State v. Smith

[Cite as State v. Smith, 2022-Ohio-371.]

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

STATE OF OHIO, :

Plaintiff-Appellee, : Case No. 20CA3934

v. :

HENRY DEANDRE SMITH, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

James H. Banks, Dublin, Ohio, for appellant.1

Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay
Willis, Scioto County Assistant Prosecuting Attorney,
Portsmouth, Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:2-2-22
ABELE, J.

{¶1} This is an appeal from a Scioto County Common Pleas

Court judgment of conviction and sentence. A jury found Henry

Deandre Smith, defendant below and appellant herein, guilty of:

Attorney Michael H. Mearan initially represented
appellant. Later, Attorney Banks entered a notice of appearance
as counsel for appellant. On July 24, 2020, Banks filed a
motion to withdraw. The trial court granted Banks’ request to
withdraw and appointed Attorney Gene Meadows to represent
appellant.
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(1) trafficking in heroin in violation of R.C. 2925.03(A)(2);2

(2) possessing heroin in violation of R.C. 2925.11(A); and (3)

possessing criminal tools in violation of R.C. 2923.24(A).

After the trial court merged the possession offense with the

trafficking offense, the court sentenced appellant to serve an

eight-year prison term. The court also sentenced appellant to

serve 180 days in jail for possessing criminal tools, but

ordered that sentence to be served concurrently with the

trafficking offense.

{¶2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN ALLOWING THE
IMPROPER INTRODUCTION OF EVIDENCE.”

SECOND ASSIGNMENT OF ERROR:

“THE DEFENDANT’S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.”

THIRD ASSIGNMENT OF ERROR:

“DEFENDANT SMITH’S CONVICTIONS ARE
CONTRADICTORY ACCORDING TO THE JURY VERDICTS
SUCH TO REQUIRE REVERSAL.”

2
The trial court’s sentencing entry and verdict form
contain a clerical error. Both recite the offense as R.C.
2925.03(A)(1). The trial court, however, amended the indictment
to charge R.C. 2925.03(A)(2).
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SCIOTO, 20CA3934

FOURTH ASSIGNMENT OF ERROR:

“THE DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL SUCH THAT HE IS
ENTITLED TO A NEW TRIAL.”

FIFTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN SENTENCING THE
DEFENDANT.”

{¶3} During the late-night hours of August 10, 2018, Ohio

State Highway Patrol Trooper Nick Lewis stopped a black sport-

utility vehicle for following a vehicle too closely, for making

an unexpected lane change, and for driving 40 miles per hour in

a 55 mile-per-hour speed zone. During the ensuing traffic stop,

Lewis and another trooper discovered approximately 57 grams of

heroin stuffed inside the lining of the backside of the driver’s

seat. The troopers questioned the three occupants, Carvion

McKee, Ernest Whitehead, and appellant, and all stated they did

not know that the vehicle contained heroin. The troopers then

allowed the occupants to leave and advised them that the

prosecutor’s office likely would present the matter to a grand

jury.

{¶4} On August 22, 2019, a Scioto County Grand Jury

returned indictments that charged appellant, Whitehead, and

McKee with trafficking in heroin in violation of R.C.

2925.03(A)(1), possessing heroin in violation of R.C.
SCIOTO, 20CA3934
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2925.11(A), and possessing criminal tools in violation of R.C.

2923.24(A). Appellant and Whitehead entered not guilty pleas.3

{¶5} On April 23, 2020, appellant filed a motion to

suppress the evidence discovered during the traffic stop and

vehicle search. Appellant asserted that the trooper lacked a

lawful basis to stop and search the vehicle.

{¶6} At the July 23, 2020 hearing, appellant’s counsel,

Attorney Banks, indicated that the parties had agreed to resolve

the case, but that appellant recently changed his mind.

Apparently, the state offered to reduce the first-degree felony

offense, to recommend a two-year prison term, and agree not to

object to judicial release. The trial court questioned

appellant regarding his decision to reject the plea offer and

appellant indicated that he did not believe that he could “sign

away [his] freedom for something” he does not support. The

court explained the maximum penalties it could impose and

allowed appellant to again discuss the matter with counsel.

{¶7} After appellant again discussed the plea offer,

counsel informed the trial court that appellant wished to reject

the state’s offer. Attorney Banks also asked the court to allow

him to withdraw as counsel. After the court granted Banks’

3
According to the state, McKee later entered a guilty plea.
SCIOTO, 20CA3934
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motion to withdraw, the court appointed Attorney Gene Meadows to

represent appellant. Subsequently, appellant withdrew his

motion to suppress evidence.

{¶8} The morning of trial, the state filed a motion to

amend the indictment. The state asserted that the indictment

incorrectly recited the trafficking offense in terms of R.C.

2925.03(A)(1), rather than R.C. 2925.03(A)(2). The prosecutor

explained that the amendment did not change the name of the

offense or the penalty, and that the case “always [has] been a

transport, deliver, shipment type of case.”

{¶9} Whitehead’s counsel did not object to the motion to

amend the indictment and agreed that the amendment would not

change Whitehead’s defense strategy. The court asked Whitehead

whether he concurred, and Whitehead responded, “[y]es.”

{¶10} Appellant’s counsel likewise stated that “the case

laws [sic] clear on this.” Appellant’s counsel further stated,

“[w]e can tell by reading the discovery that it was a transport

* * * case.” Appellant also indicated that the amendment would

not change the defense strategy. The trial court thus granted

the state’s motion to amend the indictment to allege a violation

of R.C. 2925.03(A)(2).
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{¶11} At trial, Trooper Lewis testified that around 11:30

p.m. on August 10, 2018, he noticed a black vehicle “tailgating

a lead vehicle.” Lewis followed the vehicle and noticed a

change from the right lane to the left lane and speed at 40

miles per hour in a 55-mile-per-hour zone. At this point, Lewis

stopped the vehicle and asked the driver for identification.

McKee sat in the driver’s seat, appellant who had rented the

vehicle, sat in the front passenger seat, and Whitehead in the

left middle row, directly behind McKee. Lewis learned that all

three occupants are Michigan residents.

{¶12} After Trooper Lewis asked McKee to exit the vehicle,

they walked to the cruiser. Lewis stated that he asked McKee to

exit the vehicle as part of his drug interdiction protocol and

to check on the status of his well-being. Lewis related that,

when a vehicle is traveling 40 miles per hour in a 55-mile-per-

hour zone, “there’s typically a – a problem.” Lewis indicated

he thus instructed McKee to exit the vehicle so Lewis could “try

to figure out what was going on with him.” Lewis explained he

“had planned on placing [McKee] in the back of the cruiser while

[he] checked [McKee’s] driver’s license and just talk[ed] to him

about why he was driving erratically.” Because highway patrol

policy is to conduct pat-down searches of individuals before
SCIOTO, 20CA3934
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placing them in cruisers, Lewis asked McKee if he could conduct

a pat-down search. Lewis indicated that McKee agreed to the

search.

{¶13} As Trooper Lewis started to conduct the pat-down

search, he told McKee to keep his hands out of his pockets.

McKee, however, disobeyed that instruction and “the first thing

[McKee] does is takes his left hand[,] puts it in his pocket and

pulls out something in his – his fist.” Lewis noticed that

McKee’s fist was “balled up.” Lewis asked McKee what he had in

his hand and, rather than answering, McKee “shove[d his hand]

back down the front of his pants.” Lewis then “grab[bed]” McKee

and “put him against the – the rear of the vehicle.” As Lewis

handcuffed McKee, he noticed “a plastic baggie fall[] from his

chest to the ground.” The plastic bag contained “a small amount

of marijuana residue.” At this point, Lewis requested backup

assistance.

{¶14} After Ohio State Highway Patrol Trooper Matt Lloyd

responded to the call for backup, he removed appellant, the

front-seat passenger, patted him down for weapons, and placed

him in the rear of Trooper Lewis’ cruiser with McKee. Then, the

troopers removed Whitehead, patted him down, and placed him in

the rear of Lloyd’s cruiser. Lewis explained that the troopers
SCIOTO, 20CA3934
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removed the occupants because they knew that they would search

the vehicle based upon the discovery of marijuana residue.

{¶15} As Trooper Lewis began to search the vehicle, he also

noticed what appeared to be crack cocaine in the front passenger

seat. A field test confirmed that suspicion and indicated the

substance to be crack cocaine.

{¶16} Trooper Lewis also stated that Trooper Lloyd searched

the area where Whitehead had been seated and noticed that a trim

piece on the driver’s seat backrest appeared to have “been

tampered with.” Lloyd pulled the trim piece “back a little

bit,” and discovered a plastic bag in the back of the driver’s

seat that contained 57 grams of heroin worth around $6,000.

Lewis also testified that 57 grams of heroin is not an amount to

suggest personal use and, instead, “would be considered a

trafficking amount.”

{¶17} During Trooper Lewis’ testimony, the state played a

video of the traffic stop that included the vehicle search and

the conversation between McKee and appellant while seated in the

cruiser. McKee, who was extremely talkative, complained that

the handcuffs hurt his wrists and, as Trooper Lloyd started to

search the area where he found the heroin, McKee began to yell

for the trooper. After the troopers discovered the heroin,
SCIOTO, 20CA3934
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Lewis read appellant and McKee the Miranda warnings. Appellant

asked why they were being arrested and Lewis informed appellant

and McKee that they had discovered heroin in the vehicle.

Appellant and McKee both responded with disbelief. Appellant

claimed he did not know anything about the heroin, that the

vehicle is a rental car, that he is a truck driver, and that the

three occupants intended to visit “some females” in Kentucky.

Lewis agreed with appellant that the vehicle is a rental car,

but pointed out to McKee and appellant that appellant had rented

the vehicle approximately one week earlier. McKee likewise

denied any knowledge about the heroin and expressed surprise

about its discovery in the car. McKee also repeated appellant’s

statements that they intended to visit “some females” and that

appellant is a truck driver.

{¶18} The troopers then removed appellant from the back of

Trooper Lewis’ cruiser and placed Whitehead in the back seat

with McKee. McKee continued to express surprise to Whitehead

that the troopers discovered heroin and he stated he did not

know how heroin ended up in the vehicle. McKee told Whitehead

that they were merely traveling to Kentucky to visit “some

females” and did not understand how they ended up in this

predicament.
SCIOTO, 20CA3934
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{¶19} When the troopers spoke with Whitehead, he also

claimed that he knew nothing about the heroin in the back of the

driver’s seat, even though the heroin had been stuffed inside

the seat-back directly in front of him.

{¶20} During appellant’s cross-examination of Trooper Lewis,

counsel asked whether Lewis had performed a “drug test” to see

if appellant had “been using any cocaine.” Lewis stated that he

did not. Counsel also asked Lewis about McKee’s and appellant’s

conduct while seated in the back of the cruiser and whether

McKee was the individual who was “fidgeting, jumping around,

[and] yelling.” Lewis responded affirmatively. Counsel then

questioned whether appellant was “sitting there quiet,” and

Lewis stated: “I wouldn’t necessarily say quiet. Every time he

spoke he covered his mouth or whispered.” The trooper

continued: “[E]very time he speaks he takes his shirt and covers

up his mouth or would whisper.”

{¶21} Counsel next asked Trooper Lewis about appellant’s

response after he learned they found heroin in the vehicle and

whether appellant told Lewis that appellant is a truck driver.

Lewis stated that appellant mentioned earlier that he is a truck

driver and that “[p]retty much throughout the whole stop someone

had mentioned that he was a truck driver.”
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{¶22} On redirect, the prosecutor asked Lewis whether

appellant “offer[ed] to take a drug test for you,” and Lewis

responded that appellant did not. Appellant’s counsel then

objected and the trial court overruled the objection. The

prosecutor followed up on appellant’s counsel’s questions

regarding appellant’s statement that he is a truck driver and,

after the prosecutor asked Lewis whether appellant provided any

information about his employer, appellant’s counsel again

objected. The court overruled the objection and explained,

“[y]ou asked the question on cross. I’m going to let [the

prosecutor] follow up with it.”

{¶23} Next, Trooper Lloyd testified that he observed a gap

in the back of the driver’s seat that “easily pull[ed] back,”

and inside he discovered a plastic bag that contained heroin.

{¶24} The state also presented the testimony of Josie

Keating, a rental car agency representative who rented the

vehicle to Smith. Keating stated that the rental car would have

undergone an inspection before appellant took possession, and if

the vehicle had any damage, it would have been noted on the

inspection report. Keating testified that appellant’s

inspection report indicated “no damage documented.” Keating

also explained that appellant rented the vehicle on July 31,
SCIOTO, 20CA3934
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2018, was scheduled for return on August 8, but appellant did

not return the vehicle until August 25. Also, during the time

that appellant had the rental vehicle the mileage increased by

4,412 miles.

{¶25} After Keating’s testimony, the state called to the

witness stand Scioto County Sheriff’s Captain James Carter.

Before Carter took the stand, however, appellant’s counsel

objected to Carter’s expected testimony. Appellant pointed out

that the state intended to ask Carter about appellant’s recorded

jailhouse telephone conversations. During those calls,

appellant indicated he was not employed at the time Trooper

Lewis stopped the vehicle, and that he had not been traveling to

see “some females” in Kentucky. Appellant’s counsel asserted

that appellant’s statements about not being employed and his

destination on the night of the traffic stop involved “other

acts and they have nothing to do with the charges that he’s

facing here.” Counsel stated that, unless appellant chose to

testify, the recorded phone calls should be inadmissible. The

prosecutor argued, however, that the statements are admissible

under Evid.R. 801(D)(2). Appellant’s counsel then countered

that, even if the statements are relevant, the probative value

of the statements does not outweigh their prejudicial effect.
SCIOTO, 20CA3934
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{¶26} After consideration, the trial court overruled

appellant’s objection. The court noted that the state presented

evidence that appellant had stated he is a truck driver and that

he intended to visit “some females.” The court concluded that

the phone calls should be admissible as appellant’s own

statements and informed the parties that it would give the jury

a limiting instruction.

{¶27} Captain Carter testified he oversees jail operations,

including telephone calls, and that he obtained recordings of

two calls appellant made while in jail. The state played

portions of each call at trial and, during the first call,

appellant spoke with his grandfather who stated that he had

spoken with appellant’s lawyer and, when asked if appellant had

a job, grandfather told the lawyer that appellant did not.

Appellant stated in response that when he returned home he did

plan to apply for a job “do[ing] a line haul for Chrysler.”

{¶28} During the second call, appellant spoke with an

individual he referred to as “cuz.” Appellant informed the

individual that he had been arrested and was being held in

Portsmouth. Appellant stated that when Trooper Lewis “pulled my

man over who was driving,” appellant “was coming down to your

crib.” After Captain Carter’s testimony, the state rested.
SCIOTO, 20CA3934
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{¶29} At this juncture, appellant and Whitehead moved for

Crim.R. 29(A) judgments of acquittal and asserted that the state

failed to present sufficient evidence to show that they knew

about the heroin in the vehicle or that they constructively

possessed the heroin. The trial court overruled the motions.

{¶30} On October 8, 2020, the jury found appellant guilty of

trafficking and possessing heroin, both in an amount equal to or

exceeding 50 grams. The jury also found appellant guilty of

possessing criminal tools.

{¶31} On October 30, 2020, after the trial court merged the

possession and trafficking counts, the court sentenced appellant

to serve eight years in prison for trafficking in heroin. The

court also sentenced appellant to serve 180 days in jail for the

possessing criminal tools, but ordered it be served concurrently

with his prison sentence. This appeal followed.

I

{¶32} In his first assignment of error, appellant asserts

that the trial court erred by admitting Trooper Lewis’

statements that the troopers found cocaine residue on the

passenger seat where appellant had been sitting and that they

had also discovered marijuana residue. Within his first

assignment of error, appellant also argues that to allow the
SCIOTO, 20CA3934
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state to fault appellant for the failure to produce proof he is

employed as a truck driver and for the failure to offer to take

a drug test violated his Fifth Amendment right against self-

incrimination. Appellant further claims that to allow into

evidence his recorded jailhouse telephone conversations violated

his Fifth Amendment right.

{¶33} “‘The admission or exclusion of relevant evidence

rests within the sound discretion of the trial court.’” State

v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 91,

quoting State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987),

paragraph two of the syllabus. Consequently, “a reviewing court

should not disturb evidentiary decisions in the absence of an

abuse of discretion that created material prejudice.” State v.

Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶

14, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266,

900 N.E.2d 565, ¶ 66; accord State v. Adams, 144 Ohio St.3d 429,

2015-Ohio-3954, 45 N.E.3d 127, ¶ 198, citing State v. Sage, 31

Ohio St.3d 173, 182, 510 N.E.2d 343 (1987). “An abuse of

discretion is more than a mere error of law or judgment.” State

v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096,

¶ 91; accord State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-

4903, 45 N.E.3d 208, ¶ 75. Instead, “‘[a] trial court abuses
SCIOTO, 20CA3934
16

its discretion when it makes a decision that is unreasonable,

unconscionable, or arbitrary.’” State v. Keenan, 143 Ohio St.3d

397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, quoting State v.

Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶

34. An abuse of discretion includes a situation in which a

trial court did not engage in a “‘sound reasoning process.’”

State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d

528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community

Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d

597 (1990). Moreover, “[a]buse-of-discretion review is

deferential and does not permit an appellate court to simply

substitute its judgment for that of the trial court.” Darmond

at ¶ 34.

{¶34} As a general rule, all relevant evidence is

admissible. Evid.R. 402. Evid.R. 401 defines relevant evidence

as “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence.” Evid.R. 401 and Evid.R. 402. A trial court must,

however, exclude relevant evidence “if its probative value is

substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.” Evid.R.
SCIOTO, 20CA3934
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403. A trial court has broad discretion to determine whether to

exclude evidence under Evid.R. 403(A), and “‘an appellate court

should not interfere absent a clear abuse of that discretion.’”

State v. Yarbrough, 95 Ohio St.3d 227, 2002–Ohio–2126, 767

N.E.2d 216, ¶ 40.

{¶35} Evid.R. 403(A) “manifests a definite bias in favor of

the admission of relevant evidence, as the dangers associated

with the potentially inflammatory nature of the evidence must

substantially outweigh its probative value before the court

should reject its admission.” State v. White, 4th Dist. Scioto

No. 03CA2926, 2004–Ohio–6005, ¶ 50. Thus, “[w]hen determining

whether the relevance of evidence is outweighed by its

prejudicial effects, the evidence is viewed in a light most

favorable to the proponent, maximizing its probative value and

minimizing any prejudicial effect to the party opposing

admission.” State v. Lakes, 2nd Dist. Montgomery No. 21490,

2007–Ohio–325, ¶ 22.

{¶36} We also recognize that, to some degree, all relevant

evidence may be prejudicial in the sense that it “tends to

disprove a party’s rendition of the facts” and, thus,

“necessarily harms that party’s case.” State v. Crotts, 104

Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23. Evid.R.
SCIOTO, 20CA3934
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403(A) does not, however, “attempt to bar all prejudicial

evidence.” Id. Instead, the rules provide that only unfairly

prejudicial evidence is excludable. Id. “‘Evid.R. 403(A)

speaks in terms of unfair prejudice. Logically, all evidence

presented by a prosecutor is prejudicial, but not all evidence

unfairly prejudices a defendant. It is only the latter that

Evid.R. 403 prohibits.’” State v. Skatzes, 104 Ohio St.3d 195,

2004–Ohio–6391, 819 N.E.2d 215, ¶ 107, quoting State v. Wright,

48 Ohio St.3d 5, 8, 548 N.E.2d 923 (1990). “‘Unfair prejudice’

does “not mean the damage to a defendant’s case that results

from the legitimate probative force of the evidence; rather it

refers to evidence which tends to suggest decision on an

improper basis.”’” State v. Lang, 129 Ohio St.3d 512, 2011–

Ohio–4215, 954 N.E.2d 596, ¶ 89, quoting United States v. Bonds,

12 F.3d 540 (6th Cir.1993). Unfairly prejudicial evidence is

evidence that “might result in an improper basis for a jury

decision.” Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169,

172, 743 N.E.2d 890 (2001), quoting Weissenberger’s Ohio

Evidence (2000) 85–87, Section 403.3. It is evidence that

arouses the jury’s emotions, that “‘evokes a sense of horror,’”

or that “‘appeals to an instinct to punish.’” Id. “‘Usually,

although not always, unfairly prejudicial evidence appeals to
SCIOTO, 20CA3934
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the jury’s emotions rather than intellect.’” Id. Thus,

“[u]nfavorable evidence is not equivalent to unfairly

prejudicial evidence.” State v. Bowman, 144 Ohio App.3d 179,

185, 759 N.E.2d 856 (12th Dist.2001).

{¶37} In the case sub judice, we do not believe that the

trial court abused its discretion by allowing the state to

introduce evidence that, during the traffic stop, the troopers

discovered marijuana and cocaine residue. First, when Trooper

Lewis initially mentioned during his testimony that he

discovered marijuana residue inside the plastic baggie that

McKee dropped, appellant did not object. Appellant also did not

object the next time Lewis mentioned the marijuana residue.

Appellant did object when the prosecutor attempted to ask Lewis

whether anyone later admitted that the bag contained marijuana.

Appellant did assert that, because none of the individuals had

been charged with a marijuana-related offense, the evidence was

irrelevant. The trial court, however, overruled the objection.

{¶38} Here, because appellant did not object to Trooper

Lewis’ initial statements regarding the discovery of marijuana

residue, appellant did not properly preserve any error

concerning this testimony. Moreover, we do not believe that any

error that the trial court arguably made constitutes plain
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error. Thus, we disagree with appellant that the trial court

erred by allowing this testimony.

{¶39} Next, we do not believe the trial court’s decision to

permit Trooper Lewis to testify that he found cocaine residue on

the seat where appellant had been sitting constitutes an abuse

of discretion. Even if the evidence was prejudicial, it is not

so unfairly prejudicial that the jury decided the case on an

improper basis. Instead, as we explain in our discussion of

appellant’s second assignment of error, the state presented

ample evidence to support appellant’s convictions.

{¶40} We also do not believe that the trial court’s decision

to allow the state to ask Trooper Lewis questions on redirect to

counter appellant’s cross-examination constitutes an abuse of

discretion. During cross-examination, appellant’s counsel asked

Lewis whether appellant had stated that he is a truck driver and

whether Lewis asked appellant to take a drug test to see if

appellant had been using cocaine. “Once defense counsel posed

the question[s] * * *, he opened the door to further questioning

on that issue.” Portsmouth v. Wrage, 4th Dist. Scioto No.

08CA3237, 2009-Ohio-3390, ¶ 34. Appellant may not, therefore,

complain on appeal that the trial court erred by allowing the

state to raise those issues during Lewis’ redirect examination.
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Id., citing State v. Diar, 120 Ohio St.3d 460, 2008–Ohio–6266,

900 N.E.2d 565, ¶ 74.

{¶41} Additionally, appellant challenges the testimony that

appellant “whispered when he spoke or covered his mouth.” We

point out, however, that appellant’s counsel elicited this

testimony during Trooper Lewis’ cross-examination. Thus,

appellant invited any error that may have occurred. E.g., State

v. Hare, 2018-Ohio-765, 108 N.E.3d 172, ¶ 45 (2d Dist.)

(invited-error doctrine applies when defense counsel elicits

allegedly improper testimony on cross-examination). The

invited-error doctrine precludes a litigant from “‘tak[ing]

advantage of an error which [the litigant] invited or induced.’”

State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d

616, ¶ 279, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor

Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502 N.E.2d 590

(1986), paragraph one of the syllabus. Consequently, appellant

cannot now challenge the testimony as improperly admitted.

{¶42} Appellant further contends that the trial court erred

by allowing the state to admit into evidence his jailhouse phone

calls. Although appellant appears to assert that the statements

should be deemed inadmissible because “he did not make

statements to the troopers,” he does not specifically explain
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the meaning of this assertion. Moreover, we observe that

appellant and McKee both repeated that appellant is a truck

driver and that they intended to visit “some females” in

Kentucky. Thus, appellant’s statements in the jailhouse calls

are relevant to show that appellant was less than truthful

during the traffic stop. Also, Evid.R. 801(D)(2)(a) explicitly

allows statements offered against a party if the statement is

“the party’s own statement, in either an individual or a

representative capacity.” In the case sub judice, appellant

made these statements and Evid.R. 801(D)(2)(a) allows the state

to introduce the statements into evidence.

{¶43} Appellant also contends that admitting into evidence

his jailhouse phone calls and allowing testimony regarding his

demeanor during the traffic stop violated his Fifth Amendment

right against self-incrimination.4 However, numerous Ohio courts

have determined that a defendant’s demeanor, conduct, and

statements that surround a criminal act are relevant to show a

defendant’s consciousness of guilt. State v. Johnson, 144 Ohio

St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 72 (a defendant’s

statements, “like other conduct following the completion of a

4
The Fifth Amendment to the United States Constitution
provides that no person “shall be compelled in any criminal case
to be a witness against himself.”
SCIOTO, 20CA3934
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crime, may be relevant evidence of consciousness of guilt”);

State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d

596, ¶ 126 (defendant’s “conduct and comments after the murders

were relevant in reflecting his consciousness of guilt”); State

v. Williams, 79 Ohio St.3d 1, 11, 679 N.E.2d 646 (1997) (“It is

today universally conceded that the fact of an accused’s flight,

escape from custody, resistance to arrest, concealment,

assumption of a false name, and related conduct, are admissible

as evidence of consciousness of guilt, and thus of guilt

itself.”); State v. A.W.M., 10th Dist. Franklin No. 18AP-523,

2020-Ohio-4707, ¶ 61 (“a prosecutor ‘may comment’ on matters

such as a defendant’s demeanor”); State v. Hill, 2018-Ohio-4800,

125 N.E.3d 158, ¶ 54 (11th Dist.), quoting State v. Thompson,

10th Dist. Franklin No. 05AP-1268, 2006-Ohio-3440, ¶ 21

(“exculpatory statements, ‘when shown to be false or misleading,

are circumstantial evidence of guilty consciousness and have

independent probative value’”); see generally Wilson v. United

States, 162 U.S. 613, 620-621, 16 S.Ct. 895, 40 L.Ed. 1090

(1896) (“if the jury were satisfied, from the evidence, that

false statements in the case were made by defendant * * *, they

had the right * * * to regard false statements in explanation or
SCIOTO, 20CA3934
24

defense, made or procured to be made, as in themselves tending

to show guilt”).

{¶44} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II

{¶45} In his second assignment of error, appellant asserts

that his convictions are against the manifest weight of the

evidence and that sufficient evidence does not support his

convictions. Appellant contends that the state did not present

any evidence to prove that he knowingly possessed or trafficked

in the heroin found in the vehicle. Appellant argues that the

evidence adduced at trial shows that he was merely present in

the vehicle and lacked any knowledge about the heroin hidden in

the driver’s seat.

A

{¶46} Initially, we observe that “sufficiency” and “manifest

weight” present two distinct legal concepts. Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶

23 (“sufficiency of the evidence is quantitatively and

qualitatively different from the weight of the evidence”); State

v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997),

syllabus. A claim of insufficient evidence invokes a due process
SCIOTO, 20CA3934
25

concern and raises the question whether the evidence is legally

sufficient to support the verdict as a matter of law.

Thompkins, 78 Ohio St.3d at 386. When reviewing the sufficiency

of the evidence, our 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. Id. at 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, 61

L.Ed.2d 560 (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, 78 Ohio St.3d at 390 (Cook,

J., concurring).

{¶47} 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
SCIOTO, 20CA3934
26

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).

{¶48} “Although a court of appeals may determine that a

judgment of a trial court is sustained by sufficient evidence,

that court may nevertheless conclude that the judgment is

against the weight of the evidence.” Thompkins, 78 Ohio St.3d

at 387. “The question to be answered when a manifest-weight

issue is raised is whether ‘there is substantial evidence upon

which a jury could reasonably conclude that all the elements

have been proved beyond a reasonable doubt.’” State v. Leonard,

104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81, quoting

State v. Getsy, 84 Ohio St.3d 180, 193–194, 702 N.E.2d 866

(1998), citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132

(1978), syllabus. A court that is considering a manifest-weight

challenge must “‘review the entire record, weigh the evidence

and all reasonable inferences, and consider the credibility of

witnesses.’” State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-

493, 108 N.E.3d 1028, ¶ 208, quoting State v. McKelton, 148 Ohio
SCIOTO, 20CA3934
27

St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 328. The reviewing

court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa, 93

Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th

Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “‘Because the

trier of fact sees and hears the witnesses and is particularly

competent to decide “whether, and to what extent, to credit the

testimony of particular witnesses,” we must afford substantial

deference to its determinations of credibility.’” Barberton v.

Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20,

quoting State v. Konya, 2d Dist. Montgomery No. 21434, 2006-

Ohio-6312, ¶ 6, quoting State v. Lawson, 2d Dist. Montgomery No.

16288 (Aug. 22, 1997). As the Eastley court explained:

“‘[I]n determining whether the judgment below is
manifestly against the weight of the evidence, every
reasonable intendment must be made in favor of the
judgment and the finding of facts. * * *
If the evidence is susceptible of more than one
construction, the reviewing court is bound to give it
that interpretation which is consistent with the
verdict and judgment, most favorable to sustaining the
verdict and judgment.’”

Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10

Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio

Jurisprudence 3d, Appellate Review, Section 60, at 191–192

(1978). Thus, an appellate court will leave the issues of
SCIOTO, 20CA3934
28

weight and credibility of the evidence to the fact finder, as

long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-

1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No. 07CA2948,

2007- Ohio-6331, ¶ 6 (“We will not intercede as long as the

trier of fact has some factual and rational basis for its

determination of credibility and weight.”).

{¶49} Accordingly, if the prosecution presented substantial

credible evidence upon which the trier of fact reasonably could

conclude, beyond a reasonable doubt, that the essential elements

of the offense had been established, the judgment of conviction

is not against the manifest weight of the evidence. E.g., Eley.

Accord Eastley at ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387,

quoting Black’s Law Dictionary 1594 (6th ed.1990) (a judgment is

not against the manifest weight of the evidence when “‘“the

greater amount of credible evidence”’” supports it). A court

may reverse a judgment of conviction only if it appears that the

fact-finder, when it resolved the conflicts in evidence,

“‘clearly lost its way and created such a manifest miscarriage

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

ordered.’” Thompkins, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983);
SCIOTO, 20CA3934
29

accord McKelton at ¶ 328. A reviewing court should find a

conviction against the manifest weight of the evidence only in

the “‘exceptional case in which the evidence weighs heavily

against the conviction.’” Thompkins, 78 Ohio St.3d at 387,

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717; accord

State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d

1, ¶ 166; State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d

995 (2000).

{¶50} We also observe that, when an appellate court

concludes that the weight of the evidence supports a defendant’s

conviction, this conclusion necessarily includes a finding that

sufficient evidence supports the conviction. E.g., State v.

Waller, 4th Dist. Adams No. 17CA1044, 2018-Ohio-2014, ¶ 30.

Thus, a determination that the weight of the evidence supports a

conviction is also dispositive of the issue of sufficiency. Id.

B

{¶51} Initially, we observe that, although the trial court

found appellant guilty of trafficking and possessing heroin, the

trial court merged the possession offense with the trafficking

offense. Thus, if sufficient evidence supports appellant’s

trafficking conviction, and if the conviction is not against the

manifest weight of the evidence, an erroneous verdict on the
SCIOTO, 20CA3934
30

merged count would be harmless. State v. Worley, 164 Ohio St.3d

589, 2021-Ohio-2207, 174 N.E.3d 754, ¶ 73; State v. Powell, 49

Ohio St.3d 255, 263, 552 N.E.2d 191 (1990); State v. Campbell,

4th Dist. Vinton No. 20CA723, 2021-Ohio-2482, ¶ 46; see State v.

Williams, 4th Dist. Scioto No. 11CA3408, 2012-Ohio-4693, ¶ 54

(because a trial court does not impose a sentence for merged

offenses, a defendant is not “convicted” of merged offenses and

thus there is no “conviction” on merged offenses for appellate

court to vacate). Consequently, if we determine that sufficient

evidence supports appellant’s trafficking conviction and that

conviction is also not against the manifest weight of the

evidence, we need not address appellant’s arguments regarding

the possession offense.

{¶52} R.C. 2925.03(A)(2)5 sets forth the essential elements

of trafficking in drugs:

No person shall knowingly
* * *

5
The trial court’s sentencing entry and the verdict form do
not conform to the trial court’s oral decision to amend the
indictment to charge a violation of R.C. 2925.03(A)(2).
Instead, the court’s entry and the verdict forms recite R.C.
2925.03(A)(1). None of the parties pointed out the discrepancy
during the trial. The court did, however, instruct the jury in
accordance with R.C. 2925.03(A)(2). Under these circumstances,
we believe that the trial court committed a clerical error that
it may correct at any time.
SCIOTO, 20CA3934
31

(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.

Additionally, R.C. 2923.03(A)(2), Ohio’s complicity statute

provides, in relevant part, that “[n]o person, acting with the

kind of culpability required for the commission of an offense,

shall * * * [a]id or abet another in committing the offense.”

“[T]o aid or abet is ‘”[t]o assist or facilitate the commission

of a crime, or to promote its accomplishment.”’” State v.

McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶

27, quoting State v. Johnson, 93 Ohio St.3d 240,243, 754 N.E.2d

796 (2001), quoting Black’s Law Dictionary 69 (7th Ed.1999).

{¶53} A conviction for aiding and abetting under R.C.

2923.03(A)(2) requires the state to prove, beyond a reasonable

doubt, “that the defendant supported, assisted, encouraged,

cooperated with, advised, or incited the principal in the

commission of the crime, and that the defendant shared the

criminal intent of the principal.” Johnson at syllabus.

“‘Participation in criminal intent may be inferred from

presence, companionship and conduct before and after the offense

is committed.’” Id. at 245, quoting State v. Pruett, 28 Ohio
SCIOTO, 20CA3934
32

App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). However, “‘the

mere presence of an accused at the scene of a crime is not

sufficient to prove, in and of itself, that the accused was an

aider and abettor.’” Id. at 243, quoting State v. Widner, 69

Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). “This rule is to

protect innocent bystanders who have no connection to the crime

other than simply being present at the time of its commission.”

Id.

{¶54} We further observe that the complicity statute does

not require the state to charge the defendant with complicity.

Instead, R.C. 2923.03(F) allows the state to charge the

defendant as a principal offender: “[a] charge of complicity may

be stated in terms of [the complicity statute], or in terms of

the principal offense.” R.C. 2923.03(F).

{¶55} In the case sub judice, the state charged appellant in

terms of the principal offense. At trial, the state asserted

that appellant also is guilty as an aider and abettor, and the

trial court gave the jury the complicity instructions. We

therefore will review whether the state presented sufficient

evidence to establish either that (1) appellant aided and

abetted the principal offender in trafficking in heroin, or (2)

appellant trafficked in heroin as a principal offender.
SCIOTO, 20CA3934
33

{¶56} As we noted above, a complicity conviction requires

the state to prove “the defendant supported, assisted,

encouraged, cooperated with, advised, or incited the principal

in the commission of the crime, and that the defendant shared

the criminal intent of the principal.” Johnson at syllabus.

R.C. 2925.03(A)(2) requires that an offender act knowingly in

committing the offense. Therefore, a complicity to trafficking

in drugs conviction requires the state to demonstrate that the

defendant knowingly “supported, assisted, encouraged, cooperated

with, advised, or incited the principal in the commission of the

crime.” Id.

{¶57} R.C. 2901.22(B) defines 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 a 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.

{¶58} We observe that “‘[t]he intent of an accused person

dwells in his mind’” and that intent “‘can never be proved by

the direct testimony of a third person.’” State v. Johnson, 56

Ohio St.2d 35, 38, 381 N.E.2d 637 (1978), quoting State v.
SCIOTO, 20CA3934
34

Huffman, 131 Ohio St. 27, 1 N.E.2d 313 (1936), paragraph four of

the syllabus. Rather, intent “‘must be gathered from the

surrounding facts and circumstances under proper instructions

from the court.’” Id., quoting Huffman, paragraph four of the

syllabus; e.g., State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-

791, 842 N.E.2d 996, ¶ 143; State v. Garner, 74 Ohio St.3d 49,

60, 656 N.E.2d 623 (1995). We further observe that “[i]ntention

is a question of fact, and not one of law.” Koenig v. State,

121 Ohio St. 147, 151, 167 N.E. 385 (1929); State v. Wamsley,

6th Dist. Butler No. CA2002-05-109, 2003-Ohio-1872, ¶ 18.

{¶59} To sustain an R.C. 2925.03(A)(2) trafficking

conviction as a principal offender, the state must prove that a

defendant had control over, i.e., possessed, the illegal

substance. State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d

181, 2008–Ohio–1625, ¶ 30, quoting R.C. 2925.01(K) (in order to

ship, transport, deliver, distribute, etc., “the offender must

‘hav[e] control over’” the illegal substance); see State v.

Floyd, 7th Dist. No. 18 MA 0106, 2019-Ohio-4878, ¶ 21 (R.C.

2925.03(A)(2) requires “possession of the controlled substance,

either constructive or actual”).

{¶60} “Possession” is generally defined as “having control

over a thing or substance, but may not be inferred solely from
SCIOTO, 20CA3934
35

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). Whether a person knowingly possessed

a controlled substance “is to be determined from all the

attendant facts and circumstances available.” State v. Teamer,

82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998).

{¶61} “Possession * * * may be individual or joint, actual

or constructive.” State v. Wolery, 46 Ohio St.2d 316, 332, 348

N.E.2d 351 (1976); State v. Fry, 4th Dist. Jackson No. 03CA26,

2004-Ohio-5747, ¶ 39. “‘Actual possession exists when the

circumstances indicate that an individual has or had an item

within his immediate physical possession.’” State v. Kingsland,

177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶ 13 (4th

Dist.), quoting Fry at ¶ 39. “Constructive possession exists

when an individual knowingly exercises dominion and control over

an object, even though that object may not be within his

immediate physical possession.” State v. Hankerson, 70 Ohio

St.2d 87, 434 N.E.2d 1362 (1982), syllabus; State v. Brown, 4th

Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19. For constructive

possession to exist, the state must show that the defendant was

conscious of the object’s presence. Hankerson, 70 Ohio St.2d at

91; Kingsland at ¶ 13; accord State v. Huckleberry, 4th Dist.
SCIOTO, 20CA3934
36

Scioto No. 07CA3142, 2008-Ohio-1007, ¶ 34; State v. Harrington,

4th Dist. Scioto No. 05CA3038, 2006-Ohio-4388, ¶ 15.

{¶62} Both dominion and control, and whether a person was

conscious of the object’s presence, may be established through

circumstantial evidence. E.g., Brown at ¶ 19; see, e.g., State

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

one of the syllabus (“[c]ircumstantial evidence and direct

evidence inherently possess the same probative value”).

“Circumstantial evidence is defined as ‘[t]estimony not based on

actual personal knowledge or observation of the facts in

controversy, but of other facts from which deductions are drawn,

showing indirectly the facts sought to be proved. * * * ’ ”

State v. Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988),

quoting Black’s Law Dictionary 221 (5 Ed.1979).

{¶63} Furthermore, to establish constructive possession, the

state need not show that the defendant had “[e]xclusive control”

over the contraband. State v. Tyler, 8th Dist. Cuyahoga No.

99402, 2013-Ohio-5242, ¶ 24, citing State v. Howard, 8th Dist.

Cuyahoga No. 85034, 2005-Ohio-4007, ¶ 15, citing In re Farr,

10th Dist. Franklin No. 93AP-201, 1993 WL 464632, *6 (Nov. 9,

1993) (nothing in R.C. 2925.11 or 2925.01 “states that illegal

drugs must be in the sole or exclusive possession of the accused
SCIOTO, 20CA3934
37

at the time of the offense”). Instead, “‘[a]ll that is required

for constructive possession is some measure of dominion or

control over the drugs in question, beyond mere access to

them.’” Howard at ¶ 15, quoting Farr at *6. Thus, simply

because others may have access in addition to the defendant does

not mean that the defendant “could not exercise dominion or

control over the drugs.” Tyler at ¶ 24; accord State v. Walker,

10th Dist. Franklin No. 14AP-905, 2016-Ohio-3185, ¶ 75. We

further note that multiple persons may have joint constructive

possession of an object. State v. Philpott, 8th Dist. Cuyahoga

Nos. 109173, 109174, and 109175, 2020-Ohio-5267, ¶ 67; Wolery,

46 Ohio St.2d at 332, 329 (“[p]ossession * * * may be individual

or joint” and “control or dominion may be achieved through the

instrumentality of another”).

{¶64} Moreover, “a factfinder can ‘conclude that a defendant

who exercises dominion and control over an automobile also

exercises dominion and control over illegal drugs found in the

automobile.’” State v. Yakimicki, 10th Dist. Franklin No. 12AP–

894, 2013–Ohio–2663, ¶ 23, quoting State v. Rampey, 5th Dist.

Stark No. 2004CA00102, 2006–Ohio–1383, ¶ 37; accord State v.

Walker, 4th Dist. Athens No. 16CA26, 2017-Ohio-8814, ¶ 27.
SCIOTO, 20CA3934
38

{¶65} In the case sub judice, we believe that the

prosecution adduced sufficient evidence at trial that, if

believed, established that appellant knowingly transported, and

exercised dominion and control over, the heroin found in the

back of the driver’s seat, or that appellant knowingly aided or

abetted the principal offender in committing the offense.

Appellant rented the vehicle, apparently one week before the

troopers discovered the heroin hidden inside the vehicle, and

thus had dominion and control over the vehicle. His dominion

and control permitted an inference that he also had dominion and

control over the heroin discovered inside the vehicle.

Furthermore, the rental car representative stated that rental

vehicles undergo a thorough inspection between rentals and any

vehicle damage would have been noted on appellant’s inspection

report. When appellant rented the vehicle, the inspection did

not document any damage. When the troopers stopped the vehicle,

however, Trooper Lloyd noticed visible damage to the back of the

driver’s seat. From this testimony, the jury could have

reasonably inferred that the damage did not exist when appellant

rented the car and that appellant, having dominion and control

of the vehicle, is responsible for the damage, or that someone

under appellant’s direction is responsible for the damage.
SCIOTO, 20CA3934
39

Likewise, this testimony allowed the jury to reasonably infer

that appellant, or one of his two companions, stuffed the heroin

inside the back of the driver’s seat.

{¶66} The evidence additionally shows that the jury could

have inferred that appellant knew that the vehicle contained

more than 50 grams of heroin. Appellant, who denied knowing

anything about the heroin, also stated that he is a truck driver

and that he and his companions traveled from Michigan to visit

“some females” in Kentucky. The state, however, later played

appellant’s recorded jailhouse phone conversations in which he

stated that (1) he and his two companions had been traveling to

Kentucky when Trooper Lewis stopped the vehicle, and (2) he was

not employed at the time. Both statements tend to show that

appellant had not been truthful and are evidence of

consciousness of guilt.

{¶67} Moreover, the jury watched the video evidence of the

traffic stop, including appellant’s demeanor while seated in the

back of Trooper Lewis’ patrol cruiser. Because Lewis testified

that appellant covered his mouth when he spoke and whispered,

the jury could have reasonably determined that appellant’s

conduct further indicated his guilt. The jury also had the

opportunity to view appellant’s demeanor shortly after the
SCIOTO, 20CA3934
40

troopers revealed that they had discovered heroin in the vehicle

and could have determined that the combination of appellant’s

and McKee’s words and demeanor indicated that they may not be

telling the truth. The jury also could have considered the

evidence and determined that appellant, McKee, and Whitehead

acted in concert to concoct a cover story that Smith is a truck

driver and the three were simply on their way to Kentucky to

visit “some females.”

{¶68} After our review, we believe that when viewed in a

light most favorable to the prosecution, the evidence adduced at

trial supports the conclusion that appellant knowingly

transported heroin, or that he assisted, facilitated, or

supported the principal offender to transport the heroin. Here,

appellant was not simply an innocent bystander who, by mere

happenstance, found himself at a crime scene, but with no

connection to the crime other than being present. Rather, the

evidence established that appellant and his companions traveled

from Michigan in appellant’s rented vehicle that contained a

large amount of heroin concealed in the back of the driver’s

seat. Appellant’s actions, statements and conduct prior, during

and subsequent to the traffic stop established his involvement

and culpability in this criminal enterprise. Once again,
SCIOTO, 20CA3934
41

criminal intent may be inferred from circumstantial evidence,

including presence, companionship and conduct that occurred

before, during and after the commission of a criminal offense.

Furthermore, as we pointed out supra, multiple persons may have

simultaneous joint constructive possession of an object.

{¶69} Therefore, based upon all of the evidence presented at

trial, a rational trier of fact could have found that appellant

knowingly trafficked in heroin or that he knowingly aided and

abetted the principal offender in committing the offense of

trafficking in heroin. Consequently, we believe that the record

contains sufficient evidence to support appellant’s trafficking

conviction.

{¶70} Furthermore, we do not agree with appellant that the

state rested its case upon the discovery of marijuana and

cocaine residue. Instead, as we explained above, the state

presented ample evidence to prove appellant’s guilt for

trafficking in heroin, either as a principal offender or as an

aider and abettor.

{¶71} For similar reasons, we do not believe that the

evidence weighs heavily against appellant’s conviction for

complicity to trafficking in heroin. The state presented ample

circumstantial evidence to show that appellant knowingly
SCIOTO, 20CA3934
42

trafficked in heroin or that he knowingly aided or abetted the

principal offender in committing the offense. The jury

obviously credited the state’s theory of the case and we are

unable to conclude that the jury committed a manifest

miscarriage of justice by convicting appellant.6

{¶72} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

III

{¶73} In his third assignment of error, appellant asserts

that his conviction for possessing criminal tools contradicts

his trafficking and possession convictions. In particular,

appellant argues that because the jury found that appellant did

not intend to use the vehicle to commit a felony offense, “it is

inconceivable that the drugs found concealed in the vehicle

where [sic] knowingly transported or possessed.” Appellant,

however, does not cite any authority to support his argument.

{¶74} Under App.R. 16(A)(7), an appellant’s brief shall

include “[a]n argument containing the contentions of the

appellant with respect to each assignment of error presented for

6
Appellant did not raise a specific argument that his
possessing criminal tools conviction is against the manifest
weight of the evidence, or that sufficient evidence does not
support it. We therefore do not address it.
SCIOTO, 20CA3934
43

review and the reasons in support of the contentions, with

citations to the authorities, statutes, and parts of the record

on which appellant relies.” Appellate courts will not perform

independent research to create an argument for a litigant.

State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19

N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266,

2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring

in part and dissenting in part), quoting Carducci v. Regan, 714

F.2d 171, 177 (D.C. Cir. 1983) (“‘“appellate courts do not sit

as self-directed boards of legal inquiry and research, but

[preside] essentially as arbiters of legal questions presented

and argued by the parties before them”’”); accord State v.

Lykins, 4th Dist. Adams No. 18CA1079, 2019-Ohio-3316, ¶ 57.

“[W]e cannot write a party’s brief, pronounce ourselves

convinced by it, and so rule in the party’s favor. That’s not

how an adversarial system of adjudication works.” Xue Juan Chen

v. Holder, 737 F.3d 1084, 1085 (7th Cir. 2013). In view of

appellant’s lack of authority in support of his position, we

reject his argument that the possessing criminal tools

conviction is inconsistent with his trafficking conviction. See

In re Application of Columbus S. Power Co., 129 Ohio St.3d 271,
SCIOTO, 20CA3934
44

2011-Ohio-2638, 951 N.E.2d 751, ¶ 14 (failure to cite legal

authority or present an argument that a legal authority applies

on these facts and was violated * * * is grounds to reject [a]

claim); Robinette v. Bryant, 4th Dist. Lawrence No. 14CA28,

2015-Ohio-119, ¶ 33 (“It is within our discretion to disregard

any assignment of error that fails to present any citations to

cases or statutes in support.”). We further note that it is

well-established that “‘[t]he several counts of an indictment

containing more than one count are not interdependent and an

inconsistency in a verdict does not arise out of inconsistent

responses to different counts, but only arises out of

inconsistent responses to the same count.’” State v. Ford, 158

Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 347, quoting

State v. Adams, 53 Ohio St.2d 223, 374 N.E.2d 137 (1978),

paragraph two of the syllabus.

{¶75} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error.

IV

{¶76} In his fourth assignment of error, appellant asserts

that he did not receive effective assistance of counsel. In

particular, appellant contends that his trial counsel was

ineffective for (1) withdrawing his motion to suppress evidence,
SCIOTO, 20CA3934
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(2) failing to file a motion for separate trials, and (3)

failing to object to the state’s motion to amend the indictment.

A

{¶77} The Sixth Amendment to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution, provide that

defendants in all criminal proceedings shall have the assistance

of counsel for their defense. The United States Supreme Court

has generally interpreted this provision to mean a criminal

defendant is entitled to the “reasonably effective assistance”

of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); accord Hinton v. Alabama, 571 U.S.

263, 272, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (the Sixth

Amendment right to counsel means “that defendants are entitled

to be represented by an attorney who meets at least a minimal

standard of competence”).

{¶78} To establish constitutionally ineffective assistance

of counsel, a defendant must show that (1) his counsel’s

performance was deficient and (2) the deficient performance

prejudiced the defense and deprived the defendant of a fair

trial. E.g., Strickland, 466 U.S. at 687; State v. Myers, 154

Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v.

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶
SCIOTO, 20CA3934
46

85. “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, 721 N.E.2d 52 (2000) (a defendant’s failure to satisfy

one of the ineffective-assistance-of-counsel elements “negates a

court's need to consider the other”).

{¶79} The deficient performance part of an ineffectiveness

claim “is necessarily linked to the practice and expectations of

the legal community: ‘The proper measure of attorney performance

remains simply reasonableness under prevailing professional

norms.’” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct.

1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466 U.S. at

688; accord Hinton, 571 U.S. at 273. Prevailing professional

norms dictate that “a lawyer must have ‘full authority to manage

the conduct of the trial.’” State v. Pasqualone, 121 Ohio St.3d

186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 24, quoting Taylor v.

Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798

(1988).

{¶80} Furthermore, “‘[i]n any case presenting an

ineffectiveness claim, “the performance inquiry must be whether

counsel’s assistance was reasonable considering all the
SCIOTO, 20CA3934
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circumstances.”’” Hinton, 571 U.S. at 273, quoting Strickland,

466 U.S. at 688. Accordingly, “[i]n order to show deficient

performance, the defendant must prove that counsel’s performance

fell below an objective level of reasonable representation.”

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

810, ¶ 95 (citations omitted).

{¶81} Moreover, 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, 466 U.S. at 689. Thus, “the defendant must overcome

the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id.

Additionally, “[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 counsel failed to function “as the ‘counsel’

guaranteed * * * by the Sixth Amendment.” Strickland, 466 U.S.

at 687; e.g., State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
SCIOTO, 20CA3934
48

6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153,

156, 524 N.E.2d 476 (1988).

{¶82} To establish prejudice, a defendant must demonstrate

that a reasonable probability exists that “‘but for counsel’s

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to

undermine the outcome.’” Hinton, 571 U.S. at 275, quoting

Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio

St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph

three of the syllabus; accord State v. Spaulding, 151 Ohio St.3d

378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 91 (prejudice component

requires a “but for” analysis). “‘[T]he question is whether

there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.’”

Hinton, 571 U.S. at 275, quoting Strickland, 466 U.S. at 695.

Furthermore, courts ordinarily may not simply presume the

existence of prejudice but, instead, must require a defendant to

affirmatively establish prejudice. State v. Clark, 4th Dist.

Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th

Dist. Ross No. 01CA2592 (Apr. 2, 2002); see generally Roe v.

Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d
SCIOTO, 20CA3934
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985 (2008) (prejudice may be presumed in limited contexts, none

of which are relevant here).

{¶83} As we have repeatedly recognized, speculation is

insufficient to establish the prejudice component of an

ineffective assistance of counsel claim. E.g., State v. Tabor,

4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, ¶ 34; State v.

Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 22;

State v. Simmons, 4th Dist. Highland No. 13CA4, 2013-Ohio-2890,

¶ 25; State v. Halley, 4th Dist. Gallia No. 10CA13, 2012-Ohio-

1625, ¶ 25; State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-

Ohio-6191, ¶ 68; accord State v. Powell, 132 Ohio St.3d 233,

2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (argument that is purely

speculative cannot serve as the basis for an ineffectiveness

claim). We further note that counsel’s failure to file a futile

or frivolous motion “‘cannot be the basis for claims of

ineffective assistance of counsel and is not prejudicial.’”

State v. Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109, ¶

12, quoting State v. Witherspoon, 8th Dist. Cuyahoga No. 94475,

2011-Ohio-704, ¶ 33.

B

{¶84} Appellant first argues that trial counsel performed

ineffectively by withdrawing his motion to suppress evidence
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because his motion had a reasonable probability of success.

Appellant asserts that Trooper Lewis did not have a lawful basis

to stop or to search the vehicle. Appellant also argues that

the trial court would have suppressed certain statements

appellant made during the traffic stop if counsel had not

withdrawn the motion to suppress evidence. In particular,

appellant alleges that he made statements without proper Miranda

warnings and that they should have been inadmissible.

{¶85} Initially, we point out that trial counsel’s “‘failure

to file a suppression motion does not constitute per se

ineffective assistance of counsel.’” State v. Madrigal, 87 Ohio

St.3d 378, 389, 721 N.E.2d 52 (2000), quoting Kimmelman v.

Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305

(1986); accord State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-

1914, 12 N.E.3d 1112, ¶ 126. “To establish ineffective

assistance of counsel for failure to file a motion to suppress,

a defendant must prove that there was a basis to suppress the

evidence in question.” State v. Brown, 115 Ohio St.3d 55, 2007-

Ohio-4837, 873 N.E.2d 858, ¶ 65, citing State v. Adams, 103 Ohio

St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 35. “‘Where the

record contains no evidence which would justify the filing of a

motion to suppress, the appellant has not met his burden of
SCIOTO, 20CA3934
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proving that his attorney violated an essential duty by failing

to file the motion.’” State v. Drummond, 111 Ohio St.3d 14,

2006-Ohio-5084, 854 N.E.2d 1038, ¶ 208, quoting State v. Gibson,

69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th Dist.1980). “‘Even

if some evidence in the record supports a motion to suppress,

counsel is still considered effective if counsel could

reasonably have decided that filing a motion to suppress would

have been a futile act.’” State v. Moon, 8th Dist. Cuyahoga No.

101972, 2015-Ohio-1550, ¶ 28, quoting State v. Suarez, 12th

Dist. Warren No. CA2014-02-035, 2015-Ohio-64, ¶ 13; see State v.

Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109, ¶ 12,

quoting State v. Witherspoon, 8th Dist. Cuyahoga No. 94475,

2011-Ohio-704, ¶ 33 (“‘[t]he failure to do a futile act cannot

be the basis for claims of ineffective assistance of counsel and

is not prejudicial’”).

{¶86} In the case at bar, as we explain below, we do not

believe that appellant has shown a valid basis to suppress the

evidence discovered during the traffic stop. Thus, even if some

evidence in the record might support a suppression motion, trial

counsel reasonably could have decided that filing the motion

would have been a futile act. Appellant has not, therefore,
SCIOTO, 20CA3934
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shown that trial counsel violated an essential duty by failing

to file a motion to suppress evidence.

C

{¶87} The Fourth and Fourteenth Amendments to the United

States Constitution, as well as Section 14, Article I of the

Ohio Constitution, protect individuals against unreasonable

governmental searches and seizures. Delaware v. Prouse, 440

U.S. 648, 662, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); State

v. Gullett, 78 Ohio App.3d 138, 143, 604 N.E.2d 176 (1992).

“[S]earches [and seizures] conducted outside the judicial

process, without prior approval by judge or magistrate, are per

se unreasonable under the Fourth Amendment—subject only to a few

specifically established and well-delineated exceptions.” Katz

v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19

L.Ed.2d 576 (1967); State v. Roberts, 110 Ohio St.3d 71, 2006-

Ohio-3665, 850 N.E.2d 1168, ¶ 98.

{¶88} A traffic stop initiated by a law enforcement officer

constitutes a seizure within the meaning of the Fourth

Amendment. Whren v. United States, 517 U.S. 806, 809–810, 116

S.Ct. 1769, 135 L.Ed.2d 89 (1996); Prouse, 440 U.S. at 653.

Thus, a traffic stop must comply with the Fourth Amendment’s

general reasonableness requirement. Id. An officer’s decision
SCIOTO, 20CA3934
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to stop a vehicle is reasonable when the officer has probable

cause or reasonable suspicion to believe that a traffic

violation has occurred. Whren, 517 U.S. at 810 (citations

omitted); accord State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-

4539, 894 N.E.2d 1204, ¶ 23; Dayton v. Erickson, 76 Ohio St.3d

3, 11–12, 665 N.E.2d 1091 (1996). Law enforcement officers also

may stop a vehicle if they have reasonable suspicion “that

criminal activity ‘“may be afoot.”’” United States v. Arvizu,

534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002),

quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581,

104 L.Ed.2d 1 (1989), quoting Terry v. Ohio, 392 U.S. 1, 30, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968); accord State v. Tidwell, 165

Ohio St.3d 57, 2021-Ohio-2072, 175 N.E.3d 527, ¶ 19 (officer may

“make an investigatory stop, including a traffic stop, of a

person if the officer has reasonable suspicion to believe that

the person is or is about to be engaged in criminal activity”).

{¶89} Courts that are reviewing whether an officer had a

reasonable suspicion or probable cause to stop a vehicle must

consider the “totality of circumstances” as “viewed through the

eyes of the reasonable and prudent police officer on the scene

who must react to events as they unfold.” State v. Andrews, 57

Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991). The totality-of-
SCIOTO, 20CA3934
54

the-circumstances approach “allows officers to draw on their own

experience and specialized training to make inferences from and

deductions about the cumulative information available to them

that ‘might well elude an untrained person.’” Arvizu, 534 U.S.

at 273, quoting United States v. Cortez, 449 U.S. 411, 418, 101

S.Ct. 690, 66 L.Ed.2d 621 (1981).

1

{¶90} Appellant first argues that Trooper Lewis did not have

a reasonable suspicion to stop the vehicle.7 Appellant asserts

that the trooper did not articulate any facts to suggest that

the driver of the vehicle committed a traffic violation.

Appellant thus contends that in the absence of a traffic

violation, Lewis lacked any reasonable suspicion to stop the

vehicle.

{¶91} Law enforcement officers need not necessarily observe

a distinct traffic violation in order to conduct an

investigative stop of an automobile. See State v. Hawkins, 158

Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶ 21-24. In

Hawkins, for example, the court held that an officer possessed

7
Passengers in a vehicle, as well as the driver, have
standing to challenge the constitutionality of a traffic stop.
Brendlin v. California, 551 U.S. 249, 259, 127 S.Ct. 2400, 168
L.Ed.2d 132 (2007); State v. Carter, 69 Ohio St.3d 57, 63, 630
N.E.2d 355 (1994).
SCIOTO, 20CA3934
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reasonable suspicion to stop a vehicle when the color of the

vehicle did not match the color listed on the vehicle’s

registration and when the officer stated that, “in his

experience, the color discrepancy could signify that the vehicle

either was stolen or had an illegal license plate.” Id. at ¶

24. The court explained that even though “color discrepancy”

may not be a crime and could have “an innocent explanation,”

this color discrepancy may nevertheless give an officer

reasonable suspicion to believe that criminal activity is afoot.

Id. at ¶ 23. The court reasoned:

To assign noncriminal behavior no weight would
“seriously undercut the ‘totality of the
circumstances’ principle which governs the existence
vel non of ‘reasonable suspicion.’” [Arvizu, 534 U.S.]
at 274-275. Behavior and circumstances that are
noncriminal by nature may “be unremarkable in one
instance * * * while quite unusual in another.” Id.
at 276, 122 S.Ct. 744. An officer is “entitled to
make an assessment of the situation in light of his
specialized training and familiarity with the customs
of the area's inhabitants.” Id.

Id. at ¶ 23. Thus, the totality of the circumstances inquiry

allows officers to consider all of the surrounding circumstances

-– even seemingly innocuous ones -- when determining whether

they have reasonable suspicion to believe that criminal activity

may be afoot. See Arvizu, 534 U.S. at 275-276 (a vehicle’s
SCIOTO, 20CA3934
56

deceleration may give an officer reasonable suspicion to stop a

vehicle depending upon the totality of the circumstances present

in the case).

{¶92} In the case sub judice, Trooper Lewis articulated

several factors to support his belief that criminal activity

might be afoot. First, Lewis noted that the vehicle was a

rental car. The trooper explained that, in his experience,

individuals who transport drugs commonly use rental cars as a

means to avoid detection. Additionally, Lewis observed that the

vehicle (1) failed to maintain a safe distance from the vehicle

traveling in front of it, (2) dropped its speed to 40 miles per

hour while in a 55-mile-per-hour zone, and (3) made an

unexpected lane change. The totality of the circumstances,

therefore, would support a finding that Lewis possessed a

reasonable suspicion that criminal activity may be afoot, and

probable cause to believe that a traffic violation had occurred.

{¶93} Consequently, we do not agree with appellant that

Trooper Lewis lacked a lawful basis to conduct the traffic stop.

Trial counsel thus was not ineffective for failing to file a

motion to suppress evidence on this basis.
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2

{¶94} To the extent appellant contends that trial counsel

performed ineffectively by failing to file a motion to suppress

evidence based upon Trooper Lewis’ pat-down search of McKee,

appellant lacks standing to challenge the search of McKee.

Rakas v. Illinois, 439 U.S. 128, 133–134, 99 S.Ct. 421, 58

L.Ed.2d 387 (1978), quoting Alderman v. United States, 394 U.S.

165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (“‘Fourth

Amendment rights are personal rights which * * * may not be

vicariously asserted’”). Instead, “defendants may only claim

the benefits of the exclusionary rule if their Fourth Amendment

rights have been violated.” State v. Horsley, 4th Dist. Scioto

No. 12CA3473, 2013-Ohio-901, ¶ 16.

{¶95} Consequently, in light of the fact that appellant

lacks standing to challenge the legality of Trooper Lewis’

search of the driver, trial counsel was not ineffective for

failing to file a motion to suppress evidence on this basis.

3

{¶96} Appellant further claims that his suppression motion

would have had a reasonable probability of success because the

troopers did not observe any unlawful activity to permit them to

search the vehicle. We do not agree.
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58

{¶97} When a law enforcement officer has probable cause to

believe that a vehicle contains contraband, the officer may

search a validly stopped motor vehicle based upon the well-

established automobile exception to the warrant requirement.

State v. Moore, 90 Ohio St.3d 47, 51, 734 N.E.2d 804 (2000),

citing Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144

L.Ed.2d 442 (1999); see State v. Lang, 117 Ohio App.3d 29, 36,

689 N.E.2d 994 (1st Dist.1996) (discovery of cocaine in a

vehicle in plain view provided probable cause to search the

remainder of the vehicle for contraband). Furthermore, “Ohio

courts have held that the production of drugs by an occupant of

a vehicle independently provides an officer with additional

probable cause to believe that the vehicle contains evidence of

contraband.” State v. Donaldson, 6th Dist. Wood No. WD-18-034,

2019-Ohio-232, ¶ 29; State v. Young, 12th Dist. Warren No.

CA2011-06-066, 2012-Ohio-3131, ¶ 32-33 (once driver admitted he

possessed marijuana, officers obtained probable cause to search

vehicle).

{¶98} Additionally, courts have held that the observance of

marijuana “residue” or “flakes” will give officers “probable

cause to search the entire vehicle.” State v. Gordon, 5th Dist.

Fairfield No. 14-CA-13, 2014-Ohio- 5027, ¶ 25 (“marijuana flakes
SCIOTO, 20CA3934
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in plain view on [a] driver’s lap”); State v. Stone, 11th Dist.

No.2007–P–0048, 2008–Ohio–2615, ¶ 26, citing United States v.

Moxley, 6th Cir. No. 99–3453, 2000 WL 1234320, *3 (Aug. 23,

2000) (“marijuana residue” found in a vehicle’s interior

“sufficient to establish not just reasonable suspicion, but

probable cause to detain the suspect and to conduct a full

search of his car”). Contra State v. Grubbs, 2017-Ohio-41, 80

N.E.3d 1075, ¶ 39 (6th Dist.) (marijuana flakes on an individual

does not give officer probable cause to search the person).

{¶99} In the case at bar, Trooper Lewis testified that McKee

dropped a plastic baggie that contained marijuana residue. This

discovery gave the troopers probable cause to believe that the

vehicle contained contraband. E.g., Donaldson; Gordon; Young.

Thus, the troopers could properly search the vehicle.

{¶100} Consequently, we do not agree with appellant that

trial counsel performed ineffectively by withdrawing the

suppression motion because counsel reasonably could have

determined that the motion was futile.

4

{¶101} Appellant next argues that trial counsel should have

pursued a claim that some of his statements were obtained in

violation of Miranda.
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{¶102} The Fifth Amendment to the United States Constitution

provides that no person “shall be compelled in any criminal case

to be a witness against himself.” In order to safeguard a

suspect’s Fifth Amendment privilege against self-incrimination,

law enforcement officers that seek to perform a custodial

interrogation must warn the suspect “that he has the right to

remain silent, that anything he says can be used against him in

a court of law, that he has the right to the presence of an

attorney, and that if he cannot afford an attorney one will be

appointed for him prior to any questioning if he so desires.”

Miranda, 384 U.S. at 479. In the absence of these warnings, a

suspect’s incriminatory statements made during a custodial

interrogation are inadmissible at trial. Michigan v. Mosley,

423 U.S. 96, 99–100, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975)

(footnote and citation omitted) (“[U]nless law enforcement

officers give certain specified warnings before questioning a

person in custody, and follow certain specified procedures

during the course of any subsequent interrogation, any statement

made by the person in custody cannot over his objection be

admitted in evidence against him as a defendant at trial, even

though the statement may in fact be wholly voluntary.”);

Miranda, 384 U.S. at 479 (no evidence stemming from result of
SCIOTO, 20CA3934
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custodial interrogation may be used against defendant unless

procedural safeguards employed); State v. Maxwell, 139 Ohio

St.3d 12, 2014–Ohio–1019, 9 N.E.3d 930, ¶ 113 (“the prosecution

may not use statements, whether exculpatory or inculpatory,

stemming from custodial interrogation of the defendant unless it

demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination.”).

{¶103} It is important to recognize that the Miranda rule

does not protect every person who is subjected to police

questioning; rather, the rule protects individuals subjected to

“custodial interrogation.” Miranda defined “custodial

interrogation” as “questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.” 384

U.S. at 444; see also Stansbury v. California, 511 U.S. 318,

322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994); Oregon v.

Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714

(1977) (Miranda protection attaches “only where there has been

such a restriction on a person’s freedom as to render him in

‘custody’ ”). Thus, “the requirement that police officers

administer Miranda warnings applies only when a suspect is
SCIOTO, 20CA3934
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subjected to both custody and interrogation.” State v. Dunn,

131 Ohio St.3d 325, 2012–Ohio–1008, 964 N.E.2d 1037, ¶ 24.

{¶104} “Determining whether questioning is ‘a custodial

interrogation requiring Miranda warnings demands a fact-specific

inquiry that asks whether a reasonable person in the suspect’s

position would have understood himself or herself to be in

custody while being questioned.’” State v. Myers, 154 Ohio

St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 57, quoting

Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d

810, ¶ 21. We observe that the custody determination “depends

on the objective circumstances of the interrogation, not on the

subjective views harbored by either the interrogating officers

or the person being questioned.” State v. Henry, 12th Dist.

Preble No. CA2008-04-006, 2009-Ohio-434, ¶ 13. “[T]he only

relevant inquiry is how a reasonable [person] in the suspect’s

position would have understood [the] situation.” Berkemer v.

McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317

(1984).

{¶105} Moreover, determining whether an individual “has been

‘interrogated,’ * * * focuses on police coercion, and whether

the suspect has been compelled to speak by that coercion.”

State v. Tucker, 81 Ohio St.3d 431, 436, 692 N.E.2d 171 (1998).
SCIOTO, 20CA3934
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An individual may feel compelled to speak not only “by express

questioning, but also * * * by the ‘functional equivalent’ of

express questioning, i.e., ‘any words or actions on the part of

the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.’” Id.,

quoting Rhode Island v. Innis, 446 U.S. 291, 300–301, 100 S.Ct.

1682, 64 L.Ed.2d 297 (1980). Consequently, a suspect who

volunteers information without being asked any questions is not

subject to a custodial interrogation and is not entitled to

Miranda warnings. Id. at 438; State v. McGuire, 80 Ohio St.3d

390, 401, 686 N.E.2d 1112 (1997); accord Miranda, 384 U.S. at

478 (stating that “[v]olunteered statements of any kind are not

barred by the Fifth Amendment and their admissibility is not

affected by our holding today”). “Moreover, there is no

requirement that officers interrupt a suspect in the course of

making a volunteered statement to recite the Miranda warnings.”

Tucker, 81 Ohio St.3d at 438. Moreover, roadside questioning of

a motorist detained pursuant to a routine traffic stop

ordinarily does not constitute “custodial interrogation.”

Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82

L.Ed.2d 317 (1984). If, however, the motorist “thereafter is
SCIOTO, 20CA3934
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subjected to treatment that renders him ‘in custody’ for

practical purposes, he will be entitled to the full panoply of

protections prescribed by Miranda.” Id.; accord State v.

Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985.

{¶106} In the case sub judice, appellant’s brief does not

identify precisely when the Miranda violation allegedly

occurred, or what statements allegedly were obtained in

violation of Miranda. We further note that the record shows

that Trooper Lewis administered Miranda warnings before he

revealed that the troopers had discovered heroin in the vehicle.

At that point, appellant volunteered that he is a truck driver

and that he and his companions were driving to Kentucky to visit

“some females.” Appellant has not, therefore, shown that his

suppression motion had a reasonable probability of success.

{¶107} Consequently, we disagree with appellant that trial

counsel was ineffective for withdrawing the motion to suppress.

D

{¶108} Appellant also asserts that trial counsel was

ineffective for failing to file a motion for separate trials.

Appellant claims that by holding a joint trial, Whitehead and

appellant “both were able to assert their Fifth Amendment rights

against self-incrimination,” and the failure to seek separate
SCIOTO, 20CA3934
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trials deprived appellant of his right to cross-examine

Whitehead.

{¶109} Crim.R. 8(B) specifies that multiple defendants may be

joined in a single indictment “if they are alleged to have

participated in the same act or transaction or in the same

series of acts or transactions constituting an offense or

offenses, or in the same course of criminal conduct.”

{¶110} As a general rule, the law favors joinder of

defendants and the avoidance of multiple trials. E.g., State v.

Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 18.

Joint trials “conserve[] judicial and prosecutorial time,

lessen[] the not inconsiderable expenses of multiple trials,

diminish[] inconvenience to witnesses, and minimize[] the

possibility of incongruous results in successive trials before

different juries.” State v. Thomas, 61 Ohio St.2d 223, 225, 400

N.E.2d 401 (1980); accord Zafiro v. United States, 506 U.S. 534,

537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), quoting Richardson

v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 95 L.Ed.2d 176

(1987) (joint trials “promote efficiency and ‘serve the

interests of justice by avoiding the scandal and inequity of

inconsistent verdicts’”).
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66

{¶111} If, however, joinder prejudices a defendant, Crim.R.

14 gives a trial court discretion to sever the trials. Crim.R.

14 states: “If it appears that a defendant * * * is prejudiced

by a joinder of * * * defendants * * * for trial together * * *,

the court shall * * * grant a severance of defendants, or

provide such other relief as justice requires.”

{¶112} To establish that a trial court’s refusal to sever a

trial constitutes an abuse of discretion, a defendant must

establish that holding combined trials prejudiced the

defendant’s rights. Gordon at ¶ 21; State v. Schaim , 65 Ohio

St.3d 51, 59, 600 N.E.2d 661 (1992). The test is

whether a joint trial is so manifestly prejudicial
that the trial judge is required to exercise his or
her discretion in only one way—by severing the trial.
* * * A defendant must show clear, manifest and undue
prejudice and violation of a substantive right
resulting from failure to sever.

State v. Schiebel, 55 Ohio St.3d 71, 89, 564 N.E.2d 54 (1990),

quoting United States v. Castro, 887 F.2d 988, 996 (9th Cir.

1989. Moreover, a defendant must provide “the trial court with

sufficient information so that it [can] weigh the considerations

favoring joinder against the defendant’s right to a fair trial.”

State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981),

syllabus.
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{¶113} We observe that “defendants are not entitled to

severance merely because they may have a better chance of

acquittal in separate trials.” Zafiro, 506 U.S. at 540.

Additionally, “a trial court does not abuse its discretion in

refusing to grant severance where the prejudicial aspects of

joinder are too general and speculative.” State v. Payne, 10th

Dist. Franklin App. No. 02AP–723, 2003–Ohio–4891.

{¶114} In the case sub judice, appellant did not explain

precisely how being unable to cross-examine Whitehead prejudiced

his defense. Appellant did not identify testimony that he might

have been able to elicit in a separate trial, and whether that

testimony would have led to a different outcome. Here,

appellant can only speculate.

{¶115} Therefore, we do not agree with appellant that trial

counsel performed ineffectively for the failure to file a motion

for separate trials.

E

{¶116} Appellant further asserts that trial counsel was

ineffective for failing to object to the state’s motion to amend

the indictment.

{¶117} First, we note that because appellant specifically

agreed to the amendment, appellant invited any error that may
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have occurred. The invited-error doctrine precludes a litigant

from “‘tak[ing] advantage of an error which [the litigant]

invited or induced.’” State v. Ford, 158 Ohio St.3d 139, 2019-

Ohio-4539, 140 N.E.3d 616, ¶ 279, quoting Hal Artz Lincoln-

Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio

St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus.

The doctrine generally applies “‘when a party has asked the

court to take some action later claimed to be erroneous, or

affirmatively consented to a procedure the trial judge

proposed.’” Id., quoting State v. Campbell, 90 Ohio St.3d 320,

324, 738 N.E.2d 1178 (2000). In the criminal context, the

doctrine prevents a defendant from making “‘an affirmative * * *

decision at trial and then complain[ing] on appeal that the

result of that decision constitutes reversible error.’” State

v. Doss, 8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶ 7,

quoting United States v. Jernigan, 341 F.3d 1273, 1290 (11th

Cir. 2003); accord State v. Brunner, 4th Dist. Scioto No.

18CA3848, 2019-Ohio-3410, ¶ 15.

{¶118} Assuming, arguendo, that appellant had not invited any

error, as we explain below we do not believe that trial counsel

was ineffective for failing to object to the amendment.
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{¶119} Crim.R. 7(D) provides that a court may amend an

indictment “at any time before, during, or after a trial * * *,

provided no change is made in the name or identity of the crime

charged.” Thus, an amendment is “proper when the amendment

[does] not change the penalty or the degree of the offense.”

State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d

609, ¶ 6. Moreover, “[a]s long as the state complies with

Crim.R. 7(D), it may cure a defective indictment by amendment,

even if the original indictment omits an essential element of

the offense with which the defendant is charged.” State v.

Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 15.

{¶120} In the case sub judice, appellant did not argue that

the amendment changed the penalty or the degree of the offense.

Moreover, the record does not support such an argument.

Although the amendment changed the elements of the offense from

“sell or offer” to sell to “ship, transport, or deliver,” the

name of the offense and the penalty remained the same before and

after the amendment. Consequently, trial counsel did not need

to raise a meritless argument. See State v. Maxwell, 139 Ohio

St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 70 (amendment that

simply changes certain element of offense without changing the
SCIOTO, 20CA3934
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name of the offense or the penalty does not constitute an

improper amendment under Crim.R. 7(D)).

F

{¶121} Appellant also claims that counsel’s failures

constitute plain error. However, because that counsel was not

ineffective, appellant’s plain-error argument is without merit.

{¶122} Accordingly, based upon the foregoing reasons, we

overrule appellant’s fourth assignment of error.

V

{¶123} In his fifth assignment of error, appellant asserts

that the trial court erred by sentencing him to serve eight

years in prison. In particular, appellant argues that the trial

court penalized him after he rejected the state’s plea offer and

chose instead to exercise his right to a jury trial.

{¶124} When reviewing felony sentences, appellate courts

apply the standard of review outlined in R.C. 2953.08(G)(2).

State v. Prater, 4th Dist. Adams No. 18CA1069, 2019-Ohio-2745, ¶

12, citing State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-

Ohio-1277, ¶ 13. Under R.C. 2953.08(G)(2), “[t]he appellate

court’s standard for review is not whether the sentencing court

abused its discretion.” Instead, R.C. 2953.08(G)(2) specifies

that an appellate court may increase, reduce, modify, or vacate
SCIOTO, 20CA3934
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and remand a challenged felony sentence if the court clearly and

convincingly finds either:

(a) That the record does not support the
sentencing court’s findings under division (B) or (D)
of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of
the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to
law.

{¶125} A defendant bears the burden to establish, by clear

and convincing evidence, (1) that a sentence is either contrary

to law or (2) that the record does not support the specified

findings under R.C. 2929.13(B), R.C. 2929.13(D), R.C.

2929.14(B)(2)(e), 2929.14(C)(4), or R.C. 2929.20(I). State v.

Behrle, 4th Dist. Adams No. 20CA1110, 2021-Ohio-1386, ¶ 48;

State v. Shankland, 4th Dist. Washington Nos. 18CA11 and 18CA12,

2019-Ohio-404, ¶ 20. “[C]lear and convincing evidence is that

measure or degree of proof which is more than a mere

‘preponderance of the evidence,’ but not to the extent of such

certainty as is required ‘beyond a reasonable doubt’ in criminal

cases, and which will produce in the mind of the trier of facts

a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus.
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{¶126} We additionally observe that “[n]othing in R.C.

2953.08(G)(2) permits an appellate court to independently weigh

the evidence in the record and substitute its judgment for that

of the trial court concerning the sentence that best reflects

compliance with R.C. 2929.11 and 2929.12.” State v. Jones, 163

Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42.

Furthermore, “an appellate court’s determination that the record

does not support a sentence does not equate to a determination

that the sentence is ‘otherwise contrary to law’ as that term is

used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 32. Consequently,

appellate courts cannot review a felony sentence when “the

appellant’s sole contention is that the trial court improperly

considered the factors of R.C. 2929.11 or 2929.12 when

fashioning that sentence.” State v. Stenson, 6th Dist. Lucas

No. L-20-1074, 2021-Ohio-2256, ¶ 9, citing Jones at ¶ 42; accord

State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-

985, ¶ 13 (“In light of Jones, assigning error to the trial

court’s imposition of sentence as contrary to law based solely

on its consideration of R.C. 2929.11 and 2929.12 is no longer

grounds for this court to find reversible error.”); State v.

Loy, 4th Dist. Washington No. 19CA21, 2021-Ohio-403, ¶ 30.
SCIOTO, 20CA3934
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{¶127} In the case sub judice, appellant did not argue that

the record fails to support the specified findings under R.C.

2929.13(B), R.C. 2929.13(D), R.C. 2929.14(B)(2)(e),

2929.14(C)(4), or R.C. 2929.20(I). Instead, he appears to

challenge the trial court’s decision not to impose the shortest

prison term. Appellant contends that he has no criminal record

and that “no aggravating circumstances” exist. R.C.

2953.02(G)(2) does not, however, allow this court to

independently review the record to determine whether the trial

court chose an appropriate sentence. See Jones, supra; State v.

Hughes, 4th Dist. Adams No. 21CA1127, 2021-Ohio-3127, ¶ 41

(“R.C. 2953.08(G)(2) does not give appellate courts broad

authority to review sentences to determine if they are supported

by the record”). We therefore are unable to consider whether

the record supports the trial court’s decision to impose an

eight-year prison term. We may, however, review whether

appellant’s sentence is “contrary to law.”

{¶128} “[A] sentence vindictively imposed on a defendant for

exercising his constitutional right to a jury trial is contrary

to law.” State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80

N.E.3d. 431, ¶ 8, citing State v. O’Dell, 45 Ohio St.3d 140,

147, 543 N.E.2d 1220 (1989), and Bordenkircher v. Hayes, 434
SCIOTO, 20CA3934
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U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (“‘[t]o

punish a person because he has done what the law plainly allows

him to do is a due process violation of the most basic sort * *

*.’”). Thus, a trial court must not act vindictively when it

imposes a sentence upon a defendant who chooses to maintain his

not guilty plea and proceed to trial.

{¶129} We further note “there is not a presumption of

vindictiveness when a defendant rejects a plea bargain and is

subsequently sentenced to a harsher term.” Id. at ¶ 3.

Instead, the defendant must establish that “the judge acted

vindictively.” Id.

{¶130} Appellate courts review vindictive-sentence claims by

beginning “with the presumption that the trial court considered

the appropriate sentencing criteria.” Id. at ¶ 19. Then,

courts “review the entire record—the trial court’s statements,

the evidence adduced at trial, and the information presented

during the sentencing hearing—to determine whether there is

evidence of actual vindictiveness.” Id. A reviewing court

“will reverse the sentence only if [the court] clearly and

convincingly find the sentence is contrary to law because it was

imposed as a result of actual vindictiveness on the part of the
SCIOTO, 20CA3934
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trial court.” Id., citing R.C. 2953.08(G)(2); State v. Taylor,

4th Dist. No. 16CA1028, 2017-Ohio-4395, 93 N.E.3d 1, ¶ 25.

{¶131} In the case sub judice, we do not believe that the

record clearly and convincingly shows that the trial court’s

eight-year prison sentence is a result of actual vindictiveness.

Appellant does not point to any statement in the record or any

other indication to suggest that the court acted vindictively as

a result of appellant’s decision to reject the plea offer and to

proceed to trial. As the Rahab court noted, “there are

legitimate reasons a defendant who rejects a plea may end up

receiving a harsher sentence.” Id. at ¶ 17. The court

explained:

Acceptance of responsibility is an appropriate
sentencing consideration. Moreover, a plea bargain
is, after all, a bargain. In the bargain, the
prosecutor achieves certain benefits: a forgoing of
the risk that the defendant will be found not guilty,
relief from the burden of trying the case and a
concomitant ability to devote prosecutorial resources
to other cases, and limitations on the defendant’s
right to appeal an agreed sentence, see R.C.
2953.08(D)(1). In return, the prosecutor is able to
offer the defendant certain sentencing considerations.
Both sides exchange risk about the outcome for an
enhanced degree of certainty. For the bargain to be
worth anything to the defendant (at least in most
cases), the defendant must have a reasonable
probability of receiving a more lenient sentence than
he would following trial and conviction.

Id. (citation omitted).
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{¶132} We therefore reject appellant’s argument that the

trial court acted vindictively by imposing an eight-year prison

sentence. Instead, the trial court reasonably could have

determined, after hearing all of the evidence presented at

trial, that appellant’s conduct warranted an eight-year prison

term.

{¶133} Appellant also appears to assert that the trial court

erred by imposing an eight-year prison sentence without stating,

on the record or otherwise, that the court considered a

presentence investigation report. We observe, however, that a

presentence investigation report is only required if a trial

court imposes community control. Crim.R. 32.2 states: “Unless

the defendant and the prosecutor in the case agree to waive the

presentence investigation report, the court shall, in felony

cases, order a presentence investigation and report before

imposing community control sanctions or granting probation.”

R.C. 2951.03(A)(1) specifically states that “[n]o person who has

been convicted of or pleaded guilty to a felony shall be placed

under a community control sanction until a written presentence

investigation report has been considered by the court.” Accord

State v. Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, 17 N.E.3d

528, ¶ 15 (“the plain text of Crim.R. 32.2 and R.C.
SCIOTO, 20CA3934
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2951.03(A)(1) also places an unavoidable duty on the trial court

to obtain a presentence investigation report in every felony

case in which a prison sentence is not imposed”); State v.

Dennis, 2017-Ohio-4437, 93 N.E.3d 277, ¶ 25 (8th Dist.) (“a

presentence investigation report is not required if the court

imposes a prison term”).

{¶134} In the case at bar, the trial court imposed a prison

term. Thus, assuming, arguendo, that the trial court did not

consider a presentence investigation report as appellant

alleges, no error occurred.

{¶135} We further note that appellant alleges that the trial

court participated in the plea negotiations. However, even if

the record supports appellant’s assertion, and even if the court

arguably erred by doing so, appellant does not explain how the

court’s participation impacted the outcome of the proceedings or

otherwise affects our analysis of whether his sentence is

contrary to law.

{¶136} Accordingly, based upon the foregoing reasons, we

overrule appellant’s fifth assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED.
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JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that
appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Scioto 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, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-five day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________
Peter B. Abele, 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.