[Cite as State v. Deckard, 2017-Ohio-8469.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
STATE OF OHIO, :
: Case No. 16CA14
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
DUSTIN A. DECKARD, :
:
Defendant-Appellant. : Released: 11/01/17
_____________________________________________________________
APPEARANCES:
Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.
Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher,
Gallia County Assistant Prosecuting Attorney, Gallipolis, Ohio, for
Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Dustin A. Deckard appeals the judgment entry filed August 31,
2016 in the Gallia County Court of Common Pleas. Deckard was convicted
by a jury on three counts: (1) illegal conveyance of drugs onto grounds of a
detention facility, R.C. 2921.36(A)(2); (2) possession of drugs (heroin), R.C.
2925.11(A); and (3) possession of drugs (cocaine), R.C. 2925.11(A). On
appeal, Appellant asserts three assignments of error. He first argues the trial
court deprived him of his constitutional right to confrontation by admitting
into evidence a chemical laboratory report without also requiring the chemist
Gallia App. No. 16CA14 2
who prepared the report to be available for cross-examination. He next
argues the trial court erred by failing to merge his convictions for illegal
conveyance into a detention facility with the convictions for possession of
drugs. He also argues there was insufficient evidence to convict him of
illegal conveyance of drugs. However, we find no merit to Appellant’s
arguments. Accordingly, we overrule his assignments of error and affirm
the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On February 29, 2016, Dustin A. Deckard was incarcerated at
the Gallia County Jail. According to the trial testimony, he was booked in
around 9:00 a.m. that day. During the evening hours, Deputy Cain noticed
an odor similar to burning plastic. Appellant was in a cell block with
approximately 8 to 10 other inmates.
{¶3} During a search Deputy Cain discovered suspected drugs on
Appellant’s person. The substances were submitted to the Ohio Bureau of
Criminal Identification and Investigation (BCI) for analysis. A written
report obtained from BCI indicated the substances submitted contained
heroin and cocaine.
{¶4} On June 16, 2016, Appellant was indicted on three counts: (1)
illegal conveyance of drugs onto grounds of a detention facility, in violation
Gallia App. No. 16CA14 3
of R.C. 2921.36; (2) possession of drugs (heroin), in violation of R.C.
2925.11; and (3) possession of drugs (cocaine), also in violation of R.C.
2925.11(A). The first count for illegal conveyance is a felony of the third
degree. The possession counts are both fifth degree felonies. On June 23,
2016, Appellant entered not guilty pleas to all counts. Appellant was
appointed legal counsel. He was scheduled for a status conference in July
2016, and for jury trial on August 29, 2016.
{¶5} On July 8, 2016, Appellant’s counsel was granted leave to
withdraw. The court appointed another attorney to represent him. On
August 24, 2016, the State filed a motion to continue the jury trial on the
basis of the unavailability of a witness: the chemist from the Ohio Bureau of
Criminal Investigation (BCI). The trial court denied the State’s request.
{¶6} On August 29, 2016, prior to the beginning of trial, Appellant’s
counsel filed a motion in limine seeking exclusion of the BCI laboratory
report which identified the substances found on Appellant’s person as heroin
and cocaine. The trial court denied this motion. During trial, the court
allowed the BCI report to be admitted into evidence. At the conclusion of
trial, the jury returned guilty verdicts on all three counts.
{¶7} On August 31, 2016, the trial court conducted Appellant’s
sentencing hearing. After hearing arguments from the parties regarding the
Gallia App. No. 16CA14 4
issue of merger of allied offenses, the trial court did not merge the counts
and sentenced Appellant to a maximum and consecutive sentence of five
years.
{¶8} This timely appeal followed. Additional facts will be set forth,
where pertinent.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT DEPRIVED DECKARD OF HIS
CONSTITUTIONAL RIGHT TO CONFRONTATION BY
ADMITTING INTO EVIDENCE A LABORATORY REPORT
UNDER NOTICE-AND-DEMAND STATUTE
(R.C.2925.51)FOR THE PROSECUTION OF A CHARGE
NOT WITHIN CHAPTERS 2925 OR 3719 OF THE REVISED
CODE.
II. THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY DECLINING TO MERGE CONVICTION FOR
ILLEGAL CONVEYANCE OF DRUGS ONTO GROUNDS
OF DETENTION FACILITY WITH CONVICTIONS FOR
POSSESSION OF DRUGS.
III. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT
A CONVICTION FOR ILLEGAL CONVEYANCE OF
DRUGS ONTO GROUNDS OF DETENTION FACILITY.”
LEGAL ANALYSIS
ASSIGNMENT OF ERROR ONE
{¶9} Under the first assignment of error, Appellant argues that the
trial court committed reversible error by depriving him of his constitutional
right to confrontation. At trial, the trial court admitted Exhibit 7, a BCI
Gallia App. No. 16CA14 5
laboratory report relevant to Appellant’s case, and Deputy Argabright’s
testimony regarding the report. The chemist who prepared the report for
BCI did not testify.
STANDARD OF REVIEW
{¶10} The admission of evidence is within the sound discretion of the
trial court. State v. Jackson, 4th Dist. Washington No. 12CA16, 2013–Ohio–
2628, ¶ 16; State v. Dixon, 4th Dist. Scioto No. 09CA3312, 2010–Ohio–
5032, ¶ 33, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987),
at paragraph two of the syllabus. Because a trial court's decision on a
motion in limine is a ruling to admit or exclude evidence, the standard of
review on appeal is whether the trial court committed an abuse of discretion
that amounted to prejudicial error. State v. Fowler, 10th Dist. Franklin No.
15AP1111, 2017-Ohio-438, ¶14; Gordon v. Ohio State Univ., 10th Dist.
Franklin No. 10AP-1058, 2011-Ohio-5057, at ¶ 82. An abuse of discretion
involves more than an error of judgment; it connotes an attitude on the part
of the court that is unreasonable, unconscionable, or arbitrary. Franklin Cty.
Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 506, 589
N.E.2d 24 (1992); Wilmington Steel Products, Inc. V. Cleveland Elec.
Illuminating Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). When
applying the abuse of discretion standard, a reviewing court is not free to
Gallia App. No. 16CA14 6
merely substitute its judgment for that of the trial court. In re Jane Doe 1, 57
Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991), citing Berk v. Matthews, 53
Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).
LEGAL ANALYSIS
{¶11} The transcript of Appellant’s trial reveals that on the morning
of trial, Appellant filed a motion in limine to exclude the laboratory report
on two grounds: (1) that it was inadmissible hearsay under Evid.R. 802; and
(2) that it was inadmissible as violative of the Confrontation Clause of the
United States and Ohio Constitutions.
{¶12} Appellant’s trial counsel argued the State had provided the lab
report in discovery to Appellant’s prior counsel.1 Trial counsel then filed a
motion under R.C. 2925.51(C), requesting that the BCI analyst appear at
trial. However, due to the change in attorneys, and through no fault of
Appellant or his trial counsel, the request was untimely.
{¶13} Trial counsel argued that pursuant to the statute, the trial court
had the discretion to extend the time for filing in the interest of justice. In
response, the State argued that it had intended to have the BCI analyst
appear at trial but she was pregnant and unable to travel. The State
maintained, however, that since Appellant had not made his request within
1
Appellant’s first court-appointed counsel was permitted to withdraw from representation.
Gallia App. No. 16CA14 7
the 7-day window, and the matter was in the court’s discretion, that the
motion in limine should be overruled. The trial court subsequently
overruled Appellant’s motion in limine, recognizing that trial counsel had
appeared late in the matter through no fault of his own but, nevertheless,
finding the report to be admissible as a business record.
{¶14} We recently discussed a Confrontation Clause argument in
State v. Smith, 70 N.E.3d 150, 2016-Ohio-5062 (4th Dist.). “The Sixth
Amendment's Confrontation Clause provides, ‘In all criminal prosecutions,
the accused shall enjoy the right * * * to be confronted with the witnesses
against him * * *.’ ” Smith, supra, at 75, quoting State v. Maxwell, 139 Ohio
St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 34. The Confrontation Clause of
the Sixth Amendment is made applicable to the states by the Fourteenth
Amendment. State v. Issa, 93 Ohio St.3d 49, 752 N.E.2d 904, fn. 4 (2001).
Consequently, this constitutional right applies to both federal and state
prosecutions, but the right of confrontation in Article I, Section 10 of the
Ohio Constitution provides no greater right of confrontation than the Sixth
Amendment. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933
N.E.2d 775, ¶ 12.
{¶15} “The United States Supreme Court has interpreted [the Sixth
Amendment right to confrontation] to mean that admission of an out-of-
Gallia App. No. 16CA14 8
court statement of a witness who does not appear at trial is prohibited by the
Confrontation Clause if the statement is testimonial unless the witness is
unavailable and the defendant has had a prior opportunity to cross-examine
the witness.” Smith, supra, at 76, quoting Maxwell at ¶ 34, 9 N.E.3d 930,
citing Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354 (2004).
Crawford did not define the word “testimonial” but stated generally that the
core class of statements implicated by the Confrontation Clause includes
statements “ ‘made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at
a later trial.’ ” 541 U.S. at 52, 124 S.Ct. 1354, quoting the amicus brief of
the National Association of Criminal Defense Lawyers.
{¶16} In Ohio, R.C. 2925.51 permits the State to submit a BCI
laboratory report as evidence in drug cases and requires the State to serve a
copy of the report on the accused. R.C. 2925.51(A) and (B). State v. Judy,
4th Dist. Highland No. 08CA3013, 2008-Ohio-5551, at ¶ 12. BCI reports
will serve as prima facie evidence of the identity and weight of the
controlled substance unless the defendant, within seven days of receiving the
State's notice of intent to submit the report, demands the testimony of the
person who signed the report. R.C. 2925.51(C). State v. O'Connor, 12th
Dist. Fayette No. CA2007-01-005, 2008-Ohio-2415, at ¶ 24.
Gallia App. No. 16CA14 9
{¶17} At trial during Deputy Argabright’s testimony, trial counsel
approached the bench and renewed his objection to the admission of the BCI
laboratory report. The trial court again overruled the objection. Deputy
Argabright then identified Exhibit 7, the BCI chemist’s laboratory report,
and testified that the report was a true and accurate copy of the original, kept
in the regular course of business activity conducted at Ohio BCI. Argabright
proceeded to testify that the laboratory report listed the suspected drugs
submitted to Ohio BCI as follows: Item One was found to contain .49 grams
of heroin and Item Two was found to contain .33 grams of cocaine.
Argabright also testified Jessica Kaiser was the BCI technician who signed
the report and reached the scientific conclusions contained in the report.
{¶18} In Judy, the appellant contended that she was deprived of her
right of confrontation by the improper admission of testimonial evidence.
Specifically, Judy questioned whether a BCI lab report may be admitted as
evidence in the absence of expert in-court testimony from the lab analyst.
Judy relied on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004),
and State v. Smith, 3rd Dist. Allen No. 1-05-39, 2006-Ohio-1661, in support
of her contention that such lab reports are testimonial in nature. However, as
a result of Judy’s failure to object to the admission of the report on
Confrontation Clause grounds, it was necessary for us to determine only
Gallia App. No. 16CA14 10
whether the admission of the report amounted to plain error.2 We ultimately
concluded that the trial court's admission of the BCI report did not constitute
error, plain or otherwise.
{¶19} In Judy, we cited a Twelfth District Court which held that a
drug analysis report completed by BCI does not constitute “testimonial”
evidence under Crawford and therefore, the defendant's Confrontation
Clause rights under Crawford were not violated by the report's admission
into evidence. Id. at 17. See State v. Malott, 12th Dist. Butler Nos. CA2007-
02-006, CA2007-02-007, CA2007-02-008, 2008-Ohio-2114, ¶ 15. The
Malott court cited the Supreme Court of Ohio’s decision in State v. Crager,
116 Ohio St.3d 369, 2007-Ohio-684, that the admission of DNA reports
without the testimony of the analyst who prepared the report did not violate
the defendant's Confrontation Clause rights under Crawford since the reports
fell within the business records exception to the hearsay rule of Evid.R.
803(6), and thus were not “testimonial” evidence under Crawford. Malott at
2
Evid.R. 103(A)(1) provides that a claim of error may not be predicated upon a ruling that admits or
excludes evidence unless a substantial right of the party is affected and, if the ruling is one admitting the
evidence, the opponent of the evidence raises a timely objection to the evidence, stating the specific ground
of objection, unless the ground of objection is apparent from context. Id., at ¶ 15. Cf. State v. Smith, 3rd
Dist. Allen No. 1-05-39, 2006-Ohio-1661, at ¶ 8 (while defendant did not demand the testimony of
laboratory technicians who prepared report, he did raise an objection at trial to the report's admission on
Confrontation Clause grounds). See State v. Urbina, Defiance App. No. 4-06-21, 2008-Ohio-1013, ¶ 19, 35
(Third Appellate District finding that failure to object at trial to the admission of a laboratory report on
Confrontation Clause grounds waived all but plain error).
Gallia App. No. 16CA14 11
¶ 13. In Judy, we concluded that BCI lab reports are nontestimonial in
nature and their admission does not violate the right of confrontation.
{20} Judy was decided by our court in 2008. Subsequently, it was
held that the contents of a laboratory report is testimonial in nature when its
conclusion is prima facie evidence of an element of the offense. Melendez–
Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, (2009); Bullcoming v.
New Mexico, 564 U.S. 647, 663–664, 131 S.Ct. 2705, 2716, (2011). See
State v. Hartman, 64 N.E.3d 519, 2016-Ohio-2883, at ¶ 82 (2nd Dist.). On
the basis of Melendez–Diaz, the United States Supreme Court vacated, but
did not reverse, the Crager decision.3
{¶21} In this case, at the conclusion of trial when the State rested,
Appellant’s trial counsel made a Crim.R. 29 motion for acquittal and after
hearing argument, the trial court denied the motion. The State then moved
to admit the State’s 7 exhibits presented and defense counsel posed no
objection to admission of any of the exhibits, including the BCI laboratory
report.
{¶22} We reiterate that counsel originally objected to admission of the
laboratory report via a motion in limine. “A motion in limine is a means of
raising objection to an area of inquiry to prevent prejudicial questions and
3
See Crager v. Ohio, 557 U.S. 930, 129 S.Ct. 2856 (2009). The United States Supreme Court ordered that
Crager be reconsidered in light of Melendez–Diaz.
Gallia App. No. 16CA14 12
statements until the admissibility of the questionable evidence can be
determined during the course of the trial.” Mender v. Chauncey, 41 N.E.3d
1289, 2015-Ohio-4105 (4th Dist.), ¶14, quoting Independent State Bank of
Ohio v. Hartzell, 4th Dist. Washington App. No. 90CA02, 1991 WL 2197,
*2 (Jan. 7, 1991). The purpose of a motion in limine is to avoid injection
into the trial of matters which are irrelevant, inadmissible and prejudicial.
State v. French, 72 Ohio St.3d 446, 449, 650 N.E.2d 887 (1995). And,
“Ohio law is clear * * * that a ruling on a motion in limine may not be
appealed and that objections to the introduction of testimony or statements
of counsel must be made during the trial to preserve evidentiary rulings for
appellate review.” State v. Gavin, 4th Dist. Scioto No. 13CA3592, 2015-
Ohio-2996, at ¶ 22; Gable v. Gates Mills, 103 Ohio St.3d 449, 2004–Ohio–
5719, 816 N.E.2d 1049, ¶ 34; State v. Brown, 38 Ohio St.3d 305, 528 N.E.2d
523 (1988), paragraph three of the syllabus (“A denial of a motion in limine
does not preserve error for review. A proper objection must be raised at trial
to preserve error”); State v. Hambrick, 4th Dist. Ross No. 11CA3294, 2012–
Ohio–5139, ¶ 12.
{¶23} While we observe that Appellant filed the motion in limine and
renewed his objection at trial, another factor to be considered in our analysis
herein is that Appellant did not object to the admission of the report at the
Gallia App. No. 16CA14 13
time exhibits were admitted. “Generally, when a party fails to renew an
objection at the time exhibits are admitted into evidence, that party waives
the ability to raise the admission as error on appeal, unless plain error is
shown.” In re. S.L., 56 N.E.3d 1026, 2016-Ohio-5000 (3rd Dist.), at ¶ 37,
quoting Odita v. Phillips, 10th Dist. Franklin No. 09AP–1172, 2010-Ohio-
4321, ¶ 56, citing Nicula v. Nicula, 8th Dist. Cuyahoga No. 84049, 2009-
Ohio-2114. Notice of plain of error under Crim.R. 52 may be taken if, upon
review of the record, the record reveals that such error resulted in a manifest
miscarriage of justice.” State v. Layne, 4th Dist. Highland No. 11CA17,
2012-Ohio-1627, ¶ 7, quoting State v. Thrower at 376; citing State v. Adams,
62 Ohio St.2d 151, 154–154, 404 N.E.2d 144 (1980).
{¶24} “[F]or a reviewing court to find plain error: (1) there must be an
error, i.e., ‘a deviation from a legal rule;’ (2) the error must be plain, i.e., ‘an
“obvious” defect in the trial proceedings;’ and (3) the error must have
affected ‘substantial rights,’ i.e., it must have affected the outcome of the
proceedings.” Layne, supra, at 8, quoting State v. Spires, 4th Dist. Gallia No.
10CA10, 2011–Ohio–3661, at ¶ 14; citing State v. Barnes, 94 Ohio St.3d 21,
27, 2002–Ohio–68, 759 N.E.2d 1240. The Supreme Court of Ohio has
admonished courts that notice of plain error under Crim.R. 52(B) is to be
taken “with the utmost caution, under exceptional circumstances and only to
Gallia App. No. 16CA14 14
prevent a manifest miscarriage of justice.” Id., quoting State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978), at paragraph three of the syllabus.
{¶25} We do not find that error, plain or otherwise, occurred here.
Appellant’s request was not timely filed and the court, in its discretion, did
not extend the time to allow for a late filing. Furthermore, Appellant
apparently conceded the drugs found on his person were cocaine and heroin,
and he abandoned his argument regarding the possession counts. The trial
transcript reveals Appellant’s trial counsel made these comments during his
closing argument:
“The burden is on the State here to prove each and every
element of this case and yes, from the beginning I stated they
had a strong case for the possession. And in fact I think we
caught Mr. Deckard red-handed with, with the drugs on him.
That’s, that’s the case. But the third charge, Count 1, which is
the illegal conveyance into a detention facility, the only
evidence they have is the possession. The possession of drugs.
***
As I stated, this whole case is built on assumptions. We’ve got
to assume that because he had drugs, he’s the one, he’s the only
one that could have brought them in after we’ve heard
testimony that there’s all these other people.* * *
Look at the pictures, look at how big the Pay…Pay Day
wrapper was and the other drugs that were found in that besides
the heroin and cocaine. There’s, there’s multiple items here.
***
As I stated from the beginning, we’re not, we’re not trying to
play hide the ball. Mr. Deckard had the drugs on him red-
handed. We’re just asking you to come back with a not guilty
Gallia App. No. 16CA14 15
verdict for the illegal conveyance because there is a lack of
evidence and the State will not be, meet its burden beyond a
reasonable doubt.”
{¶26} In fact, during closing rebuttal, the State began:
“So from what I take from the defense’s closing statement is
that the State of Ohio has um, presented enough evidence, even
in the defense counsel’s mind that you should convict and find
guilty on Count 2 as well as guilty on Count 3 for possession of
cocaine and heroin. So with those two out of the way now, we
move onto, to Count 1.”
{¶27} Appellant’s counsel made no objection to this characterization
of his closing argument. Given Appellant’s apparent decision to concede he
possessed cocaine and heroin and to contest only the illegal conveyance
count, we do not find that admission of the BCI laboratory report constituted
plain error. For the foregoing reasons, we find no merit to Appellant’s first
assignment of error and it is hereby overruled.
ASSIGNMENT OF ERROR THREE
{¶28} For ease of analysis, we next consider Appellant’s third and
final assignment of error. Appellant was convicted of Count 1, illegal
conveyance of drugs into a detention facility. Appellant, however, contends
that there was no evidence of the material element, “conveyance,” presented
at his trial. For the following reasons, we disagree.
Gallia App. No. 16CA14 16
STANDARD OF REVIEW
{¶29} A claim of insufficient evidence invokes a due process concern
and raises the question of whether the evidence is legally sufficient to
support the verdict as a matter of law. State v. Dunn, 4th Dist. Jackson No.
15CA1, 2017-Ohio-518, ¶ 13; State v. Wickersham, 4th Dist. Meigs No.
13CA10, 2015-Ohio-2756, at ¶ 22; State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the
evidence, our inquiry focuses primarily upon the adequacy of the evidence;
that is, whether the evidence, if believed, reasonably could support a finding
of guilt beyond a reasonable doubt. Thompkins, syllabus. The standard of
review is whether, after viewing the probative evidence and inferences
reasonably drawn therefrom in the light most favorable to the prosecution,
any rational trier of fact could have found all the essential elements of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S.Ct. 2781 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d
492 (1991). Furthermore, a reviewing court is not to assess “whether the
state's evidence is to be believed, but whether, if believed, the evidence
against a defendant would support a conviction.” Thompkins, 78 Ohio St.3d
at 390 (Cook, J., concurring).
Gallia App. No. 16CA14 17
{¶30} Thus, when reviewing a sufficiency-of-the-evidence claim, an
appellate court must construe the evidence in a light most favorable to the
prosecution. Dunn, supra, at 14; Wickersham, supra, at 23; State v. Hill, 75
Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d
465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a
conviction on a sufficiency-of-the-evidence claim unless reasonable minds
could not reach the conclusion that the trier of fact did. State v. Tibbetts, 92
Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d
460, 484, 739 N.E.2d 749 (2001).
LEGAL ANALYSIS
{¶31} In support of his argument that there was insufficient evidence
that he conveyed drugs into the Gallia County Jail, Appellant points out that
while he was found to be in possession of certain substances, there were 8-
10 other inmates housed in the same area. Appellant argues there is no
investigatory evidence regarding the other inmates, and no investigatory
evidence regarding visitors the other inmates may have received. Appellant
further asserts there is no evidence regarding the circumstances of his arrest
which would provide him with the opportunity to conceal substances for
future conveyance.
Gallia App. No. 16CA14 18
{¶32} R.C. 2921.36(A)(2) provides: “No person shall knowingly
convey, or attempt to convey, onto the grounds of a detention facility * * *
(2) Any drug of abuse, as defined in section 3719.011 of the Revised Code.”
Appellant was indicted for possession of heroin, a Schedule I controlled
substance, in violation of R.C. 2925.11(A), and also for possession of
cocaine, a Schedule II controlled substance, in violation of R.C. 2925.11(A).
Appellant did not contest the finding that the Gallia County Jail constituted a
detention facility or that the drugs alleged in the indictment constituted drugs
of abuse as defined by the Revised Code.
{¶33} We begin by setting forth the relevant testimony. Nicholas
Cain, a corrections officer at the Gallia County Jail, testified he reported to
work at 4:00 p.m. on February 29, 2016. Appellant had been booked into
the jail at 9:00 a.m. on February 29th. To Officer Cain’s knowledge, an anal
cavity search warrant was not requested or conducted at the time Appellant
was booked.
{¶34} While Officer Cain was performing routine duties, he noticed
an odor of burning plastic in B-Block. There were approximately 8 other
inmates housed in B-Block on that date. He and another corrections officer,
Debra Smith, handcuffed the inmates to bars for the officers’ own safety,
Gallia App. No. 16CA14 19
and searched each inmate individually. Officer Cain’s searches of the
inmates yielded nothing until he came to Appellant.
{¶35} Officer Cain testified he performed an initial pat-down on
Appellant and felt something. He retrieved a baggie with an unknown
substance from Appellant’s buttocks. Officer Cain handed the baggie
through the bars to Officer Smith, who preserved it as evidence and turned it
over to Sergeant Jason Brown. Sgt. Brown then preserved the chain of
custody and eventually forwarded the baggie to the BCI Task Force
technician. Officer Cain identified Appellant in court and Exhibit 1, the
baggie.
{¶36} He further testified once they finished the search, other officers
arrived to assist. The officers searched the B-Block and found no other
drugs or weapons there. Officer Cain took no further part in the
investigation.
{¶37} On cross-examination, Officer Cain testified every inmate is
initially patted down and then strip-searched when they are booked into the
jail. He acknowledged the Gallia County Jail has video cameras above the
toilets and showers. He admitted there was no video evidence against
Appellant, and that no lighter was recovered. Officer Cain also admitted
that his report did not list the names of the other inmates or witnesses
Gallia App. No. 16CA14 20
involved in the incident and he did not check the visitor’s log pertaining to
the other inmates. He acknowledged there had been issues and ongoing
investigations with items smuggled into the jail on food trays.
{¶38} On redirect, Officer Cain clarified that the camera systems in
the toilet and shower areas do not tape inmates as they shower or use the
restroom. The camera systems do not preserve evidence of the inmates
performing these personal functions. He also clarified that the reason he did
not name other inmates in B-Block in his report was because Appellant was
the only person on which drugs were found. To his knowledge, the defense
did not request video evidence or visitor log evidence.
{¶39} Officer Debra Smith next testified that whenever inmates are
booked into the jail, they are strip-searched and given jail clothing and
necessary toiletries. She was working on February 29, 2016, and there were
approximately 8-10 inmates housed in B-Block. She also testified during
her shift she smelled burning plastic. They handcuffed each inmate to the
cell bars. Officer Cain went into the block himself and patted down the
inmates and searched them from behind the bars while Officer Smith
remained in front of the inmates.
{¶40} Officer Smith testified that when Officer Cain searched
Appellant, he “pulled Dustin Deckard back, pulled the back of his pants out
Gallia App. No. 16CA14 21
and he really had a funny look on his face. Um, he looked down, he reached
into his pants and he pulled out a big plastic bag. Uh, he found this between
Mr. Deckard’s butt cheeks.” Officer Smith verified that Officer Cain handed
the baggie to her and Officer Cain then proceeded to finish the search of the
last inmate. She testified after she and Officer Cain opened the baggie, they
contacted other officers and turned the evidence and the matter over to Sgt.
Brown.
{¶41} Officer Smith also testified that on numerous occasions,
inmates bring contraband inside the anal or vaginal cavities. Gallia county
officers are only allowed to do general patdown searches. They are required
to get a search warrant and transport inmates to the hospital to do body
cavity searches. Officer Smith’s cross-examination testimony mirrored
Officer Cain’s. She acknowledged that the Prosecutor’s Office, to her
knowledge, did not request video evidence. She testified the food trays are
searched upon arrival. On redirect, Officer Smith acknowledged that any
item brought into the jail through an inmate’s anal cavity would be
unbeknownst to the officers until it was outside of the body cavity.
{¶42} Deputy Jason Brown testified he is an evening shift patrol
supervisor with the Gallia County Sheriff’s Office. On February 29, 2016,
he was working regular patrol when he received information from jail staff
Gallia App. No. 16CA14 22
about an issue in the jail. When he arrived at the jail, Officers Cain and
Smith relayed the details of the incident and the discovery of the baggie on
Appellant’s person. At that point, Deputy Brown took custody of the
evidence and secured it in the evidence room. On cross-examination,
Deputy Brown admitted that to his knowledge, no interviews of the other
inmates were conducted.
{¶43} Here, the evidence regarding the material element of
“conveyance” is clearly only circumstantial. However, “[D]irect evidence of
a fact is not required. Circumstantial evidence * * * may * * * be more
certain, satisfying, and persuasive than direct evidence.” Dunn, supra, at 25,
quoting State v. Grube, 2013–Ohio–692, 987 N.E.2d 287 (4th Dist.), ¶ 30,
quoting State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990), citing
Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 10,
(1960), citing Rogers v. Missouri Pacific RR Co, 352 U.S. 500–508, fn. 17,
77 S.Ct. 443, 449, fn. 17, (1957). Even murder convictions and death
sentences can rest solely on circumstantial evidence. Grube, supra, citing
State v. Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394 (1987); State v.
Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d 1236, 1239 (1988). While the
evidence of Appellant’s “conveyance” is circumstantial, we find the
Gallia App. No. 16CA14 23
evidence, if believed, reasonably supports a finding of guilty beyond a
reasonable doubt.
{44} The guilty verdict here is based on direct and circumstantial
evidence. Both Officers Cain and Smith testified that Appellant would have
been patted down and searched upon booking on February 29th at 9:00 a.m.
and both officers further testified that although strip-searches are also
performed, they are not allowed to do body cavity searches without a
warrant. Appellant’s anal cavity was not searched. Later in the day,
Officers Cain and Smith investigated a burning smell, searched 8-10
inmates, and found a baggie containing cocaine and heroin located only on
Appellant’s person, in his buttocks. From this testimony, the jury obviously
inferred circumstantial evidence that Appellant knowingly conveyed the
drugs into the jail via his anal cavity, and that he evaded detection of the
drugs during the booking process.
{45} For the foregoing reasons, after reviewing the probative evidence
and inferences reasonably drawn therefrom in a light most favorable to the
prosecution, any rational trier of fact could have found the essential element
of “conveyance” of drugs into a detention facility proven beyond a
reasonable doubt. As such, we find no merit to Appellant’s third assignment
of error and it is hereby overruled.
Gallia App. No. 16CA14 24
ASSIGNMENT OF ERROR TWO
{¶46} Lastly, we consider Appellant’s second assignment of error.
Appellant contends he was subjected to Double Jeopardy by the imposition
of multiple punishments upon him for a single act. Appellant argues that the
trial court committed reversible error by declining to merge the illegal
conveyance violation with the drug possession violations.
STANDARD OF REVIEW
{¶47} Appellate courts conduct a de novo review of a trial court's
R.C. 2941.25 merger determination. State v. Pickett, 4th Dist. Athens No.
15CA13, 2016-Ohio-4593, ¶ 53. State v. Williams, 134 Ohio St.3d 482,
2012–Ohio–5699, 983 N.E.2d 1245, ¶ 28; accord State v. Neal, 4th Dist.
Hocking No. 15CA1, 2016–Ohio–64, ¶ 52. We therefore afford no
deference to the trial court's legal conclusion, but instead, independently
determine whether the established facts satisfy the applicable legal standard.
Williams at ¶¶ 25–27 (explaining de novo standard in merger context and
stating that fact-finder determines facts and appellate court determines
whether facts satisfy applicable legal standard).
LEGAL ANALYSIS
{¶48} Appellant contends, assuming for argument that he conveyed
drugs within himself into the Gallia County Jail, his conduct was a single
Gallia App. No. 16CA14 25
act, committed with a single state of mind. However, he asserts that to
punish him for both possession and illegal conveyance amounts to imposing
multiple punishments upon him for one act and is contrary to protection
from Double Jeopardy. The Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution provides that no person shall
“be subject for the same offense to be twice put in jeopardy of life or limb,”
and this protection applies to Ohio citizens through the Fourteenth
Amendment and is additionally guaranteed by Article I, Section 10 of the
Ohio Constitution. State v. Neal, 4th Dist. Hocking No. 50, 57 N.E.3d 272,
2016-Ohio-64 (4th Dist.), at ¶ 50. This constitutional protection prohibits
multiple punishments for the same offense. North Carolina v. Pearce, 395
U.S. 711, 717, 89 S.Ct. 2072, (1969), overruled on other grounds, Alabama
v. Smith, 490 U.S. 794, 109 S.Ct. 2201 (1989).
{¶49} “R.C. 2941.25 codifies the protections of the Double Jeopardy
Clause of the Fifth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution, which prohibits multiple
punishments for the same offense.” Pickett, supra, at 54, quoting State v.
Underwood, 124 Ohio St.3d 365, 2010–Ohio–1, 922 N.E.2d 923, ¶ 23;
accord State v. Miranda, 138 Ohio St.3d 184, 2014–Ohio–451, 5 N.E.3d
Gallia App. No. 16CA14 26
603; State v. Washington, 137 Ohio St.3d 427, 2013–Ohio–4982, 999
N.E.2d 661, ¶ 11. R.C. 2941.25 provides:
“(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.”
{¶50} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d
892, the Supreme Court of Ohio instructed that courts conduct a three-part
inquiry to determine whether offenses are allied offenses of similar import
within the meaning of R.C. 2941.25: “(1) Were the offenses dissimilar in
import or significance? (2) Were they committed separately? and (3) Were
they committed with separate animus or motivation? Pickett, supra, at 55.
An affirmative answer to any of the above will permit separate convictions.
Id. The conduct, the animus, and the import must all be considered.” Id.
quoting State v. Earley, 2015–Ohio–4615, ¶ 12, citing State v. Ruff, 143
Ohio St.3d 114, 2015–Ohio–995, 34 N.E.3d 892, ¶ 31 and paragraphs one,
two, and three of the syllabus.
Gallia App. No. 16CA14 27
{¶51} Offenses are of dissimilar import “if they are not alike in their
significance and their resulting harm.” Pickett, at 56, quoting Ruff at ¶ 21.
Thus, “two or more offenses of dissimilar import exist within the meaning of
R.C. 2941.25(B) when the defendant's conduct constitutes offenses
involving separate victims or if the harm that results from each offense is
separate and identifiable.” Id. at ¶ 23. We further note that the defendant
bears the burden to establish that R.C. 2941.25 prohibits multiple
punishments. State v. Washington, 137 Ohio St.3d 427, 2013–Ohio–4982,
999 N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St.3d 65, 67, 514
N.E.2d 870 (1987). In this case, the trial court stated as follows:
“Further as to the offenses being committed separately the
Court finds that the offenses of possession were committed
separately from the offense of illegal conveyance. Mr. Deckard
had to have committed the possession offenses prior to the
offense of uh, illegally conveying them into the jail. Also as to
the separate possession offenses one involved heroin and the
other one involved cocaine. As such, the animus for one was
the possession of heroin and the animus for the other was the
possession of cocaine. Based on the above the Court finds that
the offenses of illegal conveyance of drugs onto a detention
facility, possession of drugs, the heroin and possession of
drugs, the cocaine do not merge for purposes of sentencing.”4
4
At sentencing, the trial court referenced State v. Johnson, 128 Ohio St.3d 53, 2010-Ohio-6314, 942
N.E.2d 1061. The lead opinion in Johnson stated that R.C. 2941.25(A) requires the sentencing court to first
determine “whether it is possible to commit one offense and commit the other with the same conduct.”
(Emphasis sic.) Id. at ¶ 48. If the defendant's conduct constituting commission of one offense constitutes
commission of the other, then the offenses are of similar import. Id. The court must then determine whether
the offenses were committed by the same conduct. Id. at ¶ 49. “If the answer to both questions is yes, then
the offenses are allied offenses of similar import and will be merged.” Id. at ¶ 50. However, in State v.
Jackson, 149 Ohio St.3d 155, 2016-Ohio-5488, 73 N.E.3d 414, the Supreme Court of Ohio stated at ¶ 127:
“More recent decisions of this court, including the decision in State v. Ruff, 143 Ohio St.3d 114, 2015-
Gallia App. No. 16CA14 28
{¶52} At sentencing and on appeal, Appellant’s counsel argued the
conduct constituting the possession charges and conveyance did occur at the
same time and place. We agree with the trial court’s conclusion that the
separate possession convictions, one for heroin and one for cocaine, do not
merge for purposes of sentencing. Contemplating the third question set forth
in Ruff, the possession convictions were committed with a separate animus.
Therefore, they are not allied offenses of similar import. We need not
consider the other questions posed by Ruff. The legislature clearly intended
that possession of different drug groups constitutes different offenses. State
v. Rice, 5th Dist. Licking No. 16CA87, 2017-Ohio-1504, ¶ 12, quoting State
v. Westbrook, 4th Dist. Scioto No. 09CA3277, 2010-Ohio-2692, ¶ 43.
However, the trial court viewed the possession conduct as separate conduct
having occurred prior to the offense of illegally conveying them into the jail.
Given the circumstantial evidence presented at trial, from which the jury
inferred that Appellant conveyed the drugs into the jail via his anal cavity,
we find this reasoning to be correct.
{¶53} Merriam Webster’s Online Dictionary defines “convey” in
several ways: “* * * [T]o bear from one place to another; to move: to carry
Ohio-995, 34 N.E.3d 892, ‘have rendered the analysis of the Johnson lead opinion largely obsolete.’ State
v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11.”
Gallia App. No. 16CA14 29
away secretly: to transfer or deliver: to cause to pass from one place or
person to another * * *.” www. merriam-webster.com. 2017 Merriam
Webster, Inc. The inference arising at trial was that Appellant possessed the
two distinct drugs outside of the jail. His “conveyance” or “movement” of
the drugs into the jail facility constituted a separate and distinct action. In
this way, the conveyance offense was committed separately and with a
separate animus, affirmative answers to both the second and third questions
prescribed by Ruff.
{¶54} Our research did not yield other cases in which the failure to
merge a possession conviction into an illegal conveyance conviction was
challenged. In reviewing cases involving appeal of other illegal conveyance
convictions, we observe the State provided evidence in many cases that upon
booking, defendants were questioned as to whether they were carrying
contraband and further, advised if they were later found to be carrying
contraband, they would be subject to prosecution for the offense of illegal
conveyance. In this manner, a distinct and separate break in the conduct
would be obvious. However, the fact that the record herein does not contain
evidence of such questioning, or evidence of further advisal to Appellant of
a potential additional charge for any conveyance of contraband, does not
change the result.
Gallia App. No. 16CA14 30
{¶55} For the foregoing reasons, we find neither of Appellant’s
possession convictions must be merged into the illegal conveyance
conviction as allied offenses for purposes of sentencing. As such, we find
no merit to Appellant’s second assignment of error and it is hereby
overruled. Accordingly, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Gallia App. No. 16CA14 31
Harsha, J. concurring:
{¶56} Because the revised principal opinion incorporates the gist of
my tentative concurring opinion, I now concur in judgment and opinion.
Gallia App. No. 16CA14 32
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Gallia County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs with Concurring Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
State v. Deckard
Court: Ohio Court of Appeals
Date filed: 2017-11-01
Citations: 2017 Ohio 8469, 100 N.E.3d 53
Copy CitationsCombined Opinion