[Cite as State v. Smith, 2015-Ohio-2977.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HARDIN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 6-14-14 

 v. 

ROBY LYNN SMITH, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Hardin County Common Pleas Court 

Trial Court No. CRI-2014-2026 

Judgment Affirmed 

Date of Decision: July 27, 2015 

 

APPEARANCES: 

 

Michael B. Kelley for Appellant 

 Jason M. Miller for Appellee 
Case No. 6-14-14 

-2- 

SHAW, J. 

{¶1} Defendant-appellant Roby Lynn Smith (“Smith”) appeals the October 

6, 2014, judgment of the Hardin County Common Pleas Court sentencing Smith to 

12 months in prison after Smith was found guilty in a jury trial of Illegal 

Cultivation of Marihuana in the Vicinity of a School or in the Vicinity of a 

Juvenile in violation of R.C. 2925.04(A),(C)(5)(c), a felony of the fourth degree. 

For the reasons that follow we affirm the judgment of the trial court. 

{¶2} On February 25, 2014, Smith was indicted for one count of Illegal 

Cultivation of Marihuana in the Vicinity of a School or in the Vicinity of a 

Juvenile in violation of R.C. 2925.04(A),(C)(5)(c), a felony of the fourth degree. 

{¶3} On March 5, 2014, Smith made an initial appearance and attorney 

Michael Short was appointed to represent him. (Doc. No. 5). On March 10, 2014, 

Smith was arraigned and he pled not guilty to the charge. (Doc. No. 12). 

{¶4} On April 30, 2014, attorney Short filed a written request to withdraw 

as counsel because Smith had “indicated he does not trust counsel to file motions 

and conduct a jury trial. Counsel states that the attorney-client relationship is 

irretrievably broken, and counsel cannot adequately represent the defendant.” 

(Doc. No. 15). 

{¶5} On May 5, 2014, a hearing was held on attorney Short’s motion to 

withdraw as counsel. Smith was sworn in at the hearing and presented testimony 
Case No. 6-14-14 

-3- 

on his position that he would rather represent himself than have Short represent 

him. (Doc. No. 16). Despite Smith’s indication that he would rather proceed pro 

se, the trial court found attorney Short’s motion not well-taken, and ordered Short 

to make himself available to advise Smith in his defense and to prepare for trial to 

the extent that Smith would cooperate. (Doc. No. 16). 

{¶6} On May 9, 2014, Smith, acting pro se, filed a motion to suppress 

evidence, arguing that any statements he made to the police in interviews should 

be suppressed, and that any property or testimony pertaining to him obtained as 

the “fruit of the illegal interrogation” that occurred on November 14, 2013, should 

be suppressed. (Doc. No. 19). 

{¶7} On May 20, 2014, the State filed a response to Smith’s motion to 

suppress, arguing that the interview recordings established that Smith’s statements 

to officers were voluntary and that the interview recordings showed no coercive 

practices. (Doc. No. 24). 

{¶8} On May 21, 2014, the trial court held a pretrial hearing at which 

attorney Short orally renewed his motion to withdraw as counsel. Smith did not 

object to his attorney’s motion and the trial court released Short from further 

representation. (Doc. No. 27). The court then appointed attorney Todd Workman 

to represent Smith, who was already present in court and accepted the 

appointment. (Id.) 
Case No. 6-14-14 

-4- 

{¶9} On July 28, 2014, another pretrial hearing was held. At that hearing, 

Smith’s counsel moved to withdraw Smith’s suppression motion, along with other 

motions Smith had filed pro se before attorney Workman represented him.1

 Plea 

negotiations were then put on the record at the hearing; however, Smith indicated 

he would prefer to go to trial and stand by his not guilty plea, so the case was set 

for trial. (Doc. No. 44). 

{¶10} On August 13, 2014, another pretrial hearing was held. At the 

hearing, another plea offer was discussed and the offer was placed on the record. 

Smith indicated that he still wished to proceed with trial. At the time of that 

hearing, Smith tested positive for drugs so his bond was revoked. (Doc. No. 47). 

{¶11} On August 18, 2014, Smith’s second attorney, Todd Workman, filed 

a written request to withdraw as Smith’s counsel, citing that Smith no longer 

wished for Workman to represent him. (Doc. No. 53). 

{¶12} On August 19, 2014, the case came on for the scheduled trial. Prior 

to the trial’s commencement, the court inquired into attorney Workman’s motion 

to withdraw as counsel. Workman indicated that he filed the motion at Smith’s 

request. Smith stated that he wished to proceed pro se, and have attorney 

Workman as his advisor for the trial. The court then conducted a dialogue with 

Smith to determine whether he understood the rights he was waiving. Smith 

 

1

 As none of these other motions are pertinent to this appeal or were further litigated we will not further 

mention them. 
Case No. 6-14-14 

-5- 

indicated that he understood, and that he wished to proceed pro se. Smith signed a 

written waiver of counsel at that point, indicating that he was knowingly, 

intelligently, and voluntarily waving counsel. 

{¶13} The case then proceeded to a jury trial. The State called four 

witnesses and introduced numerous exhibits including an interview of Smith 

wherein Smith admitted to growing three marihuana plants in his basement. Smith 

called one witness on his behalf, and the case was then submitted to the jury. The 

jury found Smith guilty of the sole count against him. Sentencing was set for a 

later date. 

{¶14} On October 1, 2014, the case proceeded to sentencing. The State 

requested that Smith be placed on community control, and Smith argued for 

leniency. Citing, inter alia, Smith’s prior criminal record, which included two 

felony convictions, the trial court sentenced Smith to serve 12 months in prison. A 

judgment entry memorializing Smith’s sentence was filed October 6, 2014. 

{¶15} It is from this judgment that Smith appeals, asserting the following 

assignments of error for our review. 

ASSIGNMENT OF ERROR 1 

THE TRIAL COURT ERRED WHEN IT ACCEPTED THE 

JURY’S GUILTY VERDICT WHICH WAS CLEARLY 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 

ASSIGNMENT OF ERROR 2 

THE TRIAL COURT ABUSED ITS DISCRETION AND 

COMMITTED PLAIN ERROR BY FAILING TO EXCLUDE 
Case No. 6-14-14 

-6- 

EVIDENCE AT SENTENCING THAT APPELLANT HAD 

TOLD HIS ATTORNEY THAT HE WOULD NOT COMPLY 

WITH COMMUNITY CONTROL, AS THAT EVIDENCE 

WAS A COMMUNICATION DISCLOSED IN AND 

INTENDED STRICTLY FOR NEGOTIATIONS, AND ITS 

PROBATIVE VALUE WAS SUBSTANTIALLY 

OUTWEIGHED BY THE DANGER OF UNFAIR 

PREJUDICE. 

ASSIGNMENT OF ERROR 3 

THE TRIAL COURT ERRED, AND ABUSED ITS 

DISCRETION, WHEN IT DENIED APPELLANT’S VERBAL 

MOTION FOR A SUPPRESSION HEARING, BECAUSE 

UNDER THE CIRCUMSTANCES, SUCH A HEARING 

SHOULD HAVE BEEN ALLOWED IN THE INTEREST OF 

JUSTICE. 

ASSIGNMENT OF ERROR 4 

THE TRIAL COURT ERRED, AND ABUSED ITS 

DISCRETION, WHEN IT ALLOWED IMPROPER 

EVIDENCE TO BE ADMITTED, AND/OR FAILED TO 

DECLARE A MISTRIAL FOLLOWING THE 

PROSECUTOR’S STATEMENT TO APPELLANT’S 

WITNESS STEPHANIE RITCHIE, WHICH APPELLANT 

PERCEIVED AS SUCH A THREAT TO HIS WITNESS THAT 

SHE WAS EFFECTIVELY MADE UNAVAILABLE TO 

TESTIFY AS A RESULT OF THE PROSECUTOR’S 

STATEMENT, AND WHICH RESULTED IN DENIAL OF 

APPELLANT’S RIGHT TO A FAIR TRIAL. 

ASSIGNMENT OF ERROR 5 

THE TRIAL COURT ERRED, AND ABUSED ITS 

DISCRETION, WHEN IT ALLOWED IMPROPER 

EVIDENCE TO BE ADMITTED, AND/OR FAILED TO 

DECLARE A MISTRIAL FOLLOWING THE 

PROSECUTOR’S CLOSING STATEMENT WHICH 

IMPROPERLY CITED FACTS NOT IN EVIDENCE, AND 

WHICH RESULTED IN DENIAL OF APPELLANT’S RIGHT 

TO A FAIR TRIAL. 
Case No. 6-14-14 

-7- 

ASSIGNMENT OF ERROR 6 

THE TRIAL COURT ERRED, AND ABUSED ITS 

DISCRETION, WHEN IT RULED FOR THE STATE AND 

AGAINST APPELLANT ON NUMEROUS OBJECTIONS 

WHEN APPELLANT WAS ATTEMPTING TO ESTABLISH 

THE AFFIRMATIVE DEFENSE OF ‘PERSONAL USE’ AS 

PROVIDED BY 292[5].04(F). 

ASSIGNMENT OF ERROR 7 

APPELLANT’S CONVICTION WAS ERROR AS IT WAS 

[BASED] UPON INSUFFICIENT EVIDENCE. 

{¶16} We elect to address some of the assignments of error together, and 

we elect to address the assignments of error out of the order in which they were 

raised. 

Third Assignment of Error

{¶17} In his third assignment of error, Smith argues that the trial court erred 

in denying his oral motion for a suppression hearing that was made on the day of 

his jury trial. Specifically, Smith contends that while his motion was untimely, the 

trial court should have granted it in the interest of justice, and thus the trial court 

abused its discretion in denying Smith’s oral motion for a hearing. 

{¶18} Smith initially filed a timely suppression motion pro se, on May 9, 

2014. In that motion he argued that statements he made to police officers in the 

interviews conducted while the search warrant was executed at his residence 

should have been suppressed. Later, after Smith’s first counsel had withdrawn at 

Smith’s request, Smith had new counsel appointed and Smith’s second counsel 
Case No. 6-14-14 

-8- 

withdrew Smith’s suppression motion, along with other motions Smith had filed 

pro se. 

{¶19} In withdrawing the suppression motion, Smith’s attorney stated that 

he could find no legal grounds or meritorious arguments to support the 

suppression motion filed by Smith. Smith’s counsel then requested that the trial 

court address Smith personally regarding the withdrawal of the suppression 

motion, as Smith had filed it pro se, to ensure that he understood what was 

happening. At that time, the trial court conducted the following dialogue with 

Smith. 

[COURT]: * * * [T]here’s a motion May 9th the Defendant, pro 

se, filed to suppress * * * So Mr. Smith, do you understand what 

your attorney’s saying? 

[SMITH]: Yes I do Your Honor. 

[COURT]: So I’m gonna ask you specifically, ‘cause you have 

advice of counsel, do you need to talk with Mr. Workman 

anymore? 

[SMITH]: No. 

[COURT]: Alright. Concerning the motion that you personally 

filed on May 9th of this year to suppress, do you wish to dismiss 

that motion? 

[SMITH]: Yes Your Honor. 

* * * 

[COURT]: Alright. The Court will put on a motion—or entries 

finding that those three motions have been dismissed. The 
Case No. 6-14-14 

-9- 

responses that have been filed in each of those will be considered 

then no longer relevant. * * * 

(July 28, 2014, Tr. at 3-5). A journal entry formally dismissing the suppression 

motion was filed July 29, 2014. (Doc. No. 44). 

{¶20} When Smith’s case came on for trial on August 19, 2014, Smith 

indicated that he wished to proceed pro se and dismiss his second attorney and 

keep him as stand-by counsel only. After the trial court inquired into the matter 

and Smith signed a written waiver of counsel, the following dialogue occurred 

between Smith and the trial court. 

[SMITH]: Before we go any further Your Honor, I had a[n] 

issue to discuss. My motion to suppress evidence seems to have 

been revoked, I believe is the word, Mr. Workman told me. I 

had no idea that was happening. I would have liked to have had 

that motion heard. 

[COURT]: That was done in open court in the courtroom while 

we were all present. 

[SMITH]: My impression and Ms. Ritchie over here was 

present and heard the same thing I did was that my other two 

motions were being discarded willingly. I had no clue that was 

part of the deal. I was told two of my motions and the 

Prosecutor’s motion were [--]

[COURT]: Can you speak to that Mr. Workman, or 

[prosecutor], perhaps, you can. I don’t have the file. 

[PROSECUTOR]: Your Honor this is the time of trial, we’re 

not here to discuss pretrial motion issues. They were all 

withdrawn. The State’s prepared to go forth to trial. * * * 
Case No. 6-14-14 

-10- 

[COURT]: Those were all done, Mr., we did, remember I’m 

very careful to put things on the record to make sure that 

everybody knows what’s happening, and we brought you in 

when we talked plea negotiations. * * * And I do remember, 

specifically, that those motions were addressed on the record. 

Alright. Anything further? 

[SMITH]: No Your Honor. 

(Aug. 19, 2014, Tr. at 17-19). 

{¶21} On appeal Smith now argues that the trial court abused its discretion 

in denying his oral motion for a suppression hearing on the day of trial. Smith 

cites no law supporting his argument, and actually concedes that Crim.R. 12(D) 

and (H) generally require that all pre-trial motions have to be made within 35 days 

of arraignment or 7 days before trial, whichever is earlier. Smith argues instead 

that in the interests of justice, the trial court should have held a hearing on his 

suppression motion. 

{¶22} As the record makes clear, despite Smith’s claims on the day of trial, 

he was specifically addressed by the trial court at a prior pretrial hearing and 

Smith unequivocally indicated his desire to withdraw his motion to suppress both 

through his counsel and by himself personally. He explicitly stated when he was 

asked by the trial court if he wanted to dismiss his suppression motion that he did 

want to dismiss that motion. Thus on the basis of the record before us, we cannot 

find that the trial court erred in denying Smith’s oral motion made on the day of 
Case No. 6-14-14 

-11- 

trial for a suppression hearing.2

 Accordingly, Smith’s third assignment of error is 

overruled. 

First and Seventh Assignments of Error

{¶23} In Smith’s seventh assignment of error he argues that there was 

insufficient evidence to convict him of Illegal Cultivation of Marihuana in the 

Vicinity of a School or in the Vicinity of a Juvenile. In his first assignment of 

error, he argues that his conviction was against the manifest weight of the 

evidence. 

{¶24} Whether there is legally sufficient evidence to sustain a verdict is a 

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency 

is a test of adequacy. Id. When an appellate court reviews a record upon a 

sufficiency challenge, “ ‘the relevant inquiry is whether, after viewing the 

evidence in a light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime proven beyond a reasonable 

doubt.’ ” State v. Leonard, 104 Ohio St.3d 54, 2004–Ohio–6235, ¶ 

77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the 

syllabus. 

 

2

 Furthermore, notwithstanding the timing and Smith’s clear withdrawal of his suppression motion, there is 

no indication that Smith had any remotely meritorious arguments to make in support of any suppression 

motion. His attorney stated as much at the pretrial hearing where the motion was dismissed, and the 

recordings of Smith’s interviews with the police, which he sought to suppress, clearly indicated that Smith 

was mirandized and informed of his rights and that he willingly spoke with the police. 
Case No. 6-14-14 

-12- 

{¶25} The Ohio Supreme Court has “carefully distinguished the terms 

‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and 

‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’ ” Eastley v. 

Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, ¶ 10, quoting State v. Thompkins,

78 Ohio St.3d 380 (1997), paragraph two of the syllabus. 

{¶26} Unlike our review of the sufficiency of the evidence, an appellate 

court’s function when reviewing the weight of the evidence is to determine 

whether the greater amount of credible evidence supports the verdict. Thompkins, 

supra, at 387. In reviewing whether the trial court’s judgment was against the 

weight of the evidence, the appellate court sits as a “thirteenth juror” and examines 

the conflicting testimony. Id. In doing so, this Court must review the entire 

record, weigh the evidence and all of the reasonable inferences, consider the 

credibility of witnesses, and determine whether in resolving conflicts in the 

evidence, the factfinder “ ‘clearly lost its way and created such a manifest 

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

ordered.’ ” State v. Andrews, 3d Dist. Allen No. 1–05–70, 2006–Ohio–3764, ¶ 30, 

quoting Thompkins at 387. 

{¶27} In this case, Smith was convicted of Illegal Cultivation of Marihuana 

in the Vicinity of a School or in the Vicinity of a Juvenile in violation of R.C. 

2925.04(A),(C)(5)(c), which reads, 
Case No. 6-14-14 

-13- 

(A) No person shall knowingly cultivate marihuana or 

knowingly manufacture or otherwise engage in any part of the 

production of a controlled substance. 

* * * 

(C)(1) * * * [W]hoever commits a violation of division (A) of this 

section that involves marihuana is guilty of illegal cultivation of 

marihuana. 

* * * 

(5) If the drug involved in the violation is marihuana, the penalty 

for the offense shall be determined as follows: 

* * * 

(c) If the amount of marihuana involved equals or exceeds two 

hundred grams but is less than one thousand grams, illegal 

cultivation of marihuana is a felony of the fifth degree or, if the 

offense was committed in the vicinity of a school or in the 

vicinity of a juvenile, a felony of the fourth degree, and division 

(B) of section 2929.13 of the Revised Code applies in determining 

whether to impose a prison term on the offender. 

{¶28} Several of the pertinent words and phrases in the statute above have 

been further defined in the Ohio Revised Code. Pursuant to R.C. 2925.01(F), “ 

‘[c]ultivate’ includes planting, watering, fertilizing, or tilling.” 

{¶29} According to R.C. 2925.01(P), an offense is “committed in the 

vicinity of a school” if the offender commits the offense “within one thousand feet 

of the boundaries of any school premises, regardless of whether the offender 

knows the offense is being committed * * * within one thousand feet of the 

boundaries of any school premises.” 
Case No. 6-14-14 

-14- 

{¶30} According to R.C. 2925.01(BB), an offense is “committed in the 

vicinity of a juvenile” if the offender commits the offense “within one hundred 

feet of a juvenile * * * regardless of whether the offender knows the age of the 

juvenile, whether the offender knows the offense is being committed within one 

hundred feet of or within view of the juvenile, or whether the juvenile actually 

views the commission of the offense.” 

{¶31} At trial, the State called four witnesses in order to convict Smith of 

Illegal Cultivation of Marihuana in the Vicinity of a School or in the Vicinity of a 

Juvenile. The first witness the State called was Detective Mike Conley of the 

Hardin County Sheriff’s office, who was assigned to the Hardin County Crime 

Task Force. (Tr. at 2). Detective Conley testified that he was involved in 

investigating the case against Smith, and that during his investigation controlled 

buys had been conducted that traced back to Smith’s residence at 201 South High 

Street in Kenton. (Id. at 3-4). Detective Conley testified that he acquired a search 

warrant to search Smith’s residence, and he was part of the team that executed the 

search warrant. (Id. at 4). 

{¶32} Detective Conley testified that when they executed the search 

warrant at Smith’s residence, Smith was present, as was Smith’s girlfriend and her 

child. Detective Conley testified that through the course of his investigation he 

learned that three children were actually residing at the residence, though only one 
Case No. 6-14-14 

-15- 

was present at the time the search warrant was executed.3

 (Tr. at 5). Detective 

Conley testified that Smith’s residence was also approximately 740 feet from 

Lifeworks, a nearby school. (Id. at 6). 

{¶33} Detective Conley testified that he photographed the exterior and 

interior of the residence, that he collected evidence, logged that evidence, and did 

an inventory sheet of the evidence collected. (Tr. at 5-10). Detective Conley 

testified that while searching the residence, he located various pieces of drug 

paraphernalia and plastic baggies that were later found to contain marihuana. (Id. 

at 10-14). 

{¶34} Detective Conley testified that in the basement of the residence, there 

was a small “boxed off room.” (Tr. at 20-21). The boxed off room was framed by 

wood, closed with cardboard and sealed with spray foam. (Id. at 20-21). Pictures 

of the boxed off room were introduced into evidence. (Id.) Inside the small boxed 

off room were three growing marihuana plants. (Id.) Photographs of the plants as 

they were found were also introduced into evidence. (Id.) 

{¶35} Detective Conley testified that there were exhaust pipes leading from 

the small boxed off room. He also testified that in the basement, there were grow 

lights, potting soil, pruning shears, plastic cups (used to start growing the plants), 

pipes, a rolling machine, a digital scale, stems and marijuana debris. (Tr. at 20-

 

3

 A photograph of the mother, Smith’s girlfriend, holding the young child at the scene on the day of the 

warrant’s execution was introduced into evidence. 
Case No. 6-14-14 

-16- 

30). Photographs of all these items were introduced into evidence. Detective 

Conley also testified that $129 dollars was found on Smith, and that of that money, 

$125 of it matched money that had been used in a controlled drug buy the day 

prior. (Id. at 32). 

{¶36} The State next called Wade Melton, Director of Hardin County 

Juvenile Court and Hardin Community School, who corroborated that the nearby 

school, Lifeworks, which Detective Conley had testified was 740 feet away, was a 

school. Specifically, Melton testified, it was a school for children in grades 6-12 

having difficulties in public schools either with behavior disorders, mental health, 

drugs, or alcohol. (Tr. at 51-53). 

{¶37} The State next called Detective Brian Beach. Detective Beach 

testified that he was a detective for the city of Kenton and worked as part of the 

Hardin County Crime Task Force. (Tr. at 55). Detective Beach testified that on 

November 14, 2013, he went to 201 South High St. in Hardin County to execute a 

search warrant. Detective Beach testified that it was his job to interview everyone 

present and assist with the search. (Id. at 55-57). 

{¶38} Detective Beach testified that he interviewed Smith twice while at 

Smith’s residence. (Tr. at 66). Detective Beach testified that Smith was 

cooperative, that he admitted he had three plants growing in the basement, and that 

Smith admitted to selling some marihuana to his friends. (Id. at 68-72). 
Case No. 6-14-14 

-17- 

Recordings of the interviews were played for the jury and were introduced into 

evidence. (State’s Ex. 15). 

{¶39} On the first recorded interview, Smith unequivocally admitted that he 

was “growing a few plants” in his basement. (State’s Ex. 15). He clarified that he 

was growing three plants. (Id.) Smith stated that this was his “first try” growing 

marihuana and that he learned how to do it from the internet. (Id.) Smith stated 

that it was a personal decision to grow plants, and that he started doing it because 

it was costing him too much to purchase marihuana. (Id.) Smith stated multiple 

times that he knew he was breaking the law by growing marihuana plants, but he 

stated that he was under the impression he was only committing a misdemeanor. 

(Id.) 

{¶40} Smith further admitted that he would “look out for friends” that 

“come by and need some” and that he sold them marihuana for the cost he had put 

into it. (Id.) He first stated that he would “gift” his friends a “joint” if they asked 

him for one. (Id.) Smith stated that he was trying not to traffic marihuana, but he 

admitted that he had sold marihuana to as many as six different friends. (Id.) He 

stated that he usually sold an “eighth” or 3.5 grams for $20, and that he would 

occasionally sell as much as 7 grams. (Id.) He denied selling in larger bulk 

amounts. (Id.) 
Case No. 6-14-14 

-18- 

{¶41} On the second, shorter recorded interview, Smith stated that his usual 

sale of marihuana was an “eighth” for $20.4

 (State’s Ex. 15). He was also 

questioned about the controlled buy money that had been found on him at the time 

of the execution of the warrant, and about purchasing marihuana the day prior in 

Lima. (Id.) 

{¶42} The State next called Deputy Sergeant Dwight Underwood of the 

Hardin County Sheriff’s Office. (Tr. at 92). Sergeant Underwood testified that he 

was certified to test for marihuana and to his training relative to that certification. 

(Id. at 93-100). Sergeant Underwood testified that he tested the marihuana taken 

from Smith’s residence and he testified as to how it was tested. (Id. at 100-105). 

He testified that five separate exhibits were submitted to him for testing, and that 

he tested each of the five samples. (Id. at 105). Sergeant Underwood testified that 

the biggest exhibit/sample, State’s Exhibit 7, weighed 426.3 grams, and the others 

weighed 1.96 grams, 6.51 grams, .54 grams, and 54.42 grams respectively. (Id. at 

112-113). Sergeant Underwood testified that after conducting a chemical analysis 

he found all of the substances submitted to him for testing to be marihuana. (Id. at 

113). Sergeant Underwood testified that he weighed and tested the vegetation 

within 24 hours of receiving it. (Id. at 120). 

 

4

 The first interview with Smith lasted just under 10 minutes, and the second interview was just over 6 

minutes. 
Case No. 6-14-14 

-19- 

{¶43} At the conclusion of Sergeant Underwood’s testimony, the State 

rested its case. At that time, Smith did not make a Crim.R. 29 motion for 

acquittal. He similarly did not make a Crim.R. 29 motion for acquittal at the close 

of evidence. Smith has thus waived his challenge to sufficiency of the evidence 

for purposes of appeal, absent plain error. State v. LeMasters, 11th Dist. Lake No. 

2007-L-129, 2008-Ohio-2139, ¶ 17, citing State v. McCrory, 11th Dist. Portage 

No.2006-P-0017, 2006-Ohio-6348, at ¶ 39 (additional citation omitted). 

{¶44} Nevertheless, looking at the evidence in the light most favorable to 

the State, the State clearly presented testimony that a rational trier of fact could 

find proved beyond a reasonable doubt that Smith was guilty of the crime as 

alleged. The State presented testimony that Smith’s residence was searched and 

three marihuana plants were found growing in the basement. The State presented 

an interview with Smith where Smith admitted he was growing the marihuana that 

was found. The State presented evidence that there was in excess of 400 grams of 

marihuana seized. 

{¶45} In addition, the State presented evidence that there were various 

items used in cultivating marihuana found in the basement such as grow lamps, 

potting soil, and pruning shears. Moreover, the State presented testimony that 

Smith’s grow operation was done in the same house where three juveniles resided, 

one of whom was present at the time of the search warrant. Furthermore, the State 
Case No. 6-14-14 

-20- 

also presented testimony that Smith’s grow operation was within 1000 feet of a 

school. The State only had to prove that the grow operation was done either in the 

vicinity of a juvenile or in the vicinity of a school, and it actually established both. 

Thus even if Smith had properly made a Crim.R. 29 motion, we find that sufficient 

evidence was presented to convict him. Therefore his seventh assignment of error 

is overruled. 

{¶46} Smith next argues in his first assignment of error that his conviction 

was against the manifest weight of the evidence. In Smith’s case-in-chief, Smith 

called Dr. Yousif Rojeab, an associate professor of pharmaceutics at Ohio 

Northern University. Dr. Rojeab testified that he weighed the plants in question 

on June 27, 2014, approximately eight months after they had been weighed by 

Sergeant Underwood. Dr. Rojeab testified that he weighed the evidence submitted 

to him and it weighed approximately 131.02 grams. (Tr. at 135). On crossexamination Dr. Rojeab testified that a wet plant will weigh different than a dry 

plant. (Id. at 139). 

{¶47} On appeal, Smith argues that his conviction was against the weight 

of the evidence because Dr. Rojeab’s testimony was that the evidence submitted to 

him weighed less than 200 grams. However, Sergeant Underwood testified that he 

weighed the evidence within 24 hours of receiving it and that it totaled in excess 

of 400 grams. Sergeant Underwood testified that drier vegetation gets lighter over 
Case No. 6-14-14 

-21- 

time, which could explain the difference between the weights. (Tr. at 119). To an 

extent, Dr. Rojeab corroborated this in his testimony when he testified that he was 

not an expert on moisture contents of plants, but the weight would be different 

between a wet plant and a dry plant. (Id. at 139). 

{¶48} Thus while Dr. Rojeab did test the marihuana submitted to him, he 

did so nearly eight months after Sergeant Underwood and the testimony 

established that vegetation can lose weight over time as it dries out. On the basis 

of the record before us, we cannot find that the factfinder clearly lost its way in 

convicting Smith. This argument is thus not well-taken. 

{¶49} Smith next argues that the witnesses in this case were not credible, 

for instance citing that Detective Beach’s report stated that it was filed at 8:33 

a.m., when the raid did not actually begin until 9 a.m. However, Detective Beach 

testified that sometimes officers did not bother to change the time stamps on their 

reports. Moreover, this timing inconsistency does nothing to invalidate the 

evidence found at Smith’s residence or Smith’s admissions, therefore the 

argument is not well-taken. 

{¶50} Lastly, Smith contends that the State of Ohio failed to establish 

venue in this case, even though Hardin County is mentioned half a dozen times or 

more and the city of Kenton was mentioned multiple times at trial. Despite this 

clear mention of venue, Smith argues that none of the State’s witnesses ever 
Case No. 6-14-14 

-22- 

established that the crime occurred in the State of Ohio. Notwithstanding the 

numerous assumptions that a jury could properly make based on mentions of the 

county and city, multiple exhibits introduced by the State in this case mentioned 

Ohio as the location, such as State’s Exhibit 1, an Ohio Uniform Incident Report, 

State’s Exhibit 2, which states that the search warrant was served at “201 S. High 

[S]t. Kenton, Oh,” and State’s Exhibit 6, the marihuana examination report from 

the Hardin County Sheriff’s Office, indicating the office was in Kenton, Ohio. 

(State’s Ex. 1, 2, 6). Therefore, Smith’s argument on this issue is similarly not 

well-taken. 

{¶51} On the basis of the record before us we cannot find that the factfinder 

clearly lost its way or created a manifest miscarriage of justice in convicting 

Smith. The weight of the evidence supports Smith’s conviction. Accordingly, 

Smith’s first assignment of error is overruled. 

Fourth Assignment of Error

{¶52} In Smith’s fourth assignment of error, he contends that the trial court 

abused its discretion by allowing “improper evidence” to be admitted in the form 

of statements by the prosecutor to a witness made outside the presence of the jury 

and that the trial court erred by failing to declare a mistrial. Specifically, Smith 

contends that the prosecutor threatened one of his witnesses when the prosecutor 
Case No. 6-14-14 

-23- 

advised a defense witness to confer with independent counsel to determine 

whether she was in danger of incriminating herself by testifying. 

{¶53} In reviewing claims of prosecutorial misconduct, the test is whether 

the prosecutor’s remarks were improper and, if so, whether those comments 

prejudicially affected the substantial rights of the defendant. State v. Jones, 90 

Ohio St.3d 403, 420 (2000). “In making this determination, an appellate court 

should consider several factors: (1) the nature of the remarks, (2) whether an 

objection was made by counsel, (3) whether corrective instructions were given by 

the court, and (4) the strength of the evidence against the defendant.” State v. 

Braxton, 102 Ohio App.3d 28, 41 (8th Dist.1995) (citation omitted). “The 

touchstone of analysis ‘is the fairness of the trial, not the culpability of the 

prosecutor.’” Braxton, quoting State v. Underwood, 73 Ohio App3d 834, 840-841 

(4th Dist.1991), citing Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940 (1982). 

{¶54} Prosecutorial misconduct is generally not grounds for reversal unless 

it so taints the proceedings as to deprive the defendant of a fair trial. State v. 

Johns, 3d. Dist. Seneca No. 13-04-23, 13-04-24, 13-04-25, 2005-Ohio-1694, ¶ 25. 

Where it is clear beyond a reasonable doubt that the jury would have found the 

defendant guilty, even absent the alleged misconduct, the defendant has not been 

prejudiced, and his conviction will not be reversed. See State v. Underwood, 2d 

Dist. Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review allegations of 
Case No. 6-14-14 

-24- 

prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d 

Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. 

Wainwright, 477 U.S. 168, 106 S.Ct. 2464 (1986). 

{¶55} Smith’s argument under this assignment of error is based on the 

following exchange at trial. 

[COURT]: Call your next witness Mr. Smith. 

[SMITH]: I’d like to call Stephanie Ritchie. 

[PROSECUTOR]: State would ask for a sidebar hearing. Can 

we have a hearing outside the presence of the Jury? 

[COURT]: We may. Ladies and gentleman, once again, there 

are these details that come up, and I apologize, but it’s 

necessary. So the jury will be dismissed for a few moments. 

Alright. Do you wish to call the witness, is that what you wish to 

do Mr. Smith? 

[SMITH]: Yes. 

[JUDGE]: Alright. You may be seated. 

[BAILIFF]: Justin is getting her. 

[SMITH]: Your Honor, respectfully, after you guys admonish 

her, may I make a statement to her so that she don’t feel 

pressured to testify? 

[COURT]: No, that wouldn’t be appropriate, I don’t think, you 

know, in this context. Mr. Bailey? 

[PROSECUTOR]: I would object. 

[BAILIFF]: Come on in please. Are you wanting me to go 

ahead and swear her? 
Case No. 6-14-14 

-25- 

[COURT]: Pardon me? 

[BAILIFF]: Are you wanting me to go ahead and swear her at 

this point or wait until the 

[COURT]: No, not at this point 

[BAILIFF]: Okay. You can go ahead and have a seat. I’m just 

gonna put this onto your jacket. 

[STEPHANIE RITCHIE]: Okay. 

[BAILIFF]: Maybe the other side. 

[RITCHIE]: Get my hair out of the way. 

[BAILIFF]: There you go. Thank you. 

[COURT]: Okay. Gentleman, you may be seated. Ma’am, 

would you state your name please? 

[RITCHIE]: Stephanie Ritchie. 

[COURT]: Alright. Ma’am, the Defendant has told us that he 

wishes to call you as a witness in this matter, and we’ve had a 

sidebar5

 and the Prosecutor has raised the thought that you 

might be testifying to things that would subject you to criminal 

prosecution. That, you know, your testimony may lead to 

testimony by you under oath of illegal activity. I don’t know 

what that is, I mean I don’t know what that is. However, it’s my 

duty as Judge to advise you, of course, that you have a right to 

remain silent, that you need not answer questions that would 

subject you to criminal prosecution in any form, and to just 

make sure you understand that you have a right to, you know, 

under the Fifth Amendment of the United States Constitution, 

you have a right to refuse to answer questions that might or 

 

5

 Although there is no break in the transcript indicating that the sidebar occurred, the sidebar had apparently 

taken place at this point. Regardless, it was done off the record. 
Case No. 6-14-14 

-26- 

would subject you to criminal prosecution. Mr. Bailey, is that [--

] 

[PROSECUTOR]: Yes Your Honor, but more specifically, what 

the State’s alluding to is there is a charge on the books of 

permitting drug abuse, and it states no person who is the owner, 

lessee, occupant, or has custody or control of the premises or 

real estate shall another [sic] to commit a felony drug abuse. 

This charge of cultivation fits under that. She, we have evidence 

that she is the lessee under the lease of this residence. If she 

testifies that she is the lessee, she could be incriminating herself, 

giving us more evidence on the felony of the fifth degree 

permitting drug abuse. 

[COURT]: I believe I have advised her that anything that she 

says can be used against her in criminal prosecution. 

[PROSECUTOR]: I just wanted the Court to know where we’re 

coming from, and the evidence may get better as to other 

activities of a drug nature. But it will remain to see [sic] what 

she testifies to and what we get out of cross. 

[COURT]: I believe I have done that. 

[PROSECUTOR]: Alright. 

[SMITH]: Your Honor I’d like to request that she not testify. 

[COURT]: Alright. Mr. Smith that’s totally up to you. 

[SMITH]: I’m not comfortable with the threats that he’s—I’m 

not comfortable with putting her on the stand right now. I’d 

rather lose and go to prison than make both of us go to prison 

because he’s being a bully. 

[COURT]: Mr. Smith I just want you to know that I believe I’ve 

done what is appropriate to be done under the law just to 

protect somebody’s rights, but you have every right to call that 

person and require that person answer your questions under 

oath. We’re not doing anything to stop your ability to do that. 
Case No. 6-14-14 

-27- 

[SMITH]: I agree. You haven’t done anything wrong Your 

Honor. 

(Tr. at 142-147). 

{¶56} On appeal, Smith argues that “the prosecutor’s statement that Ritchie 

would be subject to criminal charges for ‘permitting drug abuse’ functioned to 

intimidate the witness, served as a backhanded impeachment, and expressed the 

prosecutor’s opinion about the credibility of the witness. As a result, Appellant 

was denied a fair trial, and the verdict should be reversed.” (Appt’s Br. at 15). 

{¶57} First, Smith’s claims that the prosecutor’s statement served as 

“backhanded impeachment” and that the prosecutor expressed his opinion about 

the witness’s credibility are wholly irrelevant as this conversation was done 

outside the presence of the jury and thus had no impact whatsoever on the 

outcome of the trial. While it may not be clear from the preceding dialogue that 

the conversation was held outside the presence of the jury, as the dialogue 

continues and Smith states that he intends to rest his case, the court states that it 

needs to bring the jury back in so that Smith can rest in front of them. (Tr. at 147). 

In addition, at the beginning of the dialogue the trial court expresses that it 

intended to conduct the conversation outside the presence of the jury. 

{¶58} Second, dealing with Smith’s claim that the prosecutor was 

intimidating the witness, Smith is unable to establish that the prosecutor did 
Case No. 6-14-14 

-28- 

anything improper. The prosecutor initially requested the sidebar to ensure that 

the witness was aware of her rights. While the prosecutor perhaps did not need to 

make the witness aware of a specific charge she could incriminate herself for 

based upon her anticipated testimony we find no indication from the record that 

the prosecutor engaged in witness intimidation. 

{¶59} Moreover, we certainly can find no fault with the trial court’s actions 

in the preceding dialogue, and we further cannot find that the trial court erred in 

failing to declare a mistrial, as Smith suggests. Smith never objected to the 

prosecutor’s statement and he certainly never went so far as to request a mistrial. 

There is no remote indication that a mistrial was appropriate here, particularly 

given that all of the preceding dialogue happened outside the jury’s presence. 

Finally, we would note that it was ultimately Smith who stated that he did not 

want the witness to testify. He was never prevented from calling her as a witness 

and he never proffered any testimony she may have given. 

{¶60} For all of these reasons we cannot find that the trial court committed 

plain error or improperly failed to declare a mistrial where one was neither asked 

for nor appropriate. Accordingly, Smith’s fourth assignment of error is overruled. 

Fifth Assignment of Error

{¶61} In Smith’s fifth assignment of error, he argues that the prosecutor 

made improper, prejudicial remarks in closing argument. 
Case No. 6-14-14 

-29- 

{¶62} “Parties have wide latitude in their closing statements, particularly 

‘latitude as to what the evidence has shown and what inferences can be drawn 

from the evidence.’ ” State v. Wolff, 7th Dist. Mahoning No. 07 MA 166, 2009-

Ohio-7085, at ¶ 13, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, at 

¶ 213. A prosecutor may comment upon the testimony of witnesses and suggest 

the conclusions to be drawn. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, at 

¶ 116. 

{¶63} Because Smith failed to object to any of the alleged instances of 

prosecutorial misconduct, the alleged improprieties are waived, absent plain error. 

State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 139; State v. Saleh, 10th 

Dist. Franklin No. 07AP–431, 2009-Ohio-1542, ¶ 68. A court recognizes plain 

error with the utmost caution, under exceptional circumstances, and only to 

prevent a miscarriage of justice. Id. We may reverse only when the record is clear 

that defendant would not have been convicted in the absence of the improper 

conduct. State v. Williams, 79 Ohio St.3d 1, 12, (1997). 

{¶64} In this case Smith specifically objects to the following portions of the 

State’s closing argument. 

Now in this particular case, the Defendant in his own words, out 

of his own mouth in his opening statement said I was cultivating 

marihuana. He doesn’t even deny that fact. He admits it. So 

right now, as far as the State’s concerned, besides our own 

evidence, his own admission and his own statement up front was 

that he’s growing marihuana. That’s cultivating. 
Case No. 6-14-14 

-30- 

* * * 

* * * [Y]ou first have to find out did he or did he not guilty [sic]

guilty of cultivation or manufacture? That’s an admitted fact by 

the Defendant. I think it’s been established both from the 

cultivation as well as the manufacturing. In the evidence of the 

pictures, which you have numerous, you can see the evidence of 

the cultivation. 

* * * 

We submit to you that evidence without exception, we ask you to 

find Mr. Roby Smith, based on his own statements and the 

cumulative evidence, everything’s in front of you, guilty of the 

charge of illegal cultivation in the vicinity of a juvenile and the 

vicinity of a school. Thank you. 

(Tr. at 160, 165, 169). 

{¶65} Dealing first with the latter two statements cited by Smith as 

improper, the State did enter into evidence an interview with Smith where Smith 

admitted to growing the marihuana plants. Thus we cannot find the State’s 

characterization in the latter two statements as improper at all. 

{¶66} However, in the first statement cited by Smith, the State specifically 

referred to an alleged admission made by Smith during his own opening statement. 

We would note that neither Smith nor the State reproduced the transcript from 

opening statements. Nevertheless, even assuming the State was referring to 

opening statements as though they were evidence any such reference, even if error 

for a defendant making his own opening statement, would be harmless error. 
Case No. 6-14-14 

-31- 

{¶67} Most illustrative of the fact that the State’s erroneous statement was 

harmless are the multitude of admissions by Smith that he was growing 

marihuana. In the interview recording Smith admits multiple times that the plants 

were his and that he was growing marihuana. In addition, when Smith was 

questioning his witness, Dr. Rojeab, he refers to the marihuana plants as “my 

plants.” (Tr. at 133). Furthermore, in Smith’s own closing argument he stated, “I 

think we all can agree I was growing weed. I was growing marihuana. I think 

what we disagree on is the 131.2 grams.” (Tr. at 170). 

{¶68} Finally, we would note that the trial court gave instructions that 

opening and closing statements were not to be considered as evidence, and the jury 

is presumed to follow those instructions. (Tr. at 154); State v. Twyford, 94 Ohio 

St.3d 340, 356, 2002-Ohio-894 (citation omitted). Based on the numerous 

admissions made by Smith presented at trial and the trial court’s curative 

instruction, we cannot find that the State’s comment in closing argument was 

anything but harmless in this case even if it was improper. Therefore, Smith’s 

fifth assignment of error is overruled. 

Sixth Assignment of Error

{¶69} In his sixth assignment of error, Smith argues that the trial court 

erred in ruling against Smith on multiple objections when Smith “was attempting 

to establish the affirmative defense of ‘personal use’ as provided by 292[5].04(F).” 
Case No. 6-14-14 

-32- 

{¶70} The affirmative defense referred to by Smith is codified in R.C. 

2925.04(F), and reads, 

(F) It is an affirmative defense, as provided in section 2901.05 of 

the Revised Code, to a charge under this section for a fifth 

degree felony violation of illegal cultivation of marihuana that 

the marihuana that gave rise to the charge is in an amount, is in 

a form, is prepared, compounded, or mixed with substances that 

are not controlled substances in a manner, or is possessed or 

cultivated under any other circumstances that indicate that the 

marihuana was solely for personal use. 

Notwithstanding any contrary provision of division (F) of this 

section, if, in accordance with section 2901.05 of the Revised 

Code, a person who is charged with a violation of illegal 

cultivation of marihuana that is a felony of the fifth degree 

sustains the burden of going forward with evidence of and 

establishes by a preponderance of the evidence the affirmative 

defense described in this division, the person may be prosecuted 

for and may be convicted of or plead guilty to a misdemeanor 

violation of illegal cultivation of marihuana. 

{¶71} At the outset, the affirmative defense characterized above in R.C. 

2925.04(F) provides an affirmative defense to a fifth degree felony charge of 

Illegal Cultivation of Marihuana. By its plain language, it does not apply to a 

fourth degree felony charge of Illegal Cultivation of Marihuana in the Vicinity of a 

School or in the Vicinity of a Juvenile as we have in this case. 

{¶72} Nevertheless, Smith’s assertion on appeal that he had wished to 

establish a “personal use” affirmative defense at trial is not supported by the 

record. First, it was clear from Smith’s statements to Detective Beach in Smith’s 

interview that Smith was not growing the marihuana merely for personal use. He 
Case No. 6-14-14 

-33- 

both sold it and gave it away to at least six other people according to his own 

statements. 

{¶73} Second, the questions that Smith claims the trial court improperly 

prevented him from asking to establish his affirmative defense do not even pertain 

to the establishment of a personal use affirmative defense. While Detective Beach 

was on the stand, Smith attempted to ask Detective Beach, “How many grams of 

marihuana constitutes a felony?” (Tr. at 86). The State objected, citing that it was 

irrelevant, and that it was asking the witness for a “point of law.” (Id.) The trial 

court sustained the objection, stating that the question was “not [within] the 

witness’s purview. The Court will instruct the Jury about the charge that’s before 

it and what is required to prove the charge.” (Id.) Smith now claims the trial court 

erred, as this statement would have helped Smith establish his affirmative defense. 

However, there is nothing in this exchange that suggests that the question 

pertained to any alleged affirmative defense regarding “personal use.” 

{¶74} Similarly, Smith asked Detective Beach while he was on the stand 

“what kind of charge [would] gifting marihuana * * * be?” (Tr. at 85). The State 

objected, stating that it was irrelevant, and that objection was sustained. As the 

charge of Illegal Cultivation does not have anything to do with “gifting” 

marihuana, Smith’s question does not appear to be relevant here as the State 

suggests. However, Smith contends that the objection was improperly sustained 
Case No. 6-14-14 

-34- 

as the question went to creating his affirmative defense of “personal use.” Despite 

Smith’s arguments, the question does not, in any way, further an affirmative 

defense for Smith. In fact, Smith “gifting” the marihuana would hurt his claim to 

an affirmative defense because it would prove that he was not growing the 

marihuana merely for his own “personal use.” This argument is thus not welltaken. 

{¶75} Lastly, Smith argues that while he was cross examining Sergeant 

Underwood, the following discourse occurred and he was prevented from 

establishing testimony toward his affirmative defense. 

[SMITH]: Okay. Are you aware that a month before you 

conducted your weight, the Ohio Attorney General released a 

law enforcement bulletin [--] 

[PROSECUTOR]: Objection. Where are we going with the law 

and providers by third party. [sic] It’s not even before the 

Court. It’s all pure hearsay. 

[SMITH]: It’s Ohio law from our own [--] 

[PROSECUTOR]: Attorney General (inaudible-talking over 

one another) 

[SMITH]: (inaudible-talking over one another) Hardin County. 

[COURT]: I don’t know where you’re going with this Mr. 

Smith, but the [--] 

[SMITH]: The Ohio Attorney General sent out a bulletin saying 

that—and I’m only trying to explain where I’m going with 

this—that the stem should be [--] 
Case No. 6-14-14 

-35- 

[PROSECUTOR]: Objection. (Inaudible-talking over one 

another) 

[SMITH]: (Inaudible- talking over one another) 

[PROSECUTOR]: Objection. Have this argument by sidebar. 

[COURT]: The Court will instruct the Jury on the law of Ohio. 

The law is clear, and I will instruct the Jury what the law of 

Ohio is. 

(Tr. at 122). 

{¶76} Despite his attempt to question Sergeant Underwood regarding the 

Ohio Attorney General’s Law Enforcement Bulletin, Smith does not cite to the 

“Attorney General’s Bulletin” in his brief to show how it was relevant, and he 

similarly does not attach the bulletin to his brief. It appears, however, that he is 

referring to a Law Enforcement Bulletin made on October 16, 2013 on “Proper 

Protocol” to weigh marihuana. It is not remotely clear from the Bulletin how this 

relates to any alleged affirmative defense of personal use as the bulletin pertains to 

weighing marihuana. There is no indication that the trial court erred in excluding 

any testimony related to this bulletin, and there is no allegation that the trial court 

improperly instructed the jury on the law regarding what was weighed in this case. 

Regardless, the exclusion of this testimony has absolutely no relevance to Smith’s 

claimed affirmative defense of personal use. Smith’s arguments are thus not welltaken, and his sixth assignment of error is overruled. 
Case No. 6-14-14 

-36- 

Second Assignment of Error

{¶77} In Smith’s second assignment of error he argues that the trial court 

committed plain error by “failing to exclude evidence at sentencing that [Smith] 

had told his attorney that he would [not] comply with community control, as that 

evidence was a communication disclosed in and intended strictly for negotiations, 

and its probative value was substantially outweighed by the danger of unfair 

prejudice.” 

{¶78} Smith specifically argues in this assignment of error that the 

prosecutor improperly referenced plea negotiations at the sentencing hearing. 

Smith did not object to the allegedly improper statements when they were made. 

In arguing that the State’s reference was improper, Smith cites Evid.R. 408 for the 

principle that, “[e]vidence of conduct or statements made in compromise 

negotiations is * * * not admissible.” He also cites to Evid.R. 103(D) for the 

principle that “[n]othing * * * precludes taking notice of plain errors affecting 

substantial rights although they were not brought to the attention of the court.” 

{¶79} Despite citing multiple rules of evidence, Smith omits the most 

relevant rule of evidence to his case, Evid.R. 101(C)(3), which clearly states that 

the rules of evidence do not apply to miscellaneous criminal proceedings, such as 

sentencing hearings. See also State v. Johnson, 7th Dist. Mahoning No. 10MA32, 
Case No. 6-14-14 

-37- 

2010-Ohio-6387, ¶ 10. Thus Smith’s argument is not well-taken and his second 

assignment of error is overruled.6

{¶80} Having found no error prejudicial to Smith in the particulars 

assigned, his assignments of error are overruled and the judgment of the Hardin 

County Common Pleas Court is affirmed. 

Judgment Affirmed 

ROGERS, P.J. and WILLAMOWSKI, J., concur. 

/jlr 

 

6

 We would note that the trial court did not follow the State’s recommendation for sentencing regardless of 

the propriety of the State’s comments at the sentencing hearing, as the State recommended community 

control and the trial court ultimately sentenced Smith to 12 months in prison. According to the record the 

sentence was based in large part on Smith’s criminal history of two felonies, which included one prior 

lengthy prison term. In addition, the trial court was also clearly concerned with the fact that Smith had 

been to the W.O.R.T.H. center previously, he tested positive for drugs during the pendency of this case, and 

his offense was in the vicinity of a juvenile.