[Cite as State v. Gibson, 2017-Ohio-1266.]

STATE OF OHIO, NOBLE COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

CHRISTOPHER L. GIBSON, JR., 

 DEFENDANT-APPELLANT. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CASE NO. 16 NO 0431 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Nobel County, Ohio 

Case No: 215-2030 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Kelly A. Riddle 

Prosecutor 

150 Courthouse 

Caldwell, Ohio 43724 

For Defendant-Appellant Attorney Chandra L. Ontko 

665 Southgate Parkway 

Cambridge, Ohio 43725 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: March 31, 2017 
[Cite as State v. Gibson, 2017-Ohio-1266.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Christopher Gibson, appeals from a Noble County 

Common Pleas Court judgment convicting him of illegal conveyance of prohibited 

items onto the grounds of a detention facility following a jury trial. 

{¶2} On February 25, 2015, Deputy Paul Channel transported appellant to 

the Noble County Jail. Deputy Channel testified that he took appellant to the shower 

room, collected his street clothes, advised him to shower, and then left the room. 

Deputy Channel also said he did a head-to-toe search of appellant. However that 

search would not have revealed whether or not something had been ingested, 

Deputy Channel admitted. 

{¶3} Jail personnel assigned appellant to the 16-person dorm known as 

“DO-3”. The dorm consists of a large open room with 16 bunks, 2 showers with 

curtains, and 2 partially walled-off toilet areas. Two other inmates besides appellant 

also occupied that dorm. 

{¶4} The day after appellant was booked, on February 26, Corrections 

Officer Zane Love conducted a walk-through of DO-3. Upon entering the dorm, 

Officer Love said he immediately smelled marijuana. Officer Love asked the inmates 

who had the marijuana, but none of them admitted to it. So Officer Love requested 

backup and searched the dorm. Nothing was found. 

{¶5} Upon later being questioned by Detective Captain Robert Pickenpaugh, 

appellant purportedly admitted that, during the February 26 search, he had hidden 

the marijuana-filled balloon in his hand, swallowed it, and would later pass it. 

{¶6} Two days later, on February 28, Officer Love became aware that there 

might be drugs in the jail. So, along with backup, he again searched DO-3. This time, 

next to appellant’s bed, Officer Love discovered a jail-issued cup with a lid on it. 

According to the officer, appellant said it was his spit cup. When Officer Love opened 

the lid, he could see the cup was filled with toilet paper. Unraveling the toilet paper, 

the officer found two balloons that smelled strongly of marijuana. 

{¶7} Officer Love asked appellant where the drugs had come from. 

According to the officer, appellant replied, “They’re mine.” The officer followed up, 
- 2 - 

asking “Where did the drugs come from? Were they inside you when you came into 

the jail?” To which appellant purportedly answered, “Yes, they’re mine for my own 

personal use.” 

{¶8} Later that same day, during the course of the investigation, appellant 

and another inmate reported that they had found the marijuana in an electrical socket 

in the dorm. Officer Love described this as a “concerted” explanation, recounting that 

some time had passed after the marijuana was discovered and before appellant was 

locked down. Officer Love reviewed the surveillance video that showed the electrical 

outlet in question, and he testified that he saw no one access that socket. The video 

was not made part of the record. 

{¶9} During the February 28 investigation, officers also found a pen with 

suspected drug residue on it. The pen was found on an inmate named Littleton, who 

shared a “bunk or cell” with appellant. The record did not disclose what exactly the 

suspected drug residue was. 

{¶10} Next, Corrections Officer Ron Saling arrived to photograph the 

evidence, i.e., the balloons. And another officer later transported the evidence to the 

Bureau of Criminal Identification and Investigation (“BCI”), where test results showed 

that the substance in the balloons was indeed marijuana. 

{¶11} Two days later, on March 2, Detective Pickenpaugh interviewed 

appellant, after having him sign a waiver-of-rights form. According to Detective 

Pickenpaugh, appellant initially denied everything. Then the detective told appellant 

that he could send the balloons away for DNA testing, and it would probably come 

back as a match. That apparently prompted appellant to give the detective a more 

detailed explanation — i.e., (1) that he was attempting to purchase the marijuana 

from another inmate, Joe Hess, by having his wife put money on Hess’ books; and 

(2) that he had had the balloon in his hand when Officer Love walked into the dorm 

on February 26, at which time he swallowed it, and it passed through his body. 

{¶12} Detective Pickenpaugh also interviewed Hess. Hess had apparently 

arrived at the dorm two days after appellant, on February 27. According to Detective 
- 3 - 

Pickenpaugh, appellant’s account and Hess’ account were not consistent. Hess did 

not testify in this action. 

{¶13} On April 29, 2015, the grand jury indicted appellant on one count of 

illegal conveyance of prohibited items onto the grounds of a detention facility, a 

violation of R.C. 2921.36(A)(2), a felony of the third degree. Appellant pleaded not 

guilty, and the case went to trial before a jury on March 22, 2016. The jury returned a 

guilty verdict. On May 12, 2016, the trial court sentenced appellant to 30 months of 

incarceration and ordered him to pay costs. Appellant timely filed a notice of appeal 

on May 17, 2016. 

{¶14} Appellant raises three assignments of error. 

{¶15} Appellant’s first assignment of error states: 

THE JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE. 

{¶16} Appellant argues that his conviction was against the manifest weight of 

the evidence. He first points out that, although Officer Love testified that appellant 

admitted that the marijuana was his, Officer Love did not record that statement or 

read appellant his rights. Appellant then concludes that “there is no indication or 

evidence” that appellant actually told the officer the drugs were his and that he 

brought them into the jail. 

{¶17} Next appellant highlights the testimony of Deputy Channel, who booked 

appellant into the jail. Appellant emphasizes the fact that Deputy Channel had 

appellant in his control and had the responsibility to ensure appellant did not break 

the rules. Appellant adds that Deputy Channel did not notice appellant doing 

anything. In addition, appellant noted the fact that Deputy Channel could not recall 

whether he had frisked appellant before or after he entered the jail. 

{¶18} Appellant then takes issue with the testimony of Officer Saling, who 

photographed the balloons. Appellant, in making his manifest weight argument, relies 

on the fact that Officer Saling did not know where the balloons came from, did not 
- 4 - 

open them, and did not know what was inside. 

{¶19} With respect to the marijuana that was found, appellant argues that 

officials never found the drugs on his person. Moreover appellant points out that, 

although the marijuana was found in a cup near his bunk, the surveillance video 

supposedly did not show appellant doing anything with the cup. Appellant then notes 

that a pen with powder residue was found in a different inmate’s pocket, appearing to 

cast blame on that inmate instead. 

{¶20} Lastly appellant argues that the state failed to show the full chain of 

custody of the marijuana. Appellant notes that Detective Pickenpaugh was not sure 

who transported the evidence to BCI, having testified that he believed it was 

Sergeant Pointer. Appellant also attacks the chain of custody by noting that the 

state’s last witness, Elizabeth Wolford, from BCI, testified that she had nothing to do 

with transporting the evidence. 

{¶21} In determining whether a verdict is against the manifest weight of the 

evidence, an appellate court must review the entire record, weigh the evidence and 

all reasonable inferences and determine whether, in resolving conflicts in the 

evidence, the jury clearly lost its way and created such a miscarriage of justice that 

the conviction must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio 

St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541 (1997). “Weight of the evidence 

concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, 

to support one side of the issue rather than the other.’” Id. at 387. (Emphasis sic). In 

making its determination, a reviewing court is not required to view the evidence in a 

light most favorable to the prosecution but may consider and weigh all of the 

evidence produced at trial. Id. at 390 (Cook, J. concurring). 

{¶22} Granting a new trial is only appropriate in extraordinary cases where 

the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d 

172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness 

credibility, conflicting testimony, and evidence weight are primarily for the trier of facts 

who sits in the best position to judge the weight of the evidence and the witness’ 
- 5 - 

credibility by observing their gestures, voice inflections, and demeanor. State v. 

Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill, 75 Ohio 

St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231, 

227 N.E.2d 212 (1967). Thus, “[w]hen there exist two fairly reasonable views of the 

evidence or two conflicting versions of events, neither of which is unbelievable, it is 

not our province to choose which one we believe.” State v. Dyke, 7th Dist. No. 99-

CA-149, 2002-Ohio-1152. 

{¶23} The jury found appellant guilty of illegal conveyance, a violation of 

R.C. 2921.36(A), which forbids any person from (1) knowingly (2) conveying or 

attempting to convey (3) a drug of abuse (4) onto the grounds of a detention facility. 

Appellant has challenged the verdict as being against the manifest weight of the 

evidence. To determine that issue, we must first review the record from the trial court. 

{¶24} The record shows that appellant traveled to the Noble County Jail. (Tr. 

87). Once there, Deputy Channel searched appellant; however that search was not 

invasive enough to reveal whether or not appellant had ingested contraband with the 

intent of passing it. (Tr. 88–89). After appellant was housed inside the detention 

center, Officer Love said that he smelled marijuana in appellant’s dorm and 

conducted a search. (Tr. 103–104). Appellant purportedly admitted to 

Detective Pickenpaugh that he swallowed the marijuana-filled balloon during this 

search and then passed the contraband. (Tr. 148). Later Officer Love found two 

balloons containing marijuana, wrapped in toilet paper, inside a “spit cup” belonging 

to appellant and next to appellant’s bed. (Tr. 107, 121, 169). Officer Love questioned 

appellant. (Tr. 108). And by answering Officer Love’s questions (“Where did the 

drugs come from? Were they inside you when you came into the jail?”) in the 

affirmative, appellant effectively admitted to having marijuana inside of him when he 

came to the jail. (Tr. 108). One may reasonably infer from this evidence in the record 

that appellant conveyed a drug of abuse onto the grounds of a detention facility. 

{¶25} Notably, the explanations that appellant gave evolved over time. At first 

appellant said he found the marijuana and flushed it down the toilet. (Tr. 106). Later, 
- 6 - 

appellant said he had found the drugs inside of a light socket. (Tr. 109). And then, 

when interviewed by Detective Pickenpaugh, appellant eventually said that he was 

attempting to purchase the marijuana from another inmate, Hess, by having his wife 

put money on Hess’ books. (Tr. 147–148, 155). In addition, appellant revised his 

explanation when he gave it to Detective Pickenpaugh, admitting he had the balloon 

in his hand when Officer Love walked into the dorm the first time, at which time he 

swallowed it and later passed it through his body. (Tr. 148). 

{¶26} Notably appellant’s account that he was trying to purchase drugs from 

Hess seems to conflict with other facts in the record. (Tr. 147–148, 155). For context, 

appellant arrived at the jail on February 25. (Tr. 87). Officer Love searched the dorm 

on February 26. (Tr. 103–104). Appellant told the detective that during that search, 

he concealed the balloon in his hand and swallowed it. (Tr. 148). But appellant also 

told the detective that he was attempting to purchase the drugs from Hess. (Tr. 148, 

155). Appellant’s narrative notwithstanding, according to Officer Love, prison officials 

did not transfer Hess to appellant’s dorm until February 27. (Tr. 117). Thus Hess 

ostensibly would not have been able to supply appellant with the drugs, as 

appellant’s story implies, on February 26. 

{¶27} Nevertheless, it was the province of the jury to decide what evidence or 

explanation they believed. 

{¶28} Appellant also makes arguments regarding the less-than-thorough 

search conducted by Deputy Channel and the photographs of balloons taken by 

Officer Saling, who was not personally aware of the contraband contained within. 

(Tr. 88–89, 142–143). Both of those arguments go to the weight of the evidence as 

well. 

{¶29} Moreover appellant argues that the drugs were not found on his person 

and that the video does not show him handling the cup that contained the marijuana. 

(Tr. 107–108, 121–122). These go to the weight of the evidence too. And they must 

be weighed against the fact that appellant admitted that the cup was his “spit cup” 

and the fact that the cameras do not cover the entirety of the dorm. (Tr. 107, 131–
- 7 - 

132). 

{¶30} Appellant points out that officers found a pen with a powder residue on 

another inmate during the search. (Tr. 121). Appellant appears to imply that that 

inmate was to blame for the marijuana as well. However, the record does not show 

what that powder was. Nonetheless, that was something for the jury to weigh. 

{¶31} Lastly appellant highlights the fact that appellee failed to show the full 

chain of custody for the marijuana. (Tr. 149–151, 160–163, 171). However, appellee 

did not have to show the full chain of custody. Appellee’s burden only required that it 

show to a reasonable certainty that substitutions, alterations, or tampering did not 

occur. In re Lemons, 77 Ohio App.3d 691, 693, 603 N.E.2d 315 (8th Dist.1991). Any 

breaks in the chain of custody went to the weight of the evidence, not its admissibility. 

State v. Howell, 7th Dist. No. 10-MA-148, 2012-Ohio-4349, ¶ 79. 

{¶32} Here, Officer Love testified that he believes he bagged and marked the 

contraband in this case. (Tr. 136). Det. Pickenpaugh explained how their process 

goes from there. In particular, Det. Pickenpaugh testified that officers will place 

evidence in a pre-evidence locker that has a key. (Tr. 149). The officer will then give 

notice to Detective Pickenpaugh, and he will prepare the paperwork to have the 

evidence analyzed, he said. (Tr. 149). And then, every Tuesday an officer transports 

evidence to BCI; in this instance, Sergeant Pointer transported the evidence to the 

Cambridge BCI, according to Det. Pickenpaugh’s recollection. (Tr. 149). Elizabeth 

Wolford, who works for BCI, explained that once evidence has been dropped off, it’s 

received by the evidence receiving team, who codes it and places it in a sealed 

container to await analysis. (Tr. 165–166). The evidence goes into scientist custody 

during analysis, and then it is returned to the evidence receiving team, who returns it 

to the original agency, Wolford said. (Tr. 166). 

{¶33} The state’s burden was to show—to a reasonable certainty—that 

substitutions, alterations, or tampering did not occur. The state met that burden by 

presenting the following evidence: the use of a lockable pre-evidence locker; the 

maintenance of the jail’s paperwork system; the regularly scheduled transports; and 
- 8 - 

BCI’s use of codes. In addition, Det. Pickenpaugh testified there was no reason to 

believe that the evidence was tampered with. Having reviewed the evidence, we 

conclude the record shows that the state met its burden in terms of showing—to a 

reasonable certainty—that substitutions, alterations, or tampering did not occur 

(Tr. 163). 

{¶34} The evidence in the record supports the jury’s verdict. Officers found 

what turned out to be contraband inside a cup that appellant admitted was his. 

(Tr. 107, 121, 169). And then appellant admitted that he transported the contraband 

into the facility. (Tr. 108). In light of the evidence in support of the verdict, appellant’s 

arguments regarding the weight of the evidence fail to establish that a miscarriage of 

justice has occurred. 

{¶35} Accordingly, appellant’s first assignment of error is without merit and is 

overruled. 

{¶36} Appellant’s second assignment of error states: 

THE APPELLANT ALLEGES HE WAS DENIED HIS RIGHT TO THE 

EFFECTIVE ASSISTANCE OF TRIAL COUNSEL. 

{¶37} Here appellant argues that defense counsel failed to effectively assist 

him. Appellant claims that defense counsel was ineffective because he failed to 

subpoena Hess, the “key” witness who would have provided exculpatory evidence, 

according to appellant. 

{¶38} Appellant next claims that no statements or incident reports from 

corrections officers were introduced into the record, overlooking Defendant’s Exhibit 

A, which was the report of Officer Love. Appellant further takes issue with the fact 

that counsel did not introduce Detective Pickenpaugh’s interview summaries into the 

record. 

{¶39} Appellant’s last ineffectiveness claim concerns motions that appellant 

says he requested counsel file including “a motion for a bill of particulars, a motion to 

change venue, a motion for a fast and speedy trial, a subpoena duces tecum [sic] of 
- 9 - 

witnesses, and other motions.” Appellant contends that these motions may have 

helped him in this matter and that he could have been found not guilty had counsel 

been effective. 

{¶40} To prove an allegation of ineffective assistance of counsel, the 

appellant must satisfy a two-pronged test. First, appellant must establish that 

counsel’s performance has fallen below an objective standard of reasonable 

representation. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 

L.Ed.2d 674 (1984), State v. Bradley, 42 Ohio St.3d 136, 141–142, 538 N.E.2d 373 

(1989). Second, appellant must demonstrate that he was prejudiced by counsel’s 

performance. Id. To show that he was prejudiced by counsel’s performance, 

appellant must prove that, but for counsel’s errors, the result of the trial would have 

been different. Bradley.

{¶41} Appellant bears the burden of proof on the issue of counsel’s 

ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 

N.E.2d 905 (1999). In Ohio, a licensed attorney is presumed competent. Id. 

{¶42} Appellant’s claim that trial counsel was ineffective because he did not 

call Hess as a witness is not supported by the record. The mere failure to call a 

witness does not render counsel’s assistance ineffective absent a showing of 

prejudice. State v. Brown, 7th Dist. No. 12-MA-118, 2015-Ohio-793, ¶ 8, citing State 

v. Hector, 2d Dist. No. 18653, 2002-Ohio-1200. And the record in this case does not 

show how counsel’s decision not to call Hess prejudiced appellant. For instance, 

appellant apparently claimed that Hess was selling the drugs to him. (Tr. 147–148, 

155). However, the testimony at trial showed that the drugs were in appellant’s 

possession when Officer Love first did his walkthrough, which was one day before 

Hess arrived in appellant’s dorm. (Tr. 103–104, 117, 148). In addition, Detective 

Pickenpaugh testified that the explanations from appellant and Hess were not 

consistent. (Tr. 151). Thus, appellant has not demonstrated how trial counsel’s 

choice not to call Hess prejudiced him. 

{¶43} The same is true for appellant’s other claims that counsel was 
- 10 - 

ineffective. Appellant argues that trial counsel was ineffective for failing to introduce 

statements or incident reports into the record (Defendant’s Exhibit A 

notwithstanding). (Tr. 128–129, 185–186). And appellant argues that trial counsel 

was ineffective for not filing a number of motions. However, appellant has not 

demonstrated how the result at trial would have been different had counsel 

introduced the statements or reports or had counsel filed those motions. Without a 

showing of prejudice, this court cannot find that counsel was ineffective. Therefore, 

appellant’s second assignment of error is without merit and is overruled. 

{¶44} Appellant’s third and final assignment of error states: 

THE APPELLANT ALLEGES HE WAS DENIED A FAIR TRIAL BY THE 

CUMULATIVE EFFECT OF THE NUMEROUS ERRORS IN THIS 

TRIAL. 

{¶45} Appellant argues that the cumulative effect of the errors in his case 

denied him a fair trial. 

{¶46} Appellant asserts that the delays caused memories of witnesses to 

fade, caused some witnesses to be inaccessible, and certain evidence to not be 

presented. Appellant does not give specific examples of which witnesses became 

inaccessible or which evidence was not presented because of delays. Regarding 

faded memories, appellant points to the difficulty that Deputy Channel had in 

recalling the circumstances of when he searched appellant before entering the jail. 

Appellant concludes that the delays prejudiced him. 

{¶47} Appellant next argues that he was prejudiced because he is African 

American and the witnesses and jurors were all Caucasian. Appellant does not 

support this assertion with any reference to the record. 

{¶48} Appellant finally reiterates that the confession that he apparently gave 

to Officer Love was not recorded or prefaced with a waiver of Miranda rights. 

{¶49} An appellate court has the power to reverse a defendant’s conviction 

based on the doctrine of cumulative error. Cumulative error occurs when errors 
- 11 - 

deemed separately harmless cumulatively deny the defendant a fair trial. State v. 

DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the 

syllabus. 

{¶50} With respect to any delays, a defendant may waive his or her 

constitutional and statutory rights to a speedy trial. State v. King, 70 Ohio St.3d 158, 

1994-Ohio-412, 637 N.E.2d 903, paragraph one of the syllabus. In addition, motions 

filed by the defendant may extend the time as well. R.C. 2945.72(E). That is what 

happened here. 

{¶51} The grand jury indicted appellant on April 29, 2015. Appellant filed a not 

guilty plea and a time waiver on June 1, 2015. He filed a demand for discovery on 

May 22, 2015, a motion to preserve evidence on June 11, 2015, a motion to dismiss 

on October 13, 2015, and a motion in limine on October 13, 2015. Then appellant 

filed another time waiver on December 16, 2015. Under the circumstances in this 

case, appellant having filed pretrial motions and having waived his right to a speedy 

trial, he cannot now maintain that delays in starting the trial were error. 

{¶52} Appellant makes an argument that he was prejudiced on account of 

race. However, an appellate court may only consider what is in the record. See

App.R. 9(A); State v. Ishmail, 54 Ohio St.2d 402, 405–406, 377 N.E.2d 500 (1978). In 

this case, no objection was made with respect to racial prejudice. And the record 

does not reflect any racial bias such that it may be considered plain error. 

Accordingly appellant’s claim of bias is not supported. 

{¶53} Finally, appellant’s argument that the trial court erred regarding the nonMirandized confession also lacks merit. Appellant specifically argues the court erred 

in admitting his alleged confession to Officer Love because appellant was not first 

read his Miranda rights. (Tr. 122–124). However, appellant’s analysis is incorrect. 

{¶54} Courts have created a narrow exception to Miranda for “on-the-scene” 

investigations such as the one that occurred in this case. See State v. Porter, 178 

Ohio App.3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 16 (2d Dist.). 

{¶55} In the limited circumstance in which there is on-the-scene questioning 
- 12 - 

of an inmate about a crime the inmate is suspected of having committed while in a jail 

or prison facility, officers need not give Miranda warnings prior to an interrogation. 

Porter at ¶ 16 citing State v. Holt, 132 Ohio App.3d 601, 607, 725 N.E.2d 1155 (1st 

Dist.1997); State v. Schultz, 8th Dist. No. 46043, 1983 WL 4749, *1 (Sept. 22, 1983). 

Here, Officer Love’s questioning of appellant was regarding a crime that appellant 

was suspected to have committed while in the jail. (Tr. 107–108). Consequently, the 

on-the-scene questioning falls into the narrow exception to Miranda, and thus did not 

require prior warnings. Meanwhile, the fact that Officer Love did not record the 

statement goes to the weight of the evidence. 

{¶56} Accordingly, appellant’s argument that the cumulative effect of alleged 

errors in his case denied him a fair trial is unfounded. 

{¶57} Thus, appellant’s third assignment of is without merit and is overruled. 

{¶58} For the foregoing reasons, the trial court’s judgment is hereby affirmed. 

Waite, J., concurs. 

DeGenaro, J., concurs.