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Date: 11-08-2018

Case Style:

STATE OF OHIO v. RAYLON A. DAVIS

Case Number: 1-17-44 1-17-45

Judge: William R. Zimmerman

Court: COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

Plaintiff's Attorney: Michael A. Partlow

Defendant's Attorney: Jana E. Emerick

Description:







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On March 14, 2014, (then) Lima Police Department Patrolman Trent
Kunkleman (“Kunkleman”) was on third shift patrol in the city of Lima, Ohio.
(Doc. No. 146). Around 3:20 a.m., Kunkleman responded to a police dispatch to a



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downtown parking lot in Lima in regards to a suspicious silver vehicle. (Id.). Upon
arriving at the parking lot, Kunkleman located a grey Hyundai. (Id.). Kunkleman
testified that the Hyundai was the only vehicle in the parking lot, so he shined his
spotlight into the vehicle, identifying the Appellant as its sole occupant. (Id.).
{¶3} A second Lima police officer, Sergeant Hillard (“Hillard”), arrived at
the parking lot shortly after Kunkleman. (Id.). Hillard testified that he received a
police dispatch that a suspicious vehicle’s car alarm was going off1 in the Lima
parking lot in question. (Id.).
{¶4} After Hillard arrived, Kunkleman walked up to the Appellant’s vehicle
in an attempt to engage Appellant in conversation, but Appellant did not respond.
(Id.). Instead, Appellant exited his vehicle, turned his back to Kunkleman, and then
leaned back into the vehicle. (Id.). Kunkleman testified that he was unable to see
Appellant’s hands, but was able to smell an overwhelming odor of raw marijuana.
(Id.). At this point, Kunkleman became alarmed that Appellant might be reaching
into his vehicle for a weapon, so he pulled Appellant away from the car. (Id.).
Officers Kunkleman and Hillard testified that they saw the Appellant placing his
hand down into his pants pocket at this point. (Id.). Two additional law enforcement
officers, who had also arrived on the scene, then grabbed Appellant and patted him
down for officer safety. (Id.). During the pat down, officers testified that there was
1 Dash-cam video entered into evidence confirms that a car alarm was going off. (Id.; Mot. To Suppress Hearing, 06/30/2016, State’s Ex. 2).



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a strong odor of marijuana coming from Appellant. (Id.). Officers testified that
they felt a “baggie” in Appellant’s left pocket. (Id.). Officers removed the baggie,
which contained drugs. (Id.). Appellant was then arrested. (Id.).
{¶5} After Appellant’s arrest, Kunkleman returned to the vehicle to
investigate the odor of marijuana coming from it. (Id.). Hillard, who was also at
the vehicle at this time, searched the vehicle, and found a paper sack under the
driver’s seat that contained a large amount of cocaine. (Id.). In addition to the
cocaine, officers located heroin, marijuana, ecstasy pills, a digital scale, and a ledger
in the vehicle. (Id.).
Procedural Background - Case Number CR 2014 0118
{¶6} On May 15, 2014, the Allen County Grand Jury indicted Appellant on
three (3) counts, including: Count One, possession of drugs (cocaine) in violation
of R.C. 2925.11(A)&(C)(4)(e), a first degree felony; Count Two, possession of
drugs (heroin) in violation of R.C. 2925.11(A)&(C)(6)(b), a fourth degree felony;
and Count Three, aggravated possession of drugs (ecstasy) in violation of R.C.
2925.11(A)&(C)(1)(a), a fifth degree felony. (Doc. No. 3).
{¶7} Ultimately, Appellant was arraigned in the Allen County Common
Pleas Court on January 23, 2015.2 (Doc. No. 13). Appellant’s recognizance bond
2 The record reveals a significant gap in time between Appellant’s indictment and his arraignment. However, the record also reveals that Appellant made his initial appearance in the Lima Municipal Court on March 21, 2014, wherein he posted a $500,000 cash surety bond and was released. (Doc. No. 2).



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was set at $100,000 cash or surety, which Appellant posted. (Doc. No. 11).
However, on October 1, 2015, the trial court ordered that Appellant’s bond be
forfeited because he failed to appear for a pre-trial conference. (Doc. No. 32). A
bench warrant for Appellant’s arrest was then issued by the trial court. (Id.).
{¶8} On September 17, 2015, Appellant was indicted on new charges in
Allen County.3
{¶9} On February 19, 2016, Appellant was apprehended by the US
Marshall’s Service in Detroit, Michigan. (Doc. No. 34). After returning to Allen
County, the trial court ordered that the Appellant be held in the Allen County Jail,
without bond, until further order of the Court. (Doc. No. 38). Appellant’s jury trial
was then scheduled for April 19, 2016. (Doc. No. 69).
{¶10} On April 12, 2016, Appellant filed a motion to suppress in the trial
court. (Doc. No. 87). On May 5, 2016, Appellant executed a waiver of his right to
speedy trial. (Doc. No. 115).
{¶11} A hearing on the motion to suppress occurred on June 30, 2016. (Doc.
No. 138). And, on July 21, 2016, the trial court issued its ruling overruling
Appellant’s motion to suppress. (Doc. No. 146).
{¶12} On July 7, 2016, the State filed a motion to consolidate Appellant’s
cases. (Doc. No. 137). Appellant filed his oppositions to the State’s motion to
3 This is Case Number CR 2015 0361, which we will address infra.



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consolidate on July 15, 2016 and on August 22, 2016. (Doc. Nos. 139; 159). On
August 26, 2016 the trial court consolidated the cases. (Doc. No. 163).
{¶13} On August 3, 2016, Appellant signed and filed a second waiver of his
speedy trial rights in the trial court. (Doc. No. 155). Appellant’s jury trial was
rescheduled for December 20, 2016. (Doc. No. 169). On November 28, 2016,
Appellant, through counsel, filed a motion to continue. (Doc. No. 171).
Specifically, Appellant’s trial counsel represented to the court that he had
encountered difficulty contacting potential defense witnesses in preparation for trial.
(Id.). A hearing was held on Appellant’s motion for a continuance on November
30, 2016. (Doc. No. 174). At the hearing, Appellant refused to further waive his
right to a speedy trial beyond the January 1, 2017 date set forth in Appellant’s
previous waiver. (Id. at 2). Despite Appellant’s refusal, the trial court found that a
sixty (60) day continuance was necessary and not unreasonable under the
circumstances. (Id. at 8). Appellant’s trial was set for February 21, 2017. (Id.).
{¶14} On February 3, 2017, the State filed its motion for a continuance, due
to the Ohio Supreme Court’s recent decision in State v. Gonzales, requiring that the
State must prove the actual weight of a drug in question, (excluding any filler
materials) to meet the statutory weight requirement. (Doc. No. 180). Stated better,
based on the change in the prosecution of drug offenses under State v. Gonzales, the
State requested additional time to determine the actual weight of the cocaine



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possessed by Appellant. Appellant objected to the State’s motion for continuance.
(Doc. No. 181). The trial court, finding that the Ohio Supreme Court’s decision in
Gonzales was a significant departure from previous precedent and custom in drug
prosecutions, granted the State’s motion. (Doc. No. 182). Ultimately, Appellant’s
trial was rescheduled for May 16, 2017. (Doc. No. 184).
{¶15} On April 12, 2017, Appellant filed a motion to dismiss in the trial
court. (Doc. No. 202). Specifically, Appellant requested that his cases be
dismissed, pursuant to R.C. 2945.73(B) and R.C. 2945.71(C)(2), because he had
been held in custody for 276 days, which exceeded the statutorily permissible 270
days. (Id.). The State responded to Appellant’s motion, arguing that the time
involving its continuance (of February 3, 2017) should not count against it, because
that continuance was “reasonable and necessary” under the circumstances of the
case. (Doc. No. 205). The trial court overruled Appellant’s motion on April 19,
2017. (Doc. No. 206).
{¶16} On May 9, 2017, the Appellant fired his trial counsel and a new
attorney was appointed to represent the Appellant. (Doc. No. 211). As a result,
Appellant’s trial was rescheduled for August 1, 2017. (Doc. No. 214).
{¶17} On July 28, 2017, Appellant filed a pro se “motion for pro se counsel”
and a “motion for continuance of trial date.” (Doc. Nos. 237; 238). Appellant
alleged that his current counsel had failed to file pretrial motions and subpoena



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witnesses in preparation for his upcoming trial. (Id.). The trial court overruled
Appellant’s motions on August 1, 2017, finding that Appellant had five (5) different
attorneys during the pendency of his cases, and that extensive pretrial discovery had
been conducted during the course of the cases. (Doc. No. 239).
{¶18} Appellant’s jury trial commenced on August 1, 2017. (Doc. No. 243).
Prior to the start of the trial, in case number CR 2014 0118, the State made an oral
motion to amend Count One in the indictment, possession of cocaine, a felony of
the first degree, to possession of cocaine, a felony of the second degree. (Id.). The
trial court granted the State’s motion. (Id.) Further, the State made an oral motion
to dismiss Count Three in the indictment, aggravated possession of drugs, a felony
of the fifth degree, which the trial court also granted. (Id.). The Appellant did not
object to either motion.
{¶19} Appellant’s trial ended August 3, 2017, with the jury finding the
Appellant guilty of Count I, possession of cocaine, a felony of the second degree
and of Count II, possession of heroin, a felony of the first degree. (Id.).
{¶20} Ultimately, and in case number CR 2014 0118, the trial court
sentenced the Appellant to consecutive prison terms of six (6) years (Count I) and
twelve (12) months (Count II) on September 14, 2017. (Doc. No. 244).





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Factual Background - Case Number 2015 CR 0361

{¶21} On January 12 or 13, 2015, investigators with the West Central Ohio
Criminal Task Force (“WCOCTF”) commenced an investigation to locate the
Appellant, due to Appellant’s outstanding warrants. (Doc. No. 100). On January
12, 2015, the Lima Police Department received an anonymous telephone call4 that
Appellant was staying at 1222 Catalpa Street in Lima, Ohio. (Id.). The caller further
advised officers that Appellant was not a tenant on the lease at that location. (Id.).
Sgt. Charles Godfrey, (“Godfrey”) then a supervisor at WCOCTF, attempted to
contact the anonymous caller to verify the information provided, but was unable to
do so. (Id.). So, based on the information provided (by the anonymous caller),
Godfrey set up an undercover operation on January 13, 2015 to monitor the 1222
Catalpa Street residence in an attempt to locate Appellant. (Id.).
{¶22} On January 17, 2015, Godfrey observed a Chrysler 300 parked at the
Catalpa Street residence. (Id.). Later that day, an individual in a hooded sweatshirt
left the residence in that vehicle. (Id.). Since the vehicle’s windows were heavily
tinted, and because Godfrey could not see inside it, Godfrey arranged for the Ohio
State Highway Patrol to stop the vehicle for a tinted windows violation. (Id.). When
the Chrysler was stopped a person identified as “Watkins” was located as a
passenger in the vehicle. (Id.). Watkins told law enforcement officials that he and
4 The anonymous caller was later identified as the landlord of the duplex wherein Appellant was staying. (See, Mot. to Suppress Hrg., 10/20/2016 Tr. at 7).



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the driver had been visiting “Ray” at 1222 Catalpa Street. (Id.). When shown a
picture of Appellant, Watkins confirmed that “Ray” was the Appellant. (Id.).
{¶23} With that information (from Watkins), Godfrey returned to 1222
Catalpa Street, believing that Appellant was present in the residence. (Id.). And,
after verifying that Appellant still had active outstanding warrants, Godfrey went to
the residence’s front door while law enforcement set up a perimeter around the
house. (Id.). Godfrey knocked on the door, identified that he was a police officer,
and that he had a warrant for Appellant’s arrest. (Id.). Godfrey further advised that
if the door wasn’t opened it would be knocked down. (Id.).
{¶24} While Godfrey was at the front door attempting to kick it in, another
investigator radioed Godfrey, advising him that the Appellant was seen leaving the
residence through the back door, but then returned into the residence when law
enforcement officials were seen. (Id.).
{¶25} Law enforcement eventually entered the house, located Appellant, and
arrested him on the outstanding warrants. (Id.). During a protective sweep of the
residence, officers observed a “marijuana grow tent” in plain view. (Id.). Officers
observed several marijuana plants and a marijuana grow operation inside the tent
(which was searched because it was large enough to conceal a person). (Id.). Based
on the Appellant’s arrest and the officer’s observations during the protective sweep,
law enforcement immediately obtained a search warrant for the residence. (Id.).



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Procedural Background - Case Number CR 2015 0361

{¶26} On September 17, 2015, Appellant was indicted by the Allen County
Grand Jury in case number CR 2015 0361 on five counts: Count One, possession of
drugs (cocaine) in violation of R.C. 2925.11(A)&(C)(4)(d), a second degree felony;
Count Two, possession of drugs (heroin) in violation of R.C.
2925.11(A)&(C)(6)(d), a second degree felony; Count Three, possession of drugs
(marijuana) in violation of R.C. 2925.11(A)&(C)(3)(d), a third degree felony; Count
Four, illegal cultivation of marijuana in violation of R.C. 2925.04(A)&(C)(5)(d), a
third degree felony; and Count Five, having weapons while under disability, in
violation of R.C. 2923.13(A)(3)&(B), a felony of the third degree. (Doc. No. 1).
Furthermore, Counts One, Two, Three, and Four each contained the following
specifications: 1) Specification for Forfeiture of a Gun in a Drug Case, pursuant to
R.C. 2941.1417(A); 2) Specification for Forfeiture of Money in a Drug Case,
pursuant to R.C. 2941.1417(A); 3) Specification for Forfeiture of Property,
pursuant to R.C. 2941.1417(A); 4) Specification for Forfeiture of a Gun in a Drug
Case, pursuant to R.C. 2941.1417(A); and 5) Specification for Forfeiture of a Gun
in a Drug Case, pursuant to R.C. 2941.1417(A). (Id.).
{¶27} On February 25, 2016, Appellant was arraigned in the trial court and
entered pleas of “not guilty to all counts and specifications” in the indictment. (Doc.
No. 9). Appellant’s jury trial was scheduled for May 10, 2016. (Doc. No. 14).



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{¶28} On April 15, 2016, Appellant filed a motion to suppress/motion in
limine in the trial court. (Doc. No. 25). Specifically, Appellant argued that law
enforcement’s warrantless search of the residence (where Appellant was located)
was unconstitutional. (Id.). Further, Appellant filed a motion to continue his trial
on May 5, 2016, so his pending motion to suppress could be heard. (Doc. No. 28).
He also executed a waiver of his speedy trial rights pursuant to R.C. 2945.71 on the
same date. (Doc. No. 30). The trial court granted his continuance and Appellant’s
jury trial was rescheduled for September 20, 2016. (Id.).
{¶29} On July 7, 2016, the State filed a motion to consolidate both of
Appellant’s criminal cases. (Doc. No. 39). Appellant opposed the State’s request.
(See, Doc. No. 48).
{¶30} On August 3, 2016, Appellant executed another waiver of his speedy
trial rights pursuant to R.C. 2945.71. (Doc. No. 61). However, Appellant’s waiver
and continuance was for a date certain, January 1, 2017. (Id.).
{¶31} Appellant, through his then counsel, filed an additional motion to
suppress in the trial court on August 22, 2016. (Doc. No. 76). Also on that date,
Appellant filed a supplemental motion in opposition to the State’s motion to
consolidate his cases. (Doc. No. 77).
{¶32} On August 26, 2016, the trial court granted the State’s motion to
consolidate. (Doc. No. 82). Specifically, the trial court found that the charges were



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of the same or similar character sufficient to permit joinder, and that Appellant failed
to demonstrate sufficient information to show that joinder violated his right to a fair
trial. (Id.).
{¶33} On September 27, 2016, Appellant’s jury trial was rescheduled for
December 20, 2016. (Doc. No. 93).
{¶34} On October 20, 2016, the trial court held a motion hearing on
Appellant’s motion to suppress. (Motion to Suppress Hearing, 10/20/2016 Tr.).
The trial court found, based upon the evidence presented, that the search warrant of
1222 Catalpa Street was supported by sufficient probable cause and further found
that statements that Appellant made to law enforcement officials did not require
Miranda warnings because Appellant made unsolicited statements that were not the
result of police interrogation. (Doc. No. 100).
{¶35} On November 28, 2016, Appellant filed another motion for
continuance of his jury trial, averring that his counsel had encountered difficulty
locating a potential witness. (Doc. No. 102). The trial court granted the motion and
continued Appellant’s jury trial until February 21, 2017. (Doc. No. 105).
{¶36} On February 3, 2017, the State filed its motion for a continuance, due
to the Ohio Supreme Court’s recent decision in State v. Gonzales, requiring that the
State must prove the actual weight of a drug in question, (excluding any filler
materials) to meet the statutory weight requirement. (Doc. No. 107). Stated better,



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based on the change in the prosecution of drug offenses under State v. Gonzales, the
State requested additional time to determine the actual weight of the cocaine
possessed by Appellant. Appellant objected to the State’s motion for continuance.
(Doc. No. 108). The trial court, finding that the Ohio Supreme Court’s decision in
Gonzales was a significant departure from previous precedent and custom in drug
prosecutions, granted the State’s motion for a continuance. (Doc. No. 109).
Ultimately, Appellant’s trial was rescheduled for May 16, 2017. (Doc. No. 111).
{¶37} On April 12, 2017, Appellant filed a motion to dismiss in the trial
court. (Doc. No. 139). Specifically, Appellant requested that his cases be
dismissed, pursuant to R.C. 2945.73(B) and R.C. 2945.71(C)(2), because he had
been held in custody for 276 days, which exceeded the statutorily permissible 270
days. (Id.). The State responded to Appellant’s motion, arguing that the time
involving its continuance (of February 3, 2017) should not count against it, because
that continuance was “reasonable and necessary” under the circumstances of the
case. (Doc. No. 140). The trial court overruled Appellant’s motion on April 19,
2017. (Doc. No. 141).
{¶38} On May 9, 2017, the Appellant fired his trial counsel and a new
attorney was appointed to represent the Appellant. (Doc. No. 147). As a result,
Appellant’s trial was rescheduled for August 1, 2017. (Doc. No. 150).



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{¶39} On July 24, 2017, Appellant filed a pro se “motion for pro se counsel.”
(Doc. No. 173). On July 28, 2017, Appellant filed an additional “motion for pro se
counsel” as well as a “motion for continuance of the trial date,” “motion for specific
discovery,” and “motion to suppress evidence.” (Doc. Nos. 180; 181; 182; 183).
Appellant, through his various motions, alleged that his current counsel had failed
to file pretrial motions and subpoena witnesses in preparation for his upcoming trial.
(Id.). The Appellant further alleged that the State had failed to provide specific
discovery. (Doc. No. 182). On August 1, 2017, the trial court overruled Appellant’s
motions, finding that the Appellant had five (5) different attorneys during the
pendency of his cases, and that extensive pretrial discovery had been conducted
during the course of the case. (Doc. No. 186).
{¶40} Appellant’s jury trial commenced on August 1, 2017. (Doc. No. 194).
Prior to the start of the trial, in case number CR 2015 0361, the State made an oral
motion to amend Count Three in the indictment, possession of marijuana, a felony
of the third degree, to possession of marijuana, a felony of the fifth degree, which
the trial court granted. (Id.) The Appellant did not oppose the amendment. (Id.).
{¶41} Appellant’s trial ended August 3, 2017, with the jury finding
Appellant guilty of all charges. (Id.). Further, Appellant was found guilty of all
specifications except for the specification for property (electronics) contained in
Count One and Count Two. (Id.).



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{¶42} Appellant was sentenced on September 14, 2017 in the trial court and
was ordered to serve a prison term of: seven (7) years in prison under Count One;
seven (7) years in prison under Count Two; twelve (12) months in prison under
Count Three; thirty (30) months in prison under Count Four; and thirty-six (36)
months in prison under Count Five. (Doc. No. 200). The trial court further ordered
that all counts be served consecutively to each other and consecutively to the prison
sentence imposed in case number CR 2014 0118. (Id.). With regards to the
specifications, the firearms were ordered to be forfeited to the WCOCTF; the money
was ordered to be forfeited to the WCOCTF; and the electronics (subject to the
specification in Counts Three and Four) were ordered forfeited to the WCOCTF.
(Id.). Appellant’s prison sentences totaled twenty-eight (28) and a half years. (Id.).
{¶43} From the judgments in case number CR 2014 0118 and case number
CR 2015 0361 Appellant timely appeals, and presents the following assignments of
error for our review:
ASSIGNMENT OF ERROR NO. I
APPELLANTS [SIC] CONVICTIONS ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE.

ASSIGNMENT OF ERROR NO. II
APPELLANTS [SIC] CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.






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ASSIGNMENT OF ERROR NO. III
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS IN THAT REGARD.

ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED IN DENYING THE APPELLANTS [SIC] MOTION TO DISMISS THE CASE BASED UPON VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL.

ASSIGNMENT OF ERROR NO. V
THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY PERMITTING THE APPELLEE TO PRESENT EXPERT TESTIMONY BY AN EXPERT WITNESS THAT HAD NOT PROVIDED A REPORT.

ASSIGNMENT OF ERROR NO. VI
THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANT, BY CONSOLIDATING THE TWO TRIALS FOR SEPARATE AND DISTINCT CASES AGAINST APPELLANT.

ASSIGNMENT OF ERROR NO. VII
THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANT, BY DENYING APPELLANTS [SIC] MOTION TO SUPPRESS ALL EVIDENCE PRESENTED IN CASE NUMBER 0118.

ASSIGNMENT OF ERROR NO. VIII
THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANT, BY DENYING APPELLANTS [SIC] MOTION TO SUPPRESS ALL EVIDENCE PRESENTED IN CASE NUMBER 0361.



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{¶44} For ease of discussion, we elect to address interrelated assignments
together.
Appellant’s First Assignment of Error

{¶45} In his first assignment of error, Appellant argues that there was
insufficient evidence in both case number CR 2014 0118 and CR 2015 0361 to
sustain his convictions. For the reasons outlined below, we disagree.
Standard of Review

{¶46} “Whether there is legally sufficient evidence to sustain a verdict is a
question of law.” State v. Lyle, 3rd Dist. Allen No. 1-14-41, 2015-Ohio-1181, ¶ 8
citing State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
Sufficiency is a test of adequacy. Id. Under a challenge alleging insufficient
evidence, “‘the relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.’” Id. quoting
State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77.
Analysis – Case Number CR 2014 0118

{¶47} In case number CR 2014 0118, Appellant was found guilty in Count I
of possession of drugs (cocaine) and guilty in Count II of possession of drugs
(heroin), both in violation of R.C. 2925.11(A), which states:



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(A) No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.

(Emphasis added). R.C. 2925.11(A).

{¶48} On appeal, Appellant argues that the State failed to produce any
evidence proving that Appellant owned or possessed the contents (i.e. heroin and
cocaine) of the motor vehicle in question. “‘Possess’ or ‘possession’ means having
control over a thing or substance, but may not be inferred solely from mere access
to the thing or substance through ownership or occupation of the premises upon
which the thing or substance is found.” R.C. 2925.01(K). “‘The issue of whether a
person charged with drug possession knowingly possessed a controlled substance is
to be determined from all the attendant facts and circumstances available.’” State
v. Frye, 3rd Dist. Allen No. 1-17-30, 2018-Ohio-894, ¶ 50 quoting State v. Brooks,
3rd Dist. Hancock No. 5-11-11, 2012-Ohio-5235, ¶ 45. See also, State v. Teamer,
82 Ohio St.3d 490, 492, 1998-Ohio-193, 696 N.E.2d 1049 (1998).
{¶49} “‘Possession of drugs can be either actual or constructive.’” Id. at ¶
51, quoting State v. Bustamante, 3rd Dist. Seneca Nos. 13-12-26, 13-13-04, 2013
Ohio-4975, ¶ 25. “‘A person has “actual possession” of an item if the item is within
his immediate physical possession.’” State v. Watts, 3rd Dist. Hancock No. 5-12
34, 2016-Ohio-257, ¶ 11, quoting State v. Williams, 4th Dist. Ross No. 03CA2736,
2004-Ohio-1130, ¶ 23. “‘A person has ‘constructive possession’ if he is able to
exercise dominion and control over an item, even if the individual does not have



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immediate physical possession of it.” Id. quoting Williams, 4th Dist. Ross No.
03CA2736, 2004-Ohio-1130, ¶ 23. “Ownership need not be proven to establish
constructive possession.” State v. Voll, 3rd Dist. Union No. 14-12-04, 2012-Ohio
3900, ¶ 18. “Furthermore, ‘readily usable drugs in close proximity to an accused
may constitute sufficient circumstantial evidence to support a finding of
constructive possession.’” Id. quoting State v. Ruby, 149 Ohio App.3d 541, 2002
Ohio-5381, 778 N.E.2d 101, ¶ 36.
{¶50} The State may establish constructive possession by circumstantial
evidence alone. Id. at ¶ 19. “Absent a defendant’s admission, the surrounding facts
and circumstances, including the defendant’s actions, are evidence that the trier of
fact can consider in determining whether the defendant had constructive
possession.” Id.
{¶51} In case number CR 2014 0118, the State produced competent and
credible evidence establishing that Appellant had possession of the cocaine and
heroin as charged. Specifically, Kunkleman testified that on March 21, 2014 at
approximately 3:20 a.m., he was dispatched to a report of a suspicious vehicle sitting
in the parking lot of 234 North Main Street. (Trial, 08/01/2017 Tr., Vol. I at 63-64).
Kunkleman pulled up behind the vehicle to run the plates, and noticed that an
African-American male was sitting in the driver’s seat. (Id. at 66). The male, who
was later identified as Appellant, was the sole individual in the vehicle. (Id.). As



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Kunkleman exited his vehicle, Appellant exited the vehicle in which he was sitting.
(Id. at 67). Appellant then began walking towards Kunkleman, and refused to
engage him in conversation. (Id.). Shortly thereafter, Appellant turned around and
walked back to towards the vehicle. (Id.). Kunkleman followed Appellant back to
the vehicle, and noticed the overwhelming smell of marijuana coming from the car.
(Id. at 68). Appellant was observed leaning into the driver’s compartment and
grabbing at something on the floorboard. (Id.). Appellant refused to comply with
Kunkleman’s request to exit the vehicle, and as a result Kunkleman pulled him away
from the vehicle for officer safety. (Id.). Hillard, who had arrived at the scene
simultaneously with Kunkleman, looked inside the vehicle and found a paper bag
with cocaine in it sticking out from under the driver’s seat. (Id. at 66, 71). Upon
searching the center armrest, Kunkleman found a baggie that contained heroin
inside it. (Id. at 71). Upon conducting a pat down of Appellant for officer safety,
a large amount of money (over $5,000) was located on Appellant’s person. (Id. at
70).
{¶52} This evidence, when viewed in a light most favorable to the State,
could lead a rational trier of fact to find that Appellant had constructive possession
of the drugs in the vehicle. Appellant was the only person in the vehicle at the time
of the stop. Further, the drugs in the vehicle were located on the driver’s side
floorboard and the center console, in the proximity of Appellant’s position as the



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driver. While proximity to drugs alone is insufficient to establish constructive
possession, proximity to the object does constitute some evidence of constructive
possession. State v. Rodgers, 3rd Dist. Hancock No. 5-10-35, 2011-Ohio-3003, ¶
30. Lastly, Appellant’s furtive movements in the area where the cocaine was located
is indicative of knowledge and possession.
{¶53} Given Appellant’s conduct and the attending facts, we conclude that a
rational trier of fact could have found the essential elements of the crimes proven
beyond a reasonable doubt in case number CR 2014 0118.
Analysis –Case Number CR 2015 0361

{¶54} Pertinent to this appeal, in case number CR 2015 0361, Appellant was
found guilty in Count I of possession of drugs (cocaine), guilty in Count II of
possession of drugs (heroin), and guilty in Count III of possession of drugs
(marijuana), all in violation of R.C. 2925.11(A), which states:
(A) No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.

(Emphasis added). R.C. 2925.11(A).

{¶55} In Count IV, Appellant was charged with illegal cultivation of
marijuana, in violation of R.C. 2925.04(A), which states:
(A) No person shall knowingly cultivate marihuana or knowingly manufacture or otherwise engage in any part of the production of a controlled substance.

R.C. 2925.04(A).



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{¶56} In Count V, Appellant was charged with having weapons while under
disability, in violation of R.C. 2923.13(A)(3), which states:
(A) Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:

* * *

(3) The person is under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.

R.C. 2923.13(A)(3).

{¶57} In support of his sufficiency-of-the-evidence challenge, Appellant
argues that the State failed to provide evidence that linked Appellant with the
contraband found at 1222 Catalpa Street. We find otherwise. Specifically,
testimony at trial revealed that after Appellant was arrested, Appellant told law
enforcement officials that: “I don’t live here. I’m just seeing a girl.” (Trial,
08/02/2017 Tr., Vol. I, at 145). But, when law enforcement questioned Appellant
about the “girl,” Appellant wasn’t able to provide any information about her to law
enforcement. (Id.).
{¶58} Moreover, after the search warrant was executed, authorities found a
book bag in a bedroom closet that contained: a VISA gift card with Appellant’s



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name on it; a medical marijuana card with Appellant’s personal identifiers on it; a
Huntington Bank VISA card with Appellant’s name on it; and Appellant’s social
security card and birth certificate. (Id., Vol. II at 242). Also located within the
residence were three handguns. (Id., Vol. I 187-88). Authorities failed to find any
women’s or children’s clothing in the residence. (Id., Vol. II at 245). Contrary to
Appellant’s argument on appeal, there was competent and credible evidence that
Appellant was the sole occupant of 1222 Catalpa Street at the time of the arrest, the
protective sweep, and when the search occurred in the residence. We find that
Appellant’s theory of possession is inconsistent with the evidence.
{¶59} After viewing the evidence in a light most favorable to the
prosecution, we find that a rational trier of fact could have found the essential
elements of the crimes charged proven beyond a reasonable doubt in case number
CR 2015 0361. Accordingly, we overrule Appellant’s first assignment of error in
its entirety.
Appellant’s Second Assignment of Error

{¶60} Appellant argues that his convictions in both case number CR 2014
0118 and CR 2015 0361 were against the manifest weight of the evidence. For the
reasons that follow, we disagree.





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Standard of Review
{¶61} The Ohio Supreme Court has “‘carefully distinguished the terms
‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and
‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’” Lyle, 3rd
Dist. Allen No. 1-14-41, 2015-Ohio-1181, ¶ 9 quoting Eastley v. Volkman, 132 Ohio
St.3d 328, 2010-Ohio-2179, 972 N.E.2d 517, ¶ 10.
{¶62} In analyzing a claim that a conviction was against the manifest weight
of the evidence, an appellate court:
sits as the “thirteenth juror” and may disagree with the fact finder’s resolution of the conflicting testimony. * * * The appellate court, “‘reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against conviction.’”

State v. Johnson, 3rd Dist. Shelby No. 17-08-06, 2008-Ohio-4784, ¶ 4 quoting State
v. Jackson, 169 Ohio App.3d 440, 2006-Ohio-6059, 863 N.E.2d 223, ¶14 (citations
omitted). However, in sitting as the thirteenth juror the appellate court should give
due deference to the findings made by the jury. Id.






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Analysis

{¶63} The Eighth District Court of Appeals identified the following eight
factors as a guide to assist a reviewing court in determining whether a decision of
the trial court was against the manifest weight of the evidence:
1. A reviewing court is not required to accept the incredible as true;
2. Whether the evidence is uncontradicted;
3. Whether a witness was impeached;
4. What was not proved;
5. Certainty of evidence;
6. Reliability of evidence;
7. Whether witness’ testimony is self-serving;
8. And whether evidence is vague, uncertain, conflicting, or fragmentary.

State v. Mattison, 23 Ohio App.3d 10, 14, 490 N.E.2d 926 (8th Dist.1985). We
discuss the relevant factors to each underlying case below.
Uncontradicted Evidence

{¶64} Initially, we note that Appellant failed to introduce any evidence that
contradicted the State’s evidence at trial. In respect to case number CR 2014 0118,
Appellant produced no evidence to contradict the State’s testimony that on March
21, 2014 at approximately 3:00 a.m., the Lima Police Department was dispatched
to 234 North Main Street in Lima, Ohio for a call of a suspicious vehicle sitting in



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the parking lot. It is not disputed that the Appellant exited his vehicle when officers
arrived, and when Kunkleman approached him, Appellant turned back and leaned
into the car on the driver’s side. It is further undisputed that officers could smell the
smell of raw marijuana at this time and that officers grabbed Appellant and pulled
him away from the vehicle for their safety.
{¶65} There is no dispute that the Appellant, when ordered to put his hands
up in the air, disregarded the officer’s commands, which led to him being detained.
A pat down of Appellant produced a large sum of money and marijuana, which led
to his arrest and the subsequent search of the vehicle, which produced a large
amount of cocaine, marijuana, heroin, digital scales, and Appellant’s billfold. With
no testimony or evidence produced at trial to cast doubt upon this version of events,
Appellant cannot contradict the elements of possession of cocaine and possession
of heroin as established by the State in case number CR 2014 0118.
{¶66} In regards to case number CR 2015 0361, the State’s uncontradicted
evidence demonstrated that on January 17, 2015, after receiving an anonymous tip
and surveilling the premises, law enforcement entered 1222 Catalpa Street after
repeatedly requesting that Appellant come to the front door. Once inside the
premises, and while conducting a protective sweep of the home, officers viewed a
marijuana grow tent in plain view. Based on the information collected, officers
obtained a search warrant and searched the premises in its entirety. During the



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search, officers located credit cards, mail, and other personal effects bearing
Appellant’s name.
{¶67} While Appellant contends that no witness had personal knowledge that
he occupied the premises, the evidence indicates otherwise. Specifically, many of
Appellant’s personal effects were found within the residence, which is indicative of
occupation. Accordingly, we find that the uncontradicted evidence supports that
Appellant was occupying the residence on January 17, 2015.
Impeached Witness

{¶68} A review of the record reveals that no witness for the State was
impeached in either case number CR 2014 0118 or CR 2015 0361.
Reliability of Evidence

{¶69} With respect to case number CR 2015 0361, Appellant attempts to
discredit the reliability of the testimony and evidence produced at trial, because “not
one single witness [***] actually had personal knowledge of Appellant allegedly
occupying the premises testified [to] at trial.” (Br. of Appellant at 10). Appellant
further classifies all of the testimony produced regarding occupation of the premises
as “hearsay.”
{¶70} However, we find that the State produced competent and credible
evidence that Appellant was occupying 1222 Catalpa Street in Lima, Ohio at the
time the officers conducted their raid. Specifically, officers testified that they



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observed Appellant leave the back of the duplex in an attempt to flee, and then run
back inside once he saw that officers had the duplex surrounded. Furthermore, the
evidence established that officers personally observed Appellant leave out of the
back of the residence prior to it being breached. With eyewitness testimony
confirming that Appellant was, in fact, inside the residence, we find no merit in
Appellant’s argument in regards to reliability.
Self-Serving Testimony

{¶71} The record reveals that the trial court did not characterize any
witness’s testimony as self-serving in either case number CR 2014 0118 or CR 2015
0361. Accordingly, on review, we do not find any indicia of self-serving testimony
in either case and Appellant does not argue that testimony was self-serving on
appeal.
Vague, Uncertain, Conflicting, or Fragmentary Evidence

{¶72} In case number CR 2014 0118, Appellant points to the evidence
produced at the suppression hearing to cast into doubt officers’ testimony at trial.
Specifically, Appellant argues that the officers, when testifying at the suppression
hearing, described a “much more leisurely encounter at the suppression hearing than
they did at trial.” (Br. of Appellant at 10). However, Appellant fails to develop this
argument and further fails to demonstrate how this “conflict” in testimonies between
the suppression hearing and trial creates a manifest miscarriage of justice warranting



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reversal. Even should Appellant establish that a true “conflict” exists in the
evidence presented at the suppression hearing and the trial, and that such issue was
properly before this Court, we find that the record contains competent, credible
evidence to support the trial court’s findings. Phelps v. Horn’s Crop Serv. Ctr., 3rd
Dist. Wyandot No. 16-89-8, 1990 WL 157282, * 2 (holding that the choice between
credible witnesses and their conflicting testimony rests solely with the finder of fact
and an appellate court may not substitute its own judgment for that of the finder of
fact).
{¶73} Accordingly, we find that the weight of the evidence supports
Appellant’s convictions. We further find that the jury did not lose its way and create
a manifest miscarriage of justice in convicting Appellant of possession of cocaine
and heroin in case number CR 2014 0118 or CR 2015 0361. Accordingly, we
overrule Appellant’s second assignment of error.
Appellant’s Third Assignment of Error

{¶74} In his third assignment of error, Appellant argues that his trial counsel
was ineffective, in part, because trial counsel failed to object to hearsay statements
during trial. For the reasons that follow, we disagree.
Standard of Review

{¶75} “‘When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that the counsel’s representation fell



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below an objective standard of reasonableness.’” State v. Sanders, 94 Ohio St.3d
150, 151, 2002-Ohio-350, 761 N.E.2d 18 quoting Strickland v. Washington, 466
U.S. 668, 687-88, 104 S. Ct. 2052 (1984). Additionally, “‘[t]he defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.’” Id., at 694. See
also, State v. Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989).
{¶76} In analyzing a claim for ineffective assistance of counsel, this court’s
scrutiny of counsel’s performance must be highly deferential, with a “‘strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’” Bradley, supra, at 142, quoting Strickland, supra, at 687
88. “Counsel’s performance will not be deemed ineffective unless and until
counsel’s performance is proved to have fallen below an objective standard of
reasonable representation and, in addition, prejudice arises from counsel’s
performance.” Id.
Analysis
{¶77} At the outset, we note that Appellant, during the course of the
proceedings below, had five (5) different attorneys represent him. Interestingly,
Appellant does not specify which trial counsel was ineffective. However, it appears
from this assignment that Appellant questions the effectiveness of his trial counsel.



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{¶78} Appellant initially argues that his trial counsel was ineffective because
trial counsel failed to object to any of the hearsay regarding Appellant residing in
the residence during the raid by police officers, as charged in case number CR 2015
0361. However, we note that the failure to make objections is not alone enough to
sustain a claim of ineffective assistance of counsel. State v. Conway, 109 Ohio St.3d
412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 103. See also, State v. Holloway, 38 Ohio
St.3d 239, 244, 527 N.E.2d 831 (1988) (failure to object to error, alone, is not
enough to sustain a claim of ineffective assistance of counsel); State v. Gumm, 73
Ohio St.3d 413, 428, 1995-Ohio-24, 653 N.E.2d 253 holding modified by State v.
Wogenstahl, 75 Ohio St.3d 344, 1996-Ohio-219, 662 N.E.2d 311 (the failure to
make objections does not constitute ineffective assistance of counsel per se, as that
failure may be justified as a tactical decision).
{¶79} Next, Appellant argues that his trial counsel’s performance was
ineffective because trial counsel did not voir dire Sergeant Dana Sutherland
(“Sutherland”), the State’s marijuana expert witness. This argument lacks merit for
two reasons. First, the record reveals, and the Appellant concedes, that trial counsel
objected to the expert being certified as an expert witness, and the trial court
overruled the objection. (See, Trial Tr., Vol. II, at 286). And second, the record
reveals that the Appellant’s concerns with Sutherland’s qualifications to testify as
an expert were addressed by the trial court prior to trial. (Trial, 08/01/2017 Tr., Vol.



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I, at 11). Given the trial court’s rulings, we do not find that Appellant’s trial
counsel’s performance fell below an objective standard of reasonable representation
under the facts presented.
{¶80} Lastly, Appellant argues that trial counsel was ineffective because his
trial counsel failed to file a proper motion to sever the counts at the appropriate time
during trial. However, the record is clear, and the Appellant concedes, that
objections to the State’s motions to consolidate were made and a motion to sever
was filed prior to trial. (See, CR 2014 0118, Doc. No. 139; CR 2015 0361, Doc.
No. 48). Despite Appellant’s objections and motion, the trial court found that the
charges were of similar character and part of a common scheme or course of
criminal conduct, then consolidated the cases and joined them for purposes of trial.
(CR 2014 0118, Doc. No. 163; CR 2015 0361, Doc. No. 82). Thus, because the
trial court had already ruled on Appellant’s motion to sever, Appellant has failed to
demonstrate that a subsequent trial counsel’s performance fell below an objective
standard of reasonableness by failing to file an additional motion to sever, and we
overrule Appellant’s third assignment of error in its entirety.
Appellant’s Fourth Assignment of Error

{¶81} In his fourth assignment of error, Appellant argues that the trial court
erred by denying his motion to dismiss his cases based upon a speedy trial violation.
Specifically, Appellant argues that the continuance granted at the request of the



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State beyond the February 21, 2017 trial date was unreasonable. For the reasons
that follow, we disagree.
Standard of Review
{¶82} “Our standard of review upon an appeal raising a speedy trial issue is
to count the expired days as directed by R.C. 2945.71, et seq.” State v. King, 3rd
Dist. Marion No. 9-06-18, 2007-Ohio-335, ¶ 30. See also, State v. DePue, 96 Ohio
App.3d 513, 516, 645 N.E.2d 745 (4th Dist.1994). “If any ambiguity exists, we
construe the record in favor of the accused.” Id.
{¶83} The applicable statutory speedy trial provision, R.C. 2945.71(C)(2),
provides that a person charged with a felony shall be brought to trial within two
hundred and seventy (270) days after the person’s arrest. R.C. 2945.71(C)(2). In
computing time under division (C)(2), “each day during which the accused is held
in jail in lieu of bail on the pending charges shall be counted as three days.” R.C.
2945.71(E).
{¶84} Further, R.C. 2945.73(B) provides:
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.

R.C. 2945.73(B). “R.C. 2945.71 and R.C. 2945.73 are ‘mandatory and must be
strictly complied with by the State.’” King at ¶ 32, quoting State v. Pudlock, 44
Ohio St.2d 104, 105, 338 N.E.2d 524 (1975). “However, R.C. 2945.72 allows for



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an extension of the time that the accused must be brought to trial under certain
circumstances.” Id.
Analysis
{¶85} In the instant matter, both the State and Appellant agree that
Appellant’s speedy trial rights were upheld throughout the proceedings up until
Appellant’s scheduled jury trial on February 21, 2017. However, at the request of
the State, Appellant’s trial was rescheduled for May 16, 2017, outside of the
Appellant’s statutory speedy trial period. Thus, the question before us is not
whether Appellant was brought to trial within the statutorily permitted time frame,
but rather, was the speedy trial violation permissible under the circumstances of the
case. We answer that question in the affirmative.
{¶86} R.C. 2945.72, entitled “extension of time for hearing or trial,” allows
for an extension of time that the accused must be brought to trial under certain
circumstances. R.C. 2945.72(H) provides:
The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following:

* * *
(H) The period of any continuance granted on the accused’s own motion, and the period of any reasonable continuance granted other than upon the accused’s own motion.

(Emphasis added). R.C. 2945.72(H).



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{¶87} The resolution of this issue, therefore, depends upon whether the trial
court’s continuance was reasonable. “Determining the ‘reasonableness’ of the
continuance beyond the ninety-day stricture of R.C. 2945.71, invariably, ‘depends
on the peculiar facts and circumstances of a particular case.’” State v. Glass, 3rd
Dist. Auglaize No. 2-04-01, 2004-Ohio-4402, ¶ 10, quoting State v. Saffell, 35 Ohio
St.3d. 90, 91, 518 N.E.2d 934 (1988). “‘In addition, precedent requires that such a
continuance be necessary under the circumstances of the case.’” Id. quoting Saffell,
35 Ohio St.3d. 90, 91, 518 N.E.2d 934 (1988) citing City of Aurora v. Patrick, 61
Ohio St.2d 107, 108-09, 399 N.E.2d 1220 (1980).
{¶88} On February 3, 2017, the State requested a continuance of the trial
date, due to the Ohio Supreme Court’s decision in State v. Gonzales. See, State v.
Gonzales, 150 Ohio St.3d 261, 2016-Ohio-8319, 81 N.E.3d 405, reconsideration
granted, decision vacated, 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419,
reconsideration denied, 149 Ohio St.3d 1409, 2017-Ohio-2822, 74 N.E.3d 466. In
Gonzales, the Ohio Supreme Court held that the offense level for possession of
cocaine was determined only by the weight of the actual cocaine, not by the total
weight of cocaine plus any filler. Id. at ¶ 22. This opinion was inconsistent with
prior case law on the same topic. Id. at ¶ 51. Given the new purity requirements,
the State requested a continuance to send Appellant’s cocaine to a lab equipped to
determine the weight of actual cocaine, separate from the filler weight.



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{¶89} The trial court, on February 9, 2017, granted the State’s request for a
continuance and set Appellant’s jury trial for May 16, 2017. (Case number CR 2014
0118, Doc. No. 182; case number CR 2015, Doc. No. 109). In granting the
continuance, the trial court acknowledged that State v. Gonzales was a significant
departure from previous precedent and custom. Furthermore, the trial court relied
on the Seventh District Court of Appeal’s decision in State v. High, wherein the
Appellate court held that an extension request by the State for testing of evidence
was reasonable. State v. High, 143 Ohio App.3d 232, 242, 2001-Ohio-3530, 757
N.E.2d 1176.
{¶90} We find that the continuance was reasonable in light of the need for
additional time to conduct testing (of the drugs in question) in accordance with
Gonzales. While Appellant argues that the State took “too long” (after the Gonzales
decision was announced) to request the continuance, we find that the State’s request
was made prior to the already scheduled jury trial.
{¶91} Appellant further argues that the continuance was unreasonable
because the trial court focused on its schedule in denying Appellant’s motion to
dismiss. However, “scheduling and docketing conflicts have been held to be
reasonable grounds for extending an accused’s trial date beyond the speedy trial
limit date by both [the Appellate Court] and the Supreme Court of Ohio. Glass, 3rd
Dist. Auglaize No. 2-04-01, 2004-Ohio-4402, ¶ 11. See also, State v. Lee, 48 Ohio



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St.2d 208, 210, 357 N.E.2d 1095 (1976) (continuance due to “crowded docket &
judge’s conference” was reasonable). Thus, we find that the continuance was
reasonable, and therefore met the exception requirement listed in R.C. 2945.72(H).
{¶92} For the foregoing reasons, we find Appellant’s fourth assignment of
error not well taken and overrule the same.
Appellant’s Fifth Assignment of Error

{¶93} In Appellant’s fifth assignment of error, Appellant argues that the trial
court was required to exclude Identification Officer Michael Carman’s (“Carman”)
expert testimony, because the State did not comply with Crim.R. 16(K). For the
reasons that follow, we find that the trial court did not err in allowing the State’s
expert witness to testify.
Standard of Review
{¶94} “The trial court has broad discretion over evidentiary rulings, and such
rulings will not be reversed on appeal absent an abuse of discretion.” State v.
Workman, 3rd Dist. Van Wert No. 15-06-09, 171 Ohio App.3d 89, 2007-Ohio-1360,
869 N.E.2d 713, ¶ 10. See also, In re Sherman, 3rd Dist. Hancock No. 05-04-47,
2005-Ohio-5888, ¶ 27. An “‘abuse of discretion’ implies that the trial court acted
unreasonably, arbitrarily, or unconscionably.” Id. quoting Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “When applying the abuse-of
discretion standard, a reviewing court may not simply substitute its judgment for



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that of the trial court. Dindal v. Dindal, 3rd Dist. Hancock No. 5-09-06, 2009-Ohio
3528, ¶ 6 citing Blakemore, supra.
Analysis
{¶95} Appellant alleges that the State violated Crim.R. 16(K) when it failed
to provide an expert witness’ report prior to the start of Appellant’s jury trial.
Crim.R. 16(K) states:
An expert witness for either side shall prepare a written report summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert’s qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert’s testimony at trial.

Crim.R. 16(K). Additionally, Crim.R. 16(L), entitled regulation of discovery, goes on to provide:

The trial court may make orders regulating discovery not inconsistent with this rule. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances.

Crim. R. 16(L).

{¶96} Initially, we note that the State concedes that they should have
provided Appellant with an expert report prior to Appellant’s jury trial, pursuant to



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Crim. R. 16(K). We also note that the Appellant does not allege that the exclusion
of Carman’s testimony would have changed the outcome of the trial. Rather,
Appellant argues that Carman’s testimony was “very important” to the State’s case
and its inclusion (over objection) warrants him a new trial. Appellant directs this
Court to the Eleventh District Court of Appeal’s decision in State v. McGhee. State
v. McGhee, 11th Dist. Trumbull No. 2014-T-0106, 2017-Ohio-5773. In McGhee,
the Eleventh District held that the purpose of Crim.R. 16(K) is to prevent surprise
and trial by ambush. Id. at ¶ 19. While the State, in McGhee, had provided their
expert witness’ name to defense counsel at the appropriate time, it had failed to
provide the expert’s report to defense counsel until a couple days prior to trial. Id.
Finding that the expert testimony was “vital” to the State’s case, the court of appeals
reversed the defendant’s conviction and ordered a new trial. Id. at ¶¶ 20-21.
{¶97} However, Appellant’s reliance on McGhee ignores precedent from this
Court regarding the failure to provide an expert report. Specifically, in State v. Opp,
under circumstances factually similar to the case sub judice, the State failed to
provide an expert report. State v. Opp, 3rd Dist. Seneca No. 13-13-33, 2014-Ohio
1138, ¶ 7. Relying, in part, on the Fifth District’s decision in State v. Viera, we
concluded that while Crim.R. 16(K) contains mandatory language for compliance,
such language, when read in context with Crim.R. 16(L), does not abolish the trial
court’s discretion in regards to evidentiary matters. Id. at ¶ 10. See, State v. Viera,



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5th Dist. Delaware No. 11CAA020020, 2011-Ohio-5263, ¶¶ 21-23 (Appellate court
found that the trial court did not err in allowing an expert to testify in spite of an
untimely expert’s report). We then went on to analyze other cases involving a
discovery violation with respect to an expert’s report in accordance with Crim.R.
16(K). Opp, after its examination of precedent from various appellate courts in
Ohio, found that while the State committed a discovery violation, that trial court did
not err in allowing the State’s expert witness to testify on a very limited issue which
did not prejudice the defendant. Id. at ¶ 20.
{¶98} Relying on Opp, we find that the trial court did not err in allowing the
State to present Carman’s limited expert testimony at trial. Specifically, the record
reveals that Carman was not testifying on the specifics of the case at hand, but rather,
provided testimony regarding his experience, in general, involving why fingerprints
may or may not exist on a handgun. (Trial, 08/02/2018 Tr., Vol. I, at 209).
Moreover, the trial court specifically found that Carman was not testifying about the
evidence in Appellant’s case, but merely on generalities involving a lack of
fingerprints on a handgun. (Id.). Accordingly, we find that the trial court did not
abuse its discretion by overruling Appellant’s Crim.R. 16(K) objection.
{¶99} Lastly, even if we were to find that the trial court erred in admitting
Carman’s testimony, we would affirm the ruling under the harmless error doctrine.
Harmless error is “‘any error, defect, irregularity, or variance, which does not affect



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[a] substantial right[] [***]’”. State v. Wilson, 3rd Dist. Allen No. 1-09-53, 2010
Ohio-2947, ¶ 26 quoting Crim.R. 52(A). Furthermore, “harmless error does not
affect the outcome of the case and, thus, does not warrant a judgment to be
overturned or set aside.” Id.
{¶100} For the reasons discussed above, we overrule Appellant’s fifth
assignment of error.
Appellant’s Sixth Assignment of Error
{¶101} In his sixth assignment of error, Appellant argues that the trial court
erred by consolidating his two trials. Specifically, Appellant argues that the
evidence was not “simple and direct,” which would permit joinder of the cases. We
disagree.
Standard of Review

{¶102} “A defendant who asserts that joinder is improper has the burden of
making an affirmative showing that his rights will be prejudiced thereby.” State v.
Shurelds, 3rd Dist. Allen No. 1-91-28, 1992 WL 147559, *2, cause dismissed, 66
Ohio St.3d 1430, 608 N.E.2d 760 (1993). Furthermore, a defendant “must
demonstrate that the trial court abused its discretion in refusing to separate the
charges for trial.” State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981).
An “‘abuse of discretion’ implies that the trial court acted unreasonably, arbitrarily,
or unconscionably.” Id. quoting Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d



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1140 (1983). “When applying the abuse-of-discretion standard, a reviewing court
may not simply substitute its judgment for that of the trial court.” Id. Absent a clear
showing of abuse of discretion, a trial court’s decision regarding joinder will not be
disturbed. Torres, supra.
Analysis
{¶103} Crim.R. 13, entitled “trial together of indictments or information or
complaints,” provides the statutory authority for joinder, which states:
The court may order two or more indictments or informations or both to be tried together, if the offenses or the defendants could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information.

The court may order two or more complaints to be tried together, if the offenses or the defendants could have been joined in a single complaint. The procedure shall be the same as if the prosecution were under such single complaint.

Crim.R. 13.
{¶104} In determining whether the indictments could have been joined in a
single indictment, Crim.R. 8(A) states: “[t]wo or more offenses may be charged in
the same indictment, * * * if the offenses charged, * * * are of the same or similar
character, or are based on the same act or transaction, or are based on two or more
acts or transactions connected together or constituting parts of a common scheme or
plan, or are part of a course of criminal conduct.” Crim.R. 8(A).



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{¶105} In examining the purposes and policies behind joinder, courts have
expressed that: “[j]oinder and the avoidance of multiple trials are favored to
conserve judicial resources, including time and expense, reduce the chance of
incongruous results in successive trials before different juries, and diminish
inconvenience to the witnesses.” State v. Clifford, 135 Ohio App.3d 207, 211, 733
N.E.2d 621 (1st Dist.1999), cause dismissed, 87 Ohio St.3d 1422, 717 N.E.2d 1108
(1999). “To prevail on a claim that the trial court erred in consolidating charges for
trial, the defendant must demonstrate affirmatively (1) that his rights were
prejudiced, (2) that at the time that the trial court ruled on the motion to consolidate,
he provided the court with sufficient information so that it could weigh the
considerations favoring joinder against the defendant’s right to a fair trial, and (3)
that given the information provided to the court, it abused its discretion in
consolidating the charges for trial.” (Emphasis added). Id.
{¶106} In reviewing Appellant’s argument, we find that the Appellant failed
to demonstrate affirmatively exactly how his rights were prejudiced by joinder.
Even though Appellant argues that questions exist concerning his actual dominion
and control over items of contraband, we find this argument addresses the
sufficiency of the evidence, not whether Appellant was prejudiced by the joinder of
the cases.



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{¶107} Next, Appellant argues that the evidence in one case would not have
been admissible in the other case. However, this is not the standard for joinder
announced in Crim.R. 13 or Crim.R. 8(A).
{¶108} Lastly, Appellant argues that “it is undeniable that juries do not like
fugitives.” (See, Br. of Appellant at 18). Appellant then argues that this fact,
standing alone, was sufficient to establish that the trial court abused its discretion
by joining the two cases. However, Appellant provides us no support for such
assertion. Thus, when reviewed in its entirety, Appellant’s argument fails to
demonstrate affirmatively that his rights were prejudiced and thus, Appellant has
failed to demonstrate that the trial court erred in joining the two cases.
{¶109} For the reasons set forth above, we overrule Appellant’s sixth
assignment of error.
Appellant’s Seventh and Eighth Assignments of Error
{¶110} Appellant argues that the trial court erred by denying his motions to
suppress in each of his underlying cases. For the reasons that follow, we disagree.
Standard of Review

{¶111} “A review of the denial of a motion to suppress involves mixed
questions of law and fact.” State v. Lewis, 3rd Dist. Auglaize No. 2-16-13, 2017
Ohio-996, 86 N.E.3d 974, ¶ 8 citing State v. Burnside, 100 Ohio St.3d 152, 2003
Ohio-5372, 797 N.E.2d 71, ¶ 8. At a suppression hearing, the trial court assumes



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the role of trier of fact, and as such, is in the best position to evaluate the evidence
and the credibility of witnesses. Id. “An appellate court must accept the trial court’s
findings of facts if they are supported by competent, credible evidence.” Burnside,
100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “Accepting these facts
as true, the appellate court must then independently determine, without deference to
the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” Id.
Analysis – Motion to Suppress in Case Number CR 2014 0118
{¶112} Appellant argues that in case number CR 2014 0118, law
enforcement officials lacked probable cause or reasonable suspicion of criminal
activity to detain Appellant. Appellant further argues that law enforcement officers
impermissibly detained him after he chose not to engage Kunkleman (in
conversation) and walked away from officers. And lastly, Appellant argues that the
search of the vehicle started prior to his arrest. Appellant contends that these three
factors, collectively, resulted in a violation of his Fourth Amendment rights.
{¶113} “The Fourth Amendment to the United States Constitution generally
prohibits warrantless searches and seizures, and any evidence obtained during an
unlawful search or seizure will be excluded from being used against the defendant.”
Frye, 3rd Dist. Allen No. 1-17-30, 2018-Ohio-894, ¶ 63. “Neither the Fourth
Amendment to the United States Constitution nor Section 14, Article I of the Ohio



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Constitution explicitly provides that violations of its provision against unlawful
searches or seizure will result in the suppression of evidence obtained as a result of
such violation, but the United States Supreme Court has held that the exclusion of
evidence is an essential part of the Fourth Amendment.” State v. Jenkins, 3rd Dist.
Union No. 14-10-10, 2010-Ohio-5943, ¶ 9 citing Mapp v. Ohio, 367 U.S. 643, 649,
81 S.Ct. 1684 (1961). The primary purpose of the exclusionary rule is to remove
the incentive to violate the Fourth Amendment. Id. citing State v. Jones, 88 Ohio
St.3d 430, 434, 2000-Ohio-374, 727 N.E.2d 886 overruled on other grounds by State
v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175 (2003).
{¶114} “The Fourth and Fourteenth Amendments to the United States
Constitution prohibit any governmental search or seizure, including a brief
investigative stop, unless supported by an objective justification.” State v. Andrews,
57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991) citing United States v. Cortez, 449
U.S. 411, 417, 101 S.Ct. 690 (1981); Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct.
2752 (1980); Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868 (1968).
{¶115} However, in crafting exceptions to Fourth Amendment violation
claims, “the United States Supreme Court [in Terry] held that a police officer may
stop and investigate unusual behavior, even without probable cause to arrest, when
he reasonably concluded that the individual is engaged in criminal activity.” Id.
citing Terry, 392 U.S. 1, 21, 88 S.Ct. 1868 (1968). “In assessing that conclusion,



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the officer ‘must be able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that
intrusion.’” Id. quoting Terry, at 21.
{¶116} Upon reviewing the record, we find that the State produced
competent and credible evidence that the officers had specific and articulable facts,
along with the rational inferences from those facts, to reasonably warrant the
intrusion into Appellant’s vehicle. The evidence produced at the suppression
hearing demonstrated that law enforcement responded to a call that a suspicious
vehicle (with its car alarm going off5) was parked in the parking lot of 234 North
Main Street in Lima, Ohio in the early morning hours of March 21, 2014. (Mot. to
Suppress Hrg., 06/30/2016 Tr. at 8-9). Kunkleman, who was the first officer to
respond to the call, testified that Appellant was out of the vehicle when he
(Kunkleman) exited his vehicle, and refused to engage him (Kunkleman) in
conversation. (Mot. to Suppress Hrg., 06/30/2016 Tr. at 10). Rather, Appellant
turned back to the vehicle and started to lean into the driver’s area, where
Kunkleman was unable to observe what Appellant was doing with his hands. (Id.).
Kunkleman also testified that when he approached Appellant’s vehicle, he smelled
5 Dash cam video footage entered into evidence revealed that a car alarm was going off when officers arrived. (See, Mot. to Suppress Hrg., 06/30/2016, State’s Ex. 2 at 3:26:20 AM).



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an overwhelming odor of marijuana6 emanating from the vehicle. (Id.). Kunkleman
then shined his flashlight into Appellant’s vehicle and observed a digital scale laying
on the driver’s side floorboard. (Id. at 11). Kunkleman testified that as a result of
Appellant’s actions, the smell of marijuana, and the observation of a digital scale on
the floorboard, he decided to detain Appellant for his safety. (Id. at 11-12).
{¶117} Hillard, who observed the interaction between Appellant with
Kunkleman, testified that he smelled the odor of marijuana coming from
Appellant’s vehicle. (Id. at 42). Hillard testified that when he looked inside the
vehicle he saw, in plain view, cellphones, a digital scale, and raw marijuana in the
center console, as well as a brown paper bag partially sticking out from under the
seat. (Id. at 42-43). Hillard opened the brown paper bag and saw what he believed
to be crack cocaine in it. (Id. at 43). Based on what was located in the vehicle,
Appellant was placed under arrest. (Id.).
{¶118} We find, upon the totality of the circumstances, that Kunkleman and
Hillard had probable cause to suspect that criminal activity was afoot, warranting
further investigation. We further find that the search was not based solely upon “an
unlawful arrest” of the Appellant, but upon Appellant’s actions, coupled with
observations of the officers and the smell of raw marijuana. Thus, the trial court did
6 We note that the smell of marijuana, alone, by a person qualified to recognize the odor, sufficiently establishes probable cause to search the vehicle from which the marijuana odor is detected. State v. Moore, 90 Ohio St.3d 47, 2000-Ohio-10, 734 N.E.2d 804.



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not err in denying the motion to suppress based upon the warrantless search of the
vehicle and the seventh assignment of error is overruled.
Analysis – Motion to Suppress in Case Number CR 2015 0361

{¶119} Testimony from the suppression hearing in case number CR 2015
0361 revealed the following: On January 12, 2015, Godfrey, a member of the West
Central Ohio Crime Task Force, received a telephone call from the landlord of 1222
Catalpa Street in Lima, Ohio regarding Appellant living in part of the duplex that
was not rented to him. 7 (Mot. to Suppress Hrg., 10/20/2018 Tr. at 6-7). Godfrey
was further informed that a maintenance man for the Catalpa residence had
attempted to inspect the residence but was denied entry by Appellant. (Id. at 8).
Godfrey knew Appellant had active warrants for his arrest, so he set up a
surveillance of 1222 Catalpa Street on January 13, 2015. (Id. at 8-9). On January
17, 2015, Godfrey observed a Chrysler 300 in the driveway with temporary tags.
(Id. at 10). When the Chrysler 300 left the residence, Godfrey followed the vehicle.
(Id. at 11). The Ohio State Highway Patrol, in conjunction with the West Central
Ohio Crime Task force, conducted a traffic stop of the vehicle due to a window tint
violation. (Id.). Kunkleman, who was assisting Godfrey with 1222 Catalpa Street
surveillance, spoke with the individuals in the Chrysler 300 and learned that they
were visiting their friend “Ray” at the Catalpa residence in question. (Id. at 12).
7 The record suggests that the landlord identified the Appellant after seeing a local “most wanted” television news report.



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The passenger of the Chrysler identified “Ray” as Appellant, and informed officers
that Appellant had been living at the address for about a month. (Id. at 12). Because
of this information, Godfrey verified that Appellant had active warrants and then set
up a perimeter around 1222 Catalpa Street to arrest Appellant. (Id.).
{¶120} After the residence was surrounded, Godfrey knocked on the front
door and ordered Appellant to come out. (Id. at 13). Instead, Appellant exited the
rear of the house, but quickly ran back to the residence after observing law
enforcement officials surrounding the duplex. (Id.). Officers eventually gained
entry into the house, and the Appellant was arrested without incident. (Id. at 15).
After Appellant’s arrest, law enforcement officers conducted a protective sweep of
the residence to make sure that there were no other individuals or threats within the
house. (Id.). In conducting the protective sweep of the residence, law enforcement
officials observed a black tent in one of the rooms. (Id.). Because the tent was large
enough for someone to hide in, officers looked inside it, finding marijuana plants
and a “grow operation” inside. (Id. at 15-16).
{¶121} Based on observing the marijuana grow tent in the residence, officers
secured the residence and sought out a search warrant for the premises. (Id. at 17
18). The reviewing judge found probable cause and signed the affidavit/search
warrant for the residence. (Id. at 39-40; State’s Ex. 1). Based on the search of the



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residence, law enforcement officials found guns, drugs, electronics, I.D.’s, and
paperwork. (Id. at 41; State’s Ex. 1).
{¶122} “In Payton [v. New York], the United States Supreme Court
concluded that ‘for Fourth Amendment purposes, an arrest warrant founded on
probable cause implicitly carries with it the limited authority to enter a dwelling in
which the suspect lives when there is reason to believe the suspect is within.’” State
v. Crawford, 3rd Dist. Logan No. 8-04-21, 2005-Ohio-243, ¶ 24 quoting Payton v.
New York, 445 U.S. 573, 603, 100 S.Ct. 1371 (1988). “Under Payton, therefore,
officers may effectuate an arrest warrant at a location when they believe that the
subject of the warrant lives at a residence and that belief is supported by probable
cause.” Id. Appellant asserts that officers lacked probable cause to enter the
premises. We find otherwise. Specifically, law enforcement received a tip that
Appellant was residing in a residence in Lima, and as a result of that tip officers set
up a surveillance to see if they observed Appellant come or go. While they did not
observe Appellant leave the residence, they did observe another individual leave the
residence, and after a lawful traffic stop, that individual disclosed that Appellant
was, in fact, inside the residence. Based on those two factors, law enforcement
attempted to enter the residence. However, prior to actually entering the residence
to secure Appellant, Appellant was observed leaving the residence out the back and
then returning inside the residence once he observed law enforcement officials



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outside. Thus, under the totality of the circumstances, we find law enforcement had
probable cause to enter 1222 Catalpa Street.
{¶123} Next, Appellant contends that the protective sweep of the residence
was unlawful, and as a result the search warrant and affidavit that was obtained as
a result of that sweep was unconstitutional. However, as the Ohio Supreme Court
held in State v. Adams, “[o]fficers making arrests in a home are permitted to conduct
a protective sweep, which is a ‘quick and limited search of the premises, incident to
an arrest and conducted to protect the safety of the police officers and others.’” State
v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 188 quoting
United States v. Stover, 474 F.3d 904, 911 (6th Cir.2007). Furthermore, as the
United States Supreme Court recognized in Maryland v. Buie, a protective sweep
“occurs as an adjunct to the serious step of taking a person into custody for the
purpose of prosecuting him for a crime.” Maryland v. Buie, 494 U.S. 325, 333, 110
S.Ct. 1093 (1990). Because an in-home arrest puts the officer at the disadvantage
of being on his adversary’s “turf,” officers are permitted to sweep the residence for
hidden individuals for their own protection. Id.
{¶124} And lastly, Appellant argues that the trial court failed to suppress
evidence concerning the contents of a Kindle and an IPad found in the residence.
Appellant argues that because “virtually every electronic utensil and gadget in
existence has some level of computer mechanism involved,” the search warrant



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authorizing a search of “computers, computer hardware, computer software, cell
phones and the contents…any and all material evidence of violations” was overly
broad.
{¶125} “The particularity requirement of the Fourth Amendment was a
response to ‘those general warrants known as writs of assistance under which
officers of the Crown had so bedeviled the colonists.’” State v. Armstead, 9th Dist.
Medina No. 06CA0050-M, 2007-Ohio-1898, ¶ 10 quoting Stanford v. State of Tex.,
379 U.S. 476, 481, 85 S.Ct. 506 (1965). “A proper search warrant leaves nothing
to the discretion of the officer executing it: ‘the requirement that warrants shall
particularly describe the things to be seized makes general searches under them
impossible and prevents the seizure of one thing under a warrant describing another.
As to what is to be taken, nothing is left to the discretion of the officer executing the
warrant.’” Id. quoting State of Tex., at 485.
{¶126} However, not all broad or generic descriptions of things to be seized
are invalid under the Fourth Amendment. “A broad and generic description is valid
if it ‘is as specific as circumstances and nature of the activity under investigation
permit’ and enables the searchers to identify what they are authorized to seize.” Id.
quoting United States v. Harris, 903 F.2d 770, 775 (10th Cir.1990). Contrary to
Appellant’s argument, we find that that the “computer” language of search warrant



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notified searchers what they were authorized to seize, in this case, an electronic
tablet and an IPad.
{¶127} Furthermore, as correctly noted by the trial court, even if the warrant
failed the particularity test, the “good-faith exception” to the exclusionary rule
would apply in this instance. As this Court held in State v. McClanahan, “the
[United States Supreme] Court determined that the exclusionary rule of the Fourth
Amendment ‘should not be applied so as to bar the use in the prosecution’s case-in
chief of evidence obtained by officers acting in objectively reasonable reliance on a
search warrant issued by a detached and neutral magistrate but ultimately found to
be unsupported by probable cause.’” State v. McClanahan, 3rd Dist. Seneca No.
13-03-02, 2003-Ohio-4279, ¶ 18 quoting State v. George, 45 Ohio St.3d 325, 330,
544 N.E.2d 640 (1989) citing United States v. Leon, 468 U.S. 897, 918-19, 104 S.Ct.
3405 (1984). In the case at hand, there was no testimony regarding bad faith on part
of the officers who searched the residence where Appellant was hiding.
{¶128} For the foregoing reasons, we overrule Appellant’s eighth
assignment of error.

Outcome: Having found no error prejudicial to Appellant herein in the
particulars assigned and argued, we overrule all of Appellant’s assignments of error. Accordingly, we affirm the judgments of the Allen County Common Pleas Court.

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