State v. Markley

[Cite as State v. Markley, 2021-Ohio-3340.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 2021 CA 0010
:
GRACE ELIZABETH MARKLEY :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Case No. 2020-CR-
0541

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 22, 2021

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

GARY BISHOP R. JOSHUA BROWN
RICHLAND COUNTY PROSECUTOR 32 Lutz Ave.
Lexington, OH 44904
VICTORIA MUNSON
ASSISTANT COUNTY PROSECUTOR
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 2021 CA 0010 2

Delaney, J.

{¶1} Defendant-Appellant Grace Elizabeth Markley appeals her conviction and

sentence by the Richland County Court of Common Pleas. Plaintiff-Appellee is the State

of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} On August 24, 2020, the Richland County Grand Jury indicted Defendant-

Appellant Grace Elizabeth Markley for: Count One -- Illegal Conveyance of Drugs of

Abuse onto Grounds of a Specified Governmental Facility, a third-degree felony in

violation of R.C. 2921.36(A)(2) & (G)(2); Count Two -- Aggravated Trafficking in Drugs, a

fourth-degree felony in violation of R.C. 2925.03(A)(2) & (C)(1)(a); and Count Three –

Aggravated Possession of Drugs, a fifth-degree felony in violation of R.C. 2925.11(A) &

(C)(1)(a). Markley entered a plea of not guilty to the charges.

Drug Analysis Report

{¶3} Markley filed her demand for discovery on November 5, 2020. The State

filed its response to Markley’s demand for discovery on November 17, 2020. As part of

the State’s response, it included a July 22, 2020 Drug Analysis Report completed by

Anthony J. Tambasco, forensic scientist with the Mansfield Police Forensic Science

Laboratory. The Drug Analysis Report stated the results of the examination of a sealed

plastic bag containing crystalline substance in paper submitted by Detective Shoemaker

of the Richland County Sheriff’s Department on July 20, 2020 was as follows: “Crystalline

substance, weighing 0.03 grams, was found to contain Methamphetamine, a Schedule II

controlled substance.”

{¶4} The Drug Analysis Report included the following language:
Richland County, Case No. 2021 CA 0010 3

NOTICE TO ACCUSED

This report shall not be prima-facie evidence of the contents, identity, and

weight or the existence and number of unit doses of the substance if the

accused or the accused’s attorney demands the testimony of the person

signing the report, by serving the demand upon the prosecuting attorney

within seven days from the accused or the accused’s attorney’s receipt of

the report. The time may be extended by a trial judge in the interests of

justice.

Markley nor Markley’s trial counsel served a demand upon the State for Anthony J.

Tambasco’s testimony.

Jury Trial

{¶5} A jury trial commenced on January 4, 2021. The following evidence was

adduced at trial.

Inmate Informant

{¶6} The kitchen staff at the Richland County Jail consists of non-inmate

employees subcontracted through Trinity Food Services and inmate employees. N.L. was

an inmate at the Richland County Jail for charges relating to drugs and stolen property.

In July 2020, N.L. worked on the kitchen staff with Markley, a non-inmate employee of

Trinity Food Services.

{¶7} Just prior to July 20, 2020, N.L. had been involved in an investigation of

prohibited tobacco products being smuggled into the jail, purportedly through the kitchen

staff. He spoke to Sergeant Kristin Gillis, the first shift supervisor with the Richland County

Jail, about the tobacco investigation. N.L. then became aware that drugs were going to
Richland County, Case No. 2021 CA 0010 4

be brought into the jail through the kitchen staff. N.L. reported to Sgt. Gillis that on July

20, 2020, Markley was going to bring drugs into the jail during her lunch break.

Observation and Interception

{¶8} Markley was already at work when N.L. gave Sgt. Gillis his information. Sgt.

Gillis reported the information to the Richland County Jail administrator, Lieutenant Jim

Myers. Sgt. Gillis and Lt. Myers watched Markley on the jail’s surveillance cameras and

intended to stop and search her when she re-entered the jail. At approximately 12:30

p.m., Sgt. Gillis and Lt. Myers stepped out of the building and observed a car parked in

the jail parking lot, near the dumpsters. Sgt. Gillis saw two people in the car and

recognized Markley as the passenger. Sgt. Gillis watched Markley exit the vehicle holding

a McDonald’s bag. As she walked towards the jail, Sgt. Gillis did not see Markley drop

anything on the ground or pick up anything from the ground.

{¶9} As Markley approached a side door near the loading dock, Sgt. Gillis

observed that Markley had her cell phone with her, which was prohibited on the jail

grounds. Sgt. Gillis advised Markley to leave the building and walk to the front of the jail

to secure the cell phone in the lobby area, known as the “Visitation Center.” Sgt. Gillis

walked to the Visitation Center through the interior of the jail and Markley walked alone

outside the jail to the Visitation Center.

Search and Discovery

{¶10} There is a sign outside of the door to the Visitation Center informing people

that they are subject to search at any time and no weapons or drugs are allowed beyond

that point. In the Visitation Center, Sgt. Gillis was joined by Sergeant Plantz. Markley was
Richland County, Case No. 2021 CA 0010 5

told to put her belongings down, remove everything from her pockets, and put her hands

on the wall.

{¶11} The surveillance video of the Visitation Center was played for the jury. When

asked if she had anything in her pockets, Markley said she did not have anything in her

pockets and she halfway pulled out the linings of her pockets. Sgt. Gillis conducted a pat

down search of Markley after she had her hands against the wall. In Markley’s back

pocket, Sgt. Gillis discovered a folded piece of paper. Sgt. Gillis opened the folded piece

of paper and called over Lt. Myers because the paper had what appeared to be an illegal

substance inside.

{¶12} Detective Jason Shoemaker, with the Richland County Sheriff’s

Department, was informed that a non-inmate employee was suspected of bringing drugs

into the jail. It was originally planned that Det. Shoemaker would sit in the parking lot and

intercept the employee when she came to the jail, but the jail staff intercepted Markley

when she came back from lunch. Det. Shoemaker was given the folded piece of paper

and he took it to the Mansfield Police Department Crime Lab for testing. Det. Shoemaker

was presented with State’s Exhibit 4, the Drug Analysis Report from the Mansfield Police

Forensic Science Laboratory completed by Anthony J. Tambasco, forensic scientist. The

Drug Analysis Report stated the results of the examination of the piece of paper and its

contents was as follows: “Crystalline substance, weighing 0.03 grams, was found to

contain Methamphetamine, a Schedule II controlled substance.” Trial counsel did not

object to Det. Shoemaker’s testimony as to the Drug Analysis Report.

{¶13} After Markley was intercepted, Det. Shoemaker became aware that N.L.

had sent a “kite” to Captain Blunt, administrator of the Richland County Jail. A “kite” is a
Richland County, Case No. 2021 CA 0010 6

communication from an inmate to a corrections officer. The kite read, “Don’t say anything

to Grace. She’s part of this. It’s very important for the jail and kitchen staff. You can take

me out saying I have court or see mental health. Do not show this to Grace. It’s about a

serious issue. Before lunch.” State’s Exhibit 3.

{¶14} At the close of the State’s case, counsel for Markley made a Crim.R. 29

motion for acquittal, which the trial court denied.

{¶15} Markley testified on her own behalf. She stated that on July 20, 2020, she

left the jail and walked to a local gas station for lunch. She ran into her grandmother, who

had purchased her McDonald’s. The grandmother drove her back to the jail. While sitting

in the car, Markley picked up the trash in the car, including the piece of paper. Markley

did not know to whom the piece of paper belonged, and she did not know the piece of

paper had drugs in it. Markley put the piece of paper in her pocket and was going to turn

it into her kitchen staff supervisor, but she was intercepted by Sgt. Gillis.

{¶16} Detective Andrew Knee of the Richland County Sheriff’s Department

testified as a rebuttal witness. When Markley was initially interviewed by Det. Knee,

Markley told him she found the piece of paper on the ground. She stated she was not

sure if the piece of paper was in her grandmother’s car first.

Conviction and Sentence

{¶17} Counsel for Markley made a Crim.R. 29 motion for acquittal at the

conclusion of the trial. The trial court denied the motion.

{¶18} After deliberations, the jury found Markley guilty on all three counts. The

trial court held a sentencing hearing on January 8, 2021. The trial court sentenced

Markley to 36 months in prison for Count One, Illegal Conveyance of Drugs of Abuse onto
Richland County, Case No. 2021 CA 0010 7

Grounds of a Specified Governmental Facility; 18 months in prison for Count Two,

Aggravated Trafficking in Drugs; and merged Count Three, Aggravated Possession of

Drugs, with Count One. The sentences were to run concurrently for an aggregate prison

term of 36 months. The sentencing entry was filed on January 11, 2021 and it is from this

judgment that Markley now appeals.

ASSIGNMENTS OF ERROR

{¶19} Markley raises two Assignments of Error:

{¶20} “I. THE VERDICTS FOR ALL CHARGES WERE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶21} “II. ATTORNEY LILLIAN SOOS COMMITTED INEFFECTIVE

ASSISTANCE OF COUNSEL WHEN SHE FAILED TO OBJECT TO DETECTIVE

SHOEMAKER’S TESTIMONY CONCERNING ANTHONY TAMBASCO’S REPORT.”

ANALYSIS

I. and II.

{¶22} Markley contends in her first Assignment of Error that her convictions were

against the manifest weight of the evidence. She argues in her second Assignment of

Error that she was denied the effective assistance of counsel. We disagree as to both

arguments.

Manifest Weight of the Evidence Standard of Review

{¶23} The criminal manifest-weight-of-the-evidence standard was explained in

State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), in which the Court

distinguished between “sufficiency of the evidence” and “manifest weight of the evidence,”

finding that these concepts differ both qualitatively and quantitatively. Id. at 386. The
Richland County, Case No. 2021 CA 0010 8

Court held that sufficiency of the evidence is a test of adequacy as to whether the

evidence is legally sufficient to support a verdict as a matter of law, but weight of the

evidence addresses the evidence's effect of inducing belief. Id. at 386–387. “In other

words, a reviewing court asks whose evidence is more persuasive -- the state's or the

defendant's?” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶

25. The Court noted that although there may be sufficient evidence to support a judgment,

it could nevertheless be against the manifest weight of the evidence. Thompkins, supra

at 387. “When a court of appeals reverses a judgment of a trial court on the basis that the

verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’

and disagrees with the factfinder's resolution of the conflicting testimony.” Id., citing Tibbs

v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

{¶24} To evaluate a manifest-weight claim, a court must review the entire record,

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

witnesses. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at ¶

328. The court must decide whether “‘the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed.’” Id., quoting State

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

Evidence of a Controlled Substance and Ineffective Assistance of Counsel

{¶25} In this section, we address Markley’s argument that her conviction was

against the manifest weight of the evidence due to the lack of evidence as to a “controlled

substance.” Markley argues in her second Assignment of Error that she was denied the

effective assistance of counsel because counsel failed to object to evidence relating to
Richland County, Case No. 2021 CA 0010 9

the “controlled substance” element. We consider the issues together for ease of

discussion.

Drug Analysis Report

{¶26} Markley was charged with three crimes where the State had the burden to

produce evidence of a “controlled substance.” First Markley was charged under R.C.

2921.36, which prohibits the conveyance of certain items onto property of state facilities.

The statute states in relevant part:

(A) No person shall knowingly convey, or attempt to convey, onto the

grounds of a detention facility or of an institution, office building, or other

place that is under the control of the department of mental health and

addiction services, the department of developmental disabilities, the

department of youth services, or the department of rehabilitation and

correction any of the following items:

***

(2) Any drug of abuse, as defined in section 3719.011 of the Revised Code.

“Drugs of abuse” is defined as “any controlled substance as defined in section 3719.01

of the Revised Code, any harmful intoxicant as defined in section 2925.01 of the Revised

Code, and any dangerous drug as defined in section 4729.01 of the Revised Code.” R.C.

3719.011. Second, Markley was charged with aggravated trafficking in drugs, a violation

of R.C. 2925.03(A)(2), which states:

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

***
Richland County, Case No. 2021 CA 0010 10

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

distribute a controlled substance or a controlled substance analog, when

the offender knows or has reasonable cause to believe that the controlled

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

by the offender or another person.

Thirdly, Markley was charged with R.C. 2925.11(A), aggravated possession of drugs. The

statute reads, “No person shall knowingly obtain, possess, or use a controlled substance

or a controlled substance analog.”

{¶27} Markley contends the State failed to prove that she conveyed, trafficked, or

possessed a controlled substance on July 20, 2020. She argues that while the State

presented evidence that Markley possessed a folded piece of paper that contained a

substance, there was no admissible evidence demonstrating the substance in the folded

piece of paper was a “controlled substance.” Det. Shoemaker testified that he took the

folded piece of paper with the unknown substance to the Mansfield Police Department

Crime Lab for testing. On July 22, 2020, Anthony J. Tambasco, forensic scientist with the

Mansfield Police Forensic Science Laboratory, completed a Drug Analysis Report that

stated the results of the examination of a sealed plastic bag containing crystalline

substance in paper was as follows: “Crystalline substance, weighing 0.03 grams, was

found to contain Methamphetamine, a Schedule II controlled substance.” At trial, Anthony

J. Tambasco was not called as a witness to testify to the Drug Analysis Report. Through

Det. Shoemaker’s testimony and without objection, the State entered the Drug Analysis

Report into evidence as State’s Exhibit 4. Markley contends that without the testimony of

Anthony J. Tambasco, the Drug Analysis Report was inadmissible because Det.
Richland County, Case No. 2021 CA 0010 11

Shoemaker was not qualified to testify to the chemical makeup of the substance. She

argues the State failed to meet its burden that Markley conveyed, trafficked, or possessed

a controlled substance.

{¶28} R.C. 2925.51(A) states that a laboratory report may constitute prima-facie

evidence of content, weight, and identity of controlled substances:

In any criminal prosecution for a violation of this chapter or Chapter 3719.

of the Revised Code, a laboratory report from * * * a laboratory operated

by another law enforcement agency, * * * and signed by the person

performing the analysis, stating that the substance that is the basis of the

alleged offense has been weighed and analyzed and stating the findings

as to the content, weight, and identity of the substance and that it contains

any amount of a controlled substance and the number and description of

unit dosages, is prima-facie evidence of the content, identity, and weight

or the existence and number of unit dosages of the substance. * * *

Attached to that report shall be a copy of a notarized statement by the

signer of the report giving the name of the signer and stating that the signer

is an employee of the laboratory issuing the report and that performing the

analysis is a part of the signer's regular duties, and giving an outline of the

signer's education, training, and experience for performing an analysis of

materials included under this section. The signer shall attest that

scientifically accepted tests were performed with due caution, and that the

evidence was handled in accordance with established and accepted

procedures while in the custody of the laboratory.
Richland County, Case No. 2021 CA 0010 12

{¶29} R.C. 2925.51(C) provides an exception to the rule that a laboratory report

prepared under R.C. 2925.51(A) may be prima-facie evidence:

The report shall not be prima-facie evidence of the contents, identity, and

weight or the existence and number of unit dosages of the substance if the

accused or the accused's attorney demands the testimony of the person

signing the report, by serving the demand upon the prosecuting attorney

within seven days from the accused or the accused's attorney's receipt of

the report. The time may be extended by a trial judge in the interests of

justice.

{¶30} R.C. 2925.51 implicates the protection of the Sixth Amendment to the

United States Constitution, which provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right * * * to be confronted with the witnesses against him.” In Melendez–

Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the

Supreme Court held that “certificates of analysis” showing the results of the forensic

analysis performed on suspected controlled substances fall within the “core class of

testimonial statements.” State v. Farrar, 8th Dist. Cuyahoga No. 93060, 2010-Ohio-2461,

2010 WL 2202929, ¶ 14 quoting Melendez-Diaz, supra. A laboratory report is therefore

subject to confrontation under the Sixth Amendment, and the analysts who performed the

tests are required to testify in person. Id. The Court explained that the “certificates” that

showed the weight and composition of the substances are functionally identical to live, in-

court testimony, as they do “precisely what a witness does on direct examination.” Id.

Accordingly, absent a showing that the analysts were unavailable to testify at trial and the
Richland County, Case No. 2021 CA 0010 13

defendant had a prior opportunity to cross-examine them, the defendant was entitled to

confront the analysts at trial. Id.

{¶31} The Melendez–Diaz Court noted the state of Ohio permitted the defendant

to assert, or forfeit by silence, their Confrontation Clause right after receiving notice of the

prosecution's intent to use a forensic analyst's report, and stated:

In their simplest form, notice-and-demand statutes require the prosecution

to provide notice to the defendant of its intent to use an analyst's report as

evidence at trial, after which the defendant is given a period of time in which

he may object to the admission of the evidence absent the analyst's

appearance live at trial. See, e.g., Ga.Code Ann. § 35–3–154.1 (2006);

Tex.Code Crim. Proc. Ann., Art. 38.41, § 4 (Vernon 2005); Ohio Rev.Code

Ann. § 2925.51 (C) (West 2006). Contrary to the dissent's perception, these

statutes shift no burden whatever. The defendant always has the burden of

raising his Confrontation Clause objection; notice-and-demand statutes

simply govern the time within which he must do so. States are free to adopt

procedural rules governing objections.

Farrar, 2010-Ohio-2461, ¶ 15-16 quoting Melendez-Diaz, 129 S.Ct. at 2541; State v.

Jackson, 5th Dist. Richland No. 2012-CA-20, 2012-Ohio-5548, ¶ 57.

{¶32} As stated above, R.C. 2925.51(A) specifically details the information that

the laboratory report must contain. It places a specific obligation on the prosecuting

attorney to serve the report on the accused or the accused's attorney. R.C. 2925.51(B).

The statute requires that the report must contain notice of the accused's right to demand

the testimony of the signer of the report. R.C. 2925.51(D). The statute then specifies that
Richland County, Case No. 2021 CA 0010 14

the report will not be prima facie evidence of the test results if the accused or the

accused’s attorney demands the testimony of the report's signer by serving the demand

upon the prosecuting attorney within seven days of the accused's attorney's receipt of the

report, a time that can be extended by the trial judge. R.C. 2925.51(C). “The obvious

import of R.C. 2925.51(C) is that if a demand is not made for the testimony of the signer

of the report, the report will be prima facie evidence of the test results.” State v.

Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 16.

{¶33} An examination of the July 22, 2020 Drug Analysis Report at issue in this

case indicates that it fully complied with R.C. 2925.51. Markley has made no argument

that the Drug Analysis Report and the State’s service of the report did not comply with all

statutory procedures. “When the State has complied with its obligations under R.C.

2925.21, a defendant’s failure to use the procedures of R.C. 2925.51(C) to demand that

the laboratory analyst testify constitutes a waiver of the opportunity to cross examine the

analyst at trial and allows the analyst's report to be admitted as prima facie evidence of

the test results.” State v. Jackson, 5th Dist. Richland No. 2012-CA-20, 2012-Ohio-5548,

¶ 56 quoting State v. Pasqualone, 2009-Ohio-5548, ¶ 43.

{¶34} In this case, Markley and Markley’s trial counsel did not utilize the

procedures outlined in R.C. 2925.51(C) to demand that Anthony J. Tambasco testify at

trial to the July 22, 2020 Drug Analysis Report, thereby rendering the Drug Analysis

Report as prima facie evidence of the test results. The Drug Analysis Report identified

the substance in the folded piece of paper found in Markley’s pocket as

methamphetamine, a Schedule II controlled substance. The report was prima facie

evidence that the folded piece of paper found in Markley’s pocket on July 20, 2020
Richland County, Case No. 2021 CA 0010 15

contained a controlled substance. In her appeal, Markley contends it was against the

manifest weight of the evidence to convict her on any charges because there was no

evidence of a controlled substance. Based on our above holding, we find the jury did not

lose its way and create a manifest miscarriage of justice as to a controlled substance so

that Markley’s conviction must be reversed.

Ineffective Assistance of Counsel

{¶35} In her second Assignment of Error, Markley claims she received the

ineffective assistance of counsel because her counsel did not object to Det. Shoemaker’s

testimony regarding the Drug Analysis Report.

{¶36} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158

(1955).

{¶37} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

{¶38} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
Richland County, Case No. 2021 CA 0010 16

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

{¶39} In State v. Jackson, supra, this Court reviewed an argument that the

defendant received the ineffective assistance of counsel when trial counsel failed to

require the analyst who performed the test on a controlled substance to testify. We

referred to State v. McCausland, where the Supreme Court explained,

“an accused's attorney is capable of waiving his [or her] client's right to

confrontation by not demanding that a laboratory analyst testify pursuant to

the opportunity afforded by [the relevant statute], because whether to cross-

examine a particular witness is properly viewed as a decision relating to trial

tactics or strategy.” [State v. Pasqualone] at ¶ 44. We also held that “the

procedures of [the statute] adequately protect an accused's right to

confrontation, so that an accused who fails to demand the testimony of the

analyst pursuant to [the statute] validly waives his opportunity to cross-

examine the analyst.” Id. We arrived at this conclusion after noting that the

relevant question for purposes of the waiver inquiry under the Confrontation

Clause of the Sixth Amendment was whether the defendant had an

opportunity for cross-examination. Id. at ¶ 35, 903 N.E.2d 270.

Jackson at ¶ 58 quoting State v. McCausland, 124 Ohio St.3d 8, 2009–Ohio–5933, 918

N.E.2d 507, 918, N.E.2d 507, ¶ 14. A defendant has no constitutional right to determine

trial tactics and strategy of counsel. Jackson at ¶ 58 citing State v. Cowans, 87 Ohio St.3d

68, 72, 717 N.E.2d 298 (1999); State v. Conway, 108 Ohio St.3d 214, 2006–Ohio–791,
Richland County, Case No. 2021 CA 0010 17

842 N.E.2d 996, ¶ 150; State v. Donkers, 170 Ohio App.3d 509, 2007–Ohio–1557, 867

N.E.2d 903, ¶ 183 (11th Dist.). Rather, decisions about viable defenses are the exclusive

domain of defense counsel after consulting with the defendant. Id. When there is no

demonstration that counsel failed to research the facts or the law or that counsel was

ignorant of a crucial defense, a reviewing court defers to counsel's judgment in the matter.

Jackson, supra at ¶ 59 citing State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189

(1980).

{¶40} We found in Jackson that the trial counsel’s failure to require the analyst

who performed the test to testify was a tactical decision. Id. at ¶ 60. In Melendez–Diaz,

the United States Supreme Court observed,

But it is not surprising. Defense attorneys and their clients will often

stipulate to the nature of the substance in the ordinary drug case. It is

unlikely that defense counsel will insist on live testimony whose effect will

be merely to highlight rather than cast doubt upon the forensic analysis.

Nor will defense attorneys want to antagonize the judge or jury by wasting

their time with the appearance of a witness whose testimony defense

counsel does not intend to rebut in any fashion.

Id. at ¶ 60 quoting Melendez-Diaz, supra at 557 U.S. at 328.

{¶41} Because we have found no instances of error in this case, we find Markley

has not demonstrated that she was prejudiced by trial counsel's performance. Markley’s

second Assignment of Error is overruled.
Richland County, Case No. 2021 CA 0010 18

Conveyance of a Drug of Abuse

{¶42} As part of her first Assignment of Error, Markley argues that the manifest

weight of the evidence demonstrated that when she entered the Visitation Center with the

folded piece of paper containing methamphetamine, Markley did not convey a drug of

abuse onto the grounds of a detention facility. She states she only entered the lobby of

the Richland County jail, which was not a secured area of the facility, and therefore not in

violation of the statute.

{¶43} R.C. 2921.36(A)(1) states that “[n]o person shall knowingly convey, or

attempt to convey, onto the grounds of a detention facility * * * any drug of abuse.” In her

appellate brief, Markley does not cite this Court to the statute or case law where “the

grounds of the detention facility” has been defined as only secured areas of the detention

facility.

{¶44} At trial, Lt. Myers testified that the secured perimeter and the property of the

jail were all considered the premises of the Richland County Jail. (T. 193). Lt. Myers

further testified it was prohibited by law to bring drugs inside the lobby or the door near

the kitchen, where Markley attempted to enter before Sgt. Gillis stopped her and directed

her to the lobby. (T. 193-196). There were signs posted providing notification that drugs

were not permitted in the Visitation Center. (T. 195).

{¶45} “Convey” is defined as, “to bear from one place to another.” Webster’s Ninth

New Collegiate Dictionary 287 (1989). The evidence in this case demonstrated that

Markley came from the jail parking lot and attempted to enter the kitchen of the Richland

County Jail through a door with the folded piece of paper containing methamphetamine

in her back pocket. She next entered the Visitation Center with the controlled substance
Richland County, Case No. 2021 CA 0010 19

in her back pocket. She walked alone to the Visitation Center and did not dispose of the

controlled substance in her back pocket before entering the lobby. When Sgt. Gillis asked

Markley if anything was in her pockets, Markley pulled out the lining of her pockets

halfway and denied having anything in her pockets when upon a search of person, the

folded piece of paper containing methamphetamine was found in her back pocket. The

greater amount of credible evidence supports Markley’s conviction for illegal conveyance

of drugs onto the grounds of a detention facility and was not against the manifest weight

of the evidence.

Trafficking and Pecuniary Gain

{¶46} Markley next argues her conviction for aggravated trafficking in drugs was

against the manifest weight of the evidence because the State did not present any

evidence that she received a pecuniary gain from bringing the drugs onto the grounds of

the detention facility. Markley was charged with a violation of R.C. 2925.03(A)(2), which

states:

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

***

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

distribute a controlled substance or a controlled substance analog, when

the offender knows or has reasonable cause to believe that the controlled

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

by the offender or another person.
Richland County, Case No. 2021 CA 0010 20

{¶47} Markley does not cite this Court to the statute or case law that demonstrates

pecuniary gain is an element of the offense. The Fourth District Court of Appeals has

stated as to R.C. 2925.03(A)(2):

As used in this statute, selling includes delivering, bartering, exchanging,

transferring, or gifting. See R.C. 2925.01(A) (incorporating R.C. 3719.01

definitions) and 3719.01(AA) (defining “sale”). This definition is broader than

the common dictionary definition of “sale.” State v. Adkins, 80 Ohio App.3d

211, 221, 608 N.E.2d 1152, 1159 (4th Dist.1992); accord Drug trafficking—

Elements, Baldwin's Oh. Prac.Crim. L., Section 107:2 (3d ed.). “Ohio has

adopted a definition of ‘sale’ of controlled substances that is broad in scope,

calculated to include all transfers of controlled substances regardless of the

presence or absence of consideration therefor.” State v. Albritton, 6th Dist.

Wood No. WD–80–48, 1980 WL 351681, *6 (Dec. 26, 1980).

State v. Bradshaw, 4th Dist. Scioto No. 17CA3803, 2018-Ohio-1105, 2018 WL 1512846,

¶ 67. The State, therefore, was not required to prove that Markley received consideration

or pecuniary gain from drug trafficking on July 20, 2020. Her conviction for aggravated

trafficking in drugs, considering her argument on appeal, was not against the manifest

weight of the evidence.

Knowingly Possessed a Controlled Substance

{¶48} Markley was charged with R.C. 2925.11(A), aggravated possession of

drugs. The statute reads, “No person shall knowingly obtain, possess, or use a controlled

substance or a controlled substance analog.” She argues the evidence demonstrated that

she did not knowingly possess a controlled substance.
Richland County, Case No. 2021 CA 0010 21

{¶49} R.C. 2901.22(B) sets forth the definition of how and when a person acts

knowingly,

A person acts knowingly, regardless of purpose, when the person is aware

that the person's conduct will probably cause a certain result or will probably

be of a certain nature. A person has knowledge of circumstances when the

person is aware that such circumstances probably exist. When knowledge

of the existence of a particular fact is an element of an offense, such

knowledge is established if a person subjectively believes that there is a

high probability of its existence and fails to make inquiry or acts with a

conscious purpose to avoid learning the fact.

{¶50} Whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances, including the

doing of the act itself. State v. Jacobs, 5th Dist. Knox No. 20CA000016, 2021-Ohio-1611,

2021 WL 1828102, ¶ 16 citing State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d 695

(1st Dist. 2001). (Footnote omitted.) Thus, “[t]he test for whether a defendant acted

knowingly is a subjective one, but it is decided on objective criteria.” Johnson, supra at ¶

16 quoting State v. McDaniel, 2nd Dist. Montgomery No. 16221, 1998 WL 214606, *7

(May 1, 1998); See also, State v. Butler, 5th Dist. Holmes No. 2012-CA-7, 2012-Ohio-

5030, ¶ 25.

{¶51} Possession is defined as “having control over a thing or substance, but may

not be inferred solely from mere access to the thing or substance through ownership or

occupation of the premises upon which the thing or substance is found.” R.C. 2925.01(K).

Possession may be actual or constructive. State v. Mathias, 5th Dist. Morrow No.
Richland County, Case No. 2021 CA 0010 22

2020CA0001, 2021-Ohio-423, ¶ 75 citing State v. Taylor, 5th Dist. Richland No. 2019 CA

0117, 2020-Ohio-5097, ¶ 22 citing State v. Garza, 5th Dist. Stark No. 2020CA00018,

2020-Ohio-4001, ¶ 16 citing State v. Butler, 42 Ohio St.3d 174, 176, 538 N.E.2d 98

(1989). Thus, the issue of whether a person charged with drug possession knowingly

possessed a controlled substance “is to be determined from all the attendant facts and

circumstances available.” State v. Mathias, 5th Dist. Morrow No. 2020CA0001, 2021-

Ohio-423, ¶ 76 quoting State v. Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998).

{¶52} Markley testified at trial that she did not know she possessed a controlled

substance. When Markley was initially interviewed by Detective Andrew Knee, Markley

told him she found the piece of paper on the ground. (T. 286). She stated she was not

sure if the piece of paper was in her grandmother’s car first. (T. 286). At trial, Markley

testified that she picked up the folded piece of paper from the floor of her grandmother’s

car. She described her grandmother’s car as full of papers and trash. (T. 264). Markley

said that of all the papers in her grandmother’s car, she found the folded piece of paper

on the floor of the car and put that piece of paper in her pocket. She intended to turn in

the piece of paper to her kitchen staff supervisor, but she was intercepted by Sgt. Gillis.

When asked by Sgt. Gillis if she had anything in her pockets, however, Markley denied

having anything in her pockets.

{¶53} We defer to the trier of fact as to the weight to be given the evidence and

the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), at paragraph one of the syllabus. 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
Richland County, Case No. 2021 CA 0010 23

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,

2015-Ohio-3113, 41 N.E.3d 104, ¶ 61 (5th Dist.), 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.

{¶54} Using all the attendant facts and circumstances available, we find the jury

did not lose its way when it found Markley guilty of aggravated possession of drugs. The

jury did not find Markley’s testimony credible that she did not know the folded piece of

paper contained a controlled substance. Reviewing the entire record, weighing the

evidence and all reasonable inferences, and considering the credibility of witnesses, we

find Markley’s conviction for aggravated possession of drugs was not against the manifest

weight of the evidence.

{¶55} Based on the foregoing, Markley’s first Assignment of Error is overruled.
Richland County, Case No. 2021 CA 0010 24

CONCLUSION

{¶56} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, John, P.J. and

Wise, Earle, J., concur.