State v. Peacock

[Cite as State v. Peacock, 2017-Ohio-2592.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-16-26

v.

RENELL R. PEACOCK, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court
Trial Court No. 15 CR 0173

Judgment Affirmed

Date of Decision: May 1, 2017

APPEARANCES:

Jennifer L. Kahler for Appellant

Stephanie J. Reed for Appellee
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PRESTON, P.J.

{¶1} Defendant-appellant, Renell R. Peacock (“Peacock”), appeals the

November 1, 2016 judgment entry of sentence of the Seneca County Court of

Common Pleas. For the reasons that follow, we affirm.

{¶2} This case stems from incidents that occurred on November 29, 2014

and May 18, 2015. On November 29, 2014, Peacock, having been approached by

an officer from the Fostoria Police Department, led that officer on a foot pursuit

across a parking lot and through an alley in Fostoria, Ohio. During the chase,

Peacock discarded a small plastic bag from his pocket prior to being taken to the

ground by the officer. The officer then wrestled with Peacock because Peacock

continued to resist the officer’s attempts to control him, but a civilian aided the

officer in apprehending Peacock. A second civilian then arrived, found the item

Peacock discarded in the alley, and gave that item to another officer at the scene.

On May 18, 2015, Peacock was the target of a controlled-buy operation conducted

by law enforcement. During that operation, Peacock sold cocaine to a confidential

informant (“CI”).

{¶3} On August 5, 2015, Peacock was indicted on Count One of possession

of heroin, a violation of R.C. 2925.11(A),(C)(6)(a), a felony of the fifth degree,

Count Two of tampering with evidence, a violation of R.C. 2921.12(A)(1),(B), a

felony of the third degree, Count Three of resisting arrest, a violation of R.C.

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2921.33(A),(D), a misdemeanor of the second degree, and Count Four of trafficking

in cocaine, a violation of R.C. 2925.03(A)(1),(C)(4)(a), a felony of the fifth degree.

(Doc. No. 1). On August 25, 2015, Peacock pled not guilty to the charges in the

indictment. (Doc. No. 11).

{¶4} On September 11, 2015, Peacock appeared for a pretrial conference at

which the trial court, at Peacock’s request, relieved Peacock’s previously appointed

counsel and appointed new stand-by counsel to assist Peacock because Peacock

wished to represent himself. (Doc. No. 26).

{¶5} On November 24, 2015, a bench trial began, during which Peacock

requested that the trial court continue the trial and appoint him counsel, which the

trial court did. (Nov. 24, 2015 Tr. at 35, 43). The trial court released Peacock’s

stand-by counsel from his responsibilities and appointed new counsel for Peacock.1

(Doc. No. 60).

{¶6} The bench trial resumed on September 15, 2016. (Sept. 15, 2016 Tr. at

5). On September 20, 2016, the trial court found Peacock guilty of each count of

the indictment. (Sep. 20, 2016 Tr. at 3). The trial court then sentenced Peacock to

9 months in prison as to Count One, 30 months in prison as to Count Two, 60 days

in jail as to Count Three, and 9 months in prison as to Count Four, with the time for

1
Peacock did not specifically ask that his stand-by trial counsel be relieved. (Nov. 24, 2015 Tr. at 37-44).
However, by the hearing on a motion to continue the trial on August 2, 2016, Peacock’s new counsel had
appeared, and his previously appointed stand-by counsel was not present. (Aug. 2, 2016 Tr. at 2).

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all charges to be served concurrently for a total of 30 months of incarceration. (Oct.

27, 2016 Tr. at 13-14). The trial court filed its judgment entry of sentence on

November 1, 2016. (Doc. No. 101).

{¶7} On November 8, 2016, Peacock filed his notice of appeal. (Appeal Doc.

No. 1). He raises four assignments of error for our review. For ease of organization,

we will address Peacock’s first, second, and third assignments of error together,

followed by his fourth assignment of error.

Assignment of Error No. I

The Trial Court Erred In Finding Appellant Guilty Of
Tampering With Evidence Where the State Failed to Introduce
Sufficient Evidence To Support The Conviction.

Assignment of Error No. III

The Trial Court Erred In Finding Appellant Guilty Of Resisting
Arrest Where The State Failed To Introduce Sufficient Evidence
To Support The Conviction.

Assignment of Error No. II

The Trial Court Erred In Finding Appellant Guilty Of Possession
Of Heroin When The Conviction Was Against The Manifest
Weight Of The Evidence.

{¶8} In his first assignment of error, Peacock argues that his tampering-with-

evidence conviction is based on insufficient evidence. Specifically, he argues that

his tampering-with-evidence conviction is based on insufficient evidence because

the State failed to demonstrate that Peacock knew that an investigation was in

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progress or that one was about or was likely to begin. (Appellant’s Brief at 7).

Peacock further argues that his tampering-with-evidence conviction is based on

insufficient evidence because there was insufficient evidence presented to show that

he “altered destroyed, concealed, or removed any record, document, or thing with

purpose to impair its value or availability in a pending investigation.” (Id. at 8);

R.C. 2921.12(A)(1). That is, Peacock argues that there is insufficient evidence that

he discarded the bag of drugs. (Id.). He argues that, on a windy day such as the one

in question, any item of trash could have been blowing by, and he argues that the

officer could simply have been mistaken about what he saw because his vision had

blurred. (Id.).

{¶9} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

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credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,

citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

{¶10} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of

witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.’” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

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{¶11} R.C. 2921.12 sets forth the elements of the offense of tampering with

evidence and provides, in relevant part: “No person, knowing that an official

proceeding or investigation is in progress, or is about to be or likely to be instituted

shall * * * [a]lter, destroy, conceal, or remove any record, document, or thing, with

purpose to impair its value or availability as evidence in such proceeding or

investigation * * *.” R.C. 2921.12(A)(1).

{¶12} “Knowledge that a criminal investigation is under way or is imminent

is based upon a reasonable person standard.” State v. Hicks, 3d Dist. Union Nos.

14-07-26 and 14-07-31, 2008-Ohio-3600, ¶ 54, citing State v. Mann, 12th Dist.

Clermont No. CA2006-05-035, 2007-Ohio-1555, ¶ 11. In order to tamper with

evidence within the meaning of the statute, one must intend to impair the value or

availability of evidence that is related to an existing or likely investigation, with the

likelihood of the investigation measured at the time of the act of alleged tampering.

State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, ¶ 19.

{¶13} R.C. 2921.12(A)(1) employs a “purposely” culpability standard. See

State v. Skorvanek, 182 Ohio App.3d 615, 2009-Ohio-1709, ¶ 21 (9th Dist.), citing

State v. Jones, 9th Dist. Summit No. 23234, 2006-Ohio-6963, ¶ 13-15. “A person

acts purposely when it is his specific intention to cause a certain result, or, when the

gist of the offense is a prohibition against conduct of a certain nature, regardless of

what the offender intends to accomplish thereby, it is his specific intention to engage

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in conduct of that nature.” R.C. 2901.22(A). See Skorvanek at ¶ 21. A defendant’s

state of mind may be inferred from the totality of the surrounding circumstances

when determining whether the defendant acted purposely. Skorvanek at ¶ 21, citing

State v. Patel, 9th Dist. Summit No. 24030, 2008-Ohio-4693, ¶ 34.

{¶14} Therefore, the key inquiries in this case are whether the evidence,

when viewed in the light most favorable to the prosecution, is such that any rational

trier of fact could have found that (1) a reasonable person in Peacock’s position

would have known that an official investigation was in progress or was about to be

or likely to be instituted, and (2) Peacock removed a bag of drugs from his person

with the intention of impairing its availability as evidence in the investigation. As

such, we will address whether a reasonable person in Peacock’s position would have

known an official investigation was in progress or was about or likely to be instituted

first, and whether he concealed or removed a bag of drugs from his person with

intention of impairing their availability in the investigation second.

{¶15} At trial, Fostoria Police Officer Nate Elliot (“Officer Elliot”) testified

that, on November 29, 2014, at approximately 4:22 p.m., he drove past Fort Ball

Pizza on West Center Street, having previously become aware that Peacock was

staying at an apartment in the area. (Nov. 24, 2015 Tr. at 22). Officer Elliot averred

that, at that location, he observed a vehicle registered to Aubrey Jones, a man whose

license was suspended and whose description matched that of the man who was

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operating that vehicle at that time. (Id. at 22-24). Officer Elliot then testified that,

after driving about and receiving information about the vehicle and the person to

whom it was registered, he then returned to the spot where the vehicle was parked

and saw that its driver exited the vehicle and was walking northbound through a

parking lot. (Id. at 23-24). Officer Elliot parked his patrol car, exited his vehicle,

and yelled to the driver of the other vehicle, asking whether that driver would come

and speak with him. (Id. at 24). Officer Elliot discerned that the driver of said

vehicle was not Aubrey Jones, but rather Peacock, whom he knew from prior

encounters. (Id. at 24-25).

{¶16} Officer Elliot testified that Peacock falsely identified himself as

Kewan Hayes. (Id. at 26-27). Officer Elliot testified that he then grabbed Peacock

by the arm and indicated that he knew Peacock was not Kewan Hayes, at which

point Peacock put his right hand in his coat pocket and fled on foot. (Id. at 27).

Officer Elliot testified that a chase then ensued. (Id. at 27). He testified that, during

that pursuit and while he was approximately five or six feet behind Peacock and

running through an alley, he observed Peacock remove his right hand from his

pocket and discard an item. (Id.). That item appeared to be a clear plastic bag with

lottery papers inside. (Id. at 28). Officer Elliot testified that he saw where Peacock

threw the item. (Id.).

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{¶17} Officer Elliot next testified that Jeremiah McDonald (“McDonald”), a

civilian who arrived on the scene, located the item that Peacock discarded. (Id. at

29). He said that he saw McDonald pick up the item from the spot to which Peacock

discarded it, that he followed McDonald as McDonald walked through the alley and

around a building, and that he saw McDonald hand the item to Officer Chad

Marchetto (“Marchetto”) of the Fostoria Police Department, who by then had

arrived on the scene. (Id. at 32).

{¶18} On cross examination, Officer Elliot testified that he worked

approximately ten hours on the day in question by the time he encountered Peacock.

(Nov. 24, 2015 Tr. at 8). He further admitted that he has a medical condition that

fatigues him quickly if his heart rate increases and also blurs his vision. (Id. at 23).

Officer Elliot conceded that a great deal of drug activity takes place in the alley

through which Peacock ran. (Id. at 30). Officer Elliot asserted that, at the time he

saw Peacock discard the bag of drugs in the alley, he was four or five yards behind

Peacock. (Id. at 32).2 Officer Elliot went on to explain that, once the chase was

concluded and Jeremiah McDonald arrived and searched the alley, Officer Elliot

yelled to McDonald from some distance away to stop McDonald from picking up

any potential evidence. (Sept. 15, 2016 Tr. at 35). Despite this, Officer Elliot said

McDonald picked up a bag of drugs and gave it to Officer Marchetto. (See id. at

2
Officer Elliot’s earlier testimony indicated that he was “five or six feet” from Peacock when the item was
thrown. (Nov. 24, 2015 Tr. at 27).

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35-36). Officer Elliot admitted to losing sight of McDonald “briefly” as McDonald

walked around a building after picking up the bag of drugs. (Id. at 36).

{¶19} This case presents a set of facts strikingly similar to those we

addressed in State v. Rock. State v. Rock, 3rd Dist. Seneca No. 13-13-38, 2014-

Ohio-1786. In Rock, a police officer approached three individuals while operating

his cruiser at approximately 2:45 a.m. Id. at ¶ 15. As he did so, the officer observed

one of the three individuals toss something from his pocket to the ground. Id. at ¶

15. After some questioning, Rock admitted to the officer that one of his companions

passed the drugs to him as the officer approached, and Rock discarded the drugs

under the belief that they were Vicodin. Id. at ¶ 17. When addressing whether the

evidence in Rock was sufficient to show that a reasonable person in the defendant’s

position would have known an investigation was about or was likely to be instituted,

we held that “passing illegal drugs in front of others in public would put a reasonable

person on notice that this illegal activity would be reported to law enforcement and

an investigation instituted.” Id. at ¶ 19. We further held that “a reasonable person

in Rock’s position would not have felt the need to toss the pills aside * * * if that

person did not believe an investigation was about or was likely to be instituted.” Id.

at ¶ 20.

{¶20} Here, Peacock did as Rock did—passed illegal drugs in view of the

public by removing the drugs from his person in the hope that the approaching

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officer would not find them. He would have had no reason to do so if he did not

believe that an investigation concerning those drugs was in progress or was likely

to be instituted. This case presents an even more favorable set of facts for the State

because Peacock discarded the bag of drugs during the light of the day with Officer

Elliot running a few feet behind him rather than in the darkness of the morning as

an officer approached him from some distance in a cruiser, making it all the more

likely that his action would be seen and would result in an investigation.

{¶21} Viewing the evidence in the light most favorable to the prosecution,

we conclude that a reasonable person in Peacock’s position would have known that

an official investigation was in progress or was about to be or likely to be instituted

at the time he discarded the item in question.

{¶22} Second, we will address whether the State presented sufficient

evidence to demonstrate that Peacock concealed or removed any record, document,

or thing to impair its value or availability in such proceeding or investigation. We

conclude that a rational trier of fact could have found that Peacock removed the

drugs from his person and concealed them by throwing them with the intention of

impairing their availability as evidence in an investigation. Officer Elliot saw

Peacock throw an item from his pocket during the chase, saw where the item landed,

and later was able to determine that said item was a bag of drugs.

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{¶23} Discarding a bag of drugs from one’s person during a chase is

precisely the sort of conduct the tampering statute contemplates, and the fact-finder

could reasonably infer that Peacock did so in order to prevent the item from being

used by placing it out of sight or otherwise getting rid of it. See State v. Colquitt,

2d Dist. Clark No. 98-CA-71, 1999 WL 812313, *5 (Sept. 24, 1999) (concluding

that testimony about the defendant’s throwing a bag of drugs over a fence as officers

approached was sufficient to establish concealment or removal of the evidence in

order to impair its availability in an investigation). The mere fact that Peacock did

what he did on a windy day on which various things could have been blowing about

while being chased by an officer in imperfect physical condition does not alter our

sufficiency analysis. The officer said what he said, and the finder of fact believed

him.

{¶24} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a rational trier of fact could have found it proven beyond a reasonable

doubt that a reasonable person in Peacock’s position knew that an official

investigation was about or likely to be instituted and that Peacock removed or

concealed a bag of drugs with the specific intention of impairing its availability as

evidence in the investigation.

{¶25} For the foregoing reasons, Peacock’s first assignment of error is

overruled.

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{¶26} In his third assignment of error, Peacock argues that his resisting-arrest

conviction is based on insufficient evidence. Specifically, he argues that, though

Officer Elliot pursued and attempted to restrain Peacock, Officer Elliot never told

Peacock that he was under arrest, and there was no evidence to suggest that Officer

Elliot believed that Peacock was involved in any illegal activity. (Appellant’s Brief

at 11). Though Peacock does not quite make his argument in these terms, it appears

from his brief that Peacock asserts that he did not act recklessly with respect to

resisting arrest because he had no reason to believe that Officer Elliot was

attempting to arrest him. (See id.).

{¶27} R.C. 2921.33 sets forth the elements of the offense of resisting arrest,

and it provides, in relevant part, “No person, recklessly or by force, shall resist or

interfere with a lawful arrest of the person or another.” R.C. 2921.33(A). “A person

is reckless with respect to circumstances when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that such

circumstances are likely to exist.” R.C. 2901.22(C).

{¶28} At trial, Officer Elliot testified that he told Peacock to stop during the

pursuit and that, when Officer Elliot eventually detained Peacock, Peacock did not

comply with his efforts to restrain him. (Nov. 24, 2015 Tr. at 29). According to

Officer Elliot, he had to wrestle with Peacock on the ground until a civilian—

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Stephen Schalk (“Schalk”)—arrived and helped place Peacock in restraints. (Id.; Id

at 32).

{¶29} Schalk also testified on the State’s behalf. (Sept. 15, 2016 Tr. at 79).

He testified that, on November 29, 2014, he observed Officer Elliot interacting with

Peacock in a parking lot on the corner of Wood Street and Tiffin Street. (Id.).

According to Schalk, he saw the police officer reach for Peacock, at which point

both took off running. (Id.). Schalk said that the two men than ran through an alley

and, the next time Schalk saw them, they were on the ground as Officer Elliot

struggled to control Peacock; Schalk approached and helped Officer Elliot place

Peacock in restraints. (Id. at 80).

{¶30} This case presents facts similar to those in State v. Dice, 3rd Dist.

Marion No. 9-04-41, 2005-Ohio-2505. In that case, Dice was the object of a police

investigation because he allegedly threatened his wife with a firearm. Id. at ¶ 5.

When the officers located Dice, he fled despite their instructions to stop, and they

pursued him. Id. at ¶ 8. One of the officers eventually tackled Dice, despite which

Dice continued to struggle so much that the officer could not complete the arrest

without help from another officer who assisted in subduing Dice. Id. at ¶ 27. When

Dice came before this Court arguing that there was insufficient evidence of resisting

arrest at trial, we concluded that, based on the facts above, sufficient evidence

existed to convict Dice of resisting arrest. Id.

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{¶31} Here, as in Dice, Officer Elliot was led on a chase prior to

apprehending Peacock. In each case, law enforcement told the defendant to stop to

no avail; and, in each case, the defendant was eventually captured, which

coincidentally required two people each time.

{¶32} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a rational trier of fact could have found proven beyond a reasonable

doubt that Peacock recklessly or forcefully resisted or interfered with a lawful arrest.

Therefore, Peacock’s resisting arrest conviction is based on sufficient evidence.

{¶33} For the foregoing reasons, Peacock’s third assignment of error is

overruled.

{¶34} In his second assignment of error, Peacock argues that his conviction

for possession of heroin is against the manifest weight of the evidence. Specifically,

he argues that his conviction for possession of heroin is against the manifest weight

of the evidence because, though Officer Elliot believes he saw Peacock discard an

item while running through the alley, the officer was also suffering from a health

condition that impaired his vision. (Appellant’s Brief at 10). Further, he argues that

his possession-of-heroin conviction is against the manifest weight of the evidence

because the alley in which the bag of heroin was found is one known for extensive

drug activity, meaning that there could very easily have been drugs in the alley

before Peacock came on the scene. (Id.). Peacock further argues that his conviction

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is against the manifest weight of the evidence because Schalk searched the alley at

Officer Elliot’s request and found nothing, while McDonald produced a bag of drugs

after ignoring the officer’s instructions to guard the alley, walking around the

building, and disappearing from sight. (Id.). Peacock also notes that, upon his

capture, he had no drugs or weapons on his person. (Id.).

{¶35} The offense of possession of heroin is set forth in R.C. 2925.11, which

provides, in relevant part:

{¶36} “No person shall knowingly obtain, possess, or use a controlled

substance or a controlled substance analog. * * * If the drug involved in the

violation is heroin or a compound, mixture, preparation, or substance containing

heroin, whoever violates division (A) of this section is guilty of possession of

heroin.” R.C. 2925.11(A),(C)(6). “Possession” means having control over a thing

or substance, though it may not be inferred solely from mere access to the thing or

substance through ownership or occupation of the premises upon which the thing or

substance is found. R.C. 2925.01(K).

{¶37} Many of the facts weighing in favor of Peacock’s possession-of-heroin

conviction are summarized above in our discussion of his first assignment of error.

We find it unnecessary to review them in their entirety. We will simply note that

Officer Elliot testified that, while pursuing Peacock from a distance of five to six

feet behind him, he saw Peacock discard an item from his pocket, suspected the item

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might be contraband, and saw the location where the item landed. Officer Elliot

then averred that he saw civilian Jeremiah McDonald pick up the item from the spot

to which Peacock had thrown it and deliver that item to Officer Marchetto. That

item was tested and was found to contain heroin.

{¶38} McDonald testified on the State’s behalf. (Sept. 15, 2016 Tr. at 85).

McDonald was handed State’s Exhibit 2 and identified that item as the item he saw

discarded on the day in question and as the item that he picked up before handing it

to another officer. (Id. 87-88). That item was previously identified as the bag

containing heroin. (Nov. 24, 2015 Tr. at 34-36; State’s Ex. 3.). McDonald testified

that the officer on the scene had told him Peacock discarded something in the alley

and that McDonald should go look for it. (Id. at 96). McDonald then said he went

to the alley and picked up a bag that appeared to him to contain bubble gum. (Id. at

96-97). McDonald also said that he did not hear Officer Elliot call out to him as he

walked down the alley. (Id. at 98). He testified that he gave the bag containing the

drugs to the first officer he saw. (Id. at 100).

{¶39} Kelsey Degen (“Degen”), a forensic scientist with the Bureau of

Criminal Investigation (“BCI”), testified on behalf of the State. (Sept. 15, 2016 Tr.

at 116). She conducted an analysis on State’s Exhibit 2. (Id. at 123). According to

her findings, that exhibit contained heroin. (Id.; State’s Ex. 3).

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{¶40} As Peacock notes in his brief, Schalk’s testimony at trial indicates that

he did not see narcotics on Peacock or in the alley despite the fact that he searched

the alley for the item Peacock discarded. (Id. at 81-82).

{¶41} Weighing the evidence above, we conclude that the fact-finder did not

clearly lose its way in convicting Peacock of the offense of possession of heroin.

Officer Elliot saw Peacock discard a bag during the chase. McDonald retrieved a

bag from the alley, which Officer Elliot identified as the same bag he saw Peacock

throw, and that bag contained heroin. Mr. Peacock’s argument amounts to an

assertion that the fact-finder should not have believed the state’s witnesses because

Peacock’s version is more credible under the circumstances, but the mere fact that

the officer’s eyesight was less than perfect or that the heroin may have belonged to

someone else does not weigh heavily against Peacock’s conviction. State v.

McCary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 16 (noting that a

conviction is not against the manifest weight of the evidence simply because the

fact-finder chose to believe one version of events over another). Nor does the fact

that McDonald did not follow Officer Elliot’s instructions to the letter in handling

the contraband he found; regardless of the route he took to give the evidence to the

police, McDonald testified that he picked up the item he saw Peacock discard, and

McDonald testified that he then gave that item to law enforcement. (Sept. 15, 2016

Tr. at 87-88). The fact-finder was permitted to believe McDonald. State v. Green,

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10th Dist. Franklin No. 11AP-526, 2012-Ohio-950, ¶ 11. Therefore, Peacock’s

possession-of-heroin conviction is not against the manifest weight of the evidence.

{¶42} For the foregoing reasons, Peacock’s second assignment of error is

overruled.

Assignment of Error No. IV

Appellant Was Not Provided Effective Assistance Of Counsel
When Appellant’s Attorney Failed To Provide A Warning To
Appellant Prior to Making A Statement And To Advise Appellant
Regarding His Fifth Amendment Right to Remain Silent Prior To
The Attorney’s Release As Counsel of Record For Appellant.

{¶43} In his fourth assignment of error, Peacock argues that he was denied

the effective assistance of counsel at trial. Specifically, he argues that his trial

counsel was ineffective because his trial counsel provided no warnings to Peacock

about his right to remain silent or that the statements he made at the pretrial

conference could be used against him at trial. (Appellant’s Brief at 13).

{¶44} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). Prejudice results when “‘there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’” State v. Bradley, 42 Ohio St.3d 136, 142, quoting

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Strickland at 694. “‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Id.

{¶45} We conclude that Peacock failed to demonstrate that prejudice resulted

from his trial counsel’s alleged failures. In light of our dispositions of Peacock’s

other three assignments of error, which pertained to Counts One, Two, and Three,

Peacock has not demonstrated a reasonable likelihood that the results as to those

counts would have been different. We thus conclude that Peacock has not

demonstrated prejudice and that his trial counsel was not ineffective as to those

counts. State v. Six, No. 98CA9, 1999 WL 339233 (May 28, 1999) (concluding that

a trial counsel’s allowing certain statements into evidence did not demonstrate

prejudice where “a significant amount” of other evidence had been introduced to

prove the defendant’s guilt).

{¶46} We will now address whether Peacock has demonstrated a reasonable

likelihood that the outcome as to Count Four would have been different but for his

admission.

{¶47} At trial, Detective Gabriel Wedge of the Seneca County Drug Task

Force (“Detective Wedge”) testified that he was involved in a controlled-buy

operation that took place May 18, 2015. (Sept. 15, 2016 Tr. at 140). He said that,

prior to the operation, a CI contacted him and indicated that he intended to carry out

a drug transaction with someone identified as “Freak P.” (Id. at 143). “Freak P” is

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an alias that Peacock uses. (Id. at 139). According to Detective Wedge, he searched

the CI prior to the controlled-buy operation and found that the CI had no contraband

on his person. (Id.). The CI was then outfitted with audio-visual equipment and

provided money to purchase drugs. (Id.). Detective Wedge testified that he saw

Peacock meet with the CI in an alley and that, after that meeting, the CI told

Detective Wedge that Peacock accepted the money and went to procure drugs. (Id.

at 145). Next, Detective Wedge testified that he observed Peacock return to the area

and enter the CI’s home. (Id. at 146). Detective Wedge then identified State’s

Exhibit 6 as the audio-visual record of the transaction, which was subsequently

played for the trial court. (Id. at 152); (State’s Ex. 6).

{¶48} Detective Charles Boyer (“Detective Boyer”) of the Tiffin Police

Department testified that, at the conclusion of the operation, he picked up the CI,

and the CI provided to him a rock-like substance that Detective Boyer suspected

was cocaine, which Detective Boyer then provided to Detective Wedge. (Sept. 15,

2016 Tr. at 210). Detective Boyer identified State’s Exhibit 4 as the substance he

provided to Detective Wedge. (Id. at 210-211).

{¶49} Larry Rentz (“Rentz”), a forensic scientist with BCI, testified that he

analyzed State’s Exhibit 4. (Id. at 188). He further identified State’s Exhibit 5 as

the report indicating that State’s Exhibit 4 contained cocaine. (Id. at 189); (State’s

Ex. 5).

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{¶50} Based on our review of the record, we conclude that Peacock did not

demonstrate prejudice, and his counsel was not ineffective. Even in the absence of

Peacock’s admissions during the pretrial proceeding, we find it highly unlikely that

the result as to Count Four would have been different in the absence of what Peacock

alleges were his trial counsel’s errors. State v. Inman, 9th Dist. Medina No.

03CA0122-M, 2004-Ohio-3424, ¶¶ 26-27 (concluding that a charge of trafficking

in cocaine was supported by sufficient evidence and was not against the manifest

weight of the evidence where authorities used a CI and a recording device, as well

as visual surveillance by officers to identify the defendant as a drug trafficker).

Because we conclude that Peacock’s trial counsel’s not advising him to remain

silent or that his statements could be used against him does not satisfy the second

element of the Strickland analysis, it is unnecessary for us to address whether the

first element of Strickland is met. State v. Anaya, 191 Ohio App.3d 602, 2010-

Ohio-6045, ¶ 25 (6th Dist.). Therefore, Peacock’s trial counsel was not ineffective.

{¶51} For the foregoing reasons, Peacock’s fourth assignment of error is

overruled.

{¶52} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.
/jlr

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