[Cite as State v. Calloway , 2011-Ohio-173.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ROSS COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 10CA3147 

 : 

 vs. : Released: January 7, 2011

 : 

ALBERT E. CALLOWAY, : DECISION AND JUDGMENT 

: ENTRY 

 Defendant-Appellant. : 

_____________________________________________________________ 

APPEARANCES:

Benjamin J. Partee and Derek J. Walden, Miller, Dorman, & Partee, LLC, 

Chillicothe, Ohio, for Appellant. 

Michael M. Ater, Ross County Prosecuting Attorney, and Richard W. Clagg, 

Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for 

Appellee. 

_____________________________________________________________ 

 

McFarland, P.J.: 

{¶1} Appellant appeals the Ross County Court of Common Pleas’ 

judgment entry of sentence issued after a jury found Appellant guilty of 

possession of cocaine, a second degree felony in violation of R.C. 2925.11. 

On appeal, Appellant raises a single assignment of error contending that the 

trial court erred in denying his Crim.R. 29 motion for judgment of acquittal, 
Ross App. No. 10CA3147 2

arguing the state failed to present sufficient evidence to support a conviction 

for possession of controlled substances. We conclude Appellant failed to 

preserve his Crim.R. 29 motion for appellate review, and because there 

exists no plain error, overrule his sole assignment of error. Accordingly, the 

judgment of the trial court is affirmed. 

FACTS 

{¶2} Appellant, Albert Calloway, was indicted on March 9, 2007, on 

one count of possession of cocaine, a second degree felony in violation of 

R.C. 2925.11. The indictment stemmed from a routine traffic stop that 

occurred on November 28, 2006, in Chillicothe, Ohio. After Appellant’s 

vehicle was stopped for three moving violations, it was discovered that 

Appellant was driving without a license. Appellant was placed under arrest, 

two officer safety pat downs were performed and Appellant was placed in 

the back of the cruiser while a vehicle inventory was performed, and while 

waiting for a tow truck to arrive. After transporting Appellant to the jail for 

booking and removing Appellant from the cruiser, the arresting officer 

discovered a white substance, later determined to be crack cocaine, in the 

back seat area of the cruiser where Appellant had been seated during 

transport. 
Ross App. No. 10CA3147 3

{¶3} Appellant pled not guilty to the charge and the matter proceeded 

to a two-day jury trial beginning on December 15, 2009. At trial, among 

other witnesses, the State presented testimony by Chief Roger Moore 

(formerly Captain Moore at the time of Appellant’s initial arrest) and 

Investigator Timothy Gay (formerly Officer Timothy Gay at the time of 

Appellant’s initial arrest). Chief Moore testified that he was a backup 

officer during the stop and that his cruiser was being driven that night. He 

testified that, in accordance with policy, he checked the backseat of his 

cruiser for contraband prior to the start of his shift that night and found 

nothing. He further testified that Appellant was the first prisoner in the 

cruiser that night and that no one else would have had access to the back seat 

area. 

{¶4} Investigator Gay testified that immediately after Appellant exited 

the vehicle for booking, he found a white substance, later determined to be 

crack cocaine, on the seat where Appellant had been sitting. Upon searching 

further, Investigator Gay located a baggie with a rock of crack cocaine that 

had been stuffed into the back rest area of the seat near the pathway of the 

seatbelt. A video was also played for the jury which depicted Appellant 

during the time he was seated in the backseat of the cruiser alone while the 

arresting officers were waiting on the tow truck to arrive. The video shows 
Ross App. No. 10CA3147 4

Appellant making several unusual movements, scooting around in the seat, 

bending down, grimacing, and also shows what appears to be a tug on the 

seatbelt several times. 

{¶5} At the close of the State’s evidence, Appellant made a Crim.R. 

29 motion for judgment of acquittal, which was denied by the trial court. 

Appellant then began his defense, which consisted of the testimony of one 

witness, and rested his case. Appellant did not renew his Crim.R. 29 motion 

for judgment of acquittal at the close of all evidence. The matter was then 

submitted to the jury, which found Appellant guilty and the trial court 

sentenced Appellant to four years in prison. It is from this judgment entry of 

sentence that Appellant now brings his timely appeal, setting forth a single 

assignment of error for our review. 

ASSIGNMENT OF ERROR 

“I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S 

CRIMINAL RULE 29 MOTION FOR JUDGMENT OF 

ACQUITTAL AS THE STATE FAILED TO PRESENT 

SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR 

POSSESSION OF CONTROLLED SUBSTANCES.” 

{¶6} In his first assignment of error, Appellant contends that the trial 

court erred in overruling his Crim.R. 29(A) motion for judgment of 

acquittal. Crim.R. 29(A) provides: “The court on motion of a defendant or 

on its own motion, after the evidence on either side is closed, shall order the 
Ross App. No. 10CA3147 5

entry of a judgment of acquittal of one or more offenses charged in the 

indictment, information, or complaint, if the evidence is insufficient to 

sustain a conviction of such offense or offenses.” At the close of the State's 

case-in-chief, Appellant moved for a Crim.R. 29 acquittal, which the trial 

court denied. 

{¶7} Initially, we note that although Appellant moved for a Crim.R. 

29 motion for judgment of acquittal at the close of the State’s case, our 

review of the record indicates that Appellant failed to renew his Crim.R. 

29(A) motion at the close of all the evidence. “This Court has previously 

held that a defendant who is tried before a jury and brings a Crim.R. 29(A) 

motion for acquittal at the close of the state's case waives any error in the 

denial of the motion if the defendant puts on a defense and fails to renew the 

motion for acquittal at the close of all the evidence.” State v. Burton, Ross 

App. No. 06CA2892, 2007-Ohio-2320 at ¶31; See, also, State v. Eggeman, 

Van Wert App No. 15-04-07, 2004-Ohio-6495 (overruling claimed error 

related to denial of Crim.R. 29 motion because it was not properly preserved 

for review); State v. Woodson, Ross App. No. 97-CA-2306, 1998 WL 51606 

(applying waiver doctrine upon similar facts reasoning appellant failed to 

preserve all but plain error.) 
Ross App. No. 10CA3147 6

{¶8} “Notice of plain error under Crim.R. 52(B) is to be taken with 

the utmost caution, under exceptional circumstances and only to prevent a 

manifest miscarriage of justice.” State v. Phillips (1995), 74 Ohio St.3d 72, 

80, 1995-Ohio-171, 656 N.E.2d 643, citing State v. Long (1978), 53 Ohio 

St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus. Under a plain 

error analysis, reversal is warranted only when the outcome of the trial 

clearly would have been different without the error. Long; State v. Keith

(1997), 79 Ohio St.3d 514, 1997-Ohio-367, 684 N.E.2d 47. 

{¶9} Although Appellant has not asserted on appeal that the trial 

court’s action in overruling his Crim.R. 29 motion for judgment of acquittal 

constituted plain error, we note that there was no error during Appellant's 

trial that clearly would have affected the outcome. Despite the fact that there 

was no direct evidence presented at trial that Appellant was in possession of 

cocaine, there was substantial indirect evidence. For example, the testimony 

of Chief Roger Moore and Detective Gay that the cruiser used in the stop 

had been searched for contraband prior to the start of the shift that evening, 

that Appellant was the only prisoner in the cruiser that shift, and that upon 

Appellant’s exit from the rear of the cruiser, Detective Gay found a white 

substance and then a baggie containing what was later identified as crack 

cocaine stuffed into the seat where Appellant was sitting, supported the 
Ross App. No. 10CA3147 7

jury’s verdict. Further, the video tape played for the jury showed Appellant 

making multiple unusual movements in the while alone in the backseat of 

the cruiser, which involved moving and pulling on the seatbelt, under which 

the bag of crack cocaine was ultimately located. 

{¶10} Viewing this evidence in a light most favorable to the 

prosecution, any reasonable trier of fact could have found Appellant guilty 

of possession of cocaine. Thus, we find no error, let alone plain error. As 

such, Appellant’s sole assignment of error is overruled. Accordingly, the 

judgment of the trial court is affirmed. 

JUDGMENT AFFIRMED.

Harsha, J., concurring in judgment only: 

{¶11} I no longer share my colleagues’ view that failure to review a 

Crim.R. 29(A) motion at the close of the evidence results in waiver of a 

sufficiency of the evidence assignment of error. See by analogy, State v. 

Cooper, 170 Ohio App.3d 418, 2007-Ohio-1186, ¶13 (failure to move for 

acquittal under Crim.R. 29(A) does not waive a challenge to the sufficiency 

of the evidence), citing State v. Jones (2001), 91 Ohio St.3d. 335, 346, and 

State v. Carter (1992), 64 Ohio St.3d 218, 223. 
Ross App. No. 10CA3147 8

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that the 

Appellee recover of 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 Ross 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 BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

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

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

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

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

Rule 27 of the Rules of Appellate Procedure. 

Exceptions. 

Abele, J.: Concurs in Judgment and Opinion. 

Harsha, J.: Concurs in Judgment Only with Opinion. 

 For the Court, 
Ross App. No. 10CA3147 9

 

BY: _________________________ 

 Matthew W. McFarland 

 Presiding 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.