State v. Harrell

[Cite as State v. Harrell, 2024-Ohio-981.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY

STATE OF OHIO :
:
Appellee : C.A. No. 2022-CA-50
:
v. : Trial Court Case No. 21-CR-0408(A)
:
OTHELLO HARRELL : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:

...........

OPINION

Rendered on March 15, 2024

...........

CARLO C. MCGINNIS, Attorney for Appellant

ROBERT C. LOGSDON, Attorney for Appellee

.............

LEWIS, J.

{¶ 1} Defendant-Appellant Othello Harrell appeals from his conviction in the Clark

County Common Pleas Court, following a jury trial, for engaging in a pattern of corrupt

activity and two counts of aggravated trafficking in drugs. For the following reasons, we

will reverse the judgment of the trial court.

I. Procedural History and Brief Statement of Facts
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{¶ 2} Detectives from the Springfield Police Department received information in June

2020 that Harrell was dealing methamphetamine out of his apartment. An investigation

ensued, including using a confidential informant (“CI”) to purchase drugs from Harrell on

two occasions in July 2020. On August 10, 2020, police obtained a search warrant for

Harrell’s apartment, and it was executed the following day. Immediately prior to the

execution of the search warrant, officers detained Harrell during a traffic stop and

confiscated his cell phone. Pursuant to the issuance of a subsequent search warrant,

officers obtained the contents of Harrell’s cell phone, including numerous text messages

between Harrell and other individuals believed to be engaged in the sale and possession

of methamphetamines.

{¶ 3} On June 29, 2021, Harrell was indicted by a Clark County grand jury on one

count of engaging in a pattern of corrupt activity, in violation of R.C. 2923.32(A)(1), a felony

of the first degree (“Count One”); one count of aggravated trafficking in drugs, in violation

of R.C. 2925.03(A)(2), a felony of the second degree (“Count Two”); one count of

aggravated possession of drugs, in violation of R.C. 2925.11(A), a felony of the second

degree (“Count Three”); one count of aggravated trafficking in drugs, in violation of R.C.

2925.03(A)(2), a felony of the third degree (“Count Four”); and one count of aggravated

possession of drugs, in violation of R.C. 2925.11(A), a felony of the third degree (“Count

Five”). The indictment also included a forfeiture specification attached to Counts Two

through Five for $3,455 in U.S. currency. These charges were based on the investigation

that occurred in the summer of 2020. In total, the indictment contained 122 various counts

for eight co-defendants.
 -3-

{¶ 4} On August 13, 2021, the State filed a certification of non-disclosure of material

in accordance with Crim.R. 16(D), identifying certain material, including redacted

information in the discovery packet, that would not be disclosed due to the risk of physical

harm, intimidation, or coercion of confidential informants. A bill of particulars was also filed

by the State.

{¶ 5} On January 21, 2022, Harrell filed a motion to suppress challenging the

admissibility of evidence obtained from the searches of his home and cell phone and the

lawfulness of his traffic stop and detention, which led to statements allegedly obtained in

violation of Harrell’s rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966). Following a hearing on the motion to suppress, the trial court

overruled Harrell’s motion in its entirety.

{¶ 6} On March 10, 2022, Harrell filed a motion to disclose information regarding

cooperating witnesses and informants. The trial court sustained in part and denied in part

Harrell’s motion. The portions that were denied included information involving the CI and

disclosure of the identity of the CI. In particular, any evidence of audio, video, or electronic

recordings of the controlled drug purchase, which was alleged in the affidavit for the search

warrant involving the CI, was not required to be disclosed to defense counsel until the day

of trial.

{¶ 7} On May 2, 2022, Harrell filed a motion for disclosure of the CI and related

information, requesting that the State disclose the information at least two weeks prior to

trial. That same day, Harrell filed a supplemental motion to suppress regarding pretrial

identification. The State filed a response to Harrell’s motion for disclosure of the CI and
 -4-

related information. The trial court ruled that the State was not required to disclose the

identity of the CI until the day of trial. The trial court also overruled Harrell’s supplemental

motion to suppress without a hearing on May 20, 2022, finding that it was untimely and that

it would not be in the best interest of justice to extend the time limit for filing a pretrial motion

to suppress to accommodate the supplemental motion.

{¶ 8} On June 15, 2022, Harrell filed a motion in limine to prohibit the State from

introducing any evidence of alleged misconduct involving criminal convictions, alleged

criminal conduct, or any other ongoing investigations for which Harrell had not yet been

indicted. That same day, Harrell filed a second motion in limine to prevent the State from

introducing testimony of four witnesses the State had listed in its amended witness list,

including alleged co-defendants.

{¶ 9} Following the State’s response to each of Harrell’s motions in limine, the trial

court overruled the motions as it related to the four potential witnesses and indicated it

would need additional information to rule on whether Harrell’s prior convictions were

expected to be used before the trial court would issue a ruling. The trial court further

indicated it would consider any of Harrell’s objections at trial as to any alleged improper

testimony, thus reserving any ruling on the admissibility of other evidence.

{¶ 10} On June 28, 2022, a jury trial commenced detailing the investigation of the

Springfield Police Department, including evidence of the two drug buys, the contents of

Harrell’s cell phone, and testimony from the CI, co-defendants, and law enforcement.

Harrell was found guilty as charged on all counts.

{¶ 11} Harrell was sentenced on July 11, 2022. The court merged Count Three into
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Count Two and merged Count Five into Count Four based on the State’s election. Harrell

was sentenced to an indefinite prison term of 11 to 16½ years for Count One (engaging in

a pattern of corrupt activity); an indefinite prison term of 8 to 12 years for Count Two

(second-degree aggravated trafficking in drugs); and a definite prison term of 3 years for

Count Four (third-degree aggravated trafficking in drugs). The trial court ordered the

sentences to be served consecutively for a total indefinite prison term of 22 to 27½ years.

The trial court also imposed a mandatory minimum fine for the second-degree felony of

$7,500 and a mandatory minimum fine for the third-degree felony of $5,000. Finally, the

trial court ordered that $3,455 be forfeited in accordance with the forfeiture specification.

{¶ 12} Harrell filed a timely appeal and raises the following four assignments of error:

I. APPELLANT WAS DENIED HIS DUE PROCESS RIGHTS TO A FAIR

TRIAL UNDER OHIO AND FEDERAL CONSTITUTIONS.

II. APPELLANT’S CONVICTIONS FOR COUNT TWO AND COUNT

THREE FOR AGGRAVATED TRAFFICKING AND POSSESSION OF

DRUGS SHOULD BE REVERSED BECAUSE THEY WERE AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR THE

EVIDENCE WAS INSUFFICIENT.

III. APPELLANT’S CONVICTION UNDER OHIO RICO STATUTE

SHOULD BE REVERSED BECAUSE IT IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE AND/OR THE EVIDENCE WAS

INSUFFICIENT.

IV. CUMULATIVE EFFECT OF THE MULTIPLE ERRORS IN THIS CASE
 -6-

VIOLATED APPELLANT’S CONSTITUTIONALLY GUARANTEED

RIGHT TO A FAIR TRIAL.

II. First Assignment of Error

{¶ 13} In his first assignment of error, Harrell raises five sub-arguments under the

umbrella claim that he was denied his due process right to a fair trial. These arguments

include: 1) the trial court erred in overruling his motions to suppress evidence; 2) the trial

court erred in denying his motions requesting disclosure of the CI and additional discovery

associated with the CI; 3) the trial court erred in admitting certain evidence at trial; 4) the

trial court erred in overruling his motion for a mistrial and Crim.R. 29 motion for acquittal;

and 5) the trial court failed to provide adequate jury instructions and responses to jury

questions. Because we conclude that the trial court erred in failing to grant one of Harrell’s

motions to suppress, we need not address his additional due process arguments except

for his Crim.R. 29 claim, which we will address as part of his sufficiency of the evidence

assignments of error.

{¶ 14} Harrell’s first motion to suppress concerned the lawfulness of Harrell’s

warrantless detention and the seizure of his cell phone. The second motion concerned a

pretrial identification of Harrell. We will begin our analysis with the trial court’s decision

overruling Harrell’s January 21, 2022 motion to suppress concerning Harrell’s warrantless

detention.

a. Motion to Suppress Regarding the Warrantless Seizure

{¶ 15} On January 21, 2022, Harrell filed a motion to suppress challenging the

admissibility of evidence obtained from searches of his home and cell phone and the
 -7-

lawfulness of his traffic stop and detention, which led to the seizure of his cell phone and

statements allegedly obtained in violation of his Miranda rights. A hearing was held on the

motion to suppress on April 21, 2022, at which Detective Calvin Burch and Officer Paige

Rector of the Springfield Police Department testified on behalf of the State. The following

is a summary of the testimony and evidence that was presented at the suppression hearing.

{¶ 16} Detective Burch was a seven-year veteran of the Springfield Police

Department and was involved in the Drug Investigation Unit in June 2020. Around June

15, 2020, Detective Burch met with a CI, later identified at trial as Amber Yeager, who

informed him of a methamphetamine supplier by the name of “Cuz,” later identified as

Harrell. On June 25, 2020, Yeager provided additional information about Harrell and

another individual named Jeremy Barclay, who was later charged as a co-defendant.

According to Yeager, Harrell was Barclay’s methamphetamine supplier. During Detective

Burch’s investigation of Harrell, Yeager personally bought methamphetamines from Harrell

during two controlled buys that were recorded. The undercover buys were arranged via

cell phone, with Harrell’s phone number being provided to Detective Burch via Yeager.

Based on Detective Burch’s own investigation, including the controlled buys, surveillance,

talking to additional CIs, and phone records, he believed “Cuz” was Harrell. After showing

a photograph of Harrell to Yeager, she confirmed that Harrell was in fact “Cuz.”

{¶ 17} On August 10, 2022, Detective Burch obtained a search warrant for 351 and

351½ Ludlow Avenue in Springfield, which were two separate residences but a single

structure similar to a duplex. The search warrant did not include specific permission to

search Harrell or his vehicle. According to Detective Burch, Harrell appeared to be
 -8-

primarily staying at 351½ Ludlow Avenue based on Harrell’s staying there overnight 5-6

days a week, parking his car there, and coming and going from the residence. The other

side of the building, 351 Ludlow Avenue, was associated with Barclay for similar reasons.

{¶ 18} Uniformed officers were assigned to conduct a traffic stop on Harrell

immediately prior to the execution of the search warrant on August 11, 2022. According

to Detective Burch, it was standard protocol to separate a suspect from the house prior to

the execution of a search warrant for officer safety reasons. Detective Burch testified that

Harrell had previously been observed with firearms by Yeager, and Detective Burch was

aware from his experience that drugs and firearms often go hand in hand. Once Harrell

was observed leaving the house, Detective Burch radioed the assisting units to conduct a

traffic stop on Harrell. Burch testified that Harrell was stopped about a block-and-a-half or

two blocks away from the residence solely for officer safety reasons, and the uniformed

officers brought Harrell back so he could be present during the search of the residence.

{¶ 19} Officer Rector testified that on the day of the search, she was working as a

uniform patrol officer assigned to road patrol with her partner Officer Hays. The officers

were notified that they were to assist the drug unit with their execution of a search warrant

by conducting a traffic stop on Harrell once he left the residence. Based on her

assignment, Officer Rector conducted a traffic stop on Harrell’s vehicle using the police

cruiser’s lights and siren. There were no traffic infractions or any other violations that

occurred prior to stopping Harrell, and the detention was solely based on the fact that the

officers were executing a search warrant.

{¶ 20} When the officers approached Harrell’s vehicle, they ordered Harrell, the sole
 -9-

occupant, to step out of the car and informed him that he was being detained in relation to

a search warrant. Officer Rector testified that Harrell was removed from the vehicle and

detained for officer safety. Officer Rector’s partner, Officer Hays, then conducted “a

search on [Harrell] to make sure he didn’t have any weapons.” At some point the officers

located a cell phone on Harrell’s person, which they confiscated “to separate him from his

phone for officer safety reasons.” Rector was unable to testify where Harrell’s phone had

been located, e.g., in his hand or a pocket, other than that it was on his person and not in

his car. Rector also explained that it was standard protocol to pat down anyone prior to

putting them in a police cruiser and to take anything from them that was in their possession.

Harrell was handcuffed, placed in the back of the police car, and driven to 351½ Ludlow

Avenue, which was “a couple blocks away” from where he had been stopped.

{¶ 21} After returning Harrell to 351½ Ludlow Avenue, Detective Burch spoke to

Harrell, who remained in the back seat of the patrol car, and read him his Miranda warnings.

Harrell indicated he did not wish to speak to the officers at that time. While at the

residence, Harrell consented in writing to a search of his vehicle. Once the vehicle had

been searched, Harrell was told he was free to leave, and he left. At no point was Harrell

arrested on August 11, 2022, and his phone was not returned to him.

{¶ 22} Following the presentation of evidence at the hearing, the primary question

for the trial court was whether the warrantless seizure and subsequent search of Harrell fell

within an applicable exception to the Fourth Amendment's warrant requirement. The State

argued that the officers had been permitted to detain Harrell in the manner they did based

on Bailey v. United States, 568 U.S. 186, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013), which
 -10-

“allows for that type of protocol for officer safety.” Supp. Tr. 58. The State offered no

explanation for why officers confiscated Harrell’s cell phone without a warrant.

{¶ 23} The trial court found that under Bailey, the common practice of the Springfield

Police Department to stop a suspect a couple of blocks away from a residence that was

the subject of a search warrant was unconstitutional. Nevertheless, the trial court found

that Harrell’s warrantless detention had been lawful because Officers Rector and Hays had

had probable cause to believe that Harrell was engaged in criminal activity. The trial court

explained its holding as follows:

[The officers] were told to make a stop because detectives had obtained a

search warrant to search his premises. These officers might not have

known the intricacies of the criminal activity in which the defendant was

engaged, but they knew it was drug activity since it was the drug unit that

had requested their assistance. They also knew, by dint of the fact that a

search warrant had just been obtained, that a Judge had just made a

probable cause determination that the defendant was engaged in drug

activity. These circumstances, and the officers’ knowledge of the same,

warranted the stop.

Entry (May 3, 2022).

{¶ 24} Harrell argues that the trial court erred in overruling his motion to suppress

because his warrantless seizure was illegal, and therefore his cell phone, which was

confiscated during the stop and subsequently searched, should have been excluded from

evidence as fruit of the poisonous tree. The State, on the other hand, has abandoned its
 -11-

reliance on Bailey and instead attempts to impute the information identified in the search

warrant to the seizing officers using the collective knowledge doctrine. Therefore,

according to the State, under the totality of the circumstances, the officers had reasonable

suspicion, if not probable cause, to believe that Harrell was involved in drug trafficking to

justify the investigatory stop and pat-down. We conclude that Harrell’s seizure was

unconstitutional.

i. Standard of Review

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

and fact. When considering a motion to suppress, the trial court assumes the role of trier

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

credibility of witnesses.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8, citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). “An

appellate court must accept the trial court's findings of fact if they are supported by

competent, credible evidence.” State v. Hawkins, 158 Ohio St.3d 94, 2019-Ohio-4210,

140 N.E.3d 577, ¶ 16. “Accepting those facts as true, the appellate court must then

independently determine, as a matter of law and without deference to the trial court's legal

conclusion, whether the applicable legal standard is satisfied.” State v. Isaac, 2d Dist.

Montgomery No. 20662, 2005-Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d

586, 639 N.E.2d 498 (2d Dist.1994). “The application of the law to the trial court's findings

of fact is subject to a de novo standard of review.” (Citations omitted.) State v. Turner,

2015-Ohio-4612, 48 N.E.3d 981, ¶ 10 (2d Dist.).

ii. Warrantless Seizure
 -12-

{¶ 26} “The Fourth Amendment to the United States Constitution, and Section 14,

Article I of the Ohio Constitution, protect individuals from unreasonable searches and

seizures conducted by police officers.” State v. Ferguson, 2d Dist. Montgomery No.

28644, 2020-Ohio-4153, ¶ 12. “With respect to felony cases, [the Ohio Supreme Court]

has interpreted Article I, Section 14 of the Ohio Constitution as providing the same

protections as the Fourth Amendment.” State v. Jordan, 166 Ohio St.3d 339, 2021-Ohio-

3922, 185 N.E.3d 1051, ¶ 14, citing State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483,

37 N.E.3d 123, ¶ 12. “For violations of the Fourth Amendment, courts are commanded to

apply the exclusionary rule, suppressing use of any evidence that was illegally obtained.”

State v. Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, 882 N.E.2d 960, ¶ 25 (2d Dist.),

citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

{¶ 27} “The touchstone of the Fourth Amendment is reasonableness.” Florida v.

Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), citing Katz v. United

States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “Reasonableness, in

turn, is measured in objective terms by examining the totality of the circumstances.” Ohio

v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). “Warrantless

searches and seizures are per se unreasonable under the Fourth Amendment, absent a

few, well recognized exceptions.” State v. Johnson, 187 Ohio App.3d 322, 2010-Ohio-

1790, 931 N.E.2d 1162, ¶ 11 (2d Dist.), citing Katz. “One of those exceptions is the rule

regarding investigative stops, announced in Terry [v. Ohio], 392 U.S. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889 [(1968)], which provides that a police officer may stop an individual to

investigate unusual behavior, even absent a prior judicial warrant or probable cause to
 -13-

arrest, where the officer has a reasonable, articulable suspicion that specific criminal

activity may be afoot.” State v. Cosby, 177 Ohio App.3d 670, 2008-Ohio-3862, 895 N.E.2d

868, ¶ 16 (2d Dist.).

{¶ 28} Where an officer stops a vehicle and detains its occupants, a “seizure” has

occurred within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S.

648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Once a warrantless seizure is

established, the State bears the burden of proving that the warrantless seizure satisfies the

reasonableness standards of the Fourth Amendment. Maumee v. Weisner, 87 Ohio St.3d

295, 297, 720 N.E.2d 507 (1999).

iii. Analysis

{¶ 29} In this case, there is no dispute that Harrell was seized for Fourth Amendment

purposes at the time the officers stopped his vehicle and, further, that the officers did not

have a warrant for his arrest. To justify this warrantless seizure, the State relied on Bailey,

568 U.S. 186, 133 S.Ct. 1031, 185 L.Ed.2d 19. According to the State’s argument at the

suppression hearing, because the officers were executing a search warrant for suspected

drug trafficking on Harrell’s home and there were concerns for officer safety, Bailey

permitted the officers to lawfully stop Harrell away from the home. The trial court explicitly

rejected this argument, finding that stopping Harrell a couple of blocks away from the

residence for officer safety prior to the execution of the search warrant was not permitted

under Bailey. We agree with the trial court.

{¶ 30} In Bailey, police obtained a search warrant for an apartment based on a

confidential informant’s telling police that he had observed a gun while he was at the
 -14-

apartment to purchase drugs. Id. at 190. Prior to executing the warrant, two officers,

Detectives Richard Sneider and Richard Gorbecki, who were conducting surveillance on

the apartment, observed two individuals who both matched the general description of the

alleged drug dealer leave the apartment and get into a car. The officers followed the car

for approximately one mile before pulling the vehicle over in a parking lot. The two

occupants of the vehicle, Chunon Bailey and Bryant Middleton, were removed from the

vehicle and patted down. The officers discovered a key ring in Bailey’s pocket and

removed it. Id. After making statements admitting that Bailey was the resident of the

apartment that was being searched, Bailey was informed that he was being detained

incident to the execution of a search warrant. Bailey immediately denied living at the

apartment and claimed that anything the officers found there did not belong to him. Id. at

191.

{¶ 31} Both Bailey and Middleton were driven back to Bailey’s residence. By the

time the group had returned to the apartment, officers had recovered a gun and drugs in

plain view. Both Bailey and Middleton were arrested, and Bailey’s keys were seized

incident to his arrest; the keys were later verified to access the door of the apartment. Id.

{¶ 32} Based on the search, Bailey was charged with multiple federal gun and drug

offenses. Bailey filed a motion to suppress the apartment key and statements he made

when stopped by police, which Bailey argued were derived from an unreasonable seizure.

The trial court overruled Bailey’s motion, and Bailey was subsequently convicted following

a jury trial. Id. at 191-192.

{¶ 33} By the time Bailey reached the United States Supreme Court, the sole
 -15-

question to be determined was whether it had been reasonable to stop and detain Bailey

when he was away from the premises to be searched pursuant to a valid search warrant,

when the only justification for the detention was to ensure the safety and efficacy of the

search. In deciding the issue, the Supreme Court considered its prior decision in Michigan

v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), which permitted officers

executing a search warrant “to detain the occupants of the premises while a proper search

is conducted.” Id. at 705. The reasoning in Summers was that the following three

important law enforcement interests, taken together, justified the detention of an occupant

who was on the premises during the execution of a judicially-authorized search warrant:

officer safety, facilitating the completion of the search, and preventing flight. Id. at 702-

703. With those interests in mind, the Bailey Court concluded that none of them applied

“with the same or similar force to the detention of recent occupants beyond the immediate

vicinity of the premises to be searched.” Bailey at 199. Thus, “[t]he categorical authority

to detain incident to the execution of a search warrant must be limited to the immediate

vicinity of the premises to be searched.” Id. As the Supreme Court explained, “[l]imiting

the rule in Summers to the area in which an occupant poses a real threat to the safe and

efficient execution of a search warrant ensures that the scope of the detention incident to

a search is confined to its underlying justification. Once an occupant is beyond the

immediate vicinity of the premises to be searched, the search-related law enforcement

interests are diminished and the intrusiveness of the detention is more severe.” Id. at 201.

{¶ 34} Although the Supreme Court declined to provide a definition of “immediate

vicinity,” the Court provided a list of potential factors to consider in determining whether an
 -16-

occupant was detained within the immediate vicinity of the premises to be searched.

These factors include, but are not limited to, “the lawful limits of the premises, whether the

occupant was within the line of sight of his dwelling, [and] the ease of reentry from the

occupant’s location[.]” Id.

{¶ 35} In this case, Detective Burch and Officer Rector relied solely on the law

enforcement interest of officer safety to justify the detention of Harrell. Similar to the

situation in Bailey, however, Harrell had left the premises to be searched, without

knowledge of the search, and he posed little risk to the officers who remained on scene.

See id. at 195-196. It is apparent from the testimony at the motion to suppress hearing

that Harrell was not within the lawful limits of the premises and could not have easily

reentered his residence from his location a couple of blocks away. There was no

testimony provided to indicate whether Harrell was within the line of sight of his residence

or any other evidence to indicate Harrell was within the “immediate vicinity” of his residence

at the time officers stopped him. Accordingly, based on the evidence presented, the trial

court correctly determined that the officers’ detention of Harrell a few blocks away from his

residence based solely on the execution of the search warrant and for officer safety was

unconstitutional pursuant to Bailey. However, this did not end the trial court’s inquiry and,

likewise, does not end ours.

{¶ 36} As the United States Supreme Court explained in Bailey, “[i]f officers elect to

defer the detention until the suspect or departing occupant leaves the immediate vicinity,

the lawfulness of detention is controlled by other standards, including, of course, a brief

stop for questioning based on reasonable suspicion under Terry, or an arrest based on
 -17-

probable cause.” Bailey at 202. The Court then gave examples of what would be needed

to allow the detention once the officer safety justification was rejected:

A suspect's particular actions in leaving the scene, including whether he

appears to be armed or fleeing with the evidence sought, and any

information the officers acquire from those who are conducting the search,

including information that incriminating evidence has been discovered, will

bear, of course, on the lawfulness of a later stop or detention. For

example, had the search team radioed Detectives Sneider and Gorbecki

about the gun and drugs discovered in the Lake Drive apartment as the

officers stopped Bailey and Middleton, this may have provided them with

probable cause for an arrest.

Id.

{¶ 37} Finally, the Court directed the Court of Appeals on remand to address the trial

court’s finding that the police officers’ stop of Bailey was lawful under Terry. Id. If the

court of appeals agreed that the Terry stop was valid, then it was to determine whether the

Terry stop “yielded information that justified the detention the officers then imposed.” Id.

{¶ 38} In the present case, the State did not present testimony that Harrell had been

pulled over to conduct an investigatory stop under Terry or to arrest him based on probable

cause. Rather, the State’s evidence established that the sole reason the police seized

Harrell was to further safety considerations for the other police officers who were going to

execute a search warrant of the location Harrell had left. This was expressly prohibited by

Bailey.
 -18-

{¶ 39} Although the State made no such argument, the trial court found that Harrell

had been lawfully stopped by the police because “Officers Rector and Hayes had more

than a reasonable suspicion, but probable cause to believe that [Harrell] was engaged in

criminal activity.” The basis for the trial court’s finding was that the officers who stopped

Harrell had been aware that the drug unit was executing a search warrant for Harrell’s

apartment and, therefore, had probable cause to believe that Harrell had been engaged in

drug activity. We do not agree with the trial court’s conclusion.

{¶ 40} “The United States Supreme Court has stated that a traffic stop is

constitutionally valid if an officer has a reasonable and articulable suspicion that a motorist

has committed, is committing, or is about to commit a crime.” (Citations omitted.) State

v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7. When a police

officer conducts a traffic stop based on reasonable articulable suspicion that a traffic

violation has occurred or was occurring, the stop is not unreasonable under the Fourth

Amendment. Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), syllabus. But

if the traffic stop is not based on a perceived traffic violation, as was the case here, then

the officer must have either reasonable articulable suspicion or probable cause to believe

that the person to be stopped is engaged in, or is about to be engaged in, criminal activity.

Terry, 392 U.S. at 21, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Tidwell, 165 Ohio St.3d 57,

2021-Ohio-2072, 175 N.E.3d 527, ¶ 19.

{¶ 41} “In Terry, the United States Supreme Court ‘implicitly acknowledged the

authority of the police to make a forcible stop of a person when the officer has reasonable,

articulable suspicion that the person has been, is, or is about to be engaged in criminal
 -19-

activity.’ ” State v. Hawkins, 158 Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶ 19,

quoting United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

“Reasonable suspicion entails some minimal level of objective justification for making a

stop—that is, something more than an inchoate and unparticularized suspicion or ‘hunch,’

but less than the level of suspicion required for probable cause.” State v. Jones, 70 Ohio

App.3d 554, 556-57, 591 N.E.2d 810 (2d Dist.1990), citing Terry at 27. Such an

investigatory stop “by a police officer must be viewed in light of the totality of the surrounding

circumstances.” State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980),

paragraph one of the syllabus. “The investigatory detention is limited in duration and

purpose and can only last as long as it takes a police officer to confirm or to dispel his

suspicions.” State v. Taylor, 106 Ohio App.3d 741, 748, 667 N.E.2d 60 (2d Dist.1995),

citing Terry.

{¶ 42} In this case, Harrell was observed leaving his residence, getting into a vehicle,

and driving away. The officers did not testify that they suspected him of engaging in any

criminal activity at the time he left his home or that any traffic violation was observed.

While the trial court noted that the officers were aware that a search warrant was being

executed for Harrell’s residence and it was the drug unit involved in executing the search

warrant, this did not rise to the level of reasonable articulable suspicion to justify Harrell’s

detention. If that were the case, then officers would be permitted to stop any inhabitant

who has left a residence that is about to be searched by a drug unit. That is unreasonable

and contrary to Bailey. Likewise, the fact that probable cause was found for a search

warrant of a residence to be issued is not the same as determining that a particular person
 -20-

was engaged in, is engaged in, or is about to engage in criminal activity to justify a Terry

stop. To grant a search warrant for a residence, the reviewing magistrate must decide

whether there is sufficient probable cause to believe that “there is a fair probability that

evidence of a crime will be found in a particular place.” State v. Castagnola, 145 Ohio

St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 35. Given that the search warrant at issue

here sought the search of a place rather than a person, the sufficiency of the probable

cause related to the location to be searched, not an individual. Probable cause to search

a residence is not synonymous with probable cause to separately detain an individual for

suspected criminal activity. As Detective Burch acknowledged, the search warrant was

neither for Harrell’s person nor his vehicle.

{¶ 43} None of the circumstances preceding the officers' detention of Harrell created

a reasonable suspicion that he had just been involved in criminal activity, was involved in

criminal activity, or was about to be involved in criminal activity to necessitate a stop for a

limited investigation to confirm or dispel that suspicion. Rather, the sole reason for

stopping Harrell was that officers were executing a search warrant at his home, which was

standard protocol for officer safety. Under Bailey, however, that practice was

unconstitutional. Accordingly, the officers lacked reasonable articulable suspicion to stop

Harrell.

iv. Collective Knowledge Doctrine

{¶ 44} The State contends that the officers who stopped Harrell had at least

reasonable articulable suspicion, if not probable cause, to detain Harrell due to the

collective knowledge doctrine. The trial court did not address the collective knowledge
 -21-

doctrine in its decision, because the State failed to raise this argument before the trial court.

“A first principle of appellate jurisdiction is that a party ordinarily may not present an

argument on appeal that it failed to raise below.” (Citations omitted.) State v.

Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, 145 N.E.3d 278, ¶ 10. “It is well

established that a party cannot raise new issues or legal theories for the first time on appeal

because such issues or theories are deemed waived.” (Citations omitted.) State v.

Keating, 12th Dist. Clermont No. CA2019-08-064, 2020-Ohio-2770, ¶ 27. Even if this

argument were not waived, our conclusion would not change if we applied the collective

knowledge doctrine to the facts of this case.

{¶ 45} According to the State, “[t]hrough the doctrine of collective knowledge, the

officers conducting the traffic stop were aware of the facts that were contained in the search

warrant.” Brief of Appellee at p. 10. The State argues that, based on the totality of those

facts, the officers had reasonable suspicion, if not probable cause, to believe that Harrell

was involved in drug trafficking in order to justify his detention.

{¶ 46} “[C]ourts have recognized the ‘collective knowledge doctrine,’ which permits

police officers to rely on information provided to them by other officers in helping to establish

probable cause or reasonable suspicion.” State v. Jones, 2d Dist. Montgomery No. 23926,

2011-Ohio-1984, ¶ 20. “ ‘Reasonable suspicion may exist based upon the collective

knowledge of the police when there is reliable communication between the officer supplying

the information and the officer acting on that information.’ ” State v. Mook, 9th Dist. Wayne

No. 97CA0069, 1998 WL 417461, *3 (July 15, 1998), quoting United States v. Allison, 616

F.2d 779, 782 (5th Cir.1980).
 -22-

{¶ 47} “Collective knowledge may be applied horizontally and vertically.” State v.

Ojezua, 2016-Ohio-2659, 50 N.E.3d 14, ¶ 31 (2d Dist.), citing United States v. Chavez, 534

F.3d 1338, 1345 (10th Cir.2008). Horizontal application of the collective knowledge

doctrine considers situations where several officers have “pieces of the probable cause

puzzle,” but no single officer possesses sufficient information to satisfy the probable cause

standard, and the trial court must determine whether the officers communicated the

information they possessed to other officers, thereby pooling their information to meet the

probable cause threshold. Id. Vertical application of the collective knowledge doctrine,

on the other hand, is where one officer has enough information to establish probable cause

on his or her own and instructs another officer to act, even though the entire basis for the

probable cause is not communicated to the officer who is merely following the directions.

Id. “Under such circumstances, the State must show that the officer who provided the

information had a valid reasonable suspicion of criminal activity or sufficient facts adding

up to probable cause.” (Citations omitted.) State v. Hammer, 2023-Ohio-1307, 213

N.E.3d 238, ¶ 23 (2d Dist.).

{¶ 48} Although the State now relies upon the collective knowledge doctrine to justify

the warrantless detention of Harrell, it is dubious whether the evidence adduced at the

hearing on the motion to suppress supported the application of the collective knowledge

doctrine to the facts of this case. Detective Burch testified that on the day the search

warrant was executed, he was working as part of a unit which was being assisted that day

by Officer Bowshier. Supp. Tr. 14. He then testified that Officer Bowshier was working

with “Officer Hays and a couple other uniform patrols.” Id. at 15. No other information
 -23-

was given about Officer Bowshier. Detective Burch stated that Officers Rector and Hays,

who were in the same car that day, were assigned to make a traffic stop on Harrell prior to

the search warrant’s execution. Id. at 16. When Harrell was seen leaving the residence,

Detective Burch radioed to the “assisting units” to initiate a traffic stop. He did not identify

who he had radioed or what he stated over the radio, and it is unclear from his testimony

whether the officers who stopped Harrell in fact had received his message.

{¶ 49} Officer Rector testified that she and her partner, Officer Hays, had been

assigned to road patrol on the day the search warrant was executed. Id. at 18. She

testified that they were notified that they were to assist on an investigation with the drug

unit. She understood her assignment to be that, when Harrell left the residence, she was

to conduct a traffic stop and detain him, which she did. Id. at 49. Officer Rector did not

identify who contacted her to explain her role that day. Officer Rector did not testify that

Detective Burch had directed her to conduct a traffic stop or even that she conducted a

traffic stop based on hearing information over the radio. Officer Hays did not testify at the

hearing.

{¶ 50} Under these facts, the State failed to identify who communicated the directive

to detain Harrell to Officers Rector and Hays. Without such testimony, we cannot

determine whether these officers acted upon Detective Burch’s communications, and he

was the only person identified at the hearing as knowing the contents of the search warrant.

While it is possible that Officer Rector was instructed by Detective Burch to detain Harrell,

or that she received and reacted to a radio communication to stop Harrell, we cannot

eliminate the alternative possibilities that Officers Rector and/or Hays were contacted by
 -24-

some other law enforcement officer who had no knowledge whatsoever of the basis for the

search warrant or that Officer Rector observed Harrell leaving the apartment and performed

a traffic stop because that was her assignment pursuant to the standard protocol of the

police department to stop individuals who were leaving the location of a search warrant. It

was incumbent upon the State to connect the communications between Detective Burch

and the detaining officers to demonstrate that an officer who had knowledge of the basis

for the reasonable articulable suspicion or probable cause actually transmitted the

instruction to another officer, who received and then acted upon this instruction. United

States v. De La Rosa-Calderon, 511 F.Supp.3d 1202, 1210 (D.Colo.2021). The State

failed to present the necessary testimony at the suppression hearing to establish that the

collective doctrine applied. State v. Reno, 2017-Ohio-4326, 91 N.E.3d 1255, ¶ 16 (2d

Dist.) (“At a suppression hearing, the State bears the burden of proof that a warrantless

search or seizure was reasonable for Fourth Amendment purposes.”).

{¶ 51} Nevertheless, even if the collective doctrine had applied, Detective Burch

made it clear that Harrell was not being pulled over for investigative purposes or to arrest

him. Harrell was pulled over and detained solely for officer safety reasons in conjunction

with the execution of the search warrant per standard protocol. Detective Burch testified

that Officers Rector and Hays were assigned to make a traffic stop on Harrell before the

police entered the residence to conduct the search, because it was standard protocol to

isolate the primary target from the residence to provide “more safety for the investigators

to enter the residence.” Supp. Tr. 15. Detective Burch believed there was “case law”

holding that “if you deem a suspect to be a threat of any type * * *, as long as you see that
 -25-

individual leave whatever residence you have a search warrant for and you stop them in

an appropriate amount of time,” such as within a mile, “and [brought] him back for the

search of that warrant then that is okay.” He testified that Harrell was stopped within 1½

to two blocks of the residence. Burch also testified that such stops associated with

execution of search warrants were “our common practice of what we do for our safety and

our safety only.” Supp. Tr. 25-26.

{¶ 52} Officer Rector likewise testified that she was assigned to assist the drug unit

in executing a search warrant by conducting a traffic stop on Harrell to detain him once he

left the residence. She denied that there was any traffic infraction or any other violation

that occurred prior to stopping Harrell; the detention was solely based on the fact that other

officers were executing a search warrant. When the officers removed Harrell from his

vehicle, they informed him that he was being detained in reference to a search warrant.

Officer Rector did not testify that the stop was made to investigate potential ongoing or past

criminal behavior or to conduct an arrest. She also did not identify any movement or action

by Harrell that created a suspicion that he may have been armed or fleeing the location of

the search warrant with the evidence sought.

{¶ 53} The justification originally given by the State and the testimony provided by

law enforcement officers at the suppression hearing put the traffic stop squarely within the

category of detentions expressly prohibited by Bailey. “As with any traditional investigative

stop, a traffic stop based on collective knowledge must be supported by a proper basis and

must remain reasonably related in its scope to the situation at hand.” United States v.

Lyons, 687 F.3d 754, 766 (6th Cir.2012). Given that no Fourth Amendment exception
 -26-

permitted Harrell’s stop, we conclude it was unconstitutional.

{¶ 54} “Evidence is inadmissible if it stems from an unconstitutional search or

seizure.” Reno, 2017-Ohio-4326, 91 N.E.3d 1255, at ¶ 15, citing Wong Sun v. United

States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). “While the text of the

Fourth Amendment says nothing about suppressing evidence obtained in violation of the

rights enunciated therein, the United States Supreme Court has created an ‘exclusionary

rule’—'a deterrent sanction that bars the prosecution from introducing evidence obtained

by way of a Fourth Amendment violation.’ ” State v. Dibble, 159 Ohio St.3d 322, 2020-

Ohio-546, 150 N.E.3d 912, ¶ 14, quoting Davis v. United States, 564 U.S. 229, 231-232,

131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). In determining whether the sanction for the

Fourth Amendment violation should be to exclude the evidence, we must consider whether

exclusion will remedy the wrong and deter future wrongdoing. State v. Bembry, 151 Ohio

St.3d 502, 2017-Ohio-8114, 90 N.E.3d 891, ¶ 18.

{¶ 55} Considering the sequence of events and the justifications offered by the

Springfield Police Department and the State that the officers’ actions constituted standard

protocol, we conclude that exclusion of the evidence is warranted to remedy the wrong and

deter any future wrongdoing. The United States Supreme Court decided Bailey several

years before the actions in this case occurred, yet the Springfield Police Department had

not corrected its standard protocol to comply with Fourth Amendment law. Moreover,

based on Detective Burch’s statements at the suppression hearing, it appears he was

referring to Bailey in support of his actions, thus indicating his familiarity with, albeit

incorrect understanding of, the case. We cannot conclude that this was objectively
 -27-

reasonable conduct. Accordingly, evidence obtained from Harrell’s unlawful seizure must

be suppressed, including the cell phone that was confiscated from him and its contents,

which were later used extensively at trial.

{¶ 56} Because the use of the contents of the cell phone permeated the entire trial,

we will reverse all of Harrell’s convictions and remand for further proceedings. The State

relied heavily on the contents of Harrell’s cell phone to support Count One of the indictment,

engaging in a pattern of corrupt activity. Although Counts Two through Five did not directly

rely on the contents of Harrell’s cell phone, the contents were used to support the veracity

of Yeager, whose testimony was essential for the jury to convict Harrell on those counts.

We note that the State’s bill of particulars provided that, in relation to Counts Two through

Five, the State intended to rely on the contents of Harrell’s cell phone, which “revealed

multiple conversations and photos to confirm that he [was] selling narcotics.” Bill of

Particulars (August 13, 2021). Likewise, in closing argument, the State argued that the

jury should consider the text messages and extraction report from Harrell’s cell phone to

find him guilty of the offenses related to the undercover drug buys. Trial Tr. 703.

{¶ 57} Harrell’s first assignment of error is sustained in part, concerning the trial

court’s denial of his motion to suppress evidence obtained during his unlawful detention.

b. Motion to Suppress Identification Evidence

{¶ 58} While our resolution of the first assignment of error renders moot many of

Harrell’s remaining arguments, we will address those arguments not rendered moot.

App.R. 12(A)(1)(c). “[A]n assignment of error is moot when an appellant presents issues

that are no longer live as a result of some other decision rendered by the appellate court.”
 -28-

State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, 176 N.E.3d 720, ¶ 26. Because

our review of the trial court’s ruling on suppression of a pretrial identification could have a

legal effect upon the admissibility of Yeager’s out-of-court identification upon retrial, we will

consider the trial court’s ruling on Harrell’s motion to suppress identification testimony.

{¶ 59} Following the hearing on Harrell’s initial motion to suppress, on May 2, 2022,

Harrell filed a supplemental motion to suppress challenging the pretrial identification

procedure. Specifically, Harrell claimed that because Detective Burch used a single photo

for identification purposes rather than a photo lineup as set forth in R.C. 2933.83, the

pretrial identification procedure was impermissibly suggestive and violated his due process

rights. Harrell claimed in his motion that he had been unaware of the exact procedures

used to identify Harrell by the CI, i.e., using a single photo, until Detective Burch testified at

the April 21, 2022 motion to suppress hearing. Harrell also requested a hearing on the

supplemental motion.

{¶ 60} The trial court overruled Harrell’s second motion to suppress without a

hearing, finding that it was untimely pursuant to Crim.R. 12(D) and that it was not in the

interest of justice to extend the time for making pretrial motions. When ruling on Harrell’s

motion, the trial court balanced Harrell’s interests against the timeliness of the supplemental

motion, trial delays, disclosure of the CI, and the applicability of R.C. 2933.83. Finding

that Harrell’s interests were outweighed by the other competing interests and that Harrell’s

rights would not be eradicated but merely delayed until trial, the trial court overruled

Harrell’s supplemental motion in its entirety. Under the facts of this case, we cannot

conclude that the trial court’s decision was an abuse of discretion.
 -29-

{¶ 61} A motion to suppress pretrial identification testimony on the grounds it was

illegally obtained must be raised prior to trial. Crim.R. 12(C)(3). The time frame

governing pretrial motions is set forth in Crim.R. 12(D), which states in relevant part:

All pretrial motions * * * shall be made within thirty-five days after

arraignment or seven days before trial, whichever is earlier. The court in

the interest of justice may extend the time for making pretrial motions.

{¶ 62} A defendant's failure to timely file a motion to suppress constitutes a waiver

of that issue, “but the court for good cause shown may grant relief from the waiver.”

Crim.R. 12(H). A trial court’s decision whether to grant leave to file an untimely motion to

suppress is within its sound discretion, and we will not reverse a trial court's decision

regarding an untimely motion absent an abuse of discretion. State v. Garrett, 2d Dist.

Greene No. 2004-CA-110, 2005-Ohio-4832, ¶ 14, citing Akron v. Milewski, 21 Ohio App.3d

140, 142, 487 N.E.2d 582 (9th Dist.1985). “A trial court abuses its discretion when it

makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.)

State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “It is to be

expected that most instances of abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary. A decision is

unreasonable if there is no sound reasoning process that would support that decision.”

AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990).

{¶ 63} The trial court first considered the timeliness of Harrell’s supplemental motion

and determined it was unreasonably untimely. As previously noted, a pretrial motion
 -30-

should be filed within 35 days after arraignment or 7 days before trial, whichever is earlier.

Crim.R. 12(D). Harrell was arraigned on July 9, 2021. By the time the May 2, 2022

supplemental motion to suppress was filed, far more than 35 days had passed since Harrell

was arraigned and at least three trial dates had been scheduled and cancelled due to

actions by the defense. Accordingly, the trial court reasonably concluded that granting a

hearing on the motion would inevitably delay the case even further.

{¶ 64} The trial court also rejected Harrell’s claim that he could not have addressed

the issue earlier. Defense counsel could have inquired about the details of the

identification from the prosecutor in a timely fashion. Nevertheless, the trial court

concluded that defense counsel would have the right to question the validity of the

identification procedure with great latitude at trial, which he did.

{¶ 65} The trial court also considered that allowing a supplemental hearing might

have required disclosure of the CI. The trial court had previously held that the CI was not

required to be disclosed by the State until the start of trial. Granting a hearing at which the

CI’s identity would have to be disclosed would have allowed Harrell to circumvent the trial

court’s prior orders. The trial court further observed that Harrell’s supplemental motion

admitted it was “in essence, a glorified request for discovery,” rather than seriously

challenging the identification procedure.

{¶ 66} Finally, the trial court considered the applicability of R.C. 2933.83 to the facts

of this case and concluded that it was not applicable and, further, that there had been little

to no risk of unfair identification and/or misidentification due to the CI’s prior relationship

with Harrell.
 -31-

{¶ 67} The record demonstrates that Harrell’s motion was untimely, and the trial

court’s conclusion that it was not in the interest of justice to extend the time limit was not

an abuse of discretion. As the trial court noted, the case had been rescheduled for trial

three times, all attributable to Harrell’s requests, prior to the filing of Harrell’s supplemental

motion. Harrell had previously been permitted to file an untimely motion to suppress and

had been granted a hearing on it. Moreover, the identification issue had been discussed

during the April 21, 2022 hearing, such that defense counsel had had the opportunity to

question the detective more about the identification procedures at that time.

{¶ 68} Finally, we agree with the trial court that R.C. 2933.83 did not apply to the

facts in this case. R.C. 2933.83 provides for certain minimum requirements to be followed

when conducting “live lineups or photo lineups.” R.C. 2933.83(B). The statute does not

set forth requirements to be followed where only one photo is shown.

{¶ 69} “Courts have held that where only one photo is shown, R.C. 2933.83 does

not apply.” (Citations omitted.) State v. McShann, 2d Dist. Montgomery No. 27803, 2019-

Ohio-4481, ¶ 70. “In that situation, the issue is whether a defendant's due process rights

were violated due to the procedure used for identification.” Id., citing State v. Lennon, 8th

Dist. Cuyahoga No. 104344, 2017-Ohio-2753, ¶ 54. “ ‘When a witness has been

confronted with a suspect before trial, due process requires a court to suppress [his or her]

identification of the suspect if the confrontation was unnecessarily suggestive of the

suspect's guilt and the identification was unreliable under all the circumstances.’ ”

(Emphasis sic.) State v. Murphy, 91 Ohio St.3d 516, 534, 747 N.E.2d 765 (2001), quoting

State v. Waddy, 63 Ohio St.3d 424, 438, 588 N.E.2d 819 (1992). Reliability of the pretrial
 -32-

identification is the “linchpin” in determining the admissibility of identification testimony.

Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). “So long

as the identification possesses sufficient aspects of reliability, there is no violation of due

process.” State v. Sherls, 2d Dist. Montgomery No. 18599, 2002 WL 254144, *3 (Feb. 22,

2002), quoting State v. White, 2d Dist. Clark No. 3057, 1994 WL 43095, *2 (Feb. 2, 1994).

{¶ 70} There was no photo lineup conducted in this case. Rather, a single photo

was provided to the CI, who verified that the photograph was the individual she knew as

“Cuz.” The fact that the detective did not use the procedures set forth in R.C. 2933.83

does not establish that the pretrial identification procedure violated Harrell’s due process

rights considering the reliability of the identification. Detective Burch testified that the CI

was familiar with Harrell, although the CI only knew Harrell by his street name and not his

legal name. The CI also provided the detective with information about Harrell’s age, scars,

tattoos, his cell phone number, and his address, all before confirming the photograph was

in fact a picture of “Cuz.” Detective Burch knew that the CI had been with Harrell on

multiple occasions prior to the identification. Thus, this was not a situation where the

witness was unfamiliar with the suspect such that a single photograph could potentially lead

to misidentification. Considering this evidence, the trial court reasonably found that there

was little to no danger of misidentification and that the identification was sufficiently reliable.

We conclude that the trial court did not abuse its discretion in overruling Harrell’s untimely

motion. We therefore overrule Harrell’s first assignment of error in part, relating to the

denial of his second motion to suppress.

III. Remaining Arguments and Assignments of Error
 -33-

{¶ 71} The following remaining arguments in Harrell’s first assignment of error are

rendered moot, and are therefore overruled, by virtue of the fact that we will reverse his

convictions: the trial court’s alleged error in denying his motions associated with the CI, the

evidence allegedly improperly admitted at trial, the denial of Harrell’s motion for a mistrial,

and the alleged inadequate jury instructions and responses to the jury’s questions.

Likewise, Harrell’s fourth assignment of error alleging cumulative error is also rendered

moot by our resolution of the first assignment of error and is therefore overruled. App.R.

12(A)(1)(c). However, Harrell’s argument in his first assignment of error concerning the

trial court’s alleged error in overruling his Crim.R. 29 motion for acquittal and his second

and third assignments of error challenging the sufficiency of the evidence are not moot.

{¶ 72} “A motion for acquittal under Crim.R. 29(A) is governed by the same standard

as the one for determining whether a verdict is supported by sufficient evidence.” State v.

Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. “An assignment of

error going to the sufficiency of the evidence supporting a criminal count is always

potentially dispositive of that count. While a reversal based on weight of the evidence

does not preclude a retrial, a reversal based on insufficient evidence leads to an acquittal

that bars a retrial.” Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, 176 N.E.3d 720, at ¶ 27.

“When a conviction is based on evidence that does not establish a defendant's guilt beyond

a reasonable doubt, the court of appeals must vacate the conviction and double-jeopardy

protection bars the defendant's retrial for the same offense. An assignment of error raising

the sufficiency of the evidence is thus potentially dispositive of a particular count and cannot

be moot.” Id. at ¶ 29.
 -34-

{¶ 73} Accordingly, it is appropriate for us to consider Harrell’s argument in his first

assignment of error concerning the denial of his Crim.R. 29 motion for acquittal, as well as

the sufficiency arguments raised in his second and third assignments of error. In doing

so, we will consider all of the evidence admitted at trial, including the evidence involving

the contents of his cell phone, which we have determined should have been suppressed.

Id. We need not, however, consider any manifest weight of the evidence arguments, as a

reversal based on the weight of the evidence would not prevent the State from retrying

Harrell.

{¶ 74} We are cognizant that an appellate court’s review of a trial court’s denial of a

Crim.R. 29 motion for acquittal at the end of the State’s case is limited to the evidence then

available to the trial court. State v. Bailey, 2d Dist. Montgomery No. 27177, 2017-Ohio-

2679, ¶ 17, citing State v. Sheppeard, 2d Dist. Clark No. 2012-CA-27, 2013-Ohio-812, ¶ 51.

In this case, however, no additional evidence was submitted by either party after the trial

court overruled Harrell’s Crim.R. 29 motion. Accordingly, our reviews of the sufficiency of

the evidence supporting the convictions and of the trial court’s denial of Harrell’s Crim.R.

29 motion involve exactly the same evidence and will be considered together.

a. Standards of Review

{¶ 75} “In a sufficiency-of-the-evidence inquiry, the question is whether the evidence

presented, when viewed in a light most favorable to the prosecution, would allow any

rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.”

State v. Groce, 163 Ohio St.3d 387, 2020-Ohio-6671, 170 N.E.3d 813, ¶ 7, citing State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. When
 -35-

considering the legal sufficiency of the evidence, appellate courts do not engage in a

determination of witness credibility. State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916

(1998). Rather, the relevant inquiry is whether the evidence presented, if believed, is

sufficient to support the conviction. State v. Jones, 166 Ohio St.3d 85, 2021-Ohio-3311,

182 N.E.3d 1161, ¶ 16, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541

(1997) (Cook, J., concurring). “The issue of whether a conviction is supported by sufficient

evidence is a question of law, which we review de novo.” State v. Campbell, 2d Dist.

Montgomery No. 26575, 2016-Ohio-598, ¶ 6, citing Thompkins at 386.

b. Evidence Submitted at Trial

{¶ 76} The State presented the testimony of Jessica Kaiser, a forensic scientist for

the Ohio Bureau of Criminal Investigation. Kaiser testified that she analyzed two exhibits

that were suspected controlled substances provided to her agency by the Springfield Police

Department. State’s Exhibit 3 was determined to be 20.78 grams plus or minus 0.04

grams of methamphetamine. State’s Exhibit 4 was determined to be 8.09 grams plus or

minus 0.04 grams of methamphetamine. Kaiser further testified that methamphetamine is

a Schedule II controlled substance and that the bulk amount of methamphetamine is 3

grams.

{¶ 77} Amber Yeager testified that in June 2020, she was stopped at a Walmart for

trying to steal something. Officers located over 20 grams of methamphetamine on her

person, and she was arrested. Due to those circumstances, she entered into an

agreement to work as a CI for the Springfield Police Department in exchange for potentially

not being charged with a second-degree felony offense of trafficking in drugs and a third-
 -36-

degree felony offense of possession of drugs. Yeager had two prior convictions for theft

offenses in Ohio that she described as mistakes. She was also on parole out of Texas for

possession of marijuana that had occurred 10 years prior and was facing up to 10 years in

prison for a parole violation.

{¶ 78} Yeager provided police with information about an individual she knew as

“Cuz,” whom she later identified as Harrell. Yeager testified that she first met Harrell

through Barclay a few years prior to becoming a CI. At that time, Yeager was a drug user

and Barclay sold her methamphetamine. Harrell identified himself to her as Barclay’s

supplier of methamphetamine. Over time, she developed a relationship with Harrell,

including living in his apartment on Ludlow at times and having a romantic relationship with

him.

{¶ 79} In July 2020, Yeager was living in a house on Dayton Avenue in Springfield,

Ohio. Harrell stopped in unannounced on July 7, 2020, and gave her approximately 20

grams of methamphetamine. He told her to bring him $500 for the drugs. Based on their

relationship, Yeager understood the transaction to mean that he wanted the money after

she sold the drugs. But because she was working as a CI at the time, Yeager put the

drugs in her kitchen cabinet and contacted Detective Burch about what had happened

instead of selling any of the methamphetamine. She was directed to hold onto the

methamphetamine until the detectives could get it from her. She did not open the

package, tamper with, or use any of the drugs that Harrell provided.

{¶ 80} The detectives retrieved the drugs from Yeager on July 9, 2020. The

following day, the detectives gave her $500 to give to Harrell for the drugs. She was also
 -37-

given recording devices and searched before going to 351½ Ludlow Avenue, where she

met Harrell to give him the money. Yeager was instructed to ask Harrell for additional

drugs after turning over the $500, which she did. Yeager fabricated a story to explain the

amount of time that had passed between when Harrell gave Yeager the drugs and when

she turned over the $500 to Harrell. Her story was used to explain why she “didn’t have

the money on time” and why she had not answered Harrell’s phone calls. Trial Tr. 299.

This transaction involving about 20 grams of methamphetamine and $500 was referred to

as the “first buy.”

{¶ 81} After receiving the $500, Harrell gave Yeager approximately 8 grams of

methamphetamine and expected her to pay him $100 for the drugs. He indicated that,

after she paid him $100 for the 8 grams of methamphetamine, then she would be “paid off,”

meaning that she would no longer owe Harrell anything for either the 20 grams or the 8

grams of methamphetamine he had given her. She told Harrell that she already had

someone ready to buy the 8 grams from her, and he said to “get rid of it” and bring the

money right back. After getting the additional drugs, she met again with the detectives,

who provided her with the $100 Harrell had requested for the drugs. She then went back

to Harrell’s apartment that same day and gave him the money. When she left, she met

with the detectives and they searched her again. This transaction involving about 8 grams

of methamphetamine in exchange for $100 was referred to as the “second buy.”

{¶ 82} Detective Justin Allender testified that he became a police officer in February

2011, began working for the Springfield Police Department in June 2016, and became a

detective in the narcotics unit in May 2019. In July 2020, Detective Allender’s unit was
 -38-

notified by Yeager that she had been fronted approximately an ounce of methamphetamine.

Although they were unable to meet with Yeager right away, they did meet with her on July

9, 2020, and collected the drugs from her. The methamphetamine collected on July 9,

2020, was identified as State’s Exhibit 3.

{¶ 83} Detective Allender explained it was not uncommon for drug dealers to provide

drugs with the intent of getting paid back at a later time. Although the narcotics unit

typically did not pay drug debts, it decided to pay the debt owed from the drugs fronted to

Yeager in order to request more drugs from Harrell. In this case, the debt was $500;

officers photocopied the money and then provided the cash to Yeager to give to Harrell.

Detective Allender testified that Yeager was searched before and after the buys. The

officers also watched the transactions in real time through the electronic monitoring devices

that Yeager was given.

{¶ 84} Detective Allender testified that after being briefed about what to do, Yeager

went to 351½ Ludlow Avenue and met with Harrell. Based on watching the event in real

time, Allender observed that Yeager provided Harrell with the $500, Harrell fronted Yeager

a bag of approximately eight grams of methamphetamine, and then Yeager returned

directly to the detectives. Yeager turned over the methamphetamine, which was identified

at trial as State’s Exhibit Four. The detectives provided an additional $100 in cash to

Yeager, which had also been photocopied, to pay Harrell for the eight grams of

methamphetamine. Yeager returned later that day to 351½ Ludlow Avenue and gave

Harrell the $100 for the second buy. She then met with detectives again to turn over the

recording devices, and she was searched again. According to Detective Allender, a dose
 -39-

of methamphetamine was about a tenth of a gram.

{¶ 85} Detective Burch was the assigned case detective for this investigation.

Burch testified that he had worked for the Springfield Police Department since 2015 and

had been in the Narcotics Bureau since 2019. Prior to that he was an infantryman in the

United States Marine Corps for several years. Detective Burch testified he had had cell

phone investigative training, mid-level narcotics training, and financial investigation training.

Furthermore, his training included a Mexican Cartel course, which provided information as

to how drug organizations usually structure themselves. According to Burch, usually there

is one individual in an organization who has a connection to a source or supply; other

individuals underneath that supplier may not have the same connections or know the

source but will go to the individual who has a connection to the supplier to obtain product.

{¶ 86} Detective Burch testified that he first became aware of Jeremy Barclay during

a traffic stop in 2017 or 2018 at which drugs, drug paraphernalia, and body armor were

confiscated. Barclay’s name came up later during additional drug investigations. and it

appeared Barclay was buying and selling methamphetamines. While investigating

Barclay and other individuals, Burch came across a confidential source, Amber Yeager,

who provided information about Barclay and who also provided information about Harrell,

whom she identified as Barclay’s drug source.

{¶ 87} Detective Burch testified that Yeager became involved in the case because

she was caught with about an ounce of methamphetamine. She agreed to work as a CI

with the Springfield Police Department and was able to provide information regarding

Harrell and other individuals involved in the drug trade. Yeager supplied information to the
 -40-

police about someone known to her as “Cuz,” who was selling methamphetamine. She

provided a phone number for Harrell, a Facebook name of “DonJuan Sheppard,” and

identified Harrell’s address in Springfield and another address in Dayton, Ohio. According

to Detective Burch, Yeager also worked for Harrell at different locations for his real estate

renovation business.

{¶ 88} Based on the information provided by Yeager, Detective Burch began to

surveille Harrell’s duplex, obtained subpoenas for Harrell’s cell phone records, and looked

into the Facebook records of “DonJuan Sheppard.” During surveillance of 351½ Ludlow

Avenue, Burch observed people coming and going from that location. When Burch looked

up the owner of the Dayton address, he learned that Othello DonJuan Harrell owned the

home. On July 9, 2020, Detective Burch texted a driver’s license photo of Harrell to

Yeager asking, “Is this Cuz?” She then verified that it was the person she knew as “Cuz.”

{¶ 89} Around July 7, 2020, Yeager informed Detective Burch that Harrell was at her

house talking about selling narcotics and had provided Yeager with an ounce of

methamphetamine, which she put into her kitchen cabinet. Because Detective Burch was

on vacation, he was unable to do anything until he returned, at which point the two drug

buys were arranged as previously discussed.

{¶ 90} Following the two drug buys, Detective Burch obtained search warrants for

Harrell’s apartment and Jeremy Barclay’s apartment. Prior to executing the search

warrant on Harrell’s residence, Harrell was seen leaving the apartment, and uniformed

officers conducted a traffic stop on Harrell. Harrell was then brought back near the

apartment, where he consented to a search of his vehicle. Inside Harrell’s vehicle, officers
 -41-

located some marijuana in a small plastic bag, and a white iPhone and about $3,400 in

cash was found on his person. During the search of the apartment, officers located seven

bullets inside a sock, a digital scale with white powder residue, and plastic bags that

contained residue believed to be from methamphetamine.

{¶ 91} Later in the investigation, Detective Burch obtained a search warrant for

Harrell’s iPhone, which had not been covered under the residential search warrant. The

phone was subsequently submitted to the Ohio Narcotic Intelligence Center (“ONIC”) to

unlock the phone and extract the data from it. After the information was extracted,

Detective Burch requested that an analyst at ONIC go through the phone and create a

report that could identify drug terms used on the phone, individuals identified from cell

phone numbers, and various accounts associated with the cell phone, such as iCloud and

Gmail accounts.

{¶ 92} Springfield Police Officer Jason Byron of the evidence room and the crime

scene unit testified about the chain of custody of the property collected in the case.

{¶ 93} Richard Steller, a forensic supervisor for ONIC, was certified in cellphone and

computer forensics. Steller testified about his analysis of Harrell’s iPhone. He “dumped”

all the data from the cell phone and converted it into a readable format known as the

Cellebrite Reader report. A copy of that report was provided to the Springfield Police

Department and another copy was provided to the Intelligence Section of ONIC for further

analysis.

{¶ 94} Kara Robb of ONIC conducted the analysis of Harrell’s iPhone using Steller’s

Cellebrite report and law enforcement databases. Through her analysis, Robb was able
 -42-

to verify that the iPhone belonged to Harrell based on images, messages, social media

accounts, and the phone number associated with the device. Using information obtained

through the Cellebrite report, Robb created a glossary of terms derived directly from the

messages in the phone. The meanings attributed to the words were based on the context

of the messages, Robb’s training and experience, DEA sources, and other cases at ONIC.

{¶ 95} Robb created a list of important contacts and numbers found in Harrell’s

phone. This included potential suppliers and “Germ,” who was considered a potential

resale dealer. “Germ” was identified as Jeremy Barclay. Robb also located several

Facebook and text message conversations from June, July, and August 2020 between

Harrell and various customers, including Barclay, discussing prices and amounts of drugs.

{¶ 96} Robb also created a case portfolio based on records from the Springfield

Police Department and Harrell’s phone contents. The case portfolio included information

from multiple defendants in this case and showed a diagram of the potential flow of

methamphetamine. At the top of the chart was Harrell, with potential sales flowing from

him to Barclay and Regan Foster. Robb identified that Barclay, Foster, and Yeager were

the top three contacts on Harrell’s phone. She also testified to contacts on Barclay’s

phone and stated that Barclay had multiple drug-related contacts with others, some of

whom were also co-defendants in this case.

{¶ 97} Jayson Blair, one of Harrell’s co-defendants, testified for the State. Blair

testified that he met Harrell through Regan Foster, who was another co-defendant.

Between November 2019, when Blair and Foster first met, and August 2020, when they

were arrested, Blair became familiar with Harrell, whom he knew as “Cuz.” The first time
 -43-

Blair met Harrell, Foster picked Blair up, and Blair told Foster that he had a “play” for a

quarter pound of methamphetamine. Foster then called Harrell and they picked him up on

Ludlow and drove to Logan County to sell methamphetamine. Because Foster had

recently had items stolen from her and Harrell was not familiar with Blair, Harrell

accompanied them to Logan County to conduct the transaction. Afterward, Harrell let

Foster keep the profit from the sale since she needed money to get back on her feet. The

proceeds were counted and dispersed at Harrell’s Ludlow apartment.

{¶ 98} Blair and Foster had been involved in a romantic relationship, and they both

used methamphetamines. Blair stated that when someone first starts using

methamphetamine, they would start with a tenth of a gram but then progress from there.

Blair personally observed Harrell sell methamphetamines to Foster, and there were two or

three times that Harrell sold Foster fentanyl. Although Blair did not communicate with

Harrell on his own phone, he spoke to Harrell on Foster’s phone and had been to Harrell’s

apartment on Ludlow. Foster would resell some of the drugs Harrell provided her and she

would also use some of the drugs. Although Harrell did not sell drugs directly to Blair, Blair

and Foster would pool their money to get drugs from Harrell, and Foster would then

purchase it. Blair and Foster sold more drugs than they used in order to make money to

maintain their lifestyle. Foster kept a notebook to keep records of who she sold to and

what she sold them.

{¶ 99} Blair also pooled money with other people so that they could purchase larger

amounts of drugs at a cheaper price. Jeffrey Palmer, another co-defendant in the case,

was the first to go in with them to buy drugs. Blair recalled a time when “almost all the co-
 -44-

defendants were going in together” to purchase methamphetamine. If some people were

unable to get drugs through their suppliers, but others in the group could, they would work

together to obtain the drugs. The amount that they would pool together to purchase

methamphetamine varied, but there was one time that they pooled together $7,000 to buy

drugs in Dayton. The amount of methamphetamine they would purchase from Harrell

generally ranged from a “ball,” about 3.5 grams, up to a quarter pound.

{¶ 100} Blair was aware that Harrell supplied methamphetamine to Barclay.

Barclay then sold the drugs to other co-defendants, including Josh Thompson, Blair, and

Foster. Harrell never bought drugs from any of them, rather, they would go to Harrell to

obtain drugs.

{¶ 101} Blair testified that, in his experience, high-level drug dealers tended to keep

their circles small. After he was arrested in August 2020, Harrell no longer wanted to sell

to Blair and Foster because they were “too hot to mess with,” meaning they were on the

police’s radar, so Blair bought drugs from a different drug dealer. This resulted in some of

the additional drug charges against him in the indictment that were unrelated to Harrell. In

exchange for his testimony against Harrell, Blair agreed to receive a total prison term of

five to six-and-a-half years in prison on two counts of the original 26 counts for which he

was indicted.

{¶ 102} Barclay, another co-defendant, testified for the State. Although not clear

from the record, it appears that Barclay entered into a plea agreement with the State to

dismiss the charge of engaging in a pattern of corrupt activity against him in exchange for

his testimony against Harrell. At the time of his testimony, he was serving a lengthy prison
 -45-

sentence on other cases.

{¶ 103} Barclay met Harrell in 2018 through a mutual friend while waiting to buy 28

grams of methamphetamine from Harrell, whom he knew as “Cuz.” When he first started

buying drugs from Harrell, they would meet up in Dayton because Harrell lived in Dayton.

Over time, Barclay purchased more methamphetamine from Harrell, the largest amount

being one pound of methamphetamine in a single purchase. In 2018, Barclay usually saw

Harrell a couple of times per day. He would buy a pound of methamphetamine from Harrell

every other day or every couple of days. Barclay continued to purchase drugs from Harrell

until he was arrested in 2020.

{¶ 104} Although the transactions originally occurred in Dayton, at some point in

time, Harrell began providing drugs to Barclay in Clark County. When Barclay lived on

Bell Street in Clark County, Harrell brought him methamphetamine every day or every other

day. At that time, Harrell brought him roughly ten pounds of methamphetamine a week.

Rarely did Barclay obtain other drugs from Harrell, although he did obtain crack cocaine on

occasion. Barclay mainly sold to drug users but also sold to other drug traffickers.

Although Barclay was able to get drugs from other suppliers, Harrell was his largest

supplier. Any time Barclay needed methamphetamine, Harrell had it, so long as he was

“working” (meaning selling drugs). There were times that Harrell was not “working” and

Barclay would have to get drugs from other suppliers instead.

{¶ 105} At some point, Barclay moved into an apartment on Ludlow that he believed

was owned by Harrell. Although he could not recall the specific address, he identified it

as a duplex; the duplex had four apartments, and Barclay lived in the bottom right
 -46-

apartment. Harrell sometimes stayed in the apartment above Barclay, but Barclay knew

Harrell to live somewhere else. The apartment in which Barclay lived was not connected

to Harrell’s apartment, but Barclay had a key to Harrell’s apartment and would go in there

when instructed by Harrell to grab something, fix something, or clean it.

{¶ 106} Barclay admitted that he sold methamphetamine to co-defendants Joshua

Thompson, Jeffrey Palmer, Regan Foster, and Jayson Blair, along with other unnamed

individuals. Sometimes that methamphetamine was sourced from Harrell but was sold via

Barclay. At no time did Barclay ever sell drugs to Harrell, and Harrell was not known to

use methamphetamine.

{¶ 107} Barclay communicated with Harrell via telephone, text messages, and

sometimes Facebook Messenger. Harrell usually required Barclay to pay for drugs

upfront, but there had been rare occasions when Harrell fronted Barclay drugs. Barclay

was unaware of anyone else to whom Harrell would front drugs. Harrell did not direct him

to sell drugs to individuals; it was Barclay’s decision to sell drugs.

c. Sufficient Evidence

{¶ 108} In challenging his conviction for engaging in a pattern of corrupt activity

under his third assignment of error, Harrell contends that his conviction was not supported

by sufficient evidence, because the State failed to prove (1) the existence of an enterprise

and Harrell’s association with the enterprise, and (2) that the value of the contraband

exceeded one thousand dollars for each incident of corrupt activity, as is required by the

statute. In Harrell’s second assignment of error, he contends that there was insufficient

evidence presented for a reasonable jury to find that he had committed aggravated
 -47-

trafficking in drugs and aggravated possession of drugs, because there was no audio or

video recording showing him handing over any drugs to Yeager on July 7, 2020. Harrell

does not separately challenge his convictions for the third-degree felony offenses, but

because he made a generic Crim.R. 29, the denial of which he challenges on appeal, we

will also consider the sufficiency of the evidence for those offenses.

{¶ 109} Harrell was convicted in Count One of engaging in a pattern of corrupt

activity, in violation of R.C. 2923.32(A)(1). The State alleged that, as a continuing course

of conduct from about September 9, 2019 to about June 28, 2021, while employed by or

associated with any enterprise, Harrell conducted or participated in, either directly or

indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection

of an unlawful debt. Furthermore, the jury further found that the offense was elevated to

a felony of the first degree because at least one of the incidents of corrupt activity was a

felony of the first, second, or third degree. R.C. 2323.32(B)(1).

{¶ 110} An “enterprise” is defined as including “any individual, sole proprietorship,

partnership, limited partnership, corporation, trust, union, government agency, or other

legal entity, or any organization, association, or group of persons associated in fact

although not a legal entity.” R.C. 2923.31(C). An “enterprise” can include licit or illicit

enterprises. Id.

{¶ 111} "Corrupt activity," in this case, is defined as “engaging in, attempting to

engage in, conspiring to engage in, or soliciting, coercing, or intimidating another person to

engage in” conduct constituting any violation of R.C. 2925.03,

when the proceeds of the violation, * * * or the value of the contraband or
 -48-

other property illegally possessed, sold, or purchased in the violation

exceeds one thousand dollars, or any combination of violations described

in division (I)(2)(c) of this section when the total proceeds of the combination

of violations, * * * or value of the contraband or other property illegally

possessed, sold, or purchased in the combination of violations exceeds one

thousand dollars[.]

R.C. 2923.31(I)(2)(c). R.C. 2925.03 consists of two ways to traffic drugs that are relevant

to the circumstances of this case. First, a violation of the statute could be committed by

selling or offering to sell a controlled substance. R.C. 2925.03(A)(1). Second, a

violation of the statute could be accomplished by preparing for shipment, shipping,

transporting, delivering, preparing for distribution, or distributing a controlled substance,

when the offender knew or had reasonable cause to believe that the controlled substance

was intended for sale or resale by the offender or another person. R.C. 2925.03(A)(2).

{¶ 112} A "pattern of corrupt activity" means “two or more incidents of corrupt

activity, whether or not there has been a prior conviction, that are related to the affairs of

the same enterprise, are not isolated, and are not so closely related to each other and

connected in time and place that they constitute a single event.” R.C. 2923.31(E).

Furthermore, “at least one of the incidents forming the pattern shall constitute a felony

under the laws of this state in existence at the time it was committed[.]” Id.

{¶ 113} Violations of R.C. 2923.32(A) are sometimes referred to as “RICO” offenses,

because the statute is Ohio’s version of the federal Racketeering Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C. 1961 et seq. State v. Beverly, 143 Ohio St.3d 258,
 -49-

2015-Ohio-219, 37 N.E.3d 116, ¶ 3. “A RICO offense is dependent upon a defendant

committing two or more predicate offenses listed in R.C. 2923.31(I).” State v. Miranda,

138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, ¶ 13.

{¶ 114} Harrell was convicted in Counts Two and Four of aggravated trafficking in

drugs, in violation of R.C. 2925.03(A)(2). Under R.C. 2925.03(A)(2), the State was

required to prove that Harrell did knowingly prepare for shipment, ship, transport, deliver,

prepare for distribution, or distribute a Schedule II controlled substance, in this case,

methamphetamine, when he knew or had reasonable cause to believe that the controlled

substance was intended for sale or resale by himself or another person. The State further

alleged that the amount of methamphetamine involved in Count Two was in an amount

equal to or greater than five times the bulk amount but less than fifty times the bulk amount

and that the amount of methamphetamine involved in Count Four was in an amount equal

to or greater than the bulk amount but less than five times the bulk amount.

{¶ 115} In Counts Three and Five, Harrell was convicted of aggravated possession

of drugs, in violation of R.C. 2925.11(A). For those charges, the State was required to

prove that Harrell had knowingly possessed a Schedule II controlled substance, in this

case, methamphetamine. The State alleged that Harrell knowingly possessed

methamphetamine in Count Three in an amount equal to or greater than five times the bulk

amount but less than fifty times the bulk amount, and that the amount of methamphetamine

involved in Count Four was in an amount equal to or greater than the bulk amount but less

than five times the bulk amount.

{¶ 116} The State alleged that Counts Two and Three were based on events that
 -50-

occurred between July 7 and 10, 2020, in which Harrell provided 20.78 grams of

methamphetamine to Yeager.1 Counts Four and Five were based on events that occurred

on or about July 10, 2020, in which Harrell provided 8.09 grams of methamphetamine to

Yeager. The RICO charge, on the other hand, was based on all events discussed at trial

involving Harrell between September 9, 2019, and June 28, 2021, including Yeager’s two

buys in July 2020.

{¶ 117} The evidence presented at trial for each of the two drug buys that involved

Yeager, if believed, was sufficient to sustain Harrell’s convictions for the two counts of

aggravated trafficking in drugs and the two counts of aggravated possession of drugs.

Yeager testified that, for the first buy, she was fronted about 20 grams of methamphetamine

from Harrell personally at her house in Clark County, Ohio, on July 7, 2020. The drugs

were later tested and determined to be 20.78 grams plus or minus 0.04 grams of

methamphetamine. Kaiser testified that methamphetamine was a Schedule II controlled

substance and that the bulk amount of methamphetamine was 3 grams. Accordingly, the

evidence demonstrated that Harrell had been in possession of methamphetamine in an

amount equal to or greater than five times the bulk amount but less than fifty times the

amount. Yeager also testified that for the first drug buy, Harrell expected her to resell the

drugs and return $500 to him after she sold them. This was corroborated when she

brought Harrell $500 on July 10, 2020, while working undercover. Thus, Harrell knowingly

transported and/or delivered methamphetamine to Yeager when he knew or had

1
Harrell challenges on appeal the trial court’s granting the State’s motion to amend the
dates in the indictment. However, because we are considering the sufficiency of the
evidence as it was presented at trial to determine whether the State may retry Harrell, we
will conduct our analysis based on the amendment of the indictment.
 -51-

reasonable cause to believe that the controlled substance was intended for resale. The

evidence from this first buy was sufficient to support a conviction for Count Two, aggravated

trafficking in drugs, and Count Three, aggravated possession of drugs.

{¶ 118} When Yeager returned to Harrell’s Clark County apartment on July 10, 2020,

to pay him the $500 from the first buy transaction, she asked for an additional 8 grams of

methamphetamine. When Yeager told Harrell that she already had a buyer for the 8 grams

of methamphetamine, he said to “get rid of it” and bring the money right back. Yeager

testified that Harrell handed her about eight grams of methamphetamine, which she

subsequently turned over to law enforcement. Kaiser testified that these drugs were

determined to be 8.09 grams plus or minus 0.04 grams of methamphetamine. The

evidence from this second buy was sufficient to support Harrell’s convictions for Count

Four, aggravated trafficking in drugs, and Count Five, aggravated possession of drugs.

{¶ 119} As for the RICO charge in Count One of the indictment, viewing the evidence

in the light most favorable to the prosecution, as we must, a rational juror could have

reasonably concluded that Harrell was engaged in an illicit enterprise to engage in

trafficking in drugs for profit.

{¶ 120} In this case, the alleged enterprise was clearly not a legal entity, but rather

an “association-in-fact.” In considering the federal RICO statute, which is materially similar

to Ohio’s RICO statute, the United States Supreme Court has concluded that “an

association-in-fact enterprise need not have a formal structure, but must have at least the

following features: ‘a purpose, relationships among those associated with the enterprise,

and longevity sufficient to permit these associates to pursue the enterprise's purpose.’ ”
 -52-

State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-6670, 170 N.E.3d 816, ¶ 19, quoting Boyle

v. United States, 556 U.S. 938, 946, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009).

{¶ 121} Harrell argues that there was no enterprise or “association-in-fact” because

he was a “lone shark” drug dealer who sold drugs to other independent drug dealers.

However, “[t]he definition of ‘enterprise’ is remarkably open-ended.” Beverly, 143 Ohio

St.3d 258, 2015-Ohio-219, 37 N.E.3d 116, at ¶ 8. The Ohio Supreme Court has stated

that “the existence of an enterprise, sufficient to sustain a conviction for engaging in a

pattern of corrupt activity under R.C. 2923.32(A)(1), can be established without proving that

the enterprise is a structure separate and distinct from a pattern of corrupt activity.” Id. at

syllabus. Notably, the same evidence can be used to prove both the existence of an

enterprise and the associated pattern of corrupt activity. Id. at ¶ 7.

{¶ 122} The evidence at trial established that Harrell was an upper-level drug

supplier responsible for supplying lower-level drug dealers and users in Springfield with

methamphetamine, but he was not a user himself and he did not buy methamphetamine

from any of the people to whom he sold drugs. Harrell sold large quantities of

methamphetamines to Barclay, Yeager, and Foster, knowing or having reasonable cause

to believe that they would resell the drugs. Harrell’s relationships and ongoing conduct

with each of them sufficiently demonstrated an illicit enterprise of drug trafficking for profit.

{¶ 123} Yeager met Harrell through Barclay, from whom she initially had been

purchasing methamphetamine. Yeager testified about the two drug buys in July 2020, in

which Harrell fronted her drugs in anticipation of her reselling them and bringing him the

proceeds of the sales. Harrell relied on Yeager to resell the drugs and provide him the
 -53-

money in a timely manner. Yeager had both a romantic relationship and a business

relationship with Harrell over the course of several years, at times living with Harrell at 351½

Ludlow Avenue. When Yeager lived at the Ludlow apartment, she helped to fix it up and

got other people to fix it up. At the times of the July 2020 drug buys and the August 2020

execution of a search warrant, it was apparent 351½ Ludlow Avenue was being renovated.

{¶ 124} Barclay testified that between 2018 and 2020, he repeatedly purchased

drugs from Harrell in large quantities, receiving at one point roughly ten pounds of

methamphetamine a week from Harrell in one-pound increments. The amounts of drugs

Barclay obtained were not amounts for personal use, and Harrell was aware, based on the

text message conversations and the amounts of drugs he provided to Barclay, that Barclay

was reselling the methamphetamine. Barclay also testified that, on rare occasions, Harrell

fronted him methamphetamine to sell, and he would pay Harrell back at a later time. For

at least some period of time in 2020, Barclay lived in an apartment at 351 Ludlow Avenue.

Barclay testified that he had a key to Harrell’s upstairs apartment and would access it from

time to time at Harrell’s direction.

{¶ 125} Blair testified that although he had not personally had any hand-to-hand

drug transactions with Harrell, he directly observed Harrell selling methamphetamine to his

girlfriend, Foster. Blair explained that he and Foster had worked together and that he “was

her co-pilot.” The first time Blair met Harrell, he and Foster picked Harrell up to drive to

Logan County to sell a quarter pound of methamphetamine. After the transaction was

complete, Harrell shared the profits of the sale with Foster while at his Ludlow apartment.

Both Blair and Foster used methamphetamine, but they resold the drugs more than they
 -54-

used in order to maintain their lifestyle. They would purchase anywhere from three-and-

a-half grams to a quarter pound of methamphetamine at a time. They also purchased

methamphetamine from Barclay to use and/or resell.

{¶ 126} With respect to the existence of a pattern of corrupt activity, we conclude

that a rational juror could have reasonably inferred from the testimony produced at trial that

Harrell’s drug trafficking enterprise was ongoing and that Harrell actively engaged in more

than one corrupt activity. We have previously stated that uncharged conduct “may

constitute the ‘corrupt activity’ underlying a RICO charge. The state simply must prove

beyond a reasonable doubt that the defendant's uncharged conduct violated a statute and

that the statutory violation was a ‘corrupt activity.’ ” State v. Johnson, 2d Dist. Darke Nos.

1997-CA-1441 and 1997-CA-1444, 1998 WL 57796, *6 (Feb. 13, 1998).

{¶ 127} Although Barclay did not testify to the value of the methamphetamine sold

to him by Harrell, it would have been reasonable to conclude, based on Blair’s testimony

and Barclay’s text messages with Harrell, that a pound of methamphetamine was worth

well over $1,000. According to Blair, during the Covid pandemic, the cost of an ounce of

methamphetamine increased from $175 per ounce to $1,000 per ounce. A pound of

methamphetamine equals more than 150 times the bulk amount, which is only 3 grams,

and its sale constitutes a felony of the first degree. Harrell was providing Barclay with

approximately 10 pounds of methamphetamine on a weekly basis while he was in Clark

County and continued to provide him with large quantities of methamphetamine until

Barclay was arrested in 2020. Barclay’s text messages with Harrell between June and

August 2020 alone aggregated to more than $1,000 worth of drug trafficking from Harrell
 -55-

to Barclay. Likewise, Harrell’s text messages with other individuals demonstrated that he

was selling or offering to sell large quantities of methamphetamine with aggregated values

over $1,000.

{¶ 128} In a sufficiency of the evidence review, the question is not “whether the state

presented the best evidence” but “whether the evidence presented, when viewed in a light

most favorable to the prosecution, would allow any rational trier of fact to find the essential

elements of the crime beyond a reasonable doubt.” (Emphasis sic.) Dent, 163 Ohio St.3d

390, 2020-Ohio-6670, 170 N.E.3d 816, at ¶ 16, citing Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492, at paragraph two of the syllabus. Considering all the evidence and viewing it in a light

most favorable to the prosecution, we conclude that a reasonable juror could have found

beyond a reasonable doubt that Harrell had engaged in an illegal drug trafficking enterprise

and that he had participated in at least two incidents of corrupt activity that established a

pattern of corrupt activity. Therefore, we overrule the portion of Harrell’s first assignment

of error concerning his Crim.R. 29 motion and we overrule his second and third

assignments of error.

IV. Conclusion

{¶ 129} Having sustained in part Harrell’s first assignment of error concerning his

unlawful detention, we reverse his convictions and remand the matter to the trial court for

further proceedings consistent with this Opinion. Because the State presented sufficient

evidence on each of the charged offenses, double jeopardy does not preclude the State

from retrying Harrell on all counts.

.............
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EPLEY, P.J. and HUFFMAN, J., concur.