[Cite as State v. Derifield, 2021-Ohio-1351.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

MADISON COUNTY 

STATE OF OHIO, 

 Appellee, 

 - vs - 

STEVEN B. DERIFIELD, 

 Appellant. 

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CASE NO. CA2020-01-002 

O P I N I O N 

4/19/2021 

CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS 

Case No. CRI20190065 

Nicholas A. Adkins, Madison County Prosecuting Attorney, Rachel M. Price, Michael S. 

Klamo, 59 North Main Street, London, Ohio 43140, for appellee 

Harris Law Firm, LLC, Felice Harris, 6031 East Main Street, #187, Columbus, Ohio 43213, 

for appellant 

 HENDRICKSON, J. 

{¶ 1} Appellant, Steven Derifield, appeals from his conviction in the Madison 

County Court of Common Pleas for one count of having weapons while under disability and 

three counts of possession of drugs. For the reasons detailed below, we affirm in part, 

reverse in part, and remand this matter to the trial court for further proceedings. 

{¶ 2} On July 11, 2019, Derifield was indicted by a Madison County Grand Jury for: 
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(1) having weapons under disability in violation of R.C. 2923.13(A)(3), a third-degree felony, 

(2) possession of heroin in violation of R.C. 2925.11(A), a third-degree felony, (3) 

possession of cocaine in violation of R.C. 2925.11(A), a first-degree felony, and (4) 

aggravated possession of methamphetamine in violation of R.C. 2925.11(A), a seconddegree felony. 

{¶ 3} The charges stemmed from an investigation into a stolen firearm, specifically, 

an AR-15 rifle. On May 21, 2019, Kurtis Smouse reported to the London Police Department 

the firearm had been stolen. According to Smouse, the last time he remembered seeing 

the rifle was when it was propped against the wall of his bedroom by a window that had 

been left open. Smouse also reported that he believed Chance Archer, Ben Hillman, or 

Dallas Webb had stolen the rifle because they knew where he kept it in his home. 

{¶ 4} A few days later, Smouse returned to the London Police Department with new 

information. Smouse reported that he had allowed Dallas Webb to use his phone, who then 

used it to access his Facebook account. When Webb returned the phone, Smouse 

discovered that he had not signed out of the account, leaving it open to inspection. Upon 

viewing the account, Smouse learned that Webb, as well as another man, Eric Miller, were 

attempting to sell the rifle to an individual they referred to as "Dagg." Smouse also provided 

Dagg's phone number and informed the police that "[Dagg] lives on Clinton St. on the right 

side." 

{¶ 5} Based on prior interactions between the two, Detective Greg Perkins knew 

that "Dagg," or "Dagwood," was actually Derifield. Detective Perkins, therefore, suspected 

that Derifield was the individual involved in the purchase of the rifle. The record indicates 

that Detective Perkins was ultimately able to corroborate the information provided by 

Smouse with other information provided by a confidential informant. 

{¶ 6} Upon receiving this information, Detective Perkins then sought a search 
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warrant for Derifield's residence. The search warrant included a summary of the information 

that Detective Perkins had received from Smouse, including reference to the Facebook 

conversation between Webb and Miller. Detective Perkins did not attach the Facebook 

messages to the application, nor did Detective Perkins specify how he knew Derifield was, 

in fact, "Dagwood." The authorizing judge nevertheless signed the search warrant. 

{¶ 7} On May 30, 2019, the search warrant was executed by officers from the 

Madison County Sheriff's Office and the London Police Department. When executing the 

warrant, detectives on the scene first spoke with the homeowner, Larry Davis, who 

confirmed that Derifield was inside in the back bedroom with his girlfriend, Marissa Blevins. 

{¶ 8} Detective Cooper then entered the residence and announced his presence 

outside the back bedroom. Shortly thereafter, Detective Cooper encountered Marissa, who 

was quickly removed from the room and taken outside. Once Marissa was outside, 

Derifield, who was lying on the bed, was asked to show his hands, placed in handcuffs, and 

escorted from the room. Detective Cooper then entered the back bedroom where he 

observed drug paraphernalia in plain sight. This discovery prompted the law enforcement 

officers to obtain a second search warrant. 

{¶ 9} After a second search warrant was authorized, the officers resumed their 

search and began inventorying the items found in the bedroom. Officers discovered an 

armoire at the foot of the bed that contained a handgun, hypodermic needles, a stack of 

money, a wallet with Derifield's driver's license, as well as a box containing a white 

substance believed to be narcotics. Additional narcotics were found underneath the 

mattress and inside two safes. The smaller safe contained a bag of suspected narcotics, 

while the larger safe contained a gun box, ammunition, and four watches. The watches 

were subsequently swabbed for DNA, one of which positively identified the presence of 

Derifield's DNA. 
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{¶ 10} After the search, Derifield was arrested for one count of having weapons 

under disability and the suspected narcotics were sent for testing. Following his arrest, 

Derifield moved to suppress all the evidence obtained as a result of the two search warrants. 

Derifield alleged the first warrant issued was facially and legally deficient and constituted 

an illegal search and seizure. To support this claim, and as relevant to this appeal, Derifield 

argued that Detective Perkins made six impermissible inferences not communicated to the 

issuing judge. 

{¶ 11} After a hearing, the trial court denied Derifield's motion to suppress. 

Thereafter, the matter proceeded to a bench trial for the weapons under disability charge 

and a jury trial on the remaining three drug-related offenses. Derifield was found guilty on 

all four counts. 

{¶ 12} As a result of the guilty verdicts, the trial court sentenced Derifield to an 

aggregate sentence of 16 years to a maximum of 21 years and ordered a cumulative fine 

of $23,000. Derifield now appeals, raising four assignments of error for review. For ease 

of discussion, we will be addressing Derifield's assignments of error out of order. 

{¶ 13} Assignment of Error No. 1: 

{¶ 14} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S 

MOTION TO SUPPRESS. 

{¶ 15} In his first assignment of error, Derifield argues the trial court erred by denying 

his motion to suppress. To support this claim, Derifield raises two separate issues, which, 

for ease of discussion, we will address separately. 

{¶ 16} Appellate review of a ruling on a motion to suppress presents a mixed 

question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio4769, ¶ 15, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When 

considering a motion to suppress, the trial court, as the trier of fact, is in the best position 
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to weigh the evidence in order to resolve factual questions and evaluate witness credibility. 

State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. In turn, this 

court is bound to accept the trial court's findings of fact if they are supported by competent, 

credible evidence. State v. Dugan, 12th Dist. Butler No. CA2012-04-081, 2013-Ohio-447, 

¶ 10. "Accepting these facts as true, the appellate court must then independently 

determine, without deference to the conclusion of the trial court, whether the facts satisfy 

the applicable legal standard." State v. Runyon, 12th Dist. Clermont No. CA2010-05-032, 

2011-Ohio-263, ¶ 12. 

{¶ 17} The Fourth Amendment to the United States Constitution prohibits 

unreasonable searches and seizures and provides that "no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and particularly describing the place to 

be searched, and the persons or things to be seized." To that end, "a judge may issue a 

search warrant only upon a finding of probable cause in an affidavit or affidavits presented 

to the judge." State v. Risner, 12th Dist. Preble No. CA2017-06-007, 2018-Ohio-1569, ¶ 

16, citing Crim.R. 41(C). The affidavit must "name or describe the person to be searched 

or particularly describe the place to be searched, name or describe the property to be 

searched for and seized, state substantially the offense in relation thereto, and state the 

factual basis for the affiant's belief that such property is there located." Crim.R. 41(C)(1). 

"The finding of probable cause may be based upon hearsay in whole or in part, provided 

there is a substantial basis for believing the source of the hearsay to be credible and for 

believing that there is a factual basis for the information furnished." Crim.R. 41(C)(2); Risner

at ¶ 16. 

{¶ 18} In determining whether probable cause exists to support the issuance of a 

warrant, courts employ a "totality-of-the-circumstances test." State v. Thompson, 12th Dist. 

Butler No. CA2013-08-158, 2014-Ohio-3380, ¶ 12. Under this test, the judge issuing the 
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warrant must "make a practical, common-sense decision whether, given all the 

circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of 

knowledge' of persons supplying hearsay information, there is a fair probability that 

contraband or evidence of a crime will be found in a particular place." State v. J.A.C., 12th 

Dist. Warren Nos. CA2017-04-044 and CA2017-04-045, 2018-Ohio-361, ¶ 18, quoting 

State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the syllabus. 

1. State v. Castagnola

{¶ 19} Derifield initially argues the trial court erred by denying his motion to suppress 

since the affidavit in support of the first search warrant lacked sufficient indicia of probable 

cause. This is because, according to Derifield, the affiant, Detective Perkins, used 

impermissible inferences not communicated to the issuing judge. 

{¶ 20} The Ohio Supreme Court has held that affiants may make reasonable 

inferences within search-warrant affidavits. State v. Castagnola, 145 Ohio St.3d 1, 2015-

Ohio-1565, ¶ 39. However, to permit an independent review, the facts upon which those 

inferences are based must be disclosed and the issuing judge must be afforded the 

opportunity to test any significant inferences drawn by the affiant. Id. at ¶ 40. The issuing 

judge cannot be viewed as neutral and detached if she issues a search warrant that is 

unknowingly based on the police officer's conclusions. Id. at ¶ 41. While search-warrant 

affidavits will inevitably include undisclosed inferences, there is a line between permissible 

police interpretation and usurpation of the judge's function. Id. at ¶ 49. 

{¶ 21} In Castagnola, the Ohio Supreme Court adopted the test for reviewing courts 

confronted with allegations that an inference made by an affiant was presented as an 

empirical fact in an affidavit, thus usurping the issuing judge's inference-drawing authority. 

Id. When a court reviews the inferences that were given to the judge or magistrate, it must 

determine if it was an allowable interpretation or if the affiant assumed the judge or 
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magistrate's job of determining whether there was probable cause to grant the search 

warrant. Id. at ¶ 49. 

{¶ 22} The first inquiry is to determine whether the hidden inference was "so 

significant as to cross the line between permissible interpretation and usurpation." Id. A 

hidden inference "should be deemed significant if it can be fairly concluded that it had a 

substantial bearing on the magistrate's determination of probable cause" in each of two 

respects: 

(1) Relevance: The more directly relevant the inference is to the 

magistrate's inquiry, the more substantial its bearing and the 

more significant it will be. * * * 

(2) Complexity: The more complex and attenuated the logical 

process by which a relevant conclusion is reached, the more 

important it is that the magistrate receive an opportunity to test 

the inference for validity as part of his neutral and detached 

function. Conversely, an inference so straightforward, and so 

patently within the affiant's area of expertise, as to be a matter 

of "routine interpretation" for the affiant is probably not so 

significant as to require the magistrate's review even though the 

conclusion thus reached is highly relevant. 

Id. 

{¶ 23} If the inference is found to be significant, then the reviewing court must look 

at the second step and examine the affiant's animus. Id. at ¶ 50. That is, if the person 

seeking the search warrant acted "intentionally" or with "conscious indifference," then the 

warrant should be found invalid, and the evidence should be suppressed. Id. On the other 

hand, if the affiant acted "negligently," then the improper influence should be removed and 

replaced with the omitted underlying facts. Id. The reviewing court shall then reevaluate 

the warrant to see if it still supports the finding of probable cause. Id. 

{¶ 24} In the present case, Derifield only contests the validity of the first search 

warrant, which authorized a search for "[g]uns and or weapons intact or possibly 

disassembled into various pieces. Any other weapons parts associated with the case(s) 
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being investigated." The affidavit alleging probable cause for the search warrant stated: 

On May 21, 2019 at approximately at 22:32 hours. The London 

Division of Police took a report of a stolen weapon from 186 

South Union St in the City of London, Oh. The victim, Kurtis 

Smouse, listed suspects, based on the fact that they knew 

where the weapon was located inside the residence. 

On May 28, 2019 Kurtis Smouse made contact with the London 

Police Division to advise that he noticed, after allowing one of 

the listed suspect(s) to borrow his phone, namely Dallas Webb, 

Webb logged into his facebook account on Smouse's phone and 

had a conversation with Eric Miller about selling Smouse's 

stolen weapon to Steven Derifield, "aka....Dagwood." 

Smouse furnished the information from the phone along with 

Derifield's known address/hang-out at the above listed 501 

Clinton St. London, Oh. Derifield's phone number was then 

verified with other sourced to co-oberate [sic] Smouse's 

statement. 

It is believed that the stolen weapon is inside this address, 

therefore this warrant is being requested to investigate the case 

further. 

{¶ 25} At the suppression hearing, Derifield alleged Detective Perkins' affidavit 

contains six impermissible inferences under Castagnola with regard to his identity and the 

location of the weapon contained in the text messages between Webb and Miller. Those 

six allegedly impermissible inferences are as follows. 

1. The two [Webb and Miller] were having a conversation about 

selling a stolen weapon. 

2. The weapon was planned for sale to a person named "Dagg." 

3. The defendant is "Dagg." 

4. "Dagg," even if he was supposed to be buying this weapon, 

knew it to be stolen. 

5. "Dagg" actually bought the weapon. 

6. "Dagg" retained the weapon at his home. 

{¶ 26} The trial court considered each of the six allegedly improper inferences. The 
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court first determined that Inference 4 was not actually inferred because Detective Perkins 

did not assert that Dagg knew the weapon was stolen and nothing in his affidavit suggested 

that Dagg knew the weapon was stolen. That finding is supported by the record. 

{¶ 27} With respect the Inferences 1, 2, and 5, the court found that each of those 

inferences were permissible interpretations by Detective Perkins. As noted by the trial 

court, Detective Perkins was investigating a theft of an AR-15. Initially, Smouse provided 

the relevant information concerning the AR-15 and a list of suspects who knew where he 

kept the rifle in his home. Thereafter, Smouse informed Detective Perkins of the Facebook 

messages where Webb and Miller were discussing "the a.r." and that they "got everything 

sold for sure." In conjunction, Miller asked Webb whether he made it to Dagg's residence, 

which Webb replied, "not yet." The two then discussed the need to use a car for 

transportation because "[y]ou can't walk with this." In short, we agree with the trial court 

that Inferences 1, 2, and 5 were permissible. Based on the information Detective Perkins 

had, and with his prior knowledge and training, could reasonably infer that Webb and Miller 

were speaking about selling the stolen weapon (Inference 1) to a person named "Dagg" 

(Inference 2) and that Dagg had actually purchased the weapon (Inference 5). 

{¶ 28} The court then addressed the two remaining inferences, which are the only 

two inferences that Derifield contests in his brief. As noted above, Inference 3 is that 

Derifield is "Dagg." The trial court determined that Detective Perkins was personally familiar 

with Derifield based on his testimony and that he knew Derifield went by the nickname of 

"Dagg" or "Dagwood." The trial court found it was a matter of routine interpretation for 

Detective Perkins.

{¶ 29} Derifield disputes the trial court's finding that his nickname was a matter of 

routine interpretation. In so doing, Derifield cross-references the victim's statement calling 
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him "Gagwood" and characterizes Detective Perkin's testimony as faulty.1 Therefore, 

according to Derifield, the trial court's decision was improper in that it "was based on the 

court's erroneous recollection that [Detective Perkins] testified he was personally familiar 

with Mr. Derifield, that he knew Mr. Derifield had a nickname, and that his nickname was 

Dagwood." 

{¶ 30} Following review, we find that Inference 3 was permissible. Though we 

concur with the trial court that whether "Dagg" is Derifield is directly relevant, we also agree 

that it is straightforward and "patently within" Detective Perkins' area of expertise and is 

permissible under Castagnola. In this case, Detective Perkins testified that he knew 

Derifield from having previously investigated him and that those investigations occurred 

prior to the instant case. To that end, Detective Perkins testified that Derifield was 

nicknamed "Dagwood" and, again, confirmed that Derifield went by both "Dagg" and 

"Dagwood." This point was explicitly made by Detective Perkins when he testified "[w]hen 

I talk to people, they reference him as Dag[g] or Dagwood." Therefore, contrary to 

Derifield's claim, we agree with the trial court's finding that Detective Perkin's knowledge of 

Derifield's nickname as "Dagg" or "Dagwood" was a matter of routine interpretation and was 

not an improper inference. Derifield's claim otherwise lacks merit. 

{¶ 31} The final inference, Inference 6, was whether "Dagg" retained the weapon at 

his residence. The trial court found that this inference was relevant and complex and, 

therefore, went to the second inquiry by evaluating Detective Perkins' animus. In so doing, 

the trial court found that Detective Perkins did not act intentionally or with conscious 

indifference. The trial court then removed the inference, and the omitted facts were 

 

1. The apparent reference the victim made about the identity of an individual named "Gagwood" was not 

raised in the suppression hearing, any motion, or at trial. The parties proceeded, and Detective Perkins 

testimony reflects, as if "Gagwood," "Dagwood," and "Dagg" were one in the same. 
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submitted, and the warrant reevaluated. 

{¶ 32} In conducting that evaluation, the trial court placed emphasis on the Facebook 

messages between Webb and Miller discussing the sale of the AR-15 firearm to Dagwood. 

This includes, for instance, a message where Webb asked Miller "Are you to dagg," to which 

Miller responded by saying "I will be here in 30 mins or so y." Webb then asked if Miller 

"got it sold for sure." To this, Miller responded that he "got everything sold for sure." Based 

on that additional information, the trial court found that there was probable cause to believe 

that Derifield retained the firearm at his home. 

{¶ 33} Following review, we agree that Inference 6 is relevant and complex and 

therefore we must evaluate the second inquiry determining Detective Perkins' animus. We 

also agree that there is no evidence that Detective Perkins acted intentionally or with 

conscious indifference. Therefore, as correctly determined by the trial court, it is appropriate 

to remove that inference and submit the omitted facts. As correctly noted by the trial court, 

the Facebook messages between Webb and Miller indicate Miller was going to "Dagg," that 

he was going to be there in about 30 minutes, and that he got "everything sold for sure." 

The messages also indicated that the parties were aware that "[y]ou can't walk with this." 

Therefore, based on the totality of the circumstances, there was probable cause to believe 

that the AR-15 firearm had been sold and that it was at Derifield's residence. Accordingly, 

we find the trial court did not err in determining that sufficient probable cause existed to 

issue the warrant. Derifield's claim otherwise again lacks merit. 

2. Particularity 

{¶ 34} Derifield also argues the trial court erred by denying his motion to suppress 

because the warrant lacked sufficient particularity. Specifically, since Detective Perkins 

possessed a photograph of the missing AR-15 firearm, and because Detective Perkins 

knew the brand and serial number of the weapon, the search warrant should have identified 
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the weapon more specifically than "Guns and or weapons in tact [sic] or possibly 

disassembles into various pieces. Any other weapons parts associated with the case(s) 

being investigated." We again disagree. 

{¶ 35} "Courts addressing the particularity requirement of the Fourth Amendment are 

concerned with two issues. The first issue is whether the warrant provides sufficient 

information to 'guide and control' the judgment of the executing officers in what to seize. 

The second issue is whether the category as specified is too broad in that it includes items 

that should not be seized." Castagnola, 2015-Ohio-1565 at ¶ 79. However, a review of the 

record reveals that Derifield did not raise this issue in his motion to suppress or during the 

suppression hearing. The only time this issue was addressed was when the trial court 

conducted a good faith analysis of whether the items to be seized were described with 

enough particularity to support probable cause. Therefore, because Derifield did not 

challenge this issue below, he has waived that issue on appeal. J.A.C., 2018-Ohio-361 at 

¶ 23. Accordingly, having now addressed both of the issues raised in Derifield's first 

assignment of error, Derifield's first assignment of error lacks merit and is overruled. 

{¶ 36} Assignment of Error No. 2: 

{¶ 37} THE TRIAL COURT ABUSED ITS DISCRETION IN OVERULING MR. 

DERIFIELD'S MOTION FOR MISTRIAL. 

{¶ 38} In his second assignment of error, Derifield argues the trial court erred by 

denying his request for a mistrial after trial counsel became aware that statements Derifield 

made during the execution of the search warrant may have been made during a "custodial 

interrogation" and, therefore, could potentially have been subject to suppression. We 

disagree. 

{¶ 39} "A mistrial should not be ordered merely because of some error or irregularity 

at trial." State v. Pichardo-Reyes, 12th Dist. Butler No. CA2016-09-184, 2017-Ohio-8534, 
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¶ 45. Rather, "mistrials need be declared only when the ends of justice so require and a 

fair trial is no longer possible." State v. Thacker, 12th Dist. Warren No. CA2019-06-058, 

2020-Ohio-1318, ¶ 50. The decision to grant or deny a mistrial lies within the sound 

discretion of the trial court, and "[a]n appellate court will not disturb the exercise of this 

discretion absent a showing that the accused has suffered material prejudice." PichardoReyes at ¶ 45. 

{¶ 40} At trial, Detective Perkins testified that Derifield admitted to ownership of one 

bag of drugs located in the room, but denied knowing about the other quantities of drugs 

found in the room. Specifically, Detective Perkins testified, in pertinent part, the following: 

State: Okay. Detective Perkins, as part of your investigation,

did you engage in an interview with Mr. Derifield? 

Detective Perkins: Yes. 

State: And did you attempt to ask him about the drugs that were

located in his bedroom? 

Detective Perkins: I did. 

State: Can you tell us what he said? 

Detective Perkins: He said that he didn’t know anything about 

the drugs except that he claimed that one of the bags of crack 

was his. 

State: Okay did he say which bag? 

Detective Perkins: He did not indicate which bag. 

State: Did he say where he was in the room or how much he 

had? 

Detective Perkins: He did not. He just said one. 

State: He said one of the bags of crack was his? 

Detective Perkins: Correct. 

State: Did he specifically say crack cocaine or just crack? 
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Detective Perkins: Crack. 

State: Did he talk about the other substances? Did you ask 

about the other substances? Did he deny them? 

Detective Perkins: I attempted to ask him about the other 

narcotics and other various contraband in the room. He said he

didn’t know anything about the rest of it. 

{¶ 41} Following Detective Perkins' testimony, the state called Detective Cooper who 

testified about the execution of the search warrant at Derifield’s residence. According to 

Detective Cooper, Derifield and his girlfriend, Marissa, were inside the residence in the back 

bedroom. Immediately upon entering the bedroom, he requested that Derifield show his 

hands for officer safety and had him place his hands on the mattress and was then 

handcuffed and arrested and taken from the bedroom. Derifield was then placed in a cruiser 

so the officers could complete the search. 

{¶ 42} At the close of the state's case, Derifield's counsel moved for a mistrial on the 

grounds that she was "unaware that [Derifield] was in custody at the time that admission of 

ownership was made." Derifield now argues that the trial court should have declared a 

mistrial because he was denied the opportunity to suppress his admission. Derifield 

maintains that the discovery provided by the state only includes a statement from Detective 

Perkins that he "interviewed all parties at the scene along with Derifield." Derifield takes 

issue with that statement and alleges that Detective Perkins' written statement amounts to 

a violation of Crim.R. 16 because it intentionally leads the reader to believe that he had a 

voluntary interview with the parties. 

{¶ 43} However, after review, we find the trial court did not abuse its discretion in 

denying Derifield's motion for a mistrial. As an initial matter, we note that the state complied 

with its obligations under Crim.R.16(B)(1) in providing "[a]ny written or recorded statement 

by the defendant * * *, including police summaries of such statements" made by the 
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defendant. Though Derifield characterizes Detective Perkins' statement as misleading, 

there is no requirement, and Derifield cites no authority, that the state is required to detail 

the circumstances in which the statement was made. Rather, the record reflects that 

Derifield and his counsel should have been aware of the statement and the surrounding 

situation could have been discussed between attorney and client. In this regard, the 

defense was aware that Derifield had made incriminating statements and thus could have 

further inquired of the circumstances surrounding the interview in question. 

{¶ 44} Furthermore, there is nothing in the record that would indicate that a motion 

to suppress would have been successful. That is to say, there is no evidence that Derifield 

was not informed of his Miranda rights. The only discussion of that issue came upon 

Derifield's request for a mistrial when the state briefly mentioned that Detective Perkins had 

provided Derifield with his Miranda rights. To that end, the record does not reflect that the 

state "willfully failed" to turn over any discovery item in violation of Crim.R. 16 or that the 

supposedly undisclosed item would have benefitted Derifield in his preparation. Finally, we 

note that Derifield's proximity to the drugs, including the fact that his wallet was kept in the 

same location as a portion of the drugs, minimizes any prejudicial effect of Derifield's 

statement admitting ownership of "one of the bags of crack." Therefore, for the reasons 

outlined above, Derifield's second assignment of error lacks merit and is overruled. 

{¶ 45} Assignment of Error No. 4: 

{¶ 46} STEVEN DERIFIELD WAS DENIED THE EFFECTIVE ASSISTANCE OF 

COUNSEL GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS. 

{¶ 47} In his fourth assignment of error, Derifield claims he received ineffective 

assistance of counsel because his trial counsel failed to file a motion to suppress the 

statements made to Detective Perkins admitting ownership of one of the bags of drugs. 

Derifield also claims he received ineffective assistance of counsel because his trial counsel 
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failed to file an affidavit of indigency to waive mandatory fines under R.C. 2929.18(B)(1). 

{¶ 48} To prevail on an ineffective assistance of counsel claim, an appellant must 

establish: (1) that his trial counsel's performance was deficient; and (2) that such deficiency 

prejudiced the defense to the point of depriving the appellant of a fair trial. Strickland v. 

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984); State v. Vore, 12th Dist. 

Warren Nos. CA2012-06-049 and CA2012-10-106, 2013-Ohio-1490, ¶ 14. Trial counsel's 

performance will not be deemed deficient unless it "fell below an objective standard of 

reasonableness." Strickland at 688. To show prejudice, the appellant must prove there 

exists "a reasonable probability that, but for counsel's unprofessional errors, the result of 

the proceeding would have been different." Id. at 694. An appellant's failure to satisfy one 

prong of the Strickland test negates a court's need to consider the other. State v. Vunda, 

12th Dist. Butler Nos. CA2012-07-130 and CA2013-07-113, 2014-Ohio-3449, ¶ 54, citing 

State v. Madrigal, 87 Ohio St.3d 378, 389 (2000). 

{¶ 49} Derifield argues that his trial counsel should have moved to suppress his 

statements made to Detective Perkins wherein he admitted ownership to one of the bags 

of drugs found in the room. As noted above, after the state rested, Derifield's trial counsel 

moved for a mistrial on the basis that she was not aware that Derifield was potentially in a 

custodial setting during the time he made those statements. However, we note that there 

is no evidence that trial counsel's performance was deficient on the matter. First, the record 

does not reflect that a hypothetical motion to suppress would have been successful as there 

was no evidence to suggest that Derifield was not properly advised of his Miranda rights. 

The record, in fact, indicates that Derifield had been provided with the appropriate warnings. 

Secondly, given Derifield's proximity to the drugs, and the fact that his personal effects were 

scattered all across the room, Derifield was not subject to any resulting prejudice. Derifield's 

claim otherwise lacks merit. 
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{¶ 50} Derifield also argues that his trial counsel was ineffective because counsel 

failed to file an affidavit of indigency and for not requesting that a mandatory fine be waived. 

In this regard, we agree with Derifield. 

{¶ 51} Pursuant to R.C. 2929.18(B)(1), the trial court is obligated to impose 

mandatory fines when the offender commits certain drug-related felonies. State v. Johnson, 

12th Dist. Butler No. CA2011-11-212, 2014-Ohio-3776, ¶ 10. R.C. 2929.19(B)(5) provides 

that before imposing a financial sanction, including a mandatory fine under R.C. 

2929.18(B)(1), "the court shall consider the offender's present and future ability to pay the 

amount of the sanction or fine." There are no express factors that must be considered or 

specific findings that must be made regarding the offender's ability to pay. State v. SaraccoRios, 12th Dist. Madison Nos. CA2016-02-011 and CA2016-03-014, 2016-Ohio-7192, ¶ 10. 

Compliance with R.C. 2929.19(B)(5) can be shown through the trial court's use of a PSI 

report, which often provides financial and personal information of the offender, in order to 

aid the trial court in making its determination. Johnson at ¶ 12; State v. Poff, 5th Dist. 

Morgan No. 20AP0005, 2021-Ohio-384, ¶ 43. 

{¶ 52} R.C. 2929.18(B)(1) establishes a procedure for avoiding the imposition of 

mandatory fines applicable to certain felony drug offenses. That section provides: 

If an offender alleges in an affidavit filed with the court prior to 

sentencing that the offender is indigent and unable to pay the 

mandatory fine and if the court determines the offender is an 

indigent person and is unable to pay the mandatory fine 

described in this division, the court shall not impose the 

mandatory fine upon the offender. 

{¶ 53} The failure to file an affidavit of indigency for purposes of waiving a mandatory 

fine constitutes ineffective assistance of counsel where the record shows a "reasonable 

probability" that the trial court would have found the defendant indigent and unable to pay 

the fine had the affidavit been filed. Johnson at ¶ 11. However, even then, the filing of an 
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affidavit of indigency by a defendant does not automatically entitle the defendant to a waiver 

of the mandatory fine. State v. Bolden, 12th Dist. Preble No. CA2003-03-007, 2004-Ohio184, ¶ 35. The defendant has the burden to affirmatively demonstrate that he or she is 

indigent and is unable to pay the mandatory fine. State v. Manning, 12th Dist. Butler No. 

CA2017-08-113, 2018-Ohio-3334, ¶ 21. 

{¶ 54} In this case, Derifield's counsel did not file an affidavit of indigency; however, 

the state requested that the trial court make the necessary findings at the sentencing 

hearing that Derifield had the ability to pay the mandatory fines. In so doing, the trial court 

reviewed a presentence-investigative report (PSI) from two years earlier in 2018. The trial 

court noted that the PSI revealed that Derifield had an extensive criminal history leading to 

these most recent charges. The trial court also noted that Derifield was self-employed, 

doing tinting and detailing with an average income of $400 per week. The trial court further 

noted that Derifield had been previously fired from jobs due to his poor attendance and drug 

use, and that Derifield reported his current financial condition as poor due to his current 

incarceration. Nevertheless, the trial court found that Derifield does have future earning 

capacity. Derifield did not object to the findings made at the time of his sentencing. 

{¶ 55} On appeal, Derifield argues that his counsel was ineffective because, had the 

affidavit of indigency been filed, the court would have possessed more recent information, 

including his more recent employment history, whether his weekly income had decreased 

in the preceding two years, a recent medical diagnosis that could impact Derifield's ability 

to work, and his household size and expenses. 

{¶ 56} Based on the record and counsel's failure to file an affidavit alleging indigency, 

we find this is one of the limited circumstances where there is a reasonable probability that 

the trial court could have found Derifield to be indigent and unable to pay the mandatory 

drug fine of $23,000. As previously noted, Derifield was 41 years old at the time of 
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sentencing and was sentenced to a significant cumulative prison term of between 16 and 

21 years. Upon release, Derifield will be approximately 57 to 62 years old with an extensive 

criminal record. Though Derifield had a history of employment that included his past 

position as self-employed earning approximately $400 per week, Derifield also has a history 

of being unable to maintain employment. Based upon these facts and circumstances, we 

conclude that a reasonable probability exists that Derifield could have proven himself 

indigent had his counsel submitted an affidavit of indigency. 

{¶ 57} In light of the foregoing, to the limited extent that Derifield's counsel failed to 

file an affidavit of indigency when he faced imposition of mandatory fines, we conclude that 

Derifield was denied the effective assistance of counsel. Therefore, Derifield's fourth 

assignment of error is sustained in part, and denied in part. This matter is remanded to the 

trial court to allow Derifield to file an affidavit of indigency as to the mandatory fines. The 

trial court is then to conduct a hearing to determine Derifield's indigency status and to 

consider his ability to pay in accordance with R.C. 2929.18(B)(1). 

{¶ 58} Assignment of Error No. 3: 

{¶ 59} THE TRIAL COURT ERRED WHEN IT IMPOSED MANDATORY FINES 

WITHOUT HOLDING A HEARING TO CONSIDER STEVEN DERIFIELD'S PRESENT 

AND FUTURE ABILITY TO PAY. 

{¶ 60} In his third assignment of error, Derifield argues the trial court erred by 

imposing $23,000 in mandatory fines. However, based on our decision above in regard to 

Derifield's fourth assignment of error, we now find his third assignment of error is moot. 

That is to say, based upon our resolution of Derifield's fourth assignment of error, we found 

there is a reasonable probability that, but for counsel's error in failing to file an affidavit of 

indigency, the trial court could have found the defendant indigent and unable to pay the fine 

had the affidavit been filed. Accordingly, Derifield's fourth assignment of error is moot. 
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{¶ 61} Judgment affirmed in part, reversed in part, and remanded for purposes of 

allowing Derifield to file an affidavit pursuant to R.C. 2929.18(B)(1) for the trial court's 

consideration in determining whether to impose a mandatory fine pursuant to R.C. 2929.18. 

 

 M. POWELL, P.J., and S. POWELL, J., concur.