[Cite as State v. Rhodes, 2014-Ohio-2283.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

v. : No. 13AP-821 

 (C.P.C. No. 12CR-3805) 

Ruben Rhodes, : 

 (REGULAR CALENDAR) 

 Defendant-Appellant. : 

State of Ohio, : 

 Plaintiff-Appellee, : 

v. : No. 13AP-845 

 (C.P.C. No. 13CR-3962) 

Ruben J. Rhodes, : 

 (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on May 29, 2014 

 

Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, 

for appellee. 

Cooper and Pennington Co., LPA, and Christopher M. 

Cooper, for appellant. 

 

APPEALS from the Franklin County Court of Common Pleas 

TYACK, J. 

{¶ 1} Defendant-appellant, Ruben J. Rhodes, is appealing from multiple 

convictions for drug-related offenses. He assigns three errors for our consideration: 
Nos. 13AP-821 and 13AP-845 2 

I. THE TRIAL COURT ERRED WHEN IT ALLOWED THE 

TESTIMONY OF AN EXPERT WITNESS WHO WAS NOT 

PREVIOUSLY DISCLOSED TO DEFENDANT'S COUNSEL. 

II. APPLICANT WAS PREJUDICED BY INEFFECTIVE 

ASSISTANCE OF TRIAL COUNSEL. 

III. THE TRIAL COURT ERRONEOUSLY APPLIED THE 

DOCTRINE OF MERGER IN THE SENTENCE OF 

APPELLANT. 

{¶ 2} Rhodes was accused of making several trips to Florida to acquire controlled 

substances to be sold in central Ohio. This led to two separate indictments. The first 

indictment was issued on August 9, 2012 and included one count of engaging in a pattern 

of corrupt activity, five counts of aggravated trafficking in drugs as a felony of the second 

degree, two counts of aggravated trafficking in drugs as a felony of the fourth degree, and 

three counts of aggravated possession of drugs as felonies of the fifth degree. 

{¶ 3} On July 19, 2013, Rhodes was indicted a second time. This time he was 

charged with six counts of aggravated funding of drug trafficking as felonies of the first 

degree. He also was charged with another count of aggravated trafficking in drugs as a 

felony of the second degree. 

{¶ 4} The two indictments were tried in a single trial. The jury returned verdicts 

of guilty as to all counts. At sentencing, the trial court had to determine how many guilty 

verdicts could stand and how many were barred as a result of applying R.C. 2941.25, 

which reads: 

(A) Where the same conduct by defendant can be construed to 

constitute two or more allied offenses of similar import, the 

indictment or information may contain counts for all such 

offenses, but the defendant may be convicted of only one. 

(B) Where the defendant's conduct constitutes two or more 

offenses of dissimilar import, or where his conduct results in 

two or more offenses of the same or similar kind committed 

separately or with a separate animus as to each, the 

indictment or information may contain counts for all such 

offenses, and the defendant may be convicted of all of them. 
Nos. 13AP-821 and 13AP-845 3 

{¶ 5} The trial court sentenced Rhodes on all the charges for which the jury 

returned guilty verdicts. This does not constitute strict compliance with R.C. 2941.25, 

since the statute bars a conviction on certain charges and does not mandate concurrent 

sentences. 

{¶ 6} The State of Ohio has acknowledged that the trial court erred by sentencing 

Rhodes on two of the possession charges at the same time it sentenced him on related 

trafficking charges involving the same controlled substances. This mistake by the trial 

court necessitates a new sentencing proceeding. 

{¶ 7} Counsel for Rhodes asserts that other convictions are barred. In more 

common terms, counsel argues that more charges merge. Specifically, counsel asserts 

that all the charges in each indictment should merge, but does not really argue this 

assertion. 

{¶ 8} The State of Ohio has properly acknowledged the charges which do merge 

as indicated above. The charge of possession of drugs in bulk amount overlaps with the 

charges of aggravated trafficking in drugs so heavily that, under the facts of this case, a 

merger occurs. However, the financing allegations do not significantly overlap. One can 

engage in trafficking without being the individual who financially underwrites the drug 

distribution operation. 

{¶ 9} As a result, we do not find that the trial court erred beyond the error 

admitted by the State of Ohio. 

{¶ 10} The third assignment of error is sustained in part and overruled in part. 

{¶ 11} The second assignment of error asserts that trial counsel for Rhodes 

rendered ineffective assistance of counsel for purposes of the Sixth Amendment to the 

United States Constitution. The key case for determining if trial counsel has rendered 

ineffective assistance is Strickland v. Washington, 466 U.S. 667 (1984). Strickland sets a 

very high standard for appellate attorneys to meet if they are to demonstrate that trial 

counsel rendered ineffective assistance. Trial counsel must have performed so poorly that 

the outcome of the trial is open to serious debate. Trial counsel's performance must have 

prejudiced the defense. The performance must not have constituted reasonable 

representation. 
Nos. 13AP-821 and 13AP-845 4 

{¶ 12} Trial counsel in the trial of Rhodes did not fail to provide reasonable 

representation. Appellate counsel asserts two lapses. First, trial counsel did not pursue a 

Crim.R. 29(C) motion asking the trial court to grant a judgment of acquittal after the jury 

had returned its guilty verdicts. However, trial counsel requested judgments of acquittal 

at the close of the State's evidence and again at the close of all the evidence. There is no 

indication in the record before us that the trial court judge would have reached a different 

conclusion about the sufficiency of the State's evidence on the third approach. The third 

motion for a judgment of acquittal, in essence, asked the trial court judge to overrule the 

jury's verdicts in whole or in part and to decide that the evidence was now insufficient to 

convict. Nothing in the record indicates that a Crim.R. 29(C) motion had any likelihood 

of success. Trial counsel's failure to file or present such a motion did not constitute 

ineffective assistance of counsel. 

{¶ 13} The other lapse alleged by appellate counsel is the failure of trial counsel to 

accept the trial judge's offer of a brief continuance for counsel to question an additional 

expert presented at the close of the State's case. The continuance also would have allowed 

trial counsel an opportunity to present additional or new evidence to rebut the expert 

witnesses' testimony. 

{¶ 14} In some contexts, the failure of trial counsel to accept a trial court judge's 

offer of a continuance so trial counsel could prepare to cross-examine a new expert 

witness or acquire defense evidence to rebut the newly found expert's testimony would 

constitute a significant lapse of effective assistance. Here it did not, as will become more 

apparent from our addressing the final assignment of error below. 

{¶ 15} The second assignment of error is overruled. 

{¶ 16} The first assignment of error asserts prejudicial error flowing from the 

State's failure to abide by the requirements of Crim.R. 16 as to discovery and the failure of 

the State to abide by local rules pertaining to discovery. Further, the expert, Robert 

Amief, did not provide any sort of written report about his anticipated testimony, as 

required by Crim.R. 16(K), which reads: 

(K) Expert Witnesses; Reports. An expert witness for 

either side shall prepare a written report summarizing the 

expert witness’s testimony, findings, analysis, conclusions, 

or opinion, and shall include a summary of the expert’s 
Nos. 13AP-821 and 13AP-845 5 

qualifications. The written report and summary of 

qualifications shall be subject to disclosure under this rule no 

later than twenty-one days prior to trial, which period may 

be modified by the court for good cause shown, which does 

not prejudice any other party. Failure to disclose the 

written report to opposing counsel shall preclude the expert’s 

testimony at trial. 

{¶ 17} The expert here was called to testify about the bulk amount of one or more 

controlled substances. The bulk amount of a controlled substance is defined by the 

applicable statute. The trial court judge should, in his or her charge to the jury, inform the 

jury of the definition of bulk amount. If expert testimony has demonstrated the quantity 

of controlled substances involved in the transactions, additional expert testimony to tell 

the jury what a statute says is unnecessary. The jury is more than capable of comparing 

the quantity of drugs proven to the statutory definition of bulk amount and deciding 

whether bulk amount or a multiple of the bulk amount was present in the drug 

transaction under consideration. 

{¶ 18} Stated more succinctly, the witness called at the last minute was 

unnecessary to the trial process. Calling the witness was not prejudicial with or without 

advance notice. 

{¶ 19} The first assignment of error is overruled. 

{¶ 20} In summary, the first and second assignments of error are overruled. The 

third assignment of error is overruled in part and sustained in part. The judgment of the 

trial court is affirmed in part and reversed in part. The case is remanded for a new 

sentencing hearing consistent with this decision. 

Judgment affirmed in part and reversed in part; 

 remanded for a new sentencing hearing. 

SADLER, P.J., and O'GRADY, J., concur.