[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 appe llant Ronald Moss to an 11-year prison term after a jury trial. Finding error in th e 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 Belc her meet with Moss and Moss’s uncle, Henry Leake. The task force is a multi-jurisdict ional group that investigates drug cases, with members from local law enforcemen t, 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 Kenn eth 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 Belch er’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 R over. 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 t o the Land Rover. Moss then sat in the front passenger seat of Belcher’s car and appea red to be talking with Belcher. At first, the Task Force only knew the identity of it s 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 Tol edo Police Officer Melvin Haney and his partner responded in a limited mar ked vehicle, an all-black vehicle with lights mounted inside and in the back. Officer Ha ney’s vehicle was equipped with a dash camera, but the video did not record the a pprehension 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 un der his car. The officers retrieved the plastic bag, and it contained a substance later i dentified as more than 100 grams of crack and powder cocaine. Belcher had additional coca ine and heroin in a pocket, but when officers searched Moss they found no drugs. M oss had $1,468 in cash in his wallet, and a search of the pickup truck, which was regi stered 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 pendin g a bail hearing. While Belcher was in custody, immediately after the a rrest, he made several phone calls from jail. In one call, he acknowledged to the oth er person on the call that “Ronnie,” or Moss, was also in jail, and that “Ronnie and his U ncle,” 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 separat e forfeiture proceeding4. was filed in Lucas Common Pleas case No. CI 201802961, regardin g 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, an d entered a not guilty plea. On February 4, 2019, Moss filed a motion in l imine, seeking to prohibit evidence from “a jail phone call from an individual who will no t 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 reco rding for the jury over Moss’s renewed objections. The jury also heard testimony of De tective DeWitt and Officer Haney, with Detective DeWitt narrating the events captu red on the dashcam video and opining on the significance of the events depicted. In addition, Natalie Montecalvo, a Lucas County Sheriff’s Resource Officer, testifie d 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 Polic e 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 con sole, 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 i t was casino winnings from

the week before. {¶ 11} During deliberations, the jury sent out questions, relayed by t he 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 l ocked, would unlocking of the console be – by an officer constitute an d 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 j ury instructions. And I am not allowed to ad lib on what those ins tructions are, which also applies to three, define “complicit” as it relates t o this case. Again, the term “complicit,” the legal definition may be somewh at 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 ca n see them again. Neither of the attorneys will be allowed to say anythin g. {¶ 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 ma jor 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 assig nments of

error: 1. The trial court erred by admitting into evidence the record ed jail telephone calls of the hearsay statements of Mark Belcher. 2. The trial court erred by admitting into evidence expert wit ness testimony under the guise of lay witness testimony without the State having filed an expert witness report as required under Ohio Rule of C riminal Procedure 16(K).7. 3. The trial court erred by finding that the evidence was suff icient to convict Mr. Moss of drug trafficking and drug possession. 4. Appellants’ convictions for drug trafficking and drug posse ssion 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 t he admission of evidence, arguing the trial court erred in admitting the jai l call recording of Belcher’s statements, as inadmissible hearsay, and erred in permitting ex pert testimony by a lay witness. We review a trial court’s ruling on evidentiary issue s 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 reco rdings, over his objection, as inadmissible hearsay. Hearsay is an out-of-c ourt statement “offered in evidence to prove the truth of the matter asserted.” Evid.R. 8 01(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 Am endment rights before the trial court, Moss does not challenges the trial court’s rul ing on appeal as implicating the Confrontation Clause, arguing instead that Belcher’s statem ents 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 Belch er’s statements were inadmissible hearsay, not subject to cross-exam ination to test the credibility of the declarant. The parties then argued the moti on before the trial court, with the prosecution’s position as follows: Mr. McDonald: The State is seeking to introduce a jail phone c all 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 attempt ing to play two little snippets – one, that there’s an acknowledgement that Ronnie is in jail too. Obviously, our defendant’s name is Ronald. Th en Mr. Belcher makes a statement that says he came bringing me you kno w 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 t hat it is. And then says he goes and talks to dude, being Ronald, and then tha t’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 caug ht with in the background. Someone is yelling who’s the drug dealer an d 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 hea rsay, so the State argues that any hearsay contained in the phone call, ther e’s an exception which is the business record. There’s been an [argum ent] that

this would be in violation of the confrontation clause. However, the State has provided authority to this court includi ng a previous ruling made in 2016, a 2016 case by this court 3 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 t he confrontation clause and thus alleviating any Bruton issues. The State is seeking to introduce those two snippets based on t he 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 th e record, but the trial court did reference a 2016 ruling in denying the motion in limine, na ming the codefendants, Davonte Nicholson and Alexander Williams. There were appeals f iled 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 appell ant challenged the admissibility of witness testimony regarding a p hone call from Williams. The witness called Williams, her drug dealer, to notify William s 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 i f 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 stressin g 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 s tatement. I – if the court sees that the jailhouse calls are a business r ecord, which obviously the case law is leaning towards, I would argue that i t’s highly prejudicial, under 403(A) that it be excluded, because the dang er far outweighs the probative value of it. The police conducted a li mited 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 th is phone call and I’m certain shifting the blame because he wanted his f olks 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 Nicholso n and

Alexander Williams which were codefendants in a murder case and I was11. the trial judge at the time and there was a similar issue raise d regarding some jail calls at that time. And the court reluctantly admitted the phone calls based on som e of the case law that Mr. McDonald has just referred to. And the c ase 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 la w 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 n oted 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 t he recording during the jury’s deliberations. {¶ 18} To preserve an issue for appeal, the objection at trial must ap prise 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 mor e 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 inapplicability12. of the business record exception to Belcher’s out-of-court stat ements, as well as the prejudice posed by those statements. {¶ 19} In considering the argument, the trial court indicated a reluct ance to admit the jail calls, but determined case law dictated that such call s 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, fi nding the probative value of the defendant’s statements outweighed the prejudice of the j ury 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 p rior 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, u nder 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 while13. police conducted a search of a residence, and Stewart and a cod efendant 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 n ot testimonial in nature, as no statements related to past events “potentially relevant to l ater 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 admit ted 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 t hat Belcher’s statements

were admissible because the statements were nontestimonial. Wh ile it is true that nontestimonial hearsay does not implicate the confrontation cla use of the Sixth Amendment, courts must still address the separate, hearsay issu e. See, e.g., State v. Stahl , 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 16, citin g Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Regar dless of any Confrontation Clause concerns, hearsay statements are not a dmissible 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 st ate used these statements as an evidentiary substitute to sustain a conviction, Moss argues the Belcher statements were nontestimonial. Consideration of the nature of the statem ents, as testimonial or nontestimonial, is not before us on appeal.14. {¶ 23} Here, the prosecutor introduced out-of-court statements that in cluded 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 i ssue on trial. We agree with Moss that such statements fit the definition of hearsay, a s 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 fr om 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 da ta 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 indic ate lack of

trustworthiness. {¶ 25} In arguing admissibility under Evid.R. 803(6), the state focuse s on the reliability of the recording methods, noting authority that sup ports 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 incarcerated15. boyfriend discussed and planned the crimes, with testimony demo nstrating 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 st atements properly authenticated and admitted). Here, however, the jail call reco rding is of a non-party , and while the state presented testimony to ensure the accuracy of t he recording of that nonparty’s voice, the trial court failed to articulate any conside ration of Moss’s objections to the trustworthiness of that non-party’s statements, contained w ithin the recording. {¶ 26} In State v. Eicholtz , the Second District Court of Appeals compared the requirements for authentication of a recording versus trustwort hiness 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 reco rds” argument unpersuasive, for purposes of admissibility of recorded, non-party statements , noting: “The theory underlying the business records exception to hearsa y set forth in Evid.R. 803(6) is that records kept in the regular cou rse 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 ac curately recorded [a declarant's] statements. * * * The 911 tape recordi ng system can reasonably be expected to generate an accurate record of wh at 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 c learly demonstrated the jail’s taping system accurately recorded Belcher’s statements t o others, accusing Moss of being the drug dealer, the integrity of that system in no way e nsured that Belcher’s

statements were truthful or reliable. This is the exact reliab ility argument asserted by Moss on appeal, which the state wholly fails to address, charac terizing Moss’s authority as pertaining strictly to hearsay issues in civil suits, and no t 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 reli ability issue before us. We have previously considered this issue, however, concerning reli ability 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 t o 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 prohibiti ng 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 impac t of the statement negligible, and deemed the error harmless. Reynolds at ¶ 55-57. {¶ 30} The First District Court of Appeals performed a similar “hearsa y 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 introduc ed text messages retrieved from a cell phone taken from the defendant. The cour t determined the record of the cell phone account fell within the business record exceptio n to hearsay, under Evid.R. 803(6). Hinkston at ¶ 17. The court further found that the content of the messa ges 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, th e state did not present any basis for admitting the hearsay within hearsay befo re the trial court, relying on the business records exception and distinguishable, inapplic able 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 r ecord is clear “that in the18. trial court the state argued that the jail phone calls would me et the 804(B)(3) unavailable witness hearsay exception.” We note, however, that the state c ites 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.”) (Citation s omitted.) {¶ 32} Upon review of the record, we find the trial court erred in adm itting Belcher’s statements, as hearsay within hearsay, with nothing t o 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 determ ine 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 t here is no reasonable possibility that the evidence may have contributed t o the accused’s conviction,” and “in such cases there must be overwhelming evid ence of the accused’s guilt or some other indicia that the error did not contribute t o 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 possibil ity 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 a s persuasive, substantive evidence in proving Moss was the drug dealer. In a ddition to playing the statements for the jury during trial, the prosecutor featured B elcher’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 obje ction of Moss’s trial counsel, interjecting comment and highlighting how important Be lcher’s statements were

to the case. Mr. McDonald: Okay. Now when we listen to this call – and I’l l play it a couple times for you because it’s important. Let’s s et 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. Be lcher. He is telling them what happened the day that it happened. This reco rding 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 made20. the day he gets arrested to his friends and family explaining w hat 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 say s 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 br inging me, you know he know what it was. Well, okay. Here he came bringi ng 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 the re. (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 th e 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 c an’t cut that up. And Leake goes back to the car and we know this happens be cause 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 thes e 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 e xplains the whole scenario, exactly corroborating what the detective testif ied 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 wor k with this. Go send Ron because we’ve got to talk about this and so Ron goe s to the car and that’s what happens. And that’s the way he explained i t, 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 an d 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 demo nstrating Moss was “the dope dealer.” The prosecution played the recordi ng during trial and again during closing arguments. The prosecutor provided running comm entary during his closing argument, interpreting and explaining Belcher’s words w hen 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 possibilit y 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 er ror well-taken. {¶ 36} In his second assignment of error, Moss argues the state introd uced improper testimony by permitting Detective DeWitt to opine on m atters he did not observe. While we review a trial court’s decision regarding ad mission of evidence for an23. abuse of discretion, Moss did not raise any objection to this t estimony 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 t he 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 re versible 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 e ffect 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 reve rsal based on trial error results in a new trial, we address all evidentiary issues raise d. {¶ 38} Moss objects to Detective DeWitt’s opinion testimony concerning events he did not personally witness, explaining events depicted on th e dashcam video and stating his belief that Moss brokered a drug deal without any t estimony that he observed an exchange of drugs and money. A police officer may offer opi nion, 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 ques tion, based on his participation in the surveillance and apprehension of Be lcher, Leake and Moss. His testimony, moreover, was limited to matters within his expe rience and observations, as established through his testimony, detailing his training, e ducation, 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 u se); State v. Blair , 2016- Ohio-2872, 63 N.E.3d 798 (4th Dist.) (police could refute defen se 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 detecti ve properly opined that the wounds appeared to be gunshot wounds). Accordingly, w e 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 err or is moot. The sufficiency argument, however, is not moot, as reversal based o n improper evidence requires a retrial, while reversal based on insufficient eviden ce 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 gr anted based on error in admission of evidence, sufficiency analysis must still be ad dressed). {¶ 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 evidentiar y 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 stat e to “assume every ruling by the trial court on the evidence to be e rroneous and marshall and offer every bit of relevant and competent evidence[,]” a standa rd 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 t he evidence, the test is not whether the evidence is worthy of belief, but whether, if a jur y finds the evidence credible, that evidence would support a conviction as to each e lement of the offense charged. (Citations omitted.) State v. Shelby , 135 N.E.3d 508, 2019, Ohio-1564, ¶ 1826. (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 evidenc e must demonstrate that Moss knowingly prepared for shipment, shipped, transported, delivered, prepared for distribution, or distributed “a controlled substan ce or a controlled substance analog,” with knowledge or a reasonable belief that “the contro lled substance or a controlled substance analog is intended for sale or resale by t he 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 b e “inferred from a totality of the evidence where sufficient evidence, in addition to proxi mity,” 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 m ajor 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 c hallenge the amount of cocaine, instead arguing there was no direct evidence demonstrating he physically possessed or sold the drugs and there was no testimo ny that officers observed Leake place the $4,000 in the pickup truck’s center console. E ven if no witness observed a physical exchange of drugs and money, however, “circumstantia l 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 tes timony 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 Belche r’s vehicle, sit in the passenger seat, and then return to the pick up, followed by Moss walking from his pickup to Belcher’s vehicle and sit in the pas senger seat. Shortly thereafter, officers observed Belcher throw a bag of drugs unde r the vehicle, apparently to avoid detection. While Moss argues that Leake did not acces s 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 watc hing Belcher, and Leake28. stayed “at the side of the pickup.” Finally, Detective DeWitt indicated the console containing $4,000 was unlocked, and while defense counsel attem pted 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 it s burden of production and presented sufficient evidence as to each element of the charged offenses. Therefore, while we reverse based on prejudicial error in permi tting 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 revers e the judgment of the Lucas County Common Pleas Court, General Divisi on, 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 pur suant 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 Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.