[Cite as State v. Mobarak, 2017-Ohio-7999.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 

 Plaintiff-Appellee, : No. 14AP-517 

 (C.P.C. No. 12CR-5582) 

v. : 

 (REGULAR CALENDAR) 

Soleiman Mobarak, : 

 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on September 29, 2017 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. 

Gilbert, for appellee. Argued: Seth L. Gilbert. 

On brief: The Behal Law Group LLC, Robert J. Behal, 

John M. Gonzales, and Gilbert J. Gradisar, for appellant. 

Argued: Robert J. Behal.

 

APPEAL from the Franklin County Court of Common Pleas 

BROWN, J. 

{¶ 1} This case is before us based on a remand issued by the Supreme Court of 

Ohio in State v. Mobarak, 150 Ohio St.3d 26, 2016-Ohio-8372 ("Mobarak II"), in which 

the court reversed our decision in State v. Mobarak, 10th Dist. No. 14AP-517, 2015-Ohio3007 ("Mobarak I"). In Mobarak I, we sustained the first assignment of error raised by 

Soleiman Mobarak, defendant-appellant, and found his remaining three assignments of 

error moot. In reversing and remanding the matter in Mobarak II, the Supreme Court 

directed us to consider on remand appellant's remaining assignments of error. 

{¶ 2} The following factual summary is essentially identical to the one in 

Mobarak I. Appellant appeals the judgment of the Franklin County Court of Common 
No. 14AP-517 2 

Pleas, in which the court found him guilty, pursuant to a jury verdict, of engaging in a 

pattern of corrupt activity, in violation of R.C. 2923.32, a first-degree felony (with a 

specific factual finding that one or more instances of corrupt activity involved a felony of 

the first degree; and, separately, that one or more instances of corrupt activity involved a 

felony of the second or third degree); aggravated trafficking in drugs, in violation of R.C. 

2925.03, a second-degree felony (with a specific factual finding that aPyrrolidinopentiophenone ("A-PVP") was a controlled substance analog); aggravated 

possession of drugs, in violation of R.C. 2925.03, a fourth-degree felony (with a specific 

factual finding that A-PVP was a controlled substance analog); aggravated trafficking in 

drugs, in violation of R.C. 2925.03, a second-degree felony (with a specific factual finding 

that A-PVP was a controlled substance analog); aggravated possession of drugs, in 

violation of R.C. 2925.11, a second-degree felony (with a specific factual finding that APVP was a controlled substance analog); aggravated trafficking in drugs, in violation of 

R.C. 2925.03, a first-degree felony (with a specific factual finding that A-PVP was a 

controlled substance analog); and aggravated possession of drugs, in violation of R.C. 

2925.11, a first-degree felony (with a specific factual finding that A-PVP was a controlled 

substance analog). The jury also made findings as to the bulk amount issues on the drug 

counts. 

{¶ 3} Appellant owns a convenience store. From March to July 2012, undercover 

police officers purchased packages of a substance commonly referred to as "bath salts" 

from appellant's store. Appellant was arrested on July 25, 2012. In August and October 

2012, appellant was charged with various drug trafficking and possession counts as well 

as engaging in a pattern of corrupt activity. The State of Ohio, plaintiff-appellee, alleged 

the bath salts were "controlled substance analogs," as defined by R.C. 3719.01(HH)(1). 

{¶ 4} Appellant sought to have the charges dismissed. Appellant also filed a 

motion in limine to exclude the testimony of the state's expert witness, Dr. Travis Worst, a 

forensic scientist from the Bureau of Criminal Investigation ("BCI"), arguing that he did 

not meet the requirements of Evid.R. 702. The trial court held a hearing on the motion in 

limine but never explicitly ruled on the motion. 

{¶ 5} A jury trial commenced May 27 and concluded June 5, 2014. The trial court 

found appellant guilty on numerous counts as outlined above. The trial court held a 
No. 14AP-517 3 

sentencing hearing on June 6, 2014, and sentenced appellant to consecutive terms of 

incarceration totaling 35 years of mandatory confinement without parole. The trial court 

also fined appellant $75,000. The trial court issued a judgment entry that same day, and 

appellant appealed the matter to this court asserting the following assignments of error: 

I. It was plain error for the trial court to fail to dismiss all 

charges against Mr. Mobarak sua sponte, and allowing and his 

[sic] conviction and imprisonment for innocent acts is an ex 

post facto violation that is prohibited by the Ohio and United 

States Constitutions. 

II. The "controlled substance analog" statute under which Mr. 

Mobarak was convicted was unconstitutionally vague on its 

face and in its application, and his conviction was a 

fundamental error that violated his constitutional right to due 

process of law. 

III. Because the state's expert testimony on the substances at 

issue was insufficient under both the state and federal 

standards, the trial court erred and abused its discretion in 

denying Mr. Mobarak's motion in limine to exclude this 

subjective evidence. 

IV. The trial judge erred to Mr. Mobarak's prejudice because 

an order imposing consecutive sentences in this case is not 

supported by the facts. 

{¶ 6} In Mobarak I, this court sustained appellant's first assignment of error. 

Based on this court's precedent, we found the statutory definition of "controlled 

substance" in R.C. 2925.01 did not include or expressly incorporate the definition of 

controlled substance analog created in H.B. No. 64, and, thus, possession of controlled 

substance analogs had not yet been criminalized by that bill or at the time of appellant's 

offenses. Therefore, we found the trial court erred when it found appellant guilty of 

aggravated possession of drugs, aggravated trafficking in drugs, and engaging in a pattern 

of corrupt activity. Given this determination, we found appellant's second, third, and 

fourth assignments of error moot. 

{¶ 7} The state appealed our decision to the Supreme Court. In Mobarak II, the 

Supreme Court reversed our decision on the authority of State v. Shalash, 148 Ohio St.3d 

611, 2016-Ohio-8358 ("Shalash II"). In Shalash II, the court certified a conflict with 

Mobarak I and addressed "whether 'controlled substance analogs' were criminalized as of 
No. 14AP-517 4 

October 17, 2011, the effective date of House Bill 64." Id. at ¶ 4. The court answered the 

question in the affirmative. The court found that H.B. No. 64 enacted R.C. 3719.013 which 

provides that, with some explicit exceptions, "a controlled substance analog, to the extent 

intended for human consumption, shall be treated for purposes of any provision of the 

Revised Code as a controlled substance in schedule I." Id. at ¶ 11. The court found R.C. 

3719.013 dispositive. The court reasoned that, although controlled substance analogs were 

not specifically proscribed by Title 29 when the defendant was arrested and indicted for 

selling them, R.C. 3719.013 incorporated controlled substance analogs into Title 29. The 

court reversed our decision in Mobarak I and remanded the matter to this court to 

address appellant's second, third, and fourth assignments of error, which we will now do. 

{¶ 8} In his second assignment of error, appellant argues that the controlled 

substance analog statute under which he was convicted was unconstitutionally vague on 

its face and in its application, and his conviction was a fundamental error that violated his 

constitutional right to due process of law. For a substance to be a "controlled substance 

analog," the chemical structure of the substance must be "substantially similar to the 

structure of a controlled substance in schedule I or II." R.C. 3719.01(HH)(1)(a). Former 

R.C. 3719.013 provided that a controlled substance analog "shall be treated for purposes 

of any provision of the Revised Code as a controlled substance in schedule I." 

{¶ 9} The interpretation of a statute is a question of law that we must review de 

novo. Washington Cty. Home v. Ohio Dept. of Health, 178 Ohio App.3d 78, 2008-Ohio4342, ¶ 27 (4th Dist.). All enacted legislation enjoys a strong presumption of 

constitutionality. Sorrell v. Thevenir, 69 Ohio St.3d 415, 418-19 (1994). To overcome this 

presumption, "it must appear beyond a reasonable doubt that the legislation and 

constitutional provisions are clearly incompatible." State ex rel. Dickman v. Defenbacher, 

164 Ohio St. 142 (1955), paragraph one of the syllabus. The challenger bears the burden of 

establishing beyond a reasonable doubt that the statute is unconstitutional. State v. 

Tooley, 114 Ohio St.3d 366, 2007-Ohio-3698, ¶ 29. 

{¶ 10} A statute or ordinance may be ruled unconstitutional on grounds of 

vagueness. State v. Bennett, 150 Ohio App.3d 450, 2002-Ohio-6651 (1st Dist.). The 

vagueness doctrine is premised on the due process clause of the Fourteenth Amendment 

and "bars enforcement of ' "a statute which either forbids or requires the doing of an act in 
No. 14AP-517 5 

terms so vague that men of common intelligence must necessarily guess at its meaning 

and differ as to its application." ' " Id. at ¶ 17, quoting United States v. Lanier, 520 U.S. 

259, 266 (1997), quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). "When 

[a] resolution is challenged as unconstitutionally vague, the reviewing court must 

determine whether the statute provides sufficient notice of its proscriptions and contains 

reasonably clear guidelines to prevent official arbitrariness or discrimination in its 

enforcement." State v. Brundage, 7th Dist. No. 01 CA 07 (Mar. 20, 2002). 

{¶ 11} A legislative enactment may be unconstitutional on its face, or as applied in 

a specific circumstance. A facial challenge requires that "the challenging party * * * show 

that the statute is vague 'not in the sense that it requires a person to conform his conduct 

to an imprecise but comprehensible normative standard, but rather in the sense that no 

standard of conduct is specified at all.' " State v. Anderson, 57 Ohio St.3d 168, 171 (1991), 

quoting Coates v. Cincinnati, 402 U.S. 611, 614 (1971). If the statute is being challenged 

only as applied to the circumstances of the case, the challenger " 'contends that 

application of the statute in the particular context in which he has acted, or in which he 

proposes to act, [is] unconstitutional.' " State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio606, ¶ 17, quoting Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S. 1011 

(1992) (Scalia J., dissenting). 

{¶ 12} As pertinent to the remand in the present case, appellant contends that even 

if his acts had been clearly defined as criminal, the complex nature of the chemical 

substances would make uniform enforcement of them under the vague "substantially 

similar" requirement in former R.C. 3719.01 impossible, resulting in arbitrary 

enforcement. Appellant also asserts that "substantially similar" is not defined in the 

statute, and the criterion each scientist used for arriving at a conclusion as to substantial 

similarity was up to each scientist. 

{¶ 13} The Twelfth District Court of Appeals in State v. Shalash, 12th Dist. No. 

CA2013-06-052, 2014-Ohio-2584 ("Shalash I"), addressed these issues, and we concur 

with its conclusions. In that case, the defendant argued the definition of "controlled 

substance analog" in R.C. 3719.01(HH) was unconstitutional since it was void for 

vagueness. The court first noted that the definition of "controlled substance analog" in 

R.C. 3719.01(HH) is very similar to the definition of "controlled substance analogue" in 
No. 14AP-517 6 

the Controlled Substance Analogue Enforcement Act of 1986, 21 U.S.C. 802(32), and 

although no appellate court in this state has addressed whether R.C. 3719.01(HH) is 

unconstitutionally vague, every federal circuit court that has addressed this issue has held 

that the Controlled Substance Analogue Enforcement Act's analogue provision is not 

unconstitutionally vague. The court agreed with those courts that the term "controlled 

substance analogue" is clearly and specifically defined, in terms readily comprehensible to 

the ordinary reader; provides adequate notice of what conduct is prohibited; and makes 

plain drugs that have been chemically designed to be similar to controlled substances, but 

are not themselves listed on the controlled substance schedules, will nonetheless be 

considered as schedule I substances if they: (1) are substantially similar chemically to 

drugs that are on those schedules, (2) produce similar effects on the central nervous 

system as drugs that are on those schedules, or (3) are intended or represented to produce 

effects similar to those produced by drugs that are on those schedules. The court indicated 

there was nothing vague about the statute. Thus, the court rejected the defendant's 

argument that R.C. 3719.01(HH)'s definition of "controlled substance analog" was void for 

vagueness. 

{¶ 14} In the present case, appellant also argues that if it is possible that two 

scientists using the same method of analysis and using an identical definition for 

"substantially similar" could come to different conclusions, the general public has little 

hope of determining whether two chemicals are substantially similar. 

{¶ 15} The court in Shalash I addressed similar arguments that: (1) the chemical 

structure of a substance is not commonly known to a reasonably educated person, (2) it is 

unreasonable to believe that an ordinary person would be aware that the substance 

possessed is contrary to the substances allowed by the statute if the substance has to be 

tested by an expert to determine its chemical makeup, and (3) a reasonably educated 

person would not know if a substance has a stimulant, depressant, or hallucinogenic effect 

on the central nervous system that is substantially similar to or greater than that of a 

controlled substance in schedule I or II. However, the court in Shalash I rejected these 

arguments on the basis that the same arguments have already been rejected by federal 

courts interpreting the federal statute. The court found persuasive the reasoning from 

federal case law that the legislature can expect a person who wishes to engage in the 
No. 14AP-517 7 

activity to acquire the necessary specialized knowledge to conform their conduct to the 

law. 

{¶ 16} The same conclusions on similar issues were reached in State v. Jackson, 

9th Dist. No. 27132, 2015-Ohio-5246, and we concur with that court's analysis, as well. In 

that case, the defendants argued that the controlled substance analog statute, R.C. 

3719.013, was unconstitutionally vague on its face and as applied to each of them. The 

court did not agree that the statute was unconstitutionally vague as applied. In its 

analysis, the court found that the constitutionality of the controlled analog statute largely 

depended on the constitutionality of the definition of "controlled substance analog," as 

contained in R.C. 3719.01(HH). The court found that Ohio's statutory scheme with regard 

to controlled substance analogs is virtually identical to the federal Control Substance 

Analogue Enforcement Act. The court relied on the numerous federal circuit courts that 

had considered void for vagueness challenges to the federal act and found it to be 

constitutional. The court acknowledged that, while the phrase "substantially similar" does 

not lend itself to a uniform definition, due process does not require absolute certainty in 

every case in which a person seeks to experiment in reaching the outermost boundaries of 

lawful conduct. Id. at ¶ 33. The court reasoned that, so long as a reasonable person would 

have sufficient notice of a statute's prescriptions, it is not unconstitutionally vague. Id. 

Furthermore, the court found that, although certain chemists might disagree as to the 

meaning of "substantially similar," a lack of consensus among experts does not render the 

controlled substance analog statute unconstitutionally vague. Id. at ¶ 36. The court found 

it sufficient that the scientists in that case were able to rely on the common meaning of the 

phrase "substantially similar," in conjunction with their knowledge and training, to 

conclude that the drugs were substantially similar. The court ruled the defendant had not 

shown that the state's case was the result of arbitrary or discriminatory enforcement. 

Having found the statute constitutional as applied, the court concluded it need not 

consider whether it is unconstitutionally vague in all its applications. The Supreme Court 

affirmed Jackson in State v. Jackson, 150 Ohio St.3d 27, 2016-Ohio-8363, on the 

authority of Shalash II. 

{¶ 17} For the foregoing reasons, and in concurrence with the above cases and 

their rationales, we find the "controlled substance analog" statute under which appellant 
No. 14AP-517 8 

was convicted was not unconstitutionally vague on its face or in its application, and his 

conviction did not violate his constitutional right to due process of law. Therefore, we 

overrule appellant's second assignment of error. 

{¶ 18} Appellant argues in his third assignment of error that, because the state's 

expert testimony on the substances at issue was insufficient under both the state and 

federal standards, the trial court erred and abused its discretion in denying appellant's 

motion in limine to exclude this subjective evidence. Because a trial court's decision on a 

motion in limine is a ruling to admit or exclude evidence, the standard of review on appeal 

is whether the trial court committed an abuse of discretion that amounted to prejudicial 

error. Gordon v. Ohio State Univ., 10th Dist. No. 10AP-1058, 2011-Ohio-5057, ¶ 82. A 

review under the abuse of discretion standard is a deferential review. It is not sufficient 

for an appellate court to determine that a trial court "abused its discretion simply because 

the appellate court might not have reached the same conclusion or is, itself, less 

persuaded by the trial court's reasoning process than by the countervailing arguments." 

State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14. 

{¶ 19} In the present case, appellant contends the trial court should have granted 

his motion in limine to prohibit the testimony from the state's expert witness, Dr. Worst, 

because it failed to meet the requirements of Evid.R. 702 and Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993). Evid.R. 702 provides: 

(A) The witness' testimony either relates to matters beyond 

the knowledge or experience possessed by lay persons or 

dispels a misconception common among lay persons; 

(B) The witness is qualified as an expert by specialized 

knowledge, skill, experience, training, or education regarding 

the subject matter of the testimony; 

(C) The witness' testimony is based on reliable scientific, 

technical, or other specialized information. To the extent that 

the testimony reports the result of a procedure, test, or 

experiment, the testimony is reliable only if all of the 

following apply: 

(1) The theory upon which the procedure, test, or experiment 

is based is objectively verifiable or is validly derived from 

widely accepted knowledge, facts, or principles; 
No. 14AP-517 9 

(2) The design of the procedure, test, or experiment reliably 

implements the theory; 

(3) The particular procedure, test, or experiment was 

conducted in a way that will yield an accurate result. 

{¶ 20} To determine whether a proposed expert's testimony about a scientific 

technique or a scientific methodology is scientifically reliable, the court focuses on factors 

identified by the United States Supreme Court in Daubert, as adopted by the Supreme 

Court in Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 611-12 (1998). These factors 

include: (1) whether a theory or technique can be (and has been) tested, (2) whether the 

theory or technique has been subjected to peer review and publication, (3) the known or 

potential rate of error, and (4) general acceptance in the scientific community. Daubert at 

593-94. In assessing reliability, the focus must generally be on principles and 

methodology, not on the conclusions that they generate. Id. at 595. 

{¶ 21} R.C. 3719.01(HH) contains two requirements for a chemical to be classified 

as a controlled substance analog: (1) the chemical structure of the substance is 

substantially similar to the structure of the controlled substance in schedule I or II, and 

(2) the chemical has an effect that is substantially similar to or greater than the stimulant, 

depressant, or hallucinogenic effect on the central nervous system of a controlled 

substance in schedule I or II. In the present case, appellant contends the state's method of 

analysis for both requirements of the statute failed to meet the standard. 

{¶ 22} Appellant's argument is twofold: (1) the state's structural analysis of the 

chemical at issue is entirely subjective and not reliable or rigorous enough to be 

admissible, specifically because "substantially similar" has no specific definition and the 

expert used a two-dimensional model, and (2) the state's testimony on the 

"pharmacological effect" prong of the state's analysis is insufficient and should have been 

excluded, specifically because Dr. Worst was the sole pharmacologist at BCI and his 

opinions were without certainty. 

{¶ 23} In response, the state claims that appellant waived his arguments because 

he failed to renew his motion in limine during trial. A motion in limine is a request " 'that 

the court limit or exclude use of evidence which the movant believes to be improper, and 

is made in advance of the actual presentation of the evidence to the trier of fact, usually 
No. 14AP-517 10 

prior to trial.' " Gordon at ¶ 82, quoting State v. Winston, 71 Ohio App.3d 154, 158 (2d 

Dist.1991). " '[A] motion in limine is a preliminary ruling which must be renewed at trial 

or the argument made therein is waived for purposes of appeal.' " Gold v. Burnham, 10th 

Dist. No. 14AP-603, 2015-Ohio-1431, ¶ 13, quoting State v. Smith, 7th Dist. No. 11 MA 

120, 2013-Ohio-756, ¶ 128. " 'An appellate court need not review the propriety of [a 

decision on a motion in limine] unless the claimed error is preserved by an objection, 

proffer, or ruling on the record when the issue is actually reached and the context is 

developed at trial.' " (Emphasis omitted.) State v. Grubb, 28 Ohio St.3d 199, 203 (1986), 

quoting Palmer, Ohio Rules of Evidence Rules Manual at 446 (1984). The failure to draw 

the court's attention to possible error, by objection or otherwise, when the error could 

have been corrected, results in a waiver of the issue for purposes of appeal, absent plain 

error. Gold at ¶ 13, citing In re Ebenschweiger, 12th Dist. No. CA2003-04-080, 2003-

Ohio-5990, ¶ 9-10. In a civil case, the plain error doctrine is limited to extremely rare 

cases involving exceptional circumstances "where the error, left unobjected to at the trial 

court, rises to the level of challenging the legitimacy of the underlying judicial process 

itself." Goldfuss v. Davidson, 79 Ohio St.3d 116, 122 (1997). 

{¶ 24} In the present case, appellant filed a motion in limine to exclude Dr. Worst's 

testimony at trial because it failed to comply with R.C. 3719.01(HH) and Daubert. The 

court held a hearing on appellant's motion in limine and ordered the parties to file posthearing memoranda. However, the trial court never ruled on the motion in limine either 

before, during, or after the final trial on the merits. Importantly, appellant never renewed 

his motion in limine or the objections contained therein during trial and, specifically, 

during the testimony of Dr. Worst. At trial, Dr. Worst opined in full regarding the 

requirements of R.C. 3719.01(HH). Beyond the defense's overt failure to raise any 

objection to Dr. Worst's being declared an expert in both chemistry and pharmacology, a 

review of the trial transcript reveals that Dr. Worst testified at great length, without 

objection, as to whether the chemical structure of A-PVP was substantially similar to the 

structure of a controlled substance in schedule I or II, and whether the chemical had an 

effect that was substantially similar to or greater than the effect of a controlled substance 

in schedule I or II. Therefore, it is clear from the record that appellant failed to renew the 

grounds for his motion in limine at trial and, therefore, he has waived all but plain error. 
No. 14AP-517 11 

{¶ 25} We find no plain error here. Appellant's first argument is that Dr. Worst's 

methodology was unreliable because he compared the chemical structures of A-PVP and 

methylenedioxypyrovalerone ("MDPV"), a schedule I substance, using two-dimensional 

models instead of three-dimensional models to determine substantial similarity. 

However, although Dr. Worst admitted that three-dimensional models might be of 

possible assistance, he also testified that three-dimensional models are not necessary, 

two-dimensional drawings are sufficient, and other experts use two-dimensional models. 

Even appellant's expert at the Daubert hearing, Dr. Alfred Staubus, testified that a threedimensional structure may or may not be useful in this particular case. Furthermore, 

appellant's citation to a Cuyahoga County Common Pleas Court case, State v. Silmi, 

Cuyahoga C.P. No. CR 561754 (Feb. 7, 2013), in which the court excluded lab tests finding 

a substantial similarity when it found there was no general acceptance for the twodimensional methodology, does not win the day for appellant here. A contrary common 

pleas decision from another district does not demonstrate plain error was committed in 

the present case, and no other court has relied on Silmi. Although the court in Shalash I

did cite to Silmi and expressed doubt about the use of two-dimensional comparisons, the 

court in Shalash I indicated that it did not necessarily agree with Silmi and expressly 

found that its decision to remand the matter to the trial court was based on the court's 

failure to hold a Daubert hearing. Therefore, this argument is without merit. 

{¶ 26} Appellant's second argument is that Dr. Worst failed to directly compare the 

effect of A-PVP and the effect of MDPV on the central nervous system, instead relying on 

research that compared the effects of A-PVP to pyrovalerone and then compared 

pyrovalerone to MDPV. Appellant's third argument is that Dr. Worst did not rely on live 

testing to determine whether the effect of A-PVP on the central nervous system was 

substantially similar to or greater than that of MDPV. Appellant contends that Dr. Worst 

could only offer a mere prediction as to the pharmacological effects of ingesting A-PVP 

given these limitations. 

{¶ 27} However, Dr. Worst did testify that he was 85 percent certain about his 

predictions. Although appellant argues these predictions did not present sufficient 

reliable scientific evidence under the Daubert factors because Dr. Worst could point to no 

history of testing, peer review, error rate, or general acceptance in the scientific 
No. 14AP-517 12 

community, what appellant is actually contesting is the witness credibility determination. 

In essence, Dr. Worst believed his methods of testing the pharmacological effects of APVP were reliable despite these limitations, while Dr. Staubus testified that Dr. Worst's 

methods were not. Apparently, the jury chose to believe Dr. Worst. 

{¶ 28} We are mindful that the Daubert factors are not to be rigidly applied 

because the inquiry is a flexible one. Daubert at 594; Kumho Tire Co. v. Carmichael, 526 

U.S. 137, 141 (1999). "[E]ven if [an expert's] opinion has neither gained general 

acceptance by the scientific community nor has been the subject of peer review, these are 

not prerequisites to admissibility under Daubert." Miller at 613. The "ultimate 

touchstone" for determining reliability is helpfulness to the trier of fact, which turns on 

whether the expert's technique or principle is sufficiently reliable so that it will aid the 

trier of fact in reaching accurate results. Id. at 614. "The rejection of expert testimony is 

the exception rather than the rule, [and] Daubert did not work a seachange over federal 

evidence law, and the trial court's role as gatekeeper is not intended to serve as a 

replacement for the adversary system." Rudd v. GMC, 127 F.Supp.2d 1330, 1337 (D.C. 

Ala.2001). "Vigorous cross-examination, presentation of contrary evidence, and careful 

instruction on the burden of proof are the traditional and appropriate means of attacking 

shaky but admissible evidence." Daubert at 596. 

{¶ 29} In the present case, the jury had the benefit of hearing the crossexamination of Dr. Worst and the contrary opinions given by Dr. Staubus. The jury chose 

to believe Dr. Worst. For all the foregoing reasons, we find the trial court did not err 

when it, in effect, denied appellant's motion in limine to exclude the expert testimony of 

Dr. Worst from evidence. Therefore, appellant's third assignment of error is overruled. 

{¶ 30}Appellant argues in his fourth assignment of error that the trial court erred 

when it imposed consecutive sentences because they were not supported by the facts. We 

first note that appellant's initial contention is that R.C. 2929.14(B) required the court to 

impose the shortest prison term because he had not previously served a prison term and 

the trial court failed to find that either the shortest prison term would demean the 

seriousness of the offender's conduct or would not adequately protect the public from 

further crime by the offender or others. However, this argument relies on a previous 

version of R.C. 2929.14(B). This portion of R.C. 2929.14(B) was found to be 
No. 14AP-517 13 

unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, because it required 

judicial fact-finding before the imposition of a more than minimum sentence. 

Consequently, the Supreme Court severed it from the statute. Id. at ¶ 97. The legislature 

formally removed this portion of the statute pursuant to amended H.B. No. 86, effective 

September 30, 2011. 2011 Am.Sub.H.B. No. 86; thus, R.C. 2929.14(B) no longer requires 

these findings. State v. Thomas, 9th Dist. No. 14CA0042-M, 2015-Ohio-2195, ¶ 10; State 

v. Stubbs, 7th Dist. No. 13 JE 31, 2014-Ohio-3791, ¶ 28-29. Therefore, this argument is 

without merit. 

{¶ 31}With regard to consecutive sentences, R.C. 2929.14(C)(4) provides: 

If multiple prison terms are imposed on an offender for 

convictions of multiple offenses, the court may require the 

offender to serve the prison terms consecutively if the court 

finds that the consecutive service is necessary to protect the 

public from future crime or to punish the offender and that 

consecutive sentences are not disproportionate to the 

seriousness of the offender's conduct and to the danger the 

offender poses to the public, and if the court also finds any of 

the following: 

(a) The offender committed one or more of the multiple 

offenses while the offender was awaiting trial or sentencing, 

was under a sanction imposed pursuant to section 2929.16, 

2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense. 

(b) At least two of the multiple offenses were committed as 

part of one or more courses of conduct, and the harm caused 

by two or more of the multiple offenses so committed was so 

great or unusual that no single prison term for any of the 

offenses committed as part of any of the courses of conduct 

adequately reflects the seriousness of the offender's conduct. 

(c) The offender's history of criminal conduct demonstrates 

that consecutive sentences are necessary to protect the public 

from future crime by the offender. 

{¶ 32} Thus, pursuant to R.C. 2929.14(C)(4), in order to impose consecutive terms 

of imprisonment, the trial court is required to make at least three distinct findings: 

"(1) that consecutive sentences are necessary to protect the public from future crime or to 

punish the offender; (2) that consecutive sentences are not disproportionate to the 
No. 14AP-517 14 

seriousness of the offender's conduct and to the danger the offender poses to the public; 

and (3) that one of the subsections (a), (b) or (c) applies." (Emphasis omitted.) State v. 

Price, 10th Dist. No. 13AP-1088, 2014-Ohio-4696, ¶ 31, citing State v. Bonnell, 140 Ohio 

St.3d 209, 2014-Ohio-3177. A trial court seeking to impose consecutive sentences must 

make the findings required by R.C. 2929.14(C)(4) at the sentencing hearing and also 

incorporate such findings into its sentencing entry. Bonnell at ¶ 37. However, the trial 

court need not state reasons to support its findings, and is not "required to give a 

talismanic incantation of the words of the statute, provided that the necessary findings 

can be found in the record and are incorporated into the sentencing entry." Id. See also

State v. Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 12. A "word-for-word recitation 

of the language of the statute is not required," but where "the reviewing court can discern 

that the trial court engaged in the correct analysis and can determine that the record 

contains evidence to support the findings, consecutive sentences should be upheld." 

Bonnell at ¶ 29. 

{¶ 33} Here, appellant failed to object to the imposition of consecutive sentences at 

the sentencing hearing; thus, our review is limited to consideration of whether the trial 

court committed plain error. Ayers at ¶ 7. Under Crim.R. 52(B), " '[p]lain errors or 

defects affecting substantial rights may be noticed although they were not brought to the 

attention of the court.' 'To constitute plain error, the error must be obvious on the record, 

palpable, and fundamental such that it should have been apparent to the trial court 

without objection.' " State v. Jones, 10th Dist. No. 14AP-80, 2014-Ohio-3740, ¶ 11, 

quoting State v. Gullick, 10th Dist. No. 13AP-26, 2013-Ohio-3342, ¶ 3, citing State v. 

Tichon, 102 Ohio App.3d 758, 767 (9th Dist.1995). 

{¶ 34} In the present case, appellant asserts that, although the trial court read the 

necessary findings virtually verbatim from the statutory text, those findings were without 

sufficient evidence in the record. Specifically, appellant presents the following two 

arguments: (1) the prosecutor raised an allegation during the sentencing hearing that the 

prosecutor's boss informed him that an unidentified jailhouse informant indicated that 

appellant was looking into having the prosecutor or his wife killed, and this information 

was hearsay within hearsay, and should not have been considered, and (2) at the 

sentencing hearing, the state played a recorded phone call between appellant and an 
No. 14AP-517 15 

unidentified person, during which appellant threatened to have a Palestinian individual 

(whom defense counsel claimed was appellant's mother-in-law) harmed and mentioned a 

$200,000 payment. Appellant claims that this information too was hearsay, but the court 

still considered it. Appellant asserts this evidence was not sufficient to demonstrate the 

consecutive sentences were necessary to protect the public. 

{¶ 35} We disagree with appellant. During the sentencing hearing, the court found 

that information about killing a court officer was of special significance, threatening to 

have someone killed during the phone call was particularly horrific, and evidence of 

appellant's phone call was credible. The court also found appellant was a drug supplier 

keeping local addicts supplied with cheap highs, all under the guise of running a 

neighborhood market. The findings were all relevant to show that consecutive sentences 

were necessary to protect the public, and the trial court could consider them. See R.C. 

2929.19(A) (prosecuting attorney may present information relevant to the imposition of 

sentence); R.C. 2929.19(B)(1) (in imposing sentence, the court must consider any 

information presented at the hearing by any person pursuant to R.C. 2929.19(A)). 

Furthermore, this court has held that the court may admit hearsay evidence at a 

sentencing hearing. See State v. Randlett, 10th Dist. No. 06AP-1073, 2007-Ohio-3546, 

¶ 25, citing State v. Bene, 12th Dist. No. CA2005-09-090, 2006-Ohio-3628, ¶ 21. This 

court found in Randlett that Evid.R. 101(C) clearly identifies sentencing hearings as 

among those certain criminal proceedings in which the Rules of Evidence, including the 

hearsay rule, do not apply; thus, a trial court is free to rely on reliable hearsay in its 

sentencing decision. Id., citing Bene at ¶ 21. Therefore, we find the trial court did not err 

in this respect. 

{¶ 36} Appellant next argues that the trial court's pro forma finding—that 

consecutive sentences amounting to 35 years in prison were not disproportionate to the 

seriousness of the conduct—was not supported by sufficient evidence. We disagree. The 

trial court found credible the statement of a trial witness who indicated that appellant told 

him he had made a million dollars selling A-PVP. The court also found that appellant was 

considerably worse than a casual drug dealer. The court also noted that appellant 

attempted to conceal his illegal activities, as there was evidence presented that appellant 

kept the A-PVP hidden so police would not find all of it. Although appellant frames the 
No. 14AP-517 16 

million dollar claim as a casual boast, the trial court found it credible and indicated it 

removed appellant from the classification of a casual drug dealer. In addition, although 

appellant argues he possessed and controlled substances that were not illegal to possess 

and sell, the Supreme Court has concluded otherwise. Therefore, we find the trial court 

did not err in considering this evidence. For all the foregoing reasons, the trial court did 

not err when it sentenced appellant to consecutive sentences. Appellant's fourth 

assignment of error is overruled. 

{¶ 37} Accordingly, appellant's three remaining assignments of error are 

overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 KLATT, J., concurs. 

HORTON, J., concurs in judgment only. 

HORTON, J., concurring in judgment only. 

{¶ 38} I respectfully concur in judgment only as I disagree with the majority in 

paragraph 33 that the appellant's failure to object to consecutive sentences at the 

sentencing hearing limits the reviewing court to a plain error analysis. The appeal serves 

as the objection in this context. 

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