[Cite as State v. Fester , 2021-Ohio-410.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, Appellee,

- vs -

CYNTHIA ANN FESTER, Appellant. :

:

:

:

:

: CASE NO. CA2019-05-043

O P I N I O N

2/16/2021

CRIMINAL APPEAL FROM CLERMONT C OUNTY COURT OF COMMON PLEAS Case No. 2018 CR 000789

D. Vincent Faris, Clermont County Prosecuting Attorney, Nichola s Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee William J. Rap Law Offices, Joshua R. Crousey, One East Main St reet, Amelia, Ohio 45102, for appellant

HENDRICKSON, P.J. {¶1} Appellant, Cynthia Ann Fester, appeals from her convictions in the Clermont County Court of Common Pleas for trafficking in marijuana and p ossession of marijuana. For the reasons set forth below, we affirm her convictions. {¶2} In September 2017, the Clermont County Narcotics Unit ("CCNU") began surveilling appellant's home on Harrison Woods Court in Clermon t County, Ohio followingClermont CA2019-05-043

- 2 - a tip of drug activity. The surv eillance revealed numerous veh icles coming and going from the home and people entering the residence with empty bags and suitcases, only to exit the home a short time later with full bags and suitcases. From Sep tember 2017 through the end of January 2018, law enforcement observed more than 50 peop le visiting appellant's home. Among those observed multiple times at appellant's home were Ken Ung Ly ("Ken Ly"), Linda Malin, Kendra Hollis, Joshua Plummer, and appellant 's two sons, Bryan Fester and Zach Fester. To law enforcement, the activity at appellant 's house was indicative of a large drug operation. {¶3} Law enforcement began surveilling other residences and business es where appellant, Bryan, Ken Ly, and Plummer were often observed. Law enforcement also began to monitor the many vehicles that were owned and registered to appellant but were often driven by others. A GPS tracker was placed on a 2012 Cadillac Escalade that was in appellant's name but was primarily driven by Bryan. Appellant also had a 2010 Lexus IS250 and a 2005 Nissan Altima that were in her name. Though multipl e people were observed driving the Altima, the Lexus was driven almost exclusively by appellant. Appellant had given Bryan access to her vehicle, however, as he was seen movi ng the vehicle in and out of the garage at appellant's residence. {¶4} From their investigation, law enforcement was able to determine that Bryan was bringing in large amounts of marijuana through Ken Ly and h is brother, Nhat Ly. Ken Ly resided in California and would visit appellant's home every two or three weeks, often staying at appellant's home or Bryan's home when he came to Ohi o. Bryan was also known to have made multiple trips to California. {¶5} From November 2, 2017 through December 12, 2017, appellant was in Guam visiting her third son. During this time, Bryan, Ken Ly, and o ther associates were seen coming and going from appellant's home with bags and suitcases.Clermont CA2019-05-043

- 3 - {¶6} In January 2018, Bryan went to California with his girlfriend, his children, appellant, and Zach. Though everyone flew to California, appel lant and Zach drove a rental car back to appellant's Clermont County home. Bryan asked appe llant and Zach to drive two suitcases back to Ohio, claiming he did not want to pay an $85 bag fee to have them flown to Ohio. One of the suitcases appellant drove back to Cl ermont County was a pink suitcase. This same suitcase was often seen going in and out o f appellant's residence and Bryan later admitted to law enforcement that he used the suitca se to transport and hold marijuana. {¶7} On January 21, 2018, appellant was observed at Malin's apartmen t building

in the vehicle she rented to drive back to Ohio from California . Bryan was also observed at this address, although he had arrived in a separate vehicle. T wo suitcases, one of which was a pink suitcase, were removed from the rental vehicle and r olled over to Bryan's vehicle. Shortly thereafter, Bryan returned the suitcases to the rental vehicle and both the rental vehicle and Bryan's vehicle were driven to appellant's home. T he suitcases were removed from the rental vehicle and taken into appellant's home. {¶8} Officers conducted a trash pull at appellant's home on January 21, 2018 and found an empty vial with "THC 75.2 percent pure" written on it. Officers also found mail addressed to appellant and to Bryan. From January 22, 2018 thr ough January 29, 2018,

law enforcement continued to observe "a lot of traffic in and o ut" of appellant's residence, with individuals carrying suitcases, duffle bags, and backpacks into and out of the home. {¶9} On January 29, 2018, law enforcement followed a white minivan c ontaining Ken Ly and two other unidentified individuals to the Pacific Ki tchen, a restaurant in Montgomery, Ohio that Ken Ly's brother owned. The minivan was parked next to an Acura. Four large, white boxes were loaded into the minivan. Two suit cases were taken from the minivan and placed in the Acura. The two unidentified individu als entered the Acura andClermont CA2019-05-043

- 4 - drove away. Ken Ly drove the minivan to appellant's residence, where the four large boxes were unloaded into appellant's home. {¶10} On January 31, 2018, law enforcement executed multiple search w arrants in Clermont County, Butler County, Hamilton County, and in Norther n Kentucky at residences and businesses believed to be involved in the drug operation th at was run, in part, out of appellant's home. Malin's apartment was searched and 120 pound s of marijuana and $70,000 was recovered. {¶11} Appellant's home was also searched pursuant to a warrant on Jan uary 31, 2018. Officers who searched appellant's home testified that as soon as appellant's front door was opened, they immediately smelled a strong odor of mari juana. Upon entering appellant's home, officers discovered an office immediately to the left. 1 The door to the office was unlocked. Inside the office, law enforcement locate d evidence related to drug trafficking. Officers found the boxes that had been unloaded f rom Ken Ly's white minivan after they had been picked up at Pacific Kitchen on January 29, 2018. Two of the boxes were unopened and each contained 30 vacuum sealed bags of marij uana. A third box was already opened and had 34 vacuum sealed bags of marijuana. The fourth box was empty. The marijuana found in the boxes weighed more than 125 pounds, or more than 40,000

grams. 2 Also found in the office was the pink suitcase appellant had transported to Ohio from California. Inside the pink suitcase were sealed bags of marijuana. A tote bag found

1. Testimony from trial indicated that appellant's home contai ned three bedrooms: a master bedroom, a second bedroom located directly across from the master bedroom, and a third bedroom near the front door. The third bedroom was set up as an office. For purposes of cla rity, the third bedroom will be referred to as "the office" and the second bedroom across from the master bedr oom will be referred to as the "spare bedroom." 2. The marijuana contained in the boxes found in the office of appellant's home was sent to the Hamilton County Crime Lab. Testing revealed that the marijuana found in the three boxes weighed, respectively, 17,334.6 grams, 15,035.1 grams, and 17,004.6 grams, for an aggr egate weight of 49,374.3 grams.Clermont CA2019-05-043

- 5 - in the office contained marijuana and dryer sheets and a file c abinet drawer held two bags of marijuana. In addition, vacuu m seal bags , an envelope addre ssed to appellant, a currency counter, a digital scale, a Dickey's BBQ cup containin g marijuana, a drug ledger, and additional dryer sheets were also found in the office. 3 {¶12} In the hallway outside the office, officers found another drug ledger. In the kitchen and dining room of appellant's home, officers found mar ijuana in a cabinet, two vacuum sealers, a currency counter in the pantry, and a surveil lance camera. In a spare bedroom located across from the master bedroom, the officers fo und a drug ledger, mail from Pacific Kitchen, a black bag containing $94,780 in currenc y, loose marijuana, packaging material, pre-rolled marijuana joints, luggage contai ning $49,870, and a checkbook belonging to Ken Ly. In appellant's master bedroom, officers found a surveillance camera, $20,000 in a file cabinet drawer, a drug l edger next to the bed on the floor, $1,969 in bundled currency in appellant's purse, $5,059. 25 in a safe on the floor of appellant's closet, two iPhones, an AK-47 in the closet, a box of 9mm ammunition, and a plastic container containing $125 on the closet floor. When se arching the trunk of appellant's Lexus, officers found reusable grocery bags. One o f these bags had marijuana

residue on the bottom of it. {¶13} Law enforcement also obtained search warrants for appellant's b ank accounts. Appellant had more than ten bank accounts, with vary ing amounts of money in

each account. In one bank, appellant had a safety deposit box in which she stored vi ntage coins, silverware, and a bag with $25,040 in cash with "To Josh ua Adam Plummer" written on it. In another bank, appellant had more than $44,000 in fiv e accounts. Law enforcement's review of appellant's tax records from 2013 to 20 16 indicated she earned

3. Trial testimony from law enforcement officers indicated tha t it was common for those involved in trafficking in marijuana to use dryer sheets in an effort to conceal the sm ell of the drug.Clermont CA2019-05-043

- 6 - less than $20,000 during each of those years. Appellant, who w as on disability due to a back injury, was employed as a PRN employee at a hospital, work ing a couple of times a

week. {¶14} When law enforcement entered appellant's hom e to search her res idence, the officers found Ken Ly in the spare bedroom. Ken Ly and appella nt were removed from the home and placed in police vehicles. Appellant was transported to the police station where she was interviewed by Agent Brian Taylor and Lieutenant Nic De Rose, officers on the CCNU. During the interview, appellant told Agent Taylor that s he knew something was going on and that something was not right. She stated she did not want to get anyone in trouble and that she had been yelling at Bryan for a couple of weeks to "get it out" of her home. Appellant explained that Bryan paid her cellphone bill i n exchange for the use of the

office in her home. {¶15} Agent Taylor informed appellant that a search had also been con ducted at Malin's home and marijuana had been found at that location. Ap pellant stated that that made sense, as Bryan had her drop off suitcases there twice. W hen appellant was told by Agent Taylor that she was "in neck-deep" in the drug operation, appellant stated, "I know. I told you, I'm just stupid. I s houldn't have done anything. I'm so stupid." {¶16} Following her interview, appellant was released from custody. On September 11, 2018, appellant was indicted on one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), a felony of the first degree, one count of trafficking in over 40,000 grams of marijuana in violation of R.C. 2925.03(A)(2), a felony of the second degree, one count of possession of over 40,000 grams of marijuana in vi olation of R.C. 2925.11(A), a felony of the second degree, one count of money laundering in violation of R.C. 1315.55(A)(1), a felony of the third degree, and possession of criminal tools in violation of R.C. 2923.24(A), a felony of the fifth degree. The trafficking in marijuana and possessionClermont CA2019-05-043

- 7 - of marijuana offenses were accompanied by a specification seeki ng forfeiture of appellant's residence, three motor vehicles, an AK-47 firearm, and $195,593 .99 in currency. {¶17} Appellant pled not guilty to the offenses and a four-day jury t rial commenced on April 29, 2019. The state dismissed the charges of engaging in a pattern of corrupt activity, money laundering, and possession of criminal tools. The state also dismissed appellant's residence from the forfeiture specification accompa nying the trafficking in marijuana and possession of marijuana charges. Thereafter, the state presented testimony

from law enforcement officers involved in the narcotics investi gation and search of appellant's home, including testimony from Agent Taylor and Lt. DeRose. Appellant's recorded police interview and evidence obtained during the surv eillance and search of appellant's home were admitted into evidence. {¶18} Appellant, Bryan, and Malin testified in appellant's defense. Bryan admitted he had been incarcerated for running a drug organization. Brya n, a professional gambler, stated he became involved in the drug organization after meetin g Nhat Ly at a casino in Cincinnati. Once Bryan's drug operation became too large for N hat Ly, Nhat Ly involved his brother, Ken Ly. Bryan explained that he picked up marijua na at various restaurants in southwest Ohio and he would store the drugs at various places, including at Malin's and appellant's homes. The drugs were stored in boxes, suitcases, and bags – often with dryer sheets in an attempt to conceal the smell of the marijuana. Br yan explained that the pink suitcase found during the search of appellant's home was a suit case that he used to hold bags of marijuana that were short product. {¶19} Bryan testified that he largely worked out of the office in app ellant's home, which he claimed to keep locked. However, Bryan claimed that w hen appellant went to Guam, he spread his drug operation outside the home-office. Fo r instance, Bryan testified that he used the master bedroom to count more than $400,000 in cash and to balance hisClermont CA2019-05-043

- 8 - drug ledgers and accounts. When he realized he had a $20,000 c ash surplus, Bryan claimed he bundled the money up, stuck it in a cabinet drawer, and forgot about it until law enforcement found it in appellant's bedroom during execution of the warrant. {¶20} Although Bryan denied that appellant was involved in his drug o peration or even knew the operation was being run out of her home, he later contradicted himself by testifying that appellant had walked in on him once and told hi m to get his "stuff" out. Bryan claimed that the drugs in appellant's home did not smell, as th ey were packaged in vacuumsealed bags. However, he also testified that appellant questio ned him about why her home smelled like marijuana and he told her it was because he smoked a joint in the house. Bryan

also contradicted himself when he first testified that he never weighed marijuana at appellant's house, but then stated that the Dickey's BBQ cup fo und at appellant's house was used to weigh marijuana. Bryan also claimed that appellant was never present when he sold marijuana to others, but surveillance video from Januar y 21, 2018 shows appellant arriving home around the same time as Kendal Hollis, a known as sociate in Bryan's drug organization. Appellant walked into her home at the same time as Hollis, who was carrying an empty bag. A short time later, Hollis left the home with a full bag. {¶21} Appellant took the stand and testified that she was unaware of and had not participated in Bryan's drug operation. Appellant claimed she did not know marijuana was being stored in her home or the drugs were being trafficked out of her home. Appellant offered explanations for the evidence recovered in her home and for the large sums of money found in her bank accounts. She claimed that money found in her various bank accounts was from a trust that she managed and from a $60,608 s ettlement she received in October 2017 after suffering injuries to her back. The $25, 040 found in a safety deposit box inside a bag with Plummer's name on it was allegedly cash a ppellant had withdrawn for the purpose of buying a new car. As for the evidence colle cted in her home, she statedClermont CA2019-05-043

- 9 - that she has a vacuum sealer and vacuum sealer bags that she us es to keep her food fresh. She testified the iPhones recovered in her bedroom were for per sonal use – one phone was broken and the other phone was to replace the broken phone. As for the AK-47 found in her bedroom closet, appellant testified she bought the weapon f or personal protection after an ex-boyfriend started stalking her. {¶22} After considering the evidence presented at trial, the jury fou nd appellant guilty of trafficking and possessing marijuana that equaled or exceeded 40,000 grams. With respect to the forfeiture specification, the jury found that on ly $121,936 in currency and a 2012 Cadillac Escalade were subject to forfeiture. 4 The matter proceeded to sentencing, where the court determined that the trafficking and possession offenses were allied offenses subject to merger. The state elected to proceed on th e trafficking in marijuana offense, and the trial court imposed an eight-year mandatory pr ison sentence and a $7,500 mandatory fine on appellant. {¶23} Appellant appealed, raising four assignments of error for revie w. For ease of discussion, appellant's third and fourth assignments of error w ill be addressed together. {¶24} Assignment of Error No. 1: {¶25} THE TRIAL COURT ERRED BY NOT ORDERING A SPECIAL

PROSECUTOR WHERE A COUNTY ASSISTANT PROSECUTOR SPENT A NIGHT

DRINKING AND THEN SLEEPING IN BED WITH APPELLANT. {¶26} In her first assignment of error, appellant contends the trial court erred by not granting her motion to disqualify the Clermont County Prosecuto r's Office after it came to light that appellant and a former assistant prosecutor spent an evening drinking and socializing with one another. Appellant maintains that a confl ict of interest should have

4. Prior to submitting the case to the jury, the trial court g ranted appellant's Crim.R. 29 motion as it related to the forfeiture specifications for appellant's Lexus IS250, Niss an Altima, and the AK-47.Clermont CA2019-05-043

- 10 - precluded the Clermont County Prosecutor's Office from prosecut ing the case and that the court's failure to disqualify the prosecutor's office violated her right to a fair trial and due process of law. {¶27} The record indicates that on July 6, 2018, more than two months before appellant was indicted, appellant had a chance meeting at a loc al bar with "RH," an assistant prosecuting attorney with the Clermont County Prosecu tor's Office. Appellant and RH were both drinking. Appellant initiated contact with RH aft er learning from a friend that RH was an attorney. W hen appellant men tioned to RH that her ho me had been "raided," RH interjected to ask where her home was located. After being advised appellant's home was in Clermont County, RH informed appellant he was an assista nt prosecutor with Clermont County and he could not discuss the matter with her. At this point in time, RH had no knowledge of appellant or of law enforcement's investiga tion into her activities. {¶28} Appellant contends that despite RH stating he could not discuss the matter with her, RH kept bringing the topic up during the evening, ask ing her if she had a lawyer, and if she wanted him to call her attorney. RH denied that he had any further contact with appellant regarding law enforcement's investigation of her acti vities. RH did not contact appellant's attorney; however, RH admitted to texting Lt. DeRos e around midnight to confirm appellant was the target of an investigation. Lt. DeRo se confirmed the investigation the next morning, around 7:00 a.m. RH did not inform appellant he sent Lt. DeRose a text; nor did he inform appellant of the response he received. {¶29} On the evening of July 6, 2018, appellant and RH left the bar a nd went to a mutual friend's home, where they continued drinking. Appellant , RH, and their mutual friends spent time in a hot tub together. After getting out of the hot tub, the homeowner offered to let everyone stay overnight so that they would not b e driving after drinking. RH and appellant slept in the same bed, although they did not enga ge in any sexual activity.Clermont CA2019-05-043

- 11 - Though appellant claimed she only stayed out of fear after RH g rabbed her by the arm and told her she was not going anywhere, text messages appellant se nt to RH the following day undercut this claim. In the text messages, appellant unsuccess fully sought to make future plans with RH. RH did not, however, have any future contact wi th appellant. {¶30} Approximately a month later, at the beginning of August 2018, a fellow prosecutor mentioned appellant by name during a discussion at t he prosecutor's office. RH told the other prosecutor not to further discuss the case and d isclosed his July 6, 2018 contact with appellant. RH did not have any further discussion or conversation with that prosecutor or any other assistant prosecutors about appellant. On August 7, 2018, RH resigned from the Clermont County Prosecutor's Office. More th an a month later, on September 11, 2018, appellant was indicted for her involvement in the drug operation. {¶31} Following her indictment, appellant filed a "Motion Requesting Withdrawal/Disqualification of Clermont County Prosecutor's Off ice" and supported her memorandum with an affidavit. The prosecutor's office opposed the motion and submitted an affidavit from RH. The trial court held a hearing on the mo tion on March 7, 2019, with appellant and RH both testifying. During the hearing, no evide nce was presented that RH had obtained any incriminating statements or evidence from appe llant or that RH had any involvement in the investigation, charging decisions, indictmen t or prosecution of appellant. At the close of the hearing, defense counsel conceded that he c ould not identify any way in which the encounter between appellant and RH had violated appel lant's due process rights or prejudiced her. {¶32} On March 12, 2019, the trial court issued a decision denying ap pellant's motion to disqualify the Clermont County Prosecutor's Office. The court found that no attorney-client relationship existed between appellant and RH a nd that the mere appearance of impropriety was not sufficient to warrant disqual ification of the entireClermont CA2019-05-043

- 12 - prosecutor's office. Specifically, the court stated: [RH's] testimony that he had no involvement or input into the investigation, indictment, or prosecution of [appellant] is unrefuted. Given his resignation from the prosecutor's office in August of 2018, [RH] will play no role at trial. Frankly, [RH] obtained no information from [appellant] that wasn't already known by law enforcement after they executed the search warrant on her residence in January of 2018. Given [appellant's] inability to demonstrate any prejudice, disqualification of the entire Clermont County Prosecutor's Office is not warranted in this case. {¶33} We review a trial court's decision on a motion to disqualify un der an abuseof-discretion standard of review. State v. Goff, 4th Dist. Lawrence No. 11CA20, 2013-Ohio42, ¶ 59. An abuse of discretion connotes more than an error i n law or judgment; it implies that the court's decision was arbitrary, unreasonable, or uncon scionable. State v. Gearhart , 12th Dist. Warren No. CA2017-12-168, 2018-Ohio-4180, ¶ 13. {¶34} "A decree disqualifying a prosecutor's office should only be is sued by a court when actual prejudice is demonstrated." State v. Hennessey , 12th Dist. Clermont No. CA2020-01-002, 2020-Ohio-5232, ¶ 23. "In making the determinat ion, relevant factors may include, 1) the type of relationship the disqualified prosecuto r previously had with a defendant, 2) the screening mechanism, if any, employed by the office, 3) the size of the prosecutor's office, and 4) the involvement the disqualified pr osecutor had in the case." Id. , citing State v. Morris , 5th Dist. Stark No. 2004CA00232, 2005-Ohio-4967, ¶ 15. "Prej udice will not be presumed by an appellate court where none is demons trated." Id. , citing State

v. Freeman , 20 Ohio St.3d 55 (1985). Furthermore, "[t]he mere appearance of impropriety is insufficient to warrant the disqualification of an entire pr osecutor's office." State v. White , 8th Dist. Cuyahoga No. 82066, 2004-Ohio-5200, ¶ 25. {¶35} Appellant contends consideration of the above-mentioned factors supports her motion to disqualify the Clermont County Prosecutor's Offic e. With respect to the firstClermont CA2019-05-043

- 13 - factor, appellant asserts that she and RH established an attorn ey-client relationship which required the entire prosecutor's office to be disqualified purs uant to Professional Conduct Rule 1.10. This rule provides as follows: While lawyers are associated in a firm , none of them shall represent a client when the lawyer knows or reasonably should know that any one of them practicing alone would be prohibited from doing so by Rule 1.7 or 1.9, unless the prohibition is bas ed on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the represent ation of the client by the remaining lawyers in the firm

. (Emphasis sic.) Prof.Cond.R. 1.10(a). {¶36} However, as Comment 7 to this rule explains, "[u]nder Rule 1.11 (d), where a lawyer represents the government after having served clients in private practice * * * formerclient conflicts are not imputed to government lawyers associat ed with the individually disqualified lawyer." Prof.Cond.R. 1.10, Comment 7. Moreover, "[b]ecause of the special problems raised by imputation within a government agency, [Prof .Cond.R. 1.11(d)] does not impute the conflicts of a lawyer currently serving as an of ficer or employee of the government to other associated government officers or employees , although ordinarily it will be prudent to screen such lawyers. Prof.Cond.R. 1.11, Com ment 2. {¶37} Neither the Rules of Professional Conduct nor consideration of the factors set

forth in Hennessey required disqualification of the Clermont County Prosecutor's Office. RH did not have an attorney-client relationship with appellant. He provided no legal service or advice to her. As soon as appellant stated her "raided" hom e was in Clermont County, RH informed appellant he could not discuss her legal situation due to his employment as an assistant prosecutor. {¶38} RH's "relationship" with appellant consisted of a single night of socializing and did not involve intimacy. RH was not involved in any aspect of the investigation or prosecution of appellant's case. Rather, RH distanced himself from the case. RH informedClermont CA2019-05-043

- 14 - his superiors of his encounter with appellant and then resigned from the prosecutor's office without ever discussing the specifics of appellant's case. Fin ally, defense counsel conceded appellant was unable to demonstrate any prejudice that resulted from appellant's

encounter with RH. {¶39} Accordingly, based upon the facts and record before us, we conc lude that the trial court did not abuse its discretion in denying appellant's motion to disqualify the Clermont County Prosecutor's Office. Appellant's first assignm ent of error is overruled. {¶40} Assignment of Error No. 2: {¶41} THE TRIAL COURT ERRED BY PROHI BITING THE JURY FROM VIEWING

THE ENTIRE UNINTERRUPTED IN TERROGATION OF APPELLANT. {¶42} In her second assignment of error, appellant argues the trial c ourt abused its discretion in denying her request to play for the jury and to a dmit into evidence the full recording of her interview with law enforcement. Appellant con tends by redacting certain portions of the interview, she was denied the right to cross-ex amine Agent Taylor about his claim that he established a good rapport with her during the in terview. She also claims that by redacting a two-hour portion of the video where she sat by h erself in the interview room while awaiting law enforcement, the jury was deprived of the op portunity to "determine whether her subsequent statements were [made] out of duress, ex haustion, stress, or a

combination of those factors." {¶43} "A trial court's decision to admit or exclude evidence will not be reversed by a reviewing court absent an abuse of discretion." State v. McLaughlin , 12th Dist. Clinton No. CA2019-02-002, 2020-Ohio-969, ¶ 42. {¶44} The record reveals that over defense counsel's objection, the t rial court permitted the redaction of statements one of the officers made to appellant about the felonylevel of the offenses and the amount of prison-time she faced a s a result of her involvementClermont CA2019-05-043

- 15 - in the marijuana operation. In permitting this redaction, the court indicated that if on crossexamination defense counsel challenged Agent Taylor on how he b uilt rapport with appellant, the evidence could become relevant and the court wou ld address the admissibility of the statements at that time. However, the rec ord reveals that appellant failed to question Agent Taylor or Lt. DeRose about their inter view methods. The redacted statements, therefore, never became relevant. {¶45} Furthermore, admission of such statements would have been preju dicial and improper. "A jury should not normally be told the potential se ntences a criminal defendant faces for the charged offenses." State v. Bajaj , 7th Dist. Columbiana No. 03 CO 16, 2005- Ohio-2931, ¶ 163, citing State v. Hudson , 5th Dist. Delaware No. 02 CAA 12065, 2003- Ohio-7049, ¶ 87-89. After all, "the subject of disposition is a matter for the court and not the jury." State v. Rogers , 17 Ohio St.3d 174, 182 (1985). As appellant failed to crossexamine either Agent Taylor or Lt. DeRose on their interview me thods and the redacted statements addressed sentencing issues that fall outside the pr ovince of the jury, we find that the trial court did not abuse its discretion in excluding those statements from evidence. {¶46} We further find that the trial court did not abuse its discreti on in ruling inadmissible that the portion of the recording which showed app ellant waiting in the interview room by herself for two hours prior to law enforcemen t questioning her about her involvement in the marijuana operation. The video depicting ap pellant sitting alone in a room for two hours was duplicative of testimony defense counsel obtained on crossexamination, wherein Agent Taylor admitted appellant sat in a r oom at the police department by herself "probably [for] a couple of hours" before the interview began. Since defense counsel was given the opportunity to cross-examine Agen t Taylor and Lt. DeRose about the two-hour wait, the court did not abuse its discretion in excluding that portion of the recording.Clermont CA2019-05-043

- 16 - {¶47} Furthermore, though appellant now claims that the two-hour dela y in questioning was relevant to show that her statements to law enf orcement were made under duress or as a result of exhaustion, she did not advance this d efense at trial. When questioned about the statements she made to Agent Taylor and Lt . DeRose during her police interview, appellant did not testify the statements were inaccurate or brought on by exhaustion or duress. Given these circumstances, the trial co urt did not err in finding that the recording of the two-hour wait was not relevant, and it was properly excluded at trial. {¶48} Appellant's second assignment of error is overruled. {¶49} Assignment of Error No. 3: {¶50} THE JURY ERRED BY FINDING APPELLANT GUILTY WHEN THE

EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION. {¶51} Assignment of Error No. 4: {¶52} THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. {¶53} In her third and fourth assignments of error, appellant contend s that her convictions for trafficking in marijuana and possession of mari juana are not supported by sufficient evidence and are against the manifest weight of the evidence. Specifically, appellant maintains that there was no evidence that she was kno wingly "involved with or complicit in trafficking in marijuana" as the state failed to p resent evidence that she engaged in hand-to-hand transactions or transported or touched the cont raband. She further argues there was no evidence that she knowingly possessed or exercised physical control over the

contraband found in her home. {¶54} Whether the evidence presented at trial is legally sufficient t o sustain a verdict is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386 (1997); State v. Grinstead , 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When r eviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidenceClermont CA2019-05-043

- 17 - in order to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Paul , 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecuti on, any rational trier of fact could have found the essential elements of the crime proven bey ond a reasonable doubt."

State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. {¶55} On the other hand, a manifest weight of the evidence challenge examines the "inclination of the greater amount of credible evidence, offere d at a trial, to support one side

of the issue rather than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. To determine whether a conviction is aga inst the manifest weight of the evidence, the reviewing court must look at the entire re cord, weigh the evidence and all reasonable inferences, consider the credibility of the witn esses, and determine whether in resolving the conflicts in the evidence, the trier of fact c learly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. State v. Graham , 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. In reviewing the evidence, an appellate court must be mindful t hat the jury, as the original trier of fact, was in the best position to judge the credibilit y of witnesses and determine the weight to be given to the evidence. State v. Blankenburg , 197 Ohio App.3d 201, 2012- Ohio-1289, ¶ 114 (12th Dist.). An appellate court will overtur n a conviction due to the manifest weight of the evidence "only in the exceptional case i n which the evidence weighs heavily against the conviction." Id. , citing State v. Thompkins , 78 Ohio St.3d 380, 387 (1997). Further, although the legal concepts of sufficiency of the evidence and weight of the evidence are quantitatively and qualitatively different, "[ a] determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency." State v. Jones , 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150,Clermont CA2019-05-043

- 18 - ¶ 19. {¶56} Appellant was convicted of complicity to trafficking in marijua na and possession of marijuana. "A charge of complicity may be stated in terms of [the complicity statute] or in terms of the principal offense." R.C. 2923.03(F ). See also State v. Herring , 94 Ohio St.3d 246, 251 (2002). {¶57} R.C. 2925.03(A)(2), the trafficking statute, provides that "[n] o person shall knowingly * * * [p]repare for shipment, ship, transport, delive r, prepare for distribution, or

distribute a controlled substance or a controlled substance ana log, when the offender

knows or has reasonable cause to believe that the controlled su bstance or controlled substance analog is intended for sale or resale by the offender or another person." If the controlled substance is marijuana and the amount of marijuana e quals or exceeds 40,000 grams, the offense is a second- degree felony. R.C. 2925.03(C)( 3)(g). {¶58} R.C. 2925.11(A), the possession statute, provides that "[n]o pe rson shall knowingly obtain, possess, or use a controlled substance or a c ontrolled substance analog." If the controlled substance is marijuana and the amount equals or exceeds 40,000 grams, the offense is a second-degree felony. R.C. 2925.11(C)(3)(g). Possession is defined as "having control over a thing or substance, but may not be infer red solely from mere access to the thing or substance through ownership or occupation of th e premises upon which the thing or substance is found." R .C. 2925.01(K). Possession may be actual or constructive.

State v. Fultz , 12th Dist. Butler No. CA2015-06-103, 2016-Ohio-1486, ¶ 12. C onstructive possession exits when one is conscious of the presence of the o bject and able to exercise dominion and control over it, even if it is not within one's im mediate physical possession.

State v. Graves , 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 22. "Constructive possession may be proven by circumstantial eviden ce alone." Fultz at ¶ 12. Absent a defendant's admission, the surrounding facts and circu mstances, including aClermont CA2019-05-043

- 19 - defendant's actions, are evidence that a trier of fact may cons ider in determining whether the defendant had constructive possession. Graves at ¶ 22. "The discovery of readily accessible drugs in close proximity to the accused constitutes circumstantial evidence that the accused was in constructive possession of the drugs." Fultz at ¶ 13. "[T]wo or more persons may have possession of an object together if they have the ability to control it,

exclusive of others." State v. Peyton , 12th Dist. Butler No. CA2015-06-112, 2017-Ohio243, ¶ 44. {¶59} Pursuant to the complicity statute, "[n]o person, acting with t he kind of culpability required for the commission of an offense shall * * * [a]id or abet another in committing the offense." R.C. 2923.03(A)(2). A person must ac t "knowingly" to traffic in marijuana or possess marijuana. R.C. 2925.03(A)(2); R.C. 2925. 11(A). "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain resul t or will probably be of a certai n nature." R.C. 2901.22(B). {¶60} To be complicit to a crime by aiding and abetting, "the evidenc e must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defe ndant shared the criminal intent of the principal." State v. Johnson , 93 Ohio St.3d 240 (2001), syllabus. "[A] person's mere association with a principal offender is not enough to sus tain a conviction based upon aiding and abetting." State v. Coldiron , 12th Dist. Clermont Nos. CA2003-09-078 and CA2003-09-079, 2004-Ohio-5651, ¶ 17. The accused "must activel y participate in some way and contribute to the unlawful act to aid or to abet." State v. Davis , 12th Dist. Madison No. CA2015-05-015, 2016-Ohio-1166, ¶ 49, citing State v. Salyer , 12th Dist. Warren No. CA2006-03-039, 2007-Ohio-1659, ¶ 27. Aiding and abetting may b e shown through either direct or circumstantial evidence, and "'participation in crimi nal intent may be inferred from the presence, companionship, and conduct before and after the o ffense is committed.'" InClermont CA2019-05-043

- 20 - re B.T.B. , 12th Dist. Butler No. CA2014-10-199, 2015-Ohio-2729, ¶ 19, qu oting State v.

Lett , 160 Ohio App.3d 46, 2005-Ohio-1308, ¶ 29 (8th Dist.). {¶61} After reviewing the record, weighing inferences and examining t he credibility of the witnesses, we find appellant's convictions for trafficki ng in over 40,000 grams of marijuana and possession of over 40,000 grams of marijuana are supported by sufficient evidence and are not against the manifest weight of the evidenc e. The state presented testimony and evidence from which the jury could have found all the essential elements of the offenses proven beyond a reasonable doubt. The state estab lished that appellant assisted and encouraged the trafficking in and possession of ma rijuana as part of her son's drug enterprise. Appellant knowingly permitted Bryan to operat e his business out of her home-office and she knowingly permitted him to keep 49,374.3 gr ams, or 125 pounds, of marijuana in her home. Appellant was aware that marijuana was in her home, as evidenced by Bryan's testimony that appellant had walked in on him with t he drugs on least one occasion and appellant's admissions to law enforcement that she knew something was going on and she had been yelling at Bryan to "get it," meaning the drugs, out of her home for weeks. Appellant also admitted to smelling the marijuana a nd to being "neck-deep" in the drug operation. {¶62} Evidence of the drug operation was pervasive throughout appella nt's home. In addition to the odor and presence of marijuana, there were d igital scales, packaging materials, large amounts of cash, currency counters, and drug l edgers in multiple rooms throughout the house. There was also a steady parade of people entering and leaving appellant's residence, some of whom were known to have visited while appellant was at the residence. These individuals went into the home with empty bag s and backpacks and left with full bags. The marijuana in appellant's home was readily accessible to appellant and subject to her control, as evidenced by the fact that the offic e was not locked when lawClermont CA2019-05-043

- 21 - enforcement arrived to conduct the search, loose marijuana was found in the spare bedroom, and a bag of marijuana was found in appellant's kitche n. {¶63} The state also presented evidence that appellant assisted in tr ansporting marijuana from California to Ohio. After flying to California with Bryan and his family, appellant rented a car so that she could drive two suitcases ba ck to Ohio. Although appellant and Bryan claimed that the suitcases held baby clothe s and that appellant drove the suitcases to Ohio in order to save Bryan an $85 luggage fee , the jury was entitled to reject this claim. The jury could find that this explanation d id not make sense in light of the expenses associated with renting a vehicle and driving it acros s the country. Furthermore, Bryan had admitted to making $50,000 a week from his traffickin g operation, and he stated he made so much money that he "forgot" about $20,000 that he le ft in his mother's bedroom.

That he would ask his mother to rent a vehicle to drive to Ohio to save $85 is, therefore, incredulous. Especially in light of Bryan's testimony that he often used one of the suitcases – the pink suitcase – to store marijuana. {¶64} Based on the forgoing evidence, the trier of fact was entitled to find appellant guilty of complicity to trafficking in marijuana and possession of marijuana. Though appellant and Bryan attempted to shift appellant's involvement in the offenses away from her and solely onto Bryan's shoulders, there was ample evidence presented that appellant was an active participant in her son's trafficking business and that she knowingly possessed the marijuana found in her home. In finding appellant guilty, the jury was free to disregard appellant's and Bryan's testimony that appellant was not involv ed in the offenses. See State

v. Woodward , 12th Dist. Warren No. CA2016-09-084, 2017-Ohio-6941, ¶ 24 (noting that "[t]the jury, as the trier of fact was free to believe all, par t, or none of the testimony of each witness who appear[ed] before it"). Furthermore, appellant's c onvictions are not against the manifest weight of the evidence merely because the trier of fact believed the testimonyClermont CA2019-05-043

- 22 - of the state's witnesses. State v. Crossty , 12th Dist. Clermont Nos. CA2017-01-003 thru CA2017-01-005, 2017-Ohio-8267, ¶ 68. {¶65} Accordingly, given the overwhelming amount of evidence presente d by the state establishing that appellant participated and assisted in the trafficking and possession offenses, we find that appellant's convictions are supported by sufficient evidence and are not against the manifest weight of the evidence. The trier of fact did not lose its way or create such a manifest miscarriage of justice that appellant's convictions must be reversed. We therefore overrule appellant's third and fourth assignments of error. {¶66} Judgment affirmed.

S. POWELL and M. POWELL, JJ., concur.