[Cite as State v. Peabody, 2024-Ohio-185.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

ERIE COUNTY

State of Ohio Court of Appeals No. E-22-042

Appellee Trial Court No. 2017CR0487

 

v.

William J. Peabody DECISION AND JUDGMENT

Appellant Decided: January 19, 2024

* * * * *

Kevin J. Baxter, Erie County Prosecuting Attorney, and

Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.

Brian A. Smith, for appellant.

* * * * *

MAYLE, J.

{¶ 1} Defendant-appellant, William J. Peabody, appeals the September 6, 2022 

judgment of the Erie County Court of Common Pleas, convicting him of several drug 

possession and trafficking offenses and sentencing him to an aggregate prison term of 95 

months. For the following reasons, we affirm, in part, and reverse, in part.
2.

I. Background

{¶ 2} William Peabody was charged with drug possession and trafficking offenses 

arising out of two incidents. The first incident occurred on January 27, 2017. Peabody 

was charged with possession of cocaine, a violation of R.C. 2925.11(A) and (C)(4)(a), a 

fifth-degree felony (Count 1); and two counts of aggravated possession of drugs, 

violations of R.C. 2925.11(A) and (C)(1)(a), fifth-degree felonies (Counts 2 and 3). The 

second incident occurred on February 27, 2017. Peabody was charged with possession of 

cocaine, a violation of R.C. 2925.11(A) and (C)(4)(a), a fifth-degree felony (Count 4); 

complicity in the commission of possession of heroin, a violation of R.C. 2923.03(A) and 

(F), a second-degree felony (Count 5); complicity in the commission of trafficking of 

heroin, a violation of R.C. 2923.03(A)(2) and (F), a second-degree felony (Count 6); 

complicity in the commission of possession of cocaine, a violation of R.C. 2923.03(A)(2) 

and (F), a fifth-degree felony (Count 7); and complicity in the commission of trafficking 

of cocaine, a violation of R.C. 2923.03(A)(2) and (F), a fifth-degree felony (Count 8).

{¶ 3} The matter proceeded to a jury trial beginning on June 27, 2022. The state 

presented testimony from Sergeant Troy Dillinger, Detective Ron Brotherton, and 

Lieutenant Danny Lewis of the Sandusky Police Department; Deputy Chad Henderson of 

the Erie County Sheriff’s Department; Detective Joseph Rotuno of the Perkins Township 

Police Department; Sara Tipton, Samuel Fortener, and Kelsey Degen, forensic scientists 
3.

with the Ohio Bureau of Criminal Investigations; and Kyohn Green-Burton and Misty 

Schultz, two of Peabody’s co-defendants.

A. The January 27, 2017 Incident

{¶ 4} According to the evidence presented at trial, on January 27, 2017, Sergeant 

Dillinger was patrolling the area near the Value Inn in Sandusky, a location known to law 

enforcement for illegal drug transactions and use. He was dressed in uniform and driving 

a marked police cruiser. A vehicle caught his attention; the driver rolled down the 

window as if he was going to say something to Sergeant Dillinger, but he didn’t. 

{¶ 5} Sergeant Dillinger drove a little further down the street, but continued to 

monitor the Value Inn at a distance. The vehicle he had noticed before pulled out. 

Sergeant Dillinger observed that the vehicle had an excessively loud exhaust, so he 

initiated a traffic stop. He made contact with the driver, who identified himself as 

William Peabody. He was alone in the vehicle. 

{¶ 6} Peabody told Sergeant Dillinger that he was aware that his exhaust was loud, 

and he also told him that his driver’s license was expired. He said that he had had two 

passengers in his vehicle, but they exited his vehicle quickly because they had recently 

been released from prison and may have had outstanding warrants. Sergeant Dillinger 

recognized the name of one of the men and knew him to use illegal drugs. Sergeant 

Dillinger also knew that Peabody was associated with drugs.
4.

{¶ 7} Sergeant Dillinger asked Peabody for consent to search the vehicle, which 

belonged to Peabody’s father. He declined, insisting that there was nothing illegal in the 

vehicle. Sergeant Dillinger called for the K-9 unit to do a free air sniff. The dog alerted 

to the odor of narcotics. 

{¶ 8} Sergeant Dillinger instructed Peabody to exit the vehicle. As he did, a 

syringe fell off his lap. Peabody agreed to allow Sergeant Dillinger to search his person; 

no contraband was found during that search. A search of his vehicle did, however, lead 

to the recovery of drug-related items, including: (1) a metal spoon with white, filmy 

residue on it, retrieved from the center console; (2) two metal spoons with residue and 

burns, retrieved from the back seat; (3) a crack pipe stuffed with wire mesh, retrieved 

from the back seat; and (4) a metal tube with residue and a crack pipe with residue 

stashed in the ventilation system. Sergeant Dillinger conceded that the crack pipes were 

located in the vent such that they would not be visible from the driver’s seat. They could 

not be removed immediately because the officers did not have the tools to remove them 

there; they were removed after the vehicle was towed. Lieutenant Danny Lewis removed 

the items using a coat hanger. Syringes and prescriptions belonging to Peabody’s father, 

a diabetic, were also found in the vehicle, but were not confiscated. The spoon from the 

console and one of the spoons from the backseat were from a matching set.

{¶ 9} Sergeant Dillinger decided not to arrest Peabody, but rather to test the items 

first. The items were brought to the station, tagged and bagged, and secured for testing
5.

by BCI. Sergeant Dillinger acknowledged that he did not see anything illegal just by 

looking into the car. He did not attempt to gather fingerprints from any of the items and 

did not administer blood, urine, or field sobriety tests.

{¶ 10} Peabody’s father retrieved the car. He said the syringes were in the car 

because he was diabetic. Peabody’s father is now deceased. 

{¶ 11} Another officer, Sergeant Lillo, told Sergeant Dillinger that he saw two 

passengers in the vehicle earlier. Sergeant Dillinger did not know if those passengers 

were both in the backseat. The passengers quickly distanced themselves from the vehicle 

when they saw Sergeant Lillo drive through the parking lot. 

{¶ 12} Testing later revealed that the spoon found in the center console had trace 

amounts of cocaine, fentanyl, and 3-methylfentanyl. A metal tube had trace amounts of 

cocaine. Testing of those items was performed by Sara Tipton, a forensic scientist in the 

drug chemistry section of the BCI. The two metal spoons from the backseat, one of the 

metal tubes, and the glass tube were not tested. Sergeant Dillinger explained that it is his 

practice to charge the person who is in immediate possession of the contraband.

B. The February 27, 2017 Incident

{¶ 13} The Sandusky Police Department received information from a female 

informant that Peabody was in possession of $10,000 worth of illegal drugs that he and 

another man transported from Lansing, Michigan. The informant (“CI”) stated that 

Peabody was staying at a hotel and that she could buy heroin from him. Detective Ron 
6.

Brotherton contacted the Perkins County Police Department. Together, Detective 

Brotherton, Lieutenant Danny Lewis, Detective Joseph Rotuno, and Detective Roesch, 

also of the Perkins Township Police Department, established a joint investigation. 

Lieutenant Lewis was the lead investigator.

1. Testimony from Law Enforcement and BCI

{¶ 14} On February 27, 2017, law enforcement arranged for the CI to make a 

controlled buy of narcotics from Peabody using marked bills. Detective Brotherton and 

Lieutenant Lewis set up surveillance at Walmart, next to the hotel where they believed 

Peabody was staying. Detectives Rotuno and Roesch set up surveillance at the hotel. 

The officers searched the CI and her vehicle to ensure that she was not carrying other 

drugs or money. She was given $310 in marked money, which police had photocopied 

before giving to her. Officers wrote down the phone number she used to call Peabody.

{¶ 15} The CI picked up Peabody outside Walmart. They had a short 

conversation, then Peabody gave her 1.6 grams of what was determined by BCI to be 

heroin and fentanyl in exchange for $310. She dropped him off at the hotel. Afterwards, 

the CI gave the drugs to the officers and they again searched her and her vehicle. 

Although the officers did not see the hand-to-hand exchange of drugs for money, the CI 

gave them a report of what happened during the transaction.

{¶ 16} Peabody was followed after completing the transaction. He went to the 

second floor of the Super 8 hotel, room 213. An hour later, Peabody and Misty Schultz 
7.

left the hotel in a rental car and headed to a gas station near the hotel. Detective 

Brotherton had a warrant to serve on Peabody, so he and Detective Roesch followed him. 

Lieutenant Lewis and Detective Rotuno stayed at the hotel and continued to surveil the 

room.

{¶ 17} Detectives Brotherton and Roesch arrested Peabody at the gas station. 

Peabody was in the driver’s seat and Schultz was seated in the front seat of the vehicle. 

The officers searched Peabody and found that he was carrying a bindle of drugs, drug 

paraphernalia, and $10 of the marked money. Miniature balloons were also found in the 

vehicle. It was common in 2017 for traffickers to transport illegal narcotics in balloons.

{¶ 18} Schultz revealed that she had rented the hotel room, which gave her control 

over the room. Schultz agreed to cooperate with officers. She was escorted back to the 

hotel, where she consented to a search of the room. They retrieved a key from the front 

desk. Schultz denied that anyone else was in the room, but when Detective Rotuno and 

Lieutenant Lewis opened the door, they saw two people. Schultz was ordered to the 

ground.

{¶ 19} The two occupants of the room were identified as Kyohn Green-Burton and 

Natasia Coles-Phillippi. Detective Rotuno immediately saw a large bag of what appeared 

to be crack cocaine on the nightstand between the two beds. He saw syringes and bindles 

of packaged drugs next to the bag of crack cocaine. They recovered a large bag of heroin 

and fentanyl from the room. There was $715 in cash found in the room, $300 of which 
8.

was the marked money that the CI used to make the purchase from Peabody. The 

officers recovered additional items from the room, including cellophane with crack 

cocaine in it; a digital scale like those commonly used in drug trafficking to weigh 

product to be sold on the streets; two paper bindles made from pages of a phone book, 

similar to the bindle Peabody was carrying; a large bag of syringes, commonly used to 

inject illegal drugs; a bottle of gabapentin with the label scratched off; alcohol wipes; a 

piece of paper wrapped with chore boy; a crack cocaine pipe; marijuana; a Crown Royal 

bag; Q-tips wrapped around a visa card; and a packet of kool-aid. (There was some 

suggestion that Coles-Phillippi had mixed kool-aid with heroin before cooking and 

injecting it.) A number of cell phones were confiscated, but none were examined because 

it was deemed unnecessary.

{¶ 20} Some of the confiscated items were sent to BCI for analysis. Because BCI 

has limits on the number of items per incident that it will test, the investigators assigned 

certain items to Peabody, and other items to Schultz, Green-Burton, and Coles-Phillippi,

so that BCI would test as many items as possible. All of these individuals were charged 

with possession of the drugs because they were all involved and associated with the items 

found. It was believed that Green-Burton had supplied the drugs and Peabody was 

selling them. Schultz was complicit because she was in the room and rented it in her 

name, and Phillippi was believed to have been there “for the ride and for the dope.”
9.

{¶ 21} Samuel Fortener, a forensic scientist with BCI, tested the contents of a 

plastic bag, which contained an unknown tan substance. This was the bag that Peabody 

gave to the CI. Fortener determined that the bag contained approximately 1.69 grams of 

heroin and fentanyl. Kelsey Degen, a forensic scientist with BCI, tested several plastic 

bags containing an unknown off-white substance. One contained approximately 4.96 

grams of cocaine (submitted under Schultz’s name); one contained approximately .18 

grams of a combination of cocaine, heroin, and fentanyl (submitted under Schultz’s 

name); one contained approximately .31 grams of cocaine (submitted under Peabody’s 

name); and one contained approximately 19.13 grams of heroin and fentanyl (submitted 

under Green-Burton’s name). Degen also tested a metal spoon with residue retrieved 

from the hotel room (submitted under Coles-Phillippi’s name), which she determined 

contained trace amounts of cocaine, heroin, and fentanyl. 

{¶ 22} Pertinent to Peabody’s assignments of error on appeal, Deputy Chad 

Henderson of the Erie County Sherriff’s Department testified that Judge McGookey 

signed a bench warrant for Peabody’s arrest, file stamped June 14, 2019. Peabody was 

eventually found two years later in Yuma, Arizona, where he was incarcerated for a new 

drug offense. Deputy Henderson executed the warrant on June 25, 2021. 

2. Testimony of Co-Defendants

{¶ 23} The state secured the cooperation of two of Peabody’s co-defendants, 

Green-Burton and Schultz. Both testified at trial.
10.

a. Kyohn Green-Burton

{¶ 24} Green-Burton testified that he is from Detroit. He and Peabody met in 

Lansing, Michigan toward the end of February of 2017, and agreed that Green-Burton 

would obtain drugs, including crack cocaine and heroin, for Peabody to sell in Ohio. 

They would split the profits, but not necessarily evenly. Green-Burton had not been to 

Erie County before this time. 

{¶ 25} Peabody’s father rented a car, and he, Peabody, and Green-Burton drove 

from Lansing to Erie County. As agreed, Green-Burton obtained the drugs; Peabody 

carried them because Green-Burton did not like to travel with drugs on him. Although he 

did not remember the exact quantities, he estimated that he had 28 grams of crack cocaine 

and 20 grams of heroin. 

{¶ 26} When they got to Erie County, they dropped Peabody’s father off and 

picked up Schultz, who Green-Burton had not met before. The plan was for GreenBurton to stay at the house of a woman Peabody knew. They gave her drugs as an 

incentive, but the woman would not let him in. Schultz agreed to rent a hotel room for 

him in her name. Green-Burton’s friend from West Virginia, Coles-Phillippi, met them 

there. Green-Burton and Coles-Phillippi slept in the hotel room; Peabody and Schultz did 

not. Both Green-Burton and Coles-Phillippi had been involved in the sale of narcotics; 

he began selling some time in 2016.
11.

{¶ 27} Green-Burton and Peabody decided that Peabody would work on 

establishing a phone line of people to buy the drugs since Green-Burton did not know 

anyone in Erie County. Peabody made calls from his own phone, but he did not make or 

take calls from the room. Green-Burton would give the drugs to Peabody, Peabody 

would leave, then he would return and say they had been sold. Peabody left four or more 

times. They got arrested three or four days after they arrived.

{¶ 28} At the time of the arrest, Green-Burton was found in possession of 19 

grams of heroin and five grams of cocaine, which was less than the amount he had when 

he arrived. The remainder had been used or sold. Green-Burton used only marijuana—

not heroin or crack cocaine. He does not believe that Schultz used any heroin. The drugs 

were stored in a Crown Royal bag. He did not remember how much money was 

confiscated from the room. 

{¶ 29} Green-Burton was charged as a co-defendant. He entered a plea of guilty 

to the charges arising from the February 2017 arrest. He was sentenced to 41 months in 

prison, to run concurrently with a one-year sentence he’s required to serve in Michigan. 

After he was sentenced, he was approached by the state to discuss his willingness to 

testify at trial. The state agreed that in exchange for his testimony, it would not oppose 

Green-Burton serving six months in a locked treatment facility in Ohio after he served his 

sentence in Michigan. The court will ultimately decide whether to grant him judicial 

release and allow him to serve the reduced time in a treatment facility, and it will 
12.

consider his prison performance record in making that decision. Green-Burton explained 

that he would be in danger in the prison yard for having testified against Peabody.

{¶ 30} Green-Burton has not spoken to Schultz since the arrest. He confirmed that 

the plan to sell drugs in Ohio occurred between he and Peabody, not with Schultz or 

Coles-Phillippi.

{¶ 31} Pertinent to Peabody’s assignments of error, Green-Burton testified 

concerning his criminal history. He claimed that he had been convicted of a first-degree 

home invasion in Michigan for removing his brother’s bike from someone’s garage. He 

was also charged in West Virginia with possession of crack cocaine and heroin. He 

insisted that he has no other felony convictions on his record. 

b. Misty Schultz

{¶ 32} Schultz testified that she and Peabody went to school together and were in 

a romantic relationship. She described herself as an alcoholic and closet drug user. She 

said that weed was her drug of choice, but at the time of the arrest, she was also using 

crack cocaine. She estimated that she had used heroin three times.

{¶ 33} Peabody sent Schultz a picture from Michigan of a large amount of crack 

cocaine that he found. Schultz told him to give it back and not to “mess with the dope 

boys.” He told her he was coming back to sell drugs that he obtained from Green-Burton. 
13.

{¶ 34} Peabody and Green-Burton traveled to Schultz’s home from Michigan on 

February 25, 2017. It was the first time she met Green-Burton. She bought $30 worth of 

crack, which she and Peabody smoked in her driveway.

{¶ 35} The original plan was that Green-Burton and Coles-Phillippi would stay at 

the home of L.G. and use it as a trap house from which drugs would be sold. L.G. had 

known drug contacts and people often consumed drugs at her home. But L.G. wanted too 

much money to rent them her place, so they decided to get a room at the Super 8 hotel. 

Schultz has a license, so she rented the room with her identification. Green-Burton gave 

her cash to pay for the room. They were assigned room 213.

{¶ 36} Schultz explained that she had gone to the hotel for sex, drugs, and 

partying. She watched TV, smoked, and did drugs with Peabody and Coles-Phillippi. 

Schultz testified that she and Coles-Phillippi smoked crack while at the hotel, not heroin. 

Green-Burton did not use the drugs. 

{¶ 37} Peabody sold crack cocaine and heroin out of the hotel room. He was 

making calls and getting texts back and forth trying to move product. The drugs were 

packaged in sandwich baggies that either Peabody or Green-Burton assembled. Schultz 

did not know the quantities that had been brought there from Michigan. She admitted 

that she owns a scale, but denied that the scale found in the hotel room belonged to her. 

Schultz estimated that Peabody arranged 30 drug transactions within a three-day period. 

He was constantly on his cell phone. 
14.

{¶ 38} Peabody went out to sell drugs in the Walmart parking lot. Schultz 

remained in the hotel room when he left for Walmart. He returned, and about an hour or 

so later, she and Peabody left to go get gas in a car that Peabody’s father had rented. 

While at the gas station, she and Peabody got arrested. She was not aware of anything 

illegal in the car and she had no drugs on her other than some char that had fallen into her 

purse. Schultz explained that she had smoked any crack she had had.

{¶ 39} When the car was searched, police found a dirty spoon in the glove 

compartment. Schultz was seated in the passenger seat. Detective Brotherton told her 

that she could be charged for possession of the spoon if nobody admitted it was theirs. 

Schultz asked Peabody to “take his charge” because the spoon was his, but he turned his 

back to her. Because Peabody refused to admit the spoon was his, Schultz decided to 

consent to a search of the hotel room. Schultz believes she confirmed for police that 

there were others in the hotel room. She was ordered to lie face down on the floor 

outside the room while law enforcement raided it. Green-Burton and Coles-Phillippi 

were arrested. Schultz testified that the arrests occurred on February 27, 2017, Peabody’s 

birthday. 

{¶ 40} Schultz was charged with two second-degree felonies. As part of a plea 

agreement, she entered a plea to complicity to possess cocaine, a fifth-degree felony, and 

was granted probation. She violated probation and served 182 days in jail. As part of her

agreement with the state, she was expected to testify against Peabody, Green-Burton, and 
15.

Coles-Phillippi. She has not talked to Green-Burton since the arrest; she has talked to 

Coles-Phillippi once since then.

C. The Verdict

{¶ 41} The jury found Peabody guilty of all counts. The trial court determined 

that Counts 2 and 3, 5 and 6, and 7 and 8 merged for purposes of sentencing. It sentenced 

Peabody to a prison term of 11 months on Count 1; 11 months on Count 2; 11 months on 

Count 4; seven years on Count 6; and 11 months on Count 7. It ordered that Counts 1, 2, 

and 7 be served concurrently with each other and consecutively with Count 6, for a total 

prison term of 95 months. Peabody appealed. He assigns the following errors for our 

review:

I. Appellant’s convictions were against the manifest weight of the 

evidence.

II. The trial court erred in denying Appellant’s Motion to Dismiss 

on speedy trial grounds, in violation of Appellant’s right to a speedy trial 

under the Sixth and Fourteenth Amendments to the United States 

Constitution and Article I, Section 10 of the Ohio Constitution.

III. The failure of Appellant’s trial counsel to cross-examine the 

State’s witness, Kyohn Green-Burton, as to his prior criminal history 

constituted ineffective assistance of counsel, in violation of Appellant’s 
16.

right to counsel under the Sixth and Fourteenth Amendments to the United 

States Constitution and Article I, Section 10 of the Ohio Constitution.

IV. The trial court’s decision to give a jury instruction on 

consciousness of guilt was an abuse of discretion. 

V. The trial court’s imposition of consecutive sentences on 

Appellant was contrary to law for failing to make the requisite findings, 

under R.C. 2929.14(C)(4), at both Appellant’s sentencing hearing and in its 

sentencing entry.

II. Law and Analysis

{¶ 42} In his first assignment of error, Peabody argues that his convictions are 

against the manifest weight of the evidence. In his second assignment of error, he argues 

that his right to a speedy trial was violated. In his third assignment of error, he argues 

that counsel was ineffective for failing to cross-examine Green-Burton about his criminal 

history. In his fourth assignment of error, he argues that the trial court erred when it 

instructed the jury on consciousness of guilt. And in his fifth assignment of error, he 

argues that the trial court failed to make the requisite findings before imposing 

consecutive sentences. 

{¶ 43} We consider each of Peabody’s assignments in turn.
17.

A. Manifest Weight

{¶ 44} In his first assignment of error, Peabody argues that his convictions are 

against the manifest weight of the evidence. First, he maintains that he was not in the 

hotel room when officers entered, therefore, he could not have possessed the items found

in the room. Second, he insists that testimony from Green-Burton and Schultz that he 

“constructively” possessed the items in the room should have been disregarded because 

those witnesses testified in exchange for deals with the state. Third, he complains that 

the state did not take fingerprints from the digital scale found in the room, did not 

investigate phones seized from the room, and did not examine GPS data as part of its 

investigation, and he emphasizes that spoons containing drug residue were not located on 

his person. Finally, he argues that the state failed to prove that he “knowingly” possessed 

items found in the vehicle he was driving on January 27, 2017, because it was his father’s 

vehicle, and the items were found in compartments that could not easily be accessed. 

{¶ 45} The state responds that Peabody’s convictions were premised on theories of 

constructive possession and complicity. It argues that its plea agreements with GreenBurton and Schultz were disclosed to the jury, and it was up to the jury to make 

credibility determinations. The state maintains that fingerprint evidence, GPS data, and 

cell phone extractions were not necessary and would have merely bolstered the testimony 

of Peabody’s co-defendants. And it insists that the jury did not lose its way in 

determining that Peabody knowingly possessed the items found in his father’s car 
18.

because he was in control of the vehicle when the items were found and he constructively 

possessed the items that were not found on his person.

{¶ 46} When reviewing a claim that a verdict is against the manifest weight of the 

evidence, the appellate court must weigh the evidence and all reasonable inferences, 

consider the credibility of witnesses, and determine whether the jury clearly lost its way 

in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice 

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

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We do not view the evidence in a light 

most favorable to the state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the 

factfinder’s resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas 

No. L–10–1369, 2012–Ohio–6068, ¶ 15, citing Thompkins at 388. Reversal on manifest 

weight grounds is reserved for “the exceptional case in which the evidence weighs 

heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio 

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 47} Although under a manifest-weight standard we consider the credibility of 

witnesses, we must nonetheless extend special deference to the jury’s credibility 

determinations given that it is the jury who has the benefit of seeing the witnesses testify, 

observing their facial expressions and body language, hearing their voice inflections, and 

discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist. 

Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14.
19.

{¶ 48} Peabody first argues that because he was not present in the hotel room 

when the officers entered the room, he could not have possessed the items found there. 

Under R.C. 2925.11(A), “[n]o person shall knowingly obtain, possess, or use a controlled 

substance or a controlled substance analog.” Possession may be actual or constructive. 

State v. Williams, 6th Dist. Lucas No. L-14-1056, 2016-Ohio-439, ¶ 16. Under R.C. 

2923.03(A)(2), “[n]o person, acting with the kind of culpability required for the 

commission of an offense, shall * * * [a]id or abet another in committing the offense.” A 

jury could find Peabody guilty if it concluded that Peabody actively or constructively 

possessed the drugs or if he aided or abetted in the possession of the drugs. Importantly, 

Peabody was convicted of complicity in the commission of possession of heroin and 

cocaine. 

{¶ 49} With respect to the drugs in the hotel room, the state’s theory was that 

Peabody constructively possessed the drugs or aided or abetted his co-defendants in 

possessing the drugs. “‘Constructive possession exists when an individual exercises 

dominion and control over an object, even though that object may not be within his [or 

her] immediate physical possession.’” State v. Weemes, 6th Dist. Lucas No. L-18-1243, 

2020-Ohio-140, ¶ 44, quoting State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351 

(1976). Proof of constructive possession requires “evidence demonstrating that the 

defendant was conscious of the presence of the object.” Weemes at ¶ 44. 
20.

{¶ 50} A person has aided or abetted an offense “if he has supported, assisted, 

encouraged, cooperated with, advised, or incited another person to commit the offense.” 

State v. Scott, 5th Dist. Morgan No. 2006-CA-002, 2006-Ohio-6390, ¶ 39, citing State v.

Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus. “Participation in criminal

intent may be inferred from presence, companionship and conduct before and after the 

offense is committed.” (Internal quotations and citations omitted.) State v. McFarland,

162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶ 29.

{¶ 51} Here, the state presented evidence that Peabody and Green-Burton devised

a plan to transport drugs from Lansing to Erie County to sell to Peabody’s contacts in 

Erie County. Peabody personally carried the drugs on the car ride because Green-Burton 

did not like to travel with drugs. Peabody took Green-Burton (and the drugs, which were 

in the car) to L.G.’s house in the hope that they could use L.G.’s house as a trap house, 

and gave L.G. drugs to entice her to allow them to use her home. Peabody introduced 

Green-Burton to Schultz, who ultimately rented the hotel room where they would store 

the drugs while Peabody shored up customers. Peabody was seen coming and going 

from the hotel room where the officers found the drugs. He carried drugs from the hotel 

to sell to the CI. He arranged and carried out numerous additional sales of those drugs. 

And when he we was arrested, he was carrying a bindle of drugs, packaged in paper torn 

from a phone book. All these facts evidence his knowledge that the drugs were stored in 

the room, that he exercised dominion or control over the drugs, and that he “supported, 
21.

assisted, encouraged, cooperated with, advised, or incited” his co-defendants in the 

possession of the drugs. See State v. Lane, 2022-Ohio-3775, 202 N.E.3d 45, ¶ 66 (3d 

Dist.), appeal not allowed, 169 Ohio St.3d 1443, 2023-Ohio-554, 203 N.E.3d 737, 

reconsideration denied, 170 Ohio St.3d 1421, 2023-Ohio-1507, 208 N.E.3d 857 

(detailing evidence of complicity to possess drugs, including evidence indicating that 

defendant had knowledge that father of her child was selling drugs out of her home and 

that she helped to further his actions by providing a location from which he could sell 

drugs, selling the drugs in his absence, and soliciting the help of her friends to further his 

actions).

{¶ 52} Peabody next argues that testimony from Green-Burton and Schultz that he 

“constructively” possessed the items in the room should have been disregarded because 

those witnesses testified in exchange for deals with the state. He insists that jurors should 

have viewed their testimony with grave suspicion, given the testimony reduced weight, 

and found the testimony not credible. 

{¶ 53} The trial judge properly instructed the jury that accomplice testimony 

“should be viewed with grave suspicion and weighed with great caution.” “A jury is 

presumed to follow the instructions given to it by the trial judge.” State v. Clinton, 153 

Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 52, citing State v. Garner, 74 Ohio 

St.3d 49, 59, 656 N.E.2d 623 (1995). We, therefore, presume that the jury, in fact, 

viewed Green-Burton and Schultz’s testimony with grave suspicion and weighed it with 
22.

great caution. Ultimately, however, it was the jury’s role to make credibility 

determinations and to assign the weight to be given to these witnesses’ testimony. It was 

informed of the agreements that Green-Burton and Schultz made with the state and those 

witnesses were cross-examined by defense counsel. The fact that the jury found GreenBurton and Schultz to be credible does not render Peabody’s convictions against the 

manifest weight of the evidence. See State v. Flow, 2022-Ohio-4416, 203 N.E.3d 201, ¶ 

92 (6th Dist.).

{¶ 54} Peabody next complains that the state did not take fingerprints from the 

digital scale found in the room and did not investigate phones seized from the room. He 

criticizes the state for failing to examine GPS data as part of its investigation and to use 

GPS data to corroborate Green-Burton’s testimony that he and Peabody had driven a 

rental car from Lansing, Michigan to Erie County. Peabody insists that the state’s failure 

to present this type of evidence should have weighed heavily against it.

{¶ 55} The state was not required to produce fingerprint evidence linking Peabody 

to the crimes. See State v. Cook, 12th Dist. Butler No. CA2022-02-016, 2023-Ohio-256, 

¶ 31. Nor was it required to present evidence of the contents of the cell phones it seized

or GPS data confirming his whereabouts. See, e.g., State v. Terry, 8th Dist. Cuyahoga 

No. 91290, 2009-Ohio-1878, ¶ 10 (concluding that convictions were not against the 

sufficiency or weight of the evidence despite cell phone evidence not having been 
23.

offered). Peabody’s challenges do not render his convictions against the manifest weight 

of the evidence.

{¶ 56} Finally, Peabody argues that the state failed to prove that he “knowingly” 

possessed items found in the vehicle he was driving because it was his father’s vehicle, 

and the items were found in compartments that could not easily be accessed. The state 

counters that Peabody was the sole occupant and driver of the vehicle, thus he was 

exercising dominion and control over the items found in the vehicle regardless of the fact 

that it belonged to his father. 

{¶ 57} First, the state was not required to show that Peabody owned the vehicle. 

Because he was driving the vehicle and was able to exercise dominion and control over 

the vehicle and its contents, he could be charged with possession for illegal items found 

in the vehicle. See, e.g., State v. Graziani, 3d Dist. Defiance No. 4-10-01, 2010-Ohio3550, ¶ 17 (recognizing that ownership of vehicle was not necessary to show that 

defendant had possession, use, and control of the vehicle and constructive possession of 

the drug paraphernalia found in the vehicle); State v. Reed, 6th Dist. Erie No. E-17-038, 

2018-Ohio-4451, ¶ 18. As for the spoon with residue found in the console of the vehicle, 

this court has held that a driver may be convicted for possession of drugs or paraphernalia 

found in a center console, regardless of the fact that he or she did not own the vehicle. 

See Reed at ¶ 9-20. Finally, as to the items found in the air vent, the court in State v.

Paige, 8th Dist. Cuyahoga No. 97939, 2012-Ohio-5727, ¶ 16-18, affirmed the 
24.

defendant’s conviction for possession of drugs found in the air vent of a vehicle even 

though the vehicle belonged to his uncle and his uncle allegedly allowed others to drive 

the vehicle. While there was evidence in this case that officers had to use a wire hanger 

to remove the items from the air vent, the jury could reasonably have concluded that the 

items belonged to Peabody and not his father.

{¶ 58} In short, it was the role of the jury to judge credibility and weigh the 

evidence here. We cannot say that the jury lost its way in resolving the facts in favor of 

the state. This is not the exceptional case in which the evidence weighs heavily against 

the conviction. We find Peabody’s first assignment of error not well-taken. 

B. Speedy Trial

{¶ 59} In his second assignment of error, Peabody argues that the trial court erred 

when it denied his motion to dismiss for violation of his right to a speedy trial as 

guaranteed by the Sixth Amendment to the U.S. Constitution and Article I, Section 10 of 

the Ohio Constitution. The state responds that Peabody was not being held solely on the 

charges in this case, thus triple-count provisions of R.C. 2945.71(E) did not apply, and it

emphasizes that most delays were not chargeable to the state due to tolling events.

{¶ 60} The Sixth Amendment to the U.S. Constitution and Article I, Section 10 of 

the Ohio Constitution grant an accused the right to a speedy trial. State v. Martin, 156 

Ohio St.3d 503, 2019-Ohio-2010, 129 N.E.3d 437. This right is also codified in R.C. 

2945.71, et seq. Id. Under R.C. 2945.71(C)(2), “[a] person against whom a charge of 
25.

felony is pending * * * shall be brought to trial within two hundred seventy days after the 

person’s arrest.” Under R.C. 2945.71(E), for purposes of computing such time, “each 

day during which the accused is held in jail in lieu of bail on the pending charge shall be 

counted as three days.” R.C. 2945.72 sets forth circumstances in which the period for 

bringing an accused to trial may be extended. They include:

(A) Any period during which the accused is unavailable for hearing 

or trial, by reason of other criminal proceedings against the accused, within 

or outside the state, by reason of confinement in another state, or by reason 

of the pendency of extradition proceedings, provided that the prosecution 

exercises reasonable diligence to secure availability of the accused;

* * *

(C) Any period of delay necessitated by the accused’s lack of 

counsel, provided that such delay is not occasioned by any lack of diligence 

in providing counsel to an indigent accused upon the accused’s request as 

required by law;

(D) Any period of delay occasioned by the neglect or improper act 

of the accused;

(E) Any period of delay necessitated by reason of a plea in bar or 

abatement, motion, proceeding, or action made or instituted by the accused;

* * *
26.

(G) Any period during which trial is stayed pursuant to an express 

statutory requirement, or pursuant to an order of another court competent to 

issue such order;

(H) The period of any continuance granted on the accused’s own 

motion, and the period of any reasonable continuance granted other than 

upon the accused’s own motion[.]

* * *

{¶ 61} When reviewing a speedy trial issue, we must “count the days of delay 

chargeable to either side and determine whether the case was tried within the time limits 

pursuant to R.C. 2945.71.” State v. Hopkins, 7th Dist. Mahoning No. 11 MA 107, 2012-

Ohio-3003, ¶ 12, citing State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 

N.E.2d 283, ¶ 8. A trial court’s decision denying a motion to dismiss based upon a 

violation of the speedy trial provisions presents a mixed question of law and fact. State v.

Beal, 2021-Ohio-3812, 179 N.E.3d 754, ¶ 20 (5th Dist.). We accept as true any facts

found by the trial court so long as they are supported by competent, credible evidence, 

but we review legal issues de novo. Id.

{¶ 62} Rather than recite the parties’ arguments, we will construct our own 

timeline and consider the parties’ pertinent arguments in determining whether Peabody’s 

right to a speedy-trial was violated. That timeline is as follows:
27.

Date Event Tolling? # 

Days 

Triple 

Count?

Total

Days

11/8/17 Indictment is filed

11/13/17 Judgment entry from 

court directs sheriff to 

transport Peabody from 

Mansfield Correctional 

Institution 

11/17/17 Arrest warrant is served 

at Mansfield 

Correctional Institution

SPEEDY TRIAL 

TIME BEGINS TO 

RUN

11/21/17 Peabody is arraigned 4 no; 

incarcerated 

on another 

matter

4

11/22/17 Notice to the court 

indicating that Peabody 

is presently serving 

prison sentence

1 no; 

incarcerated 

on another 

matter

1

12/12/17 Judgment entry from 

the court directs sheriff 

to transport Peabody 

from Mansfield 

Correctional Institution

for 1/9/18 PT

20 no; 

incarcerated 

on another 

matter

20

1/2/18 Peabody released from 

Mansfield Correctional 

Institution and taken to 

Erie County jail

21 no; 

incarcerated 

on another 

matter

21

1/9/18 Defense counsel failed 

to appear for 1/9/18 PT

Yes, time tolled until 

2/13/18 court date

7 Yes; 

completed 

other 

sentence 

1/2/18 

21

1/17/18 Peabody is released

from jail

Yes (see above) 0 0
28

.

2/13/18 Defendant’s motion for 

continuance and waiver 

of speedy trial till next 

court date

Yes, time tolled until 

4/3/18 court date

(R.C. 2945.72(H))

00

4/2/18 Scheduling conflict of 

court

Yes, time tolled until 

4/10/18(R.C. 

2945.72(H))

00

4/10/18 Defendant’s motion for 

continuance and waiver 

of speedy trial till next 

court date

Yes, time tolled until 

4/24/18 court date (R.C. 2945.72(H))

00

4/24/18 Pretrial; bond revoked

for failure to appear

Yes; improper 

conduct of defendant (R.C. 2945.72(D))

00

4/26/18 Bench warrant Yes; improper 

conduct of defendant (R.C. 2945.72(D))

00

10/19/18 Peabody is arrested Yes; improper 

conduct of defendant (R.C. 2945.72(D))

00

10/23/2018 Defendant’s motion for 

continuance

Yes, time tolled until 

11/20/18 court date (R.C. 2945.72(H))

00

11/20/18 Defendant’s motion for 

continuance and waiver 

of speedy trial till next 

court date

Yes, time tolled until 

1/8/19 court date (R.C. 2945.72(H))

00

1/8/19 Defendant’s motion for 

continuance and waiver 

of speedy trial till next 

court date

Yes, time tolled until 

2/26/19 court date

(R.C. 2945.72(H))

00

2/26/19 Defendant’s motion for 

continuance and waiver 

of speedy trial

Yes, time tolled until 

3/19/19 court date (R.C. 2945.72(H))

00

3/6/19 Peabody is released

from jail

Yes (see above)00

3/19/19 Defendant’s motion for 

continuance and waiver 

of speedy trial till next 

court date

Yes, time tolled until 

5/7/19 court date (R.C. 2945.72(H))

00
29

.

5/7/19 Defendant’s motion for 

continuance

Yes, time tolled until 

7/8/19 jury trial (R.C. 2945.72(H))

00

6/13/19 Defense counsel’s 

motion to withdraw

Yes (see above)00

6/14/19 Bench warrant issued Yes (see above); 

also improper 

conduct of defendant (R.C. 2945.72(D))

00

6/25/21 Arrested in Arizona; 

held on Erie County 

case Nos. 2017-CR-

0487; 2018-CR-0042; 

2018-CR-0477

Yes. On 5/7/19, 

Peabody waived 

speedy trial until 

7/8/19 jury trial, but 

left jurisdiction in 

the meantime. Next 

post-arrest court date 

scheduled for 

7/27/21.

00

7/26/2021 Defendant’s motion for 

continuance

Yes, time tolled until 

9/7/21 court date

(R.C. 2945.72(H))

00

9/8/21 Defendant’s motion for 

continuance

Yes, time tolled until 

11/2/21 court date (R.C. 2945.72(H))

00

11/2/21 Defendant’s motion for 

continuance and speedy 

trial waiver until next 

court date

Yes, time tolled until 

1/4/22 court date (R.C. 2945.72(H))

00

Covid outbreak at Erie 

County Jail necessitates 

continuance of 1/4/22 

PT

Yes, time tolled until 

1/18/22(R.C. 

2945.72(H))

00

Illness of judge 

necessitates 

continuance of 1/18/22 

PT

Yes, time tolled until 

1/25/22(R.C. 

2945.72(H))

00

1/25/22 Defendant’s motion for 

continuance

Yes, time tolled until 

2/22/22(R.C. 

2945.72(H))

00
30.

2/22/22 Defendant’s motion for 

continuance

Yes, time tolled until 

6/27/22 (R.C. 

2945.72(H))

0 0

6/27/22 Jury Trial 0 0

TOTAL 

DAYS

67

{¶ 63} R.C. 2945.72(H) provides that the period for bringing an accused to trial 

may be extended for a “period of any continuance granted on the accused’s own motion, 

and the period of any reasonable continuance granted other than upon the accused’s own 

motion.” Most of the continuances described above resulted from defense motions. 

There were three short continuances necessitated by other circumstances: (1) a 

scheduling conflict of the trial court required an eight-day continuance; (2) a Covid 

outbreak at the jail required a two-week continuance; and (3) the trial judge’s illness 

required a one-week continuance.

{¶ 64} “‘[A] trial court may continue a trial date without violating a defendant’s 

right to a speedy trial if the purpose and length of the continuance are reasonable.’” State

v. Stoddard, 2020-Ohio-893, 152 N.E.3d 990, ¶ 14 (9th Dist.), quoting State v. Brewer, 

9th Dist. Lorain No. 14CA010608, 2016-Ohio-5366, ¶ 10. A sua sponte continuance 

must be accompanied by a journal entry explaining the reason for the continuance. Id. 

{¶ 65} Ohio courts have recognized that a scheduling conflict may be a reasonable 

purpose for a continuance. Id.; State v. Glass, 3d Dist. Auglaize No. 2-04-01, 2004-

Ohio-4402, ¶ 11. Additionally, the Ohio Supreme Court has recognized that trial courts 

may continue trials for defendants on a case-by-case basis as needed to prevent the spread 
31.

of the coronavirus. In re Disqualification of Fleegle, 161 Ohio St.3d 1263, 2020-Ohio5636, 163 N.E.3d 609, citing 2020 Ohio Atty.Gen.Ops. No. 2020-002. 

{¶ 66} Here, the journal entries reflect the reasons for the continuances. The trial 

court granted short continuances due to illness, a scheduling conflict, and a Covid 

outbreak at the jail. The purpose and length of the continuances were reasonable.

{¶ 67} R.C. 2945.72(D) also provides that the period for bringing an accused to 

trial may be extended for a “[a]ny period of delay occasioned by the neglect or improper 

act of the accused.” Here, additional continuances were necessitated by Peabody’s own 

failure to appear and his departure from the jurisdiction. These circumstances tolled the 

speedy-trial clock. See State v. Bauer, 61 Ohio St.2d 83, 84, 399 N.E.2d 555, 556 (1980)

(“[A] defendant who fails to appear at a scheduled trial, and whose trial must therefore be 

rescheduled for a later date, waives his right to assert the provisions of R.C. 2945.71 

through 2945.73 for that period of time which elapses from his initial arrest to the date he 

is subsequently rearrested.).

{¶ 68} As for application of the triple-count provision of R.C. 2945.71(E), this 

provision “applies only to those defendants who are held in jail in lieu of bail solely on 

the pending charge.” (Emphasis in original.) State v. Burrows, 8th Dist. Cuyahoga No. 

54153, 1988 WL 12981, *3 (Feb. 11, 1988). See also State v. Harris, 6th Dist. Huron 

No. H-99-010, 2000 WL 731374, *7 (Jun. 9, 2000). The record demonstrates that 

Peabody was incarcerated on another matter for the period of his arrest on November 17, 
32.

2017, through January 2, 2018, therefore, he is not entitled to the benefit of the three-forone provision for those days. The only period for which the triple-count provision 

applies was January 2, 2018, to January 9, 2018. All other time that Peabody spent in jail 

solely on this charge has been charged to him under R.C. 2945.72(D) and (H).

{¶ 69} The trial court did not err in denying Peabody’s motion to dismiss for 

violation of his right to a speedy trial. We find Peabody’s second assignment of error not 

well-taken. 

C. Ineffective Assistance of Counsel

{¶ 70} In his third assignment of error, Peabody argues that although GreenBurton testified that he had a 2017 felony conviction in Michigan for a home invasion, a 

felony conviction in West Virginia for possession of crack cocaine and heroin, and a 

conviction related to the present case, Green-Burton had numerous additional convictions 

about which trial counsel failed to cross-examine him. Peabody maintains that trial 

counsel was ineffective for failing to do so, and he insists that if he had done so, it would 

have emphasized Green-Burton’s incentive to cooperate with the state, it would have 

made clear that Green-Burton specifically lied at trial when he said that the Michigan, 

West Virginia, and present case were his only prior felony convictions, and the jury 

would have found Green-Burton’s testimony less credible. Peabody urges that GreenBurton’s testimony was crucial to the state’s case because it was the only evidence that 

Green-Burton had an arrangement to sell drugs to Peabody, the testimony linked Peabody 
33.

to the contents of the hotel room, and there had been little other testimony that Peabody 

had been present in the hotel room where the drugs and other items had been found. 

{¶ 71} The state responds that Peabody offers no evidence that Green-Burton had 

criminal offenses beyond what he admitted at trial. Although trial counsel made a 

reference to Green-Burton’s “extensive criminal history,” the record contains nothing 

more on the topic. Additionally, the state emphasizes that it was clear to the jury that 

Green-Burton is not a law-abiding citizen and that he had made a deal with the state to 

testify against Peabody. It insists that Peabody has not demonstrated that there was a 

reasonable probability of a different outcome had trial counsel cross-examined GreenBurton about additional prior convictions.

{¶ 72} In order to prevail on a claim of ineffective assistance of counsel, an 

appellant must show that counsel’s conduct so undermined the proper functioning of the 

adversarial process that the trial court cannot be relied on as having produced a just 

result. State v. Shuttlesworth, 104 Ohio App.3d 281, 287, 661 N.E.2d 817 (7th 

Dist.1995). To establish ineffective assistance of counsel, an appellant must show “(1) 

deficient performance of counsel, i.e., performance falling below an objective standard of 

reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for 

counsel’s errors, the proceeding’s result would have been different.” State v. Hale, 119 

Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland v. 

Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A 
34.

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).

{¶ 73} Properly licensed Ohio lawyers are presumed competent. State v. Banks,

9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. To establish ineffective 

assistance of counsel, the defendant must show that counsel’s performance fell below an 

objective standard of reasonableness and that the deficient performance prejudiced the

defendant so as to deprive him of a fair trial. Strickland at 688-692. As recognized in 

Strickland, there are “countless ways to provide effective assistance in any given case.” 

Id. at 689. “Judicial scrutiny of counsel’s performance must be highly deferential.” State 

v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 689. 

{¶ 74} Moreover, in matters involving trial strategy, “courts will generally defer to 

the judgment of trial counsel, even where ‘another and better strategy’ might have been 

available.” State v. Newsome, 11th Dist. Ashtabula No. 2003-A-0076, 2005-Ohio-3775, 

¶ 8, quoting State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). “A court 

will only consider reversing on these grounds where the choice of trial strategy so 

deviates from the standard of reasonableness ‘that ordinary trial counsel would scoff at 

hearing of it.’” Id., quoting State v. Burgins, 44 Ohio App.3d 158, 160, 542 N.E.2d 707

(1988).

{¶ 75} After Green-Burton testified, defense counsel indicated his desire to recall 

him to the stand to reexamine him because “it turns out he has a fairly extensive criminal 
35.

history.” The court asked the state for its response, and the attorney for the state said that 

she had given the defense a copy of Green-Burton’s computerized criminal history 

(“CCH”) and the only things on it were the convictions about which he testified. The 

court then asked defense counsel if he had the CCH that morning, during Green-Burton’s 

testimony. Defense counsel said yes, but explained that he “did not have access to get a 

certified copy.” Because defense counsel had the document at the time Green-Burton 

testified, the court denied his request to recall the witness.

{¶ 76} In State v. Anderson, 4th Dist. Lawrence No. 17CA6, 2018-Ohio-2013, ¶ 

34, appellant argued that his attorney was ineffective for failing to cross-examine a 

witness more thoroughly about her criminal history. The court rejected this argument, 

reasoning that it could not conclude that “more specific details regarding [the witness’s] 

criminal history would have led the jury to wholly discredit [her] testimony such that the 

outcome of appellant’s trial would have been different.” Id. It noted that the defendant 

had not suggested what further probing of the witness’s criminal past would have 

revealed and emphasized that appellant could only speculate that additional evidence 

regarding the witness’s criminal past would have led the jury to acquit him. The court 

also recognized that “[t]he jury was well-aware that [the witness] had not been a lawabiding citizen;” she had been cross-examined about “her criminal history, her drug use, 

and her motivation to become a confidential informant;” she admitted that she had prior 

criminal charges involving dishonesty, that she had abused drugs, that she had overdosed, 
36.

and that after her overdose, she became a CI; and counsel had elicited evidence implying 

that she had implicated the defendant because of a romantic tiff. 

{¶ 77} Like Anderson, the jury here was well aware that Green-Burton had felony 

convictions and had been selling drugs for at least a year before his arrest in this case. It 

also understood that Green-Burton’s cooperation had been rewarded greatly by a likely 

reduction of his 41-month prison term to a six-month stay in a treatment facility. And

like Anderson, there is nothing in the record specifying what other criminal convictions 

existed and whether additional purported convictions—or his failure to disclose such 

convictions on direct examination—would have discredited him any more seriously than 

the convictions that he did disclose. As such, we cannot say that there was a reasonable 

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

cross-examined Green-Burton more thoroughly about his criminal history.

{¶ 78} Peabody attempts to distinguish Anderson by arguing that counsel in 

Anderson failed to obtain details of the witness’s criminal history before trial, whereas 

defense counsel here had a copy of the criminal history at the time Green-Burton 

testified. He emphasizes that counsel sought to subpoena Green-Burton as a rebuttal 

witness, but the court would not allow it. While this may have some bearing in 

evaluating the advisability of counsel’s trial strategy (if we were inclined to evaluate 

counsel’s trial strategy), we fail to see how this distinction impacts our conclusion 

concerning the reasonable probability of a different outcome.
37.

{¶ 79} Finally, Peabody insists that “[r]evealing Green-Burton’s full criminal 

history would have led to Peabody’s acquittal” because “[t]he jury would have had much 

more rationale to discredit his testimony, which was critical to the State’s case.” This is 

purely speculative. Green-Burton’s testimony was consistent with Schultz’s testimony. 

Schultz testified that Peabody told her that Green-Burton would be providing drugs and 

that he would be selling it. Schultz knew that Peabody and Green-Burton originally 

planned to sell drugs out of L.G.’s house and that they were forced to settle on the hotel 

room. She testified about Peabody’s efforts—his calls and texts—to sell the product that 

Green-Burton had admittedly provided. Given that Schultz and Green-Burton’s 

testimony was entirely consistent, it is unlikely that a jury would have found GreenBurton less credible if it had known that he had a longer or more serious criminal history, 

or if it had been advised that Green-Burton underrepresented the extent of his criminal 

history.

{¶ 80} We find Peabody’s third assignment of error not well-taken. 

D. Jury Instruction

{¶ 81} In his fourth assignment of error, Peabody argues that the trial court abused 

its discretion when it included a jury instruction on consciousness of guilt. He urges that 

he had been living with his father-in-law in Arizona “in plain sight,” and there was no 

evidence that he took steps to conceal himself or his identity or evade capture while in 
38.

Arizona. He also maintains that there was no evidence as to how or why he went to 

Arizona or that he went to Arizona to flee authorities. 

{¶ 82} The state responds that the jury instruction was a correct statement of the 

law and was appropriate under the facts of the case. Specifically, it highlights the 

testimony of Deputy Henderson, who testified that on June 14, 2019, the trial court issued 

a warrant because Peabody violated bond. At that time, a jury trial had been scheduled 

for July 8, 2019. The bench warrant was not executed until June 25, 2021, at which time 

it was discovered that Peabody was incarcerated in Yuma, Arizona, for a new drug 

offense. The state insists that reasonable minds could conclude that Peabody’s leaving 

the state before his scheduled trial date was an attempt to evade justice and was indicative 

of consciousness of guilt. Finally, the state maintains that the evidence of guilt was 

overwhelming, therefore, even if the trial court erred in giving the instruction, any such 

error was harmless.

{¶ 83} Trial courts are charged with giving juries correct and comprehensive 

instructions that adequately reflect the argued issues in the given case before them. State

v. Sneed, 63 Ohio St.3d 3, 9, 584 N.E.2d 1160 (1992). “Requested jury instructions 

should ordinarily be given if they are correct statements of law that are applicable to the 

facts in the case, and reasonable minds might reach the conclusion sought by the 

instruction.” Miller v. Defiance Regional Med. Ctr., 6th Dist. Lucas No. L-06-1111, 

2007-Ohio-7101, ¶ 40, citing Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 
39.

575 N.E.2d 828 (1991). We review the trial court’s instructions to the jury for an abuse 

of discretion. State v. White, 2013-Ohio-51, 988 N.E.2d 595, ¶ 97 (6th Dist.), citing State

v. Lillo, 6th Dist. Huron No. H-10-001, 2010-Ohio-6221, ¶ 15. In doing so, we review 

the instructions as a whole to determine whether or not the jury was likely misled in a 

matter materially affecting the substantial rights of the party who claims error. Miller at ¶ 

40, citing Becker v. Lake Cty. Mem. Hosp. West, 53 Ohio St.3d 202, 208, 560 N.E.2d 165 

(1990).

{¶ 84} Evidence of flight is admissible as evidence of consciousness of guilt. 

State v. Williams, 79 Ohio St.3d 1, 11, 679 N.E.2d 646 (1997). “Flight means some 

escape or affirmative attempt to avoid apprehension.” (Internal quotations omitted.) 

State v. Herrell, 6th Dist. Lucas No. L-16-1173, 2017-Ohio-7109, ¶ 24, quoting State v.

Wesley, 8th Dist. Cuyahoga No. 80684, 2002-Ohio-4429, ¶ 19, citing United States v.

Felix–Gutierrez, 940 F.2d 1200, 1207 (9th Cir.1991). To constitute “flight,” the 

defendant must “appreciate that he has been identified as a person of interest in a criminal 

offense and is taking active measures to avoid being found.” State v. Sanchez-Sanchez,

2022-Ohio-4080, 201 N.E.3d 323, ¶ 177 (8th Dist.), appeal not allowed, 169 Ohio St.3d 

1458, 2023-Ohio-758, 204 N.E.3d 569. Flight need not be immediate. State v. White,

2015-Ohio-3512, 37 N.E.3d 1271, ¶ 48 (2d Dist.). “The instruction may be appropriate 

when the defendant, a long-time resident of the area in which the crime occurred, was 

arrested months later in another state or another part of this state.” Id.
40.

{¶ 85} The trial court instructed the jury as follows:

Testimony has been admitted indicating that the Defendant fled from 

the jurisdiction of the Court. You are instructed that the Defendant fleeing 

from the jurisdiction alone does not raise a presumption of guilt, but it may 

tend to indicate the Defendant’s consciousness or awareness of guilt. If 

you find that the facts do not support that the Defendant fled the 

jurisdiction, or if you find that some other motive prompted the 

Defendant’s conduct, or if you are unable to decide what the Defendant’s 

motivation was, then you should not consider this evidence for any 

purpose. However, if you find that the facts support that the Defendant 

engaged in such conduct, and if you decide that the Defendant was 

motivated by a consciousness or awareness of guilt, you may, but are not 

required to, consider the evidence in deciding whether the Defendant is 

guilty of the crimes charged. You alone will determine what weight, if any, 

to give this evidence.

{¶ 86} Here, Peabody was arrested on February 27, 2017. He was indicted on 

November 8, 2017, and appeared for arraignment on November 21, 2017. Discovery was 

proceeding, pretrials were scheduled, and motions were filed. An April 26, 2018 bench 

warrant was issued, and he was arrested on that warrant six months later. A jury trial was 

set for July 8, 2019. But the court was forced to issue another bench warrant on June 14, 
41.

2019, and deputies did not succeed in arresting Peabody until June 25, 2021, at which 

time it was discovered that Peabody was in Arizona, incarcerated on another case. 

Peabody offered no evidence suggesting an alternative motivation for his departure from 

the jurisdiction. It could properly be inferred that Peabody’s travel to Arizona—when he 

knew he had been indicted, prosecution was active, and a jury trial had been set—was an 

attempt to flee from justice. The trial court did not err in instructing the jury on 

consciousness of guilt.

{¶ 87} We find Peabody’s fourth assignment of error not well-taken. 

E. Consecutive Sentences

{¶ 88} The trial court ordered that Peabody serve the sentences imposed for 

Counts 1, 2, and 7 concurrently with each other, but consecutively with the sentence 

imposed for Count 6. In his fifth assignment of error, Peabody argues that the trial court 

imposed consecutive sentences without making sufficient findings required under R.C. 

2919.14(C)(4). In particular, he maintains that at the sentencing hearing, the trial court 

failed to find that consecutive sentences were not disproportionate to the seriousness of

the offender’s conduct and to the danger the offender poses to the public. Moreover, he 

insists that none of the requisite findings are set forth in the sentencing entry, therefore, 

the matter must be remanded for resentencing.

{¶ 89} The state agrees with Peabody that the court failed to make the finding that 

consecutive sentences were not disproportionate to the seriousness of the offender’s 
42.

conduct and to the danger the offender poses to the public, and that it failed to 

incorporate the R.C. 2919.14(C)(4) findings into its sentencing entry. It argues that the 

matter should be remanded to the trial court for a new sentencing hearing.

{¶ 90} Under R.C. 2929.14(C)(4), where a trial court imposes multiple prison 

terms for convictions of multiple offenses, it may require the offender to serve the prison 

terms consecutively if it finds that “consecutive service is necessary to protect the public 

from future crime or to punish the offender and that consecutive sentences are not 

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

offender poses to the public,” and if it also finds any of the following:

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

while the offender was awaiting trial or sentencing, was under a sanction 

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised 

Code, or was under post-release control for a prior offense.

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

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

multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the courses 

of conduct adequately reflects the seriousness of the offender’s conduct.
43.

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

consecutive sentences are necessary to protect the public from future crime 

by the offender.

{¶ 91} “[T]he trial court must make the requisite findings both at the sentencing 

hearing and in the sentencing entry.” (Emphasis in original.) State v. Beasley, 158 Ohio 

St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 253, citing State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. While “a word-for-word recitation of 

the language of the statute is not required,” a reviewing court must be able to discern that 

the trial court engaged in the correct analysis and the record must contain evidence to 

support the trial court’s findings. Bonnell at ¶ 29.

{¶ 92} At the sentencing hearing, the trial court provided the following rationale 

for imposing consecutive sentences:

The Court finds consecutive service is necessary because the crimes 

were committed while awaiting sentencing, trial, under sanction, under post 

release control. The harm is so great or unusual that a single term does not 

adequately reflect the seriousness of the conduct, but, more importantly 

offender’s criminal history shows that consecutive terms are needed to 

protect the public. 

{¶ 93} The parties are correct that the trial court failed to find that 

consecutive service is necessary to protect the public from future crime or to punish the 
44.

offender and that consecutive sentences are not disproportionate to the seriousness of the 

offender’s conduct and to the danger the offender poses to the public. The parties are 

also correct that the findings the trial court made were not incorporated into its judgment 

entry. We, therefore, agree that this matter must be remanded so that the trial court can 

make the necessary findings and issue a judgment entry incorporating its findings.

{¶ 94} We find Peabody’s fifth assignment of error well-taken. 

III. Conclusion

{¶ 95} Peabody’s convictions were not against the manifest weight of the 

evidence. Peabody was convicted under theories of complicity or constructive 

possession, therefore, it was not necessary that he be in actual possession of the crack 

cocaine and heroin that was found in the hotel room. The fact that the jury found GreenBurton and Schultz to be credible does not render the convictions against the manifest 

weight of the evidence. The state was not required to produce fingerprint evidence, the 

content of cell phones, or GPS data. And Peabody could be found to have possessed the 

items found in his father’s vehicle—even the items found in the air vent—because he was 

driving the vehicle and exercised dominion and control over the vehicle and its contents. 

It was the role of the jury to weigh the evidence and make credibility determinations. 

This is not the exceptional case where the evidence weighs heavily against conviction. 

We find Peabody’s first assignment of error not well-taken. 
45.

{¶ 96} Peabody’s right to a speedy trial was not violated. Most of the delays that 

occurred in this case were chargeable to Peabody because he sought continuances or 

engaged in improper conduct, such as failing to appear at trial or leaving the jurisdiction 

despite a scheduled jury trial. Triple-count provisions did not apply while he was 

incarcerated on other matters. We find Peabody’s second assignment of error not welltaken. 

{¶ 97} Trial counsel was not ineffective for failing to cross-examine Green-Burton 

more thoroughly as to his criminal record. The jury was already aware that Green-Burton 

was a convicted felon who had been selling drugs for at least a year before his arrest in 

this case and had been rewarded for cooperating with the state. We cannot say that there 

was a reasonable probability that the outcome of the trial would have been different had 

defense counsel cross-examined Green-Burton more thoroughly about his criminal 

history, especially given that there was nothing in the record specifying what criminal 

convictions existed. We find Peabody’s third assignment of error not well-taken.

{¶ 98} The trial court did not abuse its discretion when it instructed the jury on 

consciousness of guilt. There was evidence in the record that Peabody went to Arizona 

after he was indicted and after the court had scheduled a jury trial and that the court 

issued a bench warrant for his arrest. Reasonable minds could conclude that Peabody’s 

leaving the state before his scheduled trial date was an attempt to evade justice and was 
46.

indicative of consciousness of guilt. We find his fourth assignment of error not welltaken.

{¶ 99} The parties agree that at the sentencing hearing, the trial court failed to 

make all findings necessary under R.C. 2929.14(C)(4) before imposing 

consecutive sentences and that it failed to incorporate its R.C. 2929.14(C)(4) findings 

into the sentencing entry. We find Peabody’s fifth assignment of error well-taken. We 

remand this matter to the trial court so that it can consider whether consecutive sentences 

should be imposed under R.C. 2929.14(C)(4) and for it to incorporate any such findings 

into its sentencing entry.

{¶ 100} We affirm, in part, and reverse, in part, the September 6, 2022 judgment 

of the Erie County Court of Common Pleas. The parties are ordered to share the costs of 

this appeal under App.R. 24.

Judgment affirmed, in part,

and reversed, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4.
47.

State of Ohio

v. William J. Peabody

E-22-042

Thomas J. Osowik, J. ____________________________

JUDGE

Christine E. Mayle, J. 

____________________________

Gene A. Zmuda, J. JUDGE

CONCUR. 

____________________________

JUDGE

This decision is subject to further editing by the Supreme Court of

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.