[Cite as State v. Hall,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-08-66

v.

EARL HALL, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2007 0324

Judgment Affirmed

Date of Decision: August 3, 2009

APPEARANCES:

Kenneth J. Rexford for Appellant

Jana E. Emerick for Appellee Case No. 1-08-66

PRESTON, P.J.

{¶1} Defendant-appellant, Earl Hall (hereinafter “Hall”), appeals the

Allen County Court of Common Pleas’ judgment of conviction and imposition of

sentence. For the reasons that follow, we affirm.

{¶2} On September 13, 2007, the Allen County Grand Jury indicted Hall

on one (1) count of possession of crack cocaine in violation of R.C. 2925.11(A) &

(C)(4)(d), a second degree felony. (Doc. No. 1). On October 15, 2007, Hall was

arraigned and entered a plea of not guilty to the indictment. (Id.). The trial court

scheduled a two-day jury trial to begin on January 8, 2008. (Doc. No. 11).

{¶3} On October 15, 2007, the State filed a demand for discovery and its

response to defendant’s demand for discovery. (Doc. Nos. 7-8). On October 18,

2007, Hall filed an “omnibus initial pretrial discovery motion,” which sought

discovery, a bill of particulars, production of Evid.R. 404(B) evidence, and

responded to the State’s discovery demand. (Doc. No. 9). That same day, Hall

also filed a supplemental discovery and Giglio-Rovario motion seeking the

identity of any police informants and disclosure of any promises, inducements, or

agreements made with the same. (Doc. No. 10). The trial court granted Hall’s

motion to identify informants on December 4, 2007. (Doc. No. 14).

{¶4} On November 7, 2007, Hall filed another request for supplemental

discovery, as requested by his defense expert, seeking, among other things, a

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complete copy of the BCI & I case file, a copy of the laboratory protocols,

evidence of chain-of-custody, a list of the software programs used to conduct the

DNA analysis, STR frequency tables, documentation of corrective actions for

discrepancies, and accreditation and background information on the BCI & I

laboratory personnel handling the evidence in his case. (Doc. No. 12).

{¶5} On December 26, 2007, Hall filed a motion to continue the jury trial

alleging that the State had failed to provide adequate discovery and seeking a court

order to compel the State to provide the requested discovery per its November 7,

2007 motion. (Doc. No. 42-43). On December 27, 2007, the trial court granted

Hall’s continuance motion but denied Hall’s motion for discovery finding that

Crim.R. 16(B)(1)(d) did not extend to material upon which a report is based, and,

likewise, that Crim.R. 16(B)(1)(e) required disclosure of potential witnesses’

names, not the substance of their testimony. (Doc. No. 46). The trial court then set

the matter for a pre-trial scheduling conference to be held January 7, 2008. (Id.).

The jury trial was rescheduled for April 1, 2008. (Doc. No. 48).

{¶6} On January 8, 2008, Hall filed a motion for disclosure of the identity

of the confidential informant used to obtain a search warrant for the premises

where he was arrested. (Doc. No. 49).

{¶7} On February 20, 2008, Hall filed a motion for reconsideration of the

trial court’s ruling on his prior discovery request. (Doc. No. 52). On March 13,

2008, the State filed a response to Hall’s motion. (Doc. No. 53). On March 14,

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2008, the trial court overruled Hall’s motion, finding that the disclosure of the

scientific report satisfies the State’s obligation under Crim.R. 16(B)(1)(d). (Doc.

No. 54). The trial court further found that the evidence requested by Hall was not

material to his defense, because he had only demonstrated a mere possibility, as

opposed to a reasonable probability, that if the material was disclosed the result of

the proceedings might be different. (Id.). The trial court then ordered, pursuant to

Crim.R. 16(B)(1)(c) & (d), the disclosure of:

1. Any results or reports of scientific tests or experiments, made in connection with this particular case; 2. Any papers, documents, tangible objects, or copies or portions thereof, available to or within the possession, custody or control of the state, and which are intended for use by the prosecuting attorney as evidence at the trial… 3. Documentation regarding the laboratory protocol following in this case, to wit: the chain of custody, accreditation of the BCI & I Lab with regard to DNA testing, and the qualifications of the laboratory personnel involved in the testing of this case

(Id., emphasis in original).

{¶8} On March 17, 2008, the State filed a supplemental response to

defendant’s discovery demand. (Doc. No. 56). On that same day, Hall again filed

a motion to continue the jury trial, which the trial court granted and rescheduled

the trial for June 10, 2008. (Doc. Nos. 55, 60). Thereafter, on March 21, 2008,

Hall filed another request for supplemental discovery seeking chain-of-custody

information, to which the State responded on March 27, 2008. (Doc. Nos. 57, 62).

On March 28, 2008, Hall filed a request for supplemental discovery seeking any

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photographic or other evidence preserving images of latent finger prints found on

the plastic baggies. (Doc. No. 63).

{¶9} On April 8, 2008, the trial court reviewed Hall’s several discovery

motions and overruled his request for discovery of items requested by his expert,

but it granted his request for discovery of chain-of-custody information and

evidence related to the latent fingerprints. (Doc. No. 64). On April 9, 2008, Hall

filed a motion to compel discovery and requesting a hearing. (Doc. No. 65).

{¶10} On May 13, 2008, Hall filed a motion to dismiss alleging that the

State committed various Brady violations and violated his right to a speedy trial.

(Doc. No. 66). On May 27, 2008, the State responded to the motion arguing that

Hall failed to establish that the police destroyed or discarded potentially

exculpatory evidence in bad faith and that speedy trial time had not lapsed since

time is calculated from the date of the indictment, not arrest. (Doc. No. 87). A

hearing on the motion was held that same day. (See May 27, 2008 Tr.).

{¶11} On May 28, 2008, the State filed its bill of particulars and

supplemental discovery. (Doc. Nos. 102-03). On May 30, 2008, a show cause

hearing regarding the State’s compliance with discovery was held. (See May 30,

2008 Tr.). At the hearing, Hall moved for a continuance, which the trial court

granted and rescheduled trial for July 29, 2008. (Doc. Nos. 111, 119). On May

30th and June 3rd of 2008, the State filed additional supplemental discovery.

(Doc. Nos. 108, 110).

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{¶12} On July 15, 2008, the trial court overruled Hall’s motion to dismiss,

finding that the latent fingerprint evidence was not materially exculpatory but only

potentially useful and that Hall failed to show bad faith. (Doc. No. 120). The trial

court also overruled Hall’s motion to dismiss based upon speedy trial, finding that

Hall’s several continuance motions and motion to dismiss tolled time. (Id.). On

July 16, 2008, Hall filed a motion for reconsideration, which the trial court

overruled on July 17, 2008. (Doc. Nos. 122-23).

{¶13} On July 24, 2008, the trial court granted Hall’s request to perpetuate

the testimony of Willie Helton at a hearing. The trial court also granted a

continuance in order for the defense to prepare for the hearing and rescheduled the

trial for August 26, 2008. (Doc. No. 131).

{¶14} On August 11, 2008, the trial court held a pre-trial hearing wherein

Hall waived his right to a speedy trial under R.C. 2945.71 and requested a

continuance. The trial court rescheduled the trial for September 16, 2008. (Doc.

No. 138).

{¶15} On September 16-18, 2008, the matter proceeded to trial wherein the

jury found Hall guilty as charged in the indictment. (Doc. No. 201). On October

27, 2008, the trial court sentenced Hall to six (6) years incarceration. (Doc. No.

212).

{¶16} On October 30, 2008, Hall filed this present appeal. (Doc. No. 220).

Hall now appeals raising five assignments of error for our review. We have

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elected to address Hall’s assignments of error out of the order they appear in his

brief.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT SHOULD HAVE DISMISSED THE CHARGES AGAINST HALL FOR CONSTITUTIONAL SPEEDY TRIAL VIOLATIONS.

{¶17} In his second assignment of error, Hall argues that the trial court

erred by not dismissing the charges for a speedy trial violation. The State argues

that, when tolled time is calculated, Hall was prosecuted within speedy trial time.

We agree with the State.

{¶18} Both the U.S. Constitution and the Ohio Constitution guarantee a

criminal defendant the right to a speedy trial. Sixth Amendment to the U.S.

Constitution; Section 10, Article 1, Ohio Constitution. State v. Baker (1997),

,

. The states, however, are free to prescribe a

reasonable period of time to meet these constitutional mandates.

citing Barker

v. Wingo (1972)

,

,

. To that end,

R.C. 2945.71(C)(2) provides: “[a] person against whom a charge of felony is

pending [s]hall be brought to trial within two hundred seventy days after a

person’s arrest.” The speedy trial provisions in R.C. 2945.71 are coextensive with

constitutional speedy trial provisions. State v. King (1994),

,

, citing State v. O’Brien (1987),

,

.

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{¶19} A speedy trial claim involves a mixed question of law and fact for

purposes of appellate review. State v. Masters,

, 2007-Ohio-

4229,

, citing State v. High (2001),

,

. Accordingly, a reviewing court must give due deference to

the trial court’s findings of fact if they are supported by competent, credible

evidence but will independently review whether the trial court correctly applied

the law to the facts of the case. Masters,

.

{¶20} Hall was charged with a felony; and therefore, the State was required

to bring Hall to trial within 270 days. R.C. 2945.71(C)(2); (Doc. No. 1). On

October 11, 2007, Hall was arrested, served with a copy of the indictment, and

released on bond.1 (Doc. Nos. 4, 5). Hall’s trial commenced on September 16,

2008, which is 341 days following his arrest, or 71 days past R.C. 2945.71(C)(2)’s

time limitation. However, time may be extended by “[t]he 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.” R.C.

2945.72(H).

{¶21} The record reveals several continuance motions filed by Hall that

tolled time. The jury trial was initially scheduled for January 8, 2008, well within

R.C. 2945.71’s time limitation. (Doc. No. 11). On December 26, 2007, however,

1 Since Hall was released on bond, R.C. 2945.71(E)’s “triple-count provision” is inapplicable here.

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Hall filed his first continuance motion, which the trial court granted and

rescheduled the trial for April 1, 2008. (Doc. Nos. 42-42, 48). This first

continuance tolled speedy trial time 84 days. Then, on March 17, 2008, Hall filed

a second continuance motion, which the trial court granted and rescheduled the

trial for June 10, 2008. (Doc. Nos. 55, 60). This second continuance tolled speedy

trial time 71 days. On May 30, 2008, Hall moved for a third continuance, which

the trial court granted and rescheduled the trial for July 29, 2008. (Doc. Nos. 111,

119). This third continuance tolled speedy trial time 49 days. On July 24, 2008,

the trial court granted a continuance in order for the defense to prepare for a

perpetuation hearing and rescheduled the trial for August 26, 2008. (Doc. No.

131). This fourth continuance tolled speedy trial time an additional 28 days.

Finally, on August 11, 2008, the trial court held a pre-trial hearing wherein Hall

waived his right to a speedy trial in writing and requested a continuance. The trial

court rescheduled the trial for September 16, 2008. (Doc. No. 138). This fifth

continuance tolled speedy trial time an additional 21 days. The total speedy trial

time tolled from these five continuances equals 253 days. Subtracting tolled time

from the time within which Hall was tried (341 – 253) equals 88 days of speedy

trial time attributable to the State, well under the 270-day time limitation in R.C.

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2945.71(C)(2).2 Therefore, Hall’s statutory and constitutional speedy trial rights

were not violated.

{¶22} Hall’s second assignment of error is overruled.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED BY NOT ENFORCING THE CLEAR DIRECTIVES OF CRIMINAL RULE 16.

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

in denying his motion for discovery of the DNA testing documents, specifically

those documents related to the allele signatures and signal strengths. Hall argues

that these are “papers” or “documents” within the meaning of Crim.R. 16(B)(1)(c).

Hall also argues that these records are “results” within the meaning of Crim.R.

16(B)(1)(d). Hall asserts that the trial court incorrectly interpreted Crim.R.

16(B)(1)(d)’s language to only require the disclosure of “reports” when the rule

provides discovery of “results and reports.” Hall further argues that the trial court

erred by requiring that he demonstrate a “reasonable probability,” as opposed to a

“mere possibility,” that if the requested materials were disclosed to the defense the

result of the proceedings might be different.

2 Although not necessary given our calculation of tolling time with regard to Hall’s continuance motions, we also note that additional speedy trial time was tolled by, among other things, Hall’s request for a bill of particulars, his filing of several discovery motions, and his filing of a motion to dismiss. State v. Brown,

,

,

(discovery motions or request for bill of particulars); State v. Sanchez,

,

,

, ¶25, citing State v. Broughton (1991),

,

(motions to dismiss). (Doc. Nos. 9, 10, 12, 42-43, 49, 53, 57, 65, 66).

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{¶24} Hall’s supplemental discovery request, which is at issue here,

requested more than a copy of the BCI & I DNA analysis report; instead, Hall

requested: a complete copy of the BCI & I case file, a copy of the laboratory

protocols, evidence of chain-of-custody, a list of the software programs used to

conduct the DNA analysis, STR frequency tables, documentation of corrective

actions for discrepancies, accreditation, and background information on the

laboratory personnel. (Doc. No. 12). The trial court denied Hall’s supplemental

motion for discovery, finding, in relevant part, that Crim.R. 16(B)(1)(d) did not

extend to material upon which a scientific report is based. (Doc. No. 46). After

this ruling, Hall filed a motion for reconsideration in which he expanded his

argument to include the discoverability of these items under Crim.R. 16(B)(1)(c)

as well. (Doc. No. 52). The trial court granted the motion in part and ordered the

discovery of evidence of chain-of-custody and accreditation and qualifications of

the BCI & I personnel. (Doc. No. 54). However, the trial court overruled the

motion in part, finding that: the State complies with Crim.R. 16(B)(1)(d) by

providing a copy of the BCI & I DNA analysis report; Hall was inappropriately

attempting to use Crim.R. 16(B)(1)(c)’s general provisions as a “catch-all” to

circumvent Crim.R. 16(B)(1)(d)’s specific provisions; and that the evidence

sought by Hall was not material to his defense. (Doc. No. 54). We agree with the

trial court’s analysis and ultimate conclusion that several of the items Hall

requested were not subject to discovery under Crim.R. 16(B)(1)(c) & (d).

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{¶25} Before ruling on the merits of Hall’s third assignment of error, we

must determine the appropriate standard of review. Hall acknowledges that

appellate courts generally review a trial court’s decision on a Crim.R. 16 motion

under an abuse of discretion standard, but he argues that we should review the trial

court’s decision here de novo. Hall argues that de novo review is appropriate

because the trial court sub judice misinterpreted Crim.R. 16’s language and

erroneously concluded that the DNA documents were not material to his defense.

In support of his argument for de novo review Hall cites State v. Nguyen,

,

,

. The State provided no

applicable standard of review or discussion of this issue in its brief to this Court.

{¶26} As Hall acknowledges, a trial court generally has broad discretion

relating to discovery matters; furthermore, whether to permit discovery beyond

Crim.R. 16 is at the trial court’s discretion. State ex rel. Mason v. Burnside,

,

,

, ¶11, citing State ex rel. Citizens

for Open, Responsive & Accountable Govt. v. Register,

, 2007-

Ohio-5542,

, ¶18; State v. Landrum (1990),

,

. Accordingly, an appellate court usually reviews the grant or

denial of a discovery motion in a criminal case under an abuse of discretion

standard. State v. Hesson (1996),

,

;

State v. Wilson (1972),

,

. An abuse of

discretion constitutes more than an error of law or judgment; rather, it implies that

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the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v.

Blakemore (1983),

,

.

{¶27} In Nguyen, the Court of Appeals for the Sixth District reviewed de

novo a trial court’s determination that Crim.R. 16(B)(1)(c) required disclosure of

real world reports for a law enforcement drug canine.

.

The Court in Nguyen acknowledged that such decisions are generally reviewed

under an abuse of discretion standard; however, the Court determined that de novo

review was appropriate because the trial court’s decision was “based upon a

misconstruction of the law or an erroneous standard.” Id. at ¶¶18, 21. The trial

court in Nguyen applied an incorrect standard of materiality under Crim.R. 16

when it ruled that real world drug canine reports were discoverable. Id. at ¶¶19-20.

The Court of Appeals, thus, identified the correct standard of materiality—taken

from the Ohio Supreme Court’s decision in State v. Johnston—and determined de

novo whether the real world reports of the drug canine were discoverable under

that standard. Id., citing Johnston (1988),

,

,

paragraph five of the syllabus.

{¶28} Unlike the trial court in Nguyen, the trial court sub judice applied the

correct standard of materiality under Crim.R. 16(B)(1)(c) when it determined that

documents related to the allele signatures and signal strengths (requested by Hall)

were not material to his defense, and therefore, not discoverable. Overruling

Hall’s discovery motion, the trial court stated, in pertinent part:

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Crim.R. 16(B)(1)(c) requires the disclosure of documents material to the preparation of the defense. Material is defined as any thing “of such a nature that knowledge of the item would affect a person’s decision-making process.” Black’s Law Dictionary (7 Ed. Rev. 1999) 991. State v. Donnal, Allen App. No. 1-06-31,

. The question to be answered, then, is whether the evidence the defendant says that the state is withholding is “material” such that the outcome of the proceeding would be unreliable without the disclosure. The standard is whether there is a reasonable probability-not the mere possibility-that, if the requested materials are disclosed to the defense the result of the proceedings might be different. See State v. Mills (March 12, 2001) Butler App. No. CA99-11-198, unreported.

(Mar. 14, 2008 JE, Doc. No. 54) (emphasis in original). Mills, cited by the trial

court, applied the standard of materiality developed in United States v. Bagley and

adopted by the Ohio Supreme Court in Johnston. 12th Dist. No. CA99-11-198, at

*4, citing Bagley (1985),

,

,

; Johnston,

. This was the same standard that the Appellate Court in

Nguyen applied de novo after determining that the trial court therein failed to

apply this standard.

. Based upon our review of the trial

court’s judgment entry and the standard of materiality adopted in Johnston, we

find that the trial court applied the correct standard of materiality under Crim.R.

16(B)(1); and therefore we review its decision with regard to discoverability of

these items pursuant to Crim.R. 16(B)(1)(c) under an abuse of discretion standard.

We, therefore, reject Hall’s suggestion that materiality under Crim.R. 16 is always

a question of law subject to de novo review. Neither Nguyen nor any of the cases

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upon which Nguyen relies support that conclusion.

. See, also,

Hesson,

(appellate court applied de novo review of the

law governing materiality under Crim.R. 16(B)(1)(f), a.k.a. the Brady rule,

determined that the trial court applied the incorrect standard, but, nonetheless,

affirmed finding a lack of prejudice to appellant); State v. Linscott (Aug. 22,

1995), 4th Dist. Nos. 94CA1633, 94CA1634, at *2 (after determining that the trial

court improperly used the public records statute, R.C. 149.43, as a discovery tool

instead of Crim.R. 16, appellate court conducted de novo review concerning the

laws governing discovery).

{¶29} Accordingly, we must decide whether the trial court abused its

discretion in overruling Hall’s discovery motion. Crim.R. 16(B)(1) provides, in

pertinent part, that the following information is subject to disclosure:

(c) Documents and tangible objects. Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, available to or within the possession, custody or control of the state, and which are material to the preparation of his defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant.

(d) Reports of examination and tests. Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, made in connection with the particular case, or copies thereof, available to or within the possession, custody or control of the state, the existence of which

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is known or by the exercise of due diligence may become known to the prosecuting attorney.

(Emphasis added). As the trial court found, this Court and several other appellate

courts have found that the State complies with Crim.R 16(B)(1)(d) when it

provides the defendant with a copy of the report containing the results of the

test(s) completed. State v. Gott (June 28, 1990), 3d Dist. No. 2-88-19, at *6

(laboratory notes not required), citing State v. Jones (July 14, 1980), 4th Dist. No.

1025; State v. Cross (1975),

,

; State v.

Goble (1982),

,

; State v. Jenkins,

,

,

; State v. Iacona (Mar. 15,

2000), 9th Dist. No. CA 2891-M, at *17; State v. Robertson (May 26, 1994), 5th

Dist. No. 92-CA-21, at *3. Therefore, we reject Hall’s argument that the trial

court misinterpreted Crim.R. 16(B)(1)(d), and we find that the trial court did not

abuse its discretion in denying discovery of the entire BCI & I case file, laboratory

protocols, software, macros, data files, STR frequency tables, and corrective-

actions documentation pursuant to Crim.R. 16(B)(1)(d).

{¶30} With regard to Crim.R. 16(B)(1)(c), the trial court first noted that

Hall was effectively attempting to use Crim.R. 16(B)(1)(c) as a “catch-all” to

avoid Crim.R. 16(B)(1)(d)’s specific provision for reports of scientific testing.

(Doc. No. 54). The trial court further determined that the documents requested by

Hall were not “material” to his defense applying the definition of material adopted

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by the Ohio Supreme Court in Johnston. (Id.). The trial court reasoned that the

documents requested by Hall presented a mere possibility, not a reasonable

probability, that if the documents—the software, macros, data files, STR

frequency tables, corrective actions, and complete BCI & I “case file”—were

disclosed, the result of the proceedings might be different. Hall’s purported

purpose of seeking these documents was to show that the DNA testing was

unreliable. The trial court, however, determined that Hall’s request was far too

broad to be material for this purpose and granted discovery of only the chain of

custody, accreditation of the BCI & I lab with regard to DNA testing, and the

qualifications of the laboratory personnel. (Id.).

{¶31} After reviewing Hall’s discovery motions and the trial court’s

judgment entry denying discovery of the aforementioned items, we cannot

conclude that the trial court abused its discretion. Hall’s request was overly broad,

requesting the entire BCI & I case file. (Doc. No. 12). Crim.R. 16, however,

“does not provide for what is often called ‘full,’ ‘complete’ or ‘open file’

discovery.” State ex rel. Steckman v. Jackson (1994),

,

(emphasis in original). Hall was also provided a copy of the DNA

testing report and the names and qualifications of BCI & I personnel involved in

testing the evidence. (Doc. No. 52). Hall was provided access to the physical

evidence itself, stored at BCI & I, which he could have independently tested.

(Sept. 16-18, 2008 Tr. Vol. I at 107); (State’s Ex. 11). Furthermore, Hall was able

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to question the accuracy of the DNA testing through cross-examination of BCI & I

personnel at trial. (Sept. 16-18, 2008 Tr. Vol. I at 109-57). Aside from all this,

Hall’s request was based upon speculation regarding what these documents might

or might not have revealed and “[m]ere speculation does not meet the accused’s

burden to show that the withheld evidence is material” under Crim.R. 16(B)(1)(c).

State v. Rivas,

,

,

, ¶14, citing

State v. Davis,

,

,

, ¶339; State v.

Jackson (1991),

,

, quoting United States v.

Agurs (1976),

,

,

(“‘The mere

possibility that an item of undisclosed information might have helped the defense,

or might have affected the outcome of the trial, does not establish ‘materiality’ in

the constitutional sense’”). For all these reasons, we cannot conclude that the trial

court abused its discretion by finding these requested items immaterial to the

defense and denying Hall’s discovery motion.

{¶32} Hall’s third assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. I

HALL WAS DENIED DUE PROCESS OF LAW IN VARIOUS DISCOVERY VIOLATIONS THAT DEPRIVED HIM OF ANY ABILITY TO ADEQUATELY PREPARE A DEFENSE.

{¶33} In his first assignment of error, Hall argues that the State committed

various discovery violations all of which deprived him of due process of law. Hall

argues several specific discovery violations, including: (1) the State’s failure to

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disclose DNA findings or actual data; (2) BCI & I’s failure to preserve evidence of

latent fingerprints on the plastic baggies; (3) the State’s failure to turn over to the

defense Hall’s recorded statement to law enforcement; (4) the State’s failure to

disclose the existence of statements made by Hall at the scene; and (5) the State’s

failure to disclose recorded statements of Hall’s co-defendants Thompson and

Burge. Hall also argues that the trial court erred by failing to suppress statements

he made prior to Miranda warnings.

{¶34} It is well-settled that “suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith

of the prosecution.” Davis,

, at ¶338, citing Brady v. Maryland,

(1963)

,

,

(emphasis added).

Favorable evidence under Brady includes both exculpatory and impeachment

evidence, but the evidence must be both favorable and material before disclosure

is required.

citing Bagley,

. Evidence is material under Brady

only if there exists a “reasonable probability” that the result of the trial would have

been different had the evidence been disclosed to the defense.

citing Kyles v.

Whitley (1995),

,

,

, quoting

Bagley,

. “A ‘reasonable probability’ is a probability sufficient to

undermine confidence in the outcome.”

citing Johnston,

,

paragraph five of the syllabus. However, “[t]he Due Process Clause requires a

- 19 - Case No. 1-08-66

different result when we deal with the failure of the State to preserve evidentiary

material of which no more can be said than that it could have been subjected to

tests, the results of which might have exonerated the defendant.” State v. Geeslin,

,

,

, ¶9, quoting Arizona v.

Youngblood (1988),

,

,

. With

regard to such evidentiary material, “unless a criminal defendant can show bad

faith on the part of the police, failure to preserve potentially useful evidence does

not constitute a denial of due process of law.”

quoting Youngblood,

.

{¶35} This Court will address each of these alleged deprivations of due

process, beginning with the disclosure of actual DNA findings and actual DNA

data.3 Hall argues that the trial court’s failure to disclose actual DNA findings or

data deprived him of his right to due process of law. We disagree. As this Court

has already found in assignment of error three above, these requested documents

were not material to the defense as “material” is defined under Crim.R.

16(B)(1)(c). Material within Crim.R. 16(B)(1)(c) has the same meaning for

purposes of Brady (which is incorporated into Crim.R. 16(B)(1)(f)); and therefore,

3 As we noted in our discussion of Hall’s third assignment of error, Hall’s supplemental discovery request sought more than just a copy of the BCI & I DNA analysis report; instead, Hall requested: a complete copy of the BCI & I case file, a copy of the laboratory protocols, evidence of chain-of-custody, a list of the software programs used to conduct the DNA analysis, STR frequency tables, documentation of corrective actions for discrepancies, accreditation, and background information of BCI & I laboratory personnel. (Doc. No. 12). Our discussion here is directed at these additional items requested beyond a copy of the report, which was provided to Hall.

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the trial court’s failure to disclose this evidence was not a Brady violation either.

Nguyen,

, citing State v. Steen (June 28, 1994), 4th Dist.

No. 93CA490.

{¶36} Hall next argues that BCI & I’s failure to preserve latent fingerprints

found on the baggies of crack violated his right to due process of law. We

disagree. This evidence is of the type identified in Youngblood as “evidentiary

material of which no more can be said than that it could have been subjected to

tests, the results of which might have exonerated the defendant.”

.

Accordingly, Hall must show that law enforcement acted in bad faith.

.

Hall argues that, in this case, “the strong indicia of bad faith is in several forms,”

including governmental abuse of power, discovery obstruction, falsified and

tampered evidence, and the isolation of BCI & I personnel. (Appellant’s Brief at

22-23, 26). These allegations lack support from the record. As to the alleged

discovery violations, this Court has found no discovery violation; and therefore,

we reject this as a basis for finding bad faith. With regard to the existence of

falsified or tampered evidence we find no support or citation to support for these

bald assertions. With regard to BCI & I personnel being “isolated” from the

defense, Gabriel Feltner, a forensic scientist in the biology DNA section at BCI &

I, testified that he was instructed that all communication regarding the case should

proceed through BCI & I’s legal counsel because of legal action taken by Hall

against BCI & I. (Sept. 16-18, 2008 Tr. Vol. I at 179-80). We find no bad faith for

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this action. Furthermore, the physical evidence was available to Hall for

independent analysis. (Id. at 107); (State’s Ex. 11).

{¶37} Aside from all of this, the evidence presented at the hearing

conducted by the trial court on Hall’s motion to compel dispels Hall’s allegations

of bad faith. Rhonda Boston, a forensic scientist in the latent fingerprint section at

BCI & I for over twenty years, testified that she examined the plastic baggies for

fingerprints and located one or two partial latent fingerprints, but that these prints

had insufficient ridge detail for comparison purposes. (May 27, 2008 Tr. at 22-24).

Boston testified that she examined the baggies for prints that could be used for

identification, not exclusion purposes, and that BCI & I does not perform

exclusionary testing. (Id. at 24). Boston further testified that since the latent

fingerprints contained insufficient ridge detail for purposes of identification, she

did not photograph or otherwise preserve the fingerprints. (Id. at 29-30). After

examining the baggies and determining that the fingerprints were insufficient for

identification purposes, Boston testified that she gave the baggies to Gabriel

Feltner for DNA analysis. (Id. at 35-36). Feltner testified that he swabbed the

plastic baggies for DNA after receiving them from Boston, and that he swabbed

the entire surface of the baggies because he was not otherwise instructed by

Boston to avoid certain areas to preserve fingerprints. (Id. at 12-20).

{¶38} Under these circumstances, Hall has failed to demonstrate bad faith

and the evidence presented at the motion hearing negates any purported “indicia”

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of bad faith. Therefore, Hall was not deprived due process of law for the State’s

failure to preserve the latent fingerprint evidence found on the baggies of crack.

{¶39} Next, Hall argues that he was deprived of due process of law by the

State’s failure to turn over his recorded statement to law enforcement. We

disagree.

{¶40} Prosecutorial violations of Crim.R. 16 result in reversible error only

when the defendant demonstrates that: (1) the state’s failure to disclose was

willful; (2) disclosure of the information prior to trial would have aided the

defense; and (3) the defendant suffered prejudice. State v. Jackson,

,

,

, citing State v. Parson (1983),

,

.

{¶41} During trial, it was revealed that the State intended to use Hall’s

video-taped police interview with its last witness, even though a copy of the

recorded interview had not been provided to the defense. (Sept. 16-18, 2008 Tr.

Vol. II at 277). The State claimed that the DVD recording had inadvertently been

left out of its discovery response. (Id. at 278). The trial court ruled that the State

could not use the DVD at trial but allowed the State to use the officer’s written

summary of the interview, which was timely provided to the defense. (Id. at 279).

The trial court also cautioned the State to only introduce evidence consistent with

what discovery had been provided timely. (Id. at 280). The trial court specifically

found that the State’s failure to disclose the DVD was, at best, negligence. (Id. at

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283). The trial court then granted Hall a continuance to further review his police

interview. (Id. at 284).

{¶42} Hall has failed to demonstrate that the State’s failure to timely

disclose the DVD recording of Hall’s police interview was willful, that its

disclosure would have aided the defense, or that he suffered prejudice. Jackson,

, at ¶131, citing Parson,

. The trial court

specifically found that the State’s discovery violation was not willful.

Furthermore, since the DVD was excluded from evidence, we fail to see how Hall

was prejudiced by its late disclosure. Aside from that, Hall cannot claim surprise

from the contents of his own interview. In addition, Hall was granted a

continuance to further review the DVD. Under these circumstances, we do not

find reversible error from the prosecution’s discovery violation. Hall has also

failed to demonstrate how this discovery violation deprived him of due process of

law.

{¶43} Hall further argues a deprivation of due process for the State’s

failure to disclose the existence of statements he made at the scene. We disagree.

{¶44} Crim.R. 16(B)(1)(a) provides:

(a) Statement of defendant or co-defendant. Upon motion of the defendant, the court shall order the prosecuting attorney to permit the defendant to inspect the copy or photograph any of the following which are available to, or within the possession, custody, or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney:

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(i) Relevant written or recorded statements made by the defendant or co-defendant, or copies thereof;

(ii) Written summaries of any oral statement, or copies thereof, made by the defendant or co-defendant to a prosecuting attorney or any law enforcement officer;

(iii) Recorded testimony of the defendant or co-defendant before a grand jury.

For purposes of Crim.R. 16(B)(1)(a), “statements” are either: “(1) a written

statement actually signed, or otherwise adopted or approved, by a witness or party,

(2) a mechanical recording of the witness’ words or transcription thereof, or (3) a

substantially verbatim recital of such statement in a continuous narrative form.”

State v. Walters, 10th Dist. No. 06AP-693,

, citations

omitted. “Statements” do not include an investigator’s “own selections,

interpretations, or interpolations.”

citing State v. Moore (1991),

,

.

{¶45} The alleged discovery violation at issue here was a statement made

by Hall to Burge directly after the search of 260 S. Pine Street. At trial, Officer

Delong testified that Hall “* * * was saying to Mr. Burge, who was also there, he

said, “You put that stuff out there; didn’t you?” He goes, ‘That stuff is yours.’”

(Sept. 16-18, 2008 Tr. Vol. II at 257). According to Delong’s testimony, this

statement was neither recorded testimony before a grand jury nor an oral statement

made by the defendant to a prosecuting attorney or a law enforcement officer. The

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statement was made by Hall to Burge; and therefore, discovery was not required

under Crim.R. 16(B)(1)(a) (ii) or (iii). Furthermore, Hall’s remarks made at the

scene are not “statements” as that term is defined for purposes of Crim.R.

16(B)(1)(a); and therefore, their disclosure under Crim.R. 16(B)(1)(a)(i) was not

required. Moreover, this purported statement was no real surprise to the defense

given that defense’s theory of the case, aside from arguing the unreliability of the

DNA evidence, was that the crack cocaine belonged to Burge, not Hall. In

addition, Hall has not demonstrated that this evidence was favorable and material

to his defense. Under these circumstances, we cannot find that withholding this

evidence violated his due process rights under Brady.

{¶46} Hall further argues that he was deprived of due process of law by the

State’s failure to disclose recorded statements of Hall’s co-defendants Thompson

and Burge. We, again, disagree. Crim.R. 16(B)(1)(a) applies only to defendants

or co-defendants. The Ohio Supreme Court has defined “co-defendant” for

purposes of Crim.R. 16(B)(1)(a)(iii) as: “‘[m]ore than one defendant being sued in

the same litigation; or, more than one person charged in the same complaint or

indictment with the same crime.’” State v. Stojetz (1999),

,

, citing State v. Wickline (1990),

,

(emphasis in original). The Court of Appeals has applied this

definition of co-defendant for purposes of Crim.R. 16(B)(1)(a)(i) & (ii) as well.

State v. Davis, 5th Dist. No. 2003CA00198,

; State v.

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Lawson (Apr. 30, 2001), 12th Dist. No. CA99-12-226, at *8. Hall agrees that

Burge and Thompson were not charged in the same indictment and were not

charged with the same crime as he. Nonetheless, he argues that these

circumstances are irrelevant for purposes of Crim.R. 16(B)(1)(a) disclosure.

Based upon the aforementioned authorities, we disagree. We, therefore, find no

discovery violation for the State’s failure to disclose recorded statements made by

Burge and Thompson. Furthermore, this Court has reviewed DVD copies of

Burge’s and Thompson’s police interviews in their entirety and neither contains

evidence material to Hall’s defense. (Court’s Exs. 1 & 2). Therefore, the State did

not violate Brady by failing to disclose these interviews.

{¶47} Finally, Hall argues that he was denied due process of law when the

trial court overruled his motion in limine to exclude statements he made during a

custodial interrogation prior to Miranda warnings. We disagree.

{¶48} A motion in limine is a request, made in advance of the actual

presentation of the evidence and usually prior to trial, that the court limits or

excludes certain evidence which the movant believes is improper. State v. Black,

,

,

, citing State v.

Winston (1991),

,

. “The motion asks the

court to exclude the evidence unless and until the court is first shown that the

material is relevant and proper.” Black,

. Since a trial

court’s decision on a motion in limine is a ruling to exclude or admit evidence, we

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review the trial court’s decision for an abuse of discretion that amounted to

prejudicial error.

citing State v. Yohey (Mar. 18, 1996), 3d Dist. No. 9-95-46,

citing State v. Graham (1979),

,

, and State v.

Lundy (1987),

,

.

{¶49} At trial, Hall made a motion in limine to exclude evidence of: his

invocation of his right to remain silent that he made during the police interview;

his prior criminal record; being previously shot; and his lack of employment.

(Sept. 16-18, 2008 Tr. Vol. II at 304-06). The trial court granted Hall’s motion

with regard to his right to silence and his prior record but denied the motion with

regard to background information, such as his education and employment. (Id. at

308-09). The trial court subsequently excluded any reference to Hall being shot.

(Id. at 319). Accordingly, the only pre-Miranda information that was admitted

into evidence was testimony regarding Hall’s education and employment.

Collection of biographical information such as this, however, does not qualify as a

“custodial interrogation” for purposes of Miranda. State v. Hale,

,

,

(information solicited included:

arrestee’s name, address, age, phone number, Social Security number, physical

description, employer, education, and the names of his immediate family

members); Pennsylvania v. Muniz (1990),

,

,

. Therefore, we cannot find that the trial court abused its

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discretion by denying Hall’s motion in limine with regard to this information nor

can we conclude that the admission of this evidence was a due process violation.

{¶50} For all the aforementioned reasons, we find that Hall was not

deprived of due process of law and, therefore, overrule his first assignment of

error.

ASSIGNMENT OF ERROR V

THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶51} In his fifth assignment of error, Hall argues that his conviction was

against the manifest weight of the evidence. Specifically, Hall argues that the

State’s prosecution for drug possession hinged on the claim that he moved crack

cocaine from inside the house to the outside of the windowsill, but that it was not

supported by proof beyond a reasonable doubt. Hall argues that the only evidence

in support of that claim was inconclusive DNA evidence and the unreliable

testimony of one police officer. The State disagrees and argues that the officer’s

testimony, in conjunction with the DNA evidence linking Hall to the drugs, was

sufficient to prove that he possessed the drugs. As such, the State argues that

Hall’s conviction was not against the manifest weight of the evidence.

{¶52} In determining whether a conviction is against the manifest weight

of the evidence, a reviewing court must examine the entire record, “‘[weigh] the

evidence and all reasonable inferences, consider the credibility of witnesses and

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[determine] whether in resolving 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. Thompkins (1997),

,

, quoting State v. Martin (1983),

,

. A reviewing court must, however, allow the

trier of fact appropriate discretion on matters relating to the weight of the evidence

and the credibility of the witnesses. State v. DeHass (1967),

,

.

{¶53} Hall was indicted for possession of crack cocaine in violation of

R.C. 2925.11(A), (C)(4)(d), which provides:

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

(4) If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine. The penalty for the offense shall be determined as follows:

(d) If the amount of the drug involved * * * equals or exceeds ten grams but is less than twenty-five grams of crack cocaine, possession of cocaine is a felony of the second degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree.

Possession is defined as “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.

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2925.01(K). “Possession of drugs can be either actual or constructive.” State v.

Cooper, 3d Dist. No. 9-06-49,

; State v. Edwards, 5th Dist.

No.2004-CA-00060,

. An individual has constructive

possession “if he is able to exercise domination and control over an item, even if

the individual does not have immediate physical possession of it.” Cooper, 2007-

Ohio-4937, at ¶25; Edwards,

. In order for “constructive

possession to exist, “‘[i]t must also be shown that the person was conscious of the

presence of the object.’” Cooper,

, quoting State v.

Hankerson (1982), 70 Ohio St.1d 87, 91,

; Edwards, 2004-Ohio-

6139, at ¶10.

{¶54} Ten witnesses testified at trial for the State. Jason Garlock, a police

officer with the Lima Police Department (“Lima PD”) since May 1999, testified

that he was assigned as a drug investigator with the pro-active crime enforcement

(“P.A.C.E.”) unit during the summer of 2006. (Sept. 16-18, 2008 Tr. Vol. I at 40).

Garlock testified that the P.A.C.E. targets enforcement of drug laws by utilizing

confidential informants (“C.I.”) and executing search warrants. (Id.). During the

summer of 2006, Garlock was working in the two hundred block of South Pine

Street (S. Pine St.) in Lima, Allen County, Ohio after a C.I. informed the police

that he was able to purchase crack cocaine from a house at 261 S. Pine St. (Id. at

41). The C.I. informed law enforcement that he had purchased drugs from this

location ten times in the last two weeks. (Id. at 42). The C.I. also informed police

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that a black female was selling drugs within the residence, but if she did not have

any drugs to sell, someone at 261 S. Pine St. would call, gesture, whistle, or yell to

someone across the street at 260 S. Pine St., and a black male from 260 S. Pine St.

would bring the drugs over to 261 S. Pine St. (Id. at 42-43). Garlock testified that

he observed this scenario during a controlled buy conducted by the C.I. (Id.).

According to Garlock, based upon that information police obtained a search

warrant for 260 S. Pine St., which was executed by the Lima PD S.W.A.T. and

P.A.C.E. units. (Id. at 44).

{¶55} Garlock testified that the warrant was executed around 1:42 p.m.,

and that he was a perimeter officer stationed on the northwest side of the

residence. (Id. at 44-45). Garlock testified that his responsibility in executing the

warrant was to collect and inventory seized evidence. (Id. at 45). Garlock

identified several photographs admitted as exhibits for the State, including: State’s

exhibit 12 as a diagram of the inside of the residence at 260 S. Pine St.; State’s

exhibit 13 as the residence at 260 S. Pine St.; State’s exhibit 15 as the residence’s

back bedroom where Hall and Adrienne Thompson were located; State’s exhibit

16 as a digital scale found in the back bedroom; State’s exhibit 17 as the window

air conditioner in the back bedroom; State’s exhibit 18 as the two bags of crack

cocaine that were placed on the windowsill; State’s exhibit 19 as a shoe found in

the back bedroom containing a baggie of crack; State’s exhibit 20 as a close up of

the inside of the shoe containing a baggie of crack; and State’s exhibit 22 as a .40

- 32 - Case No. 1-08-66

caliber Ruger pistol found in an upper cabinet in the computer room located off of

the living room. (Id. at 46-50); (State’s Ex. 12, 13, 15-20, 22). Garlock also

identified State’s exhibit 1 as the firearm that was found loaded with four live

rounds of ammunition and the safety off and State’s exhibit 2 as a buccal swab

obtained from William Burge. (Sept. 16-18, 2008 Tr. Vol. I at 50-51). Garlock

testified that he obtained the buccal swab from Burge himself, and that the swab

was used to collect DNA evidence. (Id. at 52). Garlock testified that State’s

exhibit 3 was a buccal swab he collected from Adrienne Thompson and State’s

exhibit 4 was a buccal swab Officer Ken Whitney collected from Hall in his

presence. (Id. at 52, 54). Garlock further identified: State’s exhibit 5 as the scale

found on a table in the back bedroom; State’s exhibit 6 as numerous cell phones

located in the residence; State’s exhibit 7 as the crack cocaine located on the

windowsill; State’s exhibit 8 as the baggie of crack found in the shoe; and State’s

exhibit 9 as a plastic bag that was taken from Hall’s right rear pants pocket. (Id. at

55-58).

{¶56} Garlock further testified that some of the delay associated with the

DNA testing was because BCI & I requested that standards from all persons found

at 260 S. Pine St. be submitted for comparison to the DNA found on the plastic

baggies containing crack cocaine. (Id. at 58). Garlock admitted that this delay was

a result of a miscommunication on his and his team’s part, due to the fact that

Investigator Delong informed his team that he saw a black male’s hand place the

- 33 - Case No. 1-08-66

baggies on the windowsill in the room where Hall was found. (Id. at 59). Garlock

testified that based upon this information, and the fact that Hall was the only black

male found in the room, that he swabbed Hall so that his DNA could be compared

to that found on the baggies of crack. (Id. at 59-60).

{¶57} On cross-examination, Garlock testified that William Burge was

walking back and forth between 260 and 261 S. Pine St., and that Burge was found

at the location searched. (Id. at 60). Garlock testified that Investigator Delong

took the photographs earlier identified. (Id. at 61). Garlock admitted that the

firearm found at the residence was not found in the room with Hall and that no

fingerprinting or DNA tests were conducted on the firearm. (Id. at 61-62).

Garlock testified that law enforcement were acting on a tip that Burge was

trafficking drugs for a main supplier and admitted that a crack pipe was found

underneath Burge. (Id. at 63-64). Garlock further testified all three occupants

were originally charged with keeping a disorderly house. (Id. at 64). Garlock

testified that the crack cocaine found in the shoe was not immediately visible and

that the shoe was not found on the bed as photographed in State’s exhibit 20. (Id.

at 65-67). Garlock also testified that the firearm was located in a high cabinet, so

the photograph appears to be taken on an angle. (Id. at 68); (State’s Ex. 22).

Garlock explained that there was no picture of the baggies of crack while they

were on the windowsill and that moving evidence before photographing it was not

a general police practice. (Id. at 70-71). Garlock testified that the warrant

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executed on 260 S. Pine St. was a “knock first” warrant, and so it was possible that

people moved around in the house prior to law enforcement entering the house.

(Id. at 72). Garlock further testified that he was immediately informed that a hand

came out of the bedroom, but “it was substantially after that it was determined that

it was a black male’s hand from Investigator Delong.” (Id. at 73). Garlock

admitted that they could have taken photographs of the baggies of crack on the

windowsill, but thought that the windowsill was too high and perhaps that was

why the drugs were secured from inside the house. (Id.).

{¶58} Garlock further testified that $7,000 was found in a vehicle parked in

front of the residence, but that a court, in a separate action, determined that the

money belonged to Lille and Pequina Burge, not Hall. (Id. at 74-75). Garlock

testified that none of the cell phones were tested for fingerprints and that none of

the four cars found at the residence were registered to Hall. (Id. at 75-76). Garlock

admitted that the photograph of the window air conditioner was not as it appeared

when police entered the room; rather, the accordion-style vent was closed. (Id. at

77). Garlock further testified that no DNA swabs were taken from Lillie or

Paquina Burge, Willie Helton, or any of Hall’s, Burge’s, or Thompson’s relatives.

(Id. at 78). Garlock admitted that no fingerprinting or DNA testing was performed

on the crack pipe, and that he was unsure whether all the officers used latex gloves

when collecting evidence, though they generally do wear gloves. (Id. at 79-80).

- 35 - Case No. 1-08-66

{¶59} On re-direct examination, Garlock testified that even though none of

the vehicles found were registered to Hall, his girlfriend, Thompson, and he were

the ones primarily driving the vehicles. (Id. at 81-82). Garlock also testified that

the majority of the photographs showed the evidence as it appeared at the scene

with the exception that the crack was removed from the windowsill before

photographed. (Id. at 83). Garlock further testified that the search warrant was not

for the sole purpose of arresting Burge but to collect evidence of drug trafficking.

(Id.).

{¶60} Officer Kenneth Whitney, a Lima police officer for 31 years and an

identification officer for 18 years, testified that his responsibilities as an

identification officer were to collect prints at the crime scene, taking fingerprints

from prisoners, photography, test-firing of weapons, and testing of marijuana. (Id.

at 87). Whitney identified State’s exhibit 4 as the buccal swab he collected from

Hall on July 26, 2006 and identified Hall as the defendant in open court. (Id. at 88-

89). Whitney testified that he placed the swab into a box, initialed the box, placed

the box into a manila envelope, sealed it with tape, and placed the envelope into

the Lima PD property room, where the evidence remained until it was transported

to the lab for testing. (Id. at 89-90).

{¶61} Lindsey Hail testified that she was employed at the BCI & I lab in

Bowling Green, Ohio as a forensic scientist in the forensic biology and DNA unit

from January 2004 to September 2007, and that she has examined thousands of

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evidence samples. (Id. at 92-93). Hail testified that she left BCI & I due to

personal reasons, not due to any disciplinary action. (Id. at 93). The trial court

qualified Hail as an expert in forensic DNA analysis. (Id. at 97). Hail testified that

two DNA swab-samples were created for each of the two baggies of crack cocaine

(four swab-samples in total). (Id. at 100). Hail testified that she analyzed DNA

samples from Burge, Thompson, and Hall and compared these to the swab-

samples collected from the two baggies. (Id. at 101-102). Hail identified the DNA

samples taken from these three individuals as State’s exhibits 2, 3, and 4,

respectively. (Id.). Hail testified that the partial DNA profile obtained from the

two baggies was consistent with Hall and not consistent with either Burge or

Thompson. (Id. at 104). Hail testified that the probability associated with the

DNA on the baggies being Hall’s was 1 in 26,120,000; meaning that “if [she] were

to test twenty-six million one hundred and twenty thousand people’s DNA [she]

would only expect to find one person that would match up with this partial profile

that [she] found on [the] baggie.” (Id. at 105). Hail also testified that she

determined that the DNA found on the baggie was from one source and was not a

mixture of several persons’ DNA. (Id. at 106). Hail identified State’s exhibit 11 as

the report wherein she summarized her findings. (Id.). Hail further testified that

her report indicated that the remaining portions of each item tested would be

retained at BCI & I and were available upon request for independent analysis. (Id.

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at 107). To Hail’s knowledge, no independent analysis had ever been requested.

(Id.).

{¶62} On cross-examination, Hail testified that, in addition to being

commonly referred to as a forensic biologist, some have referred to forensic

biologists as serologists. (Id. at 109). Hail testified that no serology test was done

on the samples, though one could have possibly been done since two swab-

samples were taken from the baggies. (Id. at 110). Hail testified that no serology

was likely done since there was no indication that bodily fluids were found on the

baggies. (Id.). Hail further testified that DNA can be transferred by sweat, blood,

and even dead skin cells from dust, and that she could not say exactly how the

DNA was left on the baggies only that it was found on the baggies. (Id. at 111-12).

Hail testified that the amount of DNA obtained for testing from baggie number

one was “much less than we target” and that the amount of DNA obtained for

testing from baggie number two was “just under what we target.” (Id. at 113).

Hail explained that the targeted amount of DNA is 1.5 nanograms, and the tested

amount was 1.49 nanograms for baggie two. (Id. at 114). Hail further explained

that the targeted amount is not the minimum amount required for the DNA testing

machine to operate correctly but the amount typically needed to get a full DNA

profile. (Id.). Hail testified that this lower-than-targeted amount collected may be

the reason only a partial DNA profile was obtained. (Id.).

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{¶63} Hail also testified regarding the testing procedures, including that

sometimes when the DNA is processed in a thermocycler a phenomenon called

“stutter” can occur. (Id. at 115). “Stutter” occurs when multiple copies of a

sample are created and some of the samples have one less unit than their copies,

and stutter can be significant enough to show up as alleles, according to Hail. (Id.

at 115-16). Hail also explained the phenomenon of “allelic drop-out,” which can

occur when insufficient amounts of DNA are collected. (Id. at 116-17). Hail

testified that “background DNA,” identified by defense counsel as “DNA all

around everything that exists in life,” may exist but is not identified as such in her

profession. (Id. at 118-19). Hail agreed that possible contamination could occur

from so-called “background DNA” and that it might be amplified in testing;

however, she also testified that BCI & I has procedures in place to avoid

unnecessary contamination. (Id. at 119-20).

{¶64} With respect to the tested samples, Hail testified that at locus

D21S11, which she explained as location “S11” on chromosome 21, she identified

an allele as “28.” (Id. at 122). Hall’s DNA had alleles “28” and “31,” one of

which came from Hall’s father and one of which came from Hall’s mother. (Id. at

122). Hail testified that she located “28” but that “31” was not detected either

because it was not present or because it was below the standard reporting

threshold. (Id.). Hail explained that “31” may have also not appeared due to

allelic drop-out, but admitted that the sample might well have had two “28”s as

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opposed to one “28” and one “31.” (Id. at 123). Hail denied that she was ever

instructed to not provide this information to the defendant. (Id. at 124). Hail

testified that at D3S1358 a “15” was observed, but no DNA was detected at

CSF1PO. (Id.). Hail further testified that of the sixteen locations tested, seven did

not provide DNA, which might have been caused by allelic drop-out. (Id. at 125).

Hail further testified that even if no “31” was detected, that the DNA sample could

be consistent with Hall’s profile because of allelic drop-out. (Id. at 126). Hail

explained that, in order to account for the locations for which no DNA appeared,

those locations were excluded from her statistical calculation regarding the

likelihood that the sample was Hall’s. (Id.). To Hail’s knowledge, the DNA data

generated from the testing was not provided to the defense nor had she been

contacted by the defense about this information. (Id. at 138). Hail testified that

BCI & I has a standard “stutter” correction of 10% used at each tested location.

(Id. at 140). Hail also testified that she did not examine DNA from Helton, Lille

or Paquina Burge, or Hall’s brother’s DNA. (Id. at 156). Hail admitted that the

statistical information only accounts for unrelated individuals. (Id. at 157).

{¶65} Sergeant Glenn Crawford, a retired Lima police office with 23 years

of service, testified that he was employed with the Lima PD during the summers

of 2006 and 2007. (Id. at 161-62). During those final years of his career,

Crawford was in charge of the police property room, which included responsibility

for entering evidence and transporting evidence to BCI & I for testing. (Id. at 162).

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Crawford identified State’s exhibit 7 as what appeared to be crack cocaine, State’s

exhibit 4 as a buccal swab or DNA standard taken from Earl Hall, State’s exhibits

2 and 3 as buccal swabs taken from Burge and Thompson, respectively. (Id. at

163-64). Crawford testified that each of these items of evidence were in his

possession and placed into the property room. (Id. at 164-65). Crawford further

testified that he took the evidence to BCI & I for testing, and that no evidence left

his possession until he dropped it off at BCI & I. (Id. at 166).

{¶66} Gabriel Feltner, a forensic scientist in the biology DNA section at

BCI & I, testified that the package (State’s Ex. 7) containing the baggies of what

appeared to be crack cocaine, was originally opened by Rhonda Boston for

purposes of latent fingerprint testing. (Id. at 167, 169). After Boston performed

testing, he obtained the evidence and tested it, then passed it to Scott Dombransky

for further testing. (Id. at 169-70). Feltner testified that he thoroughly swabbed the

baggies for DNA with two sterile moistened swabs and placed the swabs in the

freezer. (Id. at 170). Feltner testified that he marked the envelopes containing the

swabs with the case number, item number, his initials, and separate code for later

testing. (Id.).

{¶67} On cross-examination, Feltner testified that the baggies appeared to

be darkened with powder because Boston first tested the baggies for latent

fingerprints. (Id. at 171). Feltner admitted that he did not see the baggies prior to

Boston, but that Vicki Lilly entered the evidence into BCI & I’s records. (Id. at

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172). Feltner admitted that the two baggies could touch each other inside the K-

pack when they were brought to him from Boston. (Id. at 173). Feltner testified

that typically they prefer to have items separately packaged, but if the items are

collected as one item, then that is how they arrive at BCI & I . (Id. at 174). Feltner

admitted that it could be possible for DNA to transfer from one baggie to the next,

and that he was unaware of how the evidence was stored prior to it arriving at BCI

& I. (Id. at 174-75). Feltner further testified that he swabbed the entirety of the

two baggies, and that he would generally do this after Boston tested for

fingerprints. (Id. at 176). Feltner explained that if fingerprints were to be

preserved he would not swab an area or the prints would be lifted and preserved.

(Id. at 177). Feltner denied having any knowledge of the existence of fingerprint

ridge detail on the baggies. (Id. at 178). Feltner advised that he was aware of a

defense motion for public records relating to this case, and that he was instructed

that all communication regarding the case should proceed through BCI & I’s legal

counsel. (Id. at 179-80).

{¶68} Investigator Timothy Goedde, a Lima police officer since 1992,

testified that he was a member of the S.W.A.T. team that executed the warrant at

260 S. Pine St. on July 25, 2006. (Sept. 16-18, 2008 Tr. Vol. II at 201). Goedde

testified that the executed warrant was a knock and announce warrant, and that the

team waited twenty seconds, during which no one answered, before they entered

the house. (Id. at 205-06). Goedde testified that he was the second team member

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who entered the residence following Sergeant Chivalia. (Id. at 204, 208). Goedde

testified that he observed a hallway which led to two bedrooms, but that he did not

see anybody in the hallway or anyone go from bedroom to bedroom. (Id. at 207).

Goedde also testified that, from his vantage point, he would have seen persons in

the hallway or persons leaving one bedroom to go to another. (Id.). Goedde

testified that persons moving in the residence would be an immediate threat he

would have identified. (Id. at 208). On cross-examination, Goedde testified that

he entered the home at a “controlled” pace equivalent to a “fast walk.” (Id. at 209).

Goedde admitted that any number of things could have occurred in the home prior

to their entry during the twenty-second waiting period. (Id. at 210). Goedde

further testified that he did not end up in the bedrooms where either Hall or Burge

were found. (Id. at 210-11).

{¶69} Lieutenant Christopher Protsman, a Lima police officer for thirteen

years, testified that he was a sergeant on the S.W.A.T. team that executed the

warrant at 260 S. Pine St. on July 25, 2006. (Id. at 213-14). Protsman testified

that: the warrant was executed at approximately 1:30 p.m.; it was a twenty-count

warrant; and he was the fourth person to go inside the residence that day. (Id. at

214). Protsman testified that it took him approximately a second to enter the

residence and get to the middle of the living room where he could see down the

hallway to the bedrooms. (Id. at 216); (See State’s Ex. 12). Protsman testified that

he did not see anyone in the hallway, and that he thought the back bedroom door

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was closed at that time. (Id. at 217). Protsman also testified that he was the first

team member to enter the back bedroom, and he observed two people lying

underneath a cover on a bed that was in the center of the room. (Id.). Protsman

pulled the cover off them and ordered them to show him their hands and to roll

over on their stomachs, at which time they were placed into handcuffs. (Id. at 219-

20). In reference to the diagram, Protsman testified that Hall was lying on the left

side of the bed and the female was lying on the right side of the bed. (Id. at 218).

Both individuals were wearing clothing suitable for outdoors and both were awake

when he entered the room. (Id. at 219). Protsman estimated that it took him about

six seconds to reach the back bedroom after entering the residence. (Id. at 220).

On cross-examination, Protsman confirmed that it took him about six seconds to

reach the back bedroom. (Id. at 221). Protsman testified that he left the scene once

the P.A.C.E. unit arrived. (Id.). He further testified that the individuals in the

bedroom cooperated and did not struggle. (Id. at 221-22). Protsman could not

recall who cleared the kitchen, the other bedroom, or the garage but testified that

those areas would have been cleared by different team members. (Id. at 223).

Protsman testified that he left the individuals in the custody of the P.A.C.E. unit.

(Id. at 224).

{¶70} Scott Dobransky, a forensic scientist in the chemistry section at BCI

& I for the past twenty six years, testified that he had been qualified as an expert in

Allen County previously. (Id. at 224-26). Dobransky identified State’s exhibit 7

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as the plastic baggies containing white substance material, which he analyzed. (Id.

at 226). Dobransky testified that, wearing gloves, he separated the contents from

the baggies, keeping the contents of each baggie separate for testing. (Id. at 227).

The first baggie contained 13.57 grams of white material; the second baggie

contained five separate baggies collectively weighing 6.77 grams. (Id. at 228).

Dobransky determined the substances in all the baggies was crack cocaine, and

issued a report to that end, which he identified as State’s exhibit 10. (Id. at 229-

31).

{¶71} On cross-examination, Dobransky testified that, of the total eighteen

rocks of crack cocaine in the first baggie, he tested eleven that he randomly-

selected. (Id. at 232). Dobransky admitted that he did not test the remaining seven

rocks from baggie one. (Id. at 233). From the second baggie, Dobransky tested

seven randomly selected rocks from a total of nine; two were not tested. (Id.).

Dobransky testified that the weight calculations included both the tested and

untested portions. (Id.). Dobransky further testified that he performed a cobalt

(bluing) test on one of the eighteen rocks. (Id. at 234). With regard to hexane

testing, Dobransky testified that he tested all seven of nine and eleven of eighteen

rocks. (Id. at 237). Dobransky testified that crack cocaine is made from powder

cocaine, but denied that the crack cocaine could contain powder cocaine residue.

(Id. at 239-41). Dobransky further testified that, prior to him receiving the

baggies, Rhonda Boston tested them for fingerprints, and that Boston handed the

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baggies directly to him following her testing. (Id. at 241-42). Dobransky also

testified that the baggies were in one submitted evidence bag so they were likely

touching each other. (Id. at 242). He further testified that he handled the evidence

with gloves but did not change gloves between testing each baggie. (Id. at 243).

{¶72} Investigator Kevin Delong, a Lima police officer with over ten years

of service, testified that he was a narcotics investigator with P.A.C.E. and

participated in the July 2006 search of 260 S. Pine. St. (Id. at 244-45). Delong

testified that he was assigned to watch the southwest perimeter of the residence to

make sure no individuals attempted to escape. (Id. at 246). Delong testified that as

he heard the S.W.A.T. team enter the residence, he heard a sliding noise behind

him coming from a window-unit air conditioner. (Id. at 247-49). Delong testified

that “[he] saw this accordion thing was open and a hand came out and put two

bags of what looked to [him] like crack cocaine on the window ledge out here.”

(Id. at 249). Delong explained that the photographs of the house do not show the

air conditioning unit since the photo was taken subsequent to the search when the

air conditioner was no longer present. (Id. at 449-50). Delong testified that the

window was just a little above his head, and that the hand he saw was the hand of

a black male. (Id. at 250). Prior to the S.W.A.T. team entering the residence, there

was nothing on the window ledge, according to Delong. (Id. at 251). Delong

testified that the S.W.A.T. team’s presence had caused several people from the

neighborhood to gather around the area to see what was happening; so, as soon as

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he heard the “all clear” from the S.W.A.T. team, he jogged into the back bedroom

of the house, pushed open the accordion on the air conditioning unit, and collected

the bags of crack. (Id. at 252). Delong explained that he did not take photographs

of the crack where he located it because he wanted to take control of the evidence

quickly so that people gathering in the neighborhood would not see it. (Id.).

Delong testified that he gave the two baggies of crack to Sergeant Garlock, who

was responsible for inventorying the evidence. (Id. at 254-55).

{¶73} Delong identified: State’s exhibit 5 as the digital scale found on the

end table in the bedroom; State’s exhibit 6 as five cell phones that were found in

the bedroom; State’s exhibit 7 as the crack cocaine found on the windowsill;

State’s exhibit 8 as the bag of crack cocaine found in the shoe. Delong further

identified several photographs: State’s exhibit 15 as the southwest bedroom with

the air conditioner with the accordion style slide open from when he collected the

crack cocaine; State’s exhibit 16 as the digital scale located on a night table in the

bedroom; State’s exhibit 17 as the air conditioner in the window where he located

the crack cocaine; State’s exhibit 18 as the crack cocaine he found on the

windowsill; State’s exhibit 19 as one of the black tennis shoes with a baggie of

crack inside found on the floor in the bedroom between the bed and the air

conditioner; and State’s exhibit 21 as the money found on Hall’s person. (Id. at

253, 255-58).

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{¶74} Delong identified the defendant as the person he found in the back

bedroom where he located the crack cocaine. (Id. at 257). Delong further testified

that, when he moved Hall from the bedroom, Hall stated to Burge “You put that

stuff out there; didn’t you?” and “That stuff is yours.” (Id.). Delong testified that

he thought Hall was trying to get Burge to take the blame for the crack that was

found on the windowsill. (Id.). Hall waived his right to cross-examine Delong.

(Id. at 286-88).

{¶75} Sergeant Charles Godfrey, a Lima police officer for the past twelve

years and a P.A.C.E. unit member for the past six years, testified that he

participated in the July 25, 2006 search of 260 S. Pine St. (Id. at 311-12). Godfrey

testified that he was stationed on the northeast perimeter of the house, close to the

front porch entrance. (Id. at 312). Godfrey testified that he escorted Thompson

and Hall out of the bedroom and onto a living room couch. (Id. at 313). Godfrey

searched the four to five vehicles that were parked outside of the house, including

a full-sized GMC Yukon with twenty-inch rims, a late seventies Bonneville with

twenty-inch rims, a mid-nineties black Cadillac, a mid-to-late-seventies Cutlass,

and an older white Cadillac. (Id. at 314). Godfrey testified that, after searching the

vehicles, he transported Hall to the police station, where he went through booking

and inventory. (Id. at 315-16). Godfrey identified State’s exhibit 9 as a baggie that

he removed from Hall at the house and State’s exhibit 21 as $1,885.00 that he

removed from Hall at the house. (Id. at 316.). Godfrey testified that he

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interviewed Thompson, Burge, and Hall at the detective bureau of the Lima PD.

(Id. at 317). Godfrey testified that around 6 p.m. on the same day, Sergeant

Garlock and he interviewed Hall. (Id. at 317, 326). During that interview Hall

informed law enforcement that: he had lived at 260 S. Pine St. for a couple

months; he was currently unemployed and his last temporary job was about six

months ago; he did brakes and mechanical work for about $35-$40 a job; and that

these mechanical jobs were his only current source of income. (Id. at 326-27).

{¶76} Hall also told Godfrey and Garlock his version of what happened

when the S.W.A.T. team entered his residence. (Id. at 327). Godfrey testified that

Hall stated:

* * * he was laying in bed, being the back southwest bedroom, with his girlfriend, Adrienne Thomas (sic). He said he was laying on his side, facing his girlfriend. The window in which the crack cocaine was found was behind him. * * * He said he was laying there when he said that William Burge came in the door and yelled that the police were going to come in this mother f*ck*r. Originally he said he ran out. Then we asked him more details. What he said was that he was laying on his side. * * * He said that as he was laying there that William Burge * * * came in and yelled something about police were coming and that William Burge ran over to the window behind him and that he heard a commotion and that he then ran out. We asked if he had made any movements or if he had just laid there. He said, “I just laid there. I lifted my head.” He said about two minutes later the S.W.A.T. team then came into the room.

(Id.). Godfrey further testified that Hall stated that all of the vehicles were owned

by either his cousin or brother but that everyone drives them. (Id. at 328). Godfrey

testified that Hall indicated that the money found on his person was given to him

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by a cousin, and then subsequently stated that the money was from several

cousins. (Id. at 329). The street-value of the crack cocaine found at the residence

was approximately $4,000.00 according to Godfrey. (Id. at 331-32). Godfrey

described Thompson as “* * * a very small, very petite, very maintained – you

know, hair done, make-up done, nails done. Everything about her was very neat,

so to speak, or very pristine.” (Id. at 332). Godfrey testified that he specifically

remembered her nails being done. (Id. at 333).

{¶77} On cross-examination, Godfrey testified that law enforcement

entered 260 S. Pine St. because Burge, who lived at that residence, was involved

in a drug transaction. (Id.). Godfrey also admitted that none of the money given to

the C.I. to purchase drugs matched money possessed by Hall or Burge. (Id. at 334-

35). Godfrey testified that he was not aware whether or not Hall had a bank

account or whether any of the money Hall possessed was drug money. (Id. at 335,

337). Godfrey also admitted that he was unaware of how much Hall paid in rent,

utilities, or other bills at the residence, or whether Hall possessed this cash to pay

those bills, but he thought this was a large amount of money to be carrying. (Id. at

337-39). Godfrey also testified that Burge was found with a crack pipe and that

Burge was the individual involved a drug sale the day prior to the search. (Id. at

339). Godfrey testified Hall never stated that Burge put the crack on the

windowsill, but that Burge “must have” put the crack there. (Id. at 340-41).

Godfrey testified that Willie Helton admitted to putting the crack on the

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windowsill the night before the search, and that Helton was indicted for putting

crack on the windowsill. (Id. at 342). Godfrey further testified that they found no

crack belonging to Burge, and that he did not think it was likely that Burge was

putting his crack in the back bedroom. (Id. at 342). Godfrey also testified that he

did not check to see if Hall had any tickets associated with any of the vehicles at

the residence. (Id. at 343).

{¶78} On re-direct, Godfrey testified that no money was found on Burge.

(Id.). Godfrey explained that it would be very time consuming to cross-reference

Hall’s money to all of the money used by C.I.s. (Id. at 344). All the paperwork for

260 S. Pine St. was in Hall’s name. (Id. at 345). On re-cross, Godfrey testified

that law enforcement entered the home because Burge sold drugs next door, but

that they found no buy money on Hall. (Id. at 345-46). Godfrey also testified that

Helton admitted to placing the drugs on the windowsill the night before. (Id. at

346). Godfrey testified that Helton was indicted “for * * * admitting that he

placed these drugs on the windowsill the night before.” (Id. at 347). Godfrey

testified that Helton was not found during the search. (Id.).

{¶79} Godfrey was the State’s final witness. Thereafter, the trial court

admitted State’s exhibits one to twenty-two. (Id. at 349-53). Hall made a Crim.R.

29 motion, which was denied, and then, rested his defense. (Id. at 353-56). The

jury then found Hall guilty of possession of crack cocaine. (Sept. 16-18, 2008 Tr.

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Vol. III at 420-21). A pre-sentence investigation was requested and the matter set

for sentencing on October 27, 2008. (Id. at 424).

{¶80} Based upon the evidence presented at trial, we cannot conclude that

Hall’s conviction was against the manifest weight of the evidence. Delong

testified that, during the S.W.A.T. team’s search of 260 S. Pine Street, he saw a

black male’s hand reach out and place two baggies of a white substance—

subsequently determined to be over twenty (20) grams of crack cocaine by BCI &

I—on the back bedroom windowsill. Delong testified that Hall was found in this

bedroom with his girlfriend Thompson. Hall was the only black male found in the

bedroom. Furthermore, through further testing, it was determined that Hall’s

DNA was consistent with the DNA found on the plastic baggies of crack cocaine.

The DNA found on the baggies was not consistent with either Thompson or

Burge, the other two individuals found in the residence at the time of the search.

Although the crack cocaine was not found on Hall’s person, we believe that the

evidence, viewed in its totality, demonstrated that Hall was able to exercise

domination and control over it and that he was conscious of its presence. Cooper,

; Edwards,

; Hankerson, 70 Ohio

St.1d at 91. For these reasons, we are not convinced that the jury clearly lost its

way or created a manifest injustice that requires a new trial.

{¶81} Hall’s fifth assignment of error is, therefore, overruled.

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ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN SENTENCING HALL TO A PERIOD OF 6 YEARS OF INCARCERATION.

{¶82} In his fourth assignment of error, Hall argues that the trial court

abused its discretion by sentencing him to six years imprisonment. Specifically,

Hall argues that Helton, who was the admitted owner of the cocaine in question,

was only sentenced to three years, even though his culpability was greater than

Hall’s who only allegedly moved the cocaine onto the window sill. The State, on

the other hand, argues that the trial court did not abuse its discretion since it was

not required to give the same sentence to Hall as it gave to Helton. The State

further points out that Hall has prior criminal convictions and that his sentence is

within the statutorily prescribed range of two to eight years. We agree with the

State that the trial court did not err in sentencing Hall to six years imprisonment.

{¶83} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record; the sentencing statutes’ procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law.4 State v. Ramos, 3d Dist. No. 4-06-24,

,

4 We note that the Supreme Court of Ohio recently released a plurality opinion in State v. Kalish,

,

, which established a two-part test utilizing both the clear and convincing and abuse of discretion standard of review in reviewing felony sentencing decisions under R.C. 2953.08(G). While we cite to this Court’s precedential clear and convincing standard of review, which was affirmed and adopted by three dissenting Justices in Kalish, we note that the outcome of our decision in this case would be identical under the Kalish plurality’s two-part test as well.

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¶23 (the clear and convincing evidence standard of review set forth under R.C.

2953.08(G)(2) remains viable with respect to those cases appealed under the

applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,

12th Dist. No. CA2005-10-426,

; State v. Tyson, 3d Dist. Nos.

1-04-38; 1-04-39,

, citing R.C. 2953.08(G). Clear and

convincing evidence is that “which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” Cross v. Ledford

(1954),

,

, paragraph three of the syllabus; State v.

Boshko (2000),

,

. An appellate court

should not, however, substitute its judgment for that of the trial court because the

trial court is ‘“clearly in the better position to judge the defendant’s likelihood of

recidivism and to ascertain the effect of the crimes on the victims.”’ State v.

Watkins, 3d Dist. No. 2-04-08,

, quoting State v. Jones

(2001),

,

.

{¶84} Prior to sentencing, the trial court stated that it had considered the

evidence presented at trial, R.C. 2929.11-12, the pre-sentence investigation (PSI),

oral statements, victim impact statements, and the need for deterrence,

rehabilitation, incapacitation, and restitution. (Oct. 27, 2008 Tr. Vol. III at 438-

40); (Oct. 27, 2008 JE, Doc. No. 212). As indicated in the PSI and admitted by

the defendant, the trial court found that Hall had been prosecuted as a juvenile in

Allen County for robbery and sent to the Department of Youth Services (DYS).

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(Oct. 27, 2008 Tr. Vol. III at 435-36, 439); (PSI). The trial court also noted Hall’s

prior criminal convictions, including: a curfew violation as a juvenile, two

violations for operating a vehicle without an operator’s license, improper lane

change, underage consumption of alcohol, marked lanes violation, seat belt

violation, visiting a disorderly house, obstruction of official business, driving

under suspension, intoxication, operating a vehicle under the influence, public

noise, disorderly conduct. (Oct. 27, 2008 Tr. Vol. III at 438-40); (PSI). Hall also

had several charges filed against him, which were ultimately dismissed, including:

underage consumption, domestic violence, disorderly conduct, littering, three

driving under suspension violations, public noise, possession of cocaine, and

keeping a disorderly house. (PSI). Under these circumstances, the trial court

found under R.C. 2929.12(D) that Hall had not responded favorably to the

previously imposed judicial sanctions. (Oct. 27, 2008 Tr. Vol. III at 439); (Nov.

27, 2008 JE, Doc. No. 212). The trial court also found that, given Hall’s conduct

and the amount of drugs involved, incarceration was appropriate and mandatory;

additionally, the trial court found that Hall was not eligible for a community

control sanction. (Oct. 27, 2008 Tr. Vol. III at 440).

{¶85} Hall has failed to clearly and convincingly demonstrate that the trial

court’s imposed six-year term of incarceration was in error. Hall compares his

six-year sentence to Helton’s three-year sentence and argues that his sentence was

unreasonable, arbitrary, or unconscionable. We reject this argument. As the State

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points out, there is nothing in the record regarding the facts and circumstances

surrounding Helton’s case, including the charge(s), details of a plea agreement, or

Helton’s prior criminal background. Additionally, even if Helton was a co-

defendant, “[t]here is no requirement that co-defendants receive equal sentences.”

State v. Wickham, 5th Dist. No. CT2006-0084,

, citing State

v. Lloyd, 11th Dist. No. 2002-L-069,

, ¶21 and United States v.

Frye (C.A.6, 1987),

. See, also, State v. Rivers (Feb. 26, 1988),

3d Dist. No. 9-97-76, at *2. “Each defendant is different and nothing prohibits a

trial court from imposing two different sentences upon individuals convicted of

similar crimes.” Wickham,

, citing State v. Aguirre, 4th

Dist. No. 03CA5,

, ¶50. The trial court also found that Hall had

not responded favorably to the previously imposed judicial sanctions. (Oct. 27,

2008 Tr. Vol. III at 439); (Nov. 27, 2008 JE, Doc. No. 212). After reviewing

Hall’s PSI, we agree with this finding; aside from that, the trial court is ‘“clearly in

the better position to judge the defendant’s likelihood of recidivism * * *”’.

Watkins,

, quoting Jones,

. After

reviewing the entire transcript of the proceedings, the trial court’s sentencing

hearing, and judgment of conviction, we cannot conclude that it erred by

sentencing Hall to six years of imprisonment.

{¶86} Hall’s fourth assignment of error is, therefore, overruled.

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{¶87} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed.

ROGERS, J., concurs.

/jnc

WILLAMOWSKI, J., concurs separately.

{¶88} I concur fully with the majority opinion, however write separately to

emphasize that the appropriate standard of review was applied. In his fourth

assignment of error, Hall alleges that the trial court abused its discretion in

imposing a sentence of six years. Hall’s appeal of his felony sentence was not

pursuant to R.C. 2929.12, which, in my opinion would require an abuse of

discretion standard. Thus, the standard used to review this case, as set forth in

R.C. 2953.08(G) is the proper standard of review herein.

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