[Cite as State v. Reed , 2020-Ohio-138.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

State of Ohio Court of Appeals Nos. E-18-017 E-18-018 Appellee Trial Court Nos. 2015-CR-199 v. 2016-CR-224

Patrick Reed DECISION AND JUDGMENT Appellant Decided: January 17, 2020

* * * * * Kevin J. Baxter, Erie County Prosecuting Attorney, and Anthony A. Battista III, Assistant Prosecuting Attorney, for appellee. Derek A. Farmer, for appellant.

* * * * * PIETRYKOWSKI, J. {¶ 1} This consolidated appeal is before the court following the Marc h 13, 2018 judgments of the Erie County Court of Common Pleas which, follo wing a jury trial convicting appellant, Patrick Reed, of multiple counts involvin g drug trafficking,2. sentenced him to a total of 27 years and 3 months of imprisonme nt. For the reasons that follow, we affirm, in part, and reverse, in part. {¶ 2} On June 10, 2015, in case No. 2015-CR-199, appellant was indict ed on two counts of trafficking in a counterfeit controlled substance, tr afficking in heroin, possession of heroin, possession of cocaine, preparation of her oin for sale, preparation of cocaine for sale, having a weapon while under a disability, tam pering with evidence, and failure to verify. Appellant was indicted in case No. 2016-CR- 224 on June 9, 2016, and charged with complicity to commit trafficking in heroin, posses sion of heroin, preparation of heroin for sale, possession of cocaine, aggravat ed possession of drugs, and two counts of having a weapon while under a disability, {¶ 3} Motions to suppress were filed in both cases. Appellant reques ted that the court suppress all evidence seized by the search warrant execut ed in each case. The probable cause supporting both warrants was based, in part, on controlled drug purchases by various confidential informants (“CI”). Appellant argued th at the CIs which formed the basis for the first probable cause affidavit lacked reliabi lity, that the police used the CIs to “lure” appellant into criminal activity, and that there was no showing of necessity to justify a night search. Appellant concluded that no “good-f aith exception” to the exclusionary rule applied. As to the second affidavit and warr ant, appellant argued that much of the information was “stale” and could not support a fin ding of probable cause. Appellant again argued that the CIs’ reliability and veracity h ad not been tested. A3. hearing on the motion filed in case No. 2015-CR-199 was held on February 11, 2016; the court denied the motion. A hearing on the motion to suppress f iled in case No. 2016-CR-224 was held on October 31 and December 15, 2016. Agai n, the court denied

the motion. {¶ 4} On August 3, 2016, the state filed a motion to join the cases f or trial. Appellant opposed the motion and renewed his objection at trial . The cases were ultimately joined for trial. 1 {¶ 5} The trial in this matter commenced on January 23, 2018. The st ate presented the testimony of several officers regarding multiple controlled drug purchases involving appellant. Officers testified about the general protocol in co nducting controlled drug buys. This included making sure the CI was not intoxicated and making sure the CI did not have any drugs, money, or contraband on their person or in their vehicle if it would

be used to facilitate the transaction. The transaction was rec orded by a device worn by the CI and the money used was photographed. Following the buy, the CI was again

searched. {¶ 6} Sandusky Police Department Officer Adam West provided much of t he testimony regarding the first three controlled drug purchases. The first controlled buy took place on October 14, 2014, and involved CI-1. CI-1 called appellant and arranged a heroin purchase. They met in front of appellant’s home on Town send Street in Sandusky,

1 The state’s motion to sever Count 10 of the indictment in case No. 2015-CR-199, failure to verify sexual offender status, was granted.4. Ohio. The material purchased was tested and no controlled subs tance was detected. An audio recording of the transaction was played for the jury. {¶ 7} A second controlled drug purchase involving CI-1 was completed on November 3, 2014. Sandusky Police Detective Jonathon Huffman t estified that they met and searched CI-1, set up the digital recorder, and provided hi m with the photocopied buy money. The CI then walked to appellant’s home on Townsend Stre et. Officer Huffman stated that CI-1 met appellant on the sidewalk in front of the residence; money and purported drugs were exchanged. Ultimately, the substance reco vered was determined

not to be a controlled substance. Detective Huffman also testi fied as to the weapons seized pursuant to the search warrants and their operability. {¶ 8} Officer West testified that CI-2, who was cooperating with poli ce in lieu of a criminal charge, indicated that appellant was an individual fro m whom she had purchased drugs. On December 8, 2014, CI-2 telephoned an individual she called “Bunny” to arrange a heroin purchase. A recording of the call was played for the jury. CI-2 then drove her vehicle to appellant’s residence on Townsend, entered the residence, returned

to her vehicle and drove to meet officers. The substance CI-2 purchased was tested and found to contain .11 grams of heroin. A recording of the trans action was played for the jury. {¶ 9} Based on these transactions, police applied for and were grante d a search warrant which was executed on December 11, 2014, and included a ppellant’s person and his residence on Townsend Street. Prior to entering the home, police conducted5. surveillance and observed several cars parked nearby. Individu als would exit a vehicle, enter the targeted location, and leave within one to two minute s. {¶ 10} Officers then knocked and announced the search warrant; upon ob serving individuals trying to leave through the back of the residence, they used a battering ram to breach the door. Appellant was observed running toward the rea r of the house; he threw plastic bags containing unknown substances and money under the dining room table. Multiple cell phones and a digital scale were recovered from th e house. Appellant’s social security card and a rifle were recovered from underneath a bed; in the same room men’s clothing, personal photographs, money, and paperwork with appellant’s name

were found. The recovered substances were tested and were iden tified as heroin and

cocaine. {¶ 11} Sandusky Police Officer Michael Schock testified that during th e execution

of the warrant he searched the bedroom on the south side of the residence. He discovered a rifle under the bed. Appellant informed the officer that the rifle was a British sniper rifle. Photographs of the seized items were admitted into evid ence. {¶ 12} The second round of controlled drug buys commenced in 2016. Th e March 8, 2016 controlled buy involved the Perkins Police Depart ment. Officer Joe Rotuno testified that CI-5 was cooperating with the controlled buy in order to avoid prosecution on a drug possession charge. CI-5 had been used pr eviously in controlled drug transactions. CI-5 indicated that she could purchase drug s through another female who would get the drugs from “Bunny.”6. {¶ 13} After the proper protocols and procedures, CI-5 was followed in her vehicle to pick up the female and they drove to appellant’s new address on Larchmont Drive in Sandusky, Ohio. The female went into the residence, l eft the residence and got back into CI-5’s vehicle. Detective Rotuno stated that they ap proached the vehicle at a drive-through carry-out; the female was found with drugs in her crotch area. They were tested and determined to be .76 grams of heroin. The digital r ecording of the transaction was played for the jury. {¶ 14} Detective Rotuno then testified regarding the execution of the search warrant at the Larchmont address on March 15, 2016. Rotuno sta ted that on that date they were conducting surveillance in aid of another agency’s co ntrolled buy at the Larchmont address. Following the transaction, multiple officer s entered and cleared the residence. During the initial search officers found a receipt for a nearby motel; they proceeded to the motel to see if they could locate appellant. The motel clerk confirmed that appellant was staying at the motel. Eventually, appellant exited the room and he was placed under arrest based upon the discovery of at least one fi rearm at his residence. Three cell phones and cash were found on appellant. {¶ 15} Detective Ron Brotherton, a narcotics detective with the Sandus ky Police Department, testified regarding the March 8, 2016 controlled dr ug buy involving appellant. Brotherton stated that he was contacted by Officer Rotuno to assist with surveillance. Following the transaction, Officer Brotherton st ated that he participated in7. the “buy bust” involving CI-5 and the middleman who had placed the narcotics down the front of her pants. {¶ 16} Officer Brotherton testified that he was the affiant on the sea rch warrant that was issued and executed on March 15, 2016. On that date, prior to the search, CI-5 purchased drugs from appellant outside of his residence on Larc hmont; the CI-5 indicated that appellant then returned to the residence. Brotherton stat ed that two individuals in a green Ford Ranger were seen leaving the residence. {¶ 17} Similar to Officer Rotuno’s testimony, Officer Brotherton state d that they then executed the search warrant by a knock-and-announce at the back door. Appellant’s mother was in the residence. Brotherton stated that they quick ly discovered a hotel receipt; officers proceeded to the hotel in an attempt to locat e appellant since his person was included in the search warrant. Appellant was located and transported back to the residence so he could be present for the remainder of the searc h. Two firearms were found in a bedroom. Appellant’s juvenile son, who also resided in the residence, came home during the search. {¶ 18} Officer Brotherton identified several photographs taken during the search which included photographs of two firearms and ammunition, a di gital scale, clothing that was appellant’s size, mail addressed to appellant, multipl e cell phones, and nearly $4,000 cash all located in the southeast bedroom. An additiona l digital scale was found in the kitchen. A coffee mug containing suspected narcotics wa s found in the roof gutter; police were tipped that appellant hid drugs in that location.8. {¶ 19} Officer Brotherton testified that none of the money found was m arked buy money. He stated that drug traffickers know that the money is marked and will try and use or exchange it was quickly as possible. Officer Brotherton further testified that appellant was released from the Erie County Jail and rearrested two days later at the

Larchmont address. {¶ 20} Appellant cross-examined the officers involved in the controlle d buys and

execution of the search warrants. Officer Adam West admitted t hat he did not know who, in addition to appellant, lived at the home on Townsend. He stated that he had never been in the home prior to the execution of the search war rant and did not know which bedroom was appellant’s. Officer West clarified that he concluded the room was appellant’s because men’s clothing was found with his identific ation in it. West was questioned about testimony in the prior suppression hearing whi ch conflicted with his trial testimony. Officer West agreed that he previously stated that he did not observe a hand-to-hand transaction between appellant and CI-1. West admi tted that a confidential informant could hide drugs and/or money on their person and fab ricate evidence. West also admitted that he was not present when CI-1 purportedly cal led appellant to arrange the drug transaction. As to CI-2, Officer West was questioned as to the thoroughness of the search of her person and vehicle. {¶ 21} Officer Rotuno was questioned about the execution of the search warrant;

he admitted he had never been inside the Larchmont location and did not personally9. know who owned the house. Rotuno also admitted that he had nev er seen appellant sell drugs to anyone. {¶ 22} Officer Rotuno was also questioned about the March 8, 2016 cont rolled drug buy involving CI-5. Rotuno admitted that he did not have continuous visual surveillance of either the CI or the female go-between who actu ally purchased the drugs. {¶ 23} Officer Ron Brotherton admitted that there was no scientific ev idence to confirm that appellant had physically handled any of the items seized during the March 15, 2016 execution of the search warrant. Brotherton also admi tted that he did not know who slept in the southeast bedroom the night before the search. {¶ 24} Sandusky Police Officer Lucas Rospert testified regarding the b ody camera video he wore during the execution of the March 15, 2016 search warrant. The video was played for the jury. Officer Rospert admitted that when police entered the back door they did not see what was occurring in the front of the house. {¶ 25} CI-2 testified that in 2014, she frequently purchased drugs fro m appellant, known by the nickname “Bunny.” She stated that in December 201 4, she was working with police in order to avoid a possession of drugs charge. On December 8, 2014, she contacted appellant to arrange a drug purchase; she drove her v ehicle to the Townsend Street address, parked and entered the home. Inside, there was a child under the age of five. CI-2 stated that she gave appellant the money and he gav e her the drugs. She then

drove in her vehicle to meet the detectives.10. {¶ 26} During cross-examination, CI-2 admitted that at the time of the controlled buy she was addicted to heroin. She would lie, steal and prost itute herself in order to obtain heroin. She also admitted that she would have done just about anything to stay out of jail and keep using heroin and that she had used heroin on t he date of the controlled buy. {¶ 27} CI-4 testified that she had known appellant, nicknamed Bunny, s ince 2007, and had purchased drugs from him prior to her imprisonment in 2 009. In March 2016, she began working with police because she had “charges” and had a vendetta against drug-supplier Candace Wilson. On March 8, 2016, CI-4 met with police to set up the buy and then drove to pick up Wilson. Wilson directed her to a dro p off point; she then exited the vehicle and began walking. According to CI-4, Wilso n was concerned that she was being followed. When she returned to the vehicle she had h eroin for the CI. On the way back to Wilson’s apartment, Wilson had the CI stop at a dri ve-thru. Police intercepted them and retrieved the drugs from Wilson’s pants. During cross-examination, CI-4 admitted that Wilson had not been searched for drugs. {¶ 28} Bureau of Criminal Investigation (“BCI”) forensic scientist Sam uel Fortener initially acknowledged that he was disciplined by the BCI for failing to follow the proper testing procedures. Fortener agreed that none of th e potentially affected samples were related to appellant’s case and that he regained t he full confidence of the

BCI.11. {¶ 29} Fortener testified that he received a sample of a substance rec overed from the December 8, 2014 controlled buy. The results were that it was not a controlled substance. Fortener also tested substances found in bags durin g the execution of the December 11, 2014 search warrant at appellant’s residence on To wnsend. One of the bags tested positive for 4.29 grams of heroin, and one for 16.7 0 grams of cocaine. {¶ 30} As to the 2016 test results stemming from controlled buys and t he execution of the second search warrant, Fortener testified that the substances were tested by another scientist and that he retested them so he could prov ide testimony in court. The substance was determined to be .76 grams of heroin. Several su bstances were recovered following the execution of the search warrant. Those tested ca me back as a digital scale with heroin residue, a digital scale with traces of heroin and THC, four baggies containing amounts of heroin ranging from 27.07 grams to .13 gr ams, and one baggie with less than .1 grams of cocaine. Fentanyl was also found in one of the heroin samples. The original BCI tester, Sara Tipton, also testified as to the results. {¶ 31} Larry Rentz, also from the BCI, testified that he analyzed a sa mple collected on October 20, 2014, and that no controlled substance was found. Rentz also analyzed a sample collected on November 3, 2014, which also con tained no controlled

substance. {¶ 32} Sandusky Police Evidence Officer Matthew Dunn testified that he documents the chain of custody of all the evidence that comes t hrough the department.12. Each piece is issued a bar code or a tag number. The evidence room is locked with

limited access. {¶ 33} Appellant stipulated to the prior felony convictions rendering him unable to possess a firearm. The state then rested. Appellant made a Cr im.R. 29 motion for acquittal which was denied. {¶ 34} Appellant presented the testimony of Sandusky Police Chief John Orzech who explained the department’s confidential informant policy. The written policy, seven to nine pages long, included sections on what informants are pr ohibited from doing while working with police. Chief Orzech agreed that the policy prohi bits informants from violating any laws while assisting police; this would include t he use of narcotics. Orzech stated that an officer would have to have knowledge of the usag e to terminate the informant relationship. Chief Orzech agreed that informants we re not to be on probation or parole. {¶ 35} Monique W. testified that on March 15, 2016, she resided at the residence on Larchmont Drive which was the subject of the search. Moniqu e stated that she lived there with appellant’s mother, his sister and her children, and Detaureis Reed. Monique stated that appellant “came through” but that he did not live t here. Monique also testified that the Glock and Ruger handguns recovered during the search w ere hers and that she had a concealed carry permit. Monique testified to a trial exh ibit depicting her cell phone’s “notes” application in which she had created a note, pr edating the March 2016 search, with the make and serial number of the handguns.13. {¶ 36} During cross-examination, Monique admitted that she never conta cted police to ask about her guns. She further admitted that when c ontacted by police as a potential trial witness she never inquired about the guns. Mon ique stated that she did not leave the guns the way they were found; unsecured, fully loaded , and under a bed. Monique then backtracked and said that she did store them that way but that it was safe

because there were no children in the room. {¶ 37} Monique testified that she had previously lived at the Townsend Street address with many of the same individuals. She agreed that app ellant stayed there many

times. {¶ 38} Following deliberations, the jury found appellant guilty on all counts tried in both cases. Appellant was sentenced on March 13, 2018, and this appeal followed. {¶ 39} Appellant now presents five assignments of error for our consid eration: Assignment of Error No. I: The trial court erred in not suppre ssing the results of the searches of the residence and person of Mr. Reed in Case No. 15-CR-199, as the evidence from these searches was obtained in violation of Art. I, Sec. 14 of the Ohio Constitution, the Four th Amendment to the United States Constitution and Crim.R. 41(C)(1). Assignment of Error No. II: The trial court erred in not suppr essing the results of the searches of Larchmont Drive and person of Mr . Reed in Case No. 16-CR-224, as the evidence from these searches was obt ained in14. violation of Art. I, Sec. 14 of the Ohio Constitution, the Four th Amendment to the United States Constitution and Crim.R. 41(C)(1). Assignment of Error No. III: Mr. Reed’s rights under the Sixth Amendment and Art. I, Sec. 10 of the Ohio Constitution were vio lated by the admission at trial of incriminating out-of-court statements made by nontestifying confidential informants and sources. Assignment of Error No. IV: Mr. Reed’s convictions are support ed by insufficient evidence and are against the manifest weight of the evidence

in violation of the Fourteenth Amendment to the United States C onstitution and Art. I, Sec. 10 of the Ohio Constitution. Assignment of Error No. V: The trial court violated the Fourte enth Amendment to the United States Constitution, Art. I, Sec. 10 of the Ohio Constitution and Ohio Criminal Rules 8 & 14 by joining counts f rom two cases for trial and in denying Appellant’s motion to sever. Motions to Suppress {¶ 40} Appellant’s first and second assignments of error challenge the trial court’s rulings on his motions to suppress the evidence obtained by the two search warrants which formed the basis of the criminal charges in each case. I nitially we note that an appellate court’s review of a ruling on a motion to suppress “p resents a mixed question of

law and fact.” State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “When considering a motion to suppress, the trial court a ssumes the role of trier of15. fact and is therefore in the best position to resolve factual q uestions and evaluate the credibility of witnesses.” Id. “Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, cr edible evidence.” Id. “Accepting these facts as true, the appellate court must then i ndependently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Id. {¶ 41} It is well-established that a determination of whether a suffic ient basis exists to find probable cause for the issuance of a search warr ant requires consideration of the totality of the circumstances. Illinois v. Gates , 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Under the totality-of-the-circumstances te st, “[t]he task of the issuing magistrate is simply to make a pract ical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis o f knowledge’ of persons supplying hearsay information, there is a fair proba bility that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magi strate had a ‘substantial basis for * * * conclud[ing]’ that probable cause existed. Jones

v. United States , 362 U.S. at 271[, 80 S.Ct. 725, 4 L.Ed.2d 697].* * *.” State v. George , 45 Ohio St.3d 325, 329, 544 N.E.2d 640 (1989), quoting Illinois v. Gates at 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527.16. {¶ 42} When a search warrant is issued, the determination by the issui ng judge or magistrate that there was probable cause for the search is not subject to de novo review by appellate courts. George at paragraph two of the syllabus, following Illinois v. Gates , 462 U.S. at 236. “Rather, the duty of a reviewing court is sim ply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Id. “Even when a magistrate’s determination of probable cause may be doub tful or marginal, the appellate courts should still give it ‘great deference.’ [ State v. George at 330, 544 N.E.2d 640.]” State v. Williams , 173 Ohio App.3d 119, 2007-Ohio-4472, 877 N.E.2d 717, ¶ 13 (6th Dist.).

Case No. 2015-CR-199 {¶ 43} The affidavit for the search warrant in this case involved thre e controlled drug purchases by two confidential informants. The warrant inc luded searches of appellant’s person and his residence on Townsend Street in Sand usky, Ohio. In his brief, appellant argues that the affidavit executed to secure the sear ch warrant was based on controlled drug purchases made by unreliable informants who wer e not monitored and failed to produce any confirmed controlled substances. Appell ant further contends that the informants’ bases of knowledge was not disclosed. {¶ 44} As to CI-1, appellant argues that there was no information as t o how, when, and where the alleged drug purchase had been arranged. Appella nt argues that as to CI-1,

the affidavit failed to indicate that the affiant officer actua lly observed the transactions, that CI-1 was searched for the buy money following the alleged transactions, or that the17. transactions had any nexus, other than proximity, between the h ouse included in the search warrant and alleged transactions. {¶ 45} As to CI-2, appellant argues that CI-2 had not been tested and was unreliable, the basis for his knowledge that appellant was sell ing heroin was not disclosed, there was no proof that the call made by CI-2 to arr ange a drug buy was with appellant, and there was no proof that appellant was actually i n the residence when the alleged transaction occurred.

Case No. 2016-CR-224 {¶ 46} In this case, the affidavit securing the search warrant referen ced the above three controlled drug purchases and included seven additional p urchases in FebruaryMarch 2016, and involved three additional confidential informan ts. The places to be searched included appellant and his residence on Larchmont Driv e in Sandusky, Ohio. Appellant first argued that the 2014 information was “stale.” Appellant similarly argued that CI-3 had not been tested and that the affiant had no perso nal knowledge that appellant was the other party to the phone call arranging the d rug purchase. Finally, appellant argues that the affiant never stated that he observed CI-3 enter the residence on Neil Street, only that he left the residence. {¶ 47} Appellant next raised arguments relating to CI-4; specifically, there was no firsthand information that CI-4 could buy drugs from the female go-between who sold drugs for appellant. The purported deal happened on two occasi ons and each involved CI-4 transporting the female in her vehicle. Finally, as to CI -5 appellant argues that the18. affidavit does not state the basis for her knowledge that appel lant had heroin she could purchase. {¶ 48} Appellant argues that even as described, the facts in the affid avits did not give rise to probable cause, but instead only supported a “hunc h” that drug deals may have been occurring. Appellant relies on a case from this dist rict where we concluded that a search warrant based upon a confidential informant’s sta tement that a defendant would be leaving the house with drugs, without any indication o f the source of the statement, was not sufficient to support a probable cause findi ng. State v. Young , 6th Dist. Erie No. E-13-011, 2015-Ohio-398, ¶ 48. Appellant assert s that the basis of knowledge of the CIs was undisclosed and that the only tested s ubstance was noncontrolled. {¶ 49} Reviewing Young , we find that the facts of this case are distinguishable. Here, the affidavits were not based on the mere statement that appellant was selling drugs. Controlled buys and surveillance were conducted in both cases. Further, the affidavits in both cases were issued shortly following a contro lled buy, thereby increasing the likelihood that drugs or evidence of drug trafficking would be found at the homes.

See State v. Turner , 8th Dist. Cuyahoga No. 92966, 2010-Ohio-1205, ¶ 19. {¶ 50} Mindful of our deferential standard of review, we find that the judge issuing the search warrants in this case had a substantial basi s for concluding that probable cause existed supporting the search warrants. Appella nt’s first and second assignments of error are not well-taken.19. Right to Confrontation {¶ 51} In appellant’s third assignment of error he argues that the tri al court erred by allowing the admission of incriminating out-of-court stateme nts made by nontestifying confidential informants. Specifically, appellant co ntends that three informants involved in the case did not testify at trial yet their stateme nts were elicited through police testimony. {¶ 52} The Sixth Amendment’s Confrontation Clause provides: “In all c riminal prosecutions, the accused shall enjoy the right * * * to be con fronted with the witnesses against him.” In Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court of the United States held that “[w]he re testimonial evidence is at issue, * * * the Sixth Amendment demands what the common law required: unavailability [of the declarant] and a prior opportunity for c ross-examination.” Id. at 68. {¶ 53} Following Crawford , the Supreme Court of Ohio has held that “[f]or Confrontation Clause purposes, a testimonial statement includes one made ‘under circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.’” State v. Stahl , 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraph one of the syllabus. {¶ 54} First, appellant contends that CI-1’s statements to police surr ounding the controlled drug buys were impermissibly elicited through the te stimony of Officers West and Huffman. We note that CI-1 was subpoenaed to testify at tr ial on multiple occasions due to several trial continuances. On January 31, 2018, a mate rial witness warrant was20. issued due to the inability to locate CI-1. The warrant ordere d that he be kept in custody though his tenure as a witness. CI-1 was not located prior to trial and was unavailable.

See Evid.R. 804(A)(2). {¶ 55} Further, drug buy tapes that are played for the jury are genera lly not considered hearsay as they are used to provide context as to th e activity taking place. State v. Cunningham , 6th Dist. Wood No. WD-08-063, 2009-Ohio-6970, ¶ 19, citing

State v. Aldrich , 12th Dist. Madison No. CA2006-10-044, 2008-Ohio-1362, ¶ 9. T hus, any Confrontation Clause claims stemming from the playing of th e recordings is unavailing. {¶ 56} As to Candace Wilson, who was the go-between with CI-4 and appe llant, appellant argues that her statements, elicited through the test imony of CI-4 and Officer Rotuno, that she got her heroin from appellant was the only tes timony directly implicating appellant in the sales in which she was involved. Officer Brotherton also testified regarding his arrest and debriefing of Wilson where, when asked, she informed him that appellant had sold her the drugs. This testimony was objected to and the objection was sustained. {¶ 57} The state asserts that any such statements by Wilson were state ments of a party-opponent and not hearsay because she was indicted for her participation in the March 3 and March 8, 2016 drug purchases. See Evid.R. 804(B)(3). {¶ 58} As to statements made by Wilson to CI-4, the statements fit wit hin the party-opponent exception in that Wilson was indicted on charges . CI-4 testified at trial21. and was subject to cross-examination. Further, police surveill ed the transactions and found drugs hidden on Wilson’s person. In addition, police wer e able to listen to a telephone conversation between CI-4, appellant and Wilson and m ade by Wilson while she was in appellant’s house. {¶ 59} Finally, appellant contends that he was prejudiced by the impro per admission of testimony regarding a tip from an anonymous inform ant that he concealed drugs in a “green bean can” or in the garage or the roof of the garage. Officer Brotherton testified that based on this information they accessed the roof where heroin, cocaine, and fentanyl were found in a coffee mug. Following appellant’s cou nsel’s objection, the court instructed the jury that the testimony was to be consider ed only to explain what the officer did during the investigation. Presuming that the jury followed the court’s instructions, we find no error. {¶ 60} Based on the foregoing, we find that the appellant’s right to c onfront witnesses testifying against him was not violated. Appellant’s third assignment of error

is not well-taken. Sufficiency and Manifest Weight {¶ 61} Appellant’s fourth assignment of error argues that his convicti ons were not supported by sufficient evidence and were against the manifest weight of the evidence. Sufficiency of the evidence and manifest weight of the evidence are quantitatively and qualitatively different legal concepts. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Sufficiency of the evidence is purely a que stion of adequacy where a22. court must consider whether the evidence was sufficient to supp ort the conviction as a

matter of law. Id. The proper analysis is “‘whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact c ould have found the essential elements of the crime proven beyond a reasonable doubt.’” State v. Williams , 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996), quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. {¶ 62} Conversely, a claim that a jury verdict is against the manifest weight of the evidence requires an appellate court to act as a “thirteenth ju ror.” Thompkins at 387. An appellate court, “reviewing the entire record, weighs the evidence and all reaso nable inferences, considers the credibility of witnesses and determin es whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”

Id. , quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶ 63} Appellant was convicted of multiple counts including drug traff icking, drug possession, having weapons while under disability, and tamperin g with evidence. As to trafficking in a controlled counterfeit substance, appellant ar gues that there was no23. sufficient evidence at trial demonstrating that appellant knew that the substances involved in the controlled buys to CI-1 were counterfeit. {¶ 64} Trafficking in counterfeit controlled substances, in violation of R.C. 2925.37(B), states that “[n]o person shall knowingly make, sell , offer to sell, or deliver any substance that person knows is a counterfeit controlled sub stance.” Thus, the statute requires that appellant actually knew that the substances he so ld to CI-1 were counterfeit. See State v. Hurley , 3d Dist. Hardin No. 6-13-02, 2014-Ohio-2716, ¶ 52-54; State v. Kimbrough , 4th Dist. Washington No. 08CA18, 2008-Ohio-6690, ¶ 6-10; State v.

Garrett , 149 Ohio App.3d 142, 2002-Ohio-4356, 776 N.E.2d 520, ¶ 22-29 (11th Dist.). Such knowledge may be established by an admission of the defend ant or circumstantial evidence including the fact that the defendant packaged the dru gs himself. Hurley at ¶ 53. {¶ 65} In the present case we must conclude that the state failed to p rove that appellant knew that the packages of drugs he sold CI-1 were cou nterfeit. There is no evidence that he admitted knowledge or that he packaged the dru gs. Thus, we find that that evidence is not sufficient to support the convictions for trafficking in a controlled

counterfeit substance. {¶ 66} As to drug trafficking, preparation, and possession, the statut es required that the state prove that appellant sold a controlled substance for money. The evidence presented at trial demonstrated that appellant lived at both th e Townsend and Larchmont residences during the relevant times and that digital scales we re found in his bedroom as24. well as various narcotics, cell phones, cash, and weapons. Dur ing the execution of the Townsend search warrant, appellant threw baggies with narcotics under the dining room table (tampering with evidence.) Further, there is sufficient evidence to demonstrate that appellant sold the CI drugs in the presence of a juvenile. The re is also sufficient evidence that appellant constructively possessed the narcotics found in a cup on the roof of the

garage. {¶ 67} In order to constructively possess contraband, exclusive access to the item

need not be established. State v. Crocker , 2015-Ohio-2528, 38 N.E.3d 369, ¶ 25 (4th Dist.). “‘Constructive possession exists when an individual kn owingly exercises dominion and control over an object, even though that object ma y not be within his immediate physical possession.’” Id. , quoting State v. Hankerson , 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus. The state must also show that th e defendant was conscious of the object’s presence. Id. , citing Hankerson at 91. Both dominion and control, and whether a person was conscious of the object’s presence may be established through

circumstantial evidence. Id. , citing State v. Brown , 4th Dist. Athens No. 09CA3, 2009- Ohio-5390, ¶ 19. {¶ 68} As to consciousness of the presence of the narcotics, Officer B rotherton stated that appellant’s demeanor markedly changed from “cocky a nd confident” to concern when he realized that a fire ladder was called and poli ce were going to look on the roof of the garage. Further, the search warrant at Larchmo nt was executed while appellant was under indictment on charges following the executi on of the Townsend25. search warrant and was based on several additional controlled d rug buys, thus evidencing appellant’s ongoing drug trafficking operation. {¶ 69} The weapons while under a disability charges were based on the recovery of an antique rifle on Townsend and two handguns on Larchmont. There was sufficient evidence to demonstrate that the weapons were appellant’s based on statements by appellant and where the guns were located and the convictions w ere not against the weight of the evidence even considering the testimony of Moniqu e W. that the handguns

were hers. {¶ 70} Based on the foregoing, we find that appellant’s fourth assignm ent of error is well-taken, in part. Appellant’s convictions for traffickin g in a controlled counterfeit

substance are vacated.

Joinder {¶ 71} In appellant’s fifth and final assignment of error, he argues t hat joinder of all the counts for trial was error as they were not sufficientl y related in time, substances, location, or confidential informants. The state counters that appellant failed to demonstrate the prejudicial effect of joinder. {¶ 72} Under Crim.R. 13, a court may order two or more cases to be tri ed together “if the offenses * * * could have been joined in a single indic tment * * *.” Joinder of two or more separate offenses in an indictment, information or comp laint is proper “if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or26. transactions connected together or constituting parts of a comm on scheme or plan, or are part of a course of criminal conduct.” Crim.R. 8(A). Joinder is generally favored as it preserves judicial economy and public funds, avoids multiple tr ials and inconvenience to witnesses, and allows for prompt and consistent trial results. State v. Scott , 6th Dist. Sandusky No. S-02-026, 2003-Ohio-2797, ¶ 13, quoting State v. Dunkins , 10 Ohio App.3d 72, 460 N.E.2d 688 (9th Dist.1983), paragraph one of the syllabus. {¶ 73} If a party opposing the joinder of indictments demonstrates pre judice, the trial court shall order separation of the counts under Crim.R. 14. State v. Gordon , 152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 20-21, citing State v. Torres , 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981), syllabus. {¶ 74} In order to affirmatively show that his rights have been prejud iced by the joinder, the defendant must furnish the trial court with inform ation sufficient to allow the court to weigh the considerations favoring joinder against the defendant’s right to a fair trial; to obtain reversal on appeal, the defendant must demonst rate that the trial court abused its discretion in refusing to separate the charges for t rial. State v. Goodner , 195 Ohio App.3d 636, 2011-Ohio-5018, 961 N.E.2d 254, ¶ 42 (2d Dist. ). Accordingly, we

review a trial court’s decision on severance under an abuse of discretion standard. State

v. Lott , 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). {¶ 75} Appellant urges the court to follow the First Appellate Distric t which found that in the case of six separate robberies involving the same d efendant, at least some of

the counts should have been severed for trial. State v. Echols , 128 Ohio App.3d 677, 71627. N.E.2d 728 (1st Dist.1998). In Echols the state argued that joinder was not prejudicial because evidence of each robbery was admissible to show a modus operandi or behavioral fingerprint. Id. at 692. {¶ 76} Reversing the joinder of the offenses, the court concluded that they did not share “significant common features.” Id. at 693. Specifically, the court found that the robbery, although occurring in the same general location and in volving a knife, varied as to whether the suspect attempted to conceal his face, whether h e threatened the victim, and whether he cased the location or it appeared random. Id. at 693-694. The court also concluded that the counts were not “simple and distinct” such a s to prevent jury

confusion. Id. at 694. {¶ 77} Reviewing the arguments of the parties, we find that appellant has failed to affirmatively demonstrate prejudice stemming from the joinder o f the cases. Each case was based on the execution of a separate search warrant at a se parate residence. The charges involved various confidential informants and law enforc ement and the testimony at trial was segregated as to the multiple controlled purchases and searches. Further, the charges were all based on a course of criminal conduct, drug tr afficking, engaged in by appellant. Accordingly, we find that the trial court did not a buse its discretion when it allowed the cases to be joined for trial. Appellant’s fifth as signment of error is not welltaken. {¶ 78} On consideration whereof, we find that the judgments of the Eri e County Court of Common Pleas are affirmed, in part, and reversed, in p art. We reverse and28. vacate appellant’s convictions for trafficking in a counterfeit controlled substance as they were not supported by sufficient evidence. We affirm the remai nder of appellant’s convictions. The matter is remanded for proceedings consistent with this decision. The parties are ordered to share equally in the costs of this appea l pursuant to App.R. 24.

Judgment affirmed, in part, and reversed, in part.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ______________________

_________ JUDGE Arlene Singer, J.

_______________________________ Thomas J. Osowik, J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.