[Cite as State v. Johnson, 2014-Ohio-4032.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

GALLIA COUNTY 

STATE OF OHIO, : Case No. 13CA16 

 : 

 Plaintiff-Appellee, : 

 : 

 vs. : 

 : DECISION AND JUDGMENT 

VICKEY J. JOHNSON : ENTRY 

 : 

 Defendant-Appellant. : Released: 09/10/14 

_____________________________________________________________ 

APPEARANCES:

Timothy P. Gleeson, Logan, Ohio, for Appellant. 

Adam R. Salisbury, Gallipolis City Solicitor, Gallipolis, Ohio, for Appellee. 

_____________________________________________________________ 

 

McFarland, J. 

{¶1} Vickey J. Johnson (Appellant), appeals her conviction for 

possession of drugs, in violation of R.C. 2925.11(A)/(C)(2)(a) after a bench 

trial in the Gallipolis Municipal Court. Appellant’s counsel has advised this 

Court that, after reviewing the record, he cannot find a meritorious claim for 

appeal. As a result, Appellant’s counsel has moved to withdraw under 

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). We find no merit 

to Appellant’s two assignments of error and, after independently reviewing 

the record, find no additional error prejudicial to the Appellant’s rights in the 

trial court proceedings. The motion of counsel for Appellant requesting to 
Gallia App. No. 13CA16 2

withdraw as counsel is granted, and this consolidated appeal is dismissed for 

the reason that it is wholly frivolous. 

FACTS 

{¶2} On October 2, 2013, Appellant was found guilty of possession 

of drugs, in violation of R.C. 2925.11(A)/(C)(2)(a), after a bench trial in the 

Gallipolis Municipal Court. The charge arose from an incident which 

occurred on June 15, 2013. On that date, Trooper Wilson of the Ohio State 

Highway Patrol noticed a disabled vehicle on U.S. Route 35 in Gallia 

County, Ohio. After running the license plate registration through dispatch, 

Trooper Wilson was advised Appellant, the registered owner of the vehicle, 

had an outstanding misdemeanor warrant in Gallia County. 

{¶3} Trooper Wilson approached the disabled vehicle and arrested 

Appellant on the misdemeanor warrant. He asked Appellant if she wanted to 

take her purse with her and Appellant assented. Trooper Wilson eventually 

searched inside and found half a Hydrocodone tablet.1

 Appellant indicated 

the purse belonged to her daughter, Angela Massey, and denied knowing a 

pill bottle was in the purse. Nevertheless, Appellant was charged with 

possession of drugs, a misdemeanor of the first degree. 

 

1

 The record is not entirely clear but it appears the search was consensual. Appellant has raised no issue in 

this regard. 
Gallia App. No. 13CA16 3

{¶4} Appellant was arraigned on June 17, 2013, and entered a not 

guilty plea. She was appointed legal counsel and eventually proceeded to a 

bench trial, wherein Appellant and Trooper Wilson were the only testifying 

witnesses. The trial court found Appellant had constructive possession of 

the purse and found her guilty. 

{¶5} Appellant was sentenced to one year of probation (community 

control), a $100.00 fine, and a six-month driver’s license suspension. She 

was also ordered to pay court costs and a supervision fee. Appellant now 

appeals the conviction and November 6, 2013 sentencing order. 

{¶6} This appeal is timely filed. We have allowed Appellant 

sufficient time to respond to counsel’s brief. To date, no response has been 

received. 

A. FINAL APPEALABLE ORDER 

{¶7} Our review pursuant to Anders requires a full examination of the 

trial court proceedings. In the case sub judice, the record reveals Appellant 

appeals the November 6, 2013, “Sentence Entry.” This entry states in bold: 

“Defendant entered a plea of Guilty. Defendant found Guilty.” This is 

not a correct notation of what actually transpired, as Appellant had a bench 

trial. Attached to this entry, however, is another document dated October 2, 

2013, which indicates the trial court found the defendant guilty after trial. 
Gallia App. No. 13CA16 4

This document appears to be a hearing notice because it sets forth a 

sentencing date of November 6, 2013. Initially, these documents raise some 

concern regarding the finality of the November 6, 2013 order. 

{¶8} A court of appeals has no jurisdiction over orders that are not 

final and appealable. State v. Smith, 4th Dist. Highland No. 10CA13, 2011-

Ohio-1659, ¶3, citing Section 3(B)(2), Article IV, Ohio Constitution 

(“Courts of appeals shall have such jurisdiction to review and affirm, 

modify, or reverse judgments or final orders of the courts of record inferior 

to the courts of appeals within the district * * *”); see, also, R.C. 2953.02. 

We are required to sua sponte raise jurisdictional issues when they become 

apparent. See, e.g., In re B.J.G. 4th Dist. Adams No. 10CA894, 2010-Ohio5195, at ¶6. 

{¶9} In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 

N.E.2d 142, at ¶14, the court held a judgment of conviction is a final order 

subject to appeal under R.C. 2505.02 when the judgment entry sets forth (1) 

the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) 

the time stamp indicating the entry upon the journal by the clerk. Resolution 

of the issues set forth in Lester required a discussion of Crim.R. 32(C) and 

the Supreme Court of Ohio’s decision in State v. Baker, 119 Ohio St.3d 197, 

2008-Ohio-3330, 893 N.E.2d 163. Lester modified the holding in Baker, to 
Gallia App. No. 13CA16 5

the extent that Baker had implied or had been interpreted to require, that 

more than the fact of the conviction, the substantive provisions of Crim.R. 

32(C), i.e. the “manner of conviction” must also be set out in the judgment 

entry of conviction before it becomes a final order.2

{¶10} As noted above, the November 6, 2013 entry incorrectly 

indicates Appellant entered a plea of guilty. However, it does set forth the 

fact of conviction. The fact that a judgment entry of conviction does not 

indicate how the defendant’s conviction was effected - by a guilty plea, a nocontest plea upon which the court has made a finding of guilty, a finding of 

guilty based upon a bench trial, or a guilty verdict resulting from a jury trial 

- does not prevent the order from being final. State v. Shepherd, 4th Dist. 

Scioto No. 12CA3469, 2012-Ohio-5631, ¶11; Lester, supra, at ¶16. Despite 

the error setting forth the manner of conviction, there is the “fact of 

conviction” and, thus, we conclude the November 6, 2013 entry is final and 

we proceed to review the merits of the arguments raised in Appellant’s brief. 

B. ANDERS BRIEF 

{¶11} Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 

(1967), counsel may ask permission to withdraw from a case when counsel 

has conscientiously examined the record, can discern no meritorious claims 

 

2

 The law in Baker also requires that the required elements constituting a final appealable order “must occur 

in a single document.” State v. Smead, 9th Dist. Summit No. 24903, 2010-Ohio-4462, ¶10, citing Baker, at 

¶7, 893 N.E.2d 163. 
Gallia App. No. 13CA16 6

for appeal, and has determined the case to be wholly frivolous. Id. at 744; 

State v. Adkins, 4th Dist. No. 03CA27, 2004-Ohio-3627, ¶8. Counsel’s 

request to withdraw must be accompanied with a brief identifying anything 

in the record that could arguably support the client’s appeal. Anders at 744; 

Adkins at ¶8. Further, counsel must provide the defendant with a copy of the 

brief and allow sufficient time for the defendant to raise any other issues, if 

the defendant chooses to. Id. 

{¶12} Once counsel has satisfied these requirements, the appellate 

court must conduct a full examination of the trial court proceedings to 

determine if meritorious issues exist. If the appellate court determines that 

the appeal is frivolous, it may grant counsel’s request to withdraw and 

address the merits of the case without affording the appellant the assistance 

of counsel. Id. If, however, the court finds the existence of meritorious 

issues, it must afford the appellant assistance of counsel before deciding the 

merits of the case. Anders at 744; State v. Duran, 4th Dist. No. 06CA2919, 

2007-Ohio-2743, ¶7. 

{¶13} In the current action, Appellant’s counsel advises that the 

appeal is wholly frivolous and has asked permission to withdraw. Pursuant 

to Anders, counsel has filed a brief raising two potential assignments of error 

for this Court’s review. 
Gallia App. No. 13CA16 7

C. POTENTIAL ASSIGNMENTS OF ERROR 

“I. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF 

THE EVIDENCE BECAUSE THE STATE DID NOT PROVE 

BEYOND A REASONABLE DOUBT THE ELEMENT OF 

POSSESSION.” 

“II. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF 

THE EVIDENCE BECAUSE THE STATE DID NOT PROVE 

BEYOND A REASONABLE DOUBT THE ELEMENT THAT THE 

PILL WAS A CONTROLLED SUBSTANCE.” 

1. STANDARD OF REVIEW 

{¶14} When considering whether a conviction is against the manifest 

weight of the evidence, our role is to determine whether the evidence 

produced at trial “attains a high degree of probative force and certainty 

required of a criminal conviction.” State v. Fry, 4th Dist. Jackson No. 

03CA26, 2004-Ohio-5747, quoting State v. Getsy, 84 Ohio St.3d 180, 193, 

702 N.E.2d 866 (1998). The reviewing court sits, essentially, as a “ 

‘thirteenth juror’ and [may]disagree []with the fact finder’s resolution of the 

conflicting testimony.” Fry, supra, quoting State v. Thompkins, 78 Ohio 

St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Tibbs v. Florida, 457 U.S. 

31, 42, 102 S.Ct. 2211 (1982). The reviewing court must dutifully examine 

the entire record, weighing the evidence and considering the credibility of 

witnesses, but keeping in mind that credibility generally is an issue for the 

trier of fact to resolve. Fry, supra, citing State v. Thomas, 70 Ohio St.2d 79, 
Gallia App. No. 13CA16 8

80, 434 N.E.2d 1356 (1982); State v. De Hass, 10 Ohio St.2d 230, 227 

N.E.2d 212 (1967), paragraph one of the syllabus. The reviewing court may 

reverse the conviction if it appears that the factfinder, in resolving 

evidentiary conflicts, “ ‘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, 678 N.E.2d 541, quoting State 

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (Ist. Dist. 1983). On 

the other hand, we will not reverse a conviction if the state presented 

substantial evidence upon which the trier of fact could reasonably conclude 

that all essential elements of the offense had been established beyond a 

reasonable doubt. Fry, supra,citing State v. Eley, 56 Ohio St.2d 169, 383 

N.E.2d 132 (1978), syllabus. 

2. LEGAL ANALYSIS 

{¶15} Because Appellant’s assignments of error are interrelated and 

necessitate review under the “manifest weight of the evidence” standard, we 

consider them jointly. Under Appellant’s first assignment of error, she 

argues constructive possession was not proven by the state. At trial, 

Appellant testified she had recently changed purses and was using her 

daughter’s purse. Appellant denied knowing the one-half Hydrocodone 

tablet was in the purse. 
Gallia App. No. 13CA16 9

 {¶16} Possession of a controlled substance may be actual or 

constructive. State v. Williams, 4th Dist. Ross No. 03CA2736, 2004-Ohio1130, ¶23. See State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351 

(1976) (Internal citations omitted.). A person has “actual possession” of an 

item if the item is within his immediate physical possession. Williams, 

supra, citing State v.Fugate, 4th Dist. Washington No. 97CA2546, 1998 WL 

729221, *7. “Constructive possession” exists when an individual is able to 

exercise dominion and control over an item, even if the individual does not 

have immediate physical possession of it. Williams, supra, citing State v. 

Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus. A 

defendant’s mere presence in an area where drugs are located does not 

conclusively establish constructive possession. Williams, supra, at ¶25; 

State v. Cola, 77 Ohio App.3d 448, 450, 602 N.E.2d 730 (11th Dist. 1991); 

Cincinnati v. McCartney, 30 Ohio App.2d 45, 48, 281 N.E.2d 855 (1st. Dist. 

1971). However, a defendant’s proximity to drugs may constitute some 

evidence of constructive possession. Williams, supra, at 25. Mere presence 

in the vicinity of drugs, coupled with another factor probative of dominion 

or control over the contraband, may establish constructive possession. 

Fugate, at *8. 
Gallia App. No. 13CA16 10

{¶17} At trial, Trooper Wilson identified Appellant and described the 

facts surrounding his encounter with her on the roadside as set forth above. 

Specifically, Trooper Wilson testified another officer, Trooper Hurd, 

retrieved the purse from the driver’s side of the vehicle after Appellant told 

him where to find it. Trooper Wilson further testified Appellant advised the 

purse belonged to her, and he found a prescription bottle inside, with 

multiple pills and one Hydrocodone. He described the Hydrocodone pill as 

white, one-half tablet, oval-shaped. Trooper Wilson asked Appellant if it 

was her pill bottle and her pills, and she advised it was. She also identified 

the pill as Hydrocodone. Trooper Wilson testified at no time, did he see 

anybody at the scene, other than the defendant, with that particular purse. 

{¶18} On cross-examination, Trooper Wilson identified Defendant’s 

Exhibit 1 as the pill bottle in question. He admitted the prescription on the 

bottle was made out to Angela Massey. 

{¶19} Appellant testified she was in the process of moving on the 

date of her arrest. Her daughter, Angela Massey, was helping her. 

However, her car broke down on the road. Appellant also identified 

Defendant’s Exhibit 1, the pill bottle. Appellant testified as follows: 

Q. And whose pill bottle is that 

A. Um, Angela Massey’s. 
Gallia App. No. 13CA16 11

Q. And was, was it located in your purse at a period, for a period 

of time? 

A. Yes. 

Q. Okay. And how did it get there? 

A. Uh, it was her purse and she had threw my stuff in there to 

change purses because we had a funeral to go to. That’s why 

we were down here, to get my stuff and to go to the funeral. 

Q. So when you’re talking about your purse and that you 

identified, or that they’re identifying as your purse was that 

actually your purse? 

A. Yes. 

Q. Okay. Now, because this is a little confusing. How was it that 

the pills ended up in that purse? 

A. Because I, she had my purse. She had a box, she had some of 

my stuff. So she got the purse out and I said I need to change 

pocketbooks, mine’s too small, so she took the stuff out and just 

threw it in the purse that was in the box that was at her house. 

So she had evidently used my purse. 

Q. Okay. So she had used this purse was... 

A. Yes. 

Q. ...this was found in? 

A. Yes. 

Q. And how recently before this happened had she used your 

purse? 

A. Uh, probably while I was in Georgia. Because my stuff... 

Q. Okay. Can you give me, was that week, two weeks, a month? 
Gallia App. No. 13CA16 12

A. Uh, three months. 

Q. Okay. And had you used that purse since that time? 

A. No. 

Q. Okay. So when was the first time you had used your purse after 

she had used it? 

A. Uh, probably just a few, a couple of days before uh, I had 

loaded up my stuff in the car. 

Q. Okay. Now tell me basically uh, how the officer came to get 

the purse? 

A. Um, it was in the car, I was in the patrol car, someone, one of 

the officers went to the car and got my purse out of the car. 

Q. Okay. Did you tell them that you wanted your purse? 

A. Yes. 

Q. And then they got it for you? 

A. Yes. 

Q. Now did they ask you anything about the contents of that 

purse? 

A. If the contents were mine. 

Q. And what was your response? 

A. Yes. 

Q. Okay. Did you realize at the time that that pill bottle was in 

there? 

Q. Is that pill bottle yours? 
Gallia App. No. 13CA16 13

A. No. 

{¶20} On cross-examination, Appellant testified she had been using 

the purse but had not been inside it for a couple of days. She admitted her 

wallet was in the purse and she had put it there. She testified her daughter 

put everything that was in the other purse in the one she used. Appellant 

testified they had changed purses but she had not been in her purse, or even 

carrying it around. She denied knowing there was a bottle of pills and she 

denied hearing the pills rattle inside. 

{¶21} A purse is something so closely identified with a person that if 

it is with her, or in close proximity at the time the officer stops her, then it is 

in her possession. State v. Straight, 9th Dist. Summit No. 12541, 1986 WL 

10257, *2. In State v. Ritchie, 1st Dist. Hamilton No. C-810658, 1982 WL 

8680, the appellate court stated “[W]e believe a woman’s purse in her 

possession [under the circumstances revealed by the record] is within the 

area under her immediate control. Her purse is equivalent to men’s pockets, 

not to luggage separated from her immediate control.” Various courts have 

analyzed Appellants’ arguments denying “possession” and “knowledge” of 

contraband found in purses. 

{¶22} In State v. Montgomery, 10th Dist. Franklin No. 89AP-1355, 

Montgomery was found guilty of two counts of possession of a controlled 
Gallia App. No. 13CA16 14

substance in violation of R.C. 2925.11. A search of the residence where 

Montgomery was located revealed, among other items, a purse containing a 

Tylenol bottle which contained Schedule II controlled substances. 

Montgomery argued on appeal her conviction by jury trial was against the 

manifest weight of the evidence, and contended that while the purse was 

hers, that fact did not prove she knowingly possessed the drugs contained in 

the Tylenol bottle. Montgomery contended someone else could have placed 

those in her purse without her knowledge. While acknowledging the 

evidence against Montgomery was primarily circumstantial and the scenario 

of how the drugs came in to her possession was possible, it did not present a 

reasonable scenario. Montgomery’s conviction was affirmed. 

{¶23} In State v. Jackson, 11th Dist. Ashtabula No. 2002-A-0027, 

Jackson also argued her conviction by a jury of possession of crack cocaine 

was against the manifest weight of the evidence. She argued during the 

search of her person, there was a sufficient amount of time for someone to 

have planted the crack cocaine in her purse. The appellate court noted while 

Jackson’s assertion was true, the state had presented evidence to establish 

the purse belonged to Jackson; no one planted crack cocaine in the purse; 

and that the crack cocaine fell from Jackson’s purse when she emptied its 

contents as instructed by an officer. Thus, viewed in the light most 
Gallia App. No. 13CA16 15

favorable to the prosecution, there was sufficient evidence to establish 

Jackson possessed the crack cocaine. The appellate court also held after a 

thorough review of the record, it could not say the jury’s verdict was against 

the manifest weight of the evidence. 

{¶24} In State v. Scott, 3rd Dist. Seneca No. 13-04-05, 13-04-36, 

2005-Ohio-549, Scott was convicted of possession of drug paraphernalia and 

possession of marijuana. Her convictions were despite the fact Scott’s purse 

was out of her actual possession for two hours after it was reported stolen. 

The appellate court found sufficient evidence to prove Scott possessed the 

items because Scott identified and laid claim to the purse and its contents, 

and because she admitted she used the drugs for medical reasons. 

{¶25} In State v. Harvath, 5th Dist. Stark No. 2005CA00330, 2006-

Ohio-5549, Harvath was convicted by a jury of illegal assembly or 

possession of chemicals for the manufacture of drugs, carrying concealed 

weapons, and aggravated possession of drugs. Harvath had been the driver 

of a suspicious vehicle which made a questionable turn, and was stopped by 

a Masillon police officer. Harvath drove the vehicle with a male passenger 

up front and one female passenger in the back. A brown leather purse 

(containing an Ohio I.D. card, a loaded handgun, a vial of suspected 

methamphetamine, a coffee filter, a white powder substance suspected to be 
Gallia App. No. 13CA16 16

methamphetamine, an electronic scale, one gold earring, pseudoephedrine 

tablets, and money) was found in the front seat. Harvath gave her name to 

the arresting officer as “Christine Heppe. ” 

{¶26} At trial Harvath denied the purse found in her friend’s car was 

hers and testified she did not even see the purse inside the vehicle. She also 

denied knowledge of the gun and drugs found inside her purse. She also 

testified that a gold earring inventoried at the jail was not hers and was 

placed in her inventory by mistake. Harvath argued her convictions were 

against the sufficiency and the manifest weight of the evidence. 

{¶27} On appeal, Harvath pointed out: (1) another woman was in the 

car at the time the purse was found; (2) a cell phone contained in the purse 

was stipulated at trial to belong to someone else; and (3) the gold earring 

was not hers. However, the state produced evidence at trial that the purse 

and the contraband belonged to Harvath. The arresting officer testified 

Harvath identified herself as “Christine Heppe.” An Ohio ID card 

containing the name “Christine Heppe” was found in the purse, which was 

located in the front of the car, next to the driver’s seat, of the car which 

Harvath drove. No other females were seated in the front seat of the car. 

The gold earring inventoried from Harvath’s possessions matched an earring 

found in the purse. In addition, when another officer walked into the jail and 
Gallia App. No. 13CA16 17

asked for “Christine,” Harvath came forward. At trial and on appeal, 

Harvath maintained that officer was lying. However, the appellate court 

noted the jury, as trier of fact, was in the best position to assess credibility. 

Appellant’s convictions were affirmed. 

{¶28} In the case sub judice, we note on redirect, Appellant testified 

the purse was “pretty big” and full, made out of plastic and canvas. She 

testified there were things at the bottom of the purse that even had she 

opened it, she would not have seen. Because the purse was partially cloth, 

she would not have heard any pills rattling. Appellant denied cutting the pill 

in half. 

{¶29} The State of Ohio then recalled Trooper Wilson in rebuttal, 

who testified Appellant’s purse was small and black. He examined it by 

placing it on the hood of a vehicle. The top of the purse folded open and the 

pill bottle was visible from the top. He further testified Appellant’s small 

wallet with her I.D. was in the purse. On cross-examination, Trooper 

Wilson testified he did not have a picture of the purse. He admitted since 

the time of Appellant’s traffic stop, he had had possibly 200 other stops. 

{¶30} Having reviewed the entire record, weighed the evidence, and 

considered the credibility of the witnesses, we find the State of Ohio 

presented substantial evidence upon which the trier of fact could reasonably 
Gallia App. No. 13CA16 18

conclude that all essential elements of the offense of possession of drugs had 

been established beyond a reasonable doubt. In doing so, we are mindful 

that the credibility of the witnesses was an issue for the trial court to resolve. 

{¶31} Here, the State of Ohio presented evidence of actual and 

constructive possession. Trooper Wilson testified there were no other 

females at the scene, only two males assisting Appellant with her car 

trouble. The purse was retrieved from the driver’s side of the vehicle, where 

Appellant told him it would be. Therefore, the purse was in her immediate 

physical possession. This evidence also demonstrates Appellant had 

dominion and control over the purse, even though she did not have 

immediate physical possession at the time she was being questioned by 

Trooper Wilson on the roadside. 

{¶32} Appellant’s testimony was confusing in that, at the scene, she 

initially indicated the purse belonged to her. Then she testified the purse 

belonged to her daughter, Angela Massey, who had thrown Appellant’s 

“stuff” in it, “to change purses because we had a funeral to go to.” 

Appellant further testified she had used the purse but had not been inside it 

for a couple of days, although she admitted her wallet was in the purse. 

Trooper Wilson testified Appellant’s I.D. was in the wallet. When he 

opened the purse to examine it, the pill bottle was visible from the top. 
Gallia App. No. 13CA16 19

Interestingly, at trial, Angela Massey never presented to testify as to the 

“purse switch” or as to the ownership of the pill bottle and Hydrocodone that 

was purportedly hers.3

 Furthermore, Appellant was in the process of moving 

from the Gallia County area to Urbana, Ohio. Given the travel and the 

circumstances also surrounding a move, it is not reasonable to think that 

Appellant had not had occasion to remove her wallet for a couple of days. 

{¶33} Finally, Appellant described the purse as big and full, made out 

of cloth. For that reason, she did not hear a pill bottle rattling. By contrast, 

Trooper Wilson testified the purse was small and black and, as noted above, 

the pill bottle was easily seen from the top. The trier of fact was in the best 

position to resolve any credibility issues. This court tends to agree with the 

trial court’s general assessment that “people don’t put things in [a] purse that 

[gets carried around ] for a couple of days and [I] don’t know what’s in it.” 

For the above reasons, we do not find the trier of fact clearly lost its way and 

created a manifest miscarriage of justice requiring reversal of Appellant’s 

conviction. 

{¶34} In her second assignment of error, Appellant contends the State 

did not present evidence of a scientific analysis or testimony of an expert 

witness for the identification of the substance. The admission or exclusion 

 

3

 Admittedly, the evidence does not show us if Angela Massey’s prescription was valid on the date of 

Appellant’s arrest. 
Gallia App. No. 13CA16 20

of evidence is within the sound discretion of the trial court, and the trial 

court’s decision to admit or exclude such evidence cannot be reversed absent 

an abuse of discretion. State v. Craft, 4th Dist. Athens NO. 97CA53, 1998 

WL 255442, *7 (Internal citations omitted.). The term “abuse of discretion” 

connotes more than an error of judgment; it implies that the court’s attitude 

is unreasonable, arbitrary, or unconscionable; it implies that the court’s 

attitude is unreasonable, arbitrary or unconscionable. Craft, supra, citing 

State v. Xie, 62 Ohio St.3d 521, 583 N.E.2d 715 (1992); State v. 

Montgomery, 61 Ohio St.3d 410, 575 N.E.2d 167 (1991). When applying 

the abuse of discretion standard of review, we are not free to merely 

substitute our judgment for that of the trial court. Craft, supra, citing In re 

Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E. 2d 1181 (1991), citing 

Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). 

{¶35} Appellant specifically argues the State relied upon the 

testimony of Trooper Wilson that Appellant identified the tablet as 

Hydrocodone.4

 On cross-examination, Trooper Wilson admitted he could 

not identify the pill and it was sent off to a laboratory. He also admitted he 

did not have any laboratory testing results with him that day. We note, 

Appellant did not object or raise this issue in the trial court proceedings. As 

 

4

 At the outset, the parties stipulated to Trooper Wilson’s qualifications as a “duly qualified and acting 

peace officer in the State... of Ohio at all times relevant to the case.” 
Gallia App. No. 13CA16 21

such, we will review Appellant’s argument under a “plain error” standard of 

review. 

{¶36} Pursuant to Crim. R. 52(B), we may notice plain errors or 

defects affecting substantial rights. State v. Smith, 4th Dist. Highland No. 

09CA29, 2010-Ohio-4507, ¶67. We will notice plain error “only to prevent 

a manifest miscarriage of justice. “ Id., quoting State v. Long, 53 Ohio St.2d 

91, 372 N.E.2d 804 (1978), at paragraph three of the syllabus. And 

“reversal is warranted only if the outcome of the trial clearly would have 

been different absent the error.” Id., quoting State v. Hill, 92 Ohio St.3d 

191, 203, 2001-Ohio-41,749 N.E.2d 274, citing Long at paragraph two of the 

syllabus. 

{¶37} Trooper Wilson did not testify as an expert witness. He 

testified on redirect, he could not identify the pill and that is why he asked 

Appellant to identify it. He relied on her identification. He further testified: 

“[T]he Trooper and I looked it up in the uh, pill bible book...through his 

phone.” He testified the description in the reference guide matched the 

physical description and the pill he had for Hydrocodone, Schedule III. 

Trooper Wilson reiterated that information matched what Appellant had told 

him. 
Gallia App. No. 13CA16 22

{¶38} Since the adoption of the Rules of Evidence, both on the state 

and federal levels, many courts have used an Evid.R. 701 analysis and have 

allowed lay witnesses to testify about the identity of a drug. State v. McKee,

91 Ohio St.3d 292, 2001-Ohio-41, 744 N.E.2d 737. Evid. R. 701 provides: 

“If the witness is not testifying as an expert, his testimony in the form 

of opinions or inferences is limited to those opinions or inferences 

which are (1) rationally based on the perception of the witness and (2) 

helpful to a clear understanding of his testimony or the determination 

of a fact in issue.” 

“[C]ourts have permitted lay witnesses to express their opinions 

in areas in which it would ordinarily be expected that an expert must 

be qualified under Evid.R. 7025

....Although these cases are of a 

technical nature in that they allow lay opinion testimony on a subject 

outside the realm of common knowledge, they will fall within the 

ambit of the rules requirement that a lay witness’s opinion be 

rationally based on firsthand observations and helpful in determining a 

fact in issue. These cases are not based on specialized knowledge 

within the scope of Evid. R. 702, but rather are based upon a 

layperson’s personal knowledge and experience.” 

{¶39} The McKee court held that the “experience and knowledge of a 

drug user lay witness can establish his or her competence to express an 

 

5 Evid.R. 702 governs the admissibility of expert testimony. The rule states: 

“A witness may testify as an expert if all of the following apply: 

(A) The witness’ testimony either relates to matters beyond the knowledge or experience 

possessed by lay persons or dispels a misconception among lay persons; 

(B) The witness is qualified as an expert by specialized knowledge, skill, experience, 

training, or education regarding the subject matter of the testimony; 

(C) The witness’ testimony is based on reliable, scientific, technical, or other specialized 

information.....” 
Gallia App. No. 13CA16 23

opinion on the identity of a controlled substance if a foundation for this 

testimony is first established.” 

{¶40} In applying this case law to the facts at hand, we note Trooper 

Wilson’s testimony pits his credibility against Appellant’s. He testified 

Appellant told him the pill was Hydrocodone. By contrast, Appellant 

testified when asked about the type of pill, she told the trooper she “didn’t 

know.” Again, in resolving conflicts in the testimony, the trier of fact is in 

the best position to observe the witnesses’ demeanor and weigh credibility. 

{¶41} Furthermore, in accordance with the law in McKee, although 

Trooper Wilson may have not known it at the time of the stop, the evidence 

demonstrates it was reasonable to rely on Appellant’s identification of the 

drug. The evidence at trial established a foundation for Appellant’s opinion. 

At trial, Appellant identified Defendant’s Exhibit 2, a pill bottle with 

prescription in 2010 made out to her for Hydrocodone. Appellant testified 

she would have recognized Hydrocodone because of her previous 

prescription. 

{¶42} In this case, Trooper Wilson relied on Appellant’s 

identification. He subsequently matched the pill she identified as 

Hydrocodone with the description of Hydrocodone in a reference guide. 

The evidence at trial established a foundation for Appellant’s knowledge and 
Gallia App. No. 13CA16 24

showed, albeit after the fact, the trooper’s reliance on her identification was 

reasonable. Based on these facts, we find no plain error occurred. We 

therefore overrule Appellant’s second assignment of error and affirm the 

judgment of the trial court. 

D. CONCLUSION 

{¶43} In our view, the trial court’s findings are supported by the 

record. As such, we also conclude that the potential assignments of error 

advanced by appellate counsel are wholly without merit. The motion of 

counsel for Appellant requesting to withdraw as counsel is granted. This 

appeal is hereby dismissed. 

 APPEAL DISMISSED. 
Gallia App. No. 13CA16 25

JUDGMENT ENTRY

 It is ordered that the APPEAL BE DISMISSED. Costs are assessed to 

Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Gallipolis Municipal Court to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE 

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL 

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

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

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

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

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

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

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

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

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

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

of such dismissal. 

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

Rule 27 of the Rules of Appellate Procedure. 

 

Harsha, J. & Hoover, J.: Concur in Judgment Only. 

 

For the Court, 

 BY: ___________________________________ 

 Matthew W. McFarland, 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.