[Cite as State v. McClendon, 2022-Ohio-1441.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

STATE OF OHIO,

Appellee,

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NEATHEN McCLENDON,

Appellant.

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CASE NO. CA2021-09-021

O P I N I O N

5/2/2022

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS

Case No. CRI 20210129

Jess C. Weade, Fayette County Prosecuting Attorney, for appellee.

Steven H. Eckstein, for appellant.

BYRNE, J.

{¶1} Neathen McClendon was convicted of two criminal offenses in the Fayette 

County Court of Common Pleas. McClendon appealed. We affirm McClendon's 

convictions.

I. Procedural and Factual Background

{¶2} In June 2021, a Fayette County grand jury indicted McClendon on three 

counts: (1) count one – tampering with evidence; (2) count two – trafficking in cocaine; and 
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(3) count three – possession of cocaine. The indictment resulted from a search warrant 

executed at a residence in Washington Court House. Officers detained McClendon in a 

bedroom after forcibly entering the home. In the bedroom's ensuite bathroom, officers 

recovered small amounts of crack cocaine on the floor and evidence that suggested that 

McClendon had flushed contraband (likely more crack cocaine) down the toilet.

A. Pre-Trial Discussion Concerning the Search Warrant

{¶3} At the final pretrial conference, McClendon's defense counsel said that he 

would be requesting a copy of the search warrant and could not say until he saw it whether 

he would be raising any challenge to the search warrant. During this conversation, 

McClendon interjected, stating that "it was an arrest warrant. Instead of a search warrant, 

because the residence that I was at it wasn't my residence at all." Ultimately, McClendon's 

counsel did not move to suppress the evidence obtained during the execution of the search 

warrant.

B. The Jury Trial

{¶4} The matter proceeded to a jury trial. Before trial commenced, the court 

discussed pretrial matters with the prosecutor and defense counsel. During this 

conversation, McClendon remarked that he wanted to challenge the search warrant. He 

said that "they" (presumably the officers who conducted the search) had provided him with 

a warrant receipt "that says that ah they uploaded a digital copy of my signature on it, which 

I never signed." Besides claiming that the digital signature he was referring to was not his, 

McClendon also repeated his claim that the residence where he was detained was not his 

residence. McClendon also stated that he "never signed no paperwork like this, for them 

to get a warrant to come search (unintelligible) about me." In response, McClendon's 

defense counsel stated that he had determined that attempts to undermine or challenge the 

search warrant were not going to be beneficial to the case.
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{¶5} Trial commenced and the state presented the testimony of three law 

enforcement officers who participated in the execution of the search warrant.

1. Testimony of Deputy Travis Burden

{¶6} Deputy Burden testified that he was a patrol deputy with the Fayette County 

Sheriff's Office. On March 22, 2021, he was assigned to the Fayette County/Ross County 

Joint Emergency Response Team. That day, the Response Team had been asked to assist 

with execution of a search warrant at a residence located at 323 Forrest Street, Washington 

Court House.

{¶7} Deputy Burden was assigned to the "Entry Team." His job was to enter the 

residence and detain anyone found inside. He was specifically assigned to search the 

second floor for persons who may be found there. Deputy Burden testified that the 

procedure for entry is to knock on the door loudly and announce, "Sheriff's office." If no one 

opened the door, law enforcement would force the door open and enter the residence.

{¶8} Deputy Burden testified that one of the team members knocked loudly on the 

door, two or three times. One of the team members also announced they were with the 

Sheriff's office and had a search warrant, loudly enough for anyone inside to hear. No one 

answered, so the deputies forced the door open. Deputy Burden then entered the 

residence. He estimated that three minutes passed between the first knock and the team 

forcing the door open and entering the home.

{¶9} Deputy Burden observed a female downstairs. But because he was assigned 

to search the second floor, not the first floor, Deputy Burden immediately proceeded 

upstairs. At the top of the stairs, he entered a bedroom to the left of the stairwell and 

observed McClendon lying on the bedroom floor. McClendon had his arms spread away 

from his body. McClendon was "breathing heavily" and was "out of breath." Deputy Burden 

detained McClendon. McClendon made a comment that "he only had weed," presumably 
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meaning marijuana. There was no one else found upstairs. 

2. Testimony of Sergeant John Fausnaugh

{¶10} Sergeant Fausnaugh testified that he was part of the "Investigative Team"

executing the search warrant. While the Entry Team was entering and securing the 

residence, he was in the back of the residence, watching for anyone who might try to 

escape. No one came out of the residence.

{¶11} After officers secured the residence, Sergeant Fausnaugh's job was to 

videotape the interior of the residence and then take photographs. Sergeant Fausnaugh 

testified about photographs that he took in the bedroom where deputies detained

McClendon and in the bedroom's ensuite bathroom. Multiple photographs introduced at 

trial depicted the floor of the bathroom and small white objects on or near a shower mat 

next to the bathtub. Other photos depicted a "Tupperware"-style tray or lid near the base 

of the toilet and a plastic container on the shower mat where the white objects were located. 

Sergeant Fausnaugh also observed and photographed a bag containing over $2,500, which 

was found on a bed in the bedroom, and a "bin," found on a desk in the bedroom, which 

contained a digital scale, scissors, and a knife.

{¶12} Sergeant Fausnaugh observed droplets of water of various sizes on the 

bathroom floor, near the toilet, and "about the toilet seat." The water droplets and their 

locations led him to the conclusion that someone had tried to dispose of drugs by flushing 

them down the toilet.

{¶13} Sergeant Fausnaugh testified that the white objects were collected into 

evidence and sent to the Ohio Bureau of Criminal Investigation ("BCI") for testing. At BCI, 

the white objects tested positive for cocaine.

3. Testimony of Detective Treg Brown

{¶14} Detective Brown testified that he was also present during the execution of the 
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search warrant and entered the house after it had been secured. Besides McClendon, 

there was a female at the residence named Morgan Coil, as well as a 3-week-old infant. 

McClendon and Coil were the parents of the infant.

{¶15} Detective Brown testified about "off-white rocks" found on the bathroom floor 

that he suspected to be crack cocaine and that were collected into evidence. A clear plastic 

container was found closer to where the off-white rocks were found, and this container 

appeared to correspond to the tray or lid photographed lying near the base of the toilet.

{¶16} On cross-examination, Detective Brown testified that he believed that the 

plastic container had held crack cocaine. He did not have it tested for trace amounts of 

cocaine because BCI would not test for trace amounts and the Fayette County Sheriff's 

Office had no other way to test for trace evidence.

{¶17} Through cross-examination of Sergeant Fausnaugh, McClendon's counsel 

introduced several photographs of other items found in the bedroom where McClendon was 

detained. These items included a jar containing what appeared to be marijuana. Under 

cross-examination, Sergeant Fausnaugh agreed that scissors were more consistent with 

marijuana use rather than crack cocaine use, but he maintained that scissors may also be 

consistent with preparation of crack cocaine. And Detective Brown agreed on crossexamination that a buyer of narcotics might use a digital scale to ensure that they were 

receiving the amount sold to them. 

4. Verdict and Sentence

{¶18} McClendon presented no evidence at trial. Upon the conclusion of the trial, 

the jury returned guilty verdicts on tampering with evidence (count one) and possession of 

cocaine (count three). The jury returned a not guilty verdict on trafficking in cocaine (count 

two). The court issued a judgment entry of conviction and sentenced McClendon to a prison 

term. 
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II. Law and Analysis

{¶19} McClendon appealed, raising three assignments of error. McClendon 

presents his first two assignments of error together, and we will address those assignments 

in the same manner.

{¶20} Assignment of Error No. 1:

{¶21} THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST 

THE APPELLANT, WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{¶22} Assignment of Error No. 2:

{¶23} THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST 

APPELLANT, WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶24} The generic phrasing of McClendon's assignments of error suggests he is 

challenging all his convictions—that is, his convictions for tampering with evidence and 

possession of cocaine. However, McClendon only presents argument about the tampering 

with evidence count in the body of his brief. App.R. 12(A)(1)(b) provides that we must 

determine an appeal on its merits on the assignments of error set forth in the briefs under 

App.R. 16. In turn, App.R. 16(A)(7) obligates the appellant to include within his or her brief 

"[a]n argument containing the contentions of the appellant with respect to each assignment 

of error presented for review and the reasons in support of the contentions, with citations to 

the authorities, statutes, and parts of the record on which appellant relies." App.R. 12(A)(2) 

provides that we "may disregard an assignment of error presented for review if the party 

raising it fails to identify in the record the error on which the assignment of error is based or 

fails to argue the assignment separately in the brief, as required under App.R. 16(A)." 

Because McClendon has not set forth any argument concerning count three, we need not 

address whether his conviction for possession of cocaine was supported by sufficient 

evidence, or whether it was against the manifest weight of the evidence. See State v. 
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Constable, 12th Dist. Clermont No. CA2006-12-107, 2007-Ohio-6570, ¶ 5-8.

{¶25} As to the tampering charge, McClendon argues that the state presented 

insufficient evidence that he knew an official proceeding or investigation was in progress or 

that he destroyed or removed evidence. He contends that his conviction resulted from 

impermissible inference stacking. For the same reasons, he argues that the jury lost its 

way in convicting him of tampering with evidence and that his conviction was against the 

weight of the evidence.

{¶26} When reviewing the sufficiency of the evidence underlying a conviction, an 

appellate court examines the evidence to determine whether such evidence, if believed, 

would convince the average mind of the defendant's guilt beyond a reasonable doubt. State 

v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he 

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. Jenks, 61 Ohio St.3d 259 (1991), paragraph 

two of the syllabus.

{¶27} A manifest weight of the evidence challenge examines the "inclination of the 

greater amount of credible evidence, offered at a trial, to support one side of the issue rather 

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 

14. To determine whether a conviction is against the manifest weight of the evidence, the 

reviewing court must look at the entire record, weigh the evidence and all reasonable 

inferences, consider the credibility of the witnesses, and determine whether in resolving the 

conflicts in the evidence, the trier of fact 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. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.

{¶28} In reviewing the evidence, an appellate court must be mindful that the original 
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trier of fact was in the best position to judge the credibility of witnesses and determine the 

weight to be given to the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-

Ohio-1289, ¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the

manifest weight of the evidence only in the exceptional case in which the evidence weighs 

heavily against the conviction. State v. Zitney, 12th Dist. Clinton No. CA2020-06-007, 2021-

Ohio-466, ¶ 15. 

{¶29} "Although the legal concepts of sufficiency of the evidence and weight of the 

evidence are both quantitatively and qualitatively different, '[a] determination that a 

conviction is supported by the manifest weight of the evidence will also be dispositive of the 

issue of sufficiency.'" State v. Billingsley, 12th Dist. Butler Nos. CA2019-05-075 and 

CA2019-05-076, 2020-Ohio-2673, ¶ 15, quoting State v. Jones, 12th Dist. Butler No. 

CA2012-03-049, 2013-Ohio-150, ¶ 19.

{¶30} The jury found McClendon guilty of tampering with evidence in violation of 

R.C. 2921.12(A)(1). That statute provides, "No person, knowing that an official proceeding 

or investigation is in progress, or is about to be or likely to be instituted, shall do any of the 

following: (1) Alter, destroy, conceal, or remove any * * * thing, with purpose to impair its 

value or availability as evidence in such proceeding or investigation * * *." R.C. 

2921.12(A)(1).

{¶31} As stated above, McClendon argues that the state failed to present sufficient 

evidence, proving beyond a reasonable doubt, that he knew an investigation was in 

progress or was likely to be implemented, and that the jury lost its way in so finding. But 

Deputy Burden testified that the Entry Team members loudly knocked on the door and 

loudly announced they were with the sheriff's office and were executing a search warrant. 

They knocked and announced several times over the course of three minutes before forcing 

entry. Deputy Burden stated that the level of noise was such that he believed that anyone 
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inside the home would have been able to hear the knocking and the announcement. Deputy 

Burden testified that he kept announcing "Sheriff's office" after entering the residence. 

{¶32} Deputy Burden made his way upstairs, where he found McClendon lying 

prone on the floor with his arms stretched out. McClendon's position would suggest he 

knew law enforcement officers were in the home and that he would soon be detained. Given 

this testimony, we do not find that the jurors lost their way in finding that the state proved 

that McClendon had knowledge of an official proceeding or investigation under R.C. 

2921.12(A)(1). 

{¶33} Next, McClendon argues that the state failed to present sufficient evidence 

that he altered, destroyed, concealed, or removed anything in violation of R.C. 

2921.12(A)(1), and that the jury lost its way in finding that he did so. But there was an 

abundance of circumstantial evidence, which, when viewed collectively, indicated that 

McClendon disposed of narcotics evidence by flushing it down the toilet. Jenks, 61 Ohio 

St.3d at 272-273 (circumstantial evidence has the same probative value as direct evidence

and is sufficient to prove the elements in a criminal case). That evidence consisted of water 

droplets strewn about the bathroom in various locations, including near the toilet and farther 

away from it. The jury could have concluded that this suggested that McClendon threw 

objects into the toilet bowl with sufficient force to spray water outside the toilet. 

{¶34} A part of a plastic container, appearing to be a tray or lid, was near the base 

of the toilet and a corresponding container was found on the other half of the bathroom 

floor, where small fragments of crack cocaine were recovered. This would circumstantially 

indicate that the container contained the narcotics that McClendon had flushed down the 

toilet and that some of those narcotics had not been successfully flushed. 

{¶35} The overall condition of the bathroom was clean and tidy. The haphazardly 

scattered plastic container pieces as well as the crack cocaine rocks strewn about the floor 
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contrasted with this tidiness. The jury could have concluded that this evidence suggested 

that McClendon engaged in a frenzied but failed attempt to dispose of all the narcotics from 

the plastic container.

{¶36} Finally, McClendon was the only person located on the second floor when the 

search warrant was executed. His behavior upon being located by police—that is, lying 

prone in the bedroom and breathing heavily—circumstantially corroborated a frenetic 

attempt to dispose of narcotics. His unprompted statement that he "only had weed"

evidences a guilty mind and an effort to distract officers from his attempts to destroy the 

crack cocaine that officers recovered in the nearby bathroom. Given this testimony and the 

corresponding photographs introduced at trial, we do not find that the jury lost its way. See

State v. Moffett, 6th Dist. Sandusky No. S-10-056, 2012-Ohio-1107 (affirming tampering 

with evidence conviction based in part on circumstantial evidence of narcotics having been 

flushed down toilet following knock-and-announce search warrant, including water on the 

toilet seat and on the bathroom floor).

{¶37} The inferences in this case were not derived wholly from other inferences. 

See State v. Braden, 12th Dist. Preble No. CA2013-12-012, 2014-Ohio-3385, ¶ 12, quoting 

State v. Cooper, 147 Ohio App.3d 116, 126 (12th Dist.2002) ("It is well-established that '[a] 

trier of fact may not draw an inference based entirely upon another inference, unsupported 

by any additional fact or another inference from other facts.'"). Instead, all inferences as to 

McClendon's conduct before Deputy Burden's arrival were based on evidence presented to 

the jurors. Thus, the jury was not required to impermissibly stack inferences to find 

McClendon guilty of tampering with evidence. See Braden at ¶ 13, quoting State v. 

Maynard, 10th Dist. Franklin No. 11AP-697, 2012-Ohio-2946, ¶ 27 (the rule against stacking 

inferences "does not prohibit using parallel inferences with additional facts, nor does it 

'prohibit the drawing of multiple, separate inferences from the same set of facts.'").
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{¶38} For all these reasons, we find that the jurors did not lose their way in convicting 

McClendon and that his conviction was supported by the greater weight of the evidence. 

Our finding that McClendon's conviction was not against the manifest weight of the evidence 

is dispositive on the issue of sufficiency of the evidence. Billingsley, 2020-Ohio-2673, at ¶ 

15. We therefore overrule McClendon's first and second assignments of error.

{¶39} Assignment of Error No. 3:

{¶40} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN VIOLATION 

OF DEFENDANT-APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND 

SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION & ARTICLE I, 

SECTION 14 OF THE OHIO CONSTITUTION.

{¶41} McClendon argues that his trial counsel provided constitutionally defective 

assistance by failing to move to suppress evidence obtained via the search warrant. In 

support, McClendon cites his statements contesting the search warrant made on the record 

before trial. McClendon argued that the search warrant was invalid because the return 

stated that he had provided his electronic signature, when he denied doing so.

{¶42} To prevail on his ineffective assistance of counsel claim, McClendon must 

show that his trial counsel's performance was deficient, and that he was prejudiced as a 

result. State v. Petit, 12th Dist. Madison No. CA2016-01-005, 2017-Ohio-633, ¶ 39; 

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). The failure to satisfy 

either prong of the Strickland test is fatal to an ineffective assistance of counsel claim. Petit

at ¶ 39. Trial counsel's performance will not be deemed deficient unless it fell below an 

objective standard of reasonableness. Strickland at 688. To show prejudice, McClendon 

must establish that, but for trial counsel's errors, there is a reasonable probability that the 

result of the proceeding would have been different. Id. at 694.
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{¶43} The failure to move to suppress evidence does not constitute per se 

ineffective assistance of counsel. State v. Smith, 12th Dist. Fayette No. CA2014-05-013, 

2015-Ohio-1094, ¶ 44. To establish ineffective assistance of counsel for failure to move to 

suppress, a defendant must be able to prove that there was a basis for suppression of the 

evidence in question. State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, ¶ 65. Even 

when there is some evidence in the record to support a motion to suppress, "an appellate 

court presumes that defense counsel was effective if defense counsel could reasonably 

have decided that the motion to suppress would have been futile." State v. Dominguez, 

12th Dist. Preble No. CA2011-09-010, 2012-Ohio-4542, ¶ 20.

{¶44} McClendon supplemented the appellate record with a copy of the search 

warrant and its attached return, titled "RETURN;RECEIPT; INVENTORY OF SEARCH 

WARRANT." There is a signature line on this document where McClendon's signed name 

appears. While the record is unclear on what document McClendon was referring to, this 

is presumably the document.

{¶45} In his appellate brief, McClendon fails to articulate how this document, or how 

McClendon's claim that the document falsely stated that he provided his digital signature, 

would support the filing of a motion to suppress. This is the case because the search 

warrant was not authorized based on any information or averments in the search warrant 

return, as the return on its face was clearly prepared after the search warrant was executed. 

McClendon also appears to misread the return when he contends that the return states he 

provided his digital signature. Upon review, we find no such language in the return. Instead, 

the only reference to anything "digital" or "electronic" in the return is in the space for the 

detective who completed the form to provide an inventory of property taken pursuant to the 

warrant. In that space, the detective wrote, by hand, "Image copy of Electronically Stored 

Data." This reference is unclear, but perhaps it was a reference to the cell phone that 
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Detective Brown testified was found in the bedroom and was taken for later review. In any 

case, an "Image Copy of Electronically Stored Data" is not a digital signature.

{¶46} Moreover, McClendon repeatedly disclaimed that 323 Forrest Street was his 

residence. Fourth Amendment privacy rights are "'personal rights which, like some other 

constitutional rights, may not be vicariously asserted.'" Rakas v. Illinois, 439 U.S. 128, 133, 

99 S.Ct. 421 (1978), quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961 

(1969). As a result, a person who alleges error using evidence taken from someone else's 

property cannot claim that his own rights have been violated. State v. Coleman, 45 Ohio 

St.3d 298, 306 (1989). Only those whose personal rights have been violated can raise 

Fourth Amendment claims. Id. Thus, to challenge a search or seizure on Fourth 

Amendment grounds, a defendant must possess a legitimate expectation of privacy in the 

area searched, and the burden is upon the defendant to prove facts sufficient to establish 

such expectation. State v. Renner, 12th Dist. Clinton No. CA2002-08-033, 2003-Ohio6550, ¶ 9. McClendon's disclaimer of 323 Forrest as his residence undercuts any argument 

that he had a reasonable expectation of privacy under the Fourth Amendment or the Ohio 

Constitution and that he could have mounted a successful challenge to the search warrant.1

{¶47} The record reflects that McClendon's counsel obtained a copy of the search 

warrant, reviewed it, and determined that it would not be beneficial to attempt to challenge. 

There is nothing in the record or on the face of the search warrant that would suggest that 

this decision was anything but a reasonable exercise of professional judgment. McClendon 

has failed to prove a basis to suppress the evidence collected by law enforcement and 

therefore is unable to establish ineffective assistance of counsel. Brown, 2007-Ohio-4837 

1. With certain exceptions not applicable here, the Ohio Supreme Court has held that the Ohio Constitution 

affords protections coextensive with the Fourth Amendment. State v. Robinette, 80 Ohio St.3d 234, 245 

(1997); State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, ¶ 23.
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at ¶ 65. We overrule McClendon's third assignment of error.

III. Conclusion

{¶48} For the reasons discussed above, we find that McClendon's conviction for 

tampering with evidence was supported by sufficient evidence as well as the greater weight 

of the evidence. We also find that McClendon has not established that his trial counsel 

provided ineffective assistance by failing to move to suppress evidence obtained through 

the search warrant.

{¶49} Judgment affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.