State v. Johnson

[Cite as State v. Johnson, 2023-Ohio-4093.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY

STATE OF OHIO, CASE NOS. 2023-L-006
2023-L-007
Plaintiff-Appellee,
Criminal Appeals from the
- vs - Court of Common Pleas

KERRY D. JOHNSON, JR.,
Trial Court Nos. 2022 CR 000320
Defendant-Appellant. 2022 CR 000857

OPINION

Decided: November 13, 2023
Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Mandy J. Gwirtz, Gwirtz Law, LLC, 20020 Lakeshore Boulevard, Euclid, OH 44123 (For
Defendant-Appellant).

JOHN J. EKLUND, P.J.

{¶1} Appellant, Kerry Johnson, appeals his convictions after jury trials in Lake

County Court of Common Pleas Case Numbers 2022-CR-320 and 2022-CR-857. The

conviction in the former was for Trafficking in a Fentanyl-Related Compound; in the latter

for Trafficking in Cocaine, both felonies of the fifth degree in violation of R.C.

2925.03(A)(1). We sua sponte consolidated his cases on appeal.

{¶2} Appellant has raised five assignments of error arguing the following: (1) the

trial court erred in 2022-CR-320 by sustaining the State’s objections to questioning a
witness about prior drug use for the purpose of impeaching the witness' ability to recall

events; (2) and (3) that his convictions in both cases are against the manifest weight of

the evidence and not supported by sufficient evidence; (4) the trial court erred in 2022-

CR-320 by failing to exclude prior bad act testimony from a witness that he had bought

drugs from appellant on other occasions; and (5) the trial court erred by crediting him with

117 days jail credit in 2022-CR-857 and only two days jail credit in 2022-CR-320, thus

failing to credit him for 115 days credit in 2022-CR-320.

{¶3} Having reviewed the record and the applicable caselaw, we find appellant’s

assignments of error are without merit. First, the trial court did not abuse its discretion by

excluding testimony about a confidential informant’s drug use after he conducted

controlled drug buys because that drug use was not clearly probative of the informant’s

character for truthfulness or untruthfulness under Evid.R. 608(B)(1). Next, appellant’s

convictions in both criminal trials were supported by the manifest weight of the evidence

where the evidence in both cases demonstrated that appellant sold drugs to confidential

informants. Further, the trial court did not err by allowing testimony about a confidential

informant engaging in prior drug sales with appellant when appellant’s trial counsel invited

the inquiry that elicited the testimony. The evidence about appellant’s prior drug sales

with the confidential informant went to appellant’s knowledge of the meaning of

communications between appellant and the confidential informant and was admissible

under Evid.R. 404(B). Finally, appellant received the correct jail time credit. He was

sentenced to serve consecutive sentences and received jail time credit only once, and for

each day he was incarcerated.

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Case Nos. 2023-L-006, 2023-L-007
 {¶4} Therefore, we affirm the judgments of the Lake County Court of Common

Pleas.

Substantive and Procedural History

{¶5} On March 28, 2022, appellant was indicted in Case Number 2022-CR-320

on two counts Trafficking in a Fentanyl-Related Compound, felonies of the fifth degree in

violation of R.C. 2925.03(A)(1). Count One related to conduct alleged to have occurred

on August 11, 2021, and Count Two related to conduct alleged to have occurred on

August 16, 2021.

{¶6} Appellant entered not guilty pleas on both counts, posted bond and was

released from jail.

{¶7} On August 16, 2022, appellant was indicted in Case Number 2022-CR-857

on one count of Trafficking in Cocaine, a felony of the fifth degree in violation of R.C.

2925.03(A)(1). This indictment was for conduct that occurred on July 28, 2022, while he

was released on bond. Appellant pled not guilty. On August 19, 2022, the trial court

revoked appellant’s bond in 2022-CR-320, and he remained in jail on both cases.

{¶8} Appellant had separate jury trials on both cases, in which the following

evidence was adduced:

{¶9} In 2022-CR-320, Lieutenant Brad Kemp, of the Lake County Narcotics

Agency, oversaw a controlled operation to buy drugs from appellant. A confidential

informant, Kenneth Caudell, agreed to buy cocaine from appellant. Special Agent 92

acted as Caudell’s handler.

{¶10} Caudell reached out to the Lake County Narcotics Agency voluntarily and

had no pending charges at the time he did so. However, his girlfriend was facing criminal

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Case Nos. 2023-L-006, 2023-L-007
charges and he hoped to assist in her charges being reduced. Caudell admitted to having

two prior falsification convictions.

{¶11} Caudell suggested that he could do a controlled drug buy from appellant.

He said he had known appellant for 15 years. The Lake County Narcotics Agency

arranged for Caudell to engage in two controlled drug buys. The first was on August 11,

2021, and the second on August 16, 2021.

{¶12} On August 11, Caudell contacted appellant to say he wanted to buy $40.00

worth of heroin from appellant.

{¶13} Before going to the drug buys, agents searched Caudell to make sure he

had no drugs, weapons, or extra money. Agents gave Caudell a recording device to

record audio and visual evidence of the drug buy.

{¶14} Caudell rode his bike to meet with appellant and “did a quick exchange

money for the drugs” through the driver’s window of appellant’s car. Caudell then rode his

bike back to Special Agent 92 and gave him the drugs and returned the recording device.

{¶15} On August 16, Caudell arranged to buy $80.00 worth of heroin from

appellant. Caudell met Special Agent 92 and engaged in the same process to prepare for

the controlled drug buy. Caudell again rode his bike to meet appellant. However, he said

that it was raining, so he left the meeting place with Special Agent 92 and rode to his

house nearby to pick up an umbrella. Caudell said that he then walked to the drug buy

with appellant and exchanged the $80.00 for the heroin. After making the exchange,

Caudell said he went back to his house to return the umbrella and that he rode his bike

back to the meeting place with Special Agent 92.

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Case Nos. 2023-L-006, 2023-L-007
 {¶16} During the August 16 controlled buy, the recording device malfunctioned

and the video was not available. However, the audio was properly recorded.

{¶17} After the August 16 controlled buy, Caudell was arrested and jailed. He was

placed in the same jail unit as appellant and appellant learned that Caudell had informed

against him. Caudell said that appellant asked him to write a statement that he did not

buy drugs from appellant. Caudell said he did so because he did not want problems while

in jail with appellant. In that statement, Caudell said he found the drugs outside near his

car.

{¶18} The drugs Caudell turned over to Special Agent 92 were sent for further

testing and confirmed to be 0.44 grams of heroin from the August 11 controlled buy and

0.72 grams of heroin from the August 16 controlled buy.

{¶19} The jury found appellant guilty on Count One and not guilty on Count Two.

Sentencing was deferred pending the outcome of the trial in Case Number 2022-CR-857.

{¶20} In 2022-CR-857, Lieutenant Kemp oversaw a separate controlled operation

to buy drugs from appellant. A confidential informant, Kurt Snyder, agreed to buy cocaine

from appellant. Special Agent 92 acted as Snyder’s handler.

{¶21} Snyder began working for the Lake County Narcotics Agency as a

confidential informant in order to receive a positive recommendation for his own pending

drug possession charges. He hoped to have his charges dismissed or reduced. After

conducting several controlled drug buys in unrelated cases, the Lake County Narcotics

Agency also began to pay Snyder between $40.00-$60.00 for his cooperation on each

drug buy.

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Case Nos. 2023-L-006, 2023-L-007
 {¶22} Snyder suggested that he could do a controlled drug purchase from

appellant. He said he had known appellant for ten years.

{¶23} On July 28, 2022, Snyder engaged in a controlled buy with the cooperation

of the Lake County Narcotics Agency. Snyder texted and called appellant to arrange to

buy $100.00 worth of cocaine from appellant.

{¶24} Before going to the drug buy, agents searched Snyder to make sure he had

no drugs, weapons, or extra money. Agents gave Snyder a recording device to record

audio and visual evidence of the drug buy.

{¶25} Snyder went to a house and found appellant at the front porch. Snyder was

smoking a cigarette while appellant was smoking marihuana. Appellant asked for a hit

from the cigarette and Snyder asked for a hit of appellant’s joint. The two passed the

cigarette and joint to each other, took a hit, and passed them back. Snyder gave appellant

the money and appellant provided the cocaine. However, there was not enough cocaine

for the agreed $100.00 purchase and appellant gave Snyder $10.00 in change. Snyder

then left and gave the cocaine, $10.00 in change, and the recording device to Special

Agent 92. During the exchange of money and drugs, Snyder placed the recording device

face down on a table, obscuring the video recording of the transaction. Snyder denied

purposefully trying to hide the transaction and said it is difficult to point the camera at a

person during a drug transaction without arousing suspicion.

{¶26} The drugs Snyder turned over to Special Agent 92 were sent for further

testing and confirmed to be 0.31 grams of cocaine.

{¶27} The jury found appellant guilty.

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Case Nos. 2023-L-006, 2023-L-007
 {¶28} On December 12, 2022, the trial court sentenced appellant on both cases.

Appellant refused to complete the necessary paperwork for a Pre-Sentence Report. The

trial court imposed 11-month sentences on each case to be served consecutively for a

total of 22 months in prison. The court determined appellant had 117 days jail credit in

2022-CR-857 and two days of jail credit for 2022-CR-320. The Court said appellant

“served two days in [2022-CR-320] that were separate and apart from the other time that

he served. The fact of the matter is the remaining time was on both cases at the same

time and with consecutive sentences, he’s only entitled to credit on one of the cases. So

two days on 22CR320. One hundred seventeen days on 22CR857.”

{¶29} Appellant timely appealed both cases. We sua sponte consolidated his

appeals for review.

Assignments of Error and Analysis

{¶30} Appellant’s first assignment of error states:

{¶31} “[1.] THE TRIAL COURT ERRED WHEN IT BARRED THE DEFENSE

FROM CROSS EXAMINING THE STATE’S WITNESS REGARDING HIS ONGOING

DRUG USE IN VIOLATION OF THE DEFENDANT-APPELLANT’S RIGHTS TO DUE

PROCESS AND FAIR TRIAL AND TO CONFRONT WITNESSES AS GUARANTEED

UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED

STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION.”

{¶32} Appellant argues that the trial court erred in 2022-CR-320 when it sustained

an objection to the question his trial counsel asked Caudell about Caudell’s drug arrests

and his habitual drug use. Appellant argues that this evidence was admissible under

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Case Nos. 2023-L-006, 2023-L-007
Evid.R. 608(B). He asserts it went to Caudell’s ability to recall, remember, and articulate

what happened; that is, to impeach him on credibility and memory. The trial court

sustained the State’s objections to this evidence and, during a sidebar, said the evidence

was not relevant and not suitable for impeachment purposes. Appellant made a proffer

that he would have introduced evidence that Caudell had criminal charges that arose after

the controlled buys and that he had tested positive for methamphetamine use in May and

August 2022.

{¶33} While “‘cross-examination of a witness is a matter of right,’ the “‘extent of

cross-examination with respect to an appropriate subject of inquiry is within the sound

discretion of the trial court.’” State v. Green, 66 Ohio St.3d 141, 147, 609 N.E.2d 1253

(1993), quoting Alford v. United States, 282 U.S. 687, 691, 51 S.Ct. 218, 75 L.Ed. 624

(1931). The determination to admit or exclude evidence lies within the discretion of the

trial court and will not be reversed absent an abuse of discretion. State v. Miller, 11th Dist.

Trumbull No. 2014-T-0061, 2015-Ohio-956, ¶ 14. “‘The term “abuse of discretion” is one

of art, connoting judgment exercised by a court which neither comports with reason, nor

the record.’ State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-208, ¶ 30,

citing State v. Ferranto, 112 Ohio St. 667, 676-678, [148 N.E. 362] (1925).” State v. Raia,

11th Dist. Portage No. 2013-P-0020, 2014-Ohio-2707, ¶ 9. Stated differently, an abuse

of discretion is “the trial court’s ‘failure to exercise sound, reasonable, and legal decision-

making.’” Id., quoting State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶

62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). “When an appellate court is

reviewing a pure issue of law, ‘the mere fact that the reviewing court would decide the

issue differently is enough to find error[.] * * * By contrast, where the issue on review has

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Case Nos. 2023-L-006, 2023-L-007
been confined to the discretion of the trial court, the mere fact that the reviewing court

would have reached a different result is not enough, without more, to find error.’” Id.,

quoting Beechler at ¶ 67.

{¶34} Evid.R. 404(A)(3) contains an exception to the general prohibition on

character evidence, providing that “[e]vidence of the character of a witness on the issue

of credibility is admissible as provided in Rules 607, 608, and 609.” Evid.R. 608(B)

provides, in relevant part, that “[s]pecific instances of the conduct of a witness, for the

purpose of attacking or supporting the witness’s character for truthfulness, other than

conviction of crime as provided in Evid.R. 609, may not be proved by extrinsic evidence.

They may, however, in the discretion of the court, if clearly probative of truthfulness or

untruthfulness, be inquired into on cross-examination of the witness (1) concerning the

witness’s character for truthfulness or untruthfulness * * *.”

{¶35} We find no error in the exclusion of appellant’s proffered cross-examination

of Caudell. Evid.R. 608(B) requires “a high degree of probative value of instances of prior

conduct as to truthfulness or untruthfulness of the witness before the trial court will allow

such cross-examination.” State v. Norwood, 11th Dist. Lake No. 2000-L-146, 2002 WL

445839, *3 (Mar. 22, 2002); see 1980 Staff Notes to Evid.R. 608.

{¶36} Cross-examination of a witness as to whether drug use tended to affect the

credibility of the witness to observe matters about which he testifies is relevant. Id.

“However, cross-examination of a witness as to general drug usage to show that he was

a person unworthy of belief merely because he was of such character may not be clearly

probative of truthfulness in a particular case.” Id; see State v. Drummond, 111 Ohio St.3d

14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 101.

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Case Nos. 2023-L-006, 2023-L-007
 {¶37} Appellant’s proposed cross-examination did not seek to introduce evidence

that Caudell was intoxicated at the time of the controlled drug buys. Such evidence would

have been probative of Caudell’s ability to witness and observe the matters about which

he testified. Instead, appellant’s proposed cross-examination sought to impeach Caudell

about his character for truthfulness or untruthfulness. Appellant sought to introduce

specific instances of Caudell’s conduct to show why he might have had poor memory of

the controlled drug buys. This line of questioning was not probative of Caudell’s

truthfulness, and the trial court did not abuse its discretion in excluding appellant’s cross-

examination.

{¶38} Accordingly, appellant’s first assignment of error is without merit.

{¶39} Appellant’s second and third assignments of error state:

{¶40} “[2.] THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFNDANT-APPELLANT WHEN IT RETURNED A VERDICT OF GUILTY AGAINST

THE MANIFEST WIEGHT OF THE EVIDENCE.”

{¶41} “[3.] THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANT-APPELLANT IN DENYING HIS MOTION FOR ACQUITTALS MADE

PURSUANT TO CRIM.R. 29(A).”

{¶42} Appellant argues that his convictions were not supported by sufficient

evidence and were against the manifest weight of the evidence. For ease of discussion,

we address these two assignments together.

{¶43} “‘Sufficiency’ is a term of art meaning that legal standard which is applied to

determine whether the case may go to the jury or whether the evidence is legally sufficient

to support the jury’s verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380,

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Case Nos. 2023-L-006, 2023-L-007
386, 678 N.E.2d 541 (1997), citing Black's Law Dictionary (6 Ed.1990) 1433. The

appellate court’s standard of review for sufficiency of evidence is to determine, after

viewing the evidence in a light most favorable to the prosecution, whether a rational trier

of fact could find the essential elements of the crime proven beyond a reasonable doubt.

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

{¶44} When evaluating the sufficiency of the evidence, we do not consider its

credibility or effect in inducing belief. Thompkins at 387. Rather, we decide whether, if

believed, the evidence can sustain the verdict as a matter of law. Id. This naturally entails

a review of the elements of the charged offense and a review of the State’s evidence.

State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13.

{¶45} When evaluating the weight of the evidence, we review whether the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other indicated clearly that the party having the burden

of proof was entitled to a verdict in its favor, if, on weighing the evidence in their minds,

the greater amount of credible evidence sustained the issue which is to be established

before them. “Weight is not a question of mathematics but depends on its effect in

inducing belief.” Thompkins at 387. Whereas sufficiency relates to the evidence’s

adequacy, weight of the evidence relates the evidence’s persuasiveness. Id. The

reviewing court “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 reversed and a new trial ordered. The discretionary power to grant a

new trial should be exercised only in the exceptional case in which the evidence weighs

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Case Nos. 2023-L-006, 2023-L-007
heavily against the conviction.” State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d

717 (1st Dist. 1983).

{¶46} The trier of fact is the sole judge of the weight of the evidence and the

credibility of the witnesses. State v. Landingham, 11th Dist. Lake No. 2020-L-103, 2021-

Ohio-4258, ¶ 22, quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). The

trier of fact may believe or disbelieve any witness in whole or in part, considering the

demeanor of the witness and the manner in which a witness testifies, the interest, if any,

of the outcome of the case and the connection with the prosecution or the defendant. Id.,

quoting Antil at 67. This court, engaging in the limited weighing of the evidence introduced

at trial, is deferential to the weight and factual findings made by the factfinder. State v.

Brown, 11th Dist. Trumbull No. 2002-T-0077, 2003-Ohio-7183, ¶ 52, citing Thompkins at

390 and State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph two of

the syllabus.

{¶47} A finding that a judgment is supported by the manifest weight of the

evidence necessarily means the judgment is supported by sufficient evidence. State v.

Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶ 32.

{¶48} In each of his cases, appellant was convicted for violating R.C.

2925.03(A)(1) which provides that no person shall sell a controlled substance.

{¶49} In 2022-CR-320, the State presented testimony from Caudell, who worked

as a confidential informant to buy heroin from appellant. The August 11, 2021 controlled

drug buy was monitored by the Lake County Narcotics Agency and done under their

supervision and control. Special Agent 92 searched Caudell before the buy to confirm he

had no weapons or drugs on him, Caudell went straight to the agreed upon location,

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Case Nos. 2023-L-006, 2023-L-007
captured appellant on video taking money from him, and Caudell returned with $40.00

worth of heroin. Although the video did not capture appellant handing drugs to Caudell,

Caudel testified that is what occurred.

{¶50} The jury had evidence of Caudell’s prior falsification convictions and his

desire to work as a confidential informant to assist his girlfriend in her criminal case. It

was free to believe, and weigh, all or none of his testimony. The jury was free to believe

Caudell’s explanation of why he wrote a letter claiming he found the drugs near his car.

Caudell said he only wrote the letter because he was in the same jail pod as appellant

and felt compelled to do so. Further supporting the jury’s careful weighing of the evidence

is that the jury found appellant not guilty on Count 2, the August 16, 2021 controlled drug

buy, where the video malfunctioned and where Caudell made unplanned detours to his

house before and after the drug buy. We will defer to the weight and factual findings made

by the factfinder.

{¶51} In 2022-CR-857, the State presented testimony from Snyder who worked

as a confidential informant to buy cocaine from appellant. Snyder worked as a confidential

informant to obtain a favorable recommendation in his own criminal case, however, the

jury was aware of this and free to weigh Snyder’s credibility. The July 28, 2022 controlled

drug buy was monitored by the Lake County Narcotics Agency and done under their

supervision and control. Special Agent 92 searched Snyder before the buy to confirm he

had no weapons or drugs on him, Snyder drove to meet appellant, interacted with him at

the house, and captured elements of the interaction on video. Snyder arranged to buy

$100.00 worth of cocaine, but the amount appellant provided was short, so Snyder

returned with $90.00 worth of cocaine and $10.00 in change.

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 {¶52} Although Snyder did not capture the moment of the drug purchase on

camera, he explained that it was difficult to be inconspicuous with the camera while

engaging in the drug buy. Appellant argues that Snyder is unreliable because he violated

the Lake County Narcotics Agency rules by taking drugs during his interaction with

appellant. However, the drug use was minimal, involving only one hit from a marihuana

cigarette, and was done as an informal greeting between appellant and Snyder. Special

Agent 92 explained that there may be situations where a confidential informant must

engage in illegal drug use as a means to preserve their cover.

{¶53} In addition, appellant argues that the special agents failed to identify that

Snyder was under the influence of drugs due to his drug use. However, appellant

presented no evidence to suggest appellant was under the influence of drugs after taking

one hit from a marihuana cigarette. Special Agent 92 denied being able to smell an odor

of marihuana on Snyder and said that he did not notice any signs of impairment.

{¶54} Neither of appellant’s cases are the exceptional case in which the evidence

weighs heavily against the conviction.

{¶55} Accordingly, appellant’s second and third assignments of error are without

merit.

{¶56} Appellant’s fourth assignment of error states:

{¶57} “[4.] THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANT-APPELLANT BY FAILING TO EXCLUDE TESTIMONY REGARDING THE

DEFENDANT-APPELLANT’S PRIOR BAD ACTS, IN VIOLATION OF THE

DEFENDANT-APPELLANT’S DUE PROCESS RIGHTS AND RIGHTS TO FAIR TRIAL

AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE

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Case Nos. 2023-L-006, 2023-L-007
UNITED STATES CONSTITUTION AND SECTIONS 5 AND 10, ARTICLE I OF THE

OHIO CONSTITUTION.”

{¶58} Appellant argues that the trial court erred in 2022-CR-320 when it allowed

the State to introduce evidence that Caudell had purchased drugs from appellant in the

past. Appellant objected to this testimony and moved for a mistrial arguing the trial court

violated Evid.R. 404 by improperly permitting prior bad act evidence.

{¶59} Evid.R. 404 governs the admissibility of character evidence. Evid.R. 404(A)

provides that “[e]vidence of a person’s character or a trait of character is not admissible

for the purpose of proving action in conformity therewith on a particular occasion, subject

to the following exceptions: (1) Character of accused. Evidence of a pertinent trait of

character offered by an accused, or by the prosecution to rebut the same is admissible *

* *.” Evid.R. 404(A) is a general prohibition on using evidence of a person’s character to

prove he or she acted “‘in conformity therewith on a particular occasion.’” State v.

Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 71.

{¶60} Evid.R. 404(B) provides that “[e]vidence of any other crime, wrong, or act is

not admissible to prove a person’s character in order to show that on a particular occasion

the person acted in accordance with the character. * * * This evidence may be admissible

for another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”

{¶61} The admissibility of other-acts evidence pursuant to Evid.R. 404(B) is a

question of law. State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651,

¶ 22. A trial court is precluded from admitting improper character evidence under Evid.R.

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404(B), but it has discretion to allow other-acts evidence that is admissible for a

permissible purpose. Graham at ¶ 72.

{¶62} The Supreme Court of Ohio has set forth a three-part analysis for

determining the admissibility of other-acts evidence. Id; see State v. Williams, 134 Ohio

St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20. To be admissible, the evidence must:

(1) be relevant under Evid.R. 401; (2) the evidence cannot be presented to prove a

person’s character to show conduct in conformity therewith but must instead be presented

for a legitimate other purpose in accordance with Evid.R. 404(B); (3) the probative value

of the evidence cannot be substantially outweighed by the danger of unfair prejudice

pursuant to Evid.R. 403. Graham at ¶ 72.

{¶63} On cross-examination, defense counsel asked Caudell if any of his text

messages to appellant directly referenced drugs. Caudell said no. Trial counsel then

asked about his reference to “forty,” and asked if that could be a reference to owing

appellant money. Caudell said that he did not owe appellant money and that he was

referring to buying $40.00 worth of heroin from appellant. Trial counsel pressed Caudell

about the vague nature of the messages and said the message thread “Doesn't say about,

""‘Hey, look, are you selling drugs?’" "‘Are you doing anything?’" Caudell answered “No.

That's how we did it.”

{¶64} On redirect, the State asked Caudell:

Q. “And what did you tell [appellant] you wanted?”

A. “A forty.”

Q. And how would he know what you meant by "forty"?

A. That's the way I've always done it. I'd say forty, eighty, hundred. He knew
what I wanted. He knew I wanted a boy which is heroin.
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 ***

Q. Had you had experience with purchasing narcotics from Kerry Johnson
before this?

A. Yes.

Q. And what did you purchase from him in the past?

A. Heroin.

{¶65} Appellant then objected and a side bar was held where trial counsel argued

the testimony was inappropriate prior bad act testimony introducing evidence appellant

had dealt drugs in the past and was acting in conformity therewith in this case. The trial

court said,

You brought up this issue on cross, how would he know what he meant by
forty, all that stuff. That opened the door to prior dealings, how they worked
before in the past so he would know what was going on. I mean you cross-
examined about this stuff. Making it sound like he was innocent of this stuff.
How would your client know what you are talking about. Well it was because
they had done this before in the past. He would know what he wanted
because of their past experiences.

{¶66} We agree with the trial court, appellant opened the door to the testimony

about appellant and Caudell’s history. See State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-

6266, 900 N.E.2d 565, ¶ 74. Appellant’s trial counsel put the meaning of Caudell’s

communication with appellant at issue. Having done so, he “could not limit the subject to

only those points of evidence that were in its favor.” State v. Conway, 109 Ohio St.3d 412,

2006-Ohio-2815, 848 N.E.2d 810, ¶ 77.

{¶67} The State’s redirect questioning of Caudell was in response to the questions

appellant’s trial counsel asked which attempted to cast doubt on whether Caudell had

actually communicated an intent to buy drugs from appellant. Trial counsel’s cross-

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Case Nos. 2023-L-006, 2023-L-007
examination questions attempted to present an innocent explanation for Caudell’s

communications and the State’s redirect responded by addressing how Caudell’s prior

history with appellant informed the nature of their communications.

{¶68} This evidence was relevant under Evid.R. 401 and presented for a

legitimate purpose in accordance with Evid.R. 404(B). The evidence of appellant’s prior

acts addressed appellant’s knowledge. The probative value of the evidence was not

substantially outweighed by the danger of unfair prejudice. It was first raised by appellant

and only addressed by the State on redirect examination. Any possible prejudice that

accrued to appellant through this testimony was not unfair, because he opened the door

to that line of questioning.

{¶69} Accordingly, appellant’s fourth assignment of error is without merit.

{¶70} Appellant’s fifth assignment of error states:

{¶71} “[5.] THE TRIAL COURT ERRED BY NOT CREDITING THE DEFENDANT-

APPELLANT 115 DAYS OF JAIL TIME CREDIT AS OF THE DAY OF SENTENCING.”

{¶72} We review whether the trial court's determination as to the amount of jail

time credit for a felony is clearly and convincingly contrary to law. State v. Perkins, 11th

Dist. Lake No. 2018-L-084, 2019-Ohio-2288; R.C. 2953.08(G)(2)(b).

{¶73} Under this assignment of error, appellant argues that he was arrested and

remained in jail on both 2022-CR-320 and 2022-CR-857. In 2022-CR-857, he was

arrested on August 16, 2022, and in 2022-CR-320, his bond was revoked on August 19,

2022. He believes, despite the trial court imposing consecutive sentences, that he is

entitled to 115 days jail time credit in 2022-CR-320. Appellant acknowledges that State v.

Cupp, 156 Ohio St.3d 207, 2018-Ohio-5211, 124 N.E.3d 811 and State v. Fugate, 117

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Case Nos. 2023-L-006, 2023-L-007
Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440 hold that a defendant sentenced to

consecutive terms is only entitled to have jail time credit applied to one prison term, which

“gives full credit that is due because the credit reduces the entire length of the prison

sentences.” Fugate at ¶ 22. However, he argues that his case is dissimilar from Cupp and

Fugate because appellant “was not serving a sentence while incarcerated. He was

awaiting trial on both of these unrelated cases” and therefore serving time on both cases.

{¶74} This argument is not persuasive because it results in equal protection

violations for individuals who post bond on their cases and are subsequently sentenced

to consecutive sentences. “The practice of awarding jail-time credit has its roots in the

Equal Protection Clauses of the Ohio and United States Constitutions.” Perkins at ¶ 13,

citing Fugate at ¶ 7. “Since the Equal Protection Clause does not tolerate disparate

treatment of defendants based solely on their economic status, the United States

Supreme Court has repeatedly struck down rules and practices that discriminate against

defendants based solely on their inability to pay fines and fees.” Id.

{¶75} R.C. 2967.191(A) provides that the “department of rehabilitation and

correction shall reduce the prison term of a prisoner * * * by the total number of days that

the prisoner was confined for * * * arising out of the offense for which the prisoner was

convicted and sentenced, including confinement in lieu of bail while awaiting trial * * *.”

{¶76} Where, as here, a defendant is ordered to serve a consecutive sentence,

Ohio Adm. Code 5120-2-04(G) provides that jail-time credit is applied only once, to the

total term for offenders serving consecutive terms. Perkins at ¶ 16, citing Fugate at ¶ 10.

{¶77} Appellant essentially argues for 230 days of jail time credit saying that he

should receive jail time credit for both offenses despite being ordered to serve

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Case Nos. 2023-L-006, 2023-L-007
consecutive sentences. This argument violates the principles of equal protection because

it would benefit a defendant who did not make bond over a defendant who did. See

Perkins, supra, at ¶ 13. The trial court sentenced appellant to a total of 22-months in

prison and he received jail time credit for the total number of days he spent in jail prior to

sentencing. Appellant seeks to double count 115 days of his jail time credit because he

was awaiting trial on both cases and had not yet been sentenced on either case. If

appellant’s argument were accepted, his total incarceration would be 115 days shorter

than a similarly situated defendant who posted bond and was ordered to serve two

consecutive sentences. Appellant was sentenced to 22-months total incarceration and

will serve 22-months total incarceration based on the trial court’s calculation of his jail

time credit.

{¶78} Appellant will serve the same number of days incarceration as a defendant

who did post bond and received the same consecutive sentence. This outcome ensures

equal protection under the law. See State v. Whitaker, 4th Dist. Ross No. 02CA2691,

2003-Ohio-3231, ¶ 7-8.

{¶79} Accordingly, appellant’s fifth assignment of error is without merit.

{¶80} For the foregoing reasons, the judgments of the Lake County Court of

Common Pleas are affirmed.

EUGENE A. LUCCI, J.,

ROBERT J. PATTON, J.,

concur.

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Case Nos. 2023-L-006, 2023-L-007