[Cite as State v. Stephens , 2022

- Ohio

- 2944.]

COURT OF APPEALS

LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

:

: Hon. Earle E. Wise, Jr., P.J.

Plaintiff

- Appellee : Hon. Patricia A. Delaney, J.

: Hon. Craig R. Baldwin, J.

- vs

- :

: Case No. 21CA0068

:

ANTOINE STEPHENS :

:

:

Defendant

- Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of

Common Pleas, Case No. 20CR364

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: August 22, 2022

1538 Arlington Ave.

Columbus, OH 43212

- 2710 For Plaintiff

- Appellee: For Defendant

- Appellant:

CLIFFORD J. MURPHY THOMAS F. HAYES

ASST. LICKING CO. PROSECUTOR EMILY D. ANSTAETT

20 North Second St. 65 E. Livingston Ave.

4th Floor Columbus, OH 43215

Newark, OH 43055

PAUL GIORGIANNILicking County, Case No. 21CA0068 2

Delaney, J.

{¶1} Appellant Antoine Stephens appeals from the August 19, 2021 Judgment

Entry of the Licking County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following evidence is adduced from the record of appellant’s jury trial.

{¶3} Detective Greg Collins of the Licking County Sheriff’s Office testified about

the practices of the Central Ohio Drug Enforcement (CODE) Task Force, which is an

inter

- agency law enforcement effort that interdicts drug trafficking. Generally an

investigation starts with a tip or complaint; CODE members then perform surveillance of

a target location, observe traffic patterns, perform traffic stops of individuals leaving the

location, and generally gather information. Sometimes those traffic stops result in a “dirty

stop,” in which narcotics are found on an individual or in a vehicle. That individual is then

sometimes given the opportunity to “help themselves out” by providing CODE with

information about the location and/or purchasing narcotics as a confidential informant

(CI).

{¶4} Collins testified CIs are generally developed from individuals found with a

small amount of narcotics on them, which would be a lower

- level felony. If the person

has a “decent record,” meaning relatively few criminal convictions, law enforcement will

approach the prosecutor’s office on their behalf and a contract is created in which the CI

agrees to participate in “controlled buys” of narcotics in exchange for reduced charges.

Law enforcement and the CI become parties to the contract, which spells out what charge

the CI is facing and what the outcome of reducing the criminal charge might be.Licking County, Case No. 21CA0068 3

{¶5} The instant case arose on July 17, 2020 with the traffic stop of a CI known to

Detective Kyle Boerstler, the lead investigator on this case. The CI provided useful

information to Boerstler in the past. Notably, this CI would never appear at trial in the

instant case because he was murdered.

{¶6} On July 17, 2020, the CI identified appellant as a potential target for

investigation and claimed he could buy two pounds of methamphetamine from him. The

CI pulled up a Facebook photo of appellant and Boerstler confirmed the identification with

a photo from OLEG. Boerstler learned the CI knew appellant in prison, and the CI

revealed text messages detailing an extensive history of drug dealing transactions with

appellant.

{¶7} The goal of the ensuing investigation was to buy two pounds of

methamphetamine from appellant. Collins supervised three recorded telephone calls

between appellant and the CI discussing the transaction. The CI identified the person on

the phone during the calls as appellant. The CI also exchanged text messages with a

person identified on the CI’s phone as “Antoine Stephens, AKA Black.”

{¶8} The recorded phone calls established a plan in which appellant agreed to

deliver two pounds of methamphetamine to the CI at an apartment complex in Hebron,

with appellant planning to drive into an open garage to deliver the narcotics. Prior to the

delivery, the CI received several text messages stating appellant was on his way and was

“10 minutes out.”

{¶9} Appellant arrived at the garage driving a Toyota Rav 4. Unexpectedly, he

had a front seat passenger: Dwight Gales. Upon pulling into the garage, both appellant

and Gales were arrested. Per the CI’s information, Boerstler found the methamphetamineLicking County, Case No. 21CA0068 4

in an air vent box in the engine compartment of the vehicle. Appellant did not have

contraband on his person but did have $3,800 in cash. Gales had approximately 17

grams of cocaine in his pocket.

{¶10} Boerstler testified Gales told him the methamphetamine in the engine

compartment and the cocaine on his person belonged to him. Boerstler testified it was

appellant’s voice, not Gales’, that he heard on the recorded phone calls with the CI

planning the transaction. Three phones were found in the passenger compartment of the

vehicle. Forensic analysis was performed upon appellant’s suspected phone, and the

analysis indicated that phone exchanged text messages with the CI and made the follow

up phone calls in the moments leading up to the arrest.

{¶11} Boerstler testified that Gales was not mentioned in the conversations

leading up to the controlled buy and there was no evidence on the cell phone that Gales

was involved.

{¶12} The Director of the Central Ohio Regional Crime Lab testified that the bulk

amount methamphetamine is 3 grams and that “100 times bulk amount” is 300 grams or

more. The total amount of the substance found in the air compartment of the Toyota

weighed approximately 900 grams and was confirmed by testing to be

methamphetamine, a Schedule II substance.

{¶13} Appellant was charged by indictment with one count of aggravated drug

trafficking (methamphetamine) pursuant to R.C. 2925.03(A)(1)(C)(1)(f), a felony of the

first degree. The indictment contains two forfeiture specifications, the first for $3,894 in

cash pursuant to R.C. 2981.02(A)(1)(B) and R.C. 2941.1417(A), and the second for aLicking County, Case No. 21CA0068 5

gold ring, necklace, and pendant pursuant to R.C. 2981.02(A)(1)(B) and R.C.

2941.1417(A).

{¶14} Appellant entered a plea of not guilty and filed a motion to suppress

evidence seized from the vehicle; appellee responded with a memorandum in opposition.

The matter was scheduled for suppression hearing on January 11, 2021.

{¶15} On January 11, 2021, appellant filed a motion to disclose the identity of all

confidential informants. Appellee filed a response on January 20, 2021. Appellant filed

a written withdrawal of the motion to disclose confidential informants on February 3, 2021.

{¶16} On February 9, 2021, appellee filed a notice of intent to offer certain

evidence, to wit, appellant’s prior activities related to drug trafficking.

{¶17} On February 9, 2021, the trial court overruled appellant’s motion to

suppress by Judgment Entry.

{¶18} On August 17, 2021, appellant filed a motion in limine and moved the trial

court to exclude “investigatory data generated against him which is highly speculative in

nature” and includes information from a confidential informant who is now deceased.

{¶19} The matter proceeded to trial by jury and appellant was found guilty as

charged. The jury also made a special finding beyond a reasonable doubt that the amount

of methamphetamine involved in the offense “was equal to or exceeds one hundred time

bulk” ( sic

).

{¶20} The trial court sentenced appellant to serve an indefinite mandatory prison

term of 11 years to 16 1⁄2 years, to be followed by a mandatory period of 5 years of post

release control.

{¶21} Appellant now appeals from the judgment entry of conviction and sentence.Licking County, Case No. 21CA0068 6

{¶22} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶23} “I. THE TRIAL JUDGE ERRED BY FAILING TO INSTRUCT THE JURY

AS REQUIRED BY R.C. 2923.03(D).”

{¶24} “II. THE JURY HEARD PREJUDICIAL, INADMISSIBLE HEARSAY

STATEMENTS OF THE CONFIDENTIAL INFORMANT.”

{¶25} “III. ERRORS RELATED TO THE STATUTORY TERM ‘BULK AMOUNT

( sic ).’”

ANALYSIS

I.

{¶26} In his first assignment of error, appellant argues the trial court erred by

failing to instruct the jury as required by R.C. 2923.03(D). We disagree.

{¶27} R.C. 2923.03(D) applies to accomplice testimony and states:

If an alleged accomplice of the defendant testifies against the

defendant in a case in which the defendant is charged with complicity

in the commission of or an attempt to commit an offense, an attempt

to commit an offense, or an offense, the court, when it charges the

jury, shall state substantially the following:

“The testimony of an accomplice does not become

inadmissible because of his complicity, moral turpitude, or self

interest, but the admitted or claimed complicity of a witness may

affect his credibility and make his testimony subject to grave

suspicion, and require that it be weighed with great caution.Licking County, Case No. 21CA0068 7

It is for you, as jurors, in the light of all the facts presented to

you from the witness stand, to evaluate such testimony and to

determine its quality and worth or its lack of quality and worth.”

{¶28} In the instant case, appellant alleges the trial court should have given the

accomplice

- testimony instruction because Boerstler testified Gales told him the

methamphetamine was his; Gales was also arrested for the methamphetamine in the

engine compartment and for the cocaine on his person.

{¶29} We note Boerstler’s testimony about Gales’ admission was elicited by

defense trial counsel. Gales’ claim was favorable to appellant’s defense at trial because

he claimed the methamphetamine wasn’t his. On appeal, though, he argues Gales’

admission via Boerstler was damaging to the defense because the statement helped

appellee establish a case of complicity against appellant.

{¶30} Appellee responds this claim is invited error; upon eliciting the hearsay

statement from Boerstler, appellant did not need to call Gales as a potentially problematic

trial witness, even though Gales was disclosed as a defense witness. Obtaining the

statement from Boerstler instead brought in the helpful evidence without the problems

Gales could have caused.

{¶31} Further, Gales did not take the stand and testify against appellant;

therefore, appellee argues, R.C. 2923.03(D) is inapplicable by the plain language of the

statute because there is no “accomplice testimony.” Appellant responds the instruction

should also apply to similarly

- questionable hearsay statements of an accomplice that

come in through another witness.Licking County, Case No. 21CA0068 8

{¶32} We need not reach the issue of whether the statute applies to hearsay

statements, however, because we find no plain error. Appellant did not object to the jury

instructions, therefore waiving all but plain error. Crim.R. 30(A); State v. Lloyd

, 5th Dist.

Licking No. 2020 CA 00074, 2021

- Ohio

- 2420, ¶ 42, citing State v. Williford

, 49 Ohio St.3d

247, 251, 551 N.E.2d 1279 (1990).

{¶33} Appellant did not request the accomplice

- testimony instruction, and in the

context of the entire trial, it would have been illogical for appellant to do so. Appellant

would have effectively argued both that the methamphetamine was Gales’ but Gales’

admission of ownership was not credible.

{¶34} We apply the doctrine of plain error cautiously and only under exceptional

circumstances to prevent a manifest miscarriage of justice. State v. Rohaley

, 5th Dist.

Stark No. 1998CA00092, 1999 WL 4505, *4. In that regard, “[T]he test for plain error is

stringent.” State v. Ellison

, 2017

- Ohio

- 284, 81 N.E.3d 853, ¶ 27 (4th Dist.). “To prevail

under this standard, the defendant must establish that an error occurred, it was obvious,

and it affected his or her substantial rights.” State v. Spaulding

, 151 Ohio St.3d 378, 2016

-

Ohio

- 8126, 89 N.E.3d 554, ¶ 64. An error affects substantial rights only if it changes the

outcome of the trial. Id.

{¶35} Appellant has the burden to establish the existence of plain error, and

therefore must establish that the outcome of the trial would clearly have been different

but for the trial court's allegedly improper actions. State v. Waddell

, 75 Ohio St.3d 163,

166, 661 N.E.2d 1043 (1996).

{¶36} In the instant case, appellant does not explain why the outcome of the trial

would have been different if the accomplice

- testimony instruction would had been given.Licking County, Case No. 21CA0068 9

The jury convicted appellant, indicating it did not find Gales’ claim of ownership credible.

An instruction casting doubt on that statement would not have changed this result.

Appellant’s best defense at trial was likely the one he used

— the narcotics weren’t his. It

is impossible to discern, and appellant does not reveal, how he would have been acquitted

if this instruction had been given.

{¶37} We have reviewed the requested instruction in its entirety and in the context

of the instructions as a whole, and find the trial court did not commit plain error in not

providing an instruction pursuant to R.C. 2923.03(D). This omission, even if considered

an error, did not seriously affect the fairness, integrity or public reputation of judicial

proceedings, did not have an effect on the outcome of the trial, and was not a manifest

miscarriage of justice. State v. Lloyd

, supra, 2021

- Ohio

- 2420 at ¶ 47.

{¶38} Appellant’s first assignment of error is overruled.

II.

{¶39} In his second assignment of error, appellant weaves together a number of

arguments. He asserts the statements of the deceased CI repeated by other witnesses

were inadmissible hearsay which the trial court erred in admitting, and defense trial

counsel’s failure to object to the hearsay is ineffective assistance of counsel. We

disagree.

{¶40} The Confrontation Clause of the Sixth Amendment states, “In all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses

against him.” Out

- of

- court statements by a witness which are testimonial in nature are

barred, under the Confrontation Clause, unless the witness is unavailable and the

defendant had a prior opportunity to cross

- examine the witness. Crawford v. Washington

,Licking County, Case No. 21CA0068 10

541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). If testimony qualifies as

nonhearsay, it does not implicate the Confrontation Clause. Id. at 59, citing Tennessee v.

Street

, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985); State v. Maxwell, 139

Ohio St. 3d 12, 9 N.E.3d 930, 2014

- Ohio

- 1019, ¶131. Evid. R. 801(C) defines hearsay as

“a statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.” For clarity, we will address

each piece of challenged evidence separately.

Collins testifies CI identified appellant as caller

{¶41} First, appellant points to Collins’ testimony that the CI identified the caller

during the series of “controlled buy” phone calls as appellant. Appellant cites the following

exchange:

* * * *.

Q: Detective Collins, who were those two voices?

A: The confidential informant and what I believed to be

Antoine Stephens. (Emphasis added).

Q: Based on what the confidential informant

—

A: That is correct.

* * * *.

T. 124

- 125.

{¶42} In the context of Collins’ testimony at this point, he is not identifying

appellant as the other party to the call. He is explaining why he set up a controlled buy

with appellant as the target: because he believed appellant to be the person involved in

the pending drug transaction.Licking County, Case No. 21CA0068 11

{¶43} It is well

- established that extrajudicial statements made by an out

- of

- court

declarant are properly admissible to explain the actions of a witness to whom the

statement was directed. State v. Thomas

, 61 Ohio St.2d 223, 232, 400 N.E.2d 401

(1980). The testimony of a police officer about actions undertaken as a result of

conversations during a criminal investigation are not considered hearsay and are properly

admitted by the trial court. State v. Bound

, 5th Dist. Guernsey No. 03 CA 21, 2004

- Ohio

6530, ¶ 34. Collins’ statement here was admitted without error.

Boerstler testifies CI said he didn’t know Gales

{¶44} Next, appellant points to Boerstler’s testimony that he contacted the CI after

the arrest to ask if the CI knew anything about Gales, but the CI didn’t know Gales.

Appellant argues this statement goes to the truth of the matter asserted because it casts

doubt on his defense that the methamphetamine belonged to Gales. In other words, the

CI’s statement that he didn’t know Gales made it unlikely Gales was the person on the

other end of the phone calls and text messages setting up drug transactions.

{¶45} Defense counsel did not object to the statement, thereby waiving all but

plain error. State v. West

, 2017

- Ohio

- 4055, 91 N.E.3d 365, ¶ 39 (5th Dist.). Pursuant to

Crim.R. 52(B), a plain error or defect affecting substantial rights may be noticed if not

brought to the attention of the court. State v. Long, 53 Ohio St.2d 91, 94, 7 O.O.3d 178,

372 N.E.2d 804 (1978). Plain error is to be invoked only in exceptional circumstances to

avoid a miscarriage of justice. (Citation omitted.) Id

. In order for Crim.R. 52(B) to apply,

a reviewing court must find that (1) there was an error, i.e., a deviation from a legal rule;

(2) that the error was plain, i.e., that there was an “obvious” defect in the trial proceedings;Licking County, Case No. 21CA0068 12

and (3) that the error affected “substantial rights,” i.e., affected the outcome of the trial.

(Citations omitted.) State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶46} The statement that the CI did not know Gales is hearsay, but the question

on plain error review is whether its admission affected the outcome of the trial, and we

find overwhelmingly that it did not. The jury had conflicting evidence before it about the

level of Gales’ involvement and appellant has not convinced us that this comment had

any effect on the trial outcome. We find the above statement did not affect appellant's

substantial rights and therefore does not constitute plain error, even though it did not

qualify under any rule of evidence. State v. Hill

, 5th Dist. Fairfield No. 98CA67, 2002 WL

109297, *4 (Jan. 17, 2002).

{¶47} Appellant further argues that defense trial counsel’s failure to object to the

statement about Gales constitutes ineffective assistance. A claim of ineffective

assistance of counsel requires a two

- prong analysis. The first inquiry is whether counsel's

performance fell below an objective standard of reasonable representation involving a

substantial violation of any of defense counsel's essential duties to appellant. The second

prong is whether the appellant was prejudiced by counsel's ineffectiveness. Strickland v.

Washington

, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley

, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989). In order to warrant a finding that trial counsel

was ineffective, the petitioner must meet both the deficient performance and prejudice

prongs of Strickland and Bradley. Knowles v. Mirzayance

, 556 U.S. 111, 129 S.Ct. 1411,

1419, 173 L.Ed.2d 251 (2009).

{¶48} The United States Supreme Court discussed the prejudice prong of the

Strickland test:Licking County, Case No. 21CA0068 13

With respect to prejudice, a challenger must demonstrate “a

reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that

the errors had some conceivable effect on the outcome of the

proceeding.” Id

., at 693, 104 S.Ct. 2052. Counsel's errors must be

“so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id

., at 687, 104 S.Ct. 2052.

{¶49} The United States Supreme Court and the Ohio Supreme Court have held

a reviewing court “need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Bradley, 42 Ohio St.3d at 143, 538 N.E.2d 373, quoting Strickland, 466 U.S.

at 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶50} Debatable strategic and tactical decisions may not form the basis of a claim

for ineffective assistance of counsel. State v. Phillips

, 74 Ohio St.3d 72, 85, 656 N.E.2d

643 (1995). Even if the wisdom of an approach is questionable, “debatable trial tactics”

do not constitute ineffective assistance of counsel. Id

.

{¶51} Appellant argues defense trial counsel’s failure to object to the statement

regarding Gales is ineffective assistance. Upon review we find there is no reasonable

probability that the outcome of the trial would have been different had counsel objected

to the introduction of this statement. “Trial counsel is not ineffective for choosing, for

tactical reasons, not to pursue every possible trial objection.” State v. West

, 5th Dist. No.Licking County, Case No. 21CA0068 14

16 CA 11, 2017

- Ohio

- 4055, 91 N.E.3d 365, ¶ 102, citing State v. Raypole

, 12th Dist.

Fayette No. CA2014

- 05

- 009, 2015

- Ohio

- 827, ¶ 24. This is because “[o]bjections tend to

disrupt the flow of a trial and are considered technical and bothersome by a jury.” State

v. Steele

, 12th Dist. Butler No. CA2003

- 11

- 276, 2005

- Ohio

- 943, ¶ 100, citing State v. Hill

,

75 Ohio St.3d 195, 211, 661 N.E.2d 1068 (1996). Especially with a statement as fleeting

as this one, defense trial counsel may not have wanted to call attention to the CI’s

knowledge of Gales, or lack thereof.

Boerstler testifies CI identified appellant as party to text messages

{¶52} Third, appellant points to Boerstler’s testimony that the CI showed him a

series of text messages in which the CI identified the other party in the messages as

appellant. This statement was corroborated by appellee’s forensic evidence linking the

phone at issue to the calls and text messages between appellant and the CI. Boerstler’s

testimony was not met with any objection, but in light of the cumulative nature of the

evidence regarding the party texting with the CI, we find admission of the testimony was

not plain error. We further find admission of Boerstler’s statements that the CI told him

the texts were from appellant did not affect the outcome of the trial such that it would have

been different if counsel had objected, therefore this is not ineffective assistance of

counsel.

Boerstler’s testimony that CI claimed to buy a pound of methamphetamine from

appellant

{¶53} Fourth, appellant points to Boerstler’s testimony that the CI initially told him

he was buying a pound of narcotics at a time from appellant when he identified appellant

as a potential target for investigation. The jury was provided with a limiting instruction as

to evidence of other drug transactions or criminal behavior. T. 363. The jury is presumedLicking County, Case No. 21CA0068 15

to follow the instructions of the trial court. Pang v. Minch

, 53 Ohio St.3d 186, 187, 559

N.E.2d 1313 (1990), paragraph four of the syllabus. Appellant has not pointed to any

evidence in the record that the jury failed to do so in this case. The statement also

explains Boerstler’s actions in undertaking an investigation of appellant. Admission of the

statement is not plain error and failure to object to the statement is not ineffective

assistance of counsel.

Boerstler testified Gales identified appellant’s phone

{¶54} Fifth, appellant asserts the following error: “Detective Boerstler testified to

the informant’s statement identifying a phone in the vehicle as belonging to [appellant.]”

Upon our review of the cited portion of the record, Boerstler stated it was Gales who

identified which phone belonged to which occupant of the vehicle. We note the statement

was elicited by defense trial counsel. Again, in light of the cumulative evidence of the

phone calls, texts, and identity of the speaker, we find no plain error regarding admission

of this fleeting statement. We also find this statement had no effect on the outcome of

the case and was therefore not ineffective assistance of counsel.

{¶55} Appellant’s second assignment of error is overruled.

III.

{¶56} In his third assignment of error, appellant argues the trial court erred in its

jury instruction regarding the bulk amount of methamphetamine. We disagree.

{¶57} Jury instructions are within the sound discretion of the trial court, and the

court's decision will not be disturbed on appeal absent an abuse of discretion. State v.

DeMastry

, 155 Ohio App.3d 110, 2003

– Ohio

– 5588, 799 N.E.2d 229, ¶ 54 (5th Dist.),

citing State v. Musgrave

, 5th Dist. Knox No. 98CA10, 2000 WL 502688 (April 24, 2000),Licking County, Case No. 21CA0068 16

and State v. Martens

, 90 Ohio App.3d 338, 629 N.E.2d 462 (3rd Dist.1993). Jury

instructions must be reviewed as a whole. State v. Coleman

, 37 Ohio St.3d 286, 525

N.E.2d 792 (1988).

{¶58} In the instant case, appellant argues the trial court failed to instruct the jury

upon an element of the offense, to wit, the meaning of the term “bulk amount.” Appellant

was charged with one count of aggravated drug trafficking (methamphetamine) pursuant

to R.C. 2925.03(A)(1)(C)(1)(f), which states:

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

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

substance analog;

* * * *.

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

of the following:

(1) If the drug involved in the violation is any compound,

mixture, preparation, or substance included in schedule I or schedule

II, with the exception of marihuana, cocaine, L.S.D., heroin, any

fentanyl

- related compound, hashish, and any controlled substance

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

aggravated trafficking in drugs. The penalty for the offense shall be

determined as follows:

* * * *.

(f) If the amount of the drug involved equals or exceeds one

hundred times the bulk amount and regardless of whether theLicking County, Case No. 21CA0068 17

offense was committed in the vicinity of a school, in the vicinity of a

juvenile, or in the vicinity of a substance addiction services provider

or a recovering addict, aggravated trafficking in drugs is a felony of

the first degree, the offender is a major drug offender, and the court

shall impose as a mandatory prison term a maximum first degree

felony mandatory prison term.

* * * *.

{¶59} The jury in this case was instructed as follows, in pertinent part:

* * * *.

The Defendant is charged with aggravated trafficking in drugs,

methamphetamine, in violation of Ohio Revised Code Section

2925.03(A)(1)(C)(1)(f). Before you can find the Defendant guilty, you

must find beyond a reasonable doubt that on or about the 17 th day of

July, 2020, in Licking County, Ohio, the Defendant knowingly sold or

offered to sell methamphetamine, a Schedule II controlled

substance, and the amount of the drug equals or exceeds 100 times

bulk.

* * * *.

You are instructed that methamphetamine is a Schedule II

substance.

If you find the Defendant guilty beyond a reasonable doubt on

this count, you will further find beyond a reasonable doubt that theLicking County, Case No. 21CA0068 18

amount of the drug was or was not equal to or exceeded 100 times

the bulk amount.

* * * *.

T. 365, 367.

{¶60} Appellee presented the testimony and lab report prepared by Mark Hiatt,

the regional director of the Central Ohio Regional Crime Lab, who tested the substance

recovered from the engine compartment of the vehicle. The substance was found to

weigh, in total, approximately 900 grams and tested as methamphetamine, a Schedule II

substance in Ohio. T. 240. Hiatt further testified that the bulk amount for

methamphetamine is 3 grams, thus this amount is almost 300 times bulk. T. 241.

{¶61} Appellant argues the trial court was required to instruct the jury upon the

meaning of the term “bulk amount,” which appellant asserts “is a technical term of art

defined by statute, with a meaning that varies depending upon the facts.” Brief, 25. This

contradictory position is one we have rejected. While appellant argues that the court was

required to have testimony or other proof as to the definition of “bulk amount,” we

disagree. See, State v. Morales

, 5th Dist. Licking No. 2004 CA 68, 2005

- Ohio

- 4714, ¶ 57.

Methamphetamine is a Schedule II drug by statute. The bulk amount of a controlled

substance containing any amount of a schedule II stimulant is three grams. R.C.

2925.01(D)(1)(g). Hiatt testified as to the amount of methamphetamine, approximately

900 grams, an amount in excess of 100 times bulk. In Morales, we noted the following

regarding statutory bulk amounts:

As noted by the court in State v. Feltner [2 nd Dist. Miami No.

88

- CA

- 34, 1989 WL 94550 (Aug. 16, 1989)]: “Crim.R. 27 adopts forLicking County, Case No. 21CA0068 19

criminal proceedings the judicial notice provisions of Civ.R. 44.1. The

rule requires the court to take full judicial notice of the statutory law

of Ohio and to present that law to the jury without separate proof.

The jury is required to accept the court's instruction.

“No additional proof beyond the terms of the statute was

required for the court's determination for the jury of the meaning of

“bulk amount”.... Testimonial proof of the weight and content of the

material offered for sale by Feltner then permitted the jury to

conclude that the terms of the statute were met.” Id at 5.

Likewise, in the case sub judice, testimony from [crime lab

personnel] as to the amount of methamphetamine in each baggie

permitted the jury to conclude that appellant possessed 100 times

the bulk amount of methamphetamine. No additional proof was

required. Based on the jury's conclusion, the trial court correctly

sentenced appellant to prison for possessing 100 times the bulk

amount.

State v. Morales

, 5th Dist. Licking No. 2004 CA 68, 2005

-

Ohio

- 4714, ¶ 57

- 60.

{¶62} The trial court was not required to further define the term “bulk amount” for

the jury. Moreover, neither party objected to the jury instructions in the instant case.

Crim.R. 30 provides that a party must object to an omission in the court's instructions to

the jury in order to preserve the error for appeal. “A criminal defendant has a right to

expect that the trial court will give complete jury instructions on all issues raised by theLicking County, Case No. 21CA0068 20

evidence.” State v. Williford

, 49 Ohio St.3d 247, 251

– 252, 551 N.E.2d 1279 (1990).

(Citations omitted). If an objection is not made in accordance with Crim.R. 30, or the

defendant fails to submit a required written jury instruction, Crim.R. 52(B), the plain error

doctrine, applies. State v. Dorsey

, 5th Dist. Stark No. 2014CA00217, 2015

– Ohio

– 4659,

¶ 61, citing Williford

, supra

, and State v. Gideons

, 52 Ohio App.2d 70, 368 N.E.2d 67(8th

Dist.1977).

{¶63} Appellant concedes he did not request orally or in writing the bulk

- amount

instruction he now contends should have been given. Accordingly, our review of the

alleged error must proceed under the plain error rule of Crim. R. 52(B). Dorsey

, supra, at

¶ 64; State v. Mowls

, 5th Dist. Stark No. 2017CA00019, 2017

- Ohio

- 8712, ¶ 22.

{¶64} Failure to properly instruct a jury is not in most instances structural error,

thus the harmless

- error rule of Chapman v. California

, 386 U.S. 18, 87 S.Ct. 824, 17

L.Ed.2d 705 (1967) applies; failure to properly instruct the jury does not necessarily

render a trial fundamentally unfair or an unreliable vehicle for determining guilt or

innocence. State v. Bleigh

, 5th Dist. Delaware No. 09

- CAA

- 03

- 0031, 2010

- Ohio

- 1182,

2010 WL 1076253, ¶ 119, citing Neder v. United States

, 527 U.S. 1, 119 S.Ct. 1827, 144

L.Ed.2d 35 (1999).

{¶65} Appellant does not explain how the outcome of the trial would have been

different if such an instruction had been given. State v. Carpenter

, 5th Dist. Licking No.

20

- CA

- 11, 2021

- Ohio

- 821, ¶ 33.

{¶66} Appellant’s third assignment of error is overruled.Licking County, Case No. 21CA0068 21

CONCLUSION

{¶67} Appellant’s three assignments of error are overruled and the judgment of

the Licking County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, Earle, P.J. and

Baldwin, J., concur.