State v. Brown

[Cite as State v. Brown, 2023-Ohio-3906.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2022 CA 0042
DANNY L. BROWN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2020 CR 0812

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 26, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

FORREST THOMPSON CHARLES A. KOENIG
PROSECUTING ATTORNEY 4669 North High Street
VICTOR V. VIGLUICCI Suite D
ASSISTANT PROSECUTOR Columbus, Ohio 43214
60 Public Square
Medina, Ohio 44256
Richland County, Case No. 2022 CA 0042 2

Wise, J.

{¶1} Appellant Danny Brown appeals his convictions on Aggravated Trafficking

in Drugs, Trafficking in Cocaine, Aggravated Possession of Drugs, and Possession of

Cocaine, entered in the Richland County Common Pleas Court, following a jury trial.

{¶2} Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} For purposes of this Opinion, the relevant facts and procedural history are

as follows:

{¶4} On February 22, 2021, the Richland County Grand Jury indicted Appellant

Danny L. Brown as follows: Count One, Having Weapons While Under Disability, a

violation of R.C. §2923.13(A)(3)(B), a felony of the third degree, with a forfeiture

specification for a weapon; Count Two, Receiving Stolen Property, a violation of R.C.

§2913.51(A)(C), a felony of the fifth degree; Count Three, Aggravated Possession of

Drugs, a violation of R.C. § 2925.11(A)(C)(1)(c), a felony of the second degree, with a

forfeiture specification for money; Count Four, Possession of Cocaine, a violation of R.C.

§ 2925.11(A)(C)(4)(e), a felony of the first degree, with a forfeiture specification for

money; Count Five, Trafficking in Cocaine, a violation of R.C. § 2925.03(A)(2), a felony

of the first degree, with a forfeiture specification for money; and Count Six, Aggravated

Trafficking in Drugs, a violation of R.C. § 2925.03(A)(2), a felony of the second degree,

with a forfeiture specification for money.

{¶5} On July 26, 2021, Appellant filed a motion to suppress evidence.

{¶6} On September 22, 2021, after a hearing, the trial court denied Appellant's

motion to suppress.
Richland County, Case No. 2022 CA 0042 3

{¶7} The matter proceeded to a jury trial on April 15, 19, 20, and 21, 2022. At

trial, the jury heard the following testimony:

{¶8} Joshua Dawson testified that he is a detective with the Richland County

Sheriff's Office and that on November 26, 2020, he received a call from his captain

informing him that a house owned by Matt and Mandy Metcalf, which was under

construction and located at 3000 Frank Road, had been broken into on two consecutive

nights. (Tr. at 26-28). The first night there were some lighting and plumbing fixtures stolen,

and on the second night there were 21 boxes of vinyl siding, wall trim, more lighting

fixtures, more plumbing fixtures, a ceiling fan, and a chandelier stolen. (Tr. at 27).

{¶9} Following the first instance of breaking and entering at the residence, the

Metcalfs set up trail cameras on the property. (Tr. at 28). When the suspects went back

the second time, they also stole the trail cameras. However, one camera was able to

transmit an image of a tan Mercury Grand Marquis, and the police were able to get a

license plate from that image. (Tr. at 28). The license plate came back to a Paul Kelly,

who has two sons, Josh and Jarrod Kelly. (Tr. at 28). This was significant because there

had been another B&E of a business in Mansfield where the Kelly brothers had stolen

diesel engines and mechanical parts and then scrapped them. (Tr. at 28). Arrest warrants

were issued for both Kelly brothers and Josh Kelly's girlfriend, Miranda Williams. (Tr. at

29). While in jail and after her interview with police, Miranda Williams flagged down

Detective Dawson and told him that she wanted to give him more information. (Tr. at 30-

31).

{¶10} Ms. Williams told Detective Dawson that the stolen property could be found

at a house on Diamond Street and at a house on Grace Street, both of which belonged
Richland County, Case No. 2022 CA 0042 4

to their drug dealer named "D." (Tr. at 31). Detective Dawson spoke with Deputy

Scarberry and mentioned the name "D'' to her. (Tr. at 32). Deputy Scarberry told Detective

Dawson that there was a person named Danny Brown who went by "D," who lived on

Grace Street, and who was also associated with the Kellys. (Tr. at 32). Deputy Scarberry

informed Detective Dawson that another theft case she was working involved the stealing

and scrapping of material, and in that case the Kellys had used a vehicle owned by Danny

Brown. (Tr. at 32).

{¶11} On November 30, 2020, a search warrant to look for stolen property and

drugs at 296 Grace Street and two of Brown's other properties was executed. (Tr. at 32-

33). At the time the search warrant was executed, Brown's wife was in the house and

Brown was located in a vehicle out front. (Tr. at 33). At Brown's Diamond Street property,

which was vacant, police found 21 boxes of vinyl siding, some wall trim, and interior doors.

(Tr. at 35). At 296 Grace Street police found more bundles of trim, boxes of flooring, a

chandelier, a ceiling fan, light fixtures, and plumbing fixtures. (Tr. at 36). Many of the

fixtures were still in boxes that had shipping labels addressed to Mandy Metcalf. (Tr. at

36). Paul, Jarrod, and Josh Kelly were charged with the break-ins and were subsequently

convicted. (Tr. at 43).

{¶12} Evan Williams testified that he is a trooper with the Ohio State Highway

Patrol and that from 2018 to 2020, he was assigned to the Richland County METRICH

Drug Enforcement Unit. (Tr. at 77-78). On November 30, 2020, Trooper Williams was part

of the search team that executed a search warrant at 296 Grace Street in Richland

County, Ohio. (Tr. at 79). Trooper Williams was searching for any kind of drugs or stolen

property, and during the investigation he searched the master bedroom. (Tr. at 80). In the
Richland County, Case No. 2022 CA 0042 5

northeast corner nightstand, Trooper Williams found a Smith & Wesson 40 caliber gun

and a plastic baggie that contained suspected crack cocaine and pills. (Tr. at 81, 84, 90).

{¶13} Wayne Liggett testified that he is a detective with the Richland County

Sheriff's Office and the METRICH Enforcement Unit and that on November 30, 2020, he

was involved in the execution of a search warrant at 296 Grace Street, Mansfield, Ohio.

(Tr. at 101-03). Agencies involved included the METRICH Enforcement Unit, the Richland

County Sheriff's Office, the Mansfield Police Department, and the ATF. (Tr. at 103). On

November 30, 2020, Detective Dawson contacted Detective Liggett and asked if

Detective Liggett could assist with his current investigation. (Tr. at 103). He explained that

a Miranda Williams had told Detective Dawson about a burglary, and that there was some

stolen property at a couple of locations on Grace and South Diamond Streets. (Tr. at 103).

{¶14} Detective Liggett re-interviewed Ms. Williams at the Richland County Jail,

at which time Detective Liggett showed Ms. Williams pictures, and she identified "D" as

Danny Brown. (Tr. at 104). Detective Liggett requested search warrants for 296 and 294

Grace Street to search for stolen property, drug paraphernalia, contraband for drug-

related offenses, evidence of trafficking drugs, and firearms. (Tr. at 105). Throughout the

search of 296 Grace Street, Detective Liggett was in different locations but primarily

upstairs. (Tr. at 106). During the search, Detective Evan Williams opened up a drawer in

the larger bedroom and found suspected crack cocaine, two different sets of pills, a

firearm, and a wallet that was determined to be Danny Brown's. (Tr. at 108-09). Also,

during the search, Detective Masi told Detective Liggett that when he opened up a

cupboard above the toilet in the bathroom, he found a large amount of cash. (Tr. at 110).

Detective Liggett photographed and bagged the cash. (Tr. at 110).
Richland County, Case No. 2022 CA 0042 6

{¶15} Detective Liggett spoke with Danny Brown during the search of 296 Grace

Street. (Tr. at 115-16). Brown stated that just he lived at 296 Grace Street. (Tr. at 116).

When Detective Liggett asked about the firearm, Brown admitted that it belonged to him.

(Tr. at 116). Detective Liggett identified State's Exhibit 35 as an Ohio Edison bill

addressed to Danny Brown at 296 Grace Street, which was found during the search of

296 Grace Street. (Tr. at 118).

{¶16} Jerry Botdorf testified that he is a forensic science investigator with the

Mansfield Crime Lab, and that he test-fired State's Exhibit 36, Brown's Smith & Wesson

40 and found it to be operable. (Tr. at 154, 156-59).

{¶17} Tony Tambasco testified that he is the laboratory director and a forensic

scientist with the Mansfield Police Department Forensic Science Laboratory where his

primary responsibility is as a controlled substance analyst. (Tr. at 160). Mr. Tambasco

identified State's Exhibit 43 as a laboratory report that he generated. (Tr. at 165-66). Mr.

Tambasco tested the two bags (State's Exhibit 32) found in Brown’s residence, one

containing 353 tablets and the other containing 503 tablets. (Tr. at 168). The 353 tablets,

which weighed 39.44 grams, were found to contain Oxycodone, a Schedule II controlled

substance. (Tr. at 171). The 503 tablets, which weighed 57.37 grams, were also found to

contain Oxycodone, a Schedule II controlled substance. (Tr. at 171-72). The two bags

contained more than five times the bulk amount of Oxycodone. (Tr. at 172). State's Exhibit

33 was an off-white or white substance in three plastic bags. (Tr. at 173). This white

substance, which weighed 81.46 grams, was found to contain cocaine, a Schedule II

controlled substance. (Tr. at 175).
Richland County, Case No. 2022 CA 0042 7

{¶18} Dawn Fryback testified that she is a DNA analyst with the crime laboratory

of the Mansfield Police Department. (Tr. at 177-78). Ms. Fryback tested four different

items for this case. (Tr. at 189). She collected various swabs from plastic packaging that

was on the controlled substances. (Tr. at 190). She also did DNA testing on some gun

swabs, as well as a reference sample that was collected from Danny Brown. (Tr. at 190).

Ms. Fryback found Danny Brown's major DNA profile on one of the pill bags and on the

Smith & Wesson 40 handgun. (Tr. at 199-200, 203-04).

{¶19} Perry Wheeler testified that he is a detective with the Mansfield Police

Department and currently assigned to the Richland County METRICH office. (Tr. at 221).

Detective Wheeler was involved in a search warrant at 296 Grace Street on November

30, 2020. (Tr. at 222). Detective Wheeler was not part of the search team, but he was

present at the scene and documented what was found. (Tr. at 222). A wallet with a driver's

license for Danny Brown, credit cards for Danny Brown, and an Ohio Edison bill

addressed to Danny Brown at 296 Grace Street were all found at the residence identifying

296 Grace Street as Danny Brown's residence. (Tr. at 225).

{¶20} Detective Wheeler identified baggies with the suspected cocaine which

were recovered from 296 Grace Street. (Tr. at 226). Based on his training and experience,

Detective Wheeler noted that these narcotics were packaged for sale and not for use, as

users never have that much product. (Tr. at 227). Detective Wheeler identified the 856

brown, round 30 milligram Percocet pills which were recovered from the upstairs

bedroom. (Tr. at 228-29). Detective Wheeler noted that these pills are generally sold one

at a time or maybe in quantities of 5, 10, or 15. (Tr. at 229). Detective Wheeler estimated
Richland County, Case No. 2022 CA 0042 8

that at the low end these would probably sell for around $55 per pill, which comes out to

around $50,000 when multiplied by 856 pills. (Tr. at 229- 30).

{¶21} There was also $14,669.00 in cash located during the search, which

Detective Wheeler counted. (Tr. at 230). Detective Wheeler explained that based on his

training and experience, lower denominations of money are indicative of drug trafficking.

(Tr. at 231-32). Drug dealers will then launder the money by going to the bank and

exchanging the twenties, tens, and fives for fifties and hundreds. (Tr. at 232). Detective

Wheeler noted that Brown's cash included a significant amount of twenty-dollar bills. (Tr.

at 232). Detective Wheeler noted that it is common for drug dealers to have large amounts

of drugs, large amounts of cash, and firearms in the same place as Brown did because

they need to protect their drugs and money and cannot call the police if something goes

wrong. (Tr. at 232-233).

{¶22} The Richland County Sheriff’s Office search warrant related to stolen

property which was also located. (Tr. at 233-34). Detective Wheeler noted that in many

instances when drug users don't have money, they trade property for drugs instead. (Tr.

at 234). Detective Wheeler noted that drug dealers will even give drug users a shopping

list and the drug users will go and steal those items, bring them back, and trade them for

drugs. (Tr. at 234).

{¶23} Matt Metcalf testified that he is a prosecuting attorney with the Richland

County Prosecutor's Office. (Tr. at 267-68). Mr. Metcalf was having a new house built on

Frank Road in Richland County in November of 2020. (Tr. at 268-69). On November 25,

2020, Mr. Metcalf learned that there had been a break-in at the construction site of the

house. (Tr. at 269). All of the vinyl siding that was supposed to go on the house was
Richland County, Case No. 2022 CA 0042 9

stolen and some lighting and plumbing fixtures were stolen as well. (Tr. at 269-270). Some

of the things that were stolen were located outside the house and some were inside the

garage. (Tr. at 271). The garage's unfinished man door was kicked in or pushed through

to gain entry. (Tr. at 271). Mr. Metcalf stated that he did not give anybody permission to

take the items that were stolen. (Tr. at 275).

{¶24} Mr. Metcalf also testified as to the second break-in at the construction site

which occurred on Thanksgiving Day, sometime between 11:00 a.m. and 4:00 p.m. (Tr.

at 277). The man door that had been kicked in the first time now had a 2x4 across it, but

it also had a window in it. (Tr. at 277). This time they broke out the window to get in. (Tr.

at 277). They damaged the other doors as well by trying to pry them open. (Tr. at 277). A

trail camera was stolen. (Tr. at 277). When Mr. Metcalf got inside the property, he saw

that the thieves stole even more items. (Tr. at 278). They also stole a second trail camera,

a lot of trim/baseboards, lights, fans, and a chandelier. (Tr. at 278). One of the trail

cameras was able to pick up the license plate of the vehicle used during the break-in, and

that was given to the Sheriff’s Office. (Tr. at 278). The perpetrators were arrested shortly

thereafter, and Mr. Metcalf was able to collect his stolen items shortly after that. (Tr. at

279). The Sheriff's Office contacted Mr. Metcalf and told him they had recovered his stolen

property on November 30, 2020. (Tr. at 279). Mr. Metcalf then contacted his builder and

contacted a friend of his who had a trailer to go and pick up the stolen items. (Tr. at 280).

When Mr. Metcalf arrived at Danny Brown's Grace Street house, he immediately noticed

his trim on Brown's porch. (Tr. at 280). In Danny Brown's basement there were two piles

of items that had been taken from Mr. Metcalf's house. (Tr. at 281). Mr. Metcalf’s

chandelier was in Danny Brown's basement, and it still had the shipping label on it to his
Richland County, Case No. 2022 CA 0042 10

Lexington address, along with his wife's name on it. (Tr. at 281). Mr. Metcalf then went to

a second address on Diamond Street, Richland County, Ohio. (Tr. at 281-82). All of Mr.

Metcalf’s siding was at that address in the basement. (Tr. at 282). A number of Mr.

Metcalf’s doors were in the Diamond Street house's rooms. (Tr. at 282). It appeared that

they were in the process of hanging Mr. Metcalf’s doors in Danny Brown's house. (Tr. at

282). Mr. Metcalf identified State's Exhibit 12 as a photograph showing several more

items found in Danny Brown's Grace Street basement that were stolen from his house,

including flooring, a fan, island lights, and a shower head. (Tr. at 287-88). Mr. Metcalf

identified State's Exhibits 14, 15, and 16 as lighting and plumbing fixtures stolen from his

house and found at the Grace Street address. (Tr. at 288). The trim that was recovered

was damaged, and they had to have much of it replaced. (Tr. at 289). The siding

recovered from the Diamond Street address was ruined, and they had to replace all of it.

(Tr. at 289). They were able to salvage much of what was in the boxes. (Tr. at 289). The

siding that was stolen was valued at $4,024.72, the stolen trim was worth $3,822.00, and

the stolen chandelier was valued at over $1,000.00. (Tr. at 289). All together, the stolen

property was worth around $8,000.00. (Tr. at 291). Mr. Metcalf identified State's Exhibits

37, 38, and 39 as invoices documenting these amounts. (Tr. at 289-91).

{¶25} Following deliberations, the jury found Appellant not guilty on Count Two,

Receiving Stolen Property, and not guilty on the forfeiture specifications to Counts Three,

Four, Five, and Six. The jury found Appellant guilty on Count One, Having Weapons While

Under Disability, a felony of the third degree, and guilty on its forfeiture specification; guilty

on Count Three, Aggravated Possession of Drugs, a felony of the second degree; guilty

on Count Four, Possession of Cocaine, a felony of the first degree; guilty on Count Five,
Richland County, Case No. 2022 CA 0042 11

Trafficking in Cocaine, a felony of the first degree; and guilty on Count Six, Aggravated

Trafficking in Drugs, a felony of the second degree.

{¶26} On May 19, 2022, a sentencing hearing was held wherein the trial court

merged Count Three into Count Six and merged Count Four into Count Five, and then

sentenced Appellant as follows: Count One: thirty-six (36) months in prison; Count Five:

a minimum of eleven (11) years in prison and a maximum of sixteen and a half (16 ½)

years in prison; Count Six: eight (8) years in prison. The trial court ordered these

sentences to be served consecutively to each other, for a total aggregate minimum term

of 22 years and an aggregate maximum term of 27 ½ years.

{¶27} Appellant now appeals, raising the following errors for review:

ASSIGNMENTS OF ERROR

{¶28} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY [sic] APPELLANT

THE RIGHT TO PRESENT EVIDENCE, THEREBY DENYING APPELLANT A

MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE, IN

VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS

UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO

CONSTITUTION.

{¶29} “II. THE COURT ABUSED ITS DISCRETION BY FAILING TO SUPPRESS

THE EVIDENCE SEIZED DURING AN ILLEGAL SEARCH, IN VIOLATION OF

APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE FOURTH AMENDMENT TO

THE UNITED STATES CONSTITUTION AND SECTION 14, ARTICLE I OF THE OHIO

CONSTITUTION.
Richland County, Case No. 2022 CA 0042 12

{¶30} “III. APPELLANT'S CONVICTIONS FOR TRAFFICKING IN DRUGS AND

TRAFFICKING IN COCAINE, AND FOR POSSESSION AND TRAFFICKING OF BULK

AMOUNTS, WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WERE

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF

APPELLANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS UNDER THE FIFTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.

{¶31} “IV. APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS

TO DUE PROCESS IN VIOLATION OF THE SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10,

ARTICLE I OF THE OHIO CONSTITUTION, AS A CONSEQUENCE OF INEFFECTIVE

ASSISTANCE OF COUNSEL.”

I.

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

denying him the right to present evidence. We disagree.

{¶33} More specifically, Appellant argues that he was denied the opportunity to

present evidence concerning an unrelated case he was charged in twenty years prior in

a case referred to “Operation Turnaround”, also brought by the METRICH Enforcement

Unit, where fabricated evidence was arguably used against him.

{¶34} Every criminal defendant has a constitutional right to present a meaningful

defense. Crane v. Kentucky (1986), 476 U.S. 683, 690, 106 S.Ct. 2142. However, this

right does not engender an unfettered entitlement to the admission of any and all

evidence. U.S. v. Scheffer (1998), 523 U.S. 303, 308, 118 S.Ct. 1261.
Richland County, Case No. 2022 CA 0042 13

{¶35} “Ordinarily, a trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised in

line with the rules of procedure and evidence.” State v. Romy, 5th Dist., 2021-Ohio-501,

168 N.E.3d 86, ¶ 49 (Citation omitted). The appellate court must limit its review of the trial

court's admission or exclusion of evidence to whether the trial court abused its discretion.

Id. The abuse of discretion standard is more than an error of judgment; it implies the court

ruled arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d

217, 450 N.E.2d 1140 (1983). “When applying the abuse-of-discretion standard, a

reviewing court must not substitute its judgment for that of the trial court.” In re E.L.C.,

12th Dist. Butler No. CA2014-09-177, 2015-Ohio-2220, ¶ 16.

{¶36} A trial court must determine if potential evidence is relevant. Evid.R. 401

defines “relevant” evidence. To be relevant, evidence must have a “tendency to make the

existence of any fact that is of consequence to the determination of the action more or

less probable than it would be without the evidence.” Evid.R. 401. In other words, there

must be some probative value to the evidence. Generally, relevant evidence is

admissible. Evid.R. 402. Evidence which is not relevant is not admissible. Evid.R. 402.

{¶37} “Under Evid.R. 403(A), ‘[a]lthough relevant, evidence is not admissible if its

probative value is substantially outweighed by the danger of unfair prejudice, of confusion

of the issues, or of misleading the jury.’ ” State v. Velez, 3d Dist. Putnam No. 12-13-10,

2014-Ohio-1788, 2014 WL 1692753, ¶ 122, quoting State v. Maag, 3d Dist. Hancock Nos.

5–03–32 and 5-03-33, 2005-Ohio-3761, 2005 WL 1712898, ¶ 71.

{¶38} Upon review, we find that any claims in regard to fabricated evidence in a

case brought twenty years ago were not relevant as to the instant case. We find no
Richland County, Case No. 2022 CA 0042 14

connections between the two cases other than that Appellant was the person charged in

both cases and both cases were investigated by the METRICH Enforcement Unit. The

only other possible similarity between the two cases is that the victim in this case, Matt

Metcalf, is the son of Charles Metcalf, one of the individuals prosecuted in relation to

Operation Turnaround. We therefore find that any evidence presented regarding what

transpired in an unrelated, twenty-year old case was not relevant and would have been

more prejudicial than probative in this matter, with the likelihood of causing confusion or

misleading the jurors.

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

II.

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

in denying his motion to suppress evidence. We disagree.

{¶41} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154–155, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988 (1995); State v.

Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing court must

defer to the trial court's factual findings if competent, credible evidence exists to support

those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio App.3d 328,

332, 713 N.E.2d 1 (4th Dist.1998); State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d

1268 (4th Dist.1996). However, once this Court has accepted those facts as true, it must

independently determine as a matter of law whether the trial court met the applicable legal
Richland County, Case No. 2022 CA 0042 15

standard. See Burnside, supra, citing State v. McNamara, 124 Ohio App.3d 706, 707

N.E.2d 539 (4th Dist.1997); See, generally, United States v. Arvizu, 534 U.S. 266, 122

S.Ct. 744, 151 L.Ed.2d 740 (2002); Ornelas v. United States, 517 U.S. 690, 116 S.Ct.

1657, 134 L.Ed.2d 911 (1996). That is, the application of the law to the trial court's findings

of fact is subject to a de novo standard of review. Ornelas, supra. Moreover, due weight

should be given “to inferences drawn from those facts by resident judges and local law

enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.

{¶42} The Fourth Amendment to the United States Constitution states: “The right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation, and particularly describing

the place to be searched, and the persons or things to be seized.”

{¶43} In determining the sufficiency of probable cause in an affidavit submitted for

a search warrant, a trial judge or magistrate must make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit, including the

veracity and basis of knowledge of persons supplying hearsay information, there is a fair

probability that contraband or evidence of a crime will be found in a particular place. State

v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), at paragraph one of the syllabus

(1980), citing Illinois v. Gates, 462 U.S. 213, 238–239, 103 S.Ct. 2317, 76 L.Ed.2d 527

(1983). As a reviewing court, we must accord great deference to the issuing judge's

determination of probable cause. See George, at paragraph two of the syllabus. Doubtful

or marginal cases should be resolved in favor of upholding the warrant. Id. The totality of

the circumstances must be examined in determining whether probable cause existed for
Richland County, Case No. 2022 CA 0042 16

a search warrant. Illinois v. Gates, supra. “Probable cause” means only the probability

and not a prima facie showing of criminal activity. George, supra, at 644. See, also, Beck

v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

{¶44} Appellant herein argues that there was a lack of probable cause for the

search warrant, and that the search warrant affidavit contained false information. Other

than such assertions, Appellant presents no evidence in support of his allegations of

falsity.

{¶45} Paragraphs 3, 4 and 8 of the Affidavit contain information obtained by the

METRICH Enforcement Unit from a confidential source and a concerned citizen stating

that Appellant was selling cocaine and Percocet tables, and that said drugs had been

purchased at 296 Grace Street. The concerned citizen also stated that Appellant had

allowed individuals to use his truck in the commission of a breaking and entering at 3000

Frank Road. The concerned citizen further stated that the stolen property was taken to

Appellant at 296 Grace Street and exchanged for cocaine and Percocet.

{¶46} Additionally, Paragraph 9 stated that METRICH conducted surveillance at

296 Grace Street, and a Chevy Silverado truck registered to Appellant was parked there

in the back yard. The remaining paragraphs contained background information and

history concerning Appellant.

{¶47} Under a totality of the circumstances, the affidavit contained sufficient

information for the issuing judge to find there was probable cause to issue a search

warrant.

{¶48} Appellant’s second assignment of error is overruled.
Richland County, Case No. 2022 CA 0042 17

III.

{¶49} In his third assignment of error, Appellant argues that his convictions were

against the manifest weight and sufficiency of the evidence.

{¶50} Sufficiency of the evidence and manifest weight of the evidence are

separate and distinct legal standards. State v. Thompkins, 78 Ohio St.3d 380, 386–87,

678 N.E.2d 541 (1997). Sufficiency is a test of adequacy. Id. A sufficiency of the evidence

standard requires the appellate court to examine the evidence admitted at trial, in the light

most favorable to the prosecution, to determine whether such evidence, if believed, would

convince the average mind of the defendant's guilt beyond a reasonable doubt. State v.

Jenks, 61 Ohio St.3d 259, 259, 574 N.E.2d 492, 494, syllabus, paragraph 2.

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

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

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

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

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

be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541, 547 (1997) quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR

215, 219, 485 N.E.2d 717, 720–721 Reversing a conviction as being against the manifest

weight of the evidence and ordering a new trial should be reserved for only the

“exceptional case in which the evidence weighs heavily against the conviction.” Id. See

State v. Acker, 5th Dist. Holmes No. 22CA008, 2023-Ohio-2085, ⁋ 36.

{¶52} Appellant herein is challenging his convictions for Aggravated Trafficking in

Drugs and Trafficking in Cocaine, in violation of R.C. §2925.03(A)(2) and Aggravated
Richland County, Case No. 2022 CA 0042 18

Possession of Drugs and Possession of Cocaine, in violation of R.C.

§2925.11(A)(C)(1)(c) and (A)(C)(4)(c), which provide, in relevant part:

R.C. §2925.03 TRAFFICKING OFFENSES

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

(1) ***

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

distribution, or distribute a controlled substance or a controlled substance

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

the controlled substance or a controlled substance analog is intended for

sale or resale by the offender or another person.

R.C. §2925.11 DRUG POSSESSION OFFENSES

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

substance or a controlled substance analog.

(C) Whoever violates division (A) of this section is guilty of one of the

following:

(1) If the drug involved in the violation is a compound, mixture,

preparation, or substance included in schedule I or II, with the exception of

marihuana, cocaine, L.S.D., heroin, any fentanyl-related compound,

hashish, and any controlled substance analog, whoever violates division (A)

of this section is guilty of aggravated possession of drugs. The penalty for

the offense shall be determined as follows:

****
Richland County, Case No. 2022 CA 0042 19

(c) If the amount of the drug involved equals or exceeds five times

the bulk amount but is less than fifty times the bulk amount, aggravated

possession of drugs is a felony of the second degree, and the court shall

impose as a mandatory prison term a second-degree felony mandatory

prison term.

****

(4) If the drug involved in the violation is cocaine or a compound,

mixture, preparation, or substance containing cocaine, whoever violates

division (A) of this section is guilty of possession of cocaine. The penalty for

the offense shall be determined as follows:

****

(c) If the amount of the drug involved equals or exceeds ten grams

but is less than twenty grams of cocaine, possession of cocaine is a felony

of the third degree, and, except as otherwise provided in this division, there

is a presumption for a prison term for the offense. If possession of cocaine

is a felony of the third degree under this division and if the offender two or

more times previously has been convicted of or pleaded guilty to a felony

drug abuse offense, the court shall impose as a mandatory prison term one

of the prison terms prescribed for a felony of the third degree.

Trafficking offenses

{¶53} Appellant herein argues that the state failed to prove that he was engaged

in trafficking, offering insufficient evidence that he engaged in conduct to “prepare for
Richland County, Case No. 2022 CA 0042 20

shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled

substance.”

{¶54} Upon review, we find that at trial, the jury heard testimony from both

Detective Wheeler Boyer and Tom Tambasco, among others. Det. Wheeler testified that

856 30-milligram Percocet Pills and 81.36 grams of cocaine were found in Appellant’s

nightstand. A handgun was also found in the nightstand and almost $15,000 cash, largely

in $20 bills, was found in a cabinet. Det. Wheeler testified that in his training and

experience, the cocaine and the pills were packaged for sale and that users never have

that product for personal use and that dealers often have lower denominations of cash.

He testified that it is common for drug dealers to have large amounts of drugs, cash and

weapons, all in the same place. Conversely, drug users usually only have drugs or money,

not both.

Possession - Bulk Amount

{¶55} Appellant also argues that the evidence was insufficient to prove that the

quantity of the drugs in his possession exceeded five times the bulk amount but was less

than fifty times the bulk amount.

{¶56} Oxycodone is a Schedule II controlled substance. R.C. §3719.41(A)(1)(n).

{¶57} A “bulk amount” of oxycodone is “[a]n amount equal to or exceeding twenty

grams or five times the maximum daily dose * * * specified in a standard pharmaceutical

reference manual * * *.” R.C. §2925.01(D)(1)(d).

{¶58} The state may prove the maximum daily dose in the usual dose range in

one of three ways: “(1) by stipulation, (2) by expert testimony as to what a standard

pharmaceutical reference manual prescribes, or (3) by a properly proven copy of the
Richland County, Case No. 2022 CA 0042 21

manual itself.” State v. Montgomery, 17 Ohio App.3d 258, 260, 479 N.E.2d 904 (1st

Dist.1984); but see State v. Caldwell, 5th Dist. Richland No. CA–2369, 1986 WL 7456, *3

(June 23, 1986) (approving judicial notice of bulk amount stated in a standard

pharmaceutical reference manual). State v. Pountney, 152 Ohio St.3d 474, 2018-Ohio-

22, 97 N.E.3d 478

{¶59} The state contends that it established the bulk amount of transdermal

fentanyl through Forensic scientist Tom Tambasco's expert testimony

{¶60} Mr. Tambasco testified that “the standard pharmaceutical manual

prescribes no more than a maximum daily dose of three 30-milligram pills or 90

milligrams, and therefore five times that amount, or 15 pills (450 milligrams), is bulk. (T.

at 172). No objection was raised to this testimony.

{¶61} During deliberations the jury asked for further instruction as to bulk amount,

and the parties agreed to the court’s instruction.

{¶62} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180

(1990). The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We note

circumstantial evidence is that which can be “inferred from reasonably and justifiably

connected facts.” State v. Fairbanks, 32 Ohio St.2d 34, 289 N.E.2d 352 (1972), paragraph

five of the syllabus. “[C]ircumstantial evidence may be more certain, satisfying and

persuasive than direct evidence.” State v. Richey, 64 Ohio St.3d 353, 1992-Ohio-44, 595
Richland County, Case No. 2022 CA 0042 22

N.E.2d 915. It is to be given the same weight and deference as direct evidence. State v.

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

{¶63} Accordingly, based on the drugs, money and firearm found in the house

which is owned by Appellant, together with the large amount of the drugs packaged for

individual use, and Appellant’s DNA found on the baggies, we find Appellant's convictions

for trafficking and possession are supported by sufficient evidence and are not otherwise

against the manifest weight of the evidence.

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

IV.

{¶65} In his fourth assignment of error, Appellant argues that his trial counsel was

ineffective. We disagree.

{¶66} To obtain a reversal of a conviction on the basis of ineffective assistance of

counsel, the defendant must prove (1) that counsel's performance fell below an objective

standard of reasonableness, and (2) that counsel's deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.

Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674,

693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a

court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at

699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).

{¶67} Appellant argues that his trial counsel was ineffective by failing to interview

Miranda Williams and for not calling her as a witness at the suppression hearing.

{¶68} As stated by Appellee in their brief, the record is silent as to whether trial

counsel interviewed Ms. Williams. Appellate review is strictly limited to the record. The
Richland County, Case No. 2022 CA 0042 23

Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97 (1898). An

appellate court addressing a direct appeal is not permitted to add matter to the record

which was not part of the trial court proceedings. See, e.g., State v. Hill, 90 Ohio St.3d

571, 573, 740 N.E.2d 282, 2001-Ohio-20, citing State v. Ishmail (1978), 54 Ohio St.2d

402, 377 N.E.2d 500.

{¶69} As to the issue of not calling Ms. Williams as a witness at the suppression

hearing, based on her original statements to law enforcement about Appellant, sound trial

tactics may have supported the decision to not call her. Trial tactics do not generally

constitute ineffective assistance of counsel. See, State v. Brown, 38 Ohio St.3d 305, 319,

528 N.E.2d 523 (1988). It is generally presumed that the tactical decision of calling or

refusing to call witnesses will not sustain a claim of ineffective assistance of counsel.

State v. Coulter (1992), 75 Ohio App.3d 219, 230, 598 N.E.2d 1324; State v. Williams

(1991), 74 Ohio App.3d 686, 695, 600 N.E.2d 298.; State v. Johnson, 5th Dist. Delaware

No. 12 CAA 11 0081, 2014-Ohio-657, ¶ 38.

{¶70} Moreover, we will not find counsel was ineffective based upon speculation;

even if Ms. Williams had been called to testify at the suppression hearing there is no

reason to believe that her testimony would have differed from the statements she made

to law enforcement, or that the outcome of the trial would have been different.

{¶71} Appellant has shown neither that trial counsel was incompetent nor that he

suffered actual prejudice
Richland County, Case No. 2022 CA 0042 24

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

{¶73} The judgment of the Court of Common Pleas, Richland County, Ohio, is

affirmed.

By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.

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