[Cite as State v. Bell, 2013-Ohio-1303.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 13-12-27 

 v. 

DEMARIS D. BELL, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Seneca County Common Pleas Court 

Trial Court No. 11CR0254 

Judgment Affirmed 

Date of Decision: April 1, 2013 

 

APPEARANCES: 

 

John M. Kahler, II for Appellant 

Derek W. DeVine and Rhonda L. Best for Appellee 
Case No. 13-12-27 

-2- 

SHAW, J. 

{¶1} Defendant-appellant Demaris D. Bell (“Bell”) appeals the June 6, 

2012, judgment of the Seneca County Common Pleas Court sentencing Bell to an 

aggregate prison term of 32 months following a trial wherein a jury convicted bell 

of two counts of Trafficking in Cocaine, in violation of R.C. 2925.03(A)(1), 

(C)(4)(b), both felonies of the fourth degree due to the offenses occurring in the 

vicinity of a juvenile. For the reasons that follow, we affirm the judgment of the 

trial court. 

{¶2} On May 10, 2011, the Seneca County Drug Task Force conducted two 

separate controlled drug buy operations in Room 32 of the Tiffin Motel in Tiffin, 

Ohio. A confidential informant, working with the task force, went to the motel 

and purchased cocaine on two separate occasions on May 10 from Bell while 

children were present. 

{¶3} On November 16, 2011, Bell was indicted for two counts of 

Trafficking in Cocaine, in violation of R.C. 2925.03(A)(1),(C)(4)(b), both felonies 

of the fourth degree due to the offenses occurring in the vicinity of a juvenile. 

{¶4} On January 25, 2012, Bell pled not guilty to the charges. (Doc. 15). 

{¶5} On June 4-5, 2012, a jury trial was held. At the trial, the State called 

Detective Charles Boyer and Detective Matthew Armstrong, the detectives who 

conducted the controlled buy operation. The State also called Kelsey Degen, a 
Case No. 13-12-27 

-3- 

forensic scientist that tested the substances purchased during the controlled buys. 

She determined the substances to be cocaine. In addition, the State called Sandra 

Sandlin, who had set up the buy between the confidential informant and Bell. 

Sandra was present during the sale, which was conducted in her motel room, and 

Sandra was incarcerated for, inter alia, complicity to trafficking in cocaine for the 

incident related to this case. 

{¶6} Bell’s attorney cross-examined all witnesses but did not call any 

witnesses in Bell’s defense. Ultimately Bell was found guilty of both counts of 

Trafficking in Cocaine in the vicinity of a juvenile. 

{¶7} On June 5, 2012, the trial court proceeded to sentence Bell, sentencing 

him to 16 months in prison on each count, with those prison terms to be served 

consecutively for an aggregate prison term of 32 months. 

{¶8} It is from this judgment that Bell appeals, asserting the following 

assignments of error for our review. 

ASSIGNMENT OF ERROR 1 

THERE WAS INSUFFICIENT EVIDENCE INTRODUCED 

AT TRIAL TO SUPPORT THE FINDING THAT THE 

DEFENDANT WAS GUILTY OF TWO COUNTS OF 

TRAFFICKING IN COCAINE IN VIOLATION OF OHIO 

REVISED CODE SECTION 2925.03(A)(1),(C)(4)(b). 

ASSIGNMENT OF ERROR 2 

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF 

COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE 

FIFTH, SIXTH, AND FOURTEENTH AMENDEMNTS OF 
Case No. 13-12-27 

-4- 

THE UNITED STATES CONSTITUTION AND ARTICLE I, 

SECTION 10 OF THE OHIO CONSTITUTION. 

ASSIGNMENT OF ERROR 3 

IT WAS PLAIN ERROR FOR THE TRIAL COURT TO 

ALLOW THE ADMISSION OF THE STATE’S VIDEO 

RECORDING OF THE ALLEGED DRUG TRANSACTION. 

ASSIGNMENT OF ERROR 4 

THE TRIAL COURT ERRED TO THE PREJUDICE OF 

DEFENDANT/APPELLANT IN MAKING STATEMENTS IN 

THE PRESENCE OF THE JURY WHICH DENIED THE 

DEFENDANT A FAIR TRIAL. 

{¶9} In the interest of clarity, we elect to address some of the assignments 

of error out of the order in which they were raised. 

First Assignment of Error

{¶10} In Bell’s first assignment of error, he argues that there was 

insufficient evidence to convict him of two counts of Trafficking in Cocaine. 

Specifically, Bell argues that the officers that testified did not actually see drugfor-money transactions, that there were other people in the room that could have 

made the drug sales other than Bell, and that the confidential informant could have 

already had the cocaine. 

{¶11} The Supreme Court of Ohio has “carefully distinguished the terms 

‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and 

‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’” Eastley v. 
Case No. 13-12-27 

-5- 

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 

78 Ohio St.3d 380 (1997), paragraph two of the syllabus. 

{¶12} The Ohio Supreme Court has set forth the sufficiency of the evidence 

test as follows: 

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 and determine whether such evidence, 

if believed, would convince the average mind of the defendant’s 

guilt beyond a reasonable doubt. The 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. 

State v. Jenks, 61 Ohio St.3d 259 (1991), at syllabus, superseded by state 

constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio 

St.3d 89 (1997); Eastley, supra, at ¶ 10; Thompkins, supra, at 386. 

{¶13} Bell was convicted of two counts of Trafficking in Cocaine in 

violation of R.C. 2925.03(A)(1),(C)(4)(b), which reads as follows: 

(A) No person shall knowingly do any of the following: 

(1) Sell or offer to sell a controlled substance; 

* * * 

(C) Whoever violates division (A) of this section is guilty of one 

of the following: 

(4) If the drug involved in the violation is cocaine or a 

compound, mixture, preparation, or substance containing 

cocaine, whoever violates division (A) of this section is guilty of 
Case No. 13-12-27 

-6- 

trafficking in cocaine. The penalty for the offense shall be 

determined as follows: 

* * * 

(b) Except as otherwise provided in division (C)(4)(c), (d), (e), 

(f), or (g) of this section, if the offense was committed in the 

vicinity of a school or in the vicinity of a juvenile, trafficking in 

cocaine is a felony of the fourth degree, and division (C) of 

section 2929.13 of the Revised Code applies in determining 

whether to impose a prison term on the offender. 

{¶14} To prove that Bell committed the offense of Trafficking in Cocaine, 

the State called four witnesses, beginning with Detective Charles W. Boyer 

(“Detective Boyer”) of the Tiffin Police Department. Detective Boyer testified 

that he was assigned to the Seneca County Drug Task Force METRICH1

Enforcement Unit. (Tr. at 104). 

{¶15} Detective Boyer testified that a confidential informant that they had 

been using, Emily Davis2

 (“Emily”), contacted him and informed him of an 

impending cocaine purchase. (Tr. at 113). Emily had been working under an 

agreement that stated if she assisted law enforcement she could get felony charges 

against her reduced or dropped. (Tr. at 113-14). 

{¶16} Detective Boyer testified that he “made arrangements to meet with 

[Emily] at a pre-determined location prior to the operation with additional agents.” 

 

1

 According to Detective Boyer’s testimony, METRICH’s mission “is to enforce the Ohio drug laws, to 

ensure the quality of life in our communities, such as Seneca County, specifically. (Tr. at 105). 

2

 Detective Boyer testified that he knew Emily as Emily Wagner, but she was Emily Davis by marriage. 

(Tr. at 113). 
Case No. 13-12-27 

-7- 

(Tr. at 115). Detective Boyer testified that on May 10, 2011, he met up with 

Emily at the predetermined location along with Detective Matt Armstrong of the 

Fostoria Police Department. (Tr. at 115). According to Detective Boyer, he and 

Detective Armstrong then conducted “pre-operational protocol by searching the 

confidential informant, along with her vehicle.” (Tr. at 115). Detective Boyer 

testified that no contraband was recovered as a result of those searches. (Tr. at 

116). 

{¶17} Detective Boyer testified that following the searches he placed an 

audio recording device and transmitter and a video recording device on Emily and 

found them to be working properly. (Tr. at 116). According to Detective Boyer, 

$100 in cover funds was issued to Emily to utilize in purchasing the cocaine. (Id.) 

{¶18} Once Emily was searched and prepared for the operation, Detective 

Boyer testified that he and Detective Armstrong followed Emily’s car straight to 

the Tiffin Motel, keeping Emily under audio surveillance.3

 (Tr. at 117). Detective 

Boyer testified that Emily stopped her car just to the right of room 32 in the Tiffin 

Motel. (Tr. at 118). Detective Boyer testified that he observed Emily arrive and 

walk up to Sandra, Sandra’s children, and a maintenance man who were just 

walking up to the motel room. (Tr at 118). Detective Boyer testified that he then 

observed the group enter into the motel room, and that when they went in, he 

 

3

 The video was recording but they were not monitoring it as they followed her. 
Case No. 13-12-27 

-8- 

could still overhear the conversation as a result of the audio recording device. (Tr 

at 119). 

{¶19} Detective Boyer testified that shortly after the group entered the 

motel room, Bell arrived at the motel room and the maintenance man left. (Tr. at 

119). Detective Boyer testified that he overheard what he thought was part of a 

drug transaction. (Tr. at 120). Detective Boyer testified that Emily then left the 

motel room, and Detectives Boyer and Armstrong followed her back to the 

predetermined meeting location. (Tr. at 121). Back at the location, Detective 

Boyer testified that he received contraband from Emily, a small baggie of white 

powder. (Tr. at 121). The Detectives placed the substance into an evidence bag, 

sealed it, and labeled it as evidence. (Tr. at 121-22). Detective Boyer testified 

that they then engaged in a second search of Emily and Emily’s vehicle and found 

no contraband or covert funds. (Tr. at 122). 

{¶20} According to Detective Boyer, the Detectives then issued $200 of 

covert funds to Emily and followed her back to the Tiffin Motel, observing her the 

entire time. (Tr. at 135). Detective Boyer testified that Emily again entered Room 

32, and that he could hear the conversation between Emily and Sandra and Bell 

due to the audio device. (Tr. at 137-38). Detective Boyer testified that there was a 

brief conversation and then afterward Emily and Bell separately left the motel 

room. (Tr. at 138). 
Case No. 13-12-27 

-9- 

{¶21} Detective Boyer testified that when Emily left the motel, he and 

Detective Armstrong followed her back to the pre-determined location and that 

they then conducted post-operational protocol by receiving a second package of 

suspected cocaine, packaging and labeling it as evidence. (Tr. at 139). Detective 

Boyer testified that he and Detective Armstrong then searched Emily’s body and 

her car and removed all of the audio and video surveillance equipment. (Tr. at 

139). 

{¶22} During Detective Boyer’s testimony, the State played the video 

recordings that had been made of the alleged transactions. In the video of both 

transactions, Emily, Sandra, Bell, the maintenance man and at least two small 

children are present inside the motel room. (State’s Exs. 2, 7). In the first video, 

Bell shows up after all of the others are already in the room, roughly sixteen 

minutes into the video. (State’s Ex. 2). In the second video, Bell is in the motel 

room when Emily arrives. (State’s Ex. 7). 

{¶23} On cross-examination, Detective Boyer admitted that he did not 

search inside Emily’s bra or underwear. (Tr. at 162). Detective Boyer also 

admitted that he did not search the trunk of the car Emily was driving, arguing that 

she would not be accessing the trunk, and that she did not, in fact, access the trunk. 

(Id.) 
Case No. 13-12-27 

-10- 

{¶24} The State next called Kelsey Degen, a forensic scientist for the Ohio 

Bureau of Criminal Identification and Investigation (BCII). Degen was qualified 

as an expert in scientific analysis of controlled substances, including weight and 

identification. (Tr. at 219-20). Degen testified that she tested the two suspected 

drug samples submitted in this case and found the sample from the first transaction 

to be .9 grams of cocaine and the sample from the second transaction to be 1.2 

grams of cocaine. (Tr. at 227, 230). 

{¶25} The State then called Sandra Sandlin (“Sandra”). Sandra testified 

that at the time of the incident on May 10, 2011, she had known Bell for two or 

three weeks. (Tr. at 254). Sandra testified that Bell had let her know that he had 

cocaine and Bell had told Sandra to let Bell know who was buying. (Tr. at 255). 

Sandra testified that Emily called and asked about cocaine. (Tr. at 255). Sandra 

testified that she informed Emily that Emily could come to where Sandra was, in 

Room 32 at the Tiffin Motel, to purchase cocaine. (Tr. at 256). Sandra testified 

that she was staying at the Tiffin Motel with her children Danelle and Trenton, 

who were roughly four years old and eighteen months old at the time. (Tr. at 256). 

{¶26} Sandra testified that she was taking care of her children on May 10, 

2011, when Emily came to purchase cocaine from Bell at the motel, and that Bell 

did sell cocaine to her. (Tr. at 257). Sandra testified that she did not have the 

cocaine in her room, that Bell brought it. (Id.) Sandra testified that she personally 
Case No. 13-12-27 

-11- 

witnessed Bell have the cocaine the first time, but the second time she did not see 

it. (Id.) Sandra testified that during the first transaction, Bell went into the 

bathroom in the motel room and came out and exchanged the cocaine for money. 

(Tr. at 258). Sandra testified that she overheard Emily speaking with Bell, and 

Emily said to Bell that she was going to get some money from some friends and 

come back to purchase more. (Tr. at 259). Sandra testified that Bell told Emily he 

would wait for her to come back. (Id.) 

{¶27} Sandra testified that Emily left after the first transaction and came 

back about half an hour to an hour later. (Tr. at 259). Sandra testified that Bell 

stayed in her room during that time. (Id.) Sandra testified that when Emily 

returned, Bell went back to the same spot in the bathroom and Emily purchased 

more cocaine. (Tr. at 260). Sandra testified that Emily and Bell left her room at 

approximately the same time. (Id.) 

{¶28} According to Sandra, there was a motel employee around her room 

during the time of the transactions, a man she knew as “Frog.” Sandra testified 

that Frog brought Sandra some silverware and a bowl to eat soup with. (Tr. at 

260). Sandra testified that this man did not sell drugs to her or Emily. Sandra 

testified that Bell sold cocaine to Emily twice on May 10, 2011, and that she was 

present for both sales. (Tr. at 261). Finally, Sandra testified that she was in prison 

for those two cocaine sales that she set up between Bell and Emily. Sandra 
Case No. 13-12-27 

-12- 

testified that she was in prison for Complicity to Trafficking in Cocaine, and 

Permitting Drug Abuse and a specification. (Tr. at 263). 

{¶29} As its final witness, the State called Detective Matt Armstrong. 

Detective Armstrong testified that he had worked for the Fostoria Police 

Department for 6 years and was part of the Seneca County Drug Task Force at the 

time of these incidents. (Tr. at 279). Detective Armstrong testified that he 

participated in the search of Emily and her vehicle both before and after each 

controlled buy operation. (Tr. at 281). Detective Armstrong testified that he was 

in the vehicle following Emily to and from the Tiffin Motel, monitoring her 

through the audio surveillance. (Tr. at 281). Detective Armstrong also testified 

that he transported the suspected cocaine once it was collected and tagged to BCII. 

(Tr. at 284). At the conclusion of Detective Armstrong’s testimony, the State 

rested its case. 

{¶30} On appeal, Bell argues that the evidence presented did not establish 

that Bell sold the cocaine rather than the other man who was present in the room 

around the time of both transactions, or Sandra. Bell also argues that Emily could 

have had the cocaine on her person in the areas that weren’t searched, such as in 

her bra or underwear. 

{¶31} Despite Bell’s arguments, Sandra testified that she set up the cocaine 

sales between Emily and Bell, that she was present for both of the sales, and that 
Case No. 13-12-27 

-13- 

neither she nor “Frog” (the maintenance man) sold the cocaine. Sandra also 

testified that the children were present at the time of the sale in the motel room. 

The video from the first transaction corroborates Sandra’s testimony in that Emily 

gets to the motel and waits for Bell, Bell arrives and goes into the bathroom, 

comes out, interacts with Emily, and then Emily leaves. (State’s Ex. 2). The 

maintenance man could also be heard on the video speaking with Sandra about 

bowls and food. (Id.) The second video, much shorter than the first, shows Emily 

arriving, Bell going back into the bathroom, coming out, and then Emily leaving. 

(State’s Ex. 7). 

{¶32} In addition to Sandra’s testimony and the video, the jury heard 

testimony from both Detective Boyer and Detective Armstrong who both testified 

that they searched Emily’s person and her car and found nothing prior to and after 

each transaction. They testified that they gave Emily money and followed her to 

the Tiffin Motel, and on both instances on May 10, 2011, Emily came out of the 

motel with no money and small baggies of suspected cocaine. The white 

substances were tested and found to be cocaine. Based upon the foregoing 

evidence presented at trial, we find that there was sufficient evidence to convict 

Bell of two counts of Trafficking in Cocaine in the vicinity of a juvenile. 

Accordingly, Bell’s first assignment of error is overruled. 
Case No. 13-12-27 

-14- 

Third Assignment of Error

{¶33} In Bell’s third assignment of error, Bell argues that it was plain error 

for the trial court to allow the admission of the State’s video recordings of the 

alleged drug transactions. Specifically, Bell claims that the videos were not 

properly authenticated. 

{¶34} We recognize plain error “‘with the utmost caution, under 

exceptional circumstances and only to prevent a manifest miscarriage of justice.’” 

State v. Landrum, 53 Ohio St.3d 107, 110 (1990), quoting State v. Long, 53 Ohio 

St.2d 91 (1978), paragraph three of the syllabus. For plain error to apply, the trial 

court must have deviated from a legal rule, the error must have been an obvious 

defect in the proceeding, and the error must have affected a substantial right. State 

v. Barnes, 94 Ohio St.3d 21, 27 (2002). Under the plain error standard, the 

appellant must demonstrate that the outcome of his trial clearly would have been 

different but for the trial court’s errors. State v. Waddell, 75 Ohio St.3d 163, 166 

(1996), citing State v. Moreland, 50 Ohio St.3d 58, 62 (1990). The burden of 

demonstrating plain error is on the party asserting it. See generally State v. Jester, 

32 Ohio St.3d 147, 150 (1987). 

{¶35} To be admissible, a tape recording must be “‘authentic, accurate and 

trustworthy.’” State v. Coleman, 85 Ohio St.3d 129, 141 (1999), citing State v. 

Rogan, 94 Ohio App.3d 140, 148 (2nd Dist.1994). Ohio Evidence Rule 901(A) 
Case No. 13-12-27 

-15- 

states that the requirement for authentication or identification “as a condition 

precedent to admissibility is satisfied by evidence sufficient to support a finding 

that the matter in question is what its proponent claims.” Evid.R. 901(A). 

{¶36} Evidence Rule 901(B) states that 

By way of illustration only, and not by way of limitation, the 

following are examples of authentication or identification 

conforming with the requirements of this rule: 

(1) Testimony of witness with knowledge. Testimony that a 

matter is what it is claimed to be. 

* * * 

(5) Voice identification. Identification of a voice, whether heard 

firsthand or through mechanical or electronic transmission or 

recording, by opinion based upon hearing the voice at any time 

under circumstances connecting it with the alleged speaker. 

{¶37} On appeal, Bell argues that the videos of the scene of the transaction 

were not properly authenticated since Emily, the confidential informant, did not 

testify. The State counters by arguing that Detective Boyer testified that he placed 

the audio and video recording devices on Emily and that they were working 

properly. Detective Boyer and Detective Armstrong testified that they were 

listening to the audio during the controlled buy operations. Detective Boyer 

testified that he created the video, had reviewed it, that it was not tampered with 

and that it was a true and accurate copy. Detective Boyer also testified that he 

identified the people on the videotape. (Tr. at 120). 
Case No. 13-12-27 

-16- 

{¶38} Detective Boyer’s testimony is certainly sufficient to authenticate the 

audio and the video tapes. However, even if the video was not properly 

authenticated, Bell makes no argument establishing how the inclusion of the video 

prejudiced him. Bell merely states “[s]ince the confidential informant did not 

testify in this case the issue of guilt or innocence hinged primarily on the video 

recordings. Had the video recordings not been admitted certainly the outcome of 

the trial would have been different.” (Appt. Br. at 15). 

{¶39} It is not at all clear in this case how the outcome of the trial would 

have been different if the videos were not admitted into evidence. First, Bell’s 

trial counsel used the videos himself to establish that no drug transactions were 

visible on the videos, and that there were minutes on the video when the 

confidential informant was alone in the car while driving where she could have 

produced the cocaine from a private, unsearched area. Bell’s counsel also used the 

tapes to show that “Frog” was around the motel room near the time of the sales. In 

trial counsel’s closing argument, he encouraged the jury to re-watch the video as 

there was no proof of a transaction on the video. 

{¶40} Absent this video evidence, Bell is still faced with the testimony of 

Sandra, who testified adamantly that she set up the cocaine transactions between 

Bell and Emily, was present during both transactions, and was incarcerated for 

doing so. Sandra unequivocally testified that the other man in the room had 
Case No. 13-12-27 

-17- 

nothing to do with the transactions. In addition, the circumstantial evidence of 

Bell’s arrival at the motel room, Emily’s subsequent possession of the cocaine and 

lack of money is evidence that the jury could use to convict Bell. Without any 

argument from Bell to the contrary in his brief, it is unclear how the video did 

anything to hurt his case, especially given that defense counsel’s trial strategy 

heavily relied upon it. We cannot find under these circumstances that any plain 

error is present given the evidence against Bell with or without the video. 

{¶41} Finally, the Second District Court of Appeals was presented with a 

similar issue in State v. Gilliam, 2nd Dist. No. 09CA0075, 2011-Ohio-26, ¶ 16. In 

that case, the Second District conducted the following analysis: 

Defendant objected that the video was inadmissible absent the 

testimony of the informant shown in it. The trial court admitted 

the video pursuant to Evid.R. 901(B)(5) because the two officers 

could identify the voices heard on it. Defendant did not object 

that the video was not admissible pursuant to Evid.R. 901(B)(5) 

because the state failed to offer foundational evidence of its 

accuracy. Therefore, any error in admitting the evidence for that 

reason is forfeited. State v. Payne, 114 Ohio St.3d 502, 2007-

Ohio-4642, 873 N.E.2d 306. Criminal plain error is not shown. 

State v. Long, 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804. 

Gilliam, at ¶ 16. Thus under the reasoning employed in Gilliam, Bell’s claim is 

forfeited in any event. 

{¶42} For all of these reasons, Bell’s third assignment of error is overruled. 
Case No. 13-12-27 

-18- 

Fourth Assignment of Error

{¶43} In Bell’s fourth assignment of error, Bell argues that the trial court 

made statements in the presence of the jury that denied Bell a fair trial. 

{¶44} Under Evid.R. 611(A), the trial court has discretion to control the 

flow of the trial. Our review of a trial court’s comments must determine whether 

the trial court abused that discretion. State v. Heuser, 3d Dist. No. 5-04-10, 2004-

Ohio-5345, ¶ 6, citing State v. Davis, 79 Ohio App.3d 450 (4th Dist.1992). “We 

must determine whether the trial court, through its statements at trial, conveyed its 

opinion regarding the quality of evidence.” Heuser, at ¶ 6, citing State ex rel. 

Wise v. Chand, 21 Ohio St.2d 113, 119-120 (1970). 

{¶45} The Ohio Supreme Court has articulated a five part test to determine 

whether a trial judge’s actions and remarks are so prejudicial as to violate a 

criminal defendant’s constitutional rights: 

(1) The burden of proof is placed upon the defendant to 

demonstrate prejudice, (2) it is presumed that the trial judge is 

in the best position to decide when a breach is committed and 

what corrective measures are called for, (3) the remarks are to 

be considered in light of the circumstances under which they are 

made, (4) consideration is to be given to their possible effect 

upon the jury, and (5) to their possible impairment of the 

effectiveness of counsel. 

Hauser, supra, at ¶ 7, citing State v. Wade, 53 Ohio St.2d 182, 188 (1978), and 

State v. Hopfer, 112 Ohio App.3d 521, 537 (2nd Dist.1996). 
Case No. 13-12-27 

-19- 

{¶46} “Moreover, that Court made clear that ‘“the failure to object ... 

constitute[s] a waiver of the error ..., for, absent an objection, the trial judge is 

denied an opportunity to give corrective instructions as to the error.”’ Id., citing 

State v. Williams, 39 Ohio St.2d 20 (1974), State v. Childs, 14 Ohio St.2d 56 

(1968); Smith v. Flesher, 12 Ohio St.2d 107 (1967). 

{¶47} On appeal, Bell cites the following exchange between the trial court 

and defense counsel while defense counsel was cross-examining Sandra, as being 

inappropriate and prejudicial: 

Q: And how much time could you have served if you had gone 

to trial and lost and been convicted and got a maximum 

sentence? Do you remember that? 

A: [Sandra]: Uhm, well, I got the 23 months so I’m thinking it 

– I just remember the 23 months. 

Q: So but you’re gonna be out in 70 days, right? 

A: No. I just came back to come to this court. 

Q: So you pled to 23 months? 

A: Yeah. 

THE COURT: Let me – the court always has problem with 

defense counsel. You don’t plead to 23 months. You plead 

guilty to charges. The Court sentences. So if you want to 

rephrase the question you may do so, but I want the vernacular 

to be proper. 

[DEFENSE COUNSEL]: I will rephrase, Your Honor. I 

apologize. 

(Tr. at 263-64). 

* * * 

[DEFENSE COUNSEL]: Uhm, Your Honor, I wanna go back to 

the uhm, Plea Agreement, uhm, with Ms. Mason – Ms. Sandlin 
Case No. 13-12-27 

-20- 

seems to be having a problem remembering. Uhm, I have a copy 

of that. May I? 

[THE COURT]: Well, first of all, whether she has a problem 

remembering or not is not for your determination, all right? It’s 

for the jury. So without your comment, which I’m gonna strike 

from the record, you may proceed. 

[DEFENSE COUNSEL]: Yeah, I apologize, Your Honor. I had 

no intention of misleading – 

[THE COURT]: You may proceed. 

[DEFENSE COUNSEL]: Thank you. 

[THE COURT]: But I caution counsel, as I always do, both 

counsel, a plea of guilty is not a sentence. Sentence comes from 

the Court and is in a sentencing entry. Just so both counsel are 

clear here. 

[DEFENSE COUNSEL]: Thank you, Your Honor. 

[THE COURT]: I don’t care what a plea of guilty may say. 

(Tr. at 269-70). 

{¶48} Bell argues that these exchanges between Bell’s counsel and the trial 

court showed bias or at least the appearance of bias in favor of the State and 

against Bell’s counsel. Bell further contends that the preceding statements 

diminished the weight jurors otherwise would have given to the evidence. 

{¶49} With regard to the preceding exchanges, defense counsel did not 

object and therefore waived this argument on appeal. However, had defense 

counsel objected, we still do not find that the statements made by the court 

prejudiced Bell. The trial court merely wished to clarify the words associated with 

a plea agreement and sentencing. The court in no way prevented defense counsel 

from questioning Sandra on the agreement. Similarly the court did not comment 

or indicate what weight it should be given. Moreover, in the court’s final 
Case No. 13-12-27 

-21- 

statement on the matter cited above, the court addresses both defense counsel and

the State, indicating that what the court was saying applied to both. Under these 

circumstances, we find no prejudice. 

{¶50} We further note that the trial court made a curative statement to the 

jury in its final instructions: 

If, during the course of this trial, I said or did anything which 

you consider an indication of my view on the facts, you are 

instructed to disregard it. The Judge must be, and sincerely 

desires to be, impartial in presiding over this and every other 

trial before a jury and without a jury. The Court does not have 

the right, and does not desire to invade the province of the jury, 

by indicating in any way a preference between the State and the 

defendant and, the Court has not done so at any time. 

(Tr. at 336). Thus even if counsel had objected, and even if the statements of the 

court could be considered prejudicial, the court gave a curative instruction to the 

jury, and jurors are presumed to follow that instruction. State v. Downing, 9th 

Dist. No. 22012, 2004-Ohio-5952, at ¶ 51. For all of the foregoing reasons, Bell’s 

fourth assignment of error is overruled. 

Second Assignment of Error

{¶51} In Bell’s second assignment of error, he argues that his trial counsel 

was ineffective for failing to object to “substantial” amounts of hearsay evidence 

and for failing to object to the introduction of the videos of the alleged drug 

transactions that were presented to the jury at trial. 
Case No. 13-12-27 

-22- 

{¶52} “Reversal of convictions on ineffective assistance requires the 

defendant to show ‘first that counsel’s performance was deficient and, second that 

the deficient performance prejudiced the defense so as to deprive the defendant of 

a fair trial.’” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751 at ¶105, 

quoting Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052 (1984). 

When considering a claim of ineffective assistance of counsel, the court “must 

indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” Strickland, 466 U.S. at 689. 

{¶53} A tactical decision by trial counsel, who as a licensed attorney is 

presumed to be competent, is not by itself enough to show ineffective assistance of 

counsel simply because the strategy did not result in an acquittal. State v. Clayton, 

62 Ohio St.2d 45, 48-49 (1980); State v. Timm, 3d Dist. No. 13-11-23, 2012-Ohio410, ¶ 31. “Furthermore, trial counsel’s failure to object is generally viewed as 

trial strategy and does not establish ineffective assistance.” State v. Turks, 3d. 

Dist. No. 1-08-44, 2009-Ohio-1837, ¶ 43, citing State v. McKinney, 11th Dist. No. 

2007-T-0004, 2008-Ohio-3256, ¶ 191; State v. Gumm, 73 Ohio St.3d 413, 428; 

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 103. 

{¶54} In arguing that his counsel was ineffective, Bell first contends on 

appeal that his counsel failed to object to inadmissible hearsay evidence. Hearsay 

is defined as “a statement, other than one made by the declarant while testifying at 
Case No. 13-12-27 

-23- 

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 

Evid.R. 801(C). Hearsay is generally not admissible unless an exception applies. 

Evid.R. 802. 

{¶55} Bell points to the following testimony as being inappropriate: 

Q: [STATE]: While the informant was on her way to the 

Tiffin Motel, could you hear whether she had any further 

contact with Ms. Sandlin or Ms. Mason? 

A: [Detective Boyer]: Uhm, yes. She received, uhm – or she 

contacted, uhm –the confidential informant contacted Mason, 

uhm, Sandlin and explained, uhm, and confirmed what room she 

was gonna be in and it was room 32, which we already knew 

that. 

(Tr. at 117-118). 

{¶56} In this excerpt of testimony, the State was questioning Detective 

Boyer about whether Emily, the informant, had any contact with Sandra during the 

ride over to Sandra’s hotel room. Detective Boyer was monitoring Emily visually 

by following in a car behind her, and also listening to the audio device he had 

placed in her car. Detective Boyer testified that he overheard a conversation 

between Emily and Sandra on that drive to the motel via the audio equipment. 

{¶57} We would note that this excerpt of testimony was not offered to 

prove the truth of the matter asserted in this case and thus would not be hearsay. It 

merely explains why the officers proceeded to the motel. However, even if the 

evidence did go to prove the truth of the matter asserted, there is no resulting 
Case No. 13-12-27 

-24- 

prejudice from this particular excerpt of testimony. Numerous times throughout 

the trial it was mentioned that the purported transaction took place in room 32 of 

the Tiffin Motel. Detectives Boyer and Armstrong testified to that fact, as did 

Sandra. Therefore, Bell cannot make a valid argument that this statement, if it was 

even hearsay, which we do not find, was in any way prejudicial. 

{¶58} Bell next argues that the following exchange between the State and 

Detective Boyer was improper: 

Q: [State]: And the conversations that the defendant had, 

were you able to determine if any drug sales were occurring? 

A: [Detective Boyer]: Yes. 

Q: Based on what? 

A: Me overhearing the conversation prior to, uhm, the 

arrival of the defendant. Uhm, the confidential informant was 

asking Sandlin, uhm, that “Does he have it?” uhm, “When is he 

gonna be here” and so forth. Uhm, and then once he got there 

that conversation was no longer and, uhm, it was just, you know, 

pretty much brief conversation at that point until I seen the 

video after the buy of what happened.

(Tr. at 120). 

{¶59} Bell contends that Detective Boyer’s elaboration regarding what he 

overheard on the audio between Emily and Sandra constituted inadmissible 

hearsay. While the statement “Does he have it?” may have constituted hearsay, it 

is unclear how failing to object to this statement would have so prejudiced Bell 

that it deprived Bell of a fair trial. Sandra testified that when Emily arrived Emily 

waited around a little while before Bell came to the motel room for the first 
Case No. 13-12-27 

-25- 

transaction because Bell was not yet present. (Tr. at 257). Sandra also testified 

that Bell had the cocaine on him because Bell told Sandra this and she saw the 

cocaine during the first transaction. (Id.) Thus any hearsay statement elicited was 

merely cumulative to other testimony presented at trial, and did not prejudice Bell. 

{¶60} Finally, Bell argues that trial counsel was ineffective for failing to 

object to the admission of State’s Exhibits 2 and 7, the videos of the two alleged 

drug transactions. We found in the third assignment of error that if there was any 

error in admitting the videos into evidence it did not rise to the level of plain error 

as the outcome would not have been different in this case. Accordingly, Bell 

cannot sustain an ineffective assistance of counsel claim on this issue. In addition, 

we would point out that a review of the transcript reveals that trial counsel was 

attempting to make an effective case through using the video recordings to show 

that another man was present and could have potentially made the drug sales to 

Emily, as he was in both videos. No drug sale is actually visible on the video, thus 

allowing trial counsel to make this argument in an attempt to establish reasonable 

doubt. Under these circumstances, trial counsel’s “failure to object” appears to 

have been a clear and reasonable trial strategy. Thus we do not find counsel’s 

performance deficient or that it prejudiced Bell in any way. Accordingly, Bell’s 

second assignment of error is overruled. 
Case No. 13-12-27 

-26- 

{¶61} For the foregoing reasons Bell’s assignments of error are overruled 

and the judgment of the Seneca County Common Pleas Court is affirmed. 

Judgment Affirmed 

PRESTON, P.J., concurs. 

/jlr 

ROGERS, J. Concurring Separately. 

{¶62} I concur with the opinion of the majority, however, write separately 

to express two concerns with respect to the trial court’s findings and sentence. 

{¶63} First, when imposing consecutive sentences the trial court is required 

to make certain findings. R.C. 2929.14(C)(4). Here, the trial court made several 

findings which, together, are sufficient to sustain the imposition of consecutive 

sentences. However, one of the findings by the trial court was clearly 

unwarranted. 

{¶64} Specifically, R.C. 2929.14(C)(4) states: 

If multiple prison terms are imposed on an offender for convictions 

of multiple offenses, the court may require the offender to serve the 

prison terms consecutively if the court finds that the consecutive 

service is necessary to protect the public from future crime or to 

punish the offender and that consecutive sentences are not 

disproportionate to the seriousness of the offender’s conduct and to 

the danger the offender poses to the public, and if the court also 

finds any of the following: 
Case No. 13-12-27 

-27- 

(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 post-release 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. (Emphasis added.). 

{¶65} In its judgment entry, the trial court found, in relevant part, that 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 

defendant’s conduct.” Judgment Entry, p. 3. Because this was a controlled buy 

and the drugs at issue were never outside the control of the police, there is no 

conceivable way that any harm was caused to anyone. State v. Watkins, 3d Dist. 

No. 1-04-17, 2005-Ohio-2359, ¶ 29-35 (Rogers, J., concurring separately). 

Accordingly, the trial court’s erroneous finding was clearly unjustified and 

unsubstantiated. Despite this error, the trial court did make findings as to the 

Appellant’s criminal history, which was sufficient to permit the trial court to 

impose consecutive sentences. As such, the error was harmless. 
Case No. 13-12-27 

-28- 

{¶66} The second problem I have with the sentence imposed is the trial 

court’s imposition of a mandatory fine. There are two issues here. First, the trial 

court stated that it was imposing a mandatory fine in lieu of restitution. 

Restitution to whom and for what? Again, we have a controlled buy and there is 

no victim. See State v. Dietrich, 3d Dist. No. 1-10-76, 2011-Ohio-4347, ¶ 31 (law 

enforcement agency advancing own funds in a control drug buy is not a victim). 

Despite the trial court’s mischaracterization, the fine, as the trial court indicates in 

its sentencing entry, is permissible pursuant to R.C. 2925.42. 

{¶67} Secondly, there is no authority for the trial court to impose a 

mandatory fine for a fourth degree felony drug offense. While mandatory fines 

are authorized for first, second, and third degree felony drug offenses, R.C. 

2925.03(D)(1), there is no provision for them with respect to fourth degree felony 

drug offenses. The fact remains, however, that the trial court does have the 

authority to impose fines for fourth degree felony drug offenses, so the fine may 

stand, absent the classification as mandatory. R.C. 2925.42; R.C. 2929.18(A)(2), 

(B)(4).