[Cite as State v. Carter, 2018-Ohio-4503.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

PICKAWAY COUNTY 

STATE OF OHIO, : 

 : Case No. 18CA1 

Plaintiff-Appellee, : 

 : 

vs. : DECISION AND JUDGMENT 

: ENTRY 

ANTHONY D. CARTER, : 

 : 

 Defendant-Appellant. : Released: 11/02/18 

_____________________________________________________________ 

APPEARANCES: 

Jerry L. McHenry, Pickerington, Ohio, for Appellant. 

Judy C. Wolford, Pickaway County Prosecutor, and Jayme Hartley Fountain, 

Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee. 

_____________________________________________________________ 

McFarland, J. 

{¶1} This is an appeal from a Pickaway County Court of Common 

Pleas judgment entry convicting Appellant, Anthony Carter, of ten felony 

drug offenses, which included one count of engaging in a pattern of corrupt 

activity, seven counts of trafficking in cocaine, two counts of trafficking in 

heroin, and sentencing him to an aggregate prison term of thirty-one years. 

On appeal, Appellant contends that 1) trial counsel rendered ineffective 

assistance by failing to object to the testimony of Anthony Schwalbauch 

when he gave opinion testimony as to weights and measures of drugs and 
Pickaway App. No. 18CA1 2

amounts, as well as opinions as to what the wiretap recorded speakers meant 

by their conversations, and that he was denied his rights to a fair trial, 

confrontation of witnesses, representation of counsel and due process as a 

result; and 2) the trial court erred by failing to provide a meaningful 

sentencing hearing for Appellant, as required by Ohio's sentencing statutes, 

and that trial counsel further rendered ineffective assistance of counsel by 

failing to participate in the sentencing hearing. 

{¶2} Because we find the trial court properly admitted the lay witness 

testimony of Anthony Schwalbauch under Evid.R. 701, we cannot conclude 

Appellant's trial counsel's failure to object constituted deficient performance 

or that Appellant was prejudiced by the failure to object. Consequently, 

Appellant's first assignment of error is overruled. With respect to 

Appellant's second assignment of error, because we conclude the 

consecutive sentences imposed by the trial court were not contrary to law, 

we reject Appellant's assertion that he was not provided with a meaningful 

sentencing hearing, as well as his argument that his trial counsel's failure to 

participate in the sentencing hearing constituted ineffective assistance of 

counsel. Therefore, Appellant's second assignment of error is also 

overruled. Accordingly, having overruled both of Appellant's assignments 

of error, the judgment of the trial court is affirmed. 
Pickaway App. No. 18CA1 3

FACTS 

{¶3} Appellant, Anthony Carter, was indicted on multiple felony 

counts as part of a multi-count indictment naming eleven defendants. While 

the indictment included seventy-seven counts, only counts one through six, 

eleven through thirteen, twenty, twenty-two, twenty-three, thirty-five, thirtysix, forty-three, forty-four, forty-eight, forty-nine, sixty-four and sixty-five 

pertained to Appellant. Prior to trial, the State moved to dismiss, and the 

trial court dismissed counts two through six, thirteen, twenty-two, twentythree, forty-three and forty-four. Appellant was subsequently found guilty 

by a jury of the remaining counts, identified as counts one, eleven, twelve, 

twenty, thirty-five, thirty-six, forty-eight, forty-nine, sixty-four and sixtyfive. 

{¶4} The counts in which Appellant was convicted included one 

count of engaging in a pattern of corrupt activity, seven counts of 

trafficking in cocaine, and two counts of trafficking in heroin, all of which 

ranged from first-degree felonies to third-degree felonies. The trial court 

imposed an aggregate prison term of thirty-one years, ordering the prison 

terms for counts one, eleven, twelve, twenty, thirty-five, thirty-six, fortyeight and forty-nine to be served consecutively for a total of thirty years. 

The trial court determined that counts sixty-four and sixty-five merged for 
Pickaway App. No. 18CA1 4

purposes of sentencing and imposed a three-year prison term to be served 

concurrently with the other prison terms. The trial court further imposed an 

additional one-year prison term, to be served consecutively to the other 

prison terms, due to the fact that Appellant violated his post-release control 

in committing the offenses at issue. The trial court also imposed a five-year 

mandatory period of post-release control. 

{¶5} Appellant’s indictment was the result of an investigation into 

what both parties refer to as either the “Crosby Drug Trafficking Operation” 

or the “Leslie Alan Crosby drug trafficking operation” located in Circleville, 

Ohio in 2016. Although Appellant was not the original focus of the 

investigation, law enforcement became aware of his affiliation and 

involvement with the drug trafficking operation through the course of their 

investigation, when they recognized Appellant was a supplier to the 

operation. The investigation involved law enforcement’s receipt of an 

“intercept warrant” which permitted a wiretap of Crosby’s phone, and which 

ultimately provided law enforcement with recordings of conversations 

between Appellant, Crosby and others as they set up drug transactions. The 

investigation further included observation of drug transactions by officers 

while conducting covert surveillance. No drugs were recovered as part of 

the investigation. 
Pickaway App. No. 18CA1 5

{¶6} At trial, the State’s witnesses included two law enforcement 

officers involved in the investigation, Special Agent Shawn Rowley from the 

Ohio Bureau of Criminal Identification and Investigation and Detective John 

Strawser from the Pickaway County Sheriff’s Office. The State also 

introduced the testimony of Anthony Schwalbauch, Crosby’s son-in-law and 

Appellant’s co-defendant. Both law enforcement officers provided 

testimony regarding what they had heard on the recorded telephone 

conversations, as well as what they witnessed while performing surveillance. 

Schwalbauch, who had already entered into a plea agreement in exchange 

for his cooperation in testifying against Appellant, identified the voices of 

the speakers on the telephone recordings and explained for the jury what the 

speakers meant when they used certain code words. He also testified 

regarding the amount of drugs being referenced during the recorded 

conversations and the significance of the prices that were being discussed in 

regards to the identification of the drugs. The recordings from the wiretap 

were played for the jury at trial. The jury was also shown photographs and 

surveillance videos from the investigation. 

{¶7} As set forth above, Appellant was ultimately convicted on all 

ten counts that were presented to the jury and was sentenced to an aggregate 

prison term of thirty-one years. It is from the trial court’s entry of sentence 
Pickaway App. No. 18CA1 6

that Appellant now files his timely appeal, setting forth two assignments of 

error for our review. 

ASSIGNMENTS OF ERROR 

"I. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF 

 COUNSEL TO APPELLANT, BY FAILING TO OBJECT TO THE 

 TESTIMONY OF ANTHONY SCHWALLBACH [SIC] WHEN HE 

GAVE OPINION TESTIMONY AS TO WEIGHTS AND 

MEASURES OF DRUGS AND AMOUNTS, AS WELL AS 

OPINIONS AS TO WHAT THE WIRETAP RECORDED 

SPEAKERS MEANT BY THEIR CONVERSATIONS. THIS 

CONSTITUTED A DENIAL OF APPELLANT'S RIGHTS TO A 

FAIR TRIAL, CONFRONTATION OF WITNESSES, 

REPRESENTATION OF COUNSEL AND DUE PROCESS OF 

LAW AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND 

FOURTEENTH AMENDMENTS OF THE UNITED STATES 

CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO 

CONSTITUTION. 

II. THE TRIAL COURT ERRED BY FAILING TO PROVIDE A 

 MEANINGFUL SENTENCING HEARING FOR APPELLANT, AS 

 REQUIRED BY OHIO'S SENTENCING STATUTE. TRIAL 

 COUNSEL FURTHER RENDERED INEFFECTIVE ASSISTANCE 

 OF COUNSEL BY FAILING TO PARTICIPATE IN THIS 

 SENTENCING HEARING." 

ASSIGNMENT OF ERROR I 

{¶8} In his first assignment of error, Appellant contends he was 

denied the effective assistance of counsel, which resulted in a denial of his 

right to a fair trial, confrontation of witnesses, and due process of law. 

Appellant argues that his counsel's failure to object to his co-defendant's 

opinion testimony regarding weights, measures and amounts of drugs as 
Pickaway App. No. 18CA1 7

referenced on various wiretap recordings, and interpretation of what the 

speakers meant when they used different code, or slang, words on the 

recordings, constituted deficient performance. Appellant questions whether 

his co-defendant should have been qualified as an expert witness, based 

upon his own drug use, before being permitted to testify as to these matters. 

{¶9} The State responds by noting that many courts in Ohio have 

allowed lay witnesses to testify, under Evid.R. 701, about the identity of a 

drug when a proper foundation has been laid regarding the lay witness's 

personal knowledge and experience. The State argues Appellant's codefendant, Anthony Schwalbauch, clearly possessed sufficient personal 

knowledge and understanding of the drug trade to testify about common 

code words and measures as they relate to illicit substances. The State 

further argues that these particular matters fall outside the specialized, 

technical expertise contemplated under Evid.R. 702 for expert testimony, 

that Schwalbauch did not need to be qualified as an expert, and that he did 

not testify as an expert, but rather as a lay witness, whose testimony was 

properly admitted under the trial court's broad discretion and in full 

compliance with Evid.R. 701. 

{¶10} The Sixth Amendment to the United States Constitution and 

Article I, Section 10 of the Ohio Constitution provide that defendants in all 
Pickaway App. No. 18CA1 8

criminal proceedings shall have the assistance of counsel for their defense. 

The United States Supreme Court has generally interpreted this provision to 

mean a criminal defendant is entitled to the “reasonably effective assistance” 

of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 

L.Ed.2d 674 (1984); accord Hinton v. Alabama, 571U.S. 263, 134 S.Ct. 

1081, 1087–1088 (2014) (explaining that the Sixth Amendment right to 

counsel means “that defendants are entitled to be represented by an attorney 

who meets at least a minimal standard of competence”). 

{¶11} To establish constitutionally ineffective assistance of counsel, a 

defendant must show (1) that his counsel's performance was deficient and 

(2) that the deficient performance prejudiced the defense and deprived the 

defendant of a fair trial. Strickland at 687; State v. Obermiller, 147 Ohio 

St.3d 175, 2016–Ohio–1594, 63 N.E.3d 93, ¶ 83; State v. Powell, 132 Ohio 

St.3d 233, 2012–Ohio–2577, 971 N.E.2d 865, ¶ 85. “Failure to establish 

either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 

06CA3116, 2008–Ohio–968, ¶ 14. Therefore, if one element is dispositive, 

a court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 

721 N.E .2d 52 (2000) (stating that a defendant's failure to satisfy one of the 

elements “negates a court's need to consider the other”). 
Pickaway App. No. 18CA1 9

{¶12} The deficient performance part of an ineffectiveness claim “is 

necessarily linked to the practice and expectations of the legal community: 

‘The proper measure of attorney performance remains simply 

reasonableness under prevailing professional norms.’ ” Padilla v. Kentucky, 

559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); quoting 

Strickland at 688; accord Hinton at 1088. “Prevailing professional norms 

dictate that with regard to decisions pertaining to legal proceedings, ‘a 

lawyer must have “full authority to manage the conduct of the trial.” ’ ” 

Obermiller at ¶ 85; quoting State v. Pasqualone, 121 Ohio St.3d 186, 2009–

Ohio–315, 903 N.E.2d 270, ¶ 24; quoting Taylor v. Illinois, 484 U.S. 400, 

418, 108 S.Ct. 646 (1988). Furthermore, “ ‘[i]n any case presenting an 

ineffectiveness claim, “the performance inquiry must be whether counsel's 

assistance was reasonable considering all the circumstances.” ’ ” Hinton at 

1088; quoting Strickland at 688. Accordingly, “[i]n order to show deficient 

performance, the defendant must prove that counsel's performance fell 

below an objective level of reasonable representation.” State v. Conway, 109 

Ohio St.3d 412, 2006–Ohio–2815, 848 N.E.2d 810, ¶ 95 (citations omitted); 

accord Hinton at 1088; citing Padilla at 366; State v. Wesson, 137 Ohio 

St.3d 309, 2013–Ohio–4575, 999 N.E.2d 557, ¶ 81. 
Pickaway App. No. 18CA1 10

{¶13} Moreover, when considering whether trial counsel's 

representation amounts to deficient performance, “a court must indulge a 

strong presumption that counsel's conduct falls within the wide range of 

reasonable professional assistance.” Strickland at 689. Thus, “the defendant 

must overcome the presumption that, under the circumstances, the 

challenged action might be considered sound trial strategy.” Id. 

Additionally, “[a] properly licensed attorney is presumed to execute his 

duties in an ethical and competent manner.” State v. Taylor, 4th Dist. 

Washington No. 07CA11, 2008–Ohio–482, ¶ 10; citing State v. Smith, 17 

Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, a defendant bears 

the burden to show ineffectiveness by demonstrating that counsel's errors 

were “so serious” that counsel failed to function “as the ‘counsel’ guaranteed 

* * * by the Sixth Amendment.” Strickland at 687; e.g., Obermiller at ¶ 84; 

State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 

62; State v. Hamblin, 37 Ohio St.3d 153, 156, 524 N.E.2d 476 (1988). 

{¶14} To establish prejudice, a defendant must demonstrate that a 

reasonable probability exists that “ ‘but for counsel's errors, the result of the 

proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine the outcome.’ ” Hinton at 1089; quoting 

Strickland at 694; e.g., State v. Short, 129 Ohio St.3d 360, 2011–Ohio–3641, 
Pickaway App. No. 18CA1 11

952 N.E.2d 1121, ¶ 113; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 

373, paragraph three of the syllabus (1989). “ ‘[T]he question is whether 

there is a reasonable probability that, absent the errors, the factfinder would 

have had a reasonable doubt respecting guilt.’ ” Hinton at 1089; quoting 

Strickland at 695. Furthermore, courts may not simply assume the existence 

of prejudice, but must require the defendant to affirmatively establish 

prejudice. State v. Clark, 4th Dist. Pike No. 02CA684, 2003–Ohio–1707, 

¶ 22; State v. Tucker, 4th Dist. Ross No. 01CA2592, 2002-Ohio-1597. As 

we have repeatedly recognized, speculation is insufficient to demonstrate the 

prejudice component of an ineffective assistance of counsel claim. E.g.,

State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014–Ohio–3123, ¶ 22; 

State v. Simmons, 4th Dist. Highland No. 13CA4, 2013–Ohio–2890, ¶ 25; 

State v. Halley, 4th Dist. Gallia No. 10CA13, 2012–Ohio–1625, ¶ 25; State 

v. Leonard, 4th Dist. Athens No. 08CA24, 2009–Ohio–6191, ¶ 68; accord 

State v. Powell, 132 Ohio St.3d 233, 2012–Ohio–2577, 971 N.E.2d 865, ¶ 86 

(stating that an argument that is purely speculative cannot serve as the basis 

for an ineffectiveness claim). 

{¶15} Initially, we observe that “ ‘[t]he failure to object to error, 

alone, is not enough to sustain a claim of ineffective assistance of counsel.’ ” 

State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d 136 (1999); quoting 
Pickaway App. No. 18CA1 12

State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988). A 

defendant must also show that he was materially prejudiced by the failure to 

object. Holloway at 244. Accord State v. Hale, 119 Ohio St.3d 118, 2008–

Ohio–3426, 892 N.E.2d 864, ¶ 233. Additionally, tactical decisions, such as 

whether and when to object, ordinarily do not give rise to a claim for 

ineffective assistance. State v. Johnson, 112 Ohio St.3d 210, 2006–Ohio–

6404, 858 N.E.2d 1144, ¶ 139–140. 

{¶16} As the court explained in Johnson at ¶ 139–140: 

“[F]ailure to object to error, alone, is not enough to sustain a 

claim of ineffective assistance of counsel. To prevail on such a 

claim, a defendant must first show that there was a substantial 

violation of any of defense counsel's essential duties to his 

client and, second, that he was materially prejudiced by 

counsel's ineffectiveness. State v. Holloway (1988), 38 Ohio 

St.3d 239, 244, 527 N.E.2d 831. * * * 

[E]xperienced trial counsel learn that objections to each 

potentially objectionable event could actually act to their party's 

detriment. * * * In light of this, any single failure to object 

usually cannot be said to have been error unless the evidence 

sought is so prejudicial * * * that failure to object essentially 
Pickaway App. No. 18CA1 13

defaults the case to the state. Otherwise, defense counsel must 

so consistently fail to use objections, despite numerous and 

clear reasons for doing so, that counsel's failure cannot 

reasonably have been said to have been part of a trial strategy or 

tactical choice. Lundgren v. Mitchell (C.A.6, 2006), 440 F.3d 

754, 774. Accord State v. Campbell, 69 Ohio St.3d 38, 52–53, 

1994–Ohio–492, 630 N .E.2d 339.” 

{¶17} Here, Appellant contends his counsel was ineffective for 

failing to object to the following trial testimony from his co-defendant, 

Anthony Schwalbauch: 

1. Testimony that "brown girl" meant heroin; 

2. Testimony that "...one and a half, maybe two" actually meant two ounces, 

 not grams, and was in reference to crack cocaine; 

3. Testimony that a "mule" was a female who was used to transport drugs 

 "shoved up inside her, and concealed so it would not be detected[;]" 

4. Testimony which provided an estimate of how much an ounce and a half 

 of crack cocaine would cost Alan Crosby, either $1,800.00 or $1,900.00; 

5. Testimony regarding a prior deal for two ounces for $2,400.00 and that it 

 took a day and a half to get rid of an ounce of crack; 

6. Testimony which interpreted a telephone conversation between Crosby 

 and Tommy Barker in which Barker asks if Crosby has any "boy" and 

 explained that "boy" really means heroin; 

7. Testimony which interpreted a telephone conversation between Crosby 

 and another person in which the caller referenced a "...car that was half a 
Pickaway App. No. 18CA1 14

 gram" and explained that it denoted heroin; and 

8. Testimony on cross-examination and re-cross that "girl" or "hard" meant 

 crack cocaine. 

{¶18} Appellant also argues Schwalbauch was improperly permitted 

to testify about what other people, such as Crosby's wife Rhonda and 

Crosby's family in general, knew. Appellant cites to a call between Crosby 

and his wife, noted as number 8619 in the trial transcript, in which Crosby's 

wife is complaining about Crosby sitting in a car and waiting for over three 

hours to purchase crack cocaine. When asked whether Crosby's wife knew 

that Crosby was there to purchase crack cocaine, Schwalbauch testified she 

did, and that the whole family knew. 

{¶19} Finally, Appellant argues Schwalbauch should not have been 

permitted to testify regarding what the phrase "talking a lot" meant when it 

was used during a recorded telephone conversation between Appellant and 

Crosby. The trial transcript indicates the following recorded conversation 

between Alan Crosby and Appellant was played for the jury: 

"Anthony Carter: Hey, that's cool! 

Leslie Crosby: Cause that's the price you asked, right? A half, 

point six. You know, that's $2,600 for two, $1,300 and $1,325 

is $2,650, I'm giving you $1,950 so that's one and a half, right? 

Anthony Carter: Yeah! 

Leslie Crosby: Is that right? 
Pickaway App. No. 18CA1 15

Anthony Carter: Sounds like I aunt' even doing the math. 

Leslie Crosby: Well, do it Bubba! I'm not cheating you. I'm 

giving you $1,325 an ounce, that's one and a half at $1,950. 

Anthony Carter: Yeah, you're talking a lot. You hear me. 

Leslie Crosby: Okay. Okay. You're right. I'm sorry. I'll see 

you when you get there bro! Bye!" 

Anthony Schwalbauch then testified as follows in order to interpret the call: 

"Q: Okay. Then they said something, Carter says you're talking 

a lot, you hear me, and Leslie apologizes. Do you remember 

that? 

A: Yes. 

Q: Why would he have said something like that? 

A: Sometimes because you think you're being recorded, to use 

code words instead. 

Q: Was that a concern that Alan had then? 

A: Always. 

Q: Was that just a general concern in the drug world? 

A: Always. 

Q: Did you do that on your personal phone? 

A: Yeah. 

Q: Did you ever talk in ounces and grams about heroin or crack 

cocaine? 

A: No. 
Pickaway App. No. 18CA1 16

Q: You always use what? 

A: Code words." 

{¶20} Thus, in summary, Appellant argues his trial counsel should 

have objected to various statements made by his co-defendant which 

interpreted code words or slang words used in the drug trade, and which 

explained the significance of references made by Appellant and Crosby to 

the price being paid for requested amounts, to the extent the testimony 

served to identify the drug at issue and the weight or amount of the drug, 

based upon the language used in the recorded telephone conversations. 

Appellant also argues Schwalbauch should not have been permitted to testify 

regarding what Crosby's wife and family "knew" regarding the activities of 

Crosby or the drug operation in general. Appellant contends his codefendant should have been qualified as an expert pursuant to Evid.R. 702 

before being permitted to testify on these matters and that his counsel's 

failure to object to the testimony constituted deficient performance. 

Appellant suggests the failure to object to Schwalbauch's testimony was 

especially prejudicial, in light of the fact that no drugs were recovered from 

any of the transactions. 

{¶21} Evid.R. 701 governs opinion testimony by lay witnesses and 

provides as follows: 
Pickaway App. No. 18CA1 17

If the witness is not testifying as an expert, the witness' 

testimony in the form of opinions or inferences is limited to 

those opinions or inferences which are (1) rationally based on 

the perception of the witness and (2) helpful to a clear 

understanding of the witness' testimony or the determination of 

a fact in issue. 

Conversely, Evid.R. 702 governs testimony by experts and provides as 

follows: 

"A witness may testify as an expert if all of the following apply: 

(A) The witness' testimony either relates to matters beyond the 

knowledge or experience possessed by lay persons or dispels a 

misconception common among lay persons; 

(B) The witness is qualified as an expert by specialized 

knowledge, skill, experience, training, or education regarding 

the subject matter of the testimony; 

(C) The witness' testimony is based on reliable scientific, 

technical, or other specialized information. To the extent that 

the testimony reports the result of a procedure, test, or 

experiment, the testimony is reliable only if all of the following 

apply: 
Pickaway App. No. 18CA1 18

(1) The theory upon which the procedure, test, or experiment is 

based is objectively verifiable or is validly derived from widely 

accepted knowledge, facts, or principles; 

(2) The design of the procedure, test, or experiment reliably 

implements the theory; 

(3) The particular procedure, test, or experiment was conducted 

in a way that will yield an accurate result." 

{¶22} Contrary to Appellant's argument, and as correctly noted by the 

State, since the adoption of the Rules of Evidence, both at the state and 

federal levels, many courts have used an Evid.R. 701 analysis and have 

allowed lay witnesses to testify about the identity of a drug. State v. 

Johnson, 4th Dist. Gallia No. 13CA16, 2014-Ohio-4032, ¶ 38; citing State v. 

McKee, 91 Ohio St.3d 292, 2001–Ohio–41, 744 N.E.2d 737. As this Court 

noted in Johnson: 

“[C]ourts have permitted lay witnesses to express their opinions 

in areas in which it would ordinarily be expected that an expert 

must be qualified under Evid.R. 702.... Although these cases are 

of a technical nature in that they allow lay opinion testimony on 

a subject outside the realm of common knowledge, they will 

fall within the ambit of the rules requirement that a lay witness's 
Pickaway App. No. 18CA1 19

opinion be rationally based on firsthand observations and 

helpful in determining a fact in issue. These cases are not based 

on specialized knowledge within the scope of Evid. R. 702, but 

rather are based upon a layperson's personal knowledge and 

experience.” Johnson at ¶ 38. 

The Supreme Court of Ohio held, in McKee, that the “experience and 

knowledge of a drug user lay witness can establish his or her competence to 

express an opinion on the identity of a controlled substance if a foundation 

for this testimony is first established.” McKee at 297; see also State v. 

Johnson at ¶ 39 (allowing lay testimony of the defendant as opinion 

testimony to identify a hydrocodone pill based upon the fact that the 

defendant had had a prior prescription for hydrocodone and recognized the 

pill from her previous experience.); State v. Jewett, 4th Dist. Scioto No. 

15CA3714, 2017-Ohio-2891, ¶ 34. 

{¶23} Further, although lay witness testimony regarding the identity 

of a drug was permitted based upon the witnesses' visual identification of the 

drug in Johnson, lay witness testimony has also been permitted in order to 

interpret code, or slang, terms used in the drug trade, which serve to provide 

identification of drugs by name, amount and price, as heard on recorded 

telephone conversations. See State v. Davis, 2017-Ohio-495, 85 N.E.3d 136, 
Pickaway App. No. 18CA1 20

¶ 30-31 (12th Dist.) (lay witness testified that slang or jargon was usually 

used to set up drug deals and that saying "I need a three or a four" means 

$30 or $40 in reference to crack cocaine, and that one would not actually 

refer to crack cocaine in case law enforcement had the phone tapped.) In 

Davis, a proper foundation was laid through testimony that the lay witness at 

issue had been purchasing crack cocaine, directly or indirectly, from Davis 

for approximately eight years and was a daily user of crack cocaine. Id. 

Additionally, the Davis court permitted the State to present evidence through 

a lay witness that the phrase "checking on ole girl" reflected a slang term for 

cocaine. Id. at ¶ 39 (also permitting lay witness testimony that recorded 

conversations indicating Davis stated "one of 'em" in response to being 

quoted a price of "12, 5" referred to the fact that $1,250 was the standard 

price for the purchase of one ounce of cocaine, which amounts to 28 grams 

of cocaine.). Moreover, much like the case presently before us, the State did 

not introduce the drugs into evidence in Davis, but rather proved its case 

through circumstantial evidence in the form of voluminous records of calls 

between Davis and his associates. Id. at ¶ 35. 

{¶24} Further, and importantly, this Court has previously noted that: 

"* * * in offenses where the state fails to recover and weigh the 

drugs, the offender may be convicted of the offense and the 
Pickaway App. No. 18CA1 21

penalty enhancement associated with the weight of the drug 

involved based on the testimony of lay witnesses, even in the 

absence of expert testimony, as long as a proper foundation is 

made." Jewett, supra, at ¶ 35; citing Garr v. Warden, Madison 

Corr. Inst., 126 Ohio St.3d 334, 2010-Ohio-2449, 933 N.E.2d 

1063, ¶ 28 (conviction for trafficking in cocaine with majordrug-offender specification can be supported by lay testimony 

where no drug is recovered and no testing is performed). 

Similarly, in State v. Rardon, 2018-Ohio-1935, -- N.E.3d -- (5th Dist.), the 

trial court permitted lay witness testimony from the defendant's business 

associate, based upon his experience using steroids in the past. Id. at ¶ 5. 

The witness provided testimony that the term "gear" was "just a short-term 

for steroids where if you're talking in public, you don't want people to, . . . 

understand what you're talking about with steroids, so you say gear." Id. at 

¶ 58. This testimony was important as the term gear was used in text 

messages taken from the defendant's phone. Id. at ¶ 58. 

{¶25} The record indicates that Anthony Schwalbauch was 

Appellant's co-defendant and the son-in-law of Leslie Alan Crosby, the 

apparent ring-leader of the drug operation. The investigation of Crosby led 

authorities to Appellant as a suspected supplier to Crosby. Schwalbauch 
Pickaway App. No. 18CA1 22

served as a runner and "drug tester" of the operation. He tested the drugs 

supplied to the operation by using the substance being purchased to be sure 

it was of good quality, and was what it purported to be. For instance, the 

jury heard testimony about a meeting between Appellant, Crosby and 

Schwalbauch at the Buffalo Wild Wings restaurant in Circleville, Ohio, and 

also saw photographic evidence indicating Schwalbauch purchased crack 

cocaine from Appellant and tested it for quality, as part of his role in the 

drug operation. 

{¶26} Schwalbauch testified regarding his experience using drugs 

and the difference between the high resulting from heroin use versus cocaine 

use. Thus, it appears Schwalbauch was intimately involved in the drug 

operation and had the experience necessary to establish a foundation for his 

testimony. As such, having laid a proper foundation, the State was permitted 

to introduce further testimony from Schwalbauch as a lay witness to the 

extent that his testimony dealt with issues outside the realm of common 

knowledge, was rationally based on firsthand observations and helpful in 

determining a fact in issue. His testimony aided the jury in interpreting the 

voluminous recordings of telephone conversations involving Appellant, 

Crosby and others that all occurred as part of the drug operation. 
Pickaway App. No. 18CA1 23

{¶27} After our review of the record and consideration of the 

applicable rules of evidence and above-cited case law, we do not believe that 

Appellant has shown that trial counsel's failure to object to the eight 

examples of Schwalbauch's testimony listed above substantially violated any 

of counsel's essential duties to Appellant or that counsel's failure to object 

materially prejudiced Appellant's case. Further, and importantly, a review of 

the trial transcript reveals that Special Agent Shawn Rowley provided 

testimony on many of the same issues as Schwalbauch. For instance, 

Rowley testified regarding code words for quantities of drugs and what 

"boy" and "girl" referenced in terms of drugs, and also what the term "mule" 

meant. He also identified the voices of Crosby and Appellant on the 

recorded calls that were played for the jury. Appellant made no objection 

below and raises no argument on appeal regarding Rowley's testimony 

admitted at trial. 

{¶28} With regard to Appellant's argument his trial counsel should 

have objected to Schwalbauch's testimony regarding what Crosby's wife and 

family "knew" about his activities, assuming arguendo it was error for the 

trial court to permit Schwalbauch to testify regarding someone else's 

knowledge or understanding and that counsel should have lodged an 

objection, we find any error to be harmless in light of the Schwalbauch's 
Pickaway App. No. 18CA1 24

other testimony we have found permissible. Finally, with regard to 

Appellant's argument that there should have been an objection made to 

Schwalbauch's testimony regarding what Appellant meant when he told 

Crosby he "was talking a lot," this testimony is very similar to testimony 

allowed in both State v. Davis and State v. Rardon, supra. Davis at ¶ 30 

(permitting lay testimony explaining that slang terms and jargon was 

typically used when setting up drug deals and also permitting lay witness 

testimony to interpret jargon used in reference to weight and price for crack 

cocaine); Rardon at ¶ 58. As such, we find it permissible here, and not in 

violation of Evid.R. 701. 

{¶29} As a result, because we cannot conclude that trial counsel's 

failure to object constituted deficient performance, we find no merit to 

Appellant's first assignment of error. Accordingly, Appellant's first 

assignment of error is overruled. 

ASSIGNMENT OF ERROR II 

{¶30} In his second assignment of error, Appellant contends the trial 

court erred by failing to provide a meaningful sentencing hearing for him, as 

required by Ohio's sentencing statutes. Appellant contends trial counsel 

further rendered ineffective assistance by failing to participate in his 

sentencing hearing. The State responds by arguing that Appellant's trial 
Pickaway App. No. 18CA1 25

counsel noted, at the sentencing hearing, that he did not respond to the 

State's sentencing memorandum because it accurately stated the law with 

respect to the merger doctrine and “things of [that] nature.” The State points 

out that Appellant's trial counsel asked the trial court “to temper the 

Appellants' rejection of a generous plea offer by emphasizing Appellant's 

young age and ‘rough upbringing.’ ” The State further argues the trial court 

considered all of the appropriate factors and made all the necessary findings 

in imposing consecutive sentences. 

{¶31} When reviewing felony sentences, appellate courts must apply 

the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 22-23. Under R.C. 

2953.08(G)(2), “[t]he appellate court's standard for review is not whether the 

sentencing court abused its discretion.” Instead, R.C. 2953.08(G)(2) 

provides that an appellate court may increase, reduce, modify, or vacate and 

remand a challenged felony sentence if the court clearly and convincingly 

finds either: 

"(a) That the record does not support the sentencing court's 

findings under division (B) or (D) of section 2929.13, division 

(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 

2929.20 of the Revised Code, whichever, if any, is relevant; 
Pickaway App. No. 18CA1 26

(b) That the sentence is otherwise contrary to law." 

{¶32} Here, Appellant does not expressly contend his sentences were 

contrary to law, or that the record does not support his sentences. The only 

sentencing arguments he seems to make is that his sentence was not 

proportionate to the sentence imposed on Leslie Alan Crosby, and that the 

trial court did not "meaningfully explain why a series of consecutive 

sentences were appropriate or how they were necessary to protect the public 

from future crimes or to punish the Appellant by imposing a minimum 

sanction." In making this argument, however, Appellant concedes the trial 

court noted several factors in imposing sentence, including that Appellant 

had a number of juvenile adjudications and commitments to the Department 

of Youth Services (DYS), had been convicted of attempted felonious assault 

and carrying a concealed weapon as an adult, and was on community control 

at the time of the present offenses. Appellant concedes the trial court also 

considered the pre-sentence investigation report that was provided, which 

indicated he had thirty-three rule violations while in prison and was a 

member of a gang. 

{¶33} We first address Appellant's argument that his sentence was 

disproportionate to the sentence or sentences imposed upon Leslie Alan 
Pickaway App. No. 18CA1 27

Crosby. The Third District Court of Appeals has reasoned as follows with 

respect to disproportionality in sentencing arguments: 

“ ‘ “A defendant alleging disproportionality in felony 

sentencing has the burden of producing evidence to 'indicate 

that his sentence is directly disproportionate to sentences given 

to other offenders with similar records who have committed 

these offenses * * *.” ’ ” State v. Norman, 3rd Dist. Seneca No. 

13-13-50, 2014-Ohio-3010, ¶ 17, quoting State v. Ewert, 5th 

Dist. Muskingum No. CT2012-0002, 2012-Ohio-2671, ¶ 31, 

quoting State v. Breeden, 8th Dist. Cuyahoga No. 84663, 2005-

Ohio-510, ¶ 81. 'If a defendant fails to argue to the trial court 

that his sentence is not consistent with or proportionate to 

sentences imposed for similar crimes committed by similar 

offenders, then the defendant waives that issue for appeal.' Id., 

citing Ewert at ¶ 31, citing State v. Santiago, 8th Dist. 

Cuyahoga No. 95516, 2011-Ohio-3058, ¶ 42 and State v. 

Lycans, 8th Dist. Cuyahoga No. 93480, 2010-Ohio-2780, ¶ 5." 

State v. VanMeter, 3d Dist. Allen No. 1-18-18, 2018-Ohio3528, ¶ 16. 
Pickaway App. No. 18CA1 28

Here, we note that Appellant has provided this Court with no information 

related to the disposition or sentencing of Crosby, other than a representation 

that Crosby was sentenced to twelve years in prison.1

 Appellant makes no 

argument regarding whether Crosby entered into a plea agreement or what 

offenses he was ultimately convicted of. Thus, we cannot determine that 

Appellant's sentence was disproportionate or that his trial counsel was 

deficient in failing to argue for a lesser sentence based upon this theory. 

{¶34} Further, the information in the record before supports the trial 

court's imposition of consecutive sentences. Under R.C. 2929.14(C)(4), a 

trial court must engage in a three-step analysis and make certain findings 

before imposing consecutive sentences. State v. Bever, 4th Dist. Washington 

No. 13CA21, 2014–Ohio–600, ¶ 16; State v. Clay, 4th Dist. Lawrence No. 

11CA23, 2013–Ohio–4649, ¶ 64; State v. Howze, 10th Dist. Franklin Nos. 

13AP–386, 13AP–387, 2013–Ohio–4800, ¶ 18. Specifically, the trial court 

must find that (1) “the consecutive service is necessary to protect the public 

from future crime or to punish the offender”; (2) “consecutive sentences are 

not disproportionate to the seriousness of the offender's conduct and to the 

danger the offender poses to the public” and one of the following: 

 

1

 The State mentioned Crosby's sentence at the sentencing hearing, noting that Alan Crosby had received 

twelve years, mandatory, "with additional time over his head." 
Pickaway App. No. 18CA1 29

"(a) The offender committed one or more of the multiple 

offenses while the offender was awaiting trial or sentencing, 

was under a sanction imposed pursuant to section 2929.16, 

2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense. 

(b) At least two of the multiple offenses were committed as part 

of one or more courses of conduct, and the harm caused by two 

or more of the multiple offenses so committed was so great or 

unusual that no single prison term for any of the offenses 

committed as part of any of the courses of conduct adequately 

reflects the seriousness of the offender's conduct. 

(c) The offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from 

future crime by the offender." 

{¶35} The trial court “is required to make the findings mandated by 

R.C. 2929.14(C)(4) at the sentencing hearing and [to] incorporate its 

findings into the sentencing entry, but it has no obligation to state reasons to 

support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–

3177, 16 N.E.3d 659, syllabus. Furthermore, the trial court is not required to 

recite “a word-for-word recitation of the language of the statute * * *.” Id. at 
Pickaway App. No. 18CA1 30

¶ 29. “[A]s long as the reviewing court can discern that the trial court 

engaged in the correct analysis and can determine that the record contains 

evidence to support the findings, consecutive sentences should be upheld.” 

Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a 

consecutive sentence contrary to law. Id. at ¶ 37; Bever at ¶ 17; State v. Nia, 

8th Dist. Cuyahoga No. 99387, 2013–Ohio–5424, ¶ 22. The findings 

required by the statute must be separate and distinct findings; in addition to 

any findings relating to the purposes and goals of criminal sentencing. Bever 

at ¶ 17; Nia at ¶ 22. 

{¶36} Here, the trial court made all of the necessary findings before 

imposing consecutive sentences. Further, and importantly, the trial court 

stated during the sentencing hearing that the pre-sentence investigation 

report was very damaging and revealed extensive criminal conduct, 

including juvenile felony offenses, commitments to DYS and adult 

convictions for attempted felonious assault and carrying a concealed 

weapon. The trial court further noted that Appellant was on post-release 

control at the time the current offenses were committed and that Appellant 

was in a gang. 

{¶37} In light of the foregoing, we cannot conclude that Appellant 

failed to receive a meaningful sentencing hearing. Further, with regard to 
Pickaway App. No. 18CA1 31

Appellant's argument that his trial counsel provided ineffective assistance by 

failing to participate in his sentencing hearing, we note his counsel did 

participate in the hearing. He explained that he did not file a sentencing 

memorandum as the State's memorandum contained accurate information as 

to the contents of the pre-sentence investigation that was performed and as 

to the merger doctrine. He further asked the court for leniency in light of 

Appellant's young age and "rough upbringing." However, accepting 

Appellant's argument that counsel did not participate in the sentencing 

hearing to the degree expected by Appellant, we still find no prejudice 

resulted in light of the fact that the trial court made all of the necessary 

findings before imposing consecutive sentences, and those findings were 

supported by the record. As such, even if counsel's performance could be 

considered deficient, Appellant was not prejudiced by the deficiency. 

{¶38} Thus, having found no merit in Appellant's second assignment 

of error, it is overruled. Accordingly, the judgment of the trial court is 

affirmed. 

 JUDGMENT AFFIRMED. 
Pickaway App. No. 18CA1 32

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED and 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 Pickaway 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. 

Hoover, P.J. & Abele, J.: Concur in Judgment and 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.