[Cite as State v. Hashi , 2020-Ohio-177.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsABDI HASHI Defendant-Appellant JUDGES: Hon. William B. Hoffman, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. Case No. 18 CAA 12 0097

O P I N I O N

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Comm on Pleas, Case No. 18 CRI 040196

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 22, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant MELISSA A. SCHIFFEL APRIL F. CAMPBELL PROSECUTING ATTORNEY CAMPBELL LAW, LLC DOUGLAS DUMOLT 545 Metro Place South ASSISTANT PROSECUTOR Suite 100 35 North Sandusky Street Dublin, Ohio 43017 Delaware, Ohio 43015Delaware County, Case No. 18 CAA 12 0097 2
Wise, J. {¶1} Defendant-Appellant Abdi Hashi appeals his conviction and sente nce entered in the Delaware County Common Pleas Court following a j ury trial. {¶2} Plaintiff-Appellee is the State of Ohio. STATEMENT OF THE CASE {¶3} On April13, 2018, the Delaware County Grand Jury indicted Appel lant Abdi Hashi on one count of aggravated trafficking in drugs and one c ount of possession of drugs. Both counts were felonies of the first degree and contai ned specifications that Appellant was a major drug offender. {¶4} On July 13, 2018, Appellant filed a motion to suppress. {¶5} On July 27, 2018, the State filed a response to Appellant's mot ion to
suppress. {¶6} On October 17, 2018, a hearing was held on Appellant's motion t o suppress. {¶7} On October 22, 2018, the trial court denied Appellant's motion to suppress. {¶8} After several requests for continuances, the matter was set for trial on November 13, 2018. {¶9} On the morning of trial, Appellant filed a motion to continue. The trial court denied said motion, and the case proceeded to trial. {¶10} At the trial in this matter, the jury heard the following testi mony: {¶11} Amanda Carson testified that she is a manager at a UPS Store in Delaware County, and that on August 17, 2017, a package arrived unexpect edly and without a recipient mailbox. T. at 217. The label indicated it was coming from Germany, and no one had called ahead to let her know to receive a delivery. T. at 2 16- 218. She didn't knowDelaware County, Case No. 18 CAA 12 0097 3
the business name and did not have it listed as a package on th e list of packages scheduled to be delivered to the store. T. at 216. She explaine d that it was unusual to receive a package for someone who did not have a mailbox at the store. Upon receipt, Carson noticed damage to the package; the cardboard box was wet , and it was starting to break and open up. T. at 226. As she began to tape the packa ge, she saw a leafy asparagus-like substance inside the box. It was green, wet, and musty. T. at 225-226. She did not open the box further at that time. However, she not ed the smell of the box was similar to one she received in 2009. T. at 226. {¶12} Carson explained that back in 2009, she became familiar with a plant called khat when she as working at a different UPS store. T. at 221. A t that time, khat had been shipped to her store, and she had the opportunity to observe it . She recalled it was a green, leafy, asparagus like plant with a musty damp smell to i t. T. at 223. When she looked online, back in 2009, the pictures of khat she observed matched what she observed was delivered to her store at that time. T. at 225. Th e smell of the package in this case, as well as the plant material inside, was similar to what she previously observed in 2009. T. at 226. Based upon her prior experience, she became suspicious of the package and contacted the Delaware County Sherriff. T. at 229. {¶13} Deputy Gibson arrived approximately two hours and forty-five mi nutes after the package arrived at the UPS store. T. at 229. While he was t here and Carson was filling out a statement, Appellant arrived to retrieve the pack age. T. at 230. Deputy Gibson advised Carson to give Appellant the package. Another employee checked Appellant's identification and had Appellant pay the Five Dollars ($5.00) t o receive the package,Delaware County, Case No. 18 CAA 12 0097 4

which is the standard fee for individuals who do not have a box at the store. T. at 232. Shortly thereafter, Deputy Gibson made contact with Appellant. Id

. {¶14} Deputy Gibson testified regarding his extensive law enforcement training and experience; this experience included advanced drug detectio n and identification. T. at 419-424. He explained that on August 17, 2017, he was on dut y and received a call from Amanda Carson about a suspicion package that had been deli vered to her UPS store on Polaris Parkway in Delaware County. T. at 423-424. Dep uty Gibson then travelled to the UPS store and parked his marked cruiser behind the building. T. at 426. After talking with Carson, he examined the suspicious package. It was addressed to "Bronson Auto Tuning," a business he determined to be a fictiti ous business, with Appellant's name underneath. T. at 428. When he examined the pa ckage on that date, he could only see "a little" inside the package. However, he no ticed a unique odor that was coming from inside the package that he had never smelled be fore. T. at 429. This all occurred in the back of the UPS store. T. at 430. {¶15} Roughly twenty minutes after Deputy Gibson arrived at the UPS s tore, Appellant arrived to pick up his package. T. at 430. After he s aw Appellant enter the store, Deputy Gibson waited out of view until he was informed Appellan t had paid for the package. At that point, he made himself known to Appellant. T. at 431. Appellant was holding the suspicious package when Deputy Gibson first made co ntact with him. T. at 453. Deputy Gibson then had a conversation with Appellant that was recorded. T. at 433. The recording of the encounter, which lasted roughly ten minute s, was played for the jury. T. at 433.Delaware County, Case No. 18 CAA 12 0097 5 {¶16} Appellant said he was at the UPS store to pick up the package. T. at 436:1. He claimed that Ali, a friend of his, sent him there to pick up the package. T. at 436; 439. Deputy Gibson told Appellant that he knew what was in the packa ge and asked Appellant if it was khat. T. at 437. When asked about the weight of the p ackage, Appellant explained that it was not just for him, but was for the community. T. at 440. Appellant informed Deputy Gibson that they chew khat. T. at 438. Deputy Gibson des cribed Appellant as acting extremely nervous even in response to general questions. T. at 438. Deputy Gibson also described Appellant as being evasive. T. at 438. {¶17} Appellant stated he would pay approximately Four Dollars ($4.00 ) per piece to get the khat from Germany. T. at 442. Appellant further expl ained that he chewed no more than two pieces a day and estimated there were seventy to eighty pieces were contained in the box. T. at 443. Appellant again explained he w as there to pick up the package for his friend, that they chew the khat together, and t hat he would receive five (5) pieces as his share for getting the package. T. at 444. App ellant said there were twenty (20) or thirty (30) pieces of khat in each bundle in the packag e. T. at 444. {¶18} Based upon Appellant's estimated value, the 99 bundles of Khat would be valued at approximately $8,000 dollars. T. at 448. Deputy Gibso n stated that it was his opinion the khat was not solely for personal use as there were approximately 2000 stalks in the package. Chewing only two pieces a day, as Appellant cla ims he did, would take a very long time to use the quantity he received in this case. He explained this belief was consistent with Appellant's statement that the khat was for the community. T. at 448. {¶19} Matthew Congleton testified in this case regarding the testing and analysis of the khat in this case. T. at 245-418. Congleton is a forensi c scientist employed by BCIDelaware County, Case No. 18 CAA 12 0097 6 since 1998 trained to perform laboratory testing on suspected c ontrolled substances. T. at 246-255. He testified the suspected khat in this case was re ceived by BCI in September of 2017 and frozen until he conducted his testing on it in Octo ber of 2017. T. at 261. The khat was packaged as 20 individually wrapped bundles of plant m aterial. T. at 264. The weight of the plant material itself, without any packaging, was 3,913.7 grams. T. at 281. Based upon his training and experience, Congleton suspected the plant material might be khat and contain the controlle d substance "cathinone." T. at 268, 351. He explained that cathinone differed from another controlled substance, cath ine, in that cathinone is a Schedule I substance and cathine is a Schedule IV substance. T. at 270. In this case, pursuant to BCI's testing policy, Congleton only looked for the presence of cathinone in his testing. T. at 271. He further testified the bulk amount of cathinone is 30 grams, and the weight of the plant material suspected of containing cathin one was greater than 100 times bulk amount. T. at 282. {¶20} Testing of the suspected khat in this case occurred using a gas chromatography-mass spectrometer (GC-MS) test and a gas chromat ography-flame ionization detector (GC-FID) test. T. at 288. When the testing was performed in this case, Congleton received data unique to cathinone which allowed him t o conclude the plant material contained cathinone. T. at 292-293. He testified that based upon the data he received from the MC-MS testing, he was 100 percent certain the material he examined contained cathinone. T. at 294; 348. Congleton testified he vis ually does a comparison of the data he received from the computer and compares it directly to the GC-MS graphs. T. at 313-314. The results of the GC-FID testing also revealed that the material he examined contained cathinone. T. at 296.Delaware County, Case No. 18 CAA 12 0097 7 {¶21} On November 15, 2018, the jury found Appellant guilty on both c ounts with the additional finding. {¶22} On November 16, 2018, the trial court sentenced Appellant to th e mandatory minimum prison term of eleven (11) years. {¶23} Appellant now appeals, assigning the following error for review : ASSIGNMENTS OF ERROR {¶24} “I. THE TRIAL COURT'S DECISION TO OVERRULE HASHI'S MOTION TO SUPPRESS WAS REVERSIBLE ERROR, REQUIRING REVERSAL OF HASHI'S CONVICTIONS. A. THE TRIAL COURT ERRED IN FINDING THAT HASHI’S ENCOUNTER WITH DEPUTY GIBSON WAS CONSENSUAL RATHER THAN A SEIZURE, WHICH MUST BE SUPPORTED BY A REASONABLE SUSPICION OF CRIMINAL ACTIVITY. B. THE DEPUTY DID NOT HAVE THE REQUISITE REASONABLE ARTICULABLE SUSPICION TO SEIZE HASHI, NOR PROBABLE CAUSE TO SEIZE THAT PACKAGE. THUS, ALL EVIDENCE THAT FLOWED FROM THOSE ACTS SHOULD HAVE BEEN SUPPRESSED. C. THE TRIAL COURT ERRED IN FINDING THAT HASHI GAVE CONSENT TO OPEN THE UPS PACKAGE WITHOUT A WARRANT, BECAUSE HASHI ACQUIESCED TO POLICE AUTHORITY, REQUIRING REVERSAL OF HASHI'S CONVICTIONS. D. BECAUSE NO PERSON IN HASHI'S POSITION WOULD HAVE FELT AT LIBERTY TO TERMINATE THE DEPUTY'S INTERVIEW ANDDelaware County, Case No. 18 CAA 12 0097 8
LEAVE WHEN HASHI MADE STATEMENTS TO THE DEPUTY, HIS STATEMENTS WERE SUBJECT TO SUPPRESSION. {¶25} “II. HASHI'S MOTION TO CONTINUE HIS TRIAL SHOULD HAVE BEEN GRANTED, BECAUSE FAILURE TO CONTINUE IT RESULTED IN HASHI'S RIG HT TO ASSIST IN HIS OWN DEFEN SE BEING INFRINGED. {¶26} “III. BECAUSE HASHI'S INDICTMENT WAS FATALLY DEFECTIVE FOR FAILING TO ALLEGE AN ESSENTIAL ELEMENT, HASHI'S CONVICTIONS SHO ULD BE REVERSED. {¶27} “IV. HASHI'S CONFRONTATION RIGHT WAS VIOLATED BY THE TRIAL COURT'S DECISION TO ALLOW SURROGA TE TESTIMONY REGARDING TWO REVIEWS BY OTHER CHEMISTS OF THE TESTING ANALYST'S WORK. {¶28} “V. THE STATE PRESENTED INSUFFICIENT EVIDENCE THAT HASHI POSSESSED OR TRAFFICKED A SCHEDULE I CONTROLLED SUBSTANCE AS A MATTER OF LAW. A. THE STATE PRESENTED INSUFFICIENT EVIDENCE AS A MATTER OF LAW THAT HASHI POSSESSED OR TRAFFICKED A SCHEDULE I CONTROLLED SUBSTANCE, REQUIRING REVERSAL OF HIS CONVICTIONS. B. THE STATE PRESENTED INSUFFICIENT EVIDENCE AS A MATTER OF LAW THAT HASHI POSSESSED OR TRAFFICKED A FIRST-DEGREE FELONY LEVEL OF A SCHEDULE I CONTROLLED SUBSTANCE, REQUIRING REVERSAL OF HIS CONVICTIONS.Delaware County, Case No. 18 CAA 12 0097 9

C. THE STATE'S EVIDENCE THAT HASHI TRAFFICKED A SCHEDULE I SUBSTANCE WAS LEGALLY INSUFFICIENT AS A MATTER OF LAW, REQUIRING REVERSAL. {¶29} “VI. BECAUSE THE EVIDENCE WEIGHED MANIFESTLY AGAINST CONVICTING HASHI OF TRAFFICKING AND POSSESSING A SCHEDULE I CONTROLLED SUBSTANCE, HIS CONVICTIONS SHOULD BE REVERSED. {¶30} “VII. BECAUSE THE PROSECUTOR E NGAGED IN PROSECUTORIAL MISCONDUCT WHICH DENIED HASHI'S RIGHT TO A FAIR TRIAL, HASHI'S MOTION FOR MISTRIAL SHOULD HAVE BEEN GRANTED. {¶31} “VIII. HASHI WAS DENIED HIS RIGHT TO A FAIR TRIAL IN THIS CASE BECAUSE OF CUMULATIVE ERROR.” I. {¶32} In his first assignment of error, Appellant argues that the tri al court erred in denying his motion to suppress. We disagree. {¶33} There are three methods of challenging on appeal a trial court 's ruling on a motion to suppress. First, an appellant may challenge the trial court's finding of fact. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the m otion to suppress. When reviewing this third type of claim, an appellate court must ind ependently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. CurryDelaware County, Case No. 18 CAA 12 0097 10 (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. The United States Supreme Court has held that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. See Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911. {¶34} Appellant herein argues Deputy Gibson did not have reasonable s uspicion to initiate a conversation with him, that Deputy Gibson’s searc h of the package was unlawful, and that any statements he made were the result of an improper custodial interrogation. Consensual Encounter {¶35} Appellant first argues the court erred in finding the officers had a reasonable suspicion of criminal activity to justify initiating a conversa tion with him at the UPS store. {¶36} Interactions between citizens and law enforcement officers can fall within three distinct categories: a consensual encounter, an investiga tive detention, and an
arrest. State v. Taylor , 106 Ohio App.3d 741, 747-749, 667 N.E.2d 60(1995). {¶37} “Encounters are consensual where the police merely approach a p erson in a public place, engage the person in conversation, request info rmation, and the person is free not to answer and walk away.” Taylor at 747, 667 N.E.2d 60, citing United States v. Mendenhall , 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). “The Fou rth Amendment guarantees are not implicated in such an encounter un less the police officer has by either physical force or show of authority restrained th e person's liberty so that aDelaware County, Case No. 18 CAA 12 0097 11
reasonable person would not feel free to decline the officer's requests or otherwise terminate the encounter.” Id. at 747-748, 667 N.E.2d 60. {¶38} The State argues the encounter here was consensual, but failing that, argues the deputy still had adequate suspicion to justify detai ning Appellant. Appellant argues the information from the UPS worker was unreliable and t herefore provided no evidence that he was engaged in any illegal activity. {¶39} Upon review, we find the initial encounter here was consensual. Although some of the initial statements made by the deputy to Appellant could be viewed as orders, such as telling him to put down the package and directing him w here to stand, the video of the encounter reveals that the encounter took place in a pub lic place, Appellant was not restrained from leaving the area, Appellant was told repeat edly that he was not in custody and was free to leave, and was told that he was not goi ng to be arrested that day. The officer never raised his voice or made any show of force or authority. See State v. Yacobucci, 5th Dist. Delaware No. 18 CAC07 0055, 2019-Ohio-36 ¶32. Reasonable Suspicion {¶40} We further find that the officer had reasonable suspicion to de tain Appellant even if the encounter is viewed as an investigatory detention r ather than a consensual
encounter. {¶41} Reasonable suspicion constitutes something less than probable c ause. State v. Logan, 5th Dist. Richland No. 07–CA–56, 2008–Ohio–2969, ¶ 15, citing State v. Carlson (1995), 102 Ohio App.3d 585, 590. Also, it is well-established that an officer's reasonable articulable suspicion does not require proof beyond a reasonable doubt that the defendant's conduct has satisfied the elements of the offen se. State v. Willis, 5th Dist.Delaware County, Case No. 18 CAA 12 0097 12 Licking No. 14 CA 103, 2015–Ohio-3739, ¶ 25, citing Westlake v. Kaplysh, 118 Ohio App.3d 18, 20, 691 N.E.2d 1074 (8th Dist.1997). {¶42} Here, information from the identified UPS store manager indicat ed that an odor of khat was emanating from one of the packages and explain ed her basis for that knowledge. Upon arrival to the UPS store, the deputy himself wa s able to verify the unusual odor coming from the package. Deputy Gibson was aware t hat possession of khat was illegal. In his conversation with the deputy, appella nt claimed he did not know what was in the package and that the package was not for him ev en though the package was addressed to him and he came to pick up the package. Based on these facts, we find the totality of the circumstances here warranted the inves tigatory detention. Consent to Search {¶43} We further find that the Appellant in this case consented to a search of the package. The deputy asked Appellant three times if he would con sent to the search. Appellant initially answered “it’s in your hands” but then stat ed he would consent if he was not going to be arrested. After being given assurance that he w ould not be arrested that day, but could be charged in the future, he told Deputy Gibson “Yeah, go ahead.” Miranda Warnings {¶44} Appellant also argues that the deputy should have read him Mira nda warnings. {¶45} Upon review, we find “police are not required to administer Miranda warnings to everyone whom they question.” State v. Biros , 78 Ohio St.3d 426, 440, 678 N.E.2d 891 (1997), citing Oregon v. Mathiason , 429 U.S. 492, 495, 97 S.Ct. 711, 50Delaware County, Case No. 18 CAA 12 0097 13 L.Ed.2d 714, 719 (1977). This is true when an individual is not in police custody, or is merely temporarily restrained. {¶46} The temporary restraint of a person, such as that required of t hose present in a home during the execution of a search warrant, does not in voke the “full panoply of Fourth Amendment protections * * * for no actual arrest has occ urred.” State v. Schultz , 23 Ohio App.3d 130, 135, 491 N.E.2d 735 (1985), citing Florida v. Royer , 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Temporary restraint of o ccupants during the search of a home is justified by “substantial law enforcement i nterests” such as officer safety, occupant safety and the orderly execution of the search , as long as police have an articulable basis for suspecting criminal activity. State v. Jester , 12th Dist. Butler No. CA2010-10-264, 2012-Ohio-544, 2012 WL 441136, ¶ 18 citing Michigan v. Summers , 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). {¶47} Based on our above findings, we find no Miranda warnings were r equired in this case. {¶48} Appellant’s first assignment of error is overruled. II. {¶49} In his second assignment of error, Appellant argues the trial c ourt erred in denying his Motion to continue. We disagree. {¶50} The decision to grant or deny a motion to continue is entrusted to the broad discretion of the trial court. Hartt v. Munobe, 67 Ohio St.3d 3, 9, 615 N.E.2d 617 (1993); State v. Unger , 67 Ohio St.2d 65. Ordinarily, a reviewing court analyzes a de nial of a continuance in terms of whether the court has abused its discre tion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); State v. Wheat, 5th Dist. LickingDelaware County, Case No. 18 CAA 12 0097 14
App. No. 2003–CA–00057, 2004–Ohio–2088. An abuse of discretion connotes more than a mere error in law or judgmen t; it implies an arbitrary, unrea sonable, or unconscionable attitude on the part of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶51} In evaluating whether the trial court has abused its discretion in denying a continuance, appellate courts apply a balancing test which take s into account a variety of competing considerations, including the length of the delay req uested; whether other continuances have been requested and received; the inconvenienc e to litigants, witnesses, opposing counsel and the court; whether the requeste d delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; an d whether the defendant contributed to the circumstance which gives rise to the request for a continuance. State v. Unger, supra. {¶52} In the case before us, Appellant moved for a continuance on the morning of trial, alleging personal family issues would prevent him from f ocusing on the trial. T. at 7. In denying the continuance, the trial court explained that the trial had already been continued a number of time at Appellant’s request and had been pending over six months. T. at 8-9. {¶53} Appellant’s second assignment of error is overruled. III. {¶54} In his third assignment of error, Appellant argues the indictme nt was fatally defective for failing to allege an essential element. We disagr ee. {¶55} “ ‘Article I, Section 10 of the Ohio Constitution provides that “no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment orDelaware County, Case No. 18 CAA 12 0097 15 indictment of a grand jury.” Thus, the Ohio Constitution guaran tees an accused that the essential facts constituting the offense for which he is tried will be found in the indictment by the grand jury.’ ” State v. Jackson , 134 Ohio St.3d 184, 2012–Ohio–5561, 980 N.E.2d 1032, ¶ 12; quoting State v. Pepka , 125 Ohio St.3d 124, 2010–Ohio–1045, 926 N.E.2d 611, ¶ 14; citing Harris v. State , 125 Ohio St. 257, 264, 181 N.E. 104 (1932). As noted in Jackson at ¶ 12, “Crim.R. 7(B) provides, ‘The statement [specifying th e offense in an indictment] may be made in ordinary and concise language withou t technical averments or allegations not essential to be proved. The statement may be in the words of the applicable section of the statute, provided the words of that s tatute charge an offense, or in words sufficient to give the defendant notice of all the ele ments of the offense with which the defendant is charged.’ ” {¶56} “ ‘An indictment meets constitutional requirements if it “first , contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acqu ittal or conviction in bar of future prosecutions for the same offense.” ’ ” Jackson at ¶ 13; quoting State v. Childs , 88 Ohio St.3d 558, 565, 728 N.E.2d 379 (2000); in turn quoting Hamling v. United States , 418 U.S. 87, 117, 94 S.Ct. 2887 (1974). “ ‘Generally, the requi rements of an indictment may be met by reciting the language of the criminal statute.’ ” Jackson at ¶ 14; quoting State v. Childs , 88 Ohio St.3d 194, 199, 724 N.E.2d 781 (2000); citing State v. Murphy , 65 Ohio St.3d 554, 583, 605 N.E.2d 884 (1992). However, “if the indictment does not name the essential elements of the criminal offense charged, th e indictment is insufficient to charge the defendant with that offense.” Jackson at ¶ 14; citing State v. Jester , 32 Ohio St.3d 147, 149, 512 N.E.2d 962 (1987).Delaware County, Case No. 18 CAA 12 0097 16 {¶57} In State v. Horner , 126 Ohio St.3d 466, 2010–Ohio–3830, 935 N.E.2d 26, ¶ 10, the Supreme Court of Ohio noted that “[t]he purpose of a gr and jury indictment has always been to give notice to the accused: ‘[A] criminal offens e must be charged with reasonable certainty in the indictment so as to apprise the def endant of that which he may expect to meet and be required to answer; so that the court and jury may know what they are to try, and the court may determine without unreasonable di fficulty what evidence is admissible.’ ” Quoting Horton v. State , 85 Ohio St. 13, 19, 96 N.E. 797 (1911). Further, it should be noted that the Court held in Horner that “failure to timely object to a defect in an indictment constitutes waiver of the error.” Horner at ¶ 46; citing Crim.R. 12(C)(2) (objections to defect in indictment must be raised before trial .). {¶58} Here we find that the indictment is sufficient as it alleges, c orrectly, that Appellant possessed and trafficked a Schedule I controlled subs tance, cathinone. {¶59} We further find that because Appellant failed to timely object to any alleged error, he has waived any issues with regard to same. {¶60} Appellant’s third assignment of error is overruled. IV. {¶61} In his fourth assignment of error, Appellant argues that the tr ial court erred in allowing the State to present certain testimony and evidence at trial which denied him his Sixth Amendment right to confront the witnesses against him . We disagree. {¶62} The Sixth Amendment to the United States Constitution provides, "[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him." Likewise, Section 10, Article I of the Ohio Constitution provides, "[i]n any trial, in any court, the party accused shall be allow ed to meet the witnesses faceDelaware County, Case No. 18 CAA 12 0097 17
to face." The Supreme Court of the United States has held that evidence that is "testimonial hearsay" offends a defendant's Sixth Amendment rig ht to confrontation and is not admissible. Crawford v. Washington , 541 U.S. 36, 51, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). However, the Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." State v. Ricks , 2013-0hio-3712, ~ 18, 136 Ohio St. 3d 356,361,995 N.E.2d 1181, 1187; State v. Maxwell , 2014-0hio-1019, ~ 131, 139 Ohio St. 3d 12, 41, 9 N.E.3d 930, 964 ("Crawford also stated that the Confrontation Clause d oes not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."); State v. McKelton , 2016-0hio-5735, ¶217, 148 Ohio St. 3d 261, 300, 70 N.E.3d 508, 562. {¶63} Here, Appellant argues the witness Matthew Congleton, from the BCI lab, was allowed to present “substitute testimony for other chemists who reviewed and certified Congleton’s work. (Appellant’s Brief at 26). {¶64} At trial, Congleton testified that other personnel in the labor atory made "sure that everything was done appropriately and in a correct manner and to assure they agree with the findings on [his] report when compared to [his] data. T. at 340-341. Congleton also testified that his work was administratively reviewed by a member of his management and resulted in his testing method being approved. T. at 341. {¶65} Upon review, we find no Sixth Amendment violation. We do not fi nd these statements to be testimonial in nature but rather find that the se statements refer to the review procedure and explain how such review occurs and what ot hers in the lab did, not what they said.Delaware County, Case No. 18 CAA 12 0097 18 {¶66} Appellant also challenges the last page of State's Ex. 12, whic h is a single page document consisting of a technical review checklist, compl eted by another BCI chemist. {¶67} The trial court, after reviewing said document, found it to be merely a statement verifying that the case number was "properly listed a nd the name of the agency that sent the exhibit is properly listed and all the appropriat e documents that are supposed to be here are here." T. at 302. {¶68} Further, the State explained that the document was not being au thorized for the truth of the matter asserted, but rather to show BCI s labo ratory procedures for the testing of chemical substances. {¶69} Upon review, we find no error in the trial court’s decision to allow the use of said document for the limited purpose for which it was offered – as an illustration of the procedures followed by BCI for the testing of substances and ge nerating of reports. {¶70} Appellant’s fourth assignment of error is overruled. V., VI. {¶71} In his fifth and sixth assignments of error, Appellant argues h is convictions for possessing or trafficking a Schedule I controlled substance were against the manifest weight and sufficiency of the evidence. We disagree. {¶72} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. Th e standard of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllab us, in which the OhioDelaware County, Case No. 18 CAA 12 0097 19
Supreme Court held, “An appellate court's function when reviewi ng the sufficiency of the evidence to support a criminal conviction is to examine the evi dence admitted at trial to determine whether such evidence, if believed, would convince th e average mind of the defendant's guilt beyond a reasonable doubt. The relevant inqui ry is whether, after viewing the evidence in a light most favorable to the prosecuti on, any rational trier of fact could have found the essential elements of the crime proven bey ond a reasonable doubt.” {¶73} In determining whether a conviction is against the manifest wei ght of the evidence, the court of appeals functions as the “thirteenth jur or,” and after “reviewing the entire record, weighs the evidence and all reasonable inference s, considers the credibility of witnesses and determines whether in resolving conflicts in t he evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered.” State v. Thompkins, supra , 78 Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the “exceptional case i n which the evidence weighs heavily against the conviction.” Id. {¶74} Appellant herein was convicted of one count of drug trafficking pursuant to R.C. §2925.03(A)(2) and one count of drug possession pursuant t o R.C. §2925.11(A),which provide: R.C. §2925.03 Trafficking Offenses (A) No person shall knowingly do any of the following: (1) *** (2) Prepare for shipment, ship, transport, deliver, prepare fo r distribution, or distribute a controlled substance or a control led substanceDelaware County, Case No. 18 CAA 12 0097 20 analog, when the offender knows or has reasonable cause to beli eve that the controlled substance or a controlled substance analog is in tended for sale or resale by the offender or another person. R.C. §2925.11 Drug Possession Offense (A) No person shall knowingly obtain, possess, or use a contro lled substance or a controlled substance analog. {¶75} As set forth above in the Statement of the Facts, the State pre sented evidence that Appellant appeared at the UPS store to claim the package, which was addressed to him, within hours of its arrival at the store. T. at 230, 428. Appellant paid for the package and then took physical possession of the package. T . at 232, 453. Appellant admitted that he knew the package contained khat. T. at 437. {¶76} Further, Appellant stated that he paid approximately Four Dolla rs ($4.00) per piece to have the khat shipped from Germany, and that the k hat in this package was “for the community”, not just him. T. at 440, 442. {¶77} Matthew Congleton testified that he performed an analysis of th e khat, that it contained cathinone, and that cathinone is a Schedule I subs tance. T. at 245-418. He further testified that the bulk amount of cathinone is 30 grams , and the contents of the package in this case weighed 3,913.7 grams. T. at 281-282. {¶78} Based on the foregoing, we find the State presented sufficient evidence that Appellant conspired or solicited with another to ship a Schedul e I substance (Khat/cathinone) to the United States, that he took possession of the khat, and that he possessed it with the purpose of distributing it. We therefore find the State satisfied the elements of possession and trafficking in this case.Delaware County, Case No. 18 CAA 12 0097 21 {¶79} The jury, as the trier of fact, was free to accept or reject an y and all of the evidence offered by the parties and assess the witnesses' credi bility. “While the trier of fact may take note of the inconsistencies and resolve or discou nt them accordingly * * * such inconsistencies do not render defendant's conviction again st the manifest weight or sufficiency of the evidence.” State v. Johnson , 5th Dist. Stark No. 2014CA00189, 2015– Ohio–3113, 41 N.E.3d 104, ¶ 61, citing State v. Nivens , 10th Dist. Franklin No. 95APA09– 1236, 1996 WL 284714 (May 28, 1996). The jury need not believe all of a witness' testimony, but may accept only portions of it as true. Id. {¶80} Construing all of the evidence in favor of appellee, sufficient evidence supports appellant's convictions. Also, this is not the case in which the jury clearly lost its way and created such a manifest miscarriage of justice that the convictions must be overturned and a new trial ordered. {¶81} Appellant's conviction is not against the manifest weight or su fficiency of the evidence. {¶82} Appellant’s fifth and sixth assignments of error are overruled. VII. {¶83} In his seventh assignment of error, Appellant argues he was den ied a fair trial based on prosecutorial misconduct. We disagree. {¶84} The test for prosecutorial misconduct is whether the prosecutor 's remarks and comments were improper and if so, whether those remarks and comments prejudicially affected the substantial rights of the accused. State v. Lott , 51 Ohio St.3d 160, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S. Ct. 591, 112 L.Ed.2d 596 (1990). In reviewing allegations of prosecutorial misconduct, w e must review theDelaware County, Case No. 18 CAA 12 0097 22
complained-of conduct in the context of the entire trial. Darden v. Wainwright , 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). {¶85} Here, Appellant argues the prosecutor engaged in misconduct by calling Appellant’s expert witness a liar. Appellant also alleged that the prosecutor improperly sought to shift the burden of proof onto Appellant during closi ng arguments. {¶86} During closing argument, the prosecutor made the following stat ements: "Now Dr. Belloto told you this could be anything. This could b e any substance. This could be a number of substances. What substance did he tell you this could be? Not one substance did he tell you. Ther e's hundreds of thousands of substances in the database that he uses and Mr. Congleton uses and he didn't give you an example of one other substance u sing a mass spec run that this could possibly be besides cathinone. No t one substance did he say. He said it could be a million things, did n't name one. Not one. Now just so we're clear, when Mr. Blake says they're g oing to tell you you should have done this, should have done that. The Defen dant doesn't have a burden of proving anything and I don't expect hi m to prove anything. I didn't expect him to bring Dr. Belloto in, but if h e puts a witness on the stand, here's what we should expect as jurors and as off icers of the court, when Dr. Belloto raises his right hand, he should have t old the truth, that's what I expect from Dr. Belloto ....... I apologize if I misspoke. It's up to you to decide what, if anything, you believe of what Dr. Bellot o said. What I'm telling you is that Mr. Blake said the prosecutor is going to tell you you should have tested the drug, I'm not going to say that What I'm going to tellDelaware County, Case No. 18 CAA 12 0097 23
you is he should have told the truth when he said he requested to test the - -" T. at 696-697. {¶87} Additionally, the State prosecutor argued: But, finally, he told you under oath yesterday in court that h e asked to test the plant and was not allowed to do that. Mr. Hashi has a right to have an independent analyst of his choice, including Dr. Bellot o, to analyze those plants. They were preserved, they were frozen. ... They wer e preserved, they were frozen. We could not have if we wanted to, and I didn't want to, nor did the judge, we could not have stopped him from doing that if he wanted to do that, and he told you he wanted to do that a nd was not allowed. You have to decide whether or not that's the truth or not. The State would suggest to you that that was not the truth." T. at 698. {¶88} Upon review of said statements, we find same to be reasonable c omments on the evidence and permissible argument. We further find, upon reviewing the prosecutor's remark in the context of the entire trial, these c omments did not prejudicially affected the substantial rights of appellant. State v. Brown, 5th Dist. Stark No. 2012CA00040, 2013–Ohio–2220, at ¶ 37, appeal not allowed, 136 O hio St.3d 1512, 2013–Ohio–4657, 995 N.E.2d 1214, ¶¶ 34–38 (2013) and appeal not allowed, 137 Ohio St.3d 1462, 2013–Ohio–4657, ¶¶ 34–38 (2013). {¶89} Appellant also claims the State impermissibly attempted to shif t the burden of proof by making the following statements during closing argu ment: The bottom line is when you go back there, if you deliberate a nd you look at the science and you say, boy, I don't know, the science could goDelaware County, Case No. 18 CAA 12 0097 24 either way, just remember if you have any reasonable doubt, Mr. Hashi didn't. Mr. Hashi knew it was khat. He identified it as khat. H e chews it because it has cathinone in it. Mr. Hashi knew exactly what he was doing that day, he was trafficking in drugs and he was also possessin g drugs for a brief period of time, and under Ohio law, he's guilty of poss ession and trafficking in 3,900 grams of cathinone contained in the plant khat. T. at 700. {¶90} Upon review, we find Appellant’s arguments that this was an att empt to shift the burden of proof to be unpersuasive. Rather, we again find s ame to be fair and reasonable comment on the evidence. {¶91} Here, we find no misconduct occurred which can be said to have deprived Appellant of a fair trial based on the entire record. {¶92} Appellant’s seventh assignment of error is overruled. VIII. {¶93} In his eighth assignment of error, Appellant argues he was deni ed a fair trial due to cumulative error. We disagree. {¶94} In State v. Garner , 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995), the Supreme Court of Ohio held, pursuant to the cumulative error do ctrine, “a conviction will be reversed where the cumulative effect of errors in a trial de prives a defendant of the constitutional right to a fair trial even though each of numero us instances of trial court error does not individually constitute cause for reversal.” {¶95} Where we have found that the trial court did not err, cumulativ e error is simply inapplicable. State v. Carter , Stark App. No. 2002CA00125, 2003-Ohio-1313 at ¶ 37. With respect to Appellant's arguments that we have already addressed, we do notDelaware County, Case No. 18 CAA 12 0097 25 find multiple instances of harmless error triggering the cumula tive error doctrine. State v. Scott , 5th Dist. Richland No.11 CA80, 2012–Ohio3482, ¶ 75–76, appeal not allowed, 133 Ohio St.3d 1491, 2012–Ohio–5459, 978 N.E.2d 910. {¶96} Appellant’s eighth assignment of error is overruled. {¶97} For the foregoing reasons, the decision of the Court of Common Pleas of Delaware County, Ohio, is affirmed.

By: Wise, J. Hoffman, P. J., and Delaney, J., concur.

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