[Cite as State v. Taylor, 2023-Ohio-928.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 111694

v. :

JO DONTA TAYLOR, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 23, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case Nos. CR-20-650400-A, CR-21-658502-A, and CR-21-660748-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Jonathan Block, Assistant Prosecuting 

Attorney, for appellee. 

Joseph V. Pagano, for appellant.

FRANK DANIEL CELEBREZZE, III, P.J.:

Appellant Jo Donta Taylor (“appellant”) appeals his conviction and 

sentence by the Cuyahoga County Court of Common Pleas for trafficking, drug 

possession, having weapons while under disability, carrying a concealed weapon, 

improper handling of a firearm in a motor vehicle, and possession of criminal tools. 
After a thorough review of the applicable law and facts, we affirm the judgment of 

the trial court.

I. Factual and Procedural History

This case began with a traffic stop by Officer Matthew Mindlin (now a 

detective) of the Parma Police Department. Ofc. Mindlin was a patrolman at the 

time of the stop. He was traveling down W. 33rd Street in Parma, Ohio, when he 

observed a gray Infiniti SUV with extremely heavy window tint and an unreadable 

license plate. 

Inside the vehicle was the driver, later identified as appellant, and a 

passenger, later identified as Jermain Brown. Initially, appellant stated that he did 

not have identification on him and could not remember his social security number. 

Because the passenger also did not have a driver’s license and in the interest of 

officer safety, Ofc. Mindlin had the occupants step out of the vehicle. Patrolman 

Nicholas Schuld of the Parma Police Department also arrived on scene.

Ofc. Mindlin spoke with Brown and detected the odor of marijuana and 

observed little pieces of marijuana in the vehicle, called “shake.” Brown stated that 

he had marijuana on his person and was searched by Ofc. Mindlin. The search 

yielded a small plastic cup that contained approximately one gram of marijuana.

Ofc. Mindlin then conducted a probable-cause search of the vehicle and 

discovered several small baggies of marijuana, a digital scale that had marijuana 

residue on it, and appellant’s social security card in the driver’s side door. He further 

found a small plastic baggie with blue powder in it on the floorboard near the gas 
pedal. He believed the blue powder to be ecstasy. He showed the baggie to appellant 

and asked if it was ecstasy. Appellant said that it was and that it belonged to his 

brother. When Ofc. Mindlin turned to secure the baggie in the vehicle, intending to 

then secure appellant in handcuffs, appellant fled the scene on foot. 

Both officers chased after appellant, and Ofc. Schuld also released the 

K9 officer, Coney. Appellant was apprehended and placed in handcuffs. They 

returned to the vehicle where Brown had remained. Appellant and Brown were 

secured into a patrol cruiser, and Ofc. Mindlin resumed searching appellant’s 

vehicle. 

Ofc. Mindlin located numerous debit cards, credit cards, and a 

checkbook that were not in appellant or Brown’s names. A Gucci purse was 

discovered under the back half of the driver’s seat. Upon opening the purse, Ofc.

Mindlin discovered two handguns. The rear passenger seat had a child’s car seat, 

on top of which was a small safe. Inside the safe were marijuana receipts for a 

dispensary in Michigan and a large bag of what was believed to be ecstasy pills. 

Small denominations of money were also located throughout the vehicle along with 

small plastic cups like the one found on Brown.

The pills and the baggie of blue powder were submitted for testing and 

determined to be methamphetamine.

Appellant was indicted on six charges: trafficking, a felony of the second 

degree, in violation of R.C. 2925.03(A)(2), along with a one-year firearm 

specification; drug possession, a felony of the second degree, in violation of R.C. 
2925.11, along with a one-year firearm specification; having weapons while under a 

disability, a felony of the third degree, in violation of R.C. 2923.13(A)(3); carrying a 

concealed weapon, a felony of the fourth degree, in violation of R.C. 2923.12(A)(2); 

improper handling of a firearm in a motor vehicle, a felony of the fourth degree, in 

violation of R.C. 2923.16(B); and possession of criminal tools, a felony of the fifth 

degree, in violation of R.C. 2923.24.

Appellant elected to have a jury trial on all charges except for the 

having-weapons-while-under-a-disability count, which was tried to the court. At 

trial, the state presented the testimony of Myno Reed, the prior owner of the vehicle 

appellant was driving, Ofc. Schuld, Ofc. Thomas Desmarteau, who tested the 

firearms in this matter, Ofc. Mindlin, Edgar Andrus, a forensic scientist at the 

Cuyahoga County Regional Forensic Science Laboratory, and Det. Norman Kekic, 

who investigated the case. 

The jury found appellant guilty of all charges, and the court found him 

guilty of the remaining charge. At sentencing, the court determined that Counts 1 

and 2 merged and that Counts 3, 4, and 6 merged. The court imposed a sentence on 

Count 1 (trafficking), Count 5 (possession of criminal tools), and Count 6 (having 

weapons while under a disability). 

The court advised appellant that Count 1 was a qualifying felony under 

the Reagan Tokes Law and sentenced him to a minimum term of two years with a 

maximum term of three years. He was further sentenced to one year on the firearm 

specification, to be served consecutively to his sentence on Count 1. The court 
imposed six months on Count 5 and nine months on Count 6, to be served 

concurrently with Count 1. Appellant was also serving a nine-month prison term in 

another case that the court determined was to run consecutively to the sentence in 

this matter for a total prison sentence of three years and nine months to four years 

and nine months.

Taylor then filed the instant appeal, raising eight assignments of error 

for our review:

1. It was plain error and the appellant’s state and federal constitutional 

right to the effective assistance of counsel was violated when evidence 

was admitted without objection in violation of Evidence Rules 401, 

402, 403, and 404.

2. Appellant was deprived of his state and federal constitutional rights 

to due process, a fair trial and effective assistance of counsel where the 

jury was permitted to return verdicts based on charges different than 

those found by the grand jury.

3. The trial court erred by denying appellant’s motion for mistrial and 

by emphasizing the inadmissible other act evidence through a curative 

instruction in violation of appellant’s federal and state constitutional 

right to a fair trial and due process.

4. Appellant’s convictions were not supported by sufficient evidence 

and the trial court erred by denying his motion for acquittal.

5. The convictions were against the manifest weight of the evidence.

6. Appellant was deprived of a fair trial where the jury heard 

inadmissible prejudicial hearsay testimony without a curative 

instruction and the court allowed law enforcement to vouch for the 

credibility of the non-testifying witness.

7. Appellant’s state and federal constitutional right to effective 

assistance of counsel was violated because counsel did not file a motion 

to suppress.
8. The trial court erred by imposing an indefinite sentence pursuant to 

the Reagan Tokes Act because it is unconstitutional.

II. Law and Argument

A. Admission of Evidence – Ineffective Assistance 

of Counsel and Plain Error

In his first assignment of error, appellant argues that evidence of 

irrelevant other acts was admitted at trial — in particular, testimony regarding the 

presence of debit cards, credit cards, and a checkbook in other people’s names. He 

contends that this evidence was admitted to allow the jury to infer that appellant 

had bad character, in violation of Evid.R. 404(B). He acknowledges that his trial 

counsel failed to object to this evidence, but argues that this amounts to ineffective 

assistance of counsel.

“[A] reviewing court’s analysis is generally limited to reviewing issues 

raised on appeal solely for plain error or defects affecting a defendant’s 

substantial rights pursuant to Crim.R. 52(B). State v. Tisdale, 8th Dist. 

Cuyahoga No. 74331, 1998 Ohio App. LEXIS 6143 (Dec. 17, 1988). The 

plain error doctrine should be invoked by an appellate court only in 

exceptional circumstances to prevent a miscarriage of justice. State v. 

Cooperrider, 4 Ohio St.3d 226, 227, 448 N.E.2d 452 (1983). Plain error 

will be recognized only where, but for the error, the outcome of the case 

would clearly have been different. Id.”

State v. Bell, 8th Dist. Cuyahoga No. 106842, 2019-Ohio-340, ¶ 61, quoting State v. 

King, 184 Ohio App.3d 226, 2009-Ohio-4551, 920 N.E.2d 399, ¶ 8 (8th Dist.).

“The admissibility of other-acts evidence under Evid.R. 404(B) is a 

question of law” that we review de novo. State v. Hartman, 161 Ohio St.3d 214, 

2020-Ohio-4440, 161 N.E.3d 651, ¶ 22. However, “the trial court’s weighing of the 

probative value of admissible evidence against the danger of unfair prejudice to the 
defendant under Evid.R. 403(A) involves an exercise of judgment[.]” State v. 

Kamer, 6th Dist. Wood No. WD-20-084, 2022-Ohio-2070, ¶ 132, citing State v. 

Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754, ¶ 117, citing Hartman

at ¶ 30. “[S]o we review that decision for an abuse of discretion.” Id., citing id. An 

abuse of discretion occurs where “‘the trial court’s attitude, in reaching its decision, 

was arbitrary, unreasonable, or unconscionable.’” Johnson v. Abdullah, 166 Ohio 

St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 34, quoting Celmer v. Rodgers, 114 

Ohio St.3d 221, 2007-Ohio-3697, 871 N.E.2d 557, ¶ 19.

Evid.R. 404(B)1 provides:

(B) Other crimes, wrongs or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith. 

It may, however, be admissible for other purposes, such as proof of 

motive, opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident. In criminal cases, the proponent of 

evidence to be offered under this rule shall provide reasonable notice 

in advance of trial, or during trial if the court excuses pretrial notice on 

good cause shown, of the general nature of any such evidence it intends 

to introduce at trial.

Evid.R. 403(A) adds that “[a]lthough relevant, evidence is not 

admissible if its probative value is substantially outweighed by the danger of unfair 

prejudice, of confusion of the issues, or of misleading the jury.” The exclusion of 

relevant evidence under Evid.R. 403(A) rests within the discretion of the trial court. 

1 This is the version of Evid.R. 404(B) in effect at the time of the trial. Mostly 

nonsubstantive changes to division (B) went into effect on July 1, 2022, and the quoted 

provision is now split between Evid.R. 404(B)(1) and (2).
State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 107, citing 

State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the 

syllabus.

“Evid.R. 404(B) categorically prohibits evidence of a defendant’s other 

acts when its only value is to show that the defendant has the character or propensity 

to commit a crime.” State v. Smith, 162 Ohio St.3d 353, 2020-Ohio-4441, 165 

N.E.3d 1123, ¶ 36, citing Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 

651, at ¶ 22. “Other-acts evidence may, however, be admissible for another noncharacter-based purpose, such as ‘motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident.’” Id., quoting id. “‘The key 

is that the evidence must prove something other than the defendant’s disposition to 

commit certain acts.’” Id., quoting id.

“The threshold question is whether the evidence is relevant.” Smith at 

¶ 37, citing Hartman at ¶ 24; Evid.R. 401; see also State v. Williams, 134 Ohio St.3d 

521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20. “[T]he problem with other-acts 

evidence is rarely that it is irrelevant; often, it is too relevant.” Smith at ¶ 37, citing 

Hartman at ¶ 25; see 1A Wigmore, Evidence, Section 58.2, at 1212 (Tillers 

Rev.1983). For purposes of Evid.R. 404(B), “the relevance examination asks 

whether the proffered evidence is relevant to the particular purpose for which it is 

offered, as well as whether it is relevant to an issue that is actually in dispute.” Id., 

citing Hartman at ¶ 26-27; see also Huddleston v. United States, 485 U.S. 681, 686, 

108 S.Ct. 1496, 99 L.Ed.2d 771 (1988).
If the court determines that the evidence is probative of an issue in the 

case and is not based upon improper character inferences, the next question is 

whether the value of the evidence “‘is substantially outweighed by the danger of 

unfair prejudice, of confusion of the issues, or of misleading the jury.’” Smith at 

¶ 38, quoting Evid.R. 403(A); Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 

N.E.3d 651, at ¶ 29. “Because other-acts evidence “‘almost always carries some risk 

that the jury will draw the forbidden propensity inference,’” courts should be vigilant 

in balancing the prejudicial impact of the evidence against its probative value.” Id., 

quoting Hartman at ¶ 33, quoting United States v. Gomez, 763 F.3d 845, 857 (7th 

Cir.2014) (en banc).

In a claim of ineffective assistance of counsel, the burden is on the 

defendant to establish that counsel’s performance fell below an objective standard 

of reasonable representation and prejudiced the defense. State v. Bradley, 42 Ohio 

St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus; Strickland v. 

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To determine 

whether counsel was ineffective, appellant must show that: (1) counsel’s 

performance was deficient, in that counsel made errors so serious that counsel was 

not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment, 

and (2) counsel’s deficient performance prejudiced the defense in that counsel’s 

errors were so serious as to deprive the defendant of a fair trial, a trial whose result 

is reliable. Strickland.
In Ohio, a properly licensed attorney is presumed competent. Vaughn 

v. Maxwell, 2 Ohio St.2d 299, 301, 209 N.E.2d 164 (1965). In evaluating whether a 

petitioner has been denied the effective assistance of counsel, the Supreme Court of 

Ohio held that the test is “whether the accused, under all the circumstances, * * * 

had a fair trial and substantial justice was done.” State v. Hester, 45 Ohio St.2d 71, 

341 N.E.2d 304 (1976), paragraph four of the syllabus.

When making that evaluation, a court must determine whether there 

has been a substantial violation of any of defense counsel’s essential duties to his 

client and whether the defense was prejudiced by counsel’s ineffectiveness. State v. 

Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623 (1976); State v. Calhoun, 86 Ohio St.3d 

279, 289, 714 N.E.2d 905 (1999). To show that a defendant has been prejudiced, the 

defendant must prove that there exists a reasonable probability that, were it not for 

counsel’s errors, the result of the trial would have been different. Bradley at 

paragraph three of the syllabus; Strickland.

Part of appellant’s strategy at trial was to argue that it was not his 

vehicle and that other individuals were associated with the vehicle. Thus, it could 

have been defense counsel’s trial strategy to not object to the testimony regarding 

the debit cards, credit cards, and checkbook that did not belong to appellant. They 

could also have belonged to other people, which is what appellant argued about the 

drugs and the firearms. 

“[T]his court will not second-guess what could be considered to be a 

matter of trial strategy.” State v. Gray, 8th Dist. Cuyahoga No. 83097, 2004-Ohio-
1454, ¶ 54, citing State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). The 

failure to object is not a per se indicator of ineffective assistance of counsel because 

counsel may refuse to object for tactical reasons. State v. Wright, 8th Dist. 

Cuyahoga No. 92344, 2009-Ohio-5229, ¶ 45, citing State v. Gumm, 73 Ohio St.3d 

418, 428, 653 N.E.2d 253 (1995).

The record in this case with regard to trial counsel’s actions fails to 

demonstrate that his performance fell below an objective standard of 

reasonableness. In addition, appellant has not demonstrated that the admission of 

the evidence relating to the credit cards, debit cards, and checkbook belonging to 

other people affected his substantial rights or that the outcome of the case would 

have been different. Accordingly, appellant’s first assignment of error is overruled.

B. Jury Verdicts – Ineffective Assistance of Counsel

In his second assignment of error, appellant argues that he received 

ineffective assistance of counsel when the jury was permitted to return verdicts 

based upon charges different from those found by the grand jury. Specifically, 

appellant contends that he was indicted on charges of possession and trafficking of 

methamphetamine, and the state presented evidence and told the jury that they 

could find appellant guilty if they believed he had possessed and sold marijuana. 

Appellant points to his trial counsel’s closing argument where he 

stated that the jury was “free to hold [his] client responsible for the marijuana found 

in the vehicle.” He told the jury that they were “free to judge [appellant] for 

possessing and having marijuana in his car,” but that they could not “hold him 
responsible for the [guns or the] methamphetamine because he did not know they 

were in that car.” Appellant asserts that the state then argued that appellant was 

guilty of drug trafficking because of the presence of the marijuana and the fact that 

it was individually packaged for sale. 

We agree that the prosecutor may have misled the jury in his closing 

argument since appellant’s drug charges related to only the methamphetamine, not 

marijuana. Generally, Ohio courts allow prosecutors considerable latitude in closing 

arguments and they may comment freely on ‘“what the evidence has shown and 

what reasonable inferences may be drawn therefrom.’” State v. Lott, 51 Ohio St.3d 

160, 165, 555 N.E.2d 293 (1990), quoting State v. Stephens, 24 Ohio St.2d 76, 82, 

263 N.E.2d 773 (1970). Nevertheless, they must ‘“avoid insinuations and assertions 

calculated to mislead[.]’” State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and

100899, 2015-Ohio-1013, ¶ 110, quoting Lott at 166. Courts must review the 

prosecutor’s statement within the context of the entire trial, rather than take the 

comments out of context and give them their most damaging meaning. State v. 

Williams, 8th Dist. Cuyahoga No. 97039, 2012-Ohio-1741, ¶ 12, citing State v. Hill, 

75 Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996).

“A misstatement of law by the prosecutor is harmless error if the trial 

court correctly instructs the jury as to the law.” State v. Deanda, 2014-Ohio-3668, 

17 N.E.3d 1232, ¶ 48 (3d Dist.), citing State v. Carter, 72 Ohio St.3d 545, 651 N.E.2d 

965 (1995). In its initial instructions to the jury, the court stated:
You must accept and follow the law as I state it to you whether or not 

you agree with the law. If anything concerning the law said by the 

attorneys and their argument or any time during the trial conflicts with 

my instruction of the law, you must follow my instructions.

With regard to the possession and trafficking charges, the court read 

the indictment to the jury and stated as follows with regard to Counts 1 and 2:

Count 1, trafficking. The Defendant, Jo Donta Taylor, is charged with 

trafficking in violation of Revised Code 2925.03(A)(2) in count 1 of the 

indictment.

* * * 

Before you can find the Defendant guilty, you must find beyond a 

reasonable doubt that on or about the 31st day of March, 2021 and in 

Cuyahoga County, Ohio the Defendant did knowingly prepare for 

shipment, ship, transport, deliver, prepare for distribution or distribute 

a controlled substance or a controlled substance analog when the 

offender knows or has reasonable cause to believe that the controlled 

substance or a controlled substance analog is intended for sale or 

release by the offender or another person and the drug involved in the 

violation is any compound, mixture, preparation or substance included 

in schedule I or schedule II, to-wit; methamphetamine, a schedule II 

drug and the amount of the drug involved equals or exceeds five times 

the bulk amount, but is less than 50 times the bulk amount.

* * * 

If your verdict is guilty of trafficking as charged in count 1 of the 

indictment, you will continue your deliberations and make an 

additional finding as to whether the amount of methamphetamine 

included in this case was or was not in an amount that equals or exceeds 

five times the bulk amount, but is less than 50 times the bulk amount 

and indicate such findings on the further finding verdict form.

* * * 

Count 2, drug possession. The Defendant, Jo Donta Taylor, is charged 

with drug possession in violation Revised Code Section 2925.11(A) in 

count 2 of the indictment.
Before you can find the Defendant guilty of drug possession, you must 

find beyond a reasonable doubt that on or before the 31st day of March, 

2021 and in Cuyahoga County, Ohio, the Defendant did knowingly 

obtain, possess, or use a controlled substance or controlled substance 

analog and the drug involved in the violation is a compound, mixture, 

preparation or substance included in schedule I or schedule II; to-wit 

methamphetamine, a schedule II drug, and the amount of the drug 

involved equals or exceeds five times the bulk amount, but is less than 

50 times the bulk amount.

* * * 

If you[r] verdict is guilty of drug possession as charged in count 2 of the 

indictment, you will continue your deliberations and make an 

additional finding as to whether the amount of methamphetamine 

involved in this case was or was not an amount that equals or exceeds 

five times the bulk amount but is less than 50 times the bulk amount 

and indicate such findings on the further finding verdict form.

The court further read the verdict forms with regard to Counts 1 and 

2:

Count 1 reads, “We the jury in this case, being duly empaneled and 

sworn, do find the Defendant, Jo Donta Taylor,” and you would write 

“guilty” or “not guilty of trafficking in violation of 2925.03(A)(2) of the 

Ohio Revised Code as charged in count 1 of the indictment.” This needs 

to be signed by all 12 members of the jury.

If you find the Defendant guilty in the above, you will then consider and 

complete the following further finding specifications and forfeitures. 

“We the jury in this case find the Defendant, Jo Donta Taylor, is guilty 

of trafficking and we further find that the amount of the controlled 

substance in count 1; to-wit, methamphetamine was or was not in an 

amount that equals or exceeds five times the bulk amount, but is less 

than 50 times the bulk amount” and that needs to be signed by all 12 

members.

* * * 

Count 2 reads, “We the jury in this case, being duly empaneled and 

sworn, do find the Defendant, Jo Donta Taylor,” you would put “guilty”

or “not guilty of drug possession in violation of 2925.11(A) of the Ohio 

Revised Code as charged in count 2 of the indictment.”
If you find the Defendant guilty in the above, you will then consider and 

complete the following further findings. Again, this needs to be signed 

by all 12 members.

Further findings, “We the jury in this case find the Defendant, Jo Donta 

Taylor, is guilty of drug possession and we further find the amount of 

the controlled substance in count 2; to-wit, methamphetamine” you 

will put “was” or “was not in the amount that equal or exceeds five times 

the bulk amount, but less than 50 times the bulk amount” and you 

would sign this with all 12 members.

Appellant does not dispute that the instructions given by the court 

were a correct statement of the law. The instructions and the verdict forms clearly 

referred only to methamphetamine. 

“The test for prosecutorial misconduct during closing arguments is 

whether the remarks were improper and, if so, whether they prejudicially affected 

the accused’s substantial rights.” State v. Were, 118 Ohio St.3d 448, 2008-Ohio2762, 890 N.E.2d 263, ¶ 198, citing State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 

883 (1984). We must look at the entire closing argument to determine whether it 

deprived appellant of a fair trial or prejudiced him. State v. Morton, 8th Dist. 

Cuyahoga No. 109200, 2021-Ohio-581, ¶ 25, citing Were at id.

In the overall context of closing arguments, and given that the trial 

court correctly instructed the jury as to the drug charges, we find that the 

prosecutor’s statements did not prejudicially affect a substantial right of appellant. 

There is no probability that his statements “‘“so infected the trial with unfairness as 

to make the resulting convictions a denial of due process.”’” State v. Kirkland, 160 

Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716, ¶ 115, quoting Darden v. 
Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), quoting 

Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).

Appellant’s second assignment of error is overruled.

C. Mistrial

In his third assignment of error, appellant argues that the trial court 

erred in denying his motion for mistrial and by emphasizing the other acts evidence 

through a curative instruction. Appellant contends that Det. Kekic was allowed to 

testify that appellant was stopped in the same vehicle — the Infiniti — in June 2021 

in Middleburg Heights. Appellant objected to this testimony.

The decision to grant or deny a motion for mistrial lies within the 

sound discretion of the trial court. State v. Miller, 8th Dist. Cuyahoga No. 100461, 

2014-Ohio-3907, ¶ 36, citing State v. Garner, 74 Ohio St.3d 49, 656 N.E.2d 623 

(1995). We will not disturb that “exercise of discretion absent a showing that the 

accused has suffered material prejudice.” Id., citing Sage, 31 Ohio St.3d 173, 510 

N.E.2d 343. A mistrial is only warranted when “the ends of justice so require and ‘a 

fair trial is no longer possible.’” Id., quoting State v. Franklin, 62 Ohio St.3d 118, 

127, 580 N.E.2d 1 (1991).

“In determining whether a mistrial is necessary, the exercise of ‘sound 

discretion’ generally requires that a trial court (1) allow both parties to state their 

positions on the issue, (2) consider their competing interests, and (3) explore 

reasonable alternatives, if any, before declaring a mistrial.” State v. Bogan, 8th Dist. 

Cuyahoga No. 106183, 2018-Ohio-4211, ¶ 25, citing N. Olmsted v. Himes, 8th Dist. 
Cuyahoga Nos. 84076 and 84078, 2004-Ohio-4241, ¶ 44. “A trial court must act 

‘rationally, responsibly, and deliberately’ in determining whether to declare a 

mistrial.” Id., quoting State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, 973 

N.E.2d 243, ¶ 33. 

Appellant placed on the record his objection to testimony regarding 

appellant’s additional traffic stop in the Infiniti and concluded by stating that he was 

going to be moving for a mistrial. He argued that appellant was prejudiced by 

testimony relating to the traffic stop because it constituted improper evidence of 

additional bad acts by appellant. He further contended that he should have been 

able to object to the testimony outside of the presence of the jury.

The state responded that appellant opened the door to such evidence 

by arguing that the car did not belong to him and that he owned nothing in the 

vehicle. He had specifically raised the presence of the woman’s purse in the vehicle, 

maintaining that everything in the vehicle belonged to Reed as the actual owner of 

the vehicle.

The record reflects that the trial court heard competing positions from 

the state and defense regarding the testimony. After consideration, the trial court 

determined that a curative instruction was appropriate and provided as follows:

First, I want to address testimony you heard yesterday.

Ladies and gentlemen, you did hear yesterday that [appellant] was 

stopped in Middleburg Heights on June 22nd of 2021. You are to infer 

nothing from this other than he was operating the motor vehicle in 

question on that date. Okay?
Appellant maintained that he still objected even with the curative instruction. 

However, “[t]his court has explained that ‘[c]urative instructions have been 

recognized as an effective means of remedying errors or irregularities that occur 

during trial.’” State v. Solomon, 8th Dist. Cuyahoga No. 109535, 2021-Ohio-940, 

¶ 94, quoting State v. Williams, 8th Dist. Cuyahoga No. 94242, 2010-Ohio-5484, 

¶ 21. 

While testimony regarding the subsequent traffic stop may have 

implied that appellant committed an additional “bad act,” the state did not introduce 

this evidence to show appellant’s character and that he acted in conformity 

therewith. Rather, the testimony was to show that appellant had used the vehicle 

on more than one occasion. In addition, the testimony simply noted that appellant 

was stopped while driving the vehicle. Nothing was stated about the reason for the 

stop or any other conduct by appellant. 

Appellant further argues that the court erred by giving the curative 

instruction because it emphasized the other act evidence of the subsequent traffic 

stop. We find the curative instruction appropriate in this case because it instructed 

the jury to focus on the purpose of the evidence — that appellant had access to and 

had driven the vehicle after Reed had retrieved the vehicle from the impound lot. 

This court has held that “[w]here the trial court has sustained an objection and 

provided a curative instruction to the jury, we must presume the jury followed the 

trial court’s instruction.” State v. Sailor, 8th Dist. Cuyahoga No. 83552, 2004-Ohio5207, ¶ 34. Nothing in the record rebuts that presumption.
Accordingly, we cannot find that the trial court erred in declining to 

declare a mistrial or administering the curative instruction. Appellant’s third 

assignment of error is overruled.

D. Sufficiency of the Evidence

In his fourth assignment of error, appellant argues that there was 

insufficient evidence to support any of his convictions. He asserts that there was no 

fingerprint or DNA evidence connecting him to the guns or methamphetamine 

found in the car. He further contends that the state was permitted to present 

statements made by the passenger when that passenger did not testify and was not 

subject to cross-examination.

Where a party challenges the sufficiency of the evidence supporting a 

conviction, a determination of whether the state has met its burden of production at 

trial is conducted. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, 

¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). An 

appellate court reviewing sufficiency of the evidence must determine “‘whether, 

after viewing the evidence in a light most favorable to the prosecution, any rational 

trier of fact could have found the essential elements of the crime proven beyond a 

reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 

N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), 

paragraph two of the syllabus. With a sufficiency inquiry, an appellate court does 

not review whether the state’s evidence is to be believed but whether, if believed, the 

evidence admitted at trial supported the conviction. State v. Starks, 8th Dist. 
Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387. A sufficiency 

of the evidence argument is not a factual determination, but a question of law. Id.

Appellant argues that there is no fingerprint or DNA evidence 

connecting him to the guns or methamphetamine found in the vehicle. However, as 

we have noted, Ohio law does not require forensic evidence to sustain a conviction. 

State v. Jones, 8th Dist. Cuyahoga No. 108894, 2020-Ohio-4915, ¶ 39. “This court 

has long held that circumstantial evidence is sufficient to sustain a conviction if that 

evidence would convince the average mind of the defendant’s guilt beyond a 

reasonable doubt.” State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026 

(1990).

Appellant further contends that the police did not thoroughly 

investigate the case. However, as stated by the Supreme Court of Ohio:

Appellant essentially argues that the state’s evidence could have and 

should have been better than it was. Even if that is true, however, the 

state need only have had sufficient evidence, not the best possible 

evidence, to survive a challenge on insufficiency grounds. State v. Dye, 

9th Dist. Summit No. 17763, 1997 Ohio App. LEXIS 873, *8 (Mar. 12, 

1997), rev’d on other grounds, 82 Ohio St.3d 323, 695 N.E.2d 763 

(1998).

State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 166.

As noted above, “[a]n appellate court’s function when reviewing the 

sufficiency of the evidence to support a criminal conviction is to examine the 

evidence admitted at trial to determine whether such evidence, if believed, would 

convince the average mind of the defendant’s guilt beyond a reasonable doubt.” Id. 

at ¶ 167, citing Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph two of the 
syllabus. Here, there was sufficient evidence, including the evidence of ongoing drug 

trafficking, appellant’s additional use of the vehicle and his attempted flight, to 

support appellant’s convictions. This evidence, if believed, would have convinced 

the average mind that appellant was guilty beyond a reasonable doubt.

Appellant’s fourth assignment of error is overruled.

E. Manifest Weight of the Evidence

In his fifth assignment of error, appellant argues that his convictions 

were against the manifest weight of the evidence. He asserts that the testimony of 

Reed, the prior owner of the Infiniti, was “inconsistent and suspicious.” In addition, 

he contends that the police investigation was insufficient, in particular the fact that 

they failed to fingerprint anyone in the case.

A reviewing court “weighs the evidence and all reasonable inferences, 

considers the credibility of witnesses and determines whether in resolving conflicts 

in the evidence, the jury clearly lost its way and created such a manifest miscarriage 

of justice that the conviction must be reversed and a new trial ordered.” State v. 

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reversal on the 

basis that a verdict is against the manifest weight of the evidence is granted “only in 

the exceptional case in which the evidence weighs heavily against the conviction.” 

Id.

Appellant argues that the testimony of Reed lacked credibility because 

“[i]t is unclear why she would claim [that] she had sold the car in 2020 when the 

evidence establishes that she retrieved it with the title from police custody in 2021.” 
On cross-examination, appellant’s trial counsel asked Reed about 

picking up the Infiniti from the impound lot. She stated that she had received a 

letter in the mail stating the car was in the impound. Reed was shown Exhibit B, 

which was the vehicle inventory report from the city of Parma, which Reed had 

received when she went to pick up the vehicle. She confirmed that she was listed on 

the report as the owner of the vehicle.

Reed had previously testified on direct examination that her boyfriend 

had sold the vehicle and that she had not gone to the sale and did not know how 

much money her boyfriend made on the sale. She further testified that she did not 

know appellant and had not left any firearms, marijuana, or methamphetamine in 

the vehicle.

We find no merit to this assignment of error. As this court has 

previously stated:

The criminal manifest weight of-the-evidence standard addresses the

evidence’s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382, 

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins, 78 Ohio 

St.3d at 386, 678 N.E.2d 541 (1997). Under the manifest weight-of-theevidence standard, a reviewing court must ask the following question:

whose evidence is more persuasive — the state’s or the defendant’s? 

Wilson at id. Although there may be legally sufficient evidence to 

support a judgment, it may nevertheless be against the manifest weight 

of the evidence. Thompkins at 387; State v. Johnson, 88 Ohio St.3d 95, 

2000-Ohio-276, 723 N.E.2d 1054 (2000).

When a court of appeals reverses a judgment of a trial court on the basis 

that the verdict is against the manifest weight of the evidence, the 

appellate court sits as a “thirteenth juror” and disagrees with the fact 

finder’s resolution of the conflicting testimony. Wilson at id., quoting 

Thompkins at id. Reversal on manifest weight grounds is reserved for 
the “exceptional case in which the evidence weighs heavily against the 

conviction.” Thompkins at id.

State v. Williams, 8th Dist. Cuyahoga No. 108275, 2020-Ohio-269, ¶ 86-87.

When sitting as the “thirteenth juror” analyzing a manifest weight 

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

all reasonable inferences, consider the credibility of the witnesses, and, in resolving 

conflicts in the evidence, determine whether the jury clearly lost its way and created 

such a manifest miscarriage of justice that the verdict must be reversed and a new 

trial ordered. Cleveland v. Yontosh, 8th Dist. Cuyahoga No. 99076, 2013-Ohio3137, ¶ 10, citing State v. Caraballo, 8th Dist. Cuyahoga No. 89775, 2008-Ohio5248.

With regard to Reed’s testimony, we acknowledge that it is unclear 

how Reed could have sold the Infiniti yet remained the registered owner of the 

vehicle. However, whether the sale of the Infiniti had been properly recorded, why 

Reed was still listed as the owner of the vehicle, and whether the proper procedure 

was filed in returning the vehicle to Reed are not questions before us. 

Although the reviewing court considers the credibility of witnesses in 

a challenge to the manifest weight of the evidence, it does so “with the caveat that 

the trier of fact is in the best position to determine a witness’[s] credibility through 

its observation of his or her demeanor, gestures, and voice inflections.” State v. 

Campbell, 8th Dist. Cuyahoga Nos. 100246 and 100247, 2014-Ohio-2181, ¶ 39.

“Because the factfinder * * * has the opportunity to see and hear the 

witnesses, the cautious exercise of the discretionary power of a court of 
appeals to find that a judgment is against the manifest weight of the 

evidence requires that substantial deference be extended to the 

factfinder’s determinations of credibility.”

State v. Robinson, 8th Dist. Cuyahoga No. 99290, 2013-Ohio-4375, ¶ 56, quoting 

State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 Ohio App. LEXIS 3709 

(Aug. 22, 1997). A factfinder is free to believe all, some, or none of the testimony of 

each witness appearing before it. State v. Ellis, 8th Dist. Cuyahoga No. 98538, 2013-

Ohio-1184, ¶ 18.

Moreover, “‘a conviction is not against the manifest weight of the 

evidence simply because the [factfinder] rejected the defendant’s version of the facts 

and believed the testimony presented by the state.’” State v. Jallah, 8th Dist. 

Cuyahoga No. 101773, 2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. Ross 

No. 13CA3391, 2014-Ohio-2959, ¶ 28.

In reviewing the entire record, we cannot say that any issues with 

Reed’s credibility caused the jury to lose its way and created a manifest miscarriage 

of justice.

The remainder of appellant’s assertions under this assignment of 

error simply reference the arguments raised in his first assignment of error 

regarding sufficiency of the evidence. However, “sufficiency” and “manifest weight” 

challenges present two distinct legal concepts. Eastley v. Volkman, 132 Ohio St.3d 

328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 23. App.R. 16(A) requires a party to 

separately argue each assignment of error. See Cleveland v. Hall, 8th Dist. 

Cuyahoga No. 101820, 2015-Ohio-2698, ¶ 14, citing App.R. 16(A)(7) (overruling 
appellant’s assignment of error relating to a sufficiency challenge pursuant to App.R. 

16(A)(7) because the appellant did not make a specific argument regarding why the 

convictions were not supported by sufficient evidence and only addressed the issues 

relating to the manifest-weight challenge). Pursuant to App.R. 12(A)(2), an 

appellate court may disregard any assignment of error, or portion thereof, if the 

appellant fails to make a separate argument. State v. Wells, 8th Dist. Cuyahoga No. 

98388, 2013-Ohio-3722, ¶ 55. 

Appellant’s fifth assignment of error is overruled.

F. Hearsay Testimony

In his sixth assignment of error, appellant argues that the jury heard 

inadmissible hearsay evidence and that one of the officers who testified vouched for 

the credibility of a nontestifying witness. 

Appellant points to the testimony of Ofc. Mindlin, who testified that 

Brown, the passenger, “advised [him] that [appellant] was his drug dealer.” 

Appellant’s trial counsel objected, which was sustained, but there was no curative 

instruction given (or asked for). Ofc. Mindlin further testified that Brown was not 

arrested or charged because “he was honest” and appellant never stated that the 

guns belonged to Brown.

This court has held that it is improper for a witness to vouch for the 

credibility of another witness. State v. Young, 8th Dist. Cuyahoga No. 79243, 2002-

Ohio-2744 (holding that it was plain error when a detective testified that a witness 

was “telling the truth”). An officer is not vouching for witness credibility, however, 
by explaining the investigative procedure he followed. State v. Monroe, 8th Dist. 

Cuyahoga No. 94768, 2011-Ohio-3045, ¶ 34 (finding the detective’s testimony that 

defendant’s comment was inconsistent with other evidence did not invade the 

province of the jury); see also State v. Smith, 8th Dist. Cuyahoga No. 95243, 2011-

Ohio-3051 (finding that the detective’s testimony that one statement corroborated 

another is not to say that either was true, but rather that they were consistent). 

Ofc. Mindlin was not vouching for Brown’s credibility but was 

explaining his investigation, and thus his testimony was proper. Accordingly, 

appellant’s sixth assignment of error is overruled.

G. Ineffective Assistance of Counsel – Failure to File Motion to 

Suppress

In his seventh assignment of error, appellant contends that he 

received ineffective assistance of counsel when his trial counsel failed to file a motion 

to suppress evidence arising from the traffic stop and subsequent search.

The failure to file a motion to suppress is not per se ineffective 

assistance of counsel. See, e.g., State v. Musleh, 8th Dist. Cuyahoga No. 105305, 

2017-Ohio-8166, ¶ 31; State v. Watts, 8th Dist. Cuyahoga No. 104188, 2016-Ohio8318, ¶ 17, citing State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).

Rather, a trial counsel’s failure to file a motion to suppress constitutes ineffective 

assistance of counsel only if there is a reasonable probability that, had the motion to 

suppress been filed, it would have been granted and that suppression of the 

challenged evidence would have affected the outcome of the case. State v. Frierson, 
2018-Ohio-391, 105 N.E.3d 583, ¶ 17 (8th Dist.). Counsel is not required to file a 

motion to suppress if doing so would be a futile act. See, e.g., Musleh at ¶ 31; State 

v. Armstrong, 8th Dist. Cuyahoga No. 103088, 2016-Ohio-2627, ¶ 30.

In this case, Ofc. Mindlin testified that he observed heavy tint on the 

vehicle’s windows and that the license plate in the window was unreadable due to 

the dark tint. Det. Kekic testified that the level of window tint was “28 percent,” 

which relates to how much light can get through the window; the legal limit is 70 

percent. He stated that the window tint level on the vehicle appellant was driving 

would be a valid reason for a traffic stop.

The state contends that appellant’s trial counsel was provided with 

discovery that included evidence not presented at trial, such as police reports and 

officer body-camera video. In viewing such evidence, the state maintains that trial 

counsel would have been able to determine that there was sufficient probable cause 

to stop and search the vehicle. In addition, the state asserts that appellant’s counsel 

could have been exercising trial strategy by denying ownership of the safe, thereby 

not having standing to challenge the search. 

While the evidence referred to by the state is not before us and thus 

cannot be considered, we still find that appellant’s trial counsel was not ineffective 

in declining to file a motion to suppress. There was clear testimony that Ofc. Mindlin 

observed a traffic violation in that the windows were tinted too dark. This court has 

held that window-tint violations provide reasonable suspicion or probable cause for 

a traffic stop. See, e.g., State v. Bowie, 8th Dist. Cuyahoga No. 88857, 2007-Ohio-
4297, ¶ 9 (police had probable cause for traffic stop to determine whether car 

windows were illegally tinted); State v. Knox, 8th Dist. Cuyahoga Nos. 98713 and 

98805, 2013-Ohio-1662 (same); Richmond Hts. v. Williams, 8th Dist. Cuyahoga 

No. 73500, 1998 Ohio App. LEXIS 5572, 6 (Nov. 15, 1998) (police had probable 

cause for traffic stop based on reasonable suspicion of excessive window tinting); 

Cleveland v. Davis, 8th Dist. Cuyahoga No. 106780, 2018-Ohio-4706, ¶ 5 (traffic 

stop for window-tint violation was valid); In re Coleman, 8th Dist. Cuyahoga No. 

65459, 1993 Ohio App. LEXIS 6311, 6 (Dec. 30, 1993) (lawful traffic stop for 

violation of municipal ordinance prohibiting tinted windows).

In addition, with regard to the safe, the Supreme Court of Ohio has 

held that the discovery of other indicia of criminal activity in the vehicle during a 

search gives rise to probable cause to search other areas of the vehicle, including 

containers that could contain contraband. State v. Vega, 154 Ohio St.3d 569, 2018-

Ohio-4002, 116 N.E.3d 1262, ¶ 20; State v. Taylor, 2020-Ohio-5079, 161 N.E.3d 

844, ¶ 15 (8th Dist.) (en banc). Ofc. Mindlin had probable cause to search the vehicle 

based upon the odor of marijuana and his observation of “shake” in the vehicle. 

Once inside the vehicle, he observed further indicia of criminal activity, thus 

constituting probable cause to open the safe.

Appellant’s trial counsel was not ineffective in declining to file a 

motion to suppress evidence. Appellant’s seventh assignment of error is overruled.
H. Reagan Tokes Law

In appellant’s eighth assignment of error, he contends that his 

indefinite sentence under the Reagan Tokes Law was unconstitutional, citing our 

decisions in State v. Delvallie, 2021-Ohio-1809, 173 N.E.3d 544 (8th Dist.); and 

State v. Sealey, 2021-Ohio-1949, 173 N.E.3d 894 (8th Dist.).

This court has conducted en banc review of the constitutionality of the 

Reagan Tokes Law. See State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 356 (8th 

Dist.). In Delvallie, this court found “that the Reagan Tokes Law, as defined under 

R.C. 2901.011, is not unconstitutional.” Delvallie at ¶ 17. This court vacated the 

decisions cited by appellant and overruled the separation-of-powers, right to jury 

trial, and due process challenges presented by appellant and consequently, we need 

not dwell on them. 

Pursuant to Delvallie, appellant’s eighth assignment of error is 

overruled. The trial court did not err in imposing an indefinite prison sentence for 

appellant’s qualifying offenses. 

III. Conclusion

All of appellant’s assignments of error are overruled. His convictions 

were supported by sufficient evidence and not against the manifest weight of the 

evidence. Further, appellant did not receive ineffective assistance of counsel, and 

the trial court did not err in its admission of testimony or giving a curative 
instruction. Finally, appellant’s sentence was properly imposed under the Reagan 

Tokes Law.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

convictions having been affirmed, any bail pending appeal is terminated. Case 

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

___________________________________________

FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and

MICHAEL JOHN RYAN, J., CONCUR