen until he conducted his testing on it in October of 2017. T. at 261. The

khat was packaged as 20 individually wrapped bundles of plant material. T. at 264. The

weight of the plant material itself, without any packaging, was 3,913.7 grams. T. at 281.

Based upon his training and experience, Congleton suspected the plant material might

be khat and contain the controlled substance "cathinone." T. at 268, 351. He explained

that cathinone differed from another controlled substance, cathine, in that cathinone is a

Schedule I substance and cathine is a Schedule IV substance. T. at 270. In this case,

pursuant to BCI's testing policy, Congleton only looked for the presence of cathinone in

his testing. T. at 271. He further testified the bulk amount of cathinone is 30 grams, and

the weight of the plant material suspected of containing cathinone was greater than 100

times bulk amount. T. at 282.

{¶20} Testing of the suspected khat in this case occurred using a gas

chromatography-mass spectrometer (GC-MS) test and a gas chromatography-flame

ionization detector (GC-FID) test. T. at 288. When the testing was performed in this case,

Congleton received data unique to cathinone which allowed him to conclude the plant

material contained cathinone. T. at 292-293. He testified that based upon the data he

received from the MC-MS testing, he was 100 percent certain the material he examined

contained cathinone. T. at 294; 348. Congleton testified he visually does a comparison of

the data he received from the computer and compares it directly to the GC-MS graphs.

T. at 313-314. The results of the GC-FID testing also revealed that the material he

examined contained cathinone. T. at 296.
Delaware County, Case No. 18 CAA 12 0097 7

{¶21} On November 15, 2018, the jury found Appellant guilty on both counts with

the additional finding.

{¶22} On November 16, 2018, the trial court sentenced Appellant to the

mandatory minimum prison term of eleven (11) years.

{¶23} Appellant now appeals, assigning the following error for review:

ASSIGNMENTS OF ERROR

{¶24} “I. THE TRIAL COURT'S DECISION TO OVERRULE HASHI'S MOTION

TO SUPPRESS WAS REVERSIBLE ERROR, REQUIRING REVERSAL OF HASHI'S

CONVICTIONS.

A. THE TRIAL COURT ERRED IN FINDING THAT HASHI’S

ENCOUNTER WITH DEPUTY GIBSON WAS CONSENSUAL RATHER

THAN A SEIZURE, WHICH MUST BE SUPPORTED BY A REASONABLE

SUSPICION OF CRIMINAL ACTIVITY.

B. THE DEPUTY DID NOT HAVE THE REQUISITE REASONABLE

ARTICULABLE SUSPICION TO SEIZE HASHI, NOR PROBABLE CAUSE

TO SEIZE THAT PACKAGE. THUS, ALL EVIDENCE THAT FLOWED

FROM THOSE ACTS SHOULD HAVE BEEN SUPPRESSED.

C. THE TRIAL COURT ERRED IN FINDING THAT HASHI GAVE

CONSENT TO OPEN THE UPS PACKAGE WITHOUT A WARRANT,

BECAUSE HASHI ACQUIESCED TO POLICE AUTHORITY, REQUIRING

REVERSAL OF HASHI'S CONVICTIONS.

D. BECAUSE NO PERSON IN HASHI'S POSITION WOULD HAVE

FELT AT LIBERTY TO TERMINATE THE DEPUTY'S INTERVIEW AND
Delaware County, Case No. 18 CAA 12 0097 8

LEAVE WHEN HASHI MADE STATEMENTS TO THE DEPUTY, HIS

STATEMENTS WERE SUBJECT TO SUPPRESSION.

{¶25} “II. HASHI'S MOTION TO CONTINUE HIS TRIAL SHOULD HAVE BEEN

GRANTED, BECAUSE FAILURE TO CONTINUE IT RESULTED IN HASHI'S RIGHT TO

ASSIST IN HIS OWN DEFENSE BEING INFRINGED.

{¶26} “III. BECAUSE HASHI'S INDICTMENT WAS FATALLY DEFECTIVE FOR

FAILING TO ALLEGE AN ESSENTIAL ELEMENT, HASHI'S CONVICTIONS SHOULD

BE REVERSED.

{¶27} “IV. HASHI'S CONFRONTATION RIGHT WAS VIOLATED BY THE TRIAL

COURT'S DECISION TO ALLOW SURROGATE TESTIMONY REGARDING TWO

REVIEWS BY OTHER CHEMISTS OF THE TESTING ANALYST'S WORK.

{¶28} “V. THE STATE PRESENTED INSUFFICIENT EVIDENCE THAT HASHI

POSSESSED OR TRAFFICKED A SCHEDULE I CONTROLLED SUBSTANCE AS A

MATTER OF LAW.

A. THE STATE PRESENTED INSUFFICIENT EVIDENCE AS A

MATTER OF LAW THAT HASHI POSSESSED OR TRAFFICKED A

SCHEDULE I CONTROLLED SUBSTANCE, REQUIRING REVERSAL OF

HIS CONVICTIONS.

B. THE STATE PRESENTED INSUFFICIENT EVIDENCE AS A

MATTER OF LAW THAT HASHI POSSESSED OR TRAFFICKED A

FIRST-DEGREE FELONY LEVEL OF A SCHEDULE I CONTROLLED

SUBSTANCE, REQUIRING REVERSAL OF HIS CONVICTIONS.
Delaware County, Case No. 18 CAA 12 0097 9

C. THE STATE'S EVIDENCE THAT HASHI TRAFFICKED A

SCHEDULE I SUBSTANCE WAS LEGALLY INSUFFICIENT AS A

MATTER OF LAW, REQUIRING REVERSAL.

{¶29} “VI. BECAUSE THE EVIDENCE WEIGHED MANIFESTLY AGAINST

CONVICTING HASHI OF TRAFFICKING AND POSSESSING A SCHEDULE I

CONTROLLED SUBSTANCE, HIS CONVICTIONS SHOULD BE REVERSED.

{¶30} “VII. BECAUSE THE PROSECUTOR ENGAGED IN PROSECUTORIAL

MISCONDUCT WHICH DENIED HASHI'S RIGHT TO A FAIR TRIAL, HASHI'S MOTION

FOR MISTRIAL SHOULD HAVE BEEN GRANTED.

{¶31} “VIII. HASHI WAS DENIED HIS RIGHT TO A FAIR TRIAL IN THIS CASE

BECAUSE OF CUMULATIVE ERROR.”

I.

{¶32} In his first assignment of error, Appellant argues that the trial court erred in

denying his motion to suppress. We disagree.

{¶33} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third type of claim, an appellate court must independently determine,

without deference to the trial court's conclusion, whether the facts meet the appropriate

legal standard in the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 437

N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. Curry
Delaware County, Case No. 18 CAA 12 0097 10

(1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d

623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d

726. The United States Supreme Court has held that as a general matter determinations

of reasonable suspicion and probable cause should be reviewed de novo on appeal. See

Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d

911.

{¶34} Appellant herein argues Deputy Gibson did not have reasonable suspicion

to initiate a conversation with him, that Deputy Gibson’s search of the package was

unlawful, and that any statements he made were the result of an improper custodial

interrogation.

Consensual Encounter

{¶35} Appellant first argues the court erred in finding the officers had a reasonable

suspicion of criminal activity to justify initiating a conversation with him at the UPS store.

{¶36} Interactions between citizens and law enforcement officers can fall within

three distinct categories: a consensual encounter, an investigative detention, and an

arrest. State v. Taylor, 106 Ohio App.3d 741, 747-749, 667 N.E.2d 60(1995).

{¶37} “Encounters are consensual where the police merely approach a person in

a public place, engage the person in conversation, request information, and the person

is free not to answer and walk away.” Taylor at 747, 667 N.E.2d 60, citing United States

v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). “The Fourth

Amendment guarantees are not implicated in such an encounter unless the police officer

has by either physical force or show of authority restrained the person's liberty so that a
Delaware County, Case No. 18 CAA 12 0097 11

reasonable person would not feel free to decline the officer's requests or otherwise

terminate the encounter.” Id. at 747-748, 667 N.E.2d 60.

{¶38} The State argues the encounter here was consensual, but failing that,

argues the deputy still had adequate suspicion to justify detaining Appellant. Appellant

argues the information from the UPS worker was unreliable and therefore provided no

evidence that he was engaged in any illegal activity.

{¶39} Upon review, we find the initial encounter here was consensual. Although

some of the initial statements made by the deputy to Appellant could be viewed as orders,

such as telling him to put down the package and directing him where to stand, the video

of the encounter reveals that the encounter took place in a public place, Appellant was

not restrained from leaving the area, Appellant was told repeatedly that he was not in

custody and was free to leave, and was told that he was not going to be arrested that day.

The officer never raised his voice or made any show of force or authority. See State v.

Yacobucci, 5th Dist. Delaware No. 18 CAC07 0055, 2019-Ohio-36 ¶32.

Reasonable Suspicion

{¶40} We further find that the officer had reasonable suspicion to detain Appellant

even if the encounter is viewed as an investigatory detention rather than a consensual

encounter.

{¶41} Reasonable suspicion constitutes something less than probable cause.

State v. Logan, 5th Dist. Richland No. 07–CA–56, 2008–Ohio–2969, ¶ 15, citing State v.

Carlson (1995), 102 Ohio App.3d 585, 590. Also, it is well-established that an officer's

reasonable articulable suspicion does not require proof beyond a reasonable doubt that

the defendant's conduct has satisfied the elements of the offense. State v. Willis, 5th Dist.
Delaware County, Case No. 18 CAA 12 0097 12

Licking No. 14 CA 103, 2015–Ohio-3739, ¶ 25, citing Westlake v. Kaplysh, 118 Ohio

App.3d 18, 20, 691 N.E.2d 1074 (8th Dist.1997).

{¶42} Here, information from the identified UPS store manager indicated that an

odor of khat was emanating from one of the packages and explained her basis for that

knowledge. Upon arrival to the UPS store, the deputy himself was able to verify the

unusual odor coming from the package. Deputy Gibson was aware that possession of

khat was illegal. In his conversation with the deputy, appellant claimed he did not know

what was in the package and that the package was not for him even though the package

was addressed to him and he came to pick up the package. Based on these facts, we

find the totality of the circumstances here warranted the investigatory detention.

Consent to Search

{¶43} We further find that the Appellant in this case consented to a search of the

package. The deputy asked Appellant three times if he would consent to the search.

Appellant initially answered “it’s in your hands” but then stated he would consent if he was

not going to be arrested. After being given assurance that he would not be arrested that

day, but could be charged in the future, he told Deputy Gibson “Yeah, go ahead.”

Miranda Warnings

{¶44} Appellant also argues that the deputy should have read him Miranda

warnings.

{¶45} Upon review, we find “police are not required to administer Miranda

warnings to everyone whom they question.” State v. Biros, 78 Ohio St.3d 426, 440, 678

N.E.2d 891 (1997), citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50
Delaware County, Case No. 18 CAA 12 0097 13

L.Ed.2d 714, 719 (1977). This is true when an individual is not in police custody, or is

merely temporarily restrained.

{¶46} The temporary restraint of a person, such as that required of those present

in a home during the execution of a search warrant, does not invoke the “full panoply of

Fourth Amendment protections * * * for no actual arrest has occurred.” State v. Schultz,

23 Ohio App.3d 130, 135, 491 N.E.2d 735 (1985), citing Florida v. Royer, 460 U.S. 491,

103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Temporary restraint of occupants during the

search of a home is justified by “substantial law enforcement interests” such as officer

safety, occupant safety and the orderly execution of the search, as long as police have

an articulable basis for suspecting criminal activity. State v. Jester, 12th Dist. Butler No.

CA2010-10-264, 2012-Ohio-544, 2012 WL 441136, ¶ 18 citing Michigan v. Summers, 452

U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981).

{¶47} Based on our above findings, we find no Miranda warnings were required

in this case.

{¶48} Appellant’s first assignment of error is overruled.

II.

{¶49} In his second assignment of error, Appellant argues the trial court erred in

denying his Motion to continue. We disagree.

{¶50} The decision to grant or deny a motion to continue is entrusted to the broad

discretion of the trial court. Hartt v. Munobe, 67 Ohio St.3d 3, 9, 615 N.E.2d 617 (1993);

State v. Unger, 67 Ohio St.2d 65. Ordinarily, a reviewing court analyzes a denial of a

continuance in terms of whether the court has abused its discretion. Ungar v. Sarafite,

376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); State v. Wheat, 5th Dist. Licking
Delaware County, Case No. 18 CAA 12 0097 14

App. No. 2003–CA–00057, 2004–Ohio–2088. An abuse of discretion connotes more than

a mere error in law or judgment; it implies an arbitrary, unreasonable, or unconscionable

attitude on the part of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

{¶51} In evaluating whether the trial court has abused its discretion in denying a

continuance, appellate courts apply a balancing test which takes into account a variety of

competing considerations, including the length of the delay requested; whether other

continuances have been requested and received; the inconvenience to litigants,

witnesses, opposing counsel and the court; whether the requested delay is for legitimate

reasons or whether it is dilatory, purposeful, or contrived; and whether the defendant

contributed to the circumstance which gives rise to the request for a continuance. State

v. Unger, supra.

{¶52} In the case before us, Appellant moved for a continuance on the morning of

trial, alleging personal family issues would prevent him from focusing on the trial. T. at 7.

In denying the continuance, the trial court explained that the trial had already been

continued a number of time at Appellant’s request and had been pending over six months.

T. at 8-9.

{¶53} Appellant’s second assignment of error is overruled.

III.

{¶54} In his third assignment of error, Appellant argues the indictment was fatally

defective for failing to allege an essential element. We disagree.

{¶55} “ ‘Article I, Section 10 of the Ohio Constitution provides that “no person shall

be held to answer for a capital, or otherwise infamous, crime, unless on presentment or
Delaware County, Case No. 18 CAA 12 0097 15

indictment of a grand jury.” Thus, the Ohio Constitution guarantees an accused that the

essential facts constituting the offense for which he is tried will be found in the indictment

by the grand jury.’ ” State v. Jackson, 134 Ohio St.3d 184, 2012–Ohio–5561, 980 N.E.2d

1032, ¶ 12; quoting State v. Pepka, 125 Ohio St.3d 124, 2010–Ohio–1045, 926 N.E.2d

611, ¶ 14; citing Harris v. State, 125 Ohio St. 257, 264, 181 N.E. 104 (1932). As noted in

Jackson at ¶ 12, “Crim.R. 7(B) provides, ‘The statement [specifying the offense in an

indictment] may be made in ordinary and concise language without technical averments

or allegations not essential to be proved. The statement may be in the words of the

applicable section of the statute, provided the words of that statute charge an offense, or

in words sufficient to give the defendant notice of all the elements of the offense with

which the defendant is charged.’ ”

{¶56} “ ‘An indictment meets constitutional requirements if it “first, contains the

elements of the offense charged and fairly informs a defendant of the charge against

which he must defend, and, second, enables him to plead an acquittal or conviction in bar

of future prosecutions for the same offense.” ’ ” Jackson at ¶ 13; quoting State v. Childs,

88 Ohio St.3d 558, 565, 728 N.E.2d 379 (2000); in turn quoting Hamling v. United States,

418 U.S. 87, 117, 94 S.Ct. 2887 (1974). “ ‘Generally, the requirements of an indictment

may be met by reciting the language of the criminal statute.’ ” Jackson at ¶ 14; quoting

State v. Childs, 88 Ohio St.3d 194, 199, 724 N.E.2d 781 (2000); citing State v. Murphy,

65 Ohio St.3d 554, 583, 605 N.E.2d 884 (1992). However, “if the indictment does not

name the essential elements of the criminal offense charged, the indictment is insufficient

to charge the defendant with that offense.” Jackson at ¶ 14; citing State v. Jester, 32 Ohio

St.3d 147, 149, 512 N.E.2d 962 (1987).
Delaware County, Case No. 18 CAA 12 0097 16

{¶57} In State v. Horner, 126 Ohio St.3d 466, 2010–Ohio–3830, 935 N.E.2d 26, ¶

10, the Supreme Court of Ohio noted that “[t]he purpose of a grand jury indictment has

always been to give notice to the accused: ‘[A] criminal offense must be charged with

reasonable certainty in the indictment so as to apprise the defendant of that which he may

expect to meet and be required to answer; so that the court and jury may know what they

are to try, and the court may determine without unreasonable difficulty what evidence is

admissible.’ ” Quoting Horton v. State, 85 Ohio St. 13, 19, 96 N.E. 797 (1911). Further, it

should be noted that the Court held in Horner that “failure to timely object to a defect in

an indictment constitutes waiver of the error.” Horner at ¶ 46; citing Crim.R. 12(C)(2)

(objections to defect in indictment must be raised before trial.).

{¶58} Here we find that the indictment is sufficient as it alleges, correctly, that

Appellant possessed and trafficked a Schedule I controlled substance, cathinone.

{¶59} We further find that because Appellant failed to timely object to any alleged

error, he has waived any issues with regard to same.

{¶60} Appellant’s third assignment of error is overruled.

IV.

{¶61} In his fourth assignment of error, Appellant argues that the trial court erred

in allowing the State to present certain testimony and evidence at trial which denied him

his Sixth Amendment right to confront the witnesses against him. We disagree.

{¶62} The Sixth Amendment to the United States Constitution provides, "[i]n all

criminal prosecutions, the accused shall enjoy the right to be confronted with the

witnesses against him." Likewise, Section 10, Article I of the Ohio Constitution provides,

"[i]n any trial, in any court, the party accused shall be allowed to meet the witnesses face
Delaware County, Case No. 18 CAA 12 0097 17

to face." The Supreme Court of the United States has held that evidence that is

"testimonial hearsay" offends a defendant's Sixth Amendment right to confrontation and

is not admissible. Crawford v. Washington, 541 U.S. 36, 51, 68, 124 S.Ct. 1354, 158

L.Ed.2d 177 (2004). However, the Confrontation Clause "does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter

asserted." State v. Ricks, 2013-0hio-3712, ~ 18, 136 Ohio St. 3d 356,361,995 N.E.2d

1181, 1187; State v. Maxwell, 2014-0hio-1019, ~ 131, 139 Ohio St. 3d 12, 41, 9 N.E.3d

930, 964 ("Crawford also stated that the Confrontation Clause does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter

asserted."); State v. McKelton, 2016-0hio-5735, ¶217, 148 Ohio St. 3d 261, 300, 70

N.E.3d 508, 562.

{¶63} Here, Appellant argues the witness Matthew Congleton, from the BCI lab,

was allowed to present “substitute testimony for other chemists who reviewed and

certified Congleton’s work. (Appellant’s Brief at 26).

{¶64} At trial, Congleton testified that other personnel in the laboratory made "sure

that everything was done appropriately and in a correct manner and to assure they agree

with the findings on [his] report when compared to [his] data. T. at 340-341. Congleton

also testified that his work was administratively reviewed by a member of his management

and resulted in his testing method being approved. T. at 341.

{¶65} Upon review, we find no Sixth Amendment violation. We do not find these

statements to be testimonial in nature but rather find that these statements refer to the

review procedure and explain how such review occurs and what others in the lab did, not

what they said.
Delaware County, Case No. 18 CAA 12 0097 18

{¶66} Appellant also challenges the last page of State's Ex. 12, which is a single

page document consisting of a technical review checklist, completed by another BCI

chemist.

{¶67} The trial court, after reviewing said document, found it to be merely a

statement verifying that the case number was "properly listed and the name of the agency

that sent the exhibit is properly listed and all the appropriate documents that are supposed

to be here are here." T. at 302.

{¶68} Further, the State explained that the document was not being authorized for

the truth of the matter asserted, but rather to show BCI s laboratory procedures for the

testing of chemical substances.

{¶69} Upon review, we find no error in the trial court’s decision to allow the use of

said document for the limited purpose for which it was offered – as an illustration of the

procedures followed by BCI for the testing of substances and generating of reports.

{¶70} Appellant’s fourth assignment of error is overruled.

V., VI.

{¶71} In his fifth and sixth assignments of error, Appellant argues his convictions

for possessing or trafficking a Schedule I controlled substance were against the manifest

weight and sufficiency of the evidence. We disagree.

{¶72} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio
Delaware County, Case No. 18 CAA 12 0097 19

Supreme Court held, “An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. 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.”

{¶73} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶74} Appellant herein was convicted of one count of drug trafficking pursuant to

R.C. §2925.03(A)(2) and one count of drug possession pursuant to R.C.

§2925.11(A),which provide:

R.C. §2925.03 Trafficking Offenses

(A) No person shall knowingly do any of the following:

(1) ***

(2) Prepare for shipment, ship, transport, deliver, prepare for

distribution, or distribute a controlled substance or a controlled substance
Delaware County, Case No. 18 CAA 12 0097 20

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.

R.C. §2925.11 Drug Possession Offense

(A) No person shall knowingly obtain, possess, or use a controlled

substance or a controlled substance analog.

{¶75} As set forth above in the Statement of the Facts, the State presented

evidence that Appellant appeared at the UPS store to claim the package, which was

addressed to him, within hours of its arrival at the store. T. at 230, 428. Appellant paid for

the package and then took physical possession of the package. T. at 232, 453. Appellant

admitted that he knew the package contained khat. T. at 437.

{¶76} Further, Appellant stated that he paid approximately Four Dollars ($4.00)

per piece to have the khat shipped from Germany, and that the khat in this package was

“for the community”, not just him. T. at 440, 442.

{¶77} Matthew Congleton testified that he performed an analysis of the khat, that

it contained cathinone, and that cathinone is a Schedule I substance. T. at 245-418. He

further testified that the bulk amount of cathinone is 30 grams, and the contents of the

package in this case weighed 3,913.7 grams. T. at 281-282.

{¶78} Based on the foregoing, we find the State presented sufficient evidence that

Appellant conspired or solicited with another to ship a Schedule I substance

(Khat/cathinone) to the United States, that he took possession of the khat, and that he

possessed it with the purpose of distributing it. We therefore find the State satisfied the

elements of possession and trafficking in this case.
Delaware County, Case No. 18 CAA 12 0097 21

{¶79} The jury, as the trier of fact, was free to accept or reject any and all of the

evidence offered by the parties and assess the witnesses' credibility. “While the trier of

fact may take note of the inconsistencies and resolve or discount them accordingly * * *

such inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence.” State v. Johnson, 5th Dist. Stark No. 2014CA00189, 2015–

Ohio–3113, 41 N.E.3d 104, ¶ 61, citing State v. Nivens, 10th Dist. Franklin No. 95APA09–

1236, 1996 WL 284714 (May 28, 1996). The jury need not believe all of a witness'

testimony, but may accept only portions of it as true. Id.

{¶80} Construing all of the evidence in favor of appellee, sufficient evidence

supports appellant's convictions. Also, this is not the case in which the jury clearly lost its

way and created such a manifest miscarriage of justice that the convictions must be

overturned and a new trial ordered.

{¶81} Appellant's conviction is not against the manifest weight or sufficiency of the

evidence.

{¶82} Appellant’s fifth and sixth assignments of error are overruled.

VII.

{¶83} In his seventh assignment of error, Appellant argues he was denied a fair

trial based on prosecutorial misconduct. We disagree.

{¶84} The test for prosecutorial misconduct is whether the prosecutor's remarks

and comments were improper and if so, whether those remarks and comments

prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d

160, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 596

(1990). In reviewing allegations of prosecutorial misconduct, we must review the
Delaware County, Case No. 18 CAA 12 0097 22

complained-of conduct in the context of the entire trial. Darden v. Wainwright, 477 U.S.

168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

{¶85} Here, Appellant argues the prosecutor engaged in misconduct by calling

Appellant’s expert witness a liar. Appellant also alleged that the prosecutor improperly

sought to shift the burden of proof onto Appellant during closing arguments.

{¶86} During closing argument, the prosecutor made the following statements:

"Now Dr. Belloto told you this could be anything. This could be any

substance. This could be a number of substances. What substance did he

tell you this could be? Not one substance did he tell you. There's hundreds

of thousands of substances in the database that he uses and Mr. Congleton

uses and he didn't give you an example of one other substance using a

mass spec run that this could possibly be besides cathinone. Not one

substance did he say. He said it could be a million things, didn't name one.

Not one. Now just so we're clear, when Mr. Blake says they're going to tell

you you should have done this, should have done that. The Defendant

doesn't have a burden of proving anything and I don't expect him to prove

anything. I didn't expect him to bring Dr. Belloto in, but if he puts a witness

on the stand, here's what we should expect as jurors and as officers of the

court, when Dr. Belloto raises his right hand, he should have told the truth,

that's what I expect from Dr. Belloto ....... I apologize if I misspoke. It's up to

you to decide what, if anything, you believe of what Dr. Belloto said. What

I'm telling you is that Mr. Blake said the prosecutor is going to tell you you

should have tested the drug, I'm not going to say that What I'm going to tell
Delaware County, Case No. 18 CAA 12 0097 23

you is he should have told the truth when he said he requested to test the

- -" T. at 696-697.

{¶87} Additionally, the State prosecutor argued:

But, finally, he told you under oath yesterday in court that he asked

to test the plant and was not allowed to do that. Mr. Hashi has a right to

have an independent analyst of his choice, including Dr. Belloto, to analyze

those plants. They were preserved, they were frozen. … They were

preserved, they were frozen. We could not have if we wanted to, and I didn't

want to, nor did the judge, we could not have stopped him from doing that

if he wanted to do that, and he told you he wanted to do that and was not

allowed. You have to decide whether or not that's the truth or not. The State

would suggest to you that that was not the truth." T. at 698.

{¶88} Upon review of said statements, we find same to be reasonable comments

on the evidence and permissible argument. We further find, upon reviewing the

prosecutor's remark in the context of the entire trial, these comments did not prejudicially

affected the substantial rights of appellant. State v. Brown, 5th Dist. Stark No.

2012CA00040, 2013–Ohio–2220, at ¶ 37, appeal not allowed, 136 Ohio St.3d 1512,

2013–Ohio–4657, 995 N.E.2d 1214, ¶¶ 34–38 (2013) and appeal not allowed, 137 Ohio

St.3d 1462, 2013–Ohio–4657, ¶¶ 34–38 (2013).

{¶89} Appellant also claims the State impermissibly attempted to shift the burden

of proof by making the following statements during closing argument:

The bottom line is when you go back there, if you deliberate and you

look at the science and you say, boy, I don't know, the science could go
Delaware County, Case No. 18 CAA 12 0097 24

either way, just remember if you have any reasonable doubt, Mr. Hashi

didn't. Mr. Hashi knew it was khat. He identified it as khat. He chews it

because it has cathinone in it. Mr. Hashi knew exactly what he was doing

that day, he was trafficking in drugs and he was also possessing drugs for

a brief period of time, and under Ohio law, he's guilty of possession and

trafficking in 3,900 grams of cathinone contained in the plant khat. T. at 700.

{¶90} Upon review, we find Appellant’s arguments that this was an attempt to shift

the burden of proof to be unpersuasive. Rather, we again find same to be fair and

reasonable comment on the evidence.

{¶91} Here, we find no misconduct occurred which can be said to have deprived

Appellant of a fair trial based on the entire record.

{¶92} Appellant’s seventh assignment of error is overruled.

VIII.

{¶93} In his eighth assignment of error, Appellant argues he was denied a fair trial

due to cumulative error. We disagree.

{¶94} In State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995), the

Supreme Court of Ohio held, pursuant to the cumulative error doctrine, “a conviction will

be reversed where the cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of numerous instances of trial court

error does not individually constitute cause for reversal.”

{¶95} Where we have found that the trial court did not err, cumulative error is

simply inapplicable. State v. Carter, Stark App. No. 2002CA00125, 2003-Ohio-1313 at ¶

37. With respect to Appellant's arguments that we have already addressed, we do not
Delaware County, Case No. 18 CAA 12 0097 25

find multiple instances of harmless error triggering the cumulative error doctrine. State v.

Scott, 5th Dist. Richland No.11 CA80, 2012–Ohio3482, ¶ 75–76, appeal not allowed, 133

Ohio St.3d 1491, 2012–Ohio–5459, 978 N.E.2d 910.

{¶96} Appellant’s eighth assignment of error is overruled.

{¶97} For the foregoing reasons, the decision of the Court of Common Pleas of

Delaware County, Ohio, is affirmed.

By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.

JWW/d 0103