[Cite as State v. Moss, 2020-Ohio-2862.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

LUCAS COUNTY 

State of Ohio Court of Appeals No. L-19-1047 

 

 Appellee Trial Court No. CR0201802137 

v. 

Ronald Moss, Jr. DECISION AND JUDGMENT

Appellant Decided: May 8, 2020 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and 

 Lauren Carpenter, Assistant Prosecuting Attorney, for appellee. 

 Edward R. La Rue, for appellant. 

* * * * 

ZMUDA, P.J. 

{¶ 1} This matter is before the court on appeal from the judgment of the Lucas 

County Court of Common Pleas, General Division, sentencing appellant Ronald Moss to 

an 11-year prison term after a jury trial. Finding error in the proceedings at trial, we 

reverse and remand for a new trial. 
2.

I. Facts and Procedural Background 

{¶ 2} On April 18, 2018, members of the Metro Drug Task Force, in the course of 

surveilling Mark Belcher, a suspected trafficker, observed Belcher meet with Moss and 

Moss’s uncle, Henry Leake. The task force is a multi-jurisdictional group that 

investigates drug cases, with members from local law enforcement, as well as BCI, FBI, 

and ATF. Initially, FBI Special Agent Kyle Fulmer was the only investigator, conducting 

surveillance of Belcher from an unmarked vehicle. 

{¶ 3} After Belcher parked his white Land Rover in the 3200 block of Haughton 

Street, in Toledo, Ohio, Fulmer took a position to the south in an unmarked vehicle and 

called for assistance. Undercover Toledo Police Detective Kenneth DeWitt, Jr. 

responded, in another unmarked vehicle, and drove by to verify that Belcher was sitting 

in the white Land Rover. Detective DeWitt observed Moss, with a passenger, arrive and 

park his maroon pickup truck several car lengths ahead of Belcher’s vehicle. The 

surveillance team observed Leake exit the passenger side of the truck and walk back to 

Belcher’s car, then take the front passenger seat of the Land Rover. Leake stayed for 

several minutes, then exited Belcher’s car and returned toward the pickup. As Leake 

returned to the pickup, Moss exited the truck and walked back to the Land Rover. Moss 

then sat in the front passenger seat of Belcher’s car and appeared to be talking with 

Belcher. At first, the Task Force only knew the identity of its target, Belcher, but in the 

course of surveillance, officers identified both Leake and Moss, and determined the 

activity of the three as suspicious. 
3.

{¶ 4} The task force requested assistance from a marked unit, and Toledo Police 

Officer Melvin Haney and his partner responded in a limited marked vehicle, an all-black 

vehicle with lights mounted inside and in the back. Officer Haney’s vehicle was 

equipped with a dash camera, but the video did not record the apprehension of Moss. 

{¶ 5} As Officer Haney and his partner arrived, they watched Belcher and Moss 

step out of the Land Rover, and Belcher tossed a plastic bag under his car. The officers 

retrieved the plastic bag, and it contained a substance later identified as more than 100 

grams of crack and powder cocaine. Belcher had additional cocaine and heroin in a 

pocket, but when officers searched Moss they found no drugs. Moss had $1,468 in cash 

in his wallet, and a search of the pickup truck, which was registered to Moss’s wife, 

yielded $4,000 in four, banded wads, found inside a console. 

{¶ 6} All three men were taken into custody, charged, and held pending a bail 

hearing. While Belcher was in custody, immediately after the arrest, he made several 

phone calls from jail. In one call, he acknowledged to the other person on the call that 

“Ronnie,” or Moss, was also in jail, and that “Ronnie and his Uncle,” were dealing drugs 

at the time of his arrest. 

{¶ 7} On June 25, 2018, the Lucas County Grand Jury indicted Moss on two 

counts, trafficking in cocaine in violation of R.C. 2925.03(A)(2) and (C)(4)(g), with a 

major drug offender specification pursuant to R.C. 2941.1410 in Count 1; and possession 

of cocaine in violation of R.C. 2925.11(A) and (C)(4)(f), with a major drug offender 

specification pursuant to R.C. 2941.1410 in Count 2. A separate forfeiture proceeding 
4.

was filed in Lucas Common Pleas case No. CI 201802961, regarding the $5,468 in 

currency seized, and that case was later consolidated with the criminal proceeding.1

{¶ 8} On July 11, 2018, Moss was arraigned with appointed counsel, and entered a 

not guilty plea. On February 4, 2019, Moss filed a motion in limine, seeking to prohibit 

evidence from “a jail phone call from an individual who will not be testifying in the 

instant case and is clearly hearsay under Evid.R. 802.” 

{¶ 9} On February 5, 2019, jury trial commenced, and the trial court overruled 

Moss’s objections to the jail phone call, finding the recording of Belcher’s conversation 

was admissible as a business record. The state played the recording for the jury over 

Moss’s renewed objections. The jury also heard testimony of Detective DeWitt and 

Officer Haney, with Detective DeWitt narrating the events captured on the dashcam 

video and opining on the significance of the events depicted. In addition, Natalie 

Montecalvo, a Lucas County Sheriff’s Resource Officer, testified regarding the system 

used to monitor and record jail calls, and introduced a copy of the calls. Finally, the state 

presented expert testimony of Chadwyck Douglass, a Toledo Police criminalist who 

analyzed the drugs seized on April 18, 2018. 

{¶ 10} At the close of the state’s case, Moss made a Crim.R. 29 motion, which the 

trial court denied. Moss’s wife, Jaknae Moss, testified on his behalf regarding the cash 

discovered and seized from Moss’s wallet and from the truck console, indicating it was 

 

1

 On March 25, 2019, after the appeal of the criminal judgment, the trial court stayed the 

forfeiture proceedings. 
5.

part of funds given to her by an uncle to purchase a home, or it was casino winnings from 

the week before. 

{¶ 11} During deliberations, the jury sent out questions, relayed by the trial court 

as follows: 

Ladies and Gentlemen, we have received several questions as it 

relates to your deliberations and it’s very difficult to answer some of the 

questions. 

So the first question is just if the console in the truck was locked, 

would unlocking of the console be – by an officer constitute and illegal 

search of the vehicle? 

Whether the console was locked or not, that particular question on 

the search would be a legal issue to be determined by the court and would 

have no bearing on what the jury does. 

The second question is define clearly possession as it applies to this 

case. The term “possession,” the legal definition is in your jury 

instructions. And I am not allowed to ad lib on what those instructions are, 

which also applies to three, define “complicit” as it relates to this case. 

Again, the term “complicit,” the legal definition may be somewhat 

confusing, but I can’t elaborate on that definition as well, so I cannot 

answer that. 
6.

The fourth one, could we listen to – again to the recorded call and 

view once again the video? We have that set up, so we’re going to play it 

for you and I’ll have Mr. McDonald play each of those so you can see them 

again. Neither of the attorneys will be allowed to say anything. 

{¶ 12} The prosecutor replayed the dashcam video and selections of the jail calls 

for the jury, and the jury returned to its deliberations. Soon after, the jury found Moss 

guilty on both counts, and entered a finding that Moss was a major drug offender as to 

each count. The trial court proceeded to sentencing, and found the two counts merged for 

purposes of sentencing. As to Count 1, the trial court imposed an 11-year prison term, 

and found Moss had the ability to pay costs of assigned counsel and prosecution. Moss 

filed a timely appeal. 

II. Assignment of Error 

{¶ 13} Moss now challenges his conviction, arguing the following assignments of 

error: 

1. The trial court erred by admitting into evidence the recorded jail 

telephone calls of the hearsay statements of Mark Belcher. 

2. The trial court erred by admitting into evidence expert witness 

testimony under the guise of lay witness testimony without the State having 

filed an expert witness report as required under Ohio Rule of Criminal 

Procedure 16(K). 
7.

3. The trial court erred by finding that the evidence was sufficient to 

convict Mr. Moss of drug trafficking and drug possession. 

4. Appellants’ convictions for drug trafficking and drug possession 

were against the manifest weight of the evidence, in violation of Article IV, 

Section 3, of the Ohio Constitution. 

III. Analysis

{¶ 14} In his first and second assignments of error, Moss challenges the admission 

of evidence, arguing the trial court erred in admitting the jail call recording of Belcher’s 

statements, as inadmissible hearsay, and erred in permitting expert testimony by a lay 

witness. We review a trial court’s ruling on evidentiary issues for an abuse of discretion 

that resulted in material prejudice. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio5735, 70 N.E.3d 508, ¶ 181, citing State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 

74 N.E.3d 319, ¶ 116.2

 

{¶ 15} Moss first challenges the admission of Belcher’s jail call recordings, over 

his objection, as inadmissible hearsay. Hearsay is an out-of-court statement “offered in 

evidence to prove the truth of the matter asserted.” Evid.R. 801(C). Appellee, the state 

 

2

 We note that hearsay challenges implicating the Confrontation Clause are reviewed de 

novo, under the applicable hearsay rule. State v. McKelton, 149 Ohio St.3d 261, 2016-

Ohio-5735, 70 N.E.3d 508, ¶ 97. While Moss raised his Sixth Amendment rights before 

the trial court, Moss does not challenges the trial court’s ruling on appeal as implicating 

the Confrontation Clause, arguing instead that Belcher’s statements are nontestimonial 

hearsay, improperly admitted at trial. 
8.

of Ohio, argues that Moss failed to object and raise this exact issue before the trial court, 

and thus waived all but plain error. 

{¶ 16} Moss filed a motion in limine in the trial court, arguing Belcher’s 

statements were inadmissible hearsay, not subject to cross-examination to test the 

credibility of the declarant. The parties then argued the motion before the trial court, 

with the prosecution’s position as follows: 

Mr. McDonald: The State is seeking to introduce a jail phone call 

placed hours after the arrest on April 18th of Mark Belcher who is a 

charged defendant, though charged federally, not here in state court, and is 

not a codefendant in this case. 

The call states in pertinent part – and I would only be attempting to 

play two little snippets – one, that there’s an acknowledgement that Ronnie 

is in jail too. Obviously, our defendant’s name is Ronald. Then Mr. 

Belcher makes a statement that says he came bringing me you know what it 

is, you know what it was, he gives me this shit, his uncle was there, he 

discusses some dispute about the quantity or the type of drug that it is. And 

then says he goes and talks to dude, being Ronald, and then that’s when the 

police swooped in, as well as a statement where he says he was jammed up 

with Ronnie and his uncle. Someone is asking who were you caught with 

in the background. Someone is yelling who’s the drug dealer and he says 

Ronnie and his uncle. 
9.

The State is seeking to introduce this jail phone [call] under two 

theories. The first is it’s a business record exception to hearsay, so the 

State argues that any hearsay contained in the phone call, there’s an 

exception which is the business record. There’s been an [argument] that 

this would be in violation of the confrontation clause. 

However, the State has provided authority to this court including a 

previous ruling made in 2016, a 2016 case by this court3

 as well as State v. 

Stewart, 2009 Ohio 3411, as well as several federal cases, and State v. 

Dennison, 2013 Ohio 5535, which all stand for and hold that jail phone 

calls made are nontestimonial. Therefore, in no violation of the 

confrontation clause and thus alleviating any Bruton issues. 

The State is seeking to introduce those two snippets based on the 

authority provided to the court as well as precedent from this building. And 

thank you, judge. 

 

3

 The state did not provide the citation to this 2016 case on the record, but the trial court 

did reference a 2016 ruling in denying the motion in limine, naming the codefendants, 

Davonte Nicholson and Alexander Williams. There were appeals filed by Davonte 

Nicholson and Alexander Williams, codefendants in Lucas Common Pleas case No. 

CR0201602818. In State v. Nicholson, 6th Dist. Lucas No. L-17-1187, 2018-Ohio-4909 

and State v. Williams, 6th Dist. Lucas No. L-17-1186, 2019-Ohio-2657, neither appellant 

challenged the admissibility of witness testimony regarding a phone call from Williams. 

The witness called Williams, her drug dealer, to notify Williams of the victim’s 

whereabouts, and agreed to detain the victim at that location. After the murder, Williams 

called the witness and told her that the killing was done and if she said anything, 

Williams would “get” her too. 
10. 

In response, Moss’s trial counsel supplemented argument in the motion in limine, noting 

the case law deemed persuasive by the trial court, and stressing the danger of prejudice in 

admitting Belcher’s statements. 

Mr. Luettke: Judge, I would argue that the statement that Mr. 

Belcher makes is mentioning Ronnie is an – it’s an accusatory statement. 

I – if the court sees that the jailhouse calls are a business record, which 

obviously the case law is leaning towards, I would argue that it’s highly 

prejudicial, under 403(A) that it be excluded, because the danger far 

outweighs the probative value of it. The police conducted a limited 

investigation. They moved in quickly. They have the evidence they have. 

I know Mr. Belcher was begging to get out on a bond and then this phone 

call and I’m certain shifting the blame because he wanted his folks to go 

post his bond and it’s not me, it’s all Ronnie. 

I think the dangers of misleading the jury far outweighs the 

probative value of admitting the call. 

{¶ 17} In reaching a determination regarding the recordings, the trial court noted 

its own prior ruling in a separate case, stating: 

Court: Well, in addition to the references made by the State, there 

was a case in 2016 that the court handled with Davonte Nicholson and 

Alexander Williams which were codefendants in a murder case and I was 
11. 

the trial judge at the time and there was a similar issue raised regarding 

some jail calls at that time. 

And the court reluctantly admitted the phone calls based on some of 

the case law that Mr. McDonald has just referred to. And the case law 

that’s been developed in Ohio and federally has indicated that jail calls are 

nontestimonial. 

I don’t necessarily agree with that, but because of the case law that 

has been developed regarding jail calls, the court is going to allow the State 

to play a limited portion of that section as it relates to any reference to the 

defendant in this case. 

The trial court denied the motion in limine, but specifically noted defense counsel’s 

objection at the time of denying the motion, immediately prior to the state’s introduction 

of the recording into evidence, and again, prior to replaying the recording during the 

jury’s deliberations. 

{¶ 18} To preserve an issue for appeal, the objection at trial must apprise a trial 

court of the specific argument. (Citations omitted.) State v. Ruble, 2017-Ohio-7259, 96 

N.E.3d 792, ¶ 38 (4th Dist.). Contrary to the state’s position, Moss preserved his 

appellate challenge. Indeed, we are hard-pressed to find a more thorough preservation of 

an issue, considering the objection asserted and noted at each stage of trial. Moss raised 

the issue of hearsay, both before the trial court and on appeal, arguing the inapplicability 
12. 

of the business record exception to Belcher’s out-of-court statements, as well as the 

prejudice posed by those statements. 

{¶ 19} In considering the argument, the trial court indicated a reluctance to admit 

the jail calls, but determined case law dictated that such calls were nontestimonial, and 

therefore admissible, without addressing the issue of hearsay. The authority considered 

by the trial court, however, does not stand for the proposition that jail calls are 

nontestimonial and, therefore, admissible regardless of content. 

{¶ 20} First, in State v. Dennison, the Tenth District Court of Appeals considered 

the admissibility of a defendant’s own, recorded statements, finding the probative value 

of the defendant’s statements outweighed the prejudice of the jury hearing his offensive 

language and brief references to his incarceration. Dennison, 10th Dist. Franklin No. 

12AP-718, 2013-Ohio-5535, ¶ 80. In Dennison, the recorded statements were 

defendant’s own, offered against him at trial, and not hearsay under Evid.R. 801(D)(2). 

The trial court, furthermore, weighed the potential prejudice prior to admitting the 

recordings. 

{¶ 21} In State v. Stewart, the Third District considered the admissibility of video 

and audio recordings of persons who did not testify, including recordings of jail calls by 

the defendant’s co-conspirators. In that case, the defendant argued admission of the 

recorded statements violated his right to confront witnesses, under the Sixth Amendment, 

but raised no other challenge based on hearsay. The content of the statements included 

talk of Stewart “cornering the market,” Stewart’s own admission that he was hiding while 
13. 

police conducted a search of a residence, and Stewart and a codefendant discussing their 

belief they could not be charged if they were not listed on the lease. Based on the content 

of these recordings, the court determined the statements were not testimonial in nature, as 

no statements related to past events “potentially relevant to later criminal prosecution.”4

 

Stewart, 3d Dist. Seneca No. 13-08-18, 2009-Ohio-3411, ¶ 96. Unlike the facts in 

Stewart, Moss argues Belcher’s recorded statements were improperly admitted hearsay, 

resulting in prejudice. 

{¶ 22} Unlike the courts in Dennison and Stewart, the trial court, in this case, did 

not consider the content of the jail calls before determining that Belcher’s statements 

were admissible because the statements were nontestimonial. While it is true that 

nontestimonial hearsay does not implicate the confrontation clause of the Sixth 

Amendment, courts must still address the separate, hearsay issue. See, e.g., State v. Stahl,

111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 16, citing Crawford v. 

Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Regardless of 

any Confrontation Clause concerns, hearsay statements are not admissible unless they fall 

within an exception to the rule. See Evid.R. 802. 

 

4

 While we note that the statements in the present case did address past events 

“potentially relevant to later criminal prosecution” and the state used these statements as 

an evidentiary substitute to sustain a conviction, Moss argues the Belcher statements 

were nontestimonial. Consideration of the nature of the statements, as testimonial or 

nontestimonial, is not before us on appeal. 
14. 

{¶ 23} Here, the prosecutor introduced out-of-court statements that included 

Belcher’s response to the question, “who is the drug dealer?” Belcher’s statements 

indicated Moss and his uncle were the drug dealers, the exact issue on trial. We agree 

with Moss that such statements fit the definition of hearsay, as an out-of-court statement, 

offered “to prove the truth of the matter asserted.” See Evid.R. 801(C). The state 

acknowledged the Belcher statements as hearsay, but argued they were nevertheless 

admissible as business records. 

{¶ 24} Pursuant to Evid.R. 803(6), a business record is defined as: 

A memorandum, report, record, or data compilation, in any form, of 

acts, events, or conditions, made at or near the time by, or from information 

transmitted by, a person with knowledge, if kept in the course of a regularly 

conducted business activity, and if it was the regular practice of that 

business activity to make the memorandum, report, record, or data 

compilation, all as shown by the testimony of the custodian or other 

qualified witness or as provided by Rule 901(B)(10), unless the source of 

information or the method or circumstances of preparation indicate lack of 

trustworthiness. 

{¶ 25} In arguing admissibility under Evid.R. 803(6), the state focuses on the 

reliability of the recording methods, noting authority that supports authentication of jail 

recordings involving a party. See State v. George, 8th Dist. Cuyahoga No. 106317, 

2018-Ohio-5156 (jail call recordings admissible where defendant and her incarcerated 
15. 

boyfriend discussed and planned the crimes, with testimony demonstrating accurate 

recording of the conversations); State v. Nixon, 11th Dist. Portage No. 2013-P-0098, 

2014-Ohio-4303 (jail calls recordings of the defendant’s own statements properly 

authenticated and admitted). Here, however, the jail call recording is of a non-party, and 

while the state presented testimony to ensure the accuracy of the recording of that nonparty’s voice, the trial court failed to articulate any consideration of Moss’s objections to 

the trustworthiness of that non-party’s statements, contained within the recording. 

{¶ 26} In State v. Eicholtz, the Second District Court of Appeals compared the 

requirements for authentication of a recording versus trustworthiness of the contents of a 

recording, as it related to 911 calls. State v. Eicholtz, 2d Dist. Clark No. 2012-CA-7, 

2013-Ohio-302, ¶ 31. In drawing a distinction between accurate recording and the 

reliability of the content, that court found the “business records” argument unpersuasive, 

for purposes of admissibility of recorded, non-party statements, noting: 

“The theory underlying the business records exception to hearsay set 

forth in Evid.R. 803(6) is that records kept in the regular course of business 

are ordinarily accurate with respect to the purposes for which they are kept. 

Thus, it is reasonable to suppose that [a] 911 taping system accurately 

recorded [a declarant's] statements. * * * The 911 tape recording system 

can reasonably be expected to generate an accurate record of what is said 

by persons calling 911, but it cannot vouch for the accuracy of the 

statements made by persons calling 911.” 
16. 

Eicholtz at ¶ 31, fn. 5, quoting State v. Johnson, 2d Dist. Montgomery No. 15253, 

1996 WL 200623, *4 (Apr. 26, 1996). 

{¶ 27} We find the same underlying theory applies in this case, where the 

recording admitted contained double hearsay. While the state clearly demonstrated the 

jail’s taping system accurately recorded Belcher’s statements to others, accusing Moss of 

being the drug dealer, the integrity of that system in no way ensured that Belcher’s 

statements were truthful or reliable. This is the exact reliability argument asserted by 

Moss on appeal, which the state wholly fails to address, characterizing Moss’s authority 

as pertaining strictly to hearsay issues in civil suits, and not to jail phone calls in a 

criminal trial. 

{¶ 28} While Moss cites to no criminal cases involving jail calls, the state relies on 

authority pertaining to jail calls that do not address the reliability issue before us. We 

have previously considered this issue, however, concerning reliability and double hearsay 

in criminal trials. In State v. Reynolds, we considered admissibility of medical records 

that included victim statements, and noted a recording and the statements within that 

recording each constituted an out-of-court statement, offered to prove the truth of the 

matter asserted. See State v. Reynolds, 6th Dist. Lucas No. L-16-1080, 2018-Ohio-40, 

¶ 49, appeal not allowed, 152 Ohio St.3d 1467, 2018-Ohio-1795, 97 N.E.3d 502. 

Pursuant to Evid.R. 805, a court must consider admissibility as to each part of the 

combined statements. Id.
17. 

{¶ 29} In Reynolds, we found the medical record admissible under the business 

records exception of Evid.R. 803(6). Id. at ¶ 51. Much of the victim statements, 

however, did not fall within an exception to the rule prohibiting hearsay, as the 

statements were not “made for purposes of medical diagnosis or treatment” 

 as provided under Evid.R. 803(4). Id. at ¶ 52; ¶ 57. While we found error in the 

admission of these statements, however, we determined the impact of the statement 

negligible, and deemed the error harmless. Reynolds at ¶ 55-57. 

{¶ 30} The First District Court of Appeals performed a similar “hearsay within 

hearsay” analysis concerning text messages in a criminal trial. In State v. Hinkston, 1st 

Dist. Hamilton No. C-140448, 2015-Ohio-3851, the state introduced text messages 

retrieved from a cell phone taken from the defendant. The court determined the record of 

the cell phone account fell within the business record exception to hearsay, under Evid.R. 

803(6). Hinkston at ¶ 17. The court further found that the content of the messages were 

either not hearsay, as messages sent by the defendant, Evid.R. 801(D)(1), or not offered 

for the truth of the matter asserted, Evid.R. 801(C). Id. 

{¶ 31} In this case, despite the hearsay objections raised by Moss, the state did not 

present any basis for admitting the hearsay within hearsay before the trial court, relying 

on the business records exception and distinguishable, inapplicable case law. Now, on 

appeal, the state argues that the double hearsay was admissible based on the business 

records exception, without addressing the independent basis for admission of the 

statements, or based on Belcher’s unavailability, stating the record is clear “that in the 
18. 

trial court the state argued that the jail phone calls would meet the 804(B)(3) unavailable 

witness hearsay exception.” We note, however, that the state cites to nothing in the 

record to support this claim, demonstrating the state made any reasonable attempt to 

secure Belcher’s live testimony at trial as required under Evid.R. 804(B), prior to any 

“unavailable” determination. See, e.g., State v. Blakely, 6th Dist. Lucas No. L-03-1275, 

2006-Ohio-185, ¶ 24 (witness not considered unavailable “unless the prosecution had 

made reasonable efforts in good faith to secure his presence at trial” and the proffered 

statement bore “sufficient indicia of reliability.”) (Citations omitted.) 

{¶ 32} Upon review of the record, we find the trial court erred in admitting 

Belcher’s statements, as hearsay within hearsay, with nothing to indicate “each part of the 

combined statements” was admissible under “an exception to the hearsay rule” as 

required under Evid.R. 805. Finding error, we must next determine whether the 

improperly admitted hearsay constitutes prejudicial error. State v. Kirk, 6th Dist. Huron 

No. H-09-006, 2010-Ohio-2006, ¶ 18, citing State v. Smith, 64 Ohio App.3d 383, 387, 

581 N.E.2d 1107 (6th Dist.1989). 

{¶ 33} Generally, “error in the admission of evidence is harmless if there is no 

reasonable possibility that the evidence may have contributed to the accused’s 

conviction,” and “in such cases there must be overwhelming evidence of the accused’s 

guilt or some other indicia that the error did not contribute to the conviction.” (Citations 

omitted.) State v. DeMarco, 31 Ohio St.3d 191, 195, 509 N.E.2d 1256 (1987). 
19. 

Considering the record in this case, there is a strong possibility that admission of 

Belcher’s statements secured the conviction, and therefore, the error was not harmless. 

{¶ 34} In this case, the prosecutor highlighted Belcher’s statements as persuasive, 

substantive evidence in proving Moss was the drug dealer. In addition to playing the 

statements for the jury during trial, the prosecutor featured Belcher’s remarks in closing 

argument, noting the federal investigation of Belcher for drug trafficking and Belcher’s 

version of what happened the date of the arrest for possession and trafficking. The 

prosecutor then replayed the recorded statements, over the objection of Moss’s trial 

counsel, interjecting comment and highlighting how important Belcher’s statements were 

to the case. 

Mr. McDonald: Okay. Now when we listen to this call – and I’ll 

play it a couple times for you because it’s important. Let’s set the context 

up where Mr. Luettke says in his closing argument that that can’t be trusted 

because it’s not under oath. Again, who cares? Who cares? He’s talking 

to his friends, family. Obviously someone familiar with Mr. Belcher. He is 

telling them what happened the day that it happened. This recording is 

from 4/18. * * * 

This is hours after it happened and he’s talking, Mark Belcher now is 

talking to friends or family, somebody who cares about him and he’s telling 

them what happened. If that’s not indicative of truthfulness, more so than 

an oath in a courtroom, I don’t know what is. This is a phone call he made 
20. 

the day he gets arrested to his friends and family explaining what happened. 

And he’s going to fib about that? I don’t think so. 

And when we listen to this, it’s important to listen to what is said. 

The female on the recording says Ronnie is in jail too. He says I know. 

Listen to how Belcher’s voice changes when he’s discussing – he gets 

quiet. He’s saying, hey, look, he came bringing me, he came bringing me, 

you know he know what it was. Well, okay. Here he came bringing me, 

right. Ronnie’s in jail too. I know. He came bringing me. 

You know what it was. Right. And we know it was cocaine. 

Bringing cocaine. 

Four thousand dollars, in his car. Listen to it. 

(Recording played for the court and the jury) 

Mr. McDonald: He come bringing me. He come bringing me. You 

know what it was, right. 

(Resume playing recording) 

Mr. McDonald: He – he gives me the shit. His uncle was in there. 

(Resume playing recording) 

Mr. McDonald: He says like what is this? Right? Wrong 

quantitation. 

(Resume playing recording) 
21. 

Mr. McDonald: Okay. So he walks out and dude comes back to the 

car which is exactly what the surveillance showed, right? He’s talking 

about Henry Leake comes in and he says, okay, what’s this. I can’t cut that 

up. And Leake goes back to the car and we know this happens because of 

the surveillance. We know that Leake comes back to the car and then we 

know that Ronald Moss goes back to the car. Why? Why are these 

behaviors happening on a street in Toledo in the middle of the afternoon? 

This is why. Money. Ronnie is in jail too. I know. And he explains the 

whole scenario, exactly corroborating what the detective testified to 

happened. Leake takes the drugs, he came, he came bringing the drugs to 

the car, exchange was made and he’s like, hey, man, I can’t work with this. 

Go send Ron because we’ve got to talk about this and so Ron goes to the 

car and that’s what happens. And that’s the way he explained it, almost 

identically the way the detective explained the surveillance. 

(Resumes playing recording) 

Mr. McDonald: Did you hear it, the sound like a child in the 

background? The dope dealer. Right. Let’s try that one more time. 

(Resumes playing recording.) 

Mr. McDonald: Going to play it through for a second. 

(Resumes playing recording.) 
22. 

Mr. McDonald: See, they’re talking in code. What’s dude name,

that she’s trying to get his name, right? 

(Resumes playing recording.) 

Mr. McDonald: I mean it’s right there. He says who’s your codefendant? I don’t have a co-defendant. I don’t know who that – the dope 

dealer. Oh, the guy I got jammed up with, oh, it was Ronnie and his uncle. 

The dope dealer. 

In the midst of deliberations, the jurors requested a replay of the recording, and the trial 

court permitted the prosecutor to play the recording once more for the jurors. 

{¶ 35} Clearly, the prosecution relied on Belcher’s statements in demonstrating 

Moss was “the dope dealer.” The prosecution played the recording during trial and again 

during closing arguments. The prosecutor provided running commentary during his 

closing argument, interpreting and explaining Belcher’s words when he spoke in “code.” 

The jurors, moreover, demonstrated interest in this hearsay by asking to hear the 

statements once more during deliberation. When we compare this hearsay to the totality 

of the evidence presented at trial, we find a strong possibility that Belcher’s statements 

contributed to the guilty verdicts. Therefore, the trial court’s error in admitting this 

hearsay was prejudicial. We find Moss’s first assignment of error well-taken. 

{¶ 36} In his second assignment of error, Moss argues the state introduced 

improper testimony by permitting Detective DeWitt to opine on matters he did not 

observe. While we review a trial court’s decision regarding admission of evidence for an 
23. 

abuse of discretion, Moss did not raise any objection to this testimony during trial, 

waiving all but plain error. State v. McClain, 6th Dist. Lucas No. L-10-1088, 2012-

Ohio-5264, ¶ 12; see also State v. McKee, 91 Ohio St.3d 292, 294, 744 N.E.2d 737 

(2001). To find plain error we must determine that, “but for the error, the outcome of the 

trial clearly would have been otherwise.” McKee at 294, citing Crim.R. 52(B); State v. 

Johnson, 88 Ohio St.3d 95, 111, 723 N.E.2d 1054 (2000). 

{¶ 37} Procedurally, this issue is not moot, despite our finding of reversible error 

regarding the hearsay statements of Belcher. An issue is moot where resolution of the 

assigned error “is purely academic and will have no practical effect on the legal relations 

between the parties.” State ex rel. Renwand v. Huron Cty. Bd. of Commrs., 6th Dist. 

Huron No. H-09-011, 2010-Ohio-1477, ¶ 25, quoting Wagner v. City of Cleveland, 62 

Ohio App.3d 8, 13, 574 N.E.2d 533 (8th Dist.1988). As our reversal based on trial error 

results in a new trial, we address all evidentiary issues raised. 

{¶ 38} Moss objects to Detective DeWitt’s opinion testimony concerning events 

he did not personally witness, explaining events depicted on the dashcam video and 

stating his belief that Moss brokered a drug deal without any testimony that he observed 

an exchange of drugs and money. A police officer may offer opinion, consistent with the 

officer’s perception, training, and experience. McClain at ¶ 13. Opinion testimony 

regarding “an ultimate issue to be decided by the trier of fact,” moreover, may be 

admissible at trial. See Evid.R. 704. 
24. 

{¶ 39} Here, Detective DeWitt explained the events of the date in question, based 

on his participation in the surveillance and apprehension of Belcher, Leake and Moss. 

His testimony, moreover, was limited to matters within his experience and observations, 

as established through his testimony, detailing his training, education, and years of 

experience in law enforcement. Furthermore, Detective DeWitt’s testimony was typical 

officer testimony regularly admitted at trial. See, e.g., McClain at ¶ 13 (Officer properly 

opined that quantity of drugs indicated sale and not personal use); State v. Blair, 2016-

Ohio-2872, 63 N.E.3d 798 (4th Dist.) (police could refute defense theory that another 

individual killed the victim, opining on that individual’s poor physical strength and 

uninjured hands, where victim was struck with fists.); State v. Parker, 2d Dist. 

Montgomery No. 18926, 2002-Ohio-3920, ¶ 53 (experienced detective properly opined 

that the wounds appeared to be gunshot wounds). Accordingly, we find no error that 

rises to the level of plain error regarding Detective DeWitt’s testimony, and Moss’s 

second assignment of error is not well-taken. 

{¶ 40} In his remaining assignments of error, Moss challenges both the sufficiency 

and weight of the evidence. Because we sustained Moss’s first assignment of error, his 

manifest-weight argument raised in his fourth assignment of error is moot. The 

sufficiency argument, however, is not moot, as reversal based on improper evidence 

requires a retrial, while reversal based on insufficient evidence bars a retrial. See State v. 

Thompkins, 78 Ohio St.3d 380, 387, 678 NE.2d 541 (1997), citing Tibbs v. Florida, 457 

U.S. 31, 47, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). See also State v. Flannery, 1st Dist. 
25. 

Hamilton No. C-140426, 2015-Ohio-1360, ¶ 15 (where new trial granted based on error 

in admission of evidence, sufficiency analysis must still be addressed). 

{¶ 41} In considering the sufficiency of the evidence, we consider all the evidence 

presented at trial. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, 

¶ 18. We conduct our sufficiency determination apart from the review of improper 

hearsay, or ordinary “trial error,” as sufficiency is a test of the state’s case against Moss, 

while the hearsay determination relates only to a defect in the proceeding itself. Id.,

citing Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), 

quoting Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). 

Because the state properly relies on a trial court’s evidentiary rulings in deciding how to 

present its case, a sufficiency review must include a review of all the evidence presented 

at trial. Brewer at ¶ 19. To proceed otherwise would place the onus on the state to 

“assume every ruling by the trial court on the evidence to be erroneous and marshall and 

offer every bit of relevant and competent evidence[,]” a standard that is impractical and 

adverse to the administration of justice. (Citations omitted.) Id. 

{¶ 42} Here, the jury convicted Moss of trafficking and possession of more than 

100 grams of cocaine. The state’s theory of the case was that Moss and Leake sold the 

drugs to Belcher for $4,000. In reviewing the sufficiency of the evidence, the test is not 

whether the evidence is worthy of belief, but whether, if a jury finds the evidence 

credible, that evidence would support a conviction as to each element of the offense 

charged. (Citations omitted.) State v. Shelby, 135 N.E.3d 508, 2019, Ohio-1564, ¶ 18 
26. 

(6th Dist.). The sufficiency determination presents a question of law. Id., citing 

Thompkins at 386. 

{¶ 43} To sustain a conviction for trafficking as charged, the evidence must 

demonstrate that Moss knowingly prepared for shipment, shipped, transported, delivered, 

prepared for distribution, or distributed “a controlled substance or a controlled substance 

analog,” with knowledge or a reasonable belief that “the controlled substance or a 

controlled substance analog is intended for sale or resale by the offender or another 

person.” R.C. 2925.03(A)(2). 

{¶ 44} To sustain a conviction for possession as charged, the evidence must 

demonstrate that Moss knowingly obtained, possessed, or used “a controlled substance or 

a controlled substance analog.” R.C. 2925.11(A). “Possession of drugs may be actual or 

constructive.” State v. Steed, 75 N.E.3d 816, 2016-Ohio-8088, ¶ 55 (6th Dist.), citing 

State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976). Constructive 

possession, shown by an exercise of control of an object, may be “inferred from a totality 

of the evidence where sufficient evidence, in addition to proximity,” supports that 

finding. Id., citing State v. Durr, 6th Dist. Sandusky No. S-97-056, 2000 WL 1033033, 

*4 (July 28, 2000). 

{¶ 45} In addition to the drug charges, the jury also determined the major drug 

offender specification, pursuant to R.C. 2941.1410, applied to Moss. A “major drug 

offender” includes a person convicted of possessing or selling “at least one hundred 

grams of cocaine[.]” R.C. 2929.01(W). 
27. 

{¶ 46} In challenging the sufficiency of the evidence, Moss does not challenge the 

amount of cocaine, instead arguing there was no direct evidence demonstrating he 

physically possessed or sold the drugs and there was no testimony that officers observed 

Leake place the $4,000 in the pickup truck’s center console. Even if no witness observed 

a physical exchange of drugs and money, however, “circumstantial evidence can have the 

same probative value as direct evidence.” State v. Franklin, 62 Ohio St.3d 118, 124, 580 

N.E.2d 1 (1991), citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), 

paragraph one of the syllabus. 

{¶ 47} Here, Belcher implicated Moss as the dealer who sold him drugs, with a 

street value of around $4,000. At the time, Belcher was under surveillance by the multijurisdictional Task Force as a known drug trafficker. The testimony indicated over 100 

grams of crack and powder cocaine near Belcher’s vehicle and $4,000 in Moss’s pickup 

console, banded in a manner consistent with drug trafficking. Additionally, Moss carried 

almost $1,500 in his wallet, kept in his pocket. 

{¶ 48} Officers observed Leake walk from Moss’s pickup truck to Belcher’s 

vehicle, sit in the passenger seat, and then return to the pickup, followed by Moss 

walking from his pickup to Belcher’s vehicle and sit in the passenger seat. Shortly 

thereafter, officers observed Belcher throw a bag of drugs under the vehicle, apparently 

to avoid detection. While Moss argues that Leake did not access the pickup after his 

return from Belcher’s vehicle, and did not place the $4,000 in the console, the only 

evidence elicited as to Leake indicated the Task Force was watching Belcher, and Leake 
28. 

stayed “at the side of the pickup.” Finally, Detective DeWitt indicated the console 

containing $4,000 was unlocked, and while defense counsel attempted to discredit 

testimony regarding the cash by arguing the console was locked and the cash belonged to 

Jaknae Moss, the test for sufficiency is merely adequacy. Thompkins, 78 Ohio St.3d at 

386, 678 N.E. 2d 541. 

{¶ 49} Having thoroughly reviewed the record, we find the state met its burden of 

production and presented sufficient evidence as to each element of the charged offenses. 

Therefore, while we reverse based on prejudicial error in permitting the introduction of 

inadmissible hearsay, we find Moss’s third assignment of error not well-taken, and Moss 

is merely entitled to a new trial, and not acquittal. 

IV. Conclusion 

{¶ 50} Finding substantial justice has not been done, we hereby reverse the 

judgment of the Lucas County Common Pleas Court, General Division, and remand the 

matter for a new trial. Appellee is assessed the costs of this appeal pursuant to App.R. 

24. 

Judgment reversed 

and remanded. 

 
29. 

 State v. Moss 

 C.A. No. L-19-1047 

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

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

Thomas J. Osowik, J. _______________________________ 

JUDGE 

Christine E. Mayle, J. 

 _______________________________ 

Gene A. Zmuda, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

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

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

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

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