[Cite as State v. Fleming, 2022-Ohio-1876.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT 

CLARK COUNTY

STATE OF OHIO

Plaintiff-Appellee

v.

JAMAL FLEMING

Defendant-Appellant

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Appellate Case No. 2021-CA-40

Trial Court Case No. 2020-CR-416

(Criminal Appeal from

Common Pleas Court)

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O P I N I O N

Rendered on the 3rd day of June, 2022.

. . . . . . . . . . . 

IAN A RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark

County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449, 

Springfield, Ohio 45502 

Attorney for Plaintiff-Appellee

 

ADAM JAMES STOUT, Atty. Reg. No. 0080334, 5335 Far Hills Avenue, Suite 109, 

Dayton, Ohio 45429

Attorney for Defendant-Appellant

. . . . . . . . . . . . .

EPLEY, J.
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{¶ 1} After a jury trial in the Clark County Court of Common Pleas, Jamal Fleming 

was found guilty of aggravated trafficking in drugs (methamphetamine), aggravated 

possession of drugs (methamphetamine), trafficking in cocaine, and possession of 

cocaine. After merging the possession and trafficking charges, the trial court imposed 

consecutive sentences totaling 30 months in prison.

{¶ 2} Fleming appeals from his conviction, claiming that the trial court erred in 

overruling his pretrial motion to suppress, that his convictions for aggravated trafficking in 

drugs and trafficking in cocaine were based on insufficient evidence and against the 

manifest weight of the evidence, and that the court erred in allowing the State to present 

Facebook Messenger texts at trial. For the following reasons, the trial court’s judgment 

will be reversed, and the matter will be remanded for resentencing on the possession 

offenses.

I. Facts and Procedural History

{¶ 3} On April 15, 2020, Springfield police officers observed Fleming driving his 

girlfriend’s Chevy Equinox. After confirming through LEADS (a state law enforcement 

database) that Fleming did not have a valid license, Officer Tim Melvin initiated a traffic 

stop and arrested Fleming on an active warrant for driving under suspension. The officer

searched Fleming and felt a hard crystal-like substance. A small baggie containing that 

substance fell down the leg of Fleming’s pants and onto the ground. Lab testing revealed 

that the baggie contained approximately 1.08 grams of methamphetamine and 0.33 

grams of cocaine.
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{¶ 4} As a result of a prior unrelated incident, Detective Justin Allender was 

investigating Fleming for drug trafficking. Allender became aware of a Facebook 

account with the profile name “Flipp Royal,” which he believed Fleming was using. 

Allender obtained a search warrant for the account and reviewed messages from March 

2020 which were indicative of drug trafficking in cocaine, crystal meth, heroin, fentanyl, 

and marijuana.

{¶ 5} Fleming was indicted on aggravated trafficking in drugs (methamphetamine), 

a fourth-degree felony; aggravated possession of drugs (methamphetamine), a fifthdegree felony; trafficking in cocaine, a fifth-degree felony; and possession of cocaine, a 

fifth-degree felony. The date of the offense for all charges was April 15, 2020.

{¶ 6} Fleming moved to suppress the evidence obtained as a result of his stop and 

seizure on April 15. He claimed that the police had lacked reasonable suspicion of 

criminal activity to justify the stop. After a hearing, the trial court overruled the motion.

{¶ 7} The matter proceeded to a one-day jury trial during which the State presented 

four witnesses and offered four exhibits, including Facebook messages from the account 

purportedly used by Fleming. Fleming testified in his own defense. The jury found 

Fleming guilty of each offense. The court merged the trafficking and possession 

offenses and sentenced him to 18 months in prison for aggravated trafficking in drugs 

(Count 1) and 12 months in prison for trafficking in cocaine (Count 3), to be served 

consecutively.

{¶ 8} Fleming appeals from his convictions, raising four assignments of error. We 

will address them in an order that facilitates our analysis.
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II. Motion to Suppress

{¶ 9} In his third assignment of error, Fleming claims that the trial court erred in 

finding that the Springfield police officer had reasonable suspicion to stop the vehicle that 

he was driving.

{¶ 10} The weight of the evidence and the credibility of the witnesses at a 

suppression hearing are primarily for the trial court to determine. State v. Brinkley, 105 

Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 58; State v. Moore, 2d Dist. 

Montgomery No. 29143, 2022-Ohio-283, ¶ 8. Accordingly, when we review suppression 

decisions, we must accept the trial court’s findings of fact if they are supported by 

competent, credible evidence. State v. Retherford, 93 Ohio App.3d 586, 592, 639 

N.E.2d 498 (2d Dist.1994). “Accepting those facts as true, we must independently 

determine as a matter of law, without deference to the trial court’s conclusion, whether 

they meet the applicable legal standard.” Id.

{¶ 11} The Fourth Amendment to the United States Constitution protects 

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 

S.Ct. 1868, 20 L.Ed.2d 889 (1968). “The touchstone of the Fourth Amendment is 

reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 

297 (1991). Whether a stop and search is reasonable under the Fourth Amendment 

depends upon the particular facts and circumstances, viewed objectively by examining 

the totality of the circumstances. See State v. Leak, 145 Ohio St.3d 165, 2016-Ohio154, 47 N.E.3d 821, ¶ 14.

{¶ 12} Police officers may briefly stop and temporarily detain individuals to 
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investigate possible criminal activity if the officers have a reasonable, articulable 

suspicion that criminal activity has occurred, is occurring, or is about to occur. Terry; 

State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8; State v. 

Laster, 2d Dist. Montgomery No. 27762, 2018-Ohio-3601, ¶ 49. Reasonable suspicion 

of any criminal offense, even a minor traffic-related offense, is sufficient to justify an 

investigatory detention. See, e.g., Mays at ¶ 8 (stop based on reasonable suspicion of 

a traffic violation is constitutionally valid).

{¶ 13} We determine the existence of reasonable suspicion by evaluating the 

totality of the circumstances, considering those circumstances “through the eyes of the 

reasonable and prudent police officer on the scene who must react to events as they 

unfold.” State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting 

State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991). “Although a mere 

‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires 

is considerably less than proof of wrongdoing by a preponderance of the evidence, and 

obviously less than is necessary for probable cause.” (Citation omitted.) Kansas v. 

Glover, __ U.S. __, 140 S.Ct. 1183, 1187, 206 L.Ed.2d 412 (2020).

{¶ 14} In this case, Officers Tim Melvin and Joshua Lish of the Springfield Police 

Department testified at the suppression hearing on behalf of the State. Their evidence 

established that on April 15, 2020, Officer Melvin ran the license plate of a black Chevy 

Equinox behind which he was driving on John Street in Springfield. The plate came back 

to a woman that Melvin knew to be Fleming’s girlfriend. Looking through the vehicle’s 

rear window, Officer Melvin saw that the driver was taller and had long dreadlocks, and 
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he was suspicious that Fleming might be the driver. (Officer Melvin had encountered 

Fleming a couple of times a month or two earlier.) Melvin ran Fleming’s information 

through LEADS and learned that Fleming did not have a valid driver’s license. Officer 

Melvin asked Officers Lish and Williams Sanders, who were nearby in another police 

vehicle, to confirm the identity of the driver.

{¶ 15} Officer Lish pulled his marked Chevy Tahoe to the right side of the Equinox, 

which was stopped at a red light. The vehicles were approximately three or four feet 

apart, and the weather was sunny and clear. When asked if the windows of the Equinox 

were tinted, Lish did not recall. Officer Melvin stated that the Tahoe probably sat a little 

higher than the Equinox.

{¶ 16} Officer Lish looked over at the Equinox for about five seconds and saw that 

Fleming was driving it. He recognized Fleming from their five or six prior interactions, of 

which three or four had occurred within the past year. Fleming looked the same as he 

had during those prior encounters. According to Officer Lish, Officer Sanders agreed 

with the identification. Officer Lish communicated to Officer Melvin that Fleming was 

driving the Equinox, and Officer Melvin initiated a traffic stop.

{¶ 17} As Officer Melvin approached Fleming, the dispatcher informed him that 

Fleming had an active warrant for driving under suspension. Melvin arrested Fleming on 

the warrant and conducted a search incident to the arrest. During the search, Melvin felt 

a hard rock substance between Fleming’s buttocks. The substance fell down Fleming’s 

pant leg to the ground. The officer saw that the object was a crystal-like hard substance.

{¶ 18} Fleming testified on his own behalf. He emphasized that the windows of 
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the Equinox were tinted, which would have made it difficult for the officers to view him 

inside the vehicle. He also testified that Officers Lish and Sanders were driving a police 

van, which sat almost two feet higher than the Equinox, and that Officer Sanders had 

previously confused him with his brother. As for the weather conditions, Fleming 

indicated that it had snowed earlier and the weather was starting to clear up. Fleming 

stated that he was “positive” that the officers could not have seen him.

{¶ 19} In denying Fleming’s motion to suppress, the trial court concluded that 

Officer Melvin had had reasonable suspicion of criminal activity to justify the traffic stop. 

It found, in part: “Officer Melvin made the traffic stop on his partial identification, the 

positive identification of two other officers, and the fact that the vehicle involved was 

registered to the defendant’s girlfriend, a fact that significantly narrowed the pool of 

potential drivers. The Court is not persuaded that the tinted windows or the point of view 

undermines their positive identification.”

{¶ 20} We find no error in the trial court’s ruling. All three Springfield police 

officers were familiar with Fleming from prior encounters. While driving along John 

Street, Officer Melvin discovered that the vehicle behind which he was driving was 

registered to Fleming’s girlfriend, and he saw that the silhouette of the driver resembled 

Fleming. Melvin ran Fleming’s information and learned that he did not have a valid 

driver’s license.

{¶ 21} Before initiating a stop of the vehicle, Officer Melvin asked Officer Lish to 

confirm the identification of the driver. Lish testified that he drove beside the Equinox 

and confirmed, based on prior encounters, that Fleming was the individual driving the 
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vehicle. Although Fleming disputed that Officer Lish had been able to make that 

identification due to the tint of the Equinox’s windows and the relative heights of the two 

vehicles, the trial court reasonably credited the officers’ testimony, and we defer to that 

determination.

{¶ 22} Under the collective knowledge doctrine, Officer Melvin was permitted to 

rely on the information provided to him by the other officers in helping to develop 

reasonable suspicion to justify a stop of Fleming’s vehicle. See State v. Ojezua, 2016-

Ohio-2659, 50 N.E.3d 14, ¶ 30 (2d Dist.); State v. Jones, 2d Dist. Montgomery No. 23926, 

2011-Ohio-1984, ¶ 20. Based on Officer Lish’s confirmatory identification and 

information that Fleming did not have a valid license, Officer Melvin was justified in pulling 

over the Equinox to investigate.

{¶ 23} After initiating the traffic stop, the dispatcher informed Officer Melvin that 

Fleming was subject to a valid warrant for driving under suspension. Officer Melvin was 

entitled to arrest Fleming for his outstanding warrant and conduct a search incident to

that arrest. “Pursuant to a search incident to arrest, the police may conduct a full search 

of the arrestee’s person, and that search is not limited to the discovery of weapons, but 

may include evidence of a crime as well.” State v. Jones, 112 Ohio App.3d 206, 215, 

678 N.E.2d 285 (2d Dist.1996.) Officer Melvin lawfully found the drugs during such a 

search. Accordingly, the trial court did not err in denying Fleming’s motion to suppress.

{¶ 24} Fleming’s third assignment of error is overruled. 

III. Sufficiency of the Evidence

{¶ 25} In his fourth assignment of error, Fleming claims that his convictions were 
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based on insufficient evidence.

{¶ 26} “A sufficiency of the evidence argument disputes whether the State has 

presented adequate evidence on each element of the offense to allow the case to go to 

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery 

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 

N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, viewing 

the evidence in a light most favorable to the State, could have found the essential 

elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio 

St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal 

unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.” Id.

{¶ 27} We note that, in his first assignment of error, Fleming has challenged the 

trial court’s admission of Facebook Messenger posts. In reviewing claims based on the 

sufficiency or manifest weight of the evidence, we are required to consider all of the 

evidence admitted at trial, regardless of whether it was admitted erroneously. State v. 

Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284; State v. Lawson, 2020-

Ohio-6852, 164 N.E.3d 1130, ¶ 86 (2d Dist.); State v. Rosales, 2d Dist. Montgomery No. 

27117, 2018-Ohio-197, ¶ 16, citing State v. Johnson, 2015-Ohio-5491, 55 N.E.3d 648, 

¶ 95 (2d Dist.). Accordingly, the outcome of that assignment of error has no bearing on 

whether the evidence at trial supported Fleming’s convictions.

{¶ 28} Fleming was convicted of two counts of trafficking in drugs, in violation of 

R.C. 2925.03(A)(2). That statute provides that “[n]o person shall knowingly * * * [p]repare 

for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled 
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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.”

{¶ 29} “Circumstantial evidence has long been used to successfully support drug 

trafficking convictions.” State v. Batdorf, 2d Dist. Greene No. 2020-CA-3, 2020-Ohio4396, ¶ 16, citing State v. Delaney, 2018-Ohio-727, 106 N.E.3d 920, ¶ 11 (9th Dist.). For 

example, “the convergence of illegal drugs, drug paraphernalia (including baggies), and 

large sums of cash permit a reasonable inference that a person was preparing drugs for 

shipment.” Id., quoting Delaney at ¶ 11; see also State v. Rutledge, 6th Dist. Lucas No. 

L-12-1043, 2013-Ohio-1482, ¶ 15. Circumstantial evidence and direct evidence have 

the same probative value. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), 

paragraph one of the syllabus.

{¶ 30} At trial, the State presented the testimony of four witnesses: Officers Melvin 

and Lish, Detective Allender, and Megan Snyder, a forensic scientist with the Ohio Bureau 

of Criminal Investigations (BCI). Officers Melvin’s and Lish’s testimony about their 

actions leading to the traffic stop was similar to their suppression hearing testimony. 

Officer Melvin added that he suspected that the substance in the baggie contained 

methamphetamine and he sent it to BCI for testing. He also testified that Fleming made 

unsolicited statements about the baggie after it fell out of his pant leg. Fleming reportedly 

said, “Okay, you got me, man. I’m a user. I’m just a user. That was my personal use. 

You got me.” 

{¶ 31} Officer Lish provided additional testimony that he and Officer Sanders 
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circled around and assisted with the traffic stop. Lish saw Officer Melvin search Fleming 

and the baggie of drugs fall out of Fleming’s pant leg. After the drugs fell to the ground, 

Lish heard Fleming volunteer something along the lines of “That’s something that I use.” 

Both Officer Melvin and Officer Lish identified Fleming as the individual who was stopped 

and searched on April 15, 2020.

{¶ 32} Snyder testified that one item was submitted to BCI for analysis, but when 

she opened it, she noticed two different types of substances inside and, therefore, 

analyzed them separately. She determined that the crystalline substance weighed 1.08 

grams, plus or minus 0.04 grams, and contained methamphetamine, a Schedule II 

controlled substance. That amount was less than the bulk amount of methamphetamine. 

The second item, an off-white solid substance, weighed 0.33 grams, plus or minus 0.04 

grams, and contained cocaine.

{¶ 33} Detective Allender, a member of the Springfield Police Department Drug 

Unit, testified that he was trained on cell phone evidence recovery and the applications 

that are found on cell phones. He also stated that he was experienced in reviewing social 

media data to help with drug trafficking investigations. In March 2020, another detective 

learned that a person using a Facebook account with the profile name “Flipp Royal” had 

sold drugs to a homicide victim, and the detective passed the information along to 

Detective Allender for further investigation of the drug activity. Allender was familiar with 

Fleming and knew that “Flipp Royal” was a Facebook account that he likely was using.

{¶ 34} Detective Allender looked at profile photographs associated with the “Flipp

Royal” account and recognized Fleming in those photographs. The account also listed 
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a date of birth, which was the same as Fleming’s. After looking at conversations 

associated with the “Flipp Royal” account, Allender obtained a search warrant to search 

through the account. While waiting for a response from Facebook, Detective Allender 

learned that Fleming had been arrested with suspected drugs on his person on April 15.

{¶ 35} Detective Allender later received approximately 1,300 pages of data from 

Facebook. While going through those communications, Allender recognized the names 

of several drug users and drug dealers in the Springfield area, including Jeremy Barclay

and Harley Leigh. He stated that the messages discussed multiple different types of 

drugs being sold and Flipp Royal was selling ounces and even grams of drugs. 

Detective Allender testified that a gram of methamphetamine was “probably just the 

standard user amount. It might be less,” and that drug users often requested drugs in 

terms of dollar amounts, which would break down into tenths of a gram. The detective 

stated that it is common for drug traffickers to insist that drugs found on them are for their 

own personal use.

{¶ 36} Detective Allender was asked about two sets of Facebook Messenger 

exchanges involving Flipp Royal. The first set (State’s Exhibit 3) consisted of a series of 

messages between Barclay and Flipp Royal between March 16 and March 29, 2020. 

The State focused on communications on March 22, when Barclay reached out to Flipp 

Royal and said that he needed “Hard. Ice. N boi,” which Detective Allender translated to 

mean crack, crystal meth, and heroin or fentanyl. Flipp Royal indicated that he had them 

and asked how much Barclay wanted. Barclay replied, “Whats the ice look line n whats 

the ticket?” meaning what was the quality of the crystal meth and how much did it cost. 
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Flipp Royal said that he had enough and the quality was “fire,” meaning more pure or 

excellent. Detective Allender testified that the comment “they say its fire” implied that 

Fleming relied on others to vouch for the quality of the drugs.

{¶ 37} Flipp Royal and Barclay had additional exchanges concerning quantities, 

price, and where to meet. Flipp Royal agreed to bring “2 gs” of marijuana, but Barclay 

later complained that he only had received one. Over the course of the day, the men 

communicated about additional drug transactions. Fleming offered to sell Barclay 

powder cocaine for $65, saying it was “fire.” In other communications, Barclay stated he 

needed “boi” and “weed.” Some of Flipp Royal’s additional messages expressed anger 

that he had obtained drugs for Barclay from his supplier, but Barclay had not bought them. 

During this exchange, Flipp Royal pointed out to Barclay that he (Barclay) said he had “a 

dude to test it u was waiting to cum back.”

{¶ 38} On March 24, 2020, Flipp Royal had a series of Facebook Messenger 

exchanges with Leigh. (State’s Exhibit 4.) In those messages, Leigh negotiated to 

purchase drugs, including cocaine, from Flipp Royal to sell to other people. Several of 

the messages concerned small quantities of drugs. Leigh asked Flipp Royal to bring the 

drugs to her.

{¶ 39} On cross-examination, Detective Allender acknowledged that State’s 

Exhibit 3 concerned messages that began on March 15, approximately a month prior to 

the traffic stop in which Fleming was found with drugs. When asked if drug trafficking 

communications planned that far ahead, the detective responded that it could for large 

amounts, but he had “never seen it” and it was “not likely” for the small quantities alleged 
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here. Detective Allender agreed that some of the back-and-forth between Flipp Royal 

and Barclay related to claims that Flipp Royal had not provided what Barclay had asked 

for. Allender indicated that he had requested Facebook messages before the April 15 

incident, and the drugs discussed in the messages likely would have been gone by April 

15.

{¶ 40} Detective Allender did not know Fleming to be a drug user based on his 

prior experience with him. Contrastingly, Allender could not say that Fleming was not a 

drug user.

{¶ 41} Fleming testified on his own behalf. He stated that he had access to the

Flipp Royal account, but he had not used it, and three other individuals also had access 

to the account (identified on cross-examination as his two brothers and an ex-girlfriend). 

Fleming denied putting photos on the account or having pictures of him placed on the 

account.

{¶ 42} Addressing the events of April 15, 2020, Fleming stated that he had been

driving to his mother’s home when he was pulled over by the police. He denied that he 

had been going there with the intention of buying or selling drugs. Fleming testified that 

he had been a drug user since he was a juvenile, but he had been trying to “dial back on 

that” since his daughter was born, which was around the time the traffic stop occurred. 

He admitted to the officers that he was a drug user.

{¶ 43} On cross-examination, the State showed Fleming State’s Exhibit 4, which 

began with some messages exchanged between Flipp Royal and Erin Murray, whom 

Fleming identified as the mother of his child. In those messages, Murray referred to Flipp 
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Royal as “baby.” Fleming begrudgingly identified the other individuals who had access 

to the Flipp Royal account and said that Murray would not have referred to the other users 

as “baby.”

{¶ 44} Fleming admitted that he had possessed methamphetamine and cocaine 

when he was stopped on April 15, 2020. He denied that he used the Flipp Royal account 

for drug trafficking. Fleming acknowledged, however, that he knew of Barclay and Leigh. 

{¶ 45} In challenging his convictions on appeal, Fleming emphasizes that the 

Facebook messages were from March 2020 and were unlikely to refer to the drugs he 

possessed on April 15, 2020. He further notes that the amount of drugs found on him 

on April 15 was consistent with personal use. He thus argues that the State did not 

sufficiently connect the Facebook statements to the April 15 traffic stop to prove that the 

drugs found on April 15 were for sale.

{¶ 46} In this case, the evidence at trial demonstrated that Fleming had possessed 

methamphetamine and cocaine during an investigatory traffic stop on April 15, 2020. 

The officers and Fleming all agreed that Fleming was pulled over on April 15, 2020, and 

that drugs fell out of his pant leg while he was being searched. Laboratory analysis 

identified the suspected drugs as cocaine and methamphetamine. The officers testified 

that Fleming had claimed to possess the drugs for personal use, and Fleming admitted 

at trial to telling the officers that he was a drug user.

{¶ 47} To prove that Fleming was trafficking those drugs and not merely in 

possession of them, the State relied primarily on Facebook Messenger communications 

involving “Flipp Royal” and the testimony of Detective Allender. On appeal, the State 
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asserts that Detective Allender was able to identify Fleming as the owner of the Flipp 

Royal account, and that the Facebook text messages showed that Fleming regularly sold 

drugs, including methamphetamine and cocaine, in varying amounts, including small 

personal-use quantities. The State continues: “Defendant was found to be in possession 

of methamphetamine and cocaine during the traffic stop, and a reasonable jury could find 

that he was trafficking it based on the Facebook messages. * * * Defendant did not merely 

possess it for personal use, as the Facebook messages indicated he did not use or test 

drugs himself.”

{¶ 48} We agree with the State that the jury could have reasonably concluded that 

Fleming sent Facebook Messenger texts under the profile name “Flipp Royal.” Detective 

Allender was familiar with Fleming and recognized Fleming in the profile photographs on 

the Flipp Royal account. The birthday (month and day) on the account was the same as 

Fleming’s birthday. Fleming acknowledged that he had access to the account, although 

he claimed not to use it. When pressed, Fleming identified his brothers and an exgirlfriend as the other individuals with access to the account, and he indicated that the 

mother of his child, who had sent a message to Flipp Royal and referred to him as “baby,” 

would not have used that term of endearment with the others. The evidence supported 

a reasonable conclusion that Fleming was the individual posting messages to the 

account.

{¶ 49} The Facebook Messenger texts, as interpreted by Detective Allender, 

consisted of communications where Flipp Royal/Fleming arranged to sell drugs to Barclay 

and Leigh in March 2020. On March 22, Barclay contacted Fleming about buying crack, 
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crystal meth, and heroin or fentanyl; Fleming made arrangements to sell drugs to Barclay

and to bring the drugs to him. Fleming and Leigh also exchanged text messages on 

several dates in late March where Leigh arranged to buy drugs from Fleming. The 

State’s exhibits clearly established that Fleming engaged in drug trafficking in March 

2020, including the sale of small amounts of drugs, and that he met Barclay and Leigh at 

different locations to consummate the sales.

{¶ 50} The State further asserts that two statements in State’s Exhibit 3 –

Fleming’s statement that someone else said the drugs were “fire” and his statement that 

Barclay said he had a “dude to test it” – demonstrated that Fleming was not a drug user. 

Detective Allender testified that the message that “they say it’s fire” implied that Fleming 

depended on others to vouch for the quality of the drugs. We disagree with the State’s 

contention.

{¶ 51} Reading the text messages in context, it is apparent that Fleming purchased 

drugs from a supplier to sell to Barclay. Fleming apparently relied on his “people’s” 

statements concerning the quality of those drugs, and Barclay expressed a desire to have 

the drugs tested with his own expert. None of the messages indicated whether Fleming 

was or was not a drug user generally, and although Detective Allender testified that he 

did not know Fleming to be a drug user, he also testified that he could not say that Fleming 

was not. The jury could not have reasonably inferred, based on the State’s evidence, 

that Fleming did not use drugs, particularly on April 15, 2020.

{¶ 52} Construing the evidence in the light most favorable to the State, as we are 

required to do with a sufficiency challenge, we cannot conclude that the State’s evidence 
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was sufficient to support the jury’s conclusion that Fleming engaged in drug trafficking on 

April 15, 2020. The State’s evidence established that Fleming was in possession of a 

single baggie containing a small amount of drugs when he was pulled over by a 

Springfield police officer on April 15th. Nothing in the circumstances surrounding the 

April 15, 2020 incident suggested that Fleming was engaged in drug trafficking. There 

was no evidence that the police officers found money, drug packaging materials (such as 

baggies), scales, or any other items indicative of drug trafficking on Fleming’s person or 

in the Equinox.

{¶ 53} The State’s additional evidence, primarily in the form of the Facebook 

Messenger texts, established that, up to two weeks prior to date at issue, Fleming was 

actively engaged in drug trafficking. His drug marketing activities included the sale of 

methamphetamine and cocaine, even in small amounts, and that he would drive to 

different locations to complete the transactions. However, as acknowledged by 

Detective Allender, it was highly unlikely that the March 2020 messages related to the

small amount of drugs in Fleming’s possession on April 15, 2020, and the messages 

themselves reflected completed transactions with Barclay and Leigh. None of the 

Facebook Messenger communications concerned or even suggested a future sale of 

drugs on April 15. Furthermore, the Facebook Messenger texts did not indicate that 

Fleming engaged in specific conduct while engaged in drug trafficking (a modus operandi) 

such that Fleming’s behavior on April 15 could be linked to his prior drug trafficking.

{¶ 54} The State’s case boiled down to evidence that Fleming was a drug dealer,

and because he was a drug dealer, he must have been trafficking the small amount of 
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drugs with which he was found on April 15, 2020. Indeed, in its closing argument, the 

prosecutor addressed the trafficking charges, saying:

* * * One of the ways that a person can traffic drugs is to transport those 

drugs. But how do we know that he’s going to sell them? We know that 

from his conversations in prior sales with known drug users and dealers 

within the City of Springfield. The defendant traffics and sells drugs. 

That’s what he does, and that’s what his Facebook messages show; and 

he can sit up there after hearing all of the testimony and tell you, “Well, I 

didn’t send those messages” * * * but Detective Allender went through that 

1,300 pages of Facebook records, and he saw that that account belongs to 

Jamal Fleming. * * * So it’s my argument, ladies and gentleman, that the 

defendant was transporting these drugs to eventually prepare them for sale. 

Knowing that eventually he would sell them.

In her rebuttal closing argument, the prosecutor again stated that “those Facebook 

messages show that he had been ongoing engaging in trafficking behavior, and there is 

no reason to think that in a couple of weeks after these messages that that behavior had 

changed in any way.” The prosecutor added that the messages showed he was not a 

drug user, because he did not personally attest to the quality of the drugs he sold.

{¶ 55} While it is possible that Fleming was transporting drugs on April 15, 2020, 

knowing that the drugs were intended for sale or resale by him or someone else, the jury 

could not have reasonably drawn the inference that Fleming actually was engaged in drug 

trafficking on April 15, 2020 based on the evidence before us. There was simply no 
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evidence to support a conclusion that, on April 15 specifically, Fleming was transporting 

the drugs at issue to traffic them. We therefore conclude that Fleming’s convictions for 

trafficking in cocaine and aggravated trafficking in drugs (methamphetamine) were based 

on insufficient evidence. Accordingly, his fourth assignment of error is sustained.

{¶ 56} In light of our disposition of the fourth assignment of error, Fleming’s first 

assignment of error (challenging the trial court’s admission of the Facebook Messenger 

communications) and his second assignment of error (raising manifest weight of the 

evidence) are overruled as moot.

{¶ 57} Fleming has not challenged the jury’s verdicts on the two counts related to 

possession of cocaine and aggravated possession of drugs (methamphetamine), and 

they are unaffected by our ruling on the trafficking offenses. Accordingly, the matter 

must be remanded for resentencing on those counts.

V. Conclusion

{¶ 58} The trial court’s judgment will be reversed, and the matter will be remanded 

for resentencing on possession of cocaine and aggravated possession of drugs 

(methamphetamine).

. . . . . . . . . . . . .

DONOVAN, J. and LEWIS, J., concur. 

Copies sent to:

Ian A. Richardson

Adam James Stout

Hon. Douglas M. Rastatter