[Cite as State v. Smith, 2022-Ohio-371.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : Case No. 20CA3934 

 

 v. : 

 

HENRY DEANDRE SMITH, : DECISION AND JUDGMENT ENTRY 

 

 Defendant-Appellant. : 

________________________________________________________________ 

APPEARANCES: 

James H. Banks, Dublin, Ohio, for appellant.1

Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay 

Willis, Scioto County Assistant Prosecuting Attorney, 

Portsmouth, Ohio, for appellee. 

________________________________________________________________ 

CRIMINAL APPEAL FROM COMMON PLEAS COURT 

DATE JOURNALIZED:2-2-22 

ABELE, J. 

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

Court judgment of conviction and sentence. A jury found Henry 

Deandre Smith, defendant below and appellant herein, guilty of: 

 Attorney Michael H. Mearan initially represented 

appellant. Later, Attorney Banks entered a notice of appearance 

as counsel for appellant. On July 24, 2020, Banks filed a 

motion to withdraw. The trial court granted Banks’ request to 

withdraw and appointed Attorney Gene Meadows to represent 

appellant.
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(1) trafficking in heroin in violation of R.C. 2925.03(A)(2);2

(2) possessing heroin in violation of R.C. 2925.11(A); and (3) 

possessing criminal tools in violation of R.C. 2923.24(A). 

After the trial court merged the possession offense with the 

trafficking offense, the court sentenced appellant to serve an 

eight-year prison term. The court also sentenced appellant to 

serve 180 days in jail for possessing criminal tools, but 

ordered that sentence to be served concurrently with the 

trafficking offense.

{¶2} Appellant assigns the following errors for review: 

FIRST ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ERRED IN ALLOWING THE 

IMPROPER INTRODUCTION OF EVIDENCE.” 

SECOND ASSIGNMENT OF ERROR: 

“THE DEFENDANT’S CONVICTIONS ARE AGAINST THE 

MANIFEST WEIGHT AND SUFFICIENCY OF THE 

EVIDENCE.” 

THIRD ASSIGNMENT OF ERROR: 

“DEFENDANT SMITH’S CONVICTIONS ARE 

CONTRADICTORY ACCORDING TO THE JURY VERDICTS 

SUCH TO REQUIRE REVERSAL.” 

2

 The trial court’s sentencing entry and verdict form 

contain a clerical error. Both recite the offense as R.C. 

2925.03(A)(1). The trial court, however, amended the indictment 

to charge R.C. 2925.03(A)(2).
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FOURTH ASSIGNMENT OF ERROR: 

“THE DEFENDANT WAS DENIED EFFECTIVE 

ASSISTANCE OF COUNSEL SUCH THAT HE IS 

ENTITLED TO A NEW TRIAL.” 

FIFTH ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ERRED IN SENTENCING THE 

DEFENDANT.” 

{¶3} During the late-night hours of August 10, 2018, Ohio 

State Highway Patrol Trooper Nick Lewis stopped a black sportutility vehicle for following a vehicle too closely, for making 

an unexpected lane change, and for driving 40 miles per hour in 

a 55 mile-per-hour speed zone. During the ensuing traffic stop, 

Lewis and another trooper discovered approximately 57 grams of 

heroin stuffed inside the lining of the backside of the driver’s 

seat. The troopers questioned the three occupants, Carvion 

McKee, Ernest Whitehead, and appellant, and all stated they did 

not know that the vehicle contained heroin. The troopers then 

allowed the occupants to leave and advised them that the 

prosecutor’s office likely would present the matter to a grand 

jury.

{¶4} On August 22, 2019, a Scioto County Grand Jury 

returned indictments that charged appellant, Whitehead, and 

McKee with trafficking in heroin in violation of R.C. 

2925.03(A)(1), possessing heroin in violation of R.C. 
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2925.11(A), and possessing criminal tools in violation of R.C. 

2923.24(A). Appellant and Whitehead entered not guilty pleas.3

{¶5} On April 23, 2020, appellant filed a motion to 

suppress the evidence discovered during the traffic stop and 

vehicle search. Appellant asserted that the trooper lacked a 

lawful basis to stop and search the vehicle. 

{¶6} At the July 23, 2020 hearing, appellant’s counsel, 

Attorney Banks, indicated that the parties had agreed to resolve 

the case, but that appellant recently changed his mind. 

Apparently, the state offered to reduce the first-degree felony 

offense, to recommend a two-year prison term, and agree not to 

object to judicial release. The trial court questioned 

appellant regarding his decision to reject the plea offer and 

appellant indicated that he did not believe that he could “sign 

away [his] freedom for something” he does not support. The 

court explained the maximum penalties it could impose and 

allowed appellant to again discuss the matter with counsel. 

{¶7} After appellant again discussed the plea offer, 

counsel informed the trial court that appellant wished to reject 

the state’s offer. Attorney Banks also asked the court to allow 

him to withdraw as counsel. After the court granted Banks’ 

3

 According to the state, McKee later entered a guilty plea. 
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motion to withdraw, the court appointed Attorney Gene Meadows to 

represent appellant. Subsequently, appellant withdrew his 

motion to suppress evidence. 

{¶8} The morning of trial, the state filed a motion to 

amend the indictment. The state asserted that the indictment 

incorrectly recited the trafficking offense in terms of R.C. 

2925.03(A)(1), rather than R.C. 2925.03(A)(2). The prosecutor 

explained that the amendment did not change the name of the 

offense or the penalty, and that the case “always [has] been a 

transport, deliver, shipment type of case.” 

{¶9} Whitehead’s counsel did not object to the motion to 

amend the indictment and agreed that the amendment would not 

change Whitehead’s defense strategy. The court asked Whitehead 

whether he concurred, and Whitehead responded, “[y]es.” 

{¶10} Appellant’s counsel likewise stated that “the case 

laws [sic] clear on this.” Appellant’s counsel further stated, 

“[w]e can tell by reading the discovery that it was a transport 

* * * case.” Appellant also indicated that the amendment would 

not change the defense strategy. The trial court thus granted 

the state’s motion to amend the indictment to allege a violation 

of R.C. 2925.03(A)(2). 
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{¶11} At trial, Trooper Lewis testified that around 11:30 

p.m. on August 10, 2018, he noticed a black vehicle “tailgating 

a lead vehicle.” Lewis followed the vehicle and noticed a 

change from the right lane to the left lane and speed at 40 

miles per hour in a 55-mile-per-hour zone. At this point, Lewis 

stopped the vehicle and asked the driver for identification. 

McKee sat in the driver’s seat, appellant who had rented the 

vehicle, sat in the front passenger seat, and Whitehead in the 

left middle row, directly behind McKee. Lewis learned that all 

three occupants are Michigan residents. 

{¶12} After Trooper Lewis asked McKee to exit the vehicle, 

they walked to the cruiser. Lewis stated that he asked McKee to 

exit the vehicle as part of his drug interdiction protocol and 

to check on the status of his well-being. Lewis related that, 

when a vehicle is traveling 40 miles per hour in a 55-mile-perhour zone, “there’s typically a – a problem.” Lewis indicated 

he thus instructed McKee to exit the vehicle so Lewis could “try 

to figure out what was going on with him.” Lewis explained he 

“had planned on placing [McKee] in the back of the cruiser while 

[he] checked [McKee’s] driver’s license and just talk[ed] to him 

about why he was driving erratically.” Because highway patrol 

policy is to conduct pat-down searches of individuals before 
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placing them in cruisers, Lewis asked McKee if he could conduct 

a pat-down search. Lewis indicated that McKee agreed to the 

search. 

{¶13} As Trooper Lewis started to conduct the pat-down 

search, he told McKee to keep his hands out of his pockets. 

McKee, however, disobeyed that instruction and “the first thing 

[McKee] does is takes his left hand[,] puts it in his pocket and 

pulls out something in his – his fist.” Lewis noticed that 

McKee’s fist was “balled up.” Lewis asked McKee what he had in 

his hand and, rather than answering, McKee “shove[d his hand] 

back down the front of his pants.” Lewis then “grab[bed]” McKee 

and “put him against the – the rear of the vehicle.” As Lewis 

handcuffed McKee, he noticed “a plastic baggie fall[] from his 

chest to the ground.” The plastic bag contained “a small amount 

of marijuana residue.” At this point, Lewis requested backup 

assistance. 

{¶14} After Ohio State Highway Patrol Trooper Matt Lloyd 

responded to the call for backup, he removed appellant, the 

front-seat passenger, patted him down for weapons, and placed 

him in the rear of Trooper Lewis’ cruiser with McKee. Then, the 

troopers removed Whitehead, patted him down, and placed him in 

the rear of Lloyd’s cruiser. Lewis explained that the troopers 
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removed the occupants because they knew that they would search 

the vehicle based upon the discovery of marijuana residue. 

{¶15} As Trooper Lewis began to search the vehicle, he also 

noticed what appeared to be crack cocaine in the front passenger 

seat. A field test confirmed that suspicion and indicated the 

substance to be crack cocaine. 

{¶16} Trooper Lewis also stated that Trooper Lloyd searched 

the area where Whitehead had been seated and noticed that a trim 

piece on the driver’s seat backrest appeared to have “been 

tampered with.” Lloyd pulled the trim piece “back a little 

bit,” and discovered a plastic bag in the back of the driver’s 

seat that contained 57 grams of heroin worth around $6,000. 

Lewis also testified that 57 grams of heroin is not an amount to 

suggest personal use and, instead, “would be considered a 

trafficking amount.” 

{¶17} During Trooper Lewis’ testimony, the state played a 

video of the traffic stop that included the vehicle search and 

the conversation between McKee and appellant while seated in the 

cruiser. McKee, who was extremely talkative, complained that 

the handcuffs hurt his wrists and, as Trooper Lloyd started to 

search the area where he found the heroin, McKee began to yell 

for the trooper. After the troopers discovered the heroin, 
SCIOTO, 20CA3934

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Lewis read appellant and McKee the Miranda warnings. Appellant 

asked why they were being arrested and Lewis informed appellant 

and McKee that they had discovered heroin in the vehicle. 

Appellant and McKee both responded with disbelief. Appellant 

claimed he did not know anything about the heroin, that the 

vehicle is a rental car, that he is a truck driver, and that the 

three occupants intended to visit “some females” in Kentucky. 

Lewis agreed with appellant that the vehicle is a rental car, 

but pointed out to McKee and appellant that appellant had rented 

the vehicle approximately one week earlier. McKee likewise 

denied any knowledge about the heroin and expressed surprise 

about its discovery in the car. McKee also repeated appellant’s 

statements that they intended to visit “some females” and that 

appellant is a truck driver. 

{¶18} The troopers then removed appellant from the back of 

Trooper Lewis’ cruiser and placed Whitehead in the back seat 

with McKee. McKee continued to express surprise to Whitehead 

that the troopers discovered heroin and he stated he did not 

know how heroin ended up in the vehicle. McKee told Whitehead 

that they were merely traveling to Kentucky to visit “some 

females” and did not understand how they ended up in this 

predicament. 
SCIOTO, 20CA3934

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{¶19} When the troopers spoke with Whitehead, he also 

claimed that he knew nothing about the heroin in the back of the 

driver’s seat, even though the heroin had been stuffed inside 

the seat-back directly in front of him. 

{¶20} During appellant’s cross-examination of Trooper Lewis, 

counsel asked whether Lewis had performed a “drug test” to see 

if appellant had “been using any cocaine.” Lewis stated that he 

did not. Counsel also asked Lewis about McKee’s and appellant’s 

conduct while seated in the back of the cruiser and whether 

McKee was the individual who was “fidgeting, jumping around, 

[and] yelling.” Lewis responded affirmatively. Counsel then 

questioned whether appellant was “sitting there quiet,” and 

Lewis stated: “I wouldn’t necessarily say quiet. Every time he 

spoke he covered his mouth or whispered.” The trooper 

continued: “[E]very time he speaks he takes his shirt and covers 

up his mouth or would whisper.” 

{¶21} Counsel next asked Trooper Lewis about appellant’s 

response after he learned they found heroin in the vehicle and 

whether appellant told Lewis that appellant is a truck driver. 

Lewis stated that appellant mentioned earlier that he is a truck 

driver and that “[p]retty much throughout the whole stop someone 

had mentioned that he was a truck driver.” 
SCIOTO, 20CA3934

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{¶22} On redirect, the prosecutor asked Lewis whether 

appellant “offer[ed] to take a drug test for you,” and Lewis 

responded that appellant did not. Appellant’s counsel then 

objected and the trial court overruled the objection. The 

prosecutor followed up on appellant’s counsel’s questions 

regarding appellant’s statement that he is a truck driver and, 

after the prosecutor asked Lewis whether appellant provided any 

information about his employer, appellant’s counsel again 

objected. The court overruled the objection and explained, 

“[y]ou asked the question on cross. I’m going to let [the 

prosecutor] follow up with it.” 

{¶23} Next, Trooper Lloyd testified that he observed a gap 

in the back of the driver’s seat that “easily pull[ed] back,” 

and inside he discovered a plastic bag that contained heroin. 

{¶24} The state also presented the testimony of Josie 

Keating, a rental car agency representative who rented the 

vehicle to Smith. Keating stated that the rental car would have 

undergone an inspection before appellant took possession, and if 

the vehicle had any damage, it would have been noted on the 

inspection report. Keating testified that appellant’s 

inspection report indicated “no damage documented.” Keating 

also explained that appellant rented the vehicle on July 31, 
SCIOTO, 20CA3934

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2018, was scheduled for return on August 8, but appellant did 

not return the vehicle until August 25. Also, during the time 

that appellant had the rental vehicle the mileage increased by 

4,412 miles. 

{¶25} After Keating’s testimony, the state called to the 

witness stand Scioto County Sheriff’s Captain James Carter. 

Before Carter took the stand, however, appellant’s counsel 

objected to Carter’s expected testimony. Appellant pointed out 

that the state intended to ask Carter about appellant’s recorded 

jailhouse telephone conversations. During those calls, 

appellant indicated he was not employed at the time Trooper 

Lewis stopped the vehicle, and that he had not been traveling to 

see “some females” in Kentucky. Appellant’s counsel asserted 

that appellant’s statements about not being employed and his 

destination on the night of the traffic stop involved “other 

acts and they have nothing to do with the charges that he’s 

facing here.” Counsel stated that, unless appellant chose to 

testify, the recorded phone calls should be inadmissible. The 

prosecutor argued, however, that the statements are admissible 

under Evid.R. 801(D)(2). Appellant’s counsel then countered 

that, even if the statements are relevant, the probative value 

of the statements does not outweigh their prejudicial effect. 
SCIOTO, 20CA3934

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{¶26} After consideration, the trial court overruled 

appellant’s objection. The court noted that the state presented 

evidence that appellant had stated he is a truck driver and that 

he intended to visit “some females.” The court concluded that 

the phone calls should be admissible as appellant’s own 

statements and informed the parties that it would give the jury 

a limiting instruction. 

{¶27} Captain Carter testified he oversees jail operations, 

including telephone calls, and that he obtained recordings of 

two calls appellant made while in jail. The state played 

portions of each call at trial and, during the first call, 

appellant spoke with his grandfather who stated that he had 

spoken with appellant’s lawyer and, when asked if appellant had 

a job, grandfather told the lawyer that appellant did not. 

Appellant stated in response that when he returned home he did 

plan to apply for a job “do[ing] a line haul for Chrysler.” 

{¶28} During the second call, appellant spoke with an 

individual he referred to as “cuz.” Appellant informed the 

individual that he had been arrested and was being held in 

Portsmouth. Appellant stated that when Trooper Lewis “pulled my 

man over who was driving,” appellant “was coming down to your 

crib.” After Captain Carter’s testimony, the state rested. 
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{¶29} At this juncture, appellant and Whitehead moved for 

Crim.R. 29(A) judgments of acquittal and asserted that the state 

failed to present sufficient evidence to show that they knew 

about the heroin in the vehicle or that they constructively 

possessed the heroin. The trial court overruled the motions. 

{¶30} On October 8, 2020, the jury found appellant guilty of 

trafficking and possessing heroin, both in an amount equal to or 

exceeding 50 grams. The jury also found appellant guilty of 

possessing criminal tools. 

{¶31} On October 30, 2020, after the trial court merged the 

possession and trafficking counts, the court sentenced appellant 

to serve eight years in prison for trafficking in heroin. The 

court also sentenced appellant to serve 180 days in jail for the 

possessing criminal tools, but ordered it be served concurrently 

with his prison sentence. This appeal followed. 

I 

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

that the trial court erred by admitting Trooper Lewis’ 

statements that the troopers found cocaine residue on the 

passenger seat where appellant had been sitting and that they 

had also discovered marijuana residue. Within his first 

assignment of error, appellant also argues that to allow the 
SCIOTO, 20CA3934

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state to fault appellant for the failure to produce proof he is 

employed as a truck driver and for the failure to offer to take 

a drug test violated his Fifth Amendment right against selfincrimination. Appellant further claims that to allow into 

evidence his recorded jailhouse telephone conversations violated 

his Fifth Amendment right. 

{¶33} “‘The admission or exclusion of relevant evidence 

rests within the sound discretion of the trial court.’” State 

v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 91, 

quoting State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), 

paragraph two of the syllabus. Consequently, “a reviewing court 

should not disturb evidentiary decisions in the absence of an 

abuse of discretion that created material prejudice.” State v. 

Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 

14, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 

900 N.E.2d 565, ¶ 66; accord State v. Adams, 144 Ohio St.3d 429, 

2015-Ohio-3954, 45 N.E.3d 127, ¶ 198, citing State v. Sage, 31 

Ohio St.3d 173, 182, 510 N.E.2d 343 (1987). “An abuse of 

discretion is more than a mere error of law or judgment.” State 

v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, 

¶ 91; accord State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio4903, 45 N.E.3d 208, ¶ 75. Instead, “‘[a] trial court abuses 
SCIOTO, 20CA3934

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its discretion when it makes a decision that is unreasonable, 

unconscionable, or arbitrary.’” State v. Keenan, 143 Ohio St.3d 

397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, quoting State v. 

Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 

34. An abuse of discretion includes a situation in which a 

trial court did not engage in a “‘sound reasoning process.’” 

State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 

528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community 

Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 

597 (1990). Moreover, “[a]buse-of-discretion review is 

deferential and does not permit an appellate court to simply 

substitute its judgment for that of the trial court.” Darmond

at ¶ 34. 

{¶34} As a general rule, all relevant evidence is 

admissible. Evid.R. 402. Evid.R. 401 defines relevant evidence 

as “evidence having any tendency to make the existence of any 

fact that is of consequence to the determination of the action 

more probable or less probable than it would be without the 

evidence.” Evid.R. 401 and Evid.R. 402. A trial court must, 

however, exclude relevant evidence “if its probative value is 

substantially outweighed by the danger of unfair prejudice, of 

confusion of the issues, or of misleading the jury.” Evid.R. 
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403. A trial court has broad discretion to determine whether to 

exclude evidence under Evid.R. 403(A), and “‘an appellate court 

should not interfere absent a clear abuse of that discretion.’” 

State v. Yarbrough, 95 Ohio St.3d 227, 2002–Ohio–2126, 767 

N.E.2d 216, ¶ 40. 

{¶35} Evid.R. 403(A) “manifests a definite bias in favor of 

the admission of relevant evidence, as the dangers associated 

with the potentially inflammatory nature of the evidence must 

substantially outweigh its probative value before the court 

should reject its admission.” State v. White, 4th Dist. Scioto 

No. 03CA2926, 2004–Ohio–6005, ¶ 50. Thus, “[w]hen determining 

whether the relevance of evidence is outweighed by its 

prejudicial effects, the evidence is viewed in a light most 

favorable to the proponent, maximizing its probative value and 

minimizing any prejudicial effect to the party opposing 

admission.” State v. Lakes, 2nd Dist. Montgomery No. 21490, 

2007–Ohio–325, ¶ 22. 

{¶36} We also recognize that, to some degree, all relevant 

evidence may be prejudicial in the sense that it “tends to 

disprove a party’s rendition of the facts” and, thus, 

“necessarily harms that party’s case.” State v. Crotts, 104 

Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23. Evid.R. 
SCIOTO, 20CA3934

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403(A) does not, however, “attempt to bar all prejudicial 

evidence.” Id. Instead, the rules provide that only unfairly 

prejudicial evidence is excludable. Id. “‘Evid.R. 403(A) 

speaks in terms of unfair prejudice. Logically, all evidence 

presented by a prosecutor is prejudicial, but not all evidence 

unfairly prejudices a defendant. It is only the latter that 

Evid.R. 403 prohibits.’” State v. Skatzes, 104 Ohio St.3d 195, 

2004–Ohio–6391, 819 N.E.2d 215, ¶ 107, quoting State v. Wright, 

48 Ohio St.3d 5, 8, 548 N.E.2d 923 (1990). “‘Unfair prejudice’ 

does “not mean the damage to a defendant’s case that results 

from the legitimate probative force of the evidence; rather it 

refers to evidence which tends to suggest decision on an 

improper basis.”’” State v. Lang, 129 Ohio St.3d 512, 2011–

Ohio–4215, 954 N.E.2d 596, ¶ 89, quoting United States v. Bonds, 

12 F.3d 540 (6th Cir.1993). Unfairly prejudicial evidence is 

evidence that “might result in an improper basis for a jury 

decision.” Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 

172, 743 N.E.2d 890 (2001), quoting Weissenberger’s Ohio 

Evidence (2000) 85–87, Section 403.3. It is evidence that 

arouses the jury’s emotions, that “‘evokes a sense of horror,’” 

or that “‘appeals to an instinct to punish.’” Id. “‘Usually, 

although not always, unfairly prejudicial evidence appeals to 
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the jury’s emotions rather than intellect.’” Id. Thus, 

“[u]nfavorable evidence is not equivalent to unfairly 

prejudicial evidence.” State v. Bowman, 144 Ohio App.3d 179, 

185, 759 N.E.2d 856 (12th Dist.2001). 

{¶37} In the case sub judice, we do not believe that the 

trial court abused its discretion by allowing the state to 

introduce evidence that, during the traffic stop, the troopers 

discovered marijuana and cocaine residue. First, when Trooper 

Lewis initially mentioned during his testimony that he 

discovered marijuana residue inside the plastic baggie that 

McKee dropped, appellant did not object. Appellant also did not 

object the next time Lewis mentioned the marijuana residue. 

Appellant did object when the prosecutor attempted to ask Lewis 

whether anyone later admitted that the bag contained marijuana. 

Appellant did assert that, because none of the individuals had 

been charged with a marijuana-related offense, the evidence was 

irrelevant. The trial court, however, overruled the objection. 

{¶38} Here, because appellant did not object to Trooper 

Lewis’ initial statements regarding the discovery of marijuana 

residue, appellant did not properly preserve any error 

concerning this testimony. Moreover, we do not believe that any 

error that the trial court arguably made constitutes plain 
SCIOTO, 20CA3934

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error. Thus, we disagree with appellant that the trial court 

erred by allowing this testimony. 

{¶39} Next, we do not believe the trial court’s decision to 

permit Trooper Lewis to testify that he found cocaine residue on 

the seat where appellant had been sitting constitutes an abuse 

of discretion. Even if the evidence was prejudicial, it is not 

so unfairly prejudicial that the jury decided the case on an 

improper basis. Instead, as we explain in our discussion of 

appellant’s second assignment of error, the state presented 

ample evidence to support appellant’s convictions. 

{¶40} We also do not believe that the trial court’s decision 

to allow the state to ask Trooper Lewis questions on redirect to 

counter appellant’s cross-examination constitutes an abuse of 

discretion. During cross-examination, appellant’s counsel asked 

Lewis whether appellant had stated that he is a truck driver and 

whether Lewis asked appellant to take a drug test to see if 

appellant had been using cocaine. “Once defense counsel posed 

the question[s] * * *, he opened the door to further questioning 

on that issue.” Portsmouth v. Wrage, 4th Dist. Scioto No. 

08CA3237, 2009-Ohio-3390, ¶ 34. Appellant may not, therefore, 

complain on appeal that the trial court erred by allowing the 

state to raise those issues during Lewis’ redirect examination. 
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Id., citing State v. Diar, 120 Ohio St.3d 460, 2008–Ohio–6266, 

900 N.E.2d 565, ¶ 74. 

{¶41} Additionally, appellant challenges the testimony that 

appellant “whispered when he spoke or covered his mouth.” We 

point out, however, that appellant’s counsel elicited this 

testimony during Trooper Lewis’ cross-examination. Thus, 

appellant invited any error that may have occurred. E.g., State 

v. Hare, 2018-Ohio-765, 108 N.E.3d 172, ¶ 45 (2d Dist.) 

(invited-error doctrine applies when defense counsel elicits 

allegedly improper testimony on cross-examination). The 

invited-error doctrine precludes a litigant from “‘tak[ing] 

advantage of an error which [the litigant] invited or induced.’” 

State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 

616, ¶ 279, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor 

Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502 N.E.2d 590 

(1986), paragraph one of the syllabus. Consequently, appellant 

cannot now challenge the testimony as improperly admitted. 

{¶42} Appellant further contends that the trial court erred 

by allowing the state to admit into evidence his jailhouse phone 

calls. Although appellant appears to assert that the statements 

should be deemed inadmissible because “he did not make 

statements to the troopers,” he does not specifically explain 
SCIOTO, 20CA3934

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the meaning of this assertion. Moreover, we observe that 

appellant and McKee both repeated that appellant is a truck 

driver and that they intended to visit “some females” in 

Kentucky. Thus, appellant’s statements in the jailhouse calls 

are relevant to show that appellant was less than truthful 

during the traffic stop. Also, Evid.R. 801(D)(2)(a) explicitly 

allows statements offered against a party if the statement is 

“the party’s own statement, in either an individual or a 

representative capacity.” In the case sub judice, appellant 

made these statements and Evid.R. 801(D)(2)(a) allows the state 

to introduce the statements into evidence. 

{¶43} Appellant also contends that admitting into evidence 

his jailhouse phone calls and allowing testimony regarding his 

demeanor during the traffic stop violated his Fifth Amendment 

right against self-incrimination.4 However, numerous Ohio courts 

have determined that a defendant’s demeanor, conduct, and 

statements that surround a criminal act are relevant to show a 

defendant’s consciousness of guilt. State v. Johnson, 144 Ohio 

St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 72 (a defendant’s 

statements, “like other conduct following the completion of a 

4

 The Fifth Amendment to the United States Constitution 

provides that no person “shall be compelled in any criminal case 

to be a witness against himself.”
SCIOTO, 20CA3934

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crime, may be relevant evidence of consciousness of guilt”); 

State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 

596, ¶ 126 (defendant’s “conduct and comments after the murders 

were relevant in reflecting his consciousness of guilt”); State 

v. Williams, 79 Ohio St.3d 1, 11, 679 N.E.2d 646 (1997) (“It is 

today universally conceded that the fact of an accused’s flight, 

escape from custody, resistance to arrest, concealment, 

assumption of a false name, and related conduct, are admissible 

as evidence of consciousness of guilt, and thus of guilt 

itself.”); State v. A.W.M., 10th Dist. Franklin No. 18AP-523, 

2020-Ohio-4707, ¶ 61 (“a prosecutor ‘may comment’ on matters 

such as a defendant’s demeanor”); State v. Hill, 2018-Ohio-4800, 

125 N.E.3d 158, ¶ 54 (11th Dist.), quoting State v. Thompson, 

10th Dist. Franklin No. 05AP-1268, 2006-Ohio-3440, ¶ 21 

(“exculpatory statements, ‘when shown to be false or misleading, 

are circumstantial evidence of guilty consciousness and have 

independent probative value’”); see generally Wilson v. United 

States, 162 U.S. 613, 620-621, 16 S.Ct. 895, 40 L.Ed. 1090 

(1896) (“if the jury were satisfied, from the evidence, that 

false statements in the case were made by defendant * * *, they 

had the right * * * to regard false statements in explanation or 
SCIOTO, 20CA3934

24 

defense, made or procured to be made, as in themselves tending 

to show guilt”). 

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

overrule appellant’s first assignment of error. 

II 

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

that his convictions are against the manifest weight of the 

evidence and that sufficient evidence does not support his 

convictions. Appellant contends that the state did not present 

any evidence to prove that he knowingly possessed or trafficked 

in the heroin found in the vehicle. Appellant argues that the 

evidence adduced at trial shows that he was merely present in 

the vehicle and lacked any knowledge about the heroin hidden in 

the driver’s seat. 

A 

{¶46} Initially, we observe that “sufficiency” and “manifest 

weight” present two distinct legal concepts. Eastley v. 

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 

23 (“sufficiency of the evidence is quantitatively and 

qualitatively different from the weight of the evidence”); State 

v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), 

syllabus. A claim of insufficient evidence invokes a due process 
SCIOTO, 20CA3934

25 

concern and raises the question whether the evidence is legally 

sufficient to support the verdict as a matter of law. 

Thompkins, 78 Ohio St.3d at 386. When reviewing the sufficiency 

of the evidence, our inquiry focuses primarily upon the adequacy 

of the evidence; that is, whether the evidence, if believed, 

reasonably could support a finding of guilt beyond a reasonable 

doubt. Id. at syllabus. The standard of review is whether, 

after viewing the probative evidence and inferences reasonably 

drawn therefrom in the light most favorable to the prosecution, 

any rational trier of fact could have found all the essential 

elements of the offense beyond a reasonable doubt. E.g., 

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 

L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574 

N.E.2d 492 (1991). Furthermore, a reviewing court is not to 

assess “whether the state’s evidence is to be believed, but 

whether, if believed, the evidence against a defendant would 

support a conviction.” Thompkins, 78 Ohio St.3d at 390 (Cook, 

J., concurring). 

{¶47} Thus, when reviewing a sufficiency-of-the-evidence 

claim, an appellate court must construe the evidence in a light 

most favorable to the prosecution. E.g., State v. Hill, 75 Ohio 

St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio 
SCIOTO, 20CA3934

26 

St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will 

not overturn a conviction on a sufficiency-of-the-evidence claim 

unless reasonable minds could not reach the conclusion that the 

trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 

749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 

739 N.E.2d 749 (2001). 

{¶48} “Although a court of appeals may determine that a 

judgment of a trial court is sustained by sufficient evidence, 

that court may nevertheless conclude that the judgment is 

against the weight of the evidence.” Thompkins, 78 Ohio St.3d 

at 387. “The question to be answered when a manifest-weight 

issue is raised is whether ‘there is substantial evidence upon 

which a jury could reasonably conclude that all the elements 

have been proved beyond a reasonable doubt.’” State v. Leonard, 

104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81, quoting 

State v. Getsy, 84 Ohio St.3d 180, 193–194, 702 N.E.2d 866 

(1998), citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 

(1978), syllabus. A court that is considering a manifest-weight 

challenge must “‘review the entire record, weigh the evidence 

and all reasonable inferences, and consider the credibility of 

witnesses.’” State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio493, 108 N.E.3d 1028, ¶ 208, quoting State v. McKelton, 148 Ohio 
SCIOTO, 20CA3934

27 

St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 328. The reviewing 

court must bear in mind, however, that credibility generally is 

an issue for the trier of fact to resolve. State v. Issa, 93 

Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th 

Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “‘Because the 

trier of fact sees and hears the witnesses and is particularly 

competent to decide “whether, and to what extent, to credit the 

testimony of particular witnesses,” we must afford substantial 

deference to its determinations of credibility.’” Barberton v. 

Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20, 

quoting State v. Konya, 2d Dist. Montgomery No. 21434, 2006-

Ohio-6312, ¶ 6, quoting State v. Lawson, 2d Dist. Montgomery No. 

16288 (Aug. 22, 1997). As the Eastley court explained: 

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

manifestly against the weight of the evidence, every 

reasonable intendment must be made in favor of the 

judgment and the finding of facts. * * * 

 If the evidence is susceptible of more than one 

construction, the reviewing court is bound to give it 

that interpretation which is consistent with the 

verdict and judgment, most favorable to sustaining the 

verdict and judgment.’” 

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

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

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

(1978). Thus, an appellate court will leave the issues of 
SCIOTO, 20CA3934

28 

weight and credibility of the evidence to the fact finder, as 

long as a rational basis exists in the record for its decision. 

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No. 07CA2948, 

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

trier of fact has some factual and rational basis for its 

determination of credibility and weight.”). 

{¶49} Accordingly, if the prosecution presented substantial 

credible evidence upon which the trier of fact reasonably could 

conclude, beyond a reasonable doubt, that the essential elements 

of the offense had been established, the judgment of conviction 

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

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

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

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

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

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

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

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

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

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

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); 
SCIOTO, 20CA3934

29 

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

conviction against the manifest weight of the evidence only in 

the “‘exceptional case in which the evidence weighs heavily 

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

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717; accord 

State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 

1, ¶ 166; State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 

995 (2000). 

{¶50} We also observe that, when an appellate court 

concludes that the weight of the evidence supports a defendant’s 

conviction, this conclusion necessarily includes a finding that 

sufficient evidence supports the conviction. E.g., State v. 

Waller, 4th Dist. Adams No. 17CA1044, 2018-Ohio-2014, ¶ 30. 

Thus, a determination that the weight of the evidence supports a 

conviction is also dispositive of the issue of sufficiency. Id. 

B 

{¶51} Initially, we observe that, although the trial court 

found appellant guilty of trafficking and possessing heroin, the 

trial court merged the possession offense with the trafficking 

offense. Thus, if sufficient evidence supports appellant’s 

trafficking conviction, and if the conviction is not against the 

manifest weight of the evidence, an erroneous verdict on the 
SCIOTO, 20CA3934

30 

merged count would be harmless. State v. Worley, 164 Ohio St.3d 

589, 2021-Ohio-2207, 174 N.E.3d 754, ¶ 73; State v. Powell, 49 

Ohio St.3d 255, 263, 552 N.E.2d 191 (1990); State v. Campbell, 

4th Dist. Vinton No. 20CA723, 2021-Ohio-2482, ¶ 46; see State v. 

Williams, 4th Dist. Scioto No. 11CA3408, 2012-Ohio-4693, ¶ 54 

(because a trial court does not impose a sentence for merged 

offenses, a defendant is not “convicted” of merged offenses and 

thus there is no “conviction” on merged offenses for appellate 

court to vacate). Consequently, if we determine that sufficient 

evidence supports appellant’s trafficking conviction and that 

conviction is also not against the manifest weight of the 

evidence, we need not address appellant’s arguments regarding 

the possession offense. 

{¶52} R.C. 2925.03(A)(2)5 sets forth the essential elements 

of trafficking in drugs: 

 No person shall knowingly 

* * * 

5

 The trial court’s sentencing entry and the verdict form do 

not conform to the trial court’s oral decision to amend the 

indictment to charge a violation of R.C. 2925.03(A)(2). 

Instead, the court’s entry and the verdict forms recite R.C. 

2925.03(A)(1). None of the parties pointed out the discrepancy 

during the trial. The court did, however, instruct the jury in 

accordance with R.C. 2925.03(A)(2). Under these circumstances, 

we believe that the trial court committed a clerical error that 

it may correct at any time.
SCIOTO, 20CA3934

31 

 (2) Prepare for shipment, ship, transport, 

deliver, prepare for distribution, or distribute a 

controlled substance or a controlled substance analog, 

when the offender knows or has reasonable cause to 

believe that the controlled substance or a controlled 

substance analog is intended for sale or resale by the 

offender or another person. 

Additionally, R.C. 2923.03(A)(2), Ohio’s complicity statute 

provides, in relevant part, that “[n]o person, acting with the 

kind of culpability required for the commission of an offense, 

shall * * * [a]id or abet another in committing the offense.” 

“[T]o aid or abet is ‘”[t]o assist or facilitate the commission 

of a crime, or to promote its accomplishment.”’” State v. 

McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶ 

27, quoting State v. Johnson, 93 Ohio St.3d 240,243, 754 N.E.2d 

796 (2001), quoting Black’s Law Dictionary 69 (7th Ed.1999). 

{¶53} A conviction for aiding and abetting under R.C. 

2923.03(A)(2) requires the state to prove, beyond a reasonable 

doubt, “that the defendant supported, assisted, encouraged, 

cooperated with, advised, or incited the principal in the 

commission of the crime, and that the defendant shared the 

criminal intent of the principal.” Johnson at syllabus. 

“‘Participation in criminal intent may be inferred from 

presence, companionship and conduct before and after the offense 

is committed.’” Id. at 245, quoting State v. Pruett, 28 Ohio 
SCIOTO, 20CA3934

32 

App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). However, “‘the 

mere presence of an accused at the scene of a crime is not 

sufficient to prove, in and of itself, that the accused was an 

aider and abettor.’” Id. at 243, quoting State v. Widner, 69 

Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). “This rule is to 

protect innocent bystanders who have no connection to the crime 

other than simply being present at the time of its commission.” 

Id.

{¶54} We further observe that the complicity statute does 

not require the state to charge the defendant with complicity. 

Instead, R.C. 2923.03(F) allows the state to charge the 

defendant as a principal offender: “[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). 

{¶55} In the case sub judice, the state charged appellant in 

terms of the principal offense. At trial, the state asserted 

that appellant also is guilty as an aider and abettor, and the 

trial court gave the jury the complicity instructions. We 

therefore will review whether the state presented sufficient 

evidence to establish either that (1) appellant aided and 

abetted the principal offender in trafficking in heroin, or (2) 

appellant trafficked in heroin as a principal offender. 
SCIOTO, 20CA3934

33 

{¶56} As we noted above, a complicity conviction requires 

the state to prove “the defendant supported, assisted, 

encouraged, cooperated with, advised, or incited the principal 

in the commission of the crime, and that the defendant shared 

the criminal intent of the principal.” Johnson at syllabus. 

R.C. 2925.03(A)(2) requires that an offender act knowingly in 

committing the offense. Therefore, a complicity to trafficking 

in drugs conviction requires the state to demonstrate that the 

defendant knowingly “supported, assisted, encouraged, cooperated 

with, advised, or incited the principal in the commission of the 

crime.” Id. 

{¶57} R.C. 2901.22(B) defines when a person acts knowingly: 

 A person acts knowingly, regardless of purpose, 

when the person is aware that the person’s conduct 

will probably cause a certain result or will probably 

be of a certain nature. A person has knowledge of 

circumstances when a person is aware that such 

circumstances probably exist. When knowledge of the 

existence of a particular fact is an element of an 

offense, such knowledge is established if a person 

subjectively believes that there is a high probability 

of its existence and fails to make inquiry or acts 

with a conscious purpose to avoid learning the fact. 

{¶58} We observe that “‘[t]he intent of an accused person 

dwells in his mind’” and that intent “‘can never be proved by 

the direct testimony of a third person.’” State v. Johnson, 56 

Ohio St.2d 35, 38, 381 N.E.2d 637 (1978), quoting State v. 
SCIOTO, 20CA3934

34 

Huffman, 131 Ohio St. 27, 1 N.E.2d 313 (1936), paragraph four of 

the syllabus. Rather, intent “‘must be gathered from the 

surrounding facts and circumstances under proper instructions 

from the court.’” Id., quoting Huffman, paragraph four of the 

syllabus; e.g., State v. Conway, 108 Ohio St.3d 214, 2006-Ohio791, 842 N.E.2d 996, ¶ 143; State v. Garner, 74 Ohio St.3d 49, 

60, 656 N.E.2d 623 (1995). We further observe that “[i]ntention 

is a question of fact, and not one of law.” Koenig v. State, 

121 Ohio St. 147, 151, 167 N.E. 385 (1929); State v. Wamsley, 

6th Dist. Butler No. CA2002-05-109, 2003-Ohio-1872, ¶ 18. 

{¶59} To sustain an R.C. 2925.03(A)(2) trafficking 

conviction as a principal offender, the state must prove that a 

defendant had control over, i.e., possessed, the illegal 

substance. State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d 

181, 2008–Ohio–1625, ¶ 30, quoting R.C. 2925.01(K) (in order to 

ship, transport, deliver, distribute, etc., “the offender must 

‘hav[e] control over’” the illegal substance); see State v. 

Floyd, 7th Dist. No. 18 MA 0106, 2019-Ohio-4878, ¶ 21 (R.C. 

2925.03(A)(2) requires “possession of the controlled substance, 

either constructive or actual”). 

{¶60} “Possession” is generally defined as “having control 

over a thing or substance, but may not be inferred solely from 
SCIOTO, 20CA3934

35 

mere access to the thing or substance through ownership or 

occupation of the premises upon which the thing or substance is 

found.” R.C. 2925.01(K). Whether a person knowingly possessed 

a controlled substance “is to be determined from all the 

attendant facts and circumstances available.” State v. Teamer, 

82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998). 

{¶61} “Possession * * * may be individual or joint, actual 

or constructive.” State v. Wolery, 46 Ohio St.2d 316, 332, 348 

N.E.2d 351 (1976); State v. Fry, 4th Dist. Jackson No. 03CA26, 

2004-Ohio-5747, ¶ 39. “‘Actual possession exists when the 

circumstances indicate that an individual has or had an item 

within his immediate physical possession.’” State v. Kingsland, 

177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶ 13 (4th 

Dist.), quoting Fry at ¶ 39. “Constructive possession exists 

when an individual knowingly exercises dominion and control over 

an object, even though that object may not be within his 

immediate physical possession.” State v. Hankerson, 70 Ohio 

St.2d 87, 434 N.E.2d 1362 (1982), syllabus; State v. Brown, 4th 

Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19. For constructive 

possession to exist, the state must show that the defendant was 

conscious of the object’s presence. Hankerson, 70 Ohio St.2d at 

91; Kingsland at ¶ 13; accord State v. Huckleberry, 4th Dist. 
SCIOTO, 20CA3934

36 

Scioto No. 07CA3142, 2008-Ohio-1007, ¶ 34; State v. Harrington, 

4th Dist. Scioto No. 05CA3038, 2006-Ohio-4388, ¶ 15. 

{¶62} Both dominion and control, and whether a person was 

conscious of the object’s presence, may be established through 

circumstantial evidence. E.g., Brown at ¶ 19; see, e.g., State 

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

one of the syllabus (“[c]ircumstantial evidence and direct 

evidence inherently possess the same probative value”). 

“Circumstantial evidence is defined as ‘[t]estimony not based on 

actual personal knowledge or observation of the facts in 

controversy, but of other facts from which deductions are drawn, 

showing indirectly the facts sought to be proved. * * * ’ ” 

State v. Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988), 

quoting Black’s Law Dictionary 221 (5 Ed.1979). 

{¶63} Furthermore, to establish constructive possession, the 

state need not show that the defendant had “[e]xclusive control” 

over the contraband. State v. Tyler, 8th Dist. Cuyahoga No. 

99402, 2013-Ohio-5242, ¶ 24, citing State v. Howard, 8th Dist. 

Cuyahoga No. 85034, 2005-Ohio-4007, ¶ 15, citing In re Farr, 

10th Dist. Franklin No. 93AP-201, 1993 WL 464632, *6 (Nov. 9, 

1993) (nothing in R.C. 2925.11 or 2925.01 “states that illegal 

drugs must be in the sole or exclusive possession of the accused 
SCIOTO, 20CA3934

37 

at the time of the offense”). Instead, “‘[a]ll that is required 

for constructive possession is some measure of dominion or 

control over the drugs in question, beyond mere access to 

them.’” Howard at ¶ 15, quoting Farr at *6. Thus, simply 

because others may have access in addition to the defendant does 

not mean that the defendant “could not exercise dominion or 

control over the drugs.” Tyler at ¶ 24; accord State v. Walker, 

10th Dist. Franklin No. 14AP-905, 2016-Ohio-3185, ¶ 75. We 

further note that multiple persons may have joint constructive 

possession of an object. State v. Philpott, 8th Dist. Cuyahoga 

Nos. 109173, 109174, and 109175, 2020-Ohio-5267, ¶ 67; Wolery, 

46 Ohio St.2d at 332, 329 (“[p]ossession * * * may be individual 

or joint” and “control or dominion may be achieved through the 

instrumentality of another”). 

{¶64} Moreover, “a factfinder can ‘conclude that a defendant 

who exercises dominion and control over an automobile also 

exercises dominion and control over illegal drugs found in the 

automobile.’” State v. Yakimicki, 10th Dist. Franklin No. 12AP–

894, 2013–Ohio–2663, ¶ 23, quoting State v. Rampey, 5th Dist. 

Stark No. 2004CA00102, 2006–Ohio–1383, ¶ 37; accord State v. 

Walker, 4th Dist. Athens No. 16CA26, 2017-Ohio-8814, ¶ 27. 
SCIOTO, 20CA3934

38 

{¶65} In the case sub judice, we believe that the 

prosecution adduced sufficient evidence at trial that, if 

believed, established that appellant knowingly transported, and 

exercised dominion and control over, the heroin found in the 

back of the driver’s seat, or that appellant knowingly aided or 

abetted the principal offender in committing the offense. 

Appellant rented the vehicle, apparently one week before the 

troopers discovered the heroin hidden inside the vehicle, and 

thus had dominion and control over the vehicle. His dominion 

and control permitted an inference that he also had dominion and 

control over the heroin discovered inside the vehicle. 

Furthermore, the rental car representative stated that rental 

vehicles undergo a thorough inspection between rentals and any 

vehicle damage would have been noted on appellant’s inspection 

report. When appellant rented the vehicle, the inspection did 

not document any damage. When the troopers stopped the vehicle, 

however, Trooper Lloyd noticed visible damage to the back of the 

driver’s seat. From this testimony, the jury could have 

reasonably inferred that the damage did not exist when appellant 

rented the car and that appellant, having dominion and control 

of the vehicle, is responsible for the damage, or that someone 

under appellant’s direction is responsible for the damage. 
SCIOTO, 20CA3934

39 

Likewise, this testimony allowed the jury to reasonably infer 

that appellant, or one of his two companions, stuffed the heroin 

inside the back of the driver’s seat. 

{¶66} The evidence additionally shows that the jury could 

have inferred that appellant knew that the vehicle contained 

more than 50 grams of heroin. Appellant, who denied knowing 

anything about the heroin, also stated that he is a truck driver 

and that he and his companions traveled from Michigan to visit 

“some females” in Kentucky. The state, however, later played 

appellant’s recorded jailhouse phone conversations in which he 

stated that (1) he and his two companions had been traveling to 

Kentucky when Trooper Lewis stopped the vehicle, and (2) he was 

not employed at the time. Both statements tend to show that 

appellant had not been truthful and are evidence of 

consciousness of guilt. 

{¶67} Moreover, the jury watched the video evidence of the 

traffic stop, including appellant’s demeanor while seated in the 

back of Trooper Lewis’ patrol cruiser. Because Lewis testified 

that appellant covered his mouth when he spoke and whispered, 

the jury could have reasonably determined that appellant’s 

conduct further indicated his guilt. The jury also had the 

opportunity to view appellant’s demeanor shortly after the 
SCIOTO, 20CA3934

40 

troopers revealed that they had discovered heroin in the vehicle 

and could have determined that the combination of appellant’s 

and McKee’s words and demeanor indicated that they may not be 

telling the truth. The jury also could have considered the 

evidence and determined that appellant, McKee, and Whitehead 

acted in concert to concoct a cover story that Smith is a truck 

driver and the three were simply on their way to Kentucky to 

visit “some females.” 

{¶68} After our review, we believe that when viewed in a 

light most favorable to the prosecution, the evidence adduced at 

trial supports the conclusion that appellant knowingly 

transported heroin, or that he assisted, facilitated, or 

supported the principal offender to transport the heroin. Here, 

appellant was not simply an innocent bystander who, by mere 

happenstance, found himself at a crime scene, but with no 

connection to the crime other than being present. Rather, the 

evidence established that appellant and his companions traveled 

from Michigan in appellant’s rented vehicle that contained a 

large amount of heroin concealed in the back of the driver’s 

seat. Appellant’s actions, statements and conduct prior, during 

and subsequent to the traffic stop established his involvement 

and culpability in this criminal enterprise. Once again, 
SCIOTO, 20CA3934

41 

criminal intent may be inferred from circumstantial evidence, 

including presence, companionship and conduct that occurred 

before, during and after the commission of a criminal offense. 

Furthermore, as we pointed out supra, multiple persons may have 

simultaneous joint constructive possession of an object. 

{¶69} Therefore, based upon all of the evidence presented at 

trial, a rational trier of fact could have found that appellant 

knowingly trafficked in heroin or that he knowingly aided and 

abetted the principal offender in committing the offense of 

trafficking in heroin. Consequently, we believe that the record 

contains sufficient evidence to support appellant’s trafficking 

conviction. 

{¶70} Furthermore, we do not agree with appellant that the 

state rested its case upon the discovery of marijuana and 

cocaine residue. Instead, as we explained above, the state 

presented ample evidence to prove appellant’s guilt for 

trafficking in heroin, either as a principal offender or as an 

aider and abettor. 

{¶71} For similar reasons, we do not believe that the 

evidence weighs heavily against appellant’s conviction for 

complicity to trafficking in heroin. The state presented ample 

circumstantial evidence to show that appellant knowingly 
SCIOTO, 20CA3934

42 

trafficked in heroin or that he knowingly aided or abetted the 

principal offender in committing the offense. The jury 

obviously credited the state’s theory of the case and we are 

unable to conclude that the jury committed a manifest 

miscarriage of justice by convicting appellant.6

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

overrule appellant’s second assignment of error. 

III 

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

that his conviction for possessing criminal tools contradicts 

his trafficking and possession convictions. In particular, 

appellant argues that because the jury found that appellant did 

not intend to use the vehicle to commit a felony offense, “it is 

inconceivable that the drugs found concealed in the vehicle 

where [sic] knowingly transported or possessed.” Appellant, 

however, does not cite any authority to support his argument. 

{¶74} Under App.R. 16(A)(7), an appellant’s brief shall 

include “[a]n argument containing the contentions of the 

appellant with respect to each assignment of error presented for 

6

 Appellant did not raise a specific argument that his 

possessing criminal tools conviction is against the manifest 

weight of the evidence, or that sufficient evidence does not 

support it. We therefore do not address it. 
SCIOTO, 20CA3934

43 

review and the reasons in support of the contentions, with 

citations to the authorities, statutes, and parts of the record 

on which appellant relies.” Appellate courts will not perform 

independent research to create an argument for a litigant. 

State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 

N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266, 

2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring 

in part and dissenting in part), quoting Carducci v. Regan, 714 

F.2d 171, 177 (D.C. Cir. 1983) (“‘“appellate courts do not sit 

as self-directed boards of legal inquiry and research, but 

[preside] essentially as arbiters of legal questions presented 

and argued by the parties before them”’”); accord State v. 

Lykins, 4th Dist. Adams No. 18CA1079, 2019-Ohio-3316, ¶ 57. 

“[W]e cannot write a party’s brief, pronounce ourselves 

convinced by it, and so rule in the party’s favor. That’s not 

how an adversarial system of adjudication works.” Xue Juan Chen 

v. Holder, 737 F.3d 1084, 1085 (7th Cir. 2013). In view of 

appellant’s lack of authority in support of his position, we 

reject his argument that the possessing criminal tools 

conviction is inconsistent with his trafficking conviction. See 

In re Application of Columbus S. Power Co., 129 Ohio St.3d 271, 
SCIOTO, 20CA3934

44 

2011-Ohio-2638, 951 N.E.2d 751, ¶ 14 (failure to cite legal 

authority or present an argument that a legal authority applies 

on these facts and was violated * * * is grounds to reject [a] 

claim); Robinette v. Bryant, 4th Dist. Lawrence No. 14CA28, 

2015-Ohio-119, ¶ 33 (“It is within our discretion to disregard 

any assignment of error that fails to present any citations to 

cases or statutes in support.”). We further note that it is 

well-established that “‘[t]he several counts of an indictment 

containing more than one count are not interdependent and an 

inconsistency in a verdict does not arise out of inconsistent 

responses to different counts, but only arises out of 

inconsistent responses to the same count.’” State v. Ford, 158 

Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 347, quoting 

State v. Adams, 53 Ohio St.2d 223, 374 N.E.2d 137 (1978), 

paragraph two of the syllabus. 

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

overrule appellant’s third assignment of error. 

IV 

{¶76} In his fourth assignment of error, appellant asserts 

that he did not receive effective assistance of counsel. In 

particular, appellant contends that his trial counsel was 

ineffective for (1) withdrawing his motion to suppress evidence, 
SCIOTO, 20CA3934

45 

(2) failing to file a motion for separate trials, and (3) 

failing to object to the state’s motion to amend the indictment. 

A 

{¶77} The Sixth Amendment to the United States Constitution, 

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

defendants in all criminal proceedings shall have the assistance 

of counsel for their defense. The United States Supreme Court 

has generally interpreted this provision to mean a criminal 

defendant is entitled to the “reasonably effective assistance” 

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

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

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

Amendment right to counsel means “that defendants are entitled 

to be represented by an attorney who meets at least a minimal 

standard of competence”). 

{¶78} To establish constitutionally ineffective assistance 

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

performance was deficient and (2) the deficient performance 

prejudiced the defense and deprived the defendant of a fair 

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

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

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 
SCIOTO, 20CA3934

46 

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

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

Ohio-968, ¶ 14. Therefore, if one element is dispositive, a 

court need not analyze both. State v. Madrigal, 87 Ohio St.3d 

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

one of the ineffective-assistance-of-counsel elements “negates a 

court's need to consider the other”). 

{¶79} The deficient performance part of an ineffectiveness 

claim “is necessarily linked to the practice and expectations of 

the legal community: ‘The proper measure of attorney performance 

remains simply reasonableness under prevailing professional 

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

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

688; accord Hinton, 571 U.S. at 273. Prevailing professional 

norms dictate that “a lawyer must have ‘full authority to manage 

the conduct of the trial.’” State v. Pasqualone, 121 Ohio St.3d 

186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 24, quoting Taylor v. 

Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 

(1988). 

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

ineffectiveness claim, “the performance inquiry must be whether 

counsel’s assistance was reasonable considering all the 
SCIOTO, 20CA3934

47 

circumstances.”’” Hinton, 571 U.S. at 273, quoting Strickland, 

466 U.S. at 688. Accordingly, “[i]n order to show deficient 

performance, the defendant must prove that counsel’s performance 

fell below an objective level of reasonable representation.” 

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 

810, ¶ 95 (citations omitted). 

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

representation amounts to deficient performance, “a court must 

indulge a strong presumption that counsel’s conduct falls within 

the wide range of reasonable professional assistance.” 

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

the presumption that, under the circumstances, the challenged 

action might be considered sound trial strategy.” Id.

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

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

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

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

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

ineffectiveness by demonstrating that counsel’s errors were “so 

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

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

at 687; e.g., State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
SCIOTO, 20CA3934

48 

6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 

156, 524 N.E.2d 476 (1988). 

{¶82} To establish prejudice, a defendant must demonstrate 

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

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

A reasonable probability is a probability sufficient to 

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

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

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

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

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

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

requires a “but for” analysis). “‘[T]he question is whether 

there is a reasonable probability that, absent the errors, the 

factfinder would have had a reasonable doubt respecting guilt.’” 

Hinton, 571 U.S. at 275, quoting Strickland, 466 U.S. at 695. 

Furthermore, courts ordinarily may not simply presume the 

existence of prejudice but, instead, must require a defendant to 

affirmatively establish prejudice. State v. Clark, 4th Dist. 

Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th 

Dist. Ross No. 01CA2592 (Apr. 2, 2002); see generally Roe v. 

Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d 
SCIOTO, 20CA3934

49 

985 (2008) (prejudice may be presumed in limited contexts, none 

of which are relevant here). 

{¶83} As we have repeatedly recognized, speculation is 

insufficient to establish the prejudice component of an 

ineffective assistance of counsel claim. E.g., State v. Tabor, 

4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, ¶ 34; State v. 

Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 22; 

State v. Simmons, 4th Dist. Highland No. 13CA4, 2013-Ohio-2890, 

¶ 25; State v. Halley, 4th Dist. Gallia No. 10CA13, 2012-Ohio1625, ¶ 25; State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-

Ohio-6191, ¶ 68; accord State v. Powell, 132 Ohio St.3d 233, 

2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (argument that is purely 

speculative cannot serve as the basis for an ineffectiveness 

claim). We further note that counsel’s failure to file a futile 

or frivolous motion “‘cannot be the basis for claims of 

ineffective assistance of counsel and is not prejudicial.’” 

State v. Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109, ¶ 

12, quoting State v. Witherspoon, 8th Dist. Cuyahoga No. 94475, 

2011-Ohio-704, ¶ 33. 

B 

{¶84} Appellant first argues that trial counsel performed 

ineffectively by withdrawing his motion to suppress evidence 
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50 

because his motion had a reasonable probability of success. 

Appellant asserts that Trooper Lewis did not have a lawful basis 

to stop or to search the vehicle. Appellant also argues that 

the trial court would have suppressed certain statements 

appellant made during the traffic stop if counsel had not 

withdrawn the motion to suppress evidence. In particular, 

appellant alleges that he made statements without proper Miranda

warnings and that they should have been inadmissible. 

{¶85} Initially, we point out that trial counsel’s “‘failure 

to file a suppression motion does not constitute per se 

ineffective assistance of counsel.’” State v. Madrigal, 87 Ohio 

St.3d 378, 389, 721 N.E.2d 52 (2000), quoting Kimmelman v. 

Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 

(1986); accord State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio1914, 12 N.E.3d 1112, ¶ 126. “To establish ineffective 

assistance of counsel for failure to file a motion to suppress, 

a defendant must prove that there was a basis to suppress the 

evidence in question.” State v. Brown, 115 Ohio St.3d 55, 2007-

Ohio-4837, 873 N.E.2d 858, ¶ 65, citing State v. Adams, 103 Ohio 

St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 35. “‘Where the 

record contains no evidence which would justify the filing of a 

motion to suppress, the appellant has not met his burden of 
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51 

proving that his attorney violated an essential duty by failing 

to file the motion.’” State v. Drummond, 111 Ohio St.3d 14, 

2006-Ohio-5084, 854 N.E.2d 1038, ¶ 208, quoting State v. Gibson, 

69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th Dist.1980). “‘Even 

if some evidence in the record supports a motion to suppress, 

counsel is still considered effective if counsel could 

reasonably have decided that filing a motion to suppress would 

have been a futile act.’” State v. Moon, 8th Dist. Cuyahoga No. 

101972, 2015-Ohio-1550, ¶ 28, quoting State v. Suarez, 12th 

Dist. Warren No. CA2014-02-035, 2015-Ohio-64, ¶ 13; see State v. 

Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109, ¶ 12, 

quoting State v. Witherspoon, 8th Dist. Cuyahoga No. 94475, 

2011-Ohio-704, ¶ 33 (“‘[t]he failure to do a futile act cannot 

be the basis for claims of ineffective assistance of counsel and 

is not prejudicial’”). 

{¶86} In the case at bar, as we explain below, we do not 

believe that appellant has shown a valid basis to suppress the 

evidence discovered during the traffic stop. Thus, even if some 

evidence in the record might support a suppression motion, trial 

counsel reasonably could have decided that filing the motion 

would have been a futile act. Appellant has not, therefore, 
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52 

shown that trial counsel violated an essential duty by failing 

to file a motion to suppress evidence. 

C 

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

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

Ohio Constitution, protect individuals against unreasonable 

governmental searches and seizures. Delaware v. Prouse, 440 

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

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

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

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

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

specifically established and well-delineated exceptions.” Katz 

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

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

Ohio-3665, 850 N.E.2d 1168, ¶ 98. 

{¶88} A traffic stop initiated by a law enforcement officer 

constitutes a seizure within the meaning of the Fourth 

Amendment. Whren v. United States, 517 U.S. 806, 809–810, 116 

S.Ct. 1769, 135 L.Ed.2d 89 (1996); Prouse, 440 U.S. at 653. 

Thus, a traffic stop must comply with the Fourth Amendment’s 

general reasonableness requirement. Id. An officer’s decision 
SCIOTO, 20CA3934

53 

to stop a vehicle is reasonable when the officer has probable 

cause or reasonable suspicion to believe that a traffic 

violation has occurred. Whren, 517 U.S. at 810 (citations 

omitted); accord State v. Mays, 119 Ohio St.3d 406, 2008-Ohio4539, 894 N.E.2d 1204, ¶ 23; Dayton v. Erickson, 76 Ohio St.3d 

3, 11–12, 665 N.E.2d 1091 (1996). Law enforcement officers also 

may stop a vehicle if they have reasonable suspicion “that 

criminal activity ‘“may be afoot.”’” United States v. Arvizu, 

534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), 

quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 

104 L.Ed.2d 1 (1989), quoting Terry v. Ohio, 392 U.S. 1, 30, 88 

S.Ct. 1868, 20 L.Ed.2d 889 (1968); accord State v. Tidwell, 165 

Ohio St.3d 57, 2021-Ohio-2072, 175 N.E.3d 527, ¶ 19 (officer may 

“make an investigatory stop, including a traffic stop, of a 

person if the officer has reasonable suspicion to believe that 

the person is or is about to be engaged in criminal activity”). 

{¶89} Courts that are reviewing whether an officer had a 

reasonable suspicion or probable cause to stop a vehicle must 

consider the “totality of circumstances” as “viewed through the 

eyes of the reasonable and prudent police officer on the scene 

who must react to events as they unfold.” State v. Andrews, 57 

Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991). The totality-of-
SCIOTO, 20CA3934

54 

the-circumstances approach “allows officers to draw on their own 

experience and specialized training to make inferences from and 

deductions about the cumulative information available to them 

that ‘might well elude an untrained person.’” Arvizu, 534 U.S. 

at 273, quoting United States v. Cortez, 449 U.S. 411, 418, 101 

S.Ct. 690, 66 L.Ed.2d 621 (1981). 

1 

{¶90} Appellant first argues that Trooper Lewis did not have 

a reasonable suspicion to stop the vehicle.7 Appellant asserts 

that the trooper did not articulate any facts to suggest that 

the driver of the vehicle committed a traffic violation. 

Appellant thus contends that in the absence of a traffic 

violation, Lewis lacked any reasonable suspicion to stop the 

vehicle. 

{¶91} Law enforcement officers need not necessarily observe 

a distinct traffic violation in order to conduct an 

investigative stop of an automobile. See State v. Hawkins, 158 

Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶ 21-24. In 

Hawkins, for example, the court held that an officer possessed 

7

 Passengers in a vehicle, as well as the driver, have 

standing to challenge the constitutionality of a traffic stop. 

Brendlin v. California, 551 U.S. 249, 259, 127 S.Ct. 2400, 168 

L.Ed.2d 132 (2007); State v. Carter, 69 Ohio St.3d 57, 63, 630 

N.E.2d 355 (1994). 
SCIOTO, 20CA3934

55 

reasonable suspicion to stop a vehicle when the color of the 

vehicle did not match the color listed on the vehicle’s 

registration and when the officer stated that, “in his 

experience, the color discrepancy could signify that the vehicle 

either was stolen or had an illegal license plate.” Id. at ¶ 

24. The court explained that even though “color discrepancy” 

may not be a crime and could have “an innocent explanation,” 

this color discrepancy may nevertheless give an officer 

reasonable suspicion to believe that criminal activity is afoot. 

Id. at ¶ 23. The court reasoned: 

To assign noncriminal behavior no weight would 

“seriously undercut the ‘totality of the 

circumstances’ principle which governs the existence 

vel non of ‘reasonable suspicion.’” [Arvizu, 534 U.S.] 

at 274-275. Behavior and circumstances that are 

noncriminal by nature may “be unremarkable in one 

instance * * * while quite unusual in another.” Id.

at 276, 122 S.Ct. 744. An officer is “entitled to 

make an assessment of the situation in light of his 

specialized training and familiarity with the customs 

of the area's inhabitants.” Id. 

 

Id. at ¶ 23. Thus, the totality of the circumstances inquiry 

allows officers to consider all of the surrounding circumstances 

-– even seemingly innocuous ones -- when determining whether 

they have reasonable suspicion to believe that criminal activity 

may be afoot. See Arvizu, 534 U.S. at 275-276 (a vehicle’s 
SCIOTO, 20CA3934

56 

deceleration may give an officer reasonable suspicion to stop a 

vehicle depending upon the totality of the circumstances present 

in the case). 

{¶92} In the case sub judice, Trooper Lewis articulated 

several factors to support his belief that criminal activity 

might be afoot. First, Lewis noted that the vehicle was a 

rental car. The trooper explained that, in his experience, 

individuals who transport drugs commonly use rental cars as a 

means to avoid detection. Additionally, Lewis observed that the 

vehicle (1) failed to maintain a safe distance from the vehicle 

traveling in front of it, (2) dropped its speed to 40 miles per 

hour while in a 55-mile-per-hour zone, and (3) made an 

unexpected lane change. The totality of the circumstances, 

therefore, would support a finding that Lewis possessed a 

reasonable suspicion that criminal activity may be afoot, and 

probable cause to believe that a traffic violation had occurred. 

{¶93} Consequently, we do not agree with appellant that 

Trooper Lewis lacked a lawful basis to conduct the traffic stop. 

Trial counsel thus was not ineffective for failing to file a 

motion to suppress evidence on this basis. 
SCIOTO, 20CA3934

57 

2 

{¶94} To the extent appellant contends that trial counsel 

performed ineffectively by failing to file a motion to suppress 

evidence based upon Trooper Lewis’ pat-down search of McKee, 

appellant lacks standing to challenge the search of McKee. 

Rakas v. Illinois, 439 U.S. 128, 133–134, 99 S.Ct. 421, 58 

L.Ed.2d 387 (1978), quoting Alderman v. United States, 394 U.S. 

165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (“‘Fourth 

Amendment rights are personal rights which * * * may not be 

vicariously asserted’”). Instead, “defendants may only claim 

the benefits of the exclusionary rule if their Fourth Amendment 

rights have been violated.” State v. Horsley, 4th Dist. Scioto 

No. 12CA3473, 2013-Ohio-901, ¶ 16. 

{¶95} Consequently, in light of the fact that appellant 

lacks standing to challenge the legality of Trooper Lewis’ 

search of the driver, trial counsel was not ineffective for 

failing to file a motion to suppress evidence on this basis. 

3 

{¶96} Appellant further claims that his suppression motion 

would have had a reasonable probability of success because the 

troopers did not observe any unlawful activity to permit them to 

search the vehicle. We do not agree. 
SCIOTO, 20CA3934

58 

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

believe that a vehicle contains contraband, the officer may 

search a validly stopped motor vehicle based upon the wellestablished automobile exception to the warrant requirement. 

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

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

L.Ed.2d 442 (1999); see State v. Lang, 117 Ohio App.3d 29, 36, 

689 N.E.2d 994 (1st Dist.1996) (discovery of cocaine in a 

vehicle in plain view provided probable cause to search the 

remainder of the vehicle for contraband). Furthermore, “Ohio 

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

a vehicle independently provides an officer with additional 

probable cause to believe that the vehicle contains evidence of 

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

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

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

possessed marijuana, officers obtained probable cause to search 

vehicle). 

{¶98} Additionally, courts have held that the observance of 

marijuana “residue” or “flakes” will give officers “probable 

cause to search the entire vehicle.” State v. Gordon, 5th Dist. 

Fairfield No. 14-CA-13, 2014-Ohio- 5027, ¶ 25 (“marijuana flakes 
SCIOTO, 20CA3934

59 

in plain view on [a] driver’s lap”); State v. Stone, 11th Dist. 

No.2007–P–0048, 2008–Ohio–2615, ¶ 26, citing United States v. 

Moxley, 6th Cir. No. 99–3453, 2000 WL 1234320, *3 (Aug. 23, 

2000) (“marijuana residue” found in a vehicle’s interior 

“sufficient to establish not just reasonable suspicion, but 

probable cause to detain the suspect and to conduct a full 

search of his car”). Contra State v. Grubbs, 2017-Ohio-41, 80 

N.E.3d 1075, ¶ 39 (6th Dist.) (marijuana flakes on an individual 

does not give officer probable cause to search the person). 

{¶99} In the case at bar, Trooper Lewis testified that McKee 

dropped a plastic baggie that contained marijuana residue. This 

discovery gave the troopers probable cause to believe that the 

vehicle contained contraband. E.g., Donaldson; Gordon; Young. 

Thus, the troopers could properly search the vehicle. 

{¶100} Consequently, we do not agree with appellant that 

trial counsel performed ineffectively by withdrawing the 

suppression motion because counsel reasonably could have 

determined that the motion was futile. 

4 

{¶101} Appellant next argues that trial counsel should have 

pursued a claim that some of his statements were obtained in 

violation of Miranda. 
SCIOTO, 20CA3934

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{¶102} The Fifth Amendment to the United States Constitution 

provides that no person “shall be compelled in any criminal case 

to be a witness against himself.” In order to safeguard a 

suspect’s Fifth Amendment privilege against self-incrimination, 

law enforcement officers that seek to perform a custodial 

interrogation must warn the suspect “that he has the right to 

remain silent, that anything he says can be used against him in 

a court of law, that he has the right to the presence of an 

attorney, and that if he cannot afford an attorney one will be 

appointed for him prior to any questioning if he so desires.” 

Miranda, 384 U.S. at 479. In the absence of these warnings, a 

suspect’s incriminatory statements made during a custodial 

interrogation are inadmissible at trial. Michigan v. Mosley, 

423 U.S. 96, 99–100, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) 

(footnote and citation omitted) (“[U]nless law enforcement 

officers give certain specified warnings before questioning a 

person in custody, and follow certain specified procedures 

during the course of any subsequent interrogation, any statement 

made by the person in custody cannot over his objection be 

admitted in evidence against him as a defendant at trial, even 

though the statement may in fact be wholly voluntary.”); 

Miranda, 384 U.S. at 479 (no evidence stemming from result of 
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61 

custodial interrogation may be used against defendant unless 

procedural safeguards employed); State v. Maxwell, 139 Ohio 

St.3d 12, 2014–Ohio–1019, 9 N.E.3d 930, ¶ 113 (“the prosecution 

may not use statements, whether exculpatory or inculpatory, 

stemming from custodial interrogation of the defendant unless it 

demonstrates the use of procedural safeguards effective to 

secure the privilege against self-incrimination.”). 

{¶103} It is important to recognize that the Miranda rule 

does not protect every person who is subjected to police 

questioning; rather, the rule protects individuals subjected to 

“custodial interrogation.” Miranda defined “custodial 

interrogation” as “questioning initiated by law enforcement 

officers after a person has been taken into custody or otherwise 

deprived of his freedom of action in any significant way.” 384 

U.S. at 444; see also Stansbury v. California, 511 U.S. 318, 

322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994); Oregon v. 

Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 

(1977) (Miranda protection attaches “only where there has been 

such a restriction on a person’s freedom as to render him in 

‘custody’ ”). Thus, “the requirement that police officers 

administer Miranda warnings applies only when a suspect is 
SCIOTO, 20CA3934

62 

subjected to both custody and interrogation.” State v. Dunn, 

131 Ohio St.3d 325, 2012–Ohio–1008, 964 N.E.2d 1037, ¶ 24. 

{¶104} “Determining whether questioning is ‘a custodial 

interrogation requiring Miranda warnings demands a fact-specific 

inquiry that asks whether a reasonable person in the suspect’s 

position would have understood himself or herself to be in 

custody while being questioned.’” State v. Myers, 154 Ohio 

St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 57, quoting 

Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 

810, ¶ 21. We observe that the custody determination “depends 

on the objective circumstances of the interrogation, not on the 

subjective views harbored by either the interrogating officers 

or the person being questioned.” State v. Henry, 12th Dist. 

Preble No. CA2008-04-006, 2009-Ohio-434, ¶ 13. “[T]he only 

relevant inquiry is how a reasonable [person] in the suspect’s 

position would have understood [the] situation.” Berkemer v. 

McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 

(1984). 

{¶105} Moreover, determining whether an individual “has been 

‘interrogated,’ * * * focuses on police coercion, and whether 

the suspect has been compelled to speak by that coercion.” 

State v. Tucker, 81 Ohio St.3d 431, 436, 692 N.E.2d 171 (1998). 
SCIOTO, 20CA3934

63 

An individual may feel compelled to speak not only “by express 

questioning, but also * * * by the ‘functional equivalent’ of 

express questioning, i.e., ‘any words or actions on the part of 

the police (other than those normally attendant to arrest and 

custody) that the police should know are reasonably likely to 

elicit an incriminating response from the suspect.’” Id., 

quoting Rhode Island v. Innis, 446 U.S. 291, 300–301, 100 S.Ct. 

1682, 64 L.Ed.2d 297 (1980). Consequently, a suspect who 

volunteers information without being asked any questions is not 

subject to a custodial interrogation and is not entitled to 

Miranda warnings. Id. at 438; State v. McGuire, 80 Ohio St.3d 

390, 401, 686 N.E.2d 1112 (1997); accord Miranda, 384 U.S. at 

478 (stating that “[v]olunteered statements of any kind are not 

barred by the Fifth Amendment and their admissibility is not 

affected by our holding today”). “Moreover, there is no 

requirement that officers interrupt a suspect in the course of 

making a volunteered statement to recite the Miranda warnings.” 

Tucker, 81 Ohio St.3d at 438. Moreover, roadside questioning of 

a motorist detained pursuant to a routine traffic stop 

ordinarily does not constitute “custodial interrogation.” 

Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 

L.Ed.2d 317 (1984). If, however, the motorist “thereafter is 
SCIOTO, 20CA3934

64 

subjected to treatment that renders him ‘in custody’ for 

practical purposes, he will be entitled to the full panoply of 

protections prescribed by Miranda.” Id.; accord State v. 

Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985. 

{¶106} In the case sub judice, appellant’s brief does not 

identify precisely when the Miranda violation allegedly 

occurred, or what statements allegedly were obtained in 

violation of Miranda. We further note that the record shows 

that Trooper Lewis administered Miranda warnings before he 

revealed that the troopers had discovered heroin in the vehicle. 

At that point, appellant volunteered that he is a truck driver 

and that he and his companions were driving to Kentucky to visit 

“some females.” Appellant has not, therefore, shown that his 

suppression motion had a reasonable probability of success. 

{¶107} Consequently, we disagree with appellant that trial 

counsel was ineffective for withdrawing the motion to suppress. 

D 

{¶108} Appellant also asserts that trial counsel was 

ineffective for failing to file a motion for separate trials. 

Appellant claims that by holding a joint trial, Whitehead and 

appellant “both were able to assert their Fifth Amendment rights 

against self-incrimination,” and the failure to seek separate 
SCIOTO, 20CA3934

65 

trials deprived appellant of his right to cross-examine 

Whitehead. 

{¶109} Crim.R. 8(B) specifies that multiple defendants may be 

joined in a single indictment “if they are alleged to have 

participated in the same act or transaction or in the same 

series of acts or transactions constituting an offense or 

offenses, or in the same course of criminal conduct.” 

{¶110} As a general rule, the law favors joinder of 

defendants and the avoidance of multiple trials. E.g., State v. 

Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 18. 

Joint trials “conserve[] judicial and prosecutorial time, 

lessen[] the not inconsiderable expenses of multiple trials, 

diminish[] inconvenience to witnesses, and minimize[] the 

possibility of incongruous results in successive trials before 

different juries.” State v. Thomas, 61 Ohio St.2d 223, 225, 400 

N.E.2d 401 (1980); accord Zafiro v. United States, 506 U.S. 534, 

537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), quoting Richardson 

v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 95 L.Ed.2d 176 

(1987) (joint trials “promote efficiency and ‘serve the 

interests of justice by avoiding the scandal and inequity of 

inconsistent verdicts’”). 
SCIOTO, 20CA3934

66 

{¶111} If, however, joinder prejudices a defendant, Crim.R. 

14 gives a trial court discretion to sever the trials. Crim.R. 

14 states: “If it appears that a defendant * * * is prejudiced 

by a joinder of * * * defendants * * * for trial together * * *, 

the court shall * * * grant a severance of defendants, or 

provide such other relief as justice requires.” 

{¶112} To establish that a trial court’s refusal to sever a 

trial constitutes an abuse of discretion, a defendant must 

establish that holding combined trials prejudiced the 

defendant’s rights. Gordon at ¶ 21; State v. Schaim , 65 Ohio 

St.3d 51, 59, 600 N.E.2d 661 (1992). The test is 

whether a joint trial is so manifestly prejudicial 

that the trial judge is required to exercise his or 

her discretion in only one way—by severing the trial. 

* * * A defendant must show clear, manifest and undue 

prejudice and violation of a substantive right 

resulting from failure to sever. 

State v. Schiebel, 55 Ohio St.3d 71, 89, 564 N.E.2d 54 (1990), 

quoting United States v. Castro, 887 F.2d 988, 996 (9th Cir. 

1989. Moreover, a defendant must provide “the trial court with 

sufficient information so that it [can] weigh the considerations 

favoring joinder against the defendant’s right to a fair trial.” 

State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981), 

syllabus. 
SCIOTO, 20CA3934

67 

{¶113} We observe that “defendants are not entitled to 

severance merely because they may have a better chance of 

acquittal in separate trials.” Zafiro, 506 U.S. at 540. 

Additionally, “a trial court does not abuse its discretion in 

refusing to grant severance where the prejudicial aspects of 

joinder are too general and speculative.” State v. Payne, 10th 

Dist. Franklin App. No. 02AP–723, 2003–Ohio–4891. 

{¶114} In the case sub judice, appellant did not explain 

precisely how being unable to cross-examine Whitehead prejudiced 

his defense. Appellant did not identify testimony that he might 

have been able to elicit in a separate trial, and whether that 

testimony would have led to a different outcome. Here, 

appellant can only speculate. 

{¶115} Therefore, we do not agree with appellant that trial 

counsel performed ineffectively for the failure to file a motion 

for separate trials. 

E 

{¶116} Appellant further asserts that trial counsel was 

ineffective for failing to object to the state’s motion to amend 

the indictment. 

{¶117} First, we note that because appellant specifically 

agreed to the amendment, appellant invited any error that may 
SCIOTO, 20CA3934

68 

have occurred. The invited-error doctrine precludes a litigant 

from “‘tak[ing] advantage of an error which [the litigant] 

invited or induced.’” State v. Ford, 158 Ohio St.3d 139, 2019-

Ohio-4539, 140 N.E.3d 616, ¶ 279, quoting Hal Artz LincolnMercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio 

St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus. 

The doctrine generally applies “‘when a party has asked the 

court to take some action later claimed to be erroneous, or 

affirmatively consented to a procedure the trial judge 

proposed.’” Id., quoting State v. Campbell, 90 Ohio St.3d 320, 

324, 738 N.E.2d 1178 (2000). In the criminal context, the 

doctrine prevents a defendant from making “‘an affirmative * * * 

decision at trial and then complain[ing] on appeal that the 

result of that decision constitutes reversible error.’” State 

v. Doss, 8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶ 7, 

quoting United States v. Jernigan, 341 F.3d 1273, 1290 (11th 

Cir. 2003); accord State v. Brunner, 4th Dist. Scioto No. 

18CA3848, 2019-Ohio-3410, ¶ 15. 

{¶118} Assuming, arguendo, that appellant had not invited any 

error, as we explain below we do not believe that trial counsel 

was ineffective for failing to object to the amendment. 
SCIOTO, 20CA3934

69 

{¶119} Crim.R. 7(D) provides that a court may amend an 

indictment “at any time before, during, or after a trial * * *, 

provided no change is made in the name or identity of the crime 

charged.” Thus, an amendment is “proper when the amendment 

[does] not change the penalty or the degree of the offense.” 

State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 

609, ¶ 6. Moreover, “[a]s long as the state complies with 

Crim.R. 7(D), it may cure a defective indictment by amendment, 

even if the original indictment omits an essential element of 

the offense with which the defendant is charged.” State v. 

Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 15. 

{¶120} In the case sub judice, appellant did not argue that 

the amendment changed the penalty or the degree of the offense. 

Moreover, the record does not support such an argument. 

Although the amendment changed the elements of the offense from 

“sell or offer” to sell to “ship, transport, or deliver,” the 

name of the offense and the penalty remained the same before and 

after the amendment. Consequently, trial counsel did not need 

to raise a meritless argument. See State v. Maxwell, 139 Ohio 

St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 70 (amendment that 

simply changes certain element of offense without changing the 
SCIOTO, 20CA3934

70 

name of the offense or the penalty does not constitute an 

improper amendment under Crim.R. 7(D)). 

F 

{¶121} Appellant also claims that counsel’s failures 

constitute plain error. However, because that counsel was not 

ineffective, appellant’s plain-error argument is without merit. 

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

overrule appellant’s fourth assignment of error. 

V 

{¶123} In his fifth assignment of error, appellant asserts 

that the trial court erred by sentencing him to serve eight 

years in prison. In particular, appellant argues that the trial 

court penalized him after he rejected the state’s plea offer and 

chose instead to exercise his right to a jury trial. 

{¶124} When reviewing felony sentences, appellate courts 

apply the standard of review outlined in R.C. 2953.08(G)(2). 

State v. Prater, 4th Dist. Adams No. 18CA1069, 2019-Ohio-2745, ¶ 

12, citing State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-

Ohio-1277, ¶ 13. Under R.C. 2953.08(G)(2), “[t]he appellate 

court’s standard for review is not whether the sentencing court 

abused its discretion.” Instead, R.C. 2953.08(G)(2) specifies 

that an appellate court may increase, reduce, modify, or vacate 
SCIOTO, 20CA3934

71 

and remand a challenged felony sentence if the court clearly and 

convincingly finds either: 

 (a) That the record does not support the 

sentencing court’s findings under division (B) or (D) 

of section 2929.13, division (B)(2)(e) or (C)(4) of 

section 2929.14, or division (I) of section 2929.20 of 

the Revised Code, whichever, if any, is relevant; 

 (b) That the sentence is otherwise contrary to 

law. 

{¶125} A defendant bears the burden to establish, by clear 

and convincing evidence, (1) that a sentence is either contrary 

to law or (2) that the record does not support the specified 

findings under R.C. 2929.13(B), R.C. 2929.13(D), R.C. 

2929.14(B)(2)(e), 2929.14(C)(4), or R.C. 2929.20(I). State v. 

Behrle, 4th Dist. Adams No. 20CA1110, 2021-Ohio-1386, ¶ 48; 

State v. Shankland, 4th Dist. Washington Nos. 18CA11 and 18CA12, 

2019-Ohio-404, ¶ 20. “[C]lear and convincing evidence is that 

measure or degree of proof which is more than a mere 

‘preponderance of the evidence,’ but not to the extent of such 

certainty as is required ‘beyond a reasonable doubt’ in criminal 

cases, and which will produce in the mind of the trier of facts 

a firm belief or conviction as to the facts sought to be 

established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 

118 (1954), paragraph three of the syllabus. 
SCIOTO, 20CA3934

72 

{¶126} We additionally observe that “[n]othing in R.C. 

2953.08(G)(2) permits an appellate court to independently weigh 

the evidence in the record and substitute its judgment for that 

of the trial court concerning the sentence that best reflects 

compliance with R.C. 2929.11 and 2929.12.” State v. Jones, 163 

Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42. 

Furthermore, “an appellate court’s determination that the record 

does not support a sentence does not equate to a determination 

that the sentence is ‘otherwise contrary to law’ as that term is 

used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 32. Consequently, 

appellate courts cannot review a felony sentence when “the 

appellant’s sole contention is that the trial court improperly 

considered the factors of R.C. 2929.11 or 2929.12 when 

fashioning that sentence.” State v. Stenson, 6th Dist. Lucas 

No. L-20-1074, 2021-Ohio-2256, ¶ 9, citing Jones at ¶ 42; accord 

State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio985, ¶ 13 (“In light of Jones, assigning error to the trial 

court’s imposition of sentence as contrary to law based solely 

on its consideration of R.C. 2929.11 and 2929.12 is no longer 

grounds for this court to find reversible error.”); State v. 

Loy, 4th Dist. Washington No. 19CA21, 2021-Ohio-403, ¶ 30. 
SCIOTO, 20CA3934

73 

{¶127} In the case sub judice, appellant did not argue that 

the record fails to support the specified findings under R.C. 

2929.13(B), R.C. 2929.13(D), R.C. 2929.14(B)(2)(e), 

2929.14(C)(4), or R.C. 2929.20(I). Instead, he appears to 

challenge the trial court’s decision not to impose the shortest 

prison term. Appellant contends that he has no criminal record 

and that “no aggravating circumstances” exist. R.C. 

2953.02(G)(2) does not, however, allow this court to 

independently review the record to determine whether the trial 

court chose an appropriate sentence. See Jones, supra; State v. 

Hughes, 4th Dist. Adams No. 21CA1127, 2021-Ohio-3127, ¶ 41 

(“R.C. 2953.08(G)(2) does not give appellate courts broad 

authority to review sentences to determine if they are supported 

by the record”). We therefore are unable to consider whether 

the record supports the trial court’s decision to impose an 

eight-year prison term. We may, however, review whether 

appellant’s sentence is “contrary to law.” 

{¶128} “[A] sentence vindictively imposed on a defendant for 

exercising his constitutional right to a jury trial is contrary 

to law.” State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 

N.E.3d. 431, ¶ 8, citing State v. O’Dell, 45 Ohio St.3d 140, 

147, 543 N.E.2d 1220 (1989), and Bordenkircher v. Hayes, 434 
SCIOTO, 20CA3934

74 

U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (“‘[t]o 

punish a person because he has done what the law plainly allows 

him to do is a due process violation of the most basic sort * * 

*.’”). Thus, a trial court must not act vindictively when it 

imposes a sentence upon a defendant who chooses to maintain his 

not guilty plea and proceed to trial. 

{¶129} We further note “there is not a presumption of 

vindictiveness when a defendant rejects a plea bargain and is 

subsequently sentenced to a harsher term.” Id. at ¶ 3. 

Instead, the defendant must establish that “the judge acted 

vindictively.” Id. 

{¶130} Appellate courts review vindictive-sentence claims by 

beginning “with the presumption that the trial court considered 

the appropriate sentencing criteria.” Id. at ¶ 19. Then, 

courts “review the entire record—the trial court’s statements, 

the evidence adduced at trial, and the information presented 

during the sentencing hearing—to determine whether there is 

evidence of actual vindictiveness.” Id. A reviewing court 

“will reverse the sentence only if [the court] clearly and 

convincingly find the sentence is contrary to law because it was 

imposed as a result of actual vindictiveness on the part of the 
SCIOTO, 20CA3934

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trial court.” Id., citing R.C. 2953.08(G)(2); State v. Taylor, 

4th Dist. No. 16CA1028, 2017-Ohio-4395, 93 N.E.3d 1, ¶ 25. 

{¶131} In the case sub judice, we do not believe that the 

record clearly and convincingly shows that the trial court’s 

eight-year prison sentence is a result of actual vindictiveness. 

Appellant does not point to any statement in the record or any 

other indication to suggest that the court acted vindictively as 

a result of appellant’s decision to reject the plea offer and to 

proceed to trial. As the Rahab court noted, “there are 

legitimate reasons a defendant who rejects a plea may end up 

receiving a harsher sentence.” Id. at ¶ 17. The court 

explained: 

 Acceptance of responsibility is an appropriate 

sentencing consideration. Moreover, a plea bargain 

is, after all, a bargain. In the bargain, the 

prosecutor achieves certain benefits: a forgoing of 

the risk that the defendant will be found not guilty, 

relief from the burden of trying the case and a 

concomitant ability to devote prosecutorial resources 

to other cases, and limitations on the defendant’s 

right to appeal an agreed sentence, see R.C. 

2953.08(D)(1). In return, the prosecutor is able to 

offer the defendant certain sentencing considerations. 

Both sides exchange risk about the outcome for an 

enhanced degree of certainty. For the bargain to be 

worth anything to the defendant (at least in most 

cases), the defendant must have a reasonable 

probability of receiving a more lenient sentence than 

he would following trial and conviction. 

 

Id. (citation omitted). 
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76 

{¶132} We therefore reject appellant’s argument that the 

trial court acted vindictively by imposing an eight-year prison 

sentence. Instead, the trial court reasonably could have 

determined, after hearing all of the evidence presented at 

trial, that appellant’s conduct warranted an eight-year prison 

term. 

{¶133} Appellant also appears to assert that the trial court 

erred by imposing an eight-year prison sentence without stating, 

on the record or otherwise, that the court considered a 

presentence investigation report. We observe, however, that a 

presentence investigation report is only required if a trial 

court imposes community control. Crim.R. 32.2 states: “Unless 

the defendant and the prosecutor in the case agree to waive the 

presentence investigation report, the court shall, in felony 

cases, order a presentence investigation and report before 

imposing community control sanctions or granting probation.” 

R.C. 2951.03(A)(1) specifically states that “[n]o person who has 

been convicted of or pleaded guilty to a felony shall be placed 

under a community control sanction until a written presentence 

investigation report has been considered by the court.” Accord 

State v. Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, 17 N.E.3d 

528, ¶ 15 (“the plain text of Crim.R. 32.2 and R.C. 
SCIOTO, 20CA3934

77 

2951.03(A)(1) also places an unavoidable duty on the trial court 

to obtain a presentence investigation report in every felony 

case in which a prison sentence is not imposed”); State v. 

Dennis, 2017-Ohio-4437, 93 N.E.3d 277, ¶ 25 (8th Dist.) (“a 

presentence investigation report is not required if the court 

imposes a prison term”). 

{¶134} In the case at bar, the trial court imposed a prison 

term. Thus, assuming, arguendo, that the trial court did not 

consider a presentence investigation report as appellant 

alleges, no error occurred. 

{¶135} We further note that appellant alleges that the trial 

court participated in the plea negotiations. However, even if 

the record supports appellant’s assertion, and even if the court 

arguably erred by doing so, appellant does not explain how the 

court’s participation impacted the outcome of the proceedings or 

otherwise affects our analysis of whether his sentence is 

contrary to law. 

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

overrule appellant’s fifth assignment of error and affirm the 

trial court’s judgment. 

JUDGMENT AFFIRMED. 
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78 

JUDGMENT ENTRY 

 It is ordered that the judgment be affirmed and that 

appellee recover of appellant the costs herein taxed. 

 The Court finds there were reasonable grounds for this 

appeal. 

 It is ordered that a special mandate issue out of this 

Court directing the Scioto County Common Pleas Court to carry 

this judgment into execution. 

 If a stay of execution of sentence and release upon bail 

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

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

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

application for a stay during the pendency of the proceedings in 

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

expiration of the 60-day period. 

 The stay will also terminate if appellant fails to file a 

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

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

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

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

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

 A certified copy of this entry shall constitute that 

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

 

 Hess, J. & Wilkin, J.: Concur in Judgment & Opinion 

 

 For the Court 

 BY:__________________________ 

 Peter B. Abele, Judge 

 

 

 

NOTICE TO COUNSEL 

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

final judgment entry and the time period for further appeal 

commences from the date of filing with the clerk.