[Cite as State v. Thompson, 2016-Ohio-5571.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NO. 2015-P-0034

 - vs - : 

MICHAEL THOMPSON, : 

 Defendant-Appellant. : 

Criminal Appeal from the Portage County Municipal Court, Kent Division, Case No. 

2015 CRB 00261K. 

Judgment: Affirmed. 

Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant 

Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee). 

Michael Thompson, pro se, 221 Spaulding Drive, Apt. 3, Kent, OH 44240 (DefendantAppellant). 

CYNTHIA WESTCOTT RICE, P.J. 

{¶1} Appellant, Michael Thompson, pro se, appeals his conviction, following a 

bench trial, in the Portage County Municipal Court, Kent Division, of possession of 

marijuana, a minor misdemeanor. The principal issue is whether appellant’s conviction 

was against the manifest weight of the evidence. For the reasons that follow, we affirm. 

{¶2} At trial, Officer Josh Nelson of the Kent Police Department testified that on 

February 12, 2015, at about 4:00 p.m., he was parked in his cruiser in a driveway 
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between two apartment buildings running license plates and checking for speeders. At 

that time he saw appellant’s vehicle, a white Pontiac Grand Am, coming out of a parking 

lot across the street. About one week earlier, the Kent Police Department received a tip 

from a female who reported that appellant was selling drugs. She provided appellant’s 

address and the description and license plate of his car. 

{¶3} The car that appellant was driving matched the description and license 

plate provided by the tipster. Officer Nelson also saw there was a passenger in the 

front passenger seat. The officer ran the license plate and discovered that the car was 

registered to appellant and that the plates were expired. The officer then pulled out and 

followed appellant and his passenger in order to conduct a traffic stop. 

{¶4} Appellant pulled into a restaurant parking lot. The officer followed him into 

the parking lot and then activated his overhead lights. 

{¶5} Officer Nelson walked over to appellant’s car and said he stopped him 

because his license plates were expired. Appellant said that was wrong. The officer 

asked appellant for his registration and showed him the plates were expired. After 

checking his registration, Officer Nelson asked appellant where they were going. 

Appellant said they were late and in a hurry because he needed to take the female 

seated in the front passenger seat to a doctor’s appointment. The officer testified this 

was strange because appellant pulled into the parking lot before he initiated the stop 

and there was no doctor’s office there. 

{¶6} Officer Nelson asked the passenger, Klarissa Wagner, for her 

identification. He ran it through L.E.A.D.S. and found she had an outstanding arrest 

warrant from Stow. Officer Nelson then asked appellant for consent to search his car 
 3

and he refused. The officer returned to his cruiser and radioed for a canine officer to 

come to the scene to check appellant’s car for drugs. Ms. Wagner was handcuffed due 

to her outstanding warrant and placed in Officer Nelson’s cruiser. Appellant was placed 

in the cruiser of Officer Bowen, another Kent Police Officer who provided backup. 

{¶7} About ten minutes later, Officer Ted Bell of the Stow Police Department 

arrived with his certified canine partner Mingo. Officer Bell testified that, at Officer 

Nelson’s request, he had Mingo check around appellant’s car for the odor of drugs. 

Mingo alerted to near the door seam at the driver’s side, indicating she detected the 

odor of drugs. 

{¶8} Officer Bell advised Officer Nelson regarding the results of the sniff. 

Officer Nelson told appellant that the canine alerted and asked him why the dog would 

alert to his vehicle. Appellant said, “there’s probably marijuana seed on the floor.” 

{¶9} Officer Nelson testified that once Mingo alerted to the vehicle, he and 

Officer Bell searched it. Appellant’s Pontiac was a two-door sedan. Officer Nelson 

searched the driver’s side and Officer Bell searched the passenger’s side. Officer 

Nelson searched the driver’s seat first and then moved the driver’s seat up. He lifted 

the floor mat behind the driver’s seat and saw a baggie of marijuana under the mat near 

where Mingo had alerted. Officer Nelson identified the baggie of marijuana in court. 

{¶10} Officer Bell said he searched Ms. Wagner’s purse that was on the 

passenger side of the car and found a metal spoon inside. He said the spoon had burn 

marks on it, which, he said, is common with spoons used to dissolve heroin or 

prescription pills. 
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{¶11} Officer Nelson talked to Ms. Wagner about the spoon. At first she said 

she used it to eat. When he asked her why there were burn marks on the spoon, she 

said a friend must have put it in her purse. 

{¶12} Officer Nelson cited appellant for possession of marijuana, a minor 

misdemeanor, but decided to give him a warning rather than a citation for the expired 

plates. Officer Bowen drove him to the Kent Police Department for booking. Officer 

Nelson transported Ms. Wagner to the Stow Police Department to be booked for 

possession of drug abuse instruments and also to be served with her outstanding 

warrant. As Officer Nelson was driving Ms. Wagner to the Stow Police Department, 

Officer Bowen called him and said that appellant told him that when Officer Nelson 

initially stopped them in the restaurant parking lot, Ms. Wagner shoved syringes and 

spoons down her pants. When Officer Nelson told Ms. Wagner that appellant said she 

put these instruments down her pants to conceal them, she admitted it. However, she 

never said the marijuana belonged to her. Ms. Wagner ultimately pled guilty to 

possession of drug abuse instruments in the Stow Municipal Court. 

{¶13} After the state rested its case, appellant called Klarissa Wagner as his 

only witness. On direct, she simply said she put marijuana in appellant’s car that day; 

however, on cross, her story unraveled. She said that when Officer Nelson stopped 

them, she had marijuana, three syringes, and two spoons in her purse. She said she 

was using heroin at that time and used the syringes in her purse to shoot up. She said 

she wanted to hide these items from the police so she put the needles and spoons in 

her pants and “tossed [the marijuana] back so it could have went, you know, anywhere 

in the back.” She said she does not know how the marijuana got under the floor mat 
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behind the driver’s seat. Nor did she explain why she would conceal needles and 

spoons on her person, but take the risk of throwing the drugs in the back where anyone 

could see them when she could just as easily have hid the marijuana with the other 

items. 

{¶14} Ms. Wagner said she told Officer Nelson that she was late for a doctor’s 

appointment and they were in a hurry to get there, but she admitted appellant drove to 

the restaurant to get lunch. Once she realized this was inconsistent with her story about 

them being in a hurry, she reversed course and said he only drove there to “order” lunch 

and that he would pick it up after her appointment. However, later in her testimony she 

said the doctor’s office was so far, the bus would not take her there. She did not say 

why they did not just simply go to lunch after the appointment. Further, she did not offer 

any doctor’s note or any other document showing that she had a doctor’s appointment 

that day. 

{¶15} Ms. Wagner was also unclear about the marijuana she said was hers. 

She was unsure how it was packaged. She said it was only 3.5 grams of marijuana, 

although Officer Nelson said it was 21 grams. And, she refused to testify who she 

bought it from, even after the court ordered her to do so. 

{¶16} In the state’s rebuttal case, Officer Nelson said that from the time he 

determined appellant’s license plates were expired, he saw there was a passenger in 

appellant’s car. He never lost visual contact with the vehicle and never saw any furtive 

movements by either occupant. Specifically, he said he did not see Ms. Wagner throw 

anything in the back seat. 
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{¶17} Following the trial, the trial court found appellant guilty of possession of 

marijuana, a minor misdemeanor; fined him $150; and suspended his driver’s license 

for six months. 

{¶18} Appellant appealed the trial court’s judgment, and the trial court stayed 

execution of his sentence. In his brief, appellant does not assert any assignments of 

error. Instead, he presents a one and one-half page rambling argument that briefly 

mentions five issues. While it is not the role of this court to construe various issues 

raised as assignments of error, in the interests of justice we shall address the issues 

mentioned in the brief. 

{¶19} First, appellant does not challenge the sufficiency of the evidence to 

support his conviction of possession of marijuana; rather, he challenges only the 

manifest weight of the evidence. 

{¶20} A court reviewing the manifest weight observes the entire record, weighs 

the evidence and all reasonable inferences, and considers the credibility of the 

witnesses. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). The court determines 

whether, in resolving conflicts in the evidence and deciding witness credibility, the trier 

of fact clearly lost its way and created such a manifest miscarriage of justice that the 

judgment must be reversed and a new trial ordered. Id. The discretionary power to grant 

a new trial should only be exercised in the exceptional case in which the evidence 

weighs heavily against the conviction. Id. Witness credibility rests solely with the finder 

of fact, and an appellate court is not permitted to substitute its judgment for that of the 

fact-finder. State v. Awan, 22 Ohio St.3d 120, 123 (1986). “The [trier of fact] is entitled to 

believe all, part, or none of the testimony of any witness.” State v. Archibald, 11th Dist. 
 7

Lake Nos. 2006-L-047 and 2006-L-207, 2007-Ohio-4966, ¶61. The role of the reviewing 

court is to engage in a limited weighing of the evidence in determining whether the state 

properly carried its burden of persuasion. Thompkins, supra, at 390 (Cook, J., 

concurring). If the evidence is susceptible to more than one interpretation, an appellate 

court must interpret it in a manner consistent with the verdict. State v. Banks, 11th Dist. 

Ashtabula No. 2003-A-0118, 2005-Ohio-5286, ¶33. 

{¶21} Appellant argues that the municipal court was prejudiced against him and 

his witness as evidenced by the judge’s finding on the record that she found the officers’ 

testimony to be credible but that Ms. Wagner’s testimony was not. However, this finding 

shows the court performed its duty to determine the credibility of the witnesses and 

does not reflect bias. 

{¶22} The only alleged inconsistency noted by appellant is that, while Officer 

Nelson testified he found the marijuana in the back under the floor mat, Officer Bell, the 

canine officer, testified the marijuana was found in the back of the car. However, Officer 

Bell searched only the passenger side of the car, while Officer Nelson searched the 

driver’s side and found the marijuana. Thus, it was understandable that Officer Bell was 

unaware exactly where in the back of the car Officer Nelson found the drugs. In any 

event, since both officers said that Officer Nelson found the marijuana in the back of the 

car, their testimony on this point was consistent. 

{¶23} The trial court was entitled to find, as it did, that the officers’ testimony was 

credible while that of Ms. Wagner was not, and nothing in the record suggests that the 

trial court clearly lost its way and created such a manifest miscarriage of justice that the 

judgment must be reversed and a new trial ordered. 
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{¶24} Second, appellant argues that the trial court, prosecutor, and public 

defender attempted to intimidate Ms Wagner to get her to recant her testimony that the 

marijuana belonged to her. However, appellant is referring to the court’s efforts to 

advise her of her Fifth Amendment right not to incriminate herself. After Ms. Wagner 

testified she had marijuana in her purse, the court interrupted the proceedings to advise 

her that it appeared she was going to admit possessing marijuana and that by doing so 

she would be admitting a crime. After the court advised Ms. Wagner that she had a 

right not to incriminate herself, she said she wanted to proceed. Then, at the 

prosecutor’s request, the court advised Ms. Wagner that if it was proven she was not 

telling the truth under oath, she could be committing perjury, another criminal offense. 

Ms. Wagner said she understood. 

{¶25} Later, when the prosecutor asked Ms. Wagner about the purpose of the 

syringes in her purse, appellant objected on the ground that the prosecutor was 

“incriminating” the witness. The court then asked the witness if she would like to 

exercise her Fifth Amendment privilege and remain silent and the witness said she did 

not want to talk right now. 

{¶26} During a brief recess, the court had a public defender advise Ms. Wagner 

regarding her rights. The trial court said on the record that, after talking to the public 

defender, the court was confident the public defender explained Ms. Wagner’s 

constitutional rights and privileges to her. After the recess, when the court asked Ms. 

Wagner if she wanted to continue testifying or exercise her Fifth Amendment privilege, 

the witness said she wanted to testify. 
 9

{¶27} Later in her testimony, when the prosecutor asked Ms. Wagner where she 

got the marijuana, Ms. Wagner refused to testify. The court allowed her to assert her 

Fifth Amendment privilege as to that question only, but allowed her to testify as to other 

matters. 

{¶28} Thus, there is no evidence the court, prosecutor, or public defender 

attempted to intimidate Ms. Wagner to recant her testimony that the marijuana belonged 

to her. To the contrary, the court simply informed her of her privilege against selfincrimination and enlisted the public defender to also advise her of her rights. In any 

event, even if there was error, any error would be harmless beyond a reasonable doubt 

because the witness never recanted her testimony that the marijuana was hers. 

{¶29} Third, appellant states that the traffic stop and search were unlawful; 

however, he does not present any argument in support, in violation of App.R. 16(A)(7). 

For this reason alone, the argument (such as it is) lacks merit. 

{¶30} More importantly, appellant never filed a motion to suppress evidence. 

Crim.R. 12(B) provides: “Prior to trial, any party may raise by motion any defense, 

objection, evidentiary issue, or request that is capable of determination without the trial 

of the general issue. The following must be raised before trial: * * * (3) Motions to 

suppress evidence * * *.” It is well settled that the failure to file a pretrial motion to 

suppress evidence on the grounds that it was illegally obtained constitutes a waiver of 

the error. State v. Moody, 55 Ohio St.2d 64, 65 (1978); State v. Jones, 8th Dist. 

Cuyahoga No. 92820, 2009-Ohio-5701, ¶38 (“Crim.R. 12(B) requires a defendant to 

raise any objection to the admissibility of unconstitutionally obtained evidence in a 

pretrial motion to suppress.”). 
 10

{¶31} It is undisputed that appellant never filed a motion to suppress evidence 

obtained as a result of the stop and search of his vehicle. As a result, he waived any 

objection to the introduction of the evidence at trial. 

{¶32} Fourth, appellant argues the marijuana was not lab tested before being 

admitted in evidence. While his argument is far from clear, he appears to be arguing 

the trial court abused its discretion in admitting the marijuana in evidence. The 

admission or exclusion of evidence lies within the sound discretion of a trial court, and a 

reviewing court may not disturb evidentiary decisions without an abuse of discretion. 

State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶43, citing State v. Issa, 93 Ohio 

St.3d 49, 64 (2001). 

{¶33} As a preliminary matter, appellant did not object to the admissibility of the 

marijuana at trial. This issue is thus waived on appeal. Awan, supra, at 122. 

{¶34} In any event, even if the issue was not waived, it would lack merit. 

Pursuant to R.C. 2925.51, the state may establish prima-facie evidence of the identity of 

a controlled substance through laboratory testing. However, Ohio courts have held that 

lab testing is not always necessary to prove the identity of a substance. For example, 

the Supreme Court of Ohio has held that police officers trained and qualified may testify 

that a substance is marijuana without a laboratory test as long as there is a sufficient 

foundation laid to establish familiarity with the drug. State v. Maupin, 42 Ohio St.2d 473 

(1975), paragraph two of the syllabus. In addition, the Ohio Supreme Court has held 

that a lay witness who is a drug user can establish his or her competence to express an 

opinion on the identity of a controlled substance if a sufficient foundation for the 

testimony is established. State v. McKee, 91 Ohio St.3d 292 (2001), syllabus 
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{¶35} Officer Nelson testified that he successfully completed training in 

marijuana odor detection with the Portage County Drug Task Force and that, based on 

his training and experience, he is able to determine if a substance is marijuana. He 

testified that when he lifted the floor mat in the rear of appellant’s car, he found a baggie 

containing marijuana. He testified that when he found the baggie, he knew it contained 

marijuana because “[y]ou could smell it outside of this outer plastic bag. Marijuana has 

a very distinct odor. Also, by looking at it I could see that it was marijuana.” 

{¶36} Further, appellant’s witness, Ms. Wagner, testified: (1) that she smokes 

marijuana and has a supplier from whom she purchases marijuana; (2) that the baggie 

she tossed in the back of appellant’s car contained marijuana; (3) that it looked like 

about four grams of what she referred to as “good weed;” (4) that she bought it from her 

supplier for $35; and (5) that the baggie containing green vegetable matter that was 

marked as an exhibit at trial was in fact marijuana. 

{¶37} Based on the foregoing evidence, the issue is waived, but even if it was 

not, the trial court would not have abused its discretion by admitting the marijuana in 

evidence. 

{¶38} Fifth and last, appellant argues his statutory speedy trial rights were 

violated because he was tried after the expiration of the 30-day time limit for a minor 

misdemeanor. As a preliminary matter, we note that appellant never raised this issue in 

the trial court. He never filed a motion to dismiss the citation on speedy trial grounds 

and, even at trial, he never raised the issue. “Without question speedy trial rights may 

be waived.” State v. McDonald, 4th Dist. Highland No. 96CA913, 1997 Ohio App. 

LEXIS 4340, *5 (Sep. 9, 1997). A defendant’s failure to raise this issue in the trial court 
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waives any error. State v. Glazer, 111 Ohio App.3d 769, 772 (5th Dist.1996), citing 

State v. Dumas, 68 Ohio App.3d 174, 176 (10th Dist.1990). In Dumas, the Tenth 

District stated: 

{¶39} R.C. 2945.73(B) * * * provides: 

{¶40} Upon motion made at or prior to the commencement of trial, a 

person charged with an offense shall be discharged if he is not 

brought to trial within the time required by sections 2945.71 and 

2945.72 of the Revised Code. 

{¶41} As is apparent here, the speedy-trial provisions are not selfexecuting, but, rather, must be asserted by a defendant in a timely 

fashion to avoid such rights being waived. Partsch v. Haskins, 175 

Ohio St. 139 (1963), and subsequent related cases uniformly 

support this proposition. * * * Dumas, supra. 

{¶42} We therefore hold appellant waived any objection based on a violation of 

the speedy trial statute. 

{¶43} In any event, even if the issue was not waived, the argument would lack 

merit. Pursuant to R.C. 2945.71(A), a person charged with a minor misdemeanor must 

be brought to trial within 30 days after an arrest or service of summons. Pursuant to 

R.C. 2945.72(H), a trial court may extend a trial past the speedy trial limit for the period 

of any reasonable continuance granted on the state’s motion (“The time within which an 

accused must be brought to trial * * * may be extended * * * by * * * the period of any 

reasonable continuance granted other than upon the accused’s own motion.”). The trial 

date may also be extended for any period occasioned by the neglect or improper act of 

the defendant. R.C. 2945.72(D). 

{¶44} Appellant was served with the citation on February 12, 2015. He thus had 

to be tried by March 14, 2015. The trial was set for March 9, 2015. On March 9, 2015, 

the state filed a motion for a continuance to obtain the video of the traffic stop. As of 
 13

that date, 25 days had passed. The court granted the motion and continued the trial to 

March 23, 2015. 

{¶45} Ohio appellate courts, including the Ohio Supreme Court, have held that 

reasonable continuances granted to the state are not counted against the state for 

speedy trial purposes as long as legitimate grounds for the continuance are provided. 

State v. Hess, 5th Dist. Stark No. 2003CA00348, 2004-Ohio-6820, ¶24 (continuance of 

trial at state’s request, due to DNA testing and unavailability of victim due to pregnancy 

complications, were not attributable to state for speedy trial purposes since grounds for 

continuance were reasonable); State v. Barnett, 12th Dist. Fayette No. CA2002-06-011, 

2003-Ohio-2014, ¶11-12 (continuance granted to state tolled speedy-trial time in 

prosecution for rape since absence of one of state’s key witnesses and lack of 

completion of DNA testing providing reasonable grounds for granting continuance); 

State v. Myers, 97 Ohio St.3d 335, 342 (2002) (prosecutor’s request for continuance to 

allow expert with 12-week backlog of cases to test foreign hair found on murder victim’s 

body was not unreasonable and could not be charged against state for speedy trial 

purposes). 

{¶46} Here, the state moved for a continuance to allow it to obtain and review a 

video of the stop. The state had the right, and even the duty, to review the video prior to 

trial. Since appellant did not raise the speedy trial issue below, he did not challenge the 

reasonableness of the state’s request for a continuance. Thus, appellant did not offer 

any evidence that the state’s motion was not made in good faith. In these 

circumstances, the continuance was not attributable to the state for speedy trial 

purposes. 
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{¶47} On the date scheduled for trial, appellant failed to appear and the trial was 

reset to April 2, 2015. The additional ten days after March 23, 2015 are attributable to 

appellant due to his neglect or improper act in failing to appear. The trial proceeded on 

April 2, 2015, 19 days after the statutory 30-day time limit. 

{¶48} Thus, even if the issue was not waived, appellant’s right to a speedy trial 

was not violated. 

{¶49} For the reasons stated in this opinion, the purported assignment of error 

lacks merit and is overruled. It is the order and judgment of this court that the judgment 

of the Portage County Municipal Court, Kent Division, is affirmed. 

DIANE V. GRENDELL, J., concurs, 

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion. 

____________________ 

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion. 

{¶50} I concur with the majority’s well-reasoned opinion. I write separately 

regarding the matter of appellant’s arguments concerning the alleged violation of his 

statutory speedy trial rights. The majority is correct that speedy trial provisions are not 

self-executing and they can be waived. In this case appellant failed to raise this matter 

in the trial court, effectively waiving any objection. 

{¶51} The majority goes on to note that—even if appellant had not waived his 

speedy trial rights—the result would be the same as a trial court may grant a reasonable 

extension of the speedy trial limit under R.C. 2945.72(H). Extensions under R.C. 
 15

2945.72(H) have been granted for a variety of reasons. State v. Nesser, 2d Dist. Clark 

No. 2013 CA 21, 2014-Ohio-1978 ¶34-36 (Superstorm Sandy); State v. Talley, 6th Dist. 

Lucas No. L-07-1153, 2008-Ohio-6807, ¶15 (snow emergency); State v. Strauss, 11th 

Dist. Portage No. 2010-P-0035, 2011-Ohio-869, ¶14 (unavailability of witness due to 

medical emergency); State v. Mailey, 1st Dist. Hamilton No. C-050590, 2006-Ohio3347, ¶20 (scheduling conflict due to jury trial). 

{¶52} However, in this case the continuance was requested so that the state 

could obtain the video of the traffic stop. It is reasonable to grant an extension of a 

defendant’s statutory speedy trial rights due to events that are outside the control of the 

court or the parties. However, it is not reasonable to grant such an extension so that 

the state can perform regular and routine case-preparation—such as obtaining a video 

of a traffic stop. One would assume that the state would have performed this routine 

function prior to trial. 

{¶53} The state has a duty to exercise due diligence and prepare for trial within 

the statutory time period. State v. Jordan, 10th Dist. Franklin No. 90AP-660, 1991 Ohio 

App. LEXIS 775, *7 (Feb. 21, 1991), citing State v. Reeser, 63 Ohio St.2d 189, 191 

(1980). Having video evidence, taken on the date of arrest, prepared for trial within the 

statutory time period constitutes due diligence. Absent appellant’s waiver, a 

continuance under these circumstances would not be reasonable.