[Cite as State v. Malone, 2022-Ohio-1409.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

LAWRENCE COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : Case 

No. 21CA9

v. :

DONALD MALONE, : DECISION AND 

JUDGMENT ENTRY 

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Angela Miller, Jupiter, Florida, for appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and 

Andrea M. Kratzenberg, Lawrence County Assistant Prosecuting 

Attorney, for appellee.

________________________________________________________________

CRIMINAL APPEAL FROM COMMON PLEAS COURT

DATE JOURNALIZED:4-21-22

ABELE, J.

{¶1} This is an appeal from a Lawrence County Common Pleas 

Court judgment of conviction and sentence. A jury found Donald 

Malone, defendant below and appellant herein, guilty of 

aggravated drug possession, a second-degree felony. Appellant 

assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
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“APPELLANT MALONE WAS DENIED EFFECTIVE 

ASSISTANCE OF COUNSEL IN VIOLATION OF THE 

SIXTH AND FOURTEENTH AMENDMENTS TO THE 

UNITED STATES CONSTITUTION AND ARTICLE I, 

SECTION 10 OF THE OHIO CONSTITUTION WHEN HIS 

ATTORNEY FAILED TO FILE AN AFFIDAVIT OF 

INDIGENCY TO WAIVE THE MANDATORY FINE.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN DENYING APPELLANT 

MALONE’S MOTION TO SUPPRESS AS THE SEARCH OF 

THE LOCKED SAFE IN THE VEHICLE WAS 

UNLAWFUL.”

THIRD ASSIGNMENT OF ERROR:

“APPELLANT MALONE’S CONVICTION FOR 

AGGRAVATED POSSESSION OF DRUGS WAS AGAINST 

THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶2} On October 20, 2019, Lawrence County Sheriff’s 

Sergeant Brian Chaffins stopped appellant’s vehicle for a 

traffic violation. During the stop, Officer Chaffins learned 

about appellant’s arrest warrant, he placed him under arrest and 

conducted a search. 

{¶3} During the search, Sergeant Chaffins found inside 

appellant’s wallet a “jeweler’s bag” that contained what 

appeared to be “crystal meth.” Based upon this discovery, 

Chaffins suspected that additional drugs would be found inside 

appellant’s vehicle, so he searched the vehicle. The vehicle 

search revealed two hypodermic needles near the center of the 

front passenger compartment and a small safe on the front 
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passenger’s seat. When Chaffins moved the safe, he heard 

“something inside of it” and asked appellant about the safe. 

Chaffins obtained the key to open the safe and discovered 

approximately 14 or 15 grams “of crystal meth.” Appellant later 

admitted that the safe contained about one half ounce of 

methamphetamine. The prosecutor filed a bill of information 

that charged appellant with aggravated drug possession, in 

violation of R.C. 2925.11(A), a second-degree felony. Appellant 

entered a not-guilty plea.

{¶4} Subsequently, appellant filed a motion to suppress the 

evidence discovered during the search of the locked safe located 

inside his vehicle. Appellant argued that Sergeant Chaffins 

should have applied for a warrant to search the safe rather than 

a search during the traffic stop. After the hearing, the trial 

court overruled appellant’s motion to suppress evidence.

{¶5} At the May 10 and 11, 2021 jury trial, the state 

presented evidence that appellant possessed three bags of 

methamphetamine that weighed a total of 16.33 grams. Sergeant 

Chaffins testified that he found two bags of methamphetamine 

inside the safe located within appellant’s vehicle. Chaffins 

believed that the amount of methamphetamine contained in the two 

bags weighed between 14 and 15 grams. 
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{¶6} Lawrence County Sheriff’s Deputy Jonathan Spoljaric 

testified that he found a third bag of methamphetamine when 

appellant changed clothes at the jail. Spoljaric explained 

that, when appellant changed into jail clothes, the deputy found 

a bag of methamphetamine in appellant’s underwear. On crossexamination, Spoljaric clarified that the bag of methamphetamine 

had fallen out of appellant’s underwear. He stated: “I do 

remember methamphetamine being in his underwear and it going 

onto the floor.” 

{¶7} Ohio Bureau of Criminal Investigation forensic

scientist Michelle Taylor testified that the two bags of 

methamphetamine that Sergeant Chaffins discovered inside 

appellant’s safe weighed 3.41 grams and 11.82 grams, 

respectively. Taylor stated that the third bag discovered in 

the jail weighed 1.10 grams. 

{¶8} Appellant testified in his defense and did not dispute 

that he possessed methamphetamine in his vehicle, but did 

dispute the amount. Appellant stated that he had purchased 14.7 

grams of methamphetamine. He explained that the methamphetamine 

was weighed at the time of purchase and the amount he purchased 

weighed “under fifteen grams.” 
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{¶9} Appellant further disputed that he possessed the 

methamphetamine found at the jail. He denied that the 

methamphetamine had been in his underwear and had fallen to the 

floor while he changed into jail clothes. Appellant instead 

claimed that he noticed a bag of methamphetamine on the floor, 

and when he tried to pick it up the deputy told appellant not to 

touch it.

{¶10} After hearing the evidence, the jury found appellant 

guilty of second-degree-felony aggravated drug possession. The 

trial court sentenced appellant to serve six to nine years in 

prison and ordered him to pay a $7,500 fine. This appeal 

followed. 

I

{¶11} In his first assignment of error, appellant asserts 

that he did not receive the effective assistance of counsel. In 

particular, appellant alleges that trial counsel performed 

ineffectively by failing (1) to file an affidavit of indigency, 

and (2) to ask the court to find appellant indigent and unable 

to pay the mandatory fine. Appellant claims that, if trial 

counsel had filed an affidavit of indigency before sentencing, a 

reasonable probability exists that the court would have found 

appellant indigent and unable to pay the mandatory fine.
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{¶12} The Sixth Amendment to the United States Constitution, 

and Article I, Section 10 of the Ohio Constitution, provide that

defendants in all criminal proceedings shall have the assistance 

of counsel for their defense. The United States Supreme Court 

has generally interpreted this provision to mean a criminal 

defendant is entitled to the “reasonably effective assistance” 

of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984); accord Hinton v. Alabama, 571 U.S. 

263, 272, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (Sixth Amendment 

right to counsel means “that defendants are entitled to be 

represented by an attorney who meets at least a minimal standard 

of competence”).

{¶13} To establish constitutionally ineffective assistance 

of counsel, a defendant must show that (1) his counsel’s 

performance was deficient, and (2) the deficient performance 

prejudiced the defense and deprived the defendant of a fair 

trial. E.g., Strickland, 466 U.S. at 687; State v. Myers, 154 

Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v. 

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 

85. “Failure to establish either element is fatal to the 

claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-

Ohio-968, ¶ 14. Therefore, if one element is dispositive, a 
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court need not analyze both. State v. Madrigal, 87 Ohio St.3d 

378, 389, 721 N.E.2d 52 (2000) (defendant’s failure to satisfy 

one ineffective- assistance-of-counsel element “negates a 

court’s need to consider the other”).

{¶14} The deficient performance part of an ineffectiveness 

claim “is necessarily linked to the practice and expectations of 

the legal community: ‘The proper measure of attorney performance 

remains simply reasonableness under prevailing professional 

norms.’” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct.

1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466 U.S. at 

688. Prevailing professional norms dictate that “a lawyer must 

have ‘full authority to manage the conduct of the trial.’” 

State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 

N.E.2d 270, ¶ 24, quoting Taylor v. Illinois, 484 U.S. 400, 418, 

108 S.Ct. 646, 98 L.Ed.2d 798 (1988).

{¶15} Furthermore, “‘[i]n any case presenting an 

ineffectiveness claim, “the performance inquiry must be whether 

counsel’s assistance was reasonable considering all the

circumstances.”’” Hinton v. Alabama, 571 U.S. 263, 273, 134 

S.Ct. 1081, 188 L.Ed.2d 1 (2014), quoting Strickland, 466 U.S. 

at 688. Accordingly, “[i]n order to show deficient performance, 

the defendant must prove that counsel’s performance fell below 
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an objective level of reasonable representation.” State v. 

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95 

(citations omitted).

{¶16} Moreover, when considering whether trial counsel’s 

representation amounts to deficient performance, “a court must 

indulge a strong presumption that counsel’s conduct falls within 

the wide range of reasonable professional assistance.” 

Strickland, 466 U.S. at 689. Thus, “the defendant must overcome 

the presumption that, under the circumstances, the challenged 

action might be considered sound trial strategy.” Id.

Additionally, “[a] properly licensed attorney is presumed to 

execute his duties in an ethical and competent manner.” State 

v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10, 

citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 

(1985). Therefore, a defendant bears the burden to show 

ineffectiveness by demonstrating that counsel’s errors were “so 

serious” that counsel failed to function “as the ‘counsel’ 

guaranteed * * * by the Sixth Amendment.” Strickland, 466 U.S. 

at 687; e.g., State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 

156, 524 N.E.2d 476 (1988).
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{¶17} To establish prejudice, a defendant must demonstrate 

that a reasonable probability exists that “‘but for counsel’s 

errors, the result of the proceeding would have been different. 

A reasonable probability is a probability sufficient to 

undermine the outcome.’” Hinton, 571 U.S. at 275, quoting 

Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio 

St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v. 

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph 

three of the syllabus; accord State v. Spaulding, 151 Ohio St.3d 

378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 91 (prejudice component 

requires a “but for” analysis). Furthermore, courts ordinarily 

may not simply presume the existence of prejudice but, instead, 

must require a defendant to affirmatively establish prejudice. 

State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 

22; State v. Tucker, 4th Dist. Ross No. 01CA2592 (Apr. 2, 2002). 

As we have repeatedly recognized, speculation is insufficient to 

establish the prejudice component of an ineffective assistance 

of counsel claim. E.g., State v. Tabor, 4th Dist. Jackson No. 

16CA9, 2017-Ohio-8656, ¶ 34; State v. Jenkins, 4th Dist. Ross 

No. 13CA3413, 2014-Ohio-3123, ¶ 22; State v. Simmons, 4th Dist. 

Highland No. 13CA4, 2013-Ohio-2890, ¶ 25; State v. Halley, 4th 

Dist. Gallia No. 10CA13, 2012-Ohio-1625, ¶ 25; State v. Leonard, 
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4th Dist. Athens No. 08CA24, 2009-Ohio-6191, ¶ 68; accord State 

v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 

86 (argument that is purely speculative cannot serve as the 

basis for an ineffectiveness claim).

{¶18} In the case sub judice, appellant alleges that trial 

counsel rendered ineffective assistance of counsel by failing to 

file an affidavit of indigency before sentencing that stated 

appellant is unable to pay the mandatory fine. Appellant 

contends that if trial counsel had filed an affidavit, the trial 

court would have found the appellant to be indigent and unable 

to pay the mandatory fine.

{¶19} A criminal defendant who seeks to show that trial 

counsel provided ineffective assistance by failing to file an 

affidavit alleging indigency and an inability to pay a mandatory 

fine must establish both of the following: (1) counsel’s failure 

to file an affidavit constitutes deficient performance; and (2) 

a reasonable probability exists that the trial court would have 

found the defendant to be indigent and unable to pay the 

mandatory fine. State v. Davis, 159 Ohio St.3d 31, 2020-Ohio309, 146 N.E.3d 560, ¶ 16.

{¶20} In the case at bar, assuming, arguendo, that trial 

counsel’s failure to file an affidavit of indigency constitutes 
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deficient performance, we do not believe that appellant has 

demonstrated that a reasonable probability exists that the trial 

court would have found that appellant lacks the ability to pay 

the mandatory fine. 

R.C. 2929.18(B)(1) states:

If an offender alleges in an affidavit filed with the 

court prior to sentencing that the offender is 

indigent and unable to pay the mandatory fine and if 

the court determines the offender is an indigent 

person and is unable to pay the mandatory fine 

described in this division, the court shall not impose 

the mandatory fine upon the offender. 

We note that “the burden is upon the offender to affirmatively 

demonstrate that he or she is indigent and is unable to pay the 

mandatory fine.” State v. Gipson, 80 Ohio St.3d 626, 635, 687 

N.E.2d 750 (1998). A court must determine whether an offender 

is indigent and unable to pay a mandatory fine should not limit 

its inquiry to the offender’s circumstances “at the moment of 

sentencing.” Id. at 636. Instead, the court “can (and should) 

[consider the offender’s] future ability to pay.” Id. Courts 

generally have identified some of the following factors as 

relevant when considering an offender’s ability to pay a fine: 

(1) the offender’s age; (2) the offender’s employment history 

and potential; (3) the offender’s education; (4) the offender’s 

health; (5) the length of the offender’s prison term; (6) the 
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offender’s source of income; (7) the offender’s income 

potential; (8) whether the offender is indigent; and (9) the 

amount of the fine. State v. Lykins, 2017-Ohio-9390, 102 N.E.3d 

503, ¶ 13 (4th Dist.) (citations omitted).

{¶21} Importantly, however, “a determination of indigency 

alone does not rise to the level of creating a reasonable 

probability that the trial court would have” found the defendant 

unable to pay a mandatory fine. Davis at ¶ 15. Accordingly, a 

trial court’s determination that a defendant is indigent for 

purposes of appointing counsel does not preclude the court from 

determining that a defendant has the ability to pay a mandatory 

fine. E.g., State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 

76 (8th Dist.); State v. Palmison, 9th Dist. Summit No. 20854, 

2002-Ohio-2900, ¶ 25. Likewise, a trial court is not precluded 

from imposing a mandatory fine upon an offender who is sentenced 

to a lengthy prison sentence. Nitsche at ¶ 76, citing State v. 

Western, 2015-Ohio-627, 29 N.E.3d 245, ¶ 57 (2d Dist.). 

{¶22} Appellant contends that the facts shown in the record 

establish that a reasonable probability exists that the trial 

court would have found appellant indigent and unable to pay the 

mandatory fine. Appellant points out that he has “a long 

history of drug addiction, a lengthy criminal record * * * and 
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was unemployed both prior to and at the time of trial.” The 

state, however, argues that the facts in the record fail to 

support a conclusion that a reasonable probability exists that 

the trial court would have found appellant indigent and unable 

to pay the mandatory fine. The state notes that appellant told 

Sergeant Chaffins that appellant “come[s] from a pretty good 

family.” The state further observes that appellant informed 

Chaffins: “I’ve got money. I ain’t gotta worry about selling 

dope to supply my habit.” The state additionally points out 

that appellant testified that he buys meth “almost daily,” that

he buys meth “all the time,” and that meth is “part of [his] 

life.” The state also observes that appellant will be of 

working age when released from prison and nothing in the record 

shows appellant suffers from any mental or physical problems 

that may inhibit his ability to earn income when released from 

prison. The state further notes that appellant stated he has a 

high-school degree and has completed some college.

{¶23} We agree with the state that appellant has failed to 

show that a reasonable probability exists that the trial court 

would have found him indigent and unable to pay the mandatory 

fine if trial counsel had filed an affidavit before sentencing. 

Appellant readily admitted that he has money and had no problems 
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affording his daily drug habit. If appellant has money and the 

ability to fund his daily drug habit, we do not believe that the 

trial court likely would have found that appellant lacks the 

future ability to pay the mandatory fine. We further note that 

appellant’s September 24, 2020 financial disclosure form 

indicated that he earned $1,000 per month. At trial, appellant 

stated that he earned money working on computers and cell 

phones. Nothing in the record suggests appellant would be 

unable to work in this same capacity after his prison term. 

{¶24} Moreover, the record contains no indication that 

appellant “would be unemployable upon his release, such as a 

health or medical condition that would preclude him from future 

employment.” State v. Freeman, 1st Dist. Hamilton No. C-180090, 

2018-Ohio-4973, ¶ 13, citing State v. Hale, 5th Dist. Perry No. 

14-CA-00010, 2014-Ohio-4981, ¶ 18-20 (reasonable probability 

existed that trial court would have waived the mandatory fine if 

counsel had filed an affidavit of indigency due to defendant’s 

medical conditions, including the use of an oxygen tank, 

hypertension, COPD, IBS, coronary artery disease, obstructive 

sleep apnea, a stroke, leg pains, and seizures); State v. 

Campbell, 12th Dist. Warren No. CA2012-08-070, 2013-Ohio-3088, ¶

9-10 (trial court did not err in waiving the mandatory fine 
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because defendant indigent and not able to work because of 

diabetes, high blood pressure, nerve damage, torn rotator cuff, 

depression, anxiety, acid reflux and need for drug treatment). 

Instead, the record in the case sub judice shows that appellant 

will be between 36 and 40 years old when released from prison

and has no health conditions that would prevent him from 

obtaining gainful employment. See State v. Lenhert, 6th Dist. 

Wood No. WD-08-078, 2009-Ohio-5392, ¶ 11 (“the trial court could 

have determined that upon being released from prison, appellant 

would be in his twenties, able to work and pursue productivity 

and, therefore, would be able to pay the imposed sanction”); 

State v. Johnson, 6th Dist. Lucas No. L-03-1046, 2004-Ohio-2458, 

¶ 47 (defendant failed to demonstrate reasonable probability 

trial court would have found him indigent when record did not 

contain information about defendant’s finances except for 

statement at arraignment that he did not have funds to hire 

attorney). 

{¶25} Thus, even though appellant is incarcerated and filed 

an affidavit of indigency for purposes of obtaining appointed 

appellate counsel, the record does not support a finding that 

appellant lacks the future ability to pay the mandatory fine. 

Thus, under these circumstances we are unable to conclude that a 
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reasonable probability exists that the trial court would have 

found appellant indigent and unable to pay the mandatory fine if 

trial counsel had filed a proper affidavit before sentencing. 

We therefore do not agree with appellant that trial counsel 

failed to provide appellant with the effective assistance of 

counsel.

{¶26} Accordingly, based upon the foregoing reasons, we 

overrule appellant’s first assignment of error.

II

{¶27} In his second assignment of error, appellant asserts 

that the trial court erred by denying his motion to suppress the 

methamphetamine discovered inside the locked safe located inside 

his vehicle. Appellant contends that Sergeant Chaffins did not 

have sufficient indicators of drug activity to give him probable 

cause to open the locked safe.

{¶28} In general, appellate review of a trial court’s ruling 

on a motion to suppress evidence involves a mixed question of 

law and fact. E.g., State v. Castagnola, 145 Ohio St.3d 1, 2015-

Ohio-1565, 46 N.E.3d 638, ¶ 32; State v. Burnside, 100 Ohio 

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Moore, 

2013-Ohio-5506, 5 N.E.3d 41 (4th Dist.), ¶ 7. Appellate courts 

thus “‘must accept the trial court’s findings of fact if they 
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are supported by competent, credible evidence.’” State v. Leak, 

145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12, quoting 

Burnside at ¶ 8. Accepting those facts as true, reviewing 

courts “‘independently determine as a matter of law, without 

deference to the conclusion of the trial court, whether the 

facts satisfy the applicable legal standard.’” Id., quoting 

Burnside at ¶ 8.

{¶29} The Fourth and Fourteenth Amendments to the United 

States Constitution, as well as Section 14, Article I of the 

Ohio Constitution, protect individuals against unreasonable 

governmental searches and seizures. Delaware v. Prouse, 440 

U.S. 648, 662, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); State 

v. Gullett, 78 Ohio App.3d 138, 143, 604 N.E.2d 176 (1992). 

“[S]earches [and seizures] conducted outside the judicial 

process, without prior approval by judge or magistrate, are per 

se unreasonable under the Fourth Amendment—subject only to a few 

specifically established and well-delineated exceptions.” Katz 

v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 

L.Ed.2d 576 (1967); State v. Roberts, 110 Ohio St.3d 71, 2006-

Ohio-3665, 850 N.E.2d 1168, ¶ 98. 

{¶30} When a law enforcement officer has probable cause to 

believe that a vehicle contains contraband, the officer may 
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search a validly stopped motor vehicle based upon the wellestablished automobile exception to the warrant requirement. 

State v. Moore, 90 Ohio St.3d 47, 51, 734 N.E.2d 804 (2000), 

citing Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144 

L.Ed.2d 442 (1999). Probable cause exists when there is a “fair 

probability that contraband or evidence of a crime will be found 

in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 

103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Furthermore, “Ohio 

courts have held that the production of drugs by an occupant of 

a vehicle independently provides an officer with additional 

probable cause to believe that the vehicle contains evidence of 

contraband.” State v. Donaldson, 6th Dist. Wood No. WD-18-034, 

2019-Ohio-232, ¶ 29; State v. Young, 12th Dist. Warren No.

CA2011-06-066, 2012-Ohio-3131, ¶ 32-33 (once driver admitted he 

possessed marijuana, officers obtained probable cause to search 

vehicle).

{¶31} Additionally, under the automobile exception to the 

warrant requirement, law enforcement officers may search 

containers located within the vehicle so long as they have 

probable cause to believe that contraband or evidence may be 

concealed inside the automobile. California v. Acevedo, 500 

U.S. 565, 580, 111 S. Ct. 1982, 114 L. Ed.2d 619 (1991); United 
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States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 

(1982). In other words, “[i]f probable cause justifies the 

search of a lawfully stopped vehicle, it justifies the search of 

every part of the vehicle and its contents that may conceal the 

object of the search.” Ross at 825. Consequently, when 

officers have “probable cause to search for contraband in a car, 

it is reasonable for police officers * * * to examine packages 

and containers without a showing of individualized probable 

cause for each one.” Wyoming v. Houghton 526 U.S. 295, 320, 119 

S.Ct. 1297, 143 L.Ed.2d 408 (1999); accord State v. Vega, 154 

Ohio St.3d 569, 2018-Ohio-4002, 116 N.E.3d 1262 (officer could 

lawfully open sealed envelope located inside vehicle when 

officer possessed probable cause to search vehicle).

{¶32} In the case at bar, we do not agree with appellant 

that Sergeant Chaffins lacked probable cause to search the 

vehicle and its contents, including the locked safe, for 

evidence of criminal activity. Chaffins discovered 

methamphetamine inside a wallet that he had retrieved from 

appellant’s person. Appellant also admitted that he possessed 

drugs. The discovery of illegal drugs on appellant’s person 

gave Chaffins probable cause to believe that the vehicle in 

which appellant had been traveling contained drug-related 
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evidence. Once Chaffins obtained probable cause to search the 

vehicle, he could lawfully search the entire vehicle and any 

place where evidence could be concealed, including the locked 

safe. The trial court did not, therefore, err by overruling 

appellant’s motion to suppress evidence.

{¶33} Accordingly, based upon the foregoing reasons, we 

overrule appellant’s second assignment of error.

III

{¶34} In his third assignment of error, appellant asserts 

that his second-degree-felony aggravated drug possession 

conviction is against the manifest weight of the evidence. 

Appellant does not dispute that he possessed methamphetamine, 

but instead disputes the precise amount of methamphetamine that 

he possessed. Appellant contends that the greater weight of the 

evidence shows that he possessed less than 15 grams of 

methamphetamine and, thus, he is not guilty of second-degreefelony aggravated drug possession. Appellant instead suggests 

that the evidence supports a conviction for third-degree-felony 

aggravated drug possession.

{¶35} We observe that the “question to be answered when a 

manifest-weight issue is raised is whether ‘there is substantial 

evidence upon which a jury could reasonably conclude that all 
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the elements have been proved beyond a reasonable doubt.’” 

State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 

229, ¶ 81, quoting State v. Getsy, 84 Ohio St.3d 180, 193–194, 

702 N.E.2d 866 (1998), citing State v. Eley, 56 Ohio St.2d 169, 

383 N.E.2d 132 (1978), syllabus. A court that is considering a 

manifest-weight challenge must “‘review the entire record, weigh 

the evidence and all reasonable inferences, and consider the 

credibility of witnesses.’” State v. Beasley, 153 Ohio St.3d 

497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 208, quoting State v. 

McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 

328; accord State v. Hundley, 162 Ohio St.3d 509, 2020-Ohio3775, 166 N.E.3d 1066, ¶ 80. The reviewing court must bear in 

mind, however, that credibility generally is an issue for the 

trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 

752 N.E.2d 904 (2001); State v. Murphy, 4th Dist. Ross No. 

07CA2953, 2008-Ohio-1744, ¶ 31. “‘Because the trier of fact 

sees and hears the witnesses and is particularly competent to 

decide “whether, and to what extent, to credit the testimony of 

particular witnesses,” we must afford substantial deference to 

its determinations of credibility.’” Barberton v. Jenney, 126 

Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20, quoting 

State v. Konya, 2nd Dist. Montgomery No. 21434, 2006-Ohio-6312, 
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¶ 6, quoting State v. Lawson, 2nd Dist. Montgomery No. 16288 

(Aug. 22, 1997). As the court in Eastley v. Volkman, 132 Ohio 

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, explained:

“‘[I]n determining whether the judgment below is 

manifestly against the weight of the evidence, every 

reasonable intendment and every reasonable presumption 

must be made in favor of the judgment and the finding 

of facts. * * *

If the evidence is susceptible of more than one 

construction, the reviewing court is bound to give it 

that interpretation which is consistent with the 

verdict and judgment, most favorable to sustaining the 

verdict and judgment.’”

Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 

Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio 

Jurisprudence 3d, Appellate Review, Section 60, at 191–192 

(1978). Thus, an appellate court will generally leave the 

issues of weight and credibility of the evidence to the fact 

finder, as long as a rational basis exists in the record for its 

decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 

2012-Ohio-1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No. 

07CA2948, 2007-Ohio-6331, ¶ 6 (“We will not intercede as long as 

the trier of fact has some factual and rational basis for its 

determination of credibility and weight.”).

{¶36} Consequently, if the prosecution presented substantial 

credible evidence upon which the trier of fact reasonably could 

conclude, beyond a reasonable doubt, that the essential elements 
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of the offense had been established, the judgment of conviction 

is not against the manifest weight of the evidence. E.g., Eley; 

accord Eastley at ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387, 

quoting Black’s Law Dictionary 1594 (6th ed.1990) (a judgment is 

not against the manifest weight of the evidence when “‘”the 

greater amount of credible evidence”’” supports it). A court 

may reverse a judgment of conviction only if it appears that the 

fact-finder, when it resolved the conflicts in evidence, 

“‘clearly lost its way and created such a manifest miscarriage 

of justice that the conviction must be reversed and a new trial 

ordered.’” Thompkins, 78 Ohio St.3d at 387, quoting State v. 

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

accord McKelton at ¶ 328. A reviewing court should find a 

conviction against the manifest weight of the evidence only in 

the “‘exceptional case in which the evidence weighs heavily 

against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 

quoting Martin, 20 Ohio App.3d at 175; accord State v. Clinton, 

153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 166; State 

v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000). We 

additionally note that “a verdict is not against the manifest 

weight of the evidence simply because the fact-finder opts to 
LAWRENCE, 21CA9

24

believe the state’s witnesses.” State v. Donohue, 4th Dist. 

Ross No. 18CA3637, 2018-Ohio-4819, ¶ 20. 

{¶37} In the case sub judice, R.C. 2925.11(A) contains the 

essential elements of the offense at issue, possession of drugs. 

The statute states: “No person shall knowingly obtain, possess, 

or use a controlled substance * * *.” 

{¶38} R.C. 2925.11(C)(1)(c) further provides that a person 

who knowingly obtains, possesses, or uses a schedule II 

controlled substance, like methamphetamine, is guilty of seconddegree-felony aggravated drug possession when “the amount of the 

drug involved equals or exceeds five times the bulk amount but 

is less than fifty times the bulk amount.” R.C. 925.11(C)(1)(b) 

states that aggravated drug possession is a third-degree felony 

if the amount of drug involved equals or exceeds bulk amount but 

is less than five times bulk amount.

{¶39} In the case at bar, the state presented evidence that 

appellant possessed an amount of methamphetamine that equals or 

exceeds five times the bulk amount. Taylor testified that five 

times bulk amount is 15 grams and that appellant possessed a 

total of 16.33 grams of methamphetamine. Appellant contends, 

however, that his testimony shows that he possessed less than 15 

grams of methamphetamine. At trial, appellant (1) denied that 
LAWRENCE, 21CA9

25

he possessed the bag of methamphetamine located on the jail 

floor, and (2) testified that the methamphetamine discovered in 

his vehicle weighed less than 15 grams. Appellant stated that

the methamphetamine had been weighed when purchased and weighed 

only 14.7 grams.

{¶40} Even if for purposes of argument, we agreed with 

appellant that the evidence fails to support a finding that he 

possessed the 1.10 grams of methamphetamine on the jailhouse 

floor, the state nevertheless presented substantial, competent 

and credible evidence that the remaining two bags weighed 15 

grams or more. Taylor testified that she weighed the bags that 

Sergeant Chaffins found in the safe located within appellant’s 

vehicle and one bag contained 3.41 grams of methamphetamine and 

the other contained 11.82 grams of methamphetamine. The 

combined weight of methamphetamine totals 15.23 grams. Taylor’s 

testimony, therefore, supports a finding that appellant 

possessed more than five times the bulk amount.

{¶41} We recognize that appellant testified that he 

purchased 14.7 grams of methamphetamine and his claim that he 

did not possess more than 15 grams of methamphetamine. The 

jury, however, was in the best position to assess witness 

credibility and not obligated to believe appellant’s testimony. 
LAWRENCE, 21CA9

26

The jury obviously chose to believe Taylor’s testimony and we 

cannot conclude that the jury lost its way. A trier of fact is 

free to believe all, part or none of the testimony from any 

witness who appears before the trier of fact. Consequently, 

after our review we do not believe that appellant’s conviction 

for second-degree-felony aggravated drug possession is against 

the manifest weight of the evidence.

{¶42} Accordingly, based upon the foregoing reasons, we 

overrule appellant’s third assignment of error and affirm the 

trial court’s judgment.

JUDGMENT AFFIRMED.
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27

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and appellee 

recover of appellant the 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 Lawrence County Common Pleas Court to carry 

this judgment into execution.

If a stay of execution of sentence and release upon bail 

has been previously granted, it is continued for a period of 60 

days upon the bail previously posted. The purpose of said stay 

is to allow appellant to file with the Ohio Supreme Court an 

application for a stay during the pendency of the proceedings in

that court. The stay as herein continued will terminate at the 

expiration of the 60-day period.

The stay will also terminate if appellant fails to file a 

notice of appeal with the Ohio Supreme Court in the 45-day 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of 

the Ohio Supreme Court. Additionally, if the Ohio Supreme Court 

dismisses the appeal prior to the expiration of said 60 days, 

the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute that

mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

 BY:_______________________

 Peter B. Abele, Judge 

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a 

final judgment entry and the time period for further appeal 

commences from the date of filing with the clerk.