[Cite as State v. Siefer,

.]

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

STATE OF OHIO, CASE NO. 5-09-24

PLAINTIFF-APPELLEE,

v.

ROSEMARY A. SIEFER, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court Trial Court No. 2008 CR 163

Judgment Affirmed

Date of Decision: April 18, 2011

APPEARANCES:

Deborah Kovac Rump for Appellant

Drew Wortman for Appellee Case No. 5-09-24

ROGERS, P.J.

{¶1} Defendant-Appellant, Rosemary Siefer, appeals from the judgment of

the Court of Common Pleas of Hancock County sentencing her to a ten-year and

five-month prison term and ordering her to pay $200.00 in restitution to the

Hancock County METRICH Enforcement Unit. On appeal, Siefer contends that

the trial court erred in sentencing her on two counts of possession of cocaine and

one count of aggravated possession of drugs, as the offenses were allied offenses

of similar import; that the trial court abused its discretion in sentencing her to a

ten-year and five-month prison sentence; that the trial court erred in failing to

properly include a term of post-release control in her sentence in violation of R.C.

2967.28; that the sentence was void pursuant to Crim.R. 32 for failing to include

the means of conviction in the judgment entry; that her right to a fair trial was

violated by prosecutorial misconduct; that the trial court erred in instructing the

jury on constructive possession; and, that she was denied the effective assistance

of counsel. Based on the following, we affirm the judgment of the trial court.

{¶2} In July 2008, the Hancock County Grand Jury indicted Siefer on

Count One: engaging in a pattern of corrupt activity in violation of R.C.

2923.32(A)(1), a felony of the first degree; Count Two: trafficking in cocaine in

an amount that equals or exceeds 1 gram but is less than 5 grams that is crack

cocaine in violation of R.C. 2925.03(A), (C)(4)(c), a felony of the fourth degree;

-2- Case No. 5-09-24

Count Three: possession of cocaine in an amount that equals or exceeds 25 grams

but is less than 100 grams that is crack cocaine in violation of R.C. 2925.11(A),

(C)(4)(e), a felony of the first degree; Count Four: possession of cocaine in an

amount that equals or exceeds 25 grams but less than 100 grams that is not crack

cocaine in violation of R.C. 2925.11(A), (C)(4)(c), a felony of the third degree;

and, Count Five: aggravated possession of drugs in violation of R.C. 2925.11(A),

(C)(1)(a), a felony of the fifth degree. The indictment arose following a controlled

drug purchase from and subsequent search of Siefer’s residence.

{¶3} In August 2008, Siefer entered a not guilty plea to all counts in the

indictment.

{¶4} In March 2009, Siefer filed a motion to reveal the identity of the

confidential informant mentioned in the State’s discovery response.

{¶5} In May 2009, a final pre-trial conference was held, during which the

State informed Siefer that Charles Roberts was the confidential informant. The

next day the State provided Siefer with Roberts’ LEADS report.1

{¶6} In May 2009, the case proceeded to jury trial. Prior to the impaneling

of the jury, the State moved to dismiss Count One of the indictment. Thereafter,

the State made its opening statement, stating the following, in pertinent part:

A confidential informant is not a police officer. It’s an average citizen. And typically a confidential informant comes in

1 LEADS stands for “Law Enforcement Automated Data System.”

-3- Case No. 5-09-24

different forms. * * * Former drug user. Maybe former drug dealer. * * * One of the people that METRICH has been using for a number of years now is a man by the name of Charles Roberts. A number of years ago, Charles Roberts got in trouble with the law. * * * And sometime around eight or so years ago, he decided he wanted to work as a confidential informant for the police. * * * And one of the things that confidential informants do, they get paid per buy. * * * The police officers, they were happy with his performance, so they continued to use him for a number of years. * * * Back in the fall, he came to Detective Francis and said, I believe I can buy crack from Rosemary Siefer. Because of his work in the past they believed him and they said set up a deal. So that’s what he did. He set up a deal with Rosemary Siefer because he knew she would sell him drugs.

Trial Tr., p. 178.

{¶7} Moreover, the State discussed the amount of drugs seized from

Siefer’s residence during the execution of the search warrant, stating that the

“crack cocaine weighed about twelve grams” (Id. at 181), and that “they found

twenty-six grams of crack cocaine.” (Id. at 182). At no time did Siefer object to

the State’s opening statement.

{¶8} The State’s first witness was Detective Michael Swope of the Findlay

Police Department, who testified that he was a member of the METRICH Drug

Taskforce; that, in November 2007, he was involved in a controlled drug purchase

with Roberts as a confidential informant; that, as a result of the controlled drug

purchase, they obtained a search warrant to Siefer’s residence; and, that, upon

searching the residence, they found security cameras both inside and outside the

residence as well as inside Siefer’s bedroom.

-4- Case No. 5-09-24

{¶9} On the second day of trial the State called Roberts to the stand.

Before Roberts testified, Siefer objected to his proffered testimony, contending

that she was not afforded proper opportunity to speak with Roberts. The trial

court overruled Siefer’s objection, noting that Roberts’ identity was disclosed to

Siefer during the final pre-trial conference and Siefer was given Roberts’ LEADS

report. Despite its ruling, the trial court granted Siefer’s trial counsel time to

speak with Roberts prior to Roberts’ testimony.

{¶10} Roberts testified that he was acting as a confidential informant for

the METRICH Drug Taskforce on the day of the controlled drug purchase from

Siefer; that on the day of the controlled drug purchase Detective Francis was his

police handler; that he contacted Detective Francis stating that he could purchase

drugs from Siefer; that, prior to the controlled drug purchase, he met with

Detective Francis, who searched his person and car, and placed a wire on his

person; that he drove alone to the residence, where he encountered Siefer; that he

requested, and received, two grams of crack cocaine in exchange for two hundred

dollars; and, that, immediately following the purchase, he met with Detective

Francis, who took possession of the crack cocaine and searched his person and car.

{¶11} Roberts further testified that Siefer’s trial counsel visited him at his

residence before trial and after the first day of trial; that on both occasions he

declined to speak with Siefer’s trial counsel; that he also declined to speak with

-5- Case No. 5-09-24

Siefer’s trial counsel during the meeting granted by the trial court; and, that he was

never directed to not speak with Siefer’s trial counsel.

{¶12} Detective Francis of the Findlay Police Department testified that he

was a member of the METRICH Drug Taskforce; that Roberts contacted him

stating that he could purchase drugs from Siefer; that, on November 14, 2007, he

met with Roberts, searched his person and car, placed a wire on his person, and

gave him two hundred dollars to purchase crack cocaine; that, upon completion of

the controlled drug purchase, Roberts met with him, and gave him the suspected

crack cocaine purchased from Siefer; that, as a result of the controlled drug

purchase, he submitted an affidavit for a search warrant, which was granted; that

upon execution of the search warrant, in December 2007, three individuals were

found in the residence where Roberts had purchased the suspected crack cocaine

from Siefer; that one of those individuals was Siefer, and that she appeared highly

intoxicated; that Siefer told him that the bedroom, as well as the safe in the

bedroom, was hers; that Siefer was asked to open the safe, which she attempted to

do unsuccessfully; that Siefer stated the contents of the safe were hers; that he

obtained a second search warrant to search the safe; that, among other things, the

safe contained 25.8 grams of crack cocaine, two baggies of powder cocaine

weighing 18.9 grams and 11.8 grams, respectively, and a single pill of Oxycodone;

that based on a water bill for the residence, real estate listings at the County

-6- Case No. 5-09-24

Auditor’s Office, and a deed found in the safe, the residence belonged to Siefer;

and, that he told Siefer’s trial counsel to stop bothering Roberts.

{¶13} Thereafter, the State made its closing arguments, stating the

following, in pertinent part:

Finally, Charles Roberts. Charles Roberts is not a choir boy. Charles Roberts is not an upstanding citizen. Charles Roberts is and does have a criminal past. But as Detective Swope testified, drug dealers don’t sell to choir boys. * * * So I have to use people like Charles Roberts. Thank goodness for the Charles Roberts who are willing to turn on people inside their own communities like Rosemary Siefer. Either way doesn’t matter. Charles Roberts is a criminal or he’s not a criminal, doesn’t matter. Rosemary still sold him drugs. And he had nothing to do with what was found inside her safe. Don’t let his criminal past sway you on that. Regardless if he had prior felonies or not, she still had drugs in her safe.

Trial Tr., p. 422-23.

{¶14} In addition, the State reiterated the amount of drugs seized from

Siefer’s residence, specifically the safe she claimed to own, stating that “a big

chunk of crack cocaine, and it weighs 25.8 grams,” was found in the safe, as well

as a total of 30.7 grams of powder cocaine and one Oxycodone pill. (Id. at 409).

The State also discussed the cameras located in and around the residence,

specifically the camera in Siefer’s bedroom, and the reasons one may install a

camera in their bedroom. At no time did Siefer object to the State’s closing

argument.

{¶15} The jury returned a verdict convicting Siefer on all four counts.

-7- Case No. 5-09-24

{¶16} Subsequently, the matter proceeded to sentencing, at which the State

argued, in pertinent part:

Mr. Schuman has made reference to a limited criminal history, but what’s ironic with regards to this limited criminal history it involved two things, drugs, substance abuse, and offenses of violence. We are here on peddling, trafficking, and possessing drugs, and have a domestic violence, an offense of violence as a prior conviction certainly should cause this Court some concern.2

We have the Defendant’s behavior while on bond in the original indictment. The Court is well aware her bond was revoked and why was it revoked because she continued to test positive for cocaine. Review of the PSI shows at least five positive tests before she was taken back into custody. So while she was on PSI she was given an opportunity to demonstrate her behavior and she did exactly that, Your Honor. She did nothing during that time when she was out on bond to demonstrate any type of positive behavior.

Sentencing Tr., p. 16-17.

{¶17} Thereafter, the trial court sentenced Siefer to a seventeen-month

prison term on Count Two, a nine-year prison term on Count Three, a four-year

prison term on Count Four, and a eleven-month prison term on Count Five, with

the sentences in Counts Three, Four, and Five to be served concurrently with each

other, but consecutively to the sentence for Count Two, resulting in a total prison

term of ten-years and five-months. Additionally, the trial court ordered that Siefer

2 Review of Siefer’s PSI confirms the statements made by the State.

-8- Case No. 5-09-24

pay $200.00 in restitution to the Hancock County Drug Task Force METRICH

Enforcement Unit.

{¶18} It is from this judgment Siefer appeals, presenting the following

assignments of error for our review.

Assignment of Error No. I

THE TRIAL COURT ERRED BY NOT MERGING SIEFER’S CONVICTIONS AS ALLIED OFFENSES OF SIMILAR IMPORT.

Assignment of Error No. II

THE TRIAL COURT ABUSED ITS DISCRETION BY THE LENGTHY SENTENCING IMPOSED, AND SUBJECTED SIEFER TO CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF HER CONSTITUTIONAL RIGHTS.

Assignment of Error No. III

THE TRIAL COURT ERRED BY NOT COMPLYING WITH R.C. 2967.28 WHEN IMPOSING SENTENCE. THE SENTENCE IS UNAUTHORIZED AND VOID.

Assignment of Error No. IV

THE JUDGMENT ENTRY DOES NOT COMPLY WITH CRIM.R. 32 AND IS VOID.

Assignment of Error No. V

THE PROSECUTOR ENGAGED IN A PATTERN OF MISCONDUCT THAT VIOLATED SIEFER’S RIGHT TO DUE PROCESS; SPECIFCALLY, A FAIR TRIAL.

-9- Case No. 5-09-24

Assignment of Error No. VI

THE TRIAL COURT ERRED BY PROVIDING THE JURY WITH AN INSTRUCTION FOR CONSTRUCTIVE POSSESSION GIVEN THERE WAS NO EVIDENCE SIEFER WAS CONSCIOUS OF THE PRESENCE OF THE DRUGS.

Assignment of Error No. VII

SIEFER’S TRIAL COUNSEL DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HE DID NOT SEEK SUPPRESSION OF THE STATEMENTS MADE BY SIEFER, OR HER CONDITION, AT THE TIME OF THE SEARCH WARRANT.

{¶19} Due to the nature of Siefer’s assignments of error, we elect to address

her third and fourth assignments together, and last.

Assignment of Error No. I

{¶20} In her first assignment of error, Siefer contends that the trial court

erred by denying her motion to merge all four counts. Specifically, Siefer

contends that the crimes constitute allied offenses of similar import. We disagree.

{¶21} In determining whether two or more offenses should be merged, the

intent of the General Assembly is controlling. State v. Johnson,

,

. We determine the General Assembly’s intent by

applying R.C. 2941.25, which expressly instructs courts to consider the offenses at

issue in light of the defendant’s conduct.

Under R.C. 2941.25, the court must

determine, prior to sentencing, whether the offenses were committed by the same

-10- Case No. 5-09-24

conduct. Id., at ¶47. In so determining, the court should conduct the following

analysis:

“In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.

“If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., “a single act, committed with a single state of mind.” Brown,

, 2008- Ohio-4569,

(Lanzinger, J., dissenting).

“If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.

“Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the offenses will not merge.”

Id., at ¶¶48-51.

{¶22} “Trafficking in a controlled substance under R.C. 2925.03(A)(2) and

possession of that same controlled substance under R.C. 2925.11(A) are allied

offenses of similar import.” State v. Cabrales,

, 2008-Ohio-

1625 at paragraph two of the syllabus. Accordingly, Siefer contends that Count

Two should merge with Counts Three, Four, and Five. We disagree.

-11- Case No. 5-09-24

{¶23} The distinguishing fact between the case at bar and Cabrales is time,

specifically the time at which the offenses occurred. In Cabrales, the defendants

were pulled over by a police officer, who subsequently discovered a large quantity

of marijuana inside their vehicle. Cabrales,

, ¶2. Defendants

were charged with possession of and trafficking in marijuana.

In the case at

bar, the event that precipitated Count Two and the events that precipitated Counts

Three, Four, and Five occurred a month apart. As a result of the temporal

remoteness between Count Two and Counts Three, Four, and Five, we find that

the offenses were committed separately, and with separate animus. See Johnson

. Consequently, the trial court did not err in declining to

merge Count Two with Counts Three, Four, and Five.

{¶24} Siefer also contends that the trial court erred in declining to merge

Counts Three, Four, and Five. In resolving this contention we must address two

questions. First, what drugs did defendant possess? Second, did the General

Assembly intend for the possession of the drugs to constitute separate crimes?

{¶25} In the case at bar, Detective Francis testified that upon opening

Siefer’s safe he found 25.8 grams of crack cocaine, 30.7 grams of powder cocaine,

and one Oxycodone pill. Pursuant to R.C. 2925.11, possession of each

aforementioned drug constitutes a separate crime. R.C. 2925.11, provides as

follows:

-12- Case No. 5-09-24

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

***

(C) Whoever violates division (A) of this section is guilty of one of the following:

(1) If the drug involved in the violation is a compound, mixture, preparation, or substance included in schedule I or II, with the exception of marihuana, cocaine, L.S.D., heroin, and hashish, whoever violates division (A) of this section is guilty of aggravated possession of drugs. The penalty for the offense shall be determined as follows:

(a) Except as otherwise provided in division (C)(1)(b), (c), (d), or (e) of this section, aggravated possession of drugs is a felony of the fifth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.

***

(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:

(c) If the amount of the drug involved equals or exceeds twenty- five grams but is less than one hundred grams of cocaine that is not crack cocaine or equals or exceeds five grams but is less than ten grams of crack cocaine, possession of cocaine is a felony of the third degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree.

***

-13- Case No. 5-09-24

(e) If the amount of the drug involved equals or exceeds five hundred grams but is less than one thousand grams of cocaine that is not crack cocaine or equals or exceeds twenty-five grams but is less than one hundred grams of crack cocaine, possession of cocaine is a felony of the first degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the first degree.

{¶26} Pursuant to the foregoing language, we find that the General

Assembly intended that possession of crack cocaine, cocaine, and Oxycodone, be

treated as separate crimes. See State v. Crisp, 3d Dist. No. 1-05-45, 2006-Ohio-

2509, ¶22 (finding that the legislature intended there to be a distinction between

crack cocaine and cocaine). If we were to find otherwise, as Siefer suggests, we

would essentially abrogate the General Assembly’s intent that possession of

certain drugs result in separate crimes, which would significantly and negatively

alter the legislation’s purpose and effect.

{¶27} Accordingly, we overrule Siefer’s first assignment of error.

Assignment of Error No. II

{¶28} In her Second assignment of error, Siefer contends that the length of

the sentences imposed by the trial court constitutes cruel and unusual punishment.

We disagree.

{¶29} An appellate court must conduct a meaningful review of the trial

court’s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-

Ohio-5774, ¶8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-

-14- Case No. 5-09-24

1181. A meaningful review means “that an appellate court hearing an appeal of a

felony sentence may modify or vacate the sentence and remand the matter to the

trial court for re-sentencing if the court clearly and convincingly finds that the

record does not support the sentence or that the sentence is otherwise contrary to

law.” Daughenbaugh,

, citing Carter,

; R.C. 2953.08(G).

{¶30} The trial court has full discretion to sentence an offender to any term

of imprisonment within the statutory range without a requirement that it make

findings or give reasons for imposing the maximum sentence, more than the

minimum sentence, or ordering sentences to be served consecutively. State v.

Foster,

,

, at paragraph seven of the syllabus.

{¶31} R.C. 2929.11, 2929.12, 2929.13, and the unsevered portions of R.C.

2929.14 govern sentencing. State v. Petrik, 3d Dist. No. 3-10-06,

, citing Foster,

. R.C. 2929.11(A) and (B) provide as

follows:

(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.

-15- Case No. 5-09-24

(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.

{¶32} Additionally, when sentencing an offender, the trial court must

consider the factors set forth under R.C. 2929.12(B), (C), (D), and (E) relating to

the seriousness of the offender’s conduct and the likelihood of the offender’s

recidivism. R.C. 2929.12(A); see also State v. Ramos, 3d Dist. No. 4-06-24, 2007-

Ohio-767, ¶25. However, the trial court is not required to make specific findings

of its consideration of the factors. State v. Kincade, 3d Dist. No. 16-09-20, 2010-

Ohio-1497, ¶8, citing State v. Amett,

,

.

{¶33} Siefer points to nothing in the record that clearly and convincingly

demonstrates that the record does not support the sentences or that the sentences

are contrary to law. Each of the sentences imposed by the trial court fall within

the applicable statutory ranges. Furthermore, the trial court stated in its judgment

entry that it considered the factors set forth under R.C. 2929.12 and R.C. 2929.13,

along with the principles and purposes of sentencing under R.C. 2929.11.

{¶34} Consequently, because we find that the trial court considered the

appropriate sentencing factors under R.C. 2929.11, R.C. 2929.12, and R.C.

2929.13, because the trial court has discretion to sentence an offender to any term

-16- Case No. 5-09-24

of imprisonment within the statutory range and to order sentences to be served

concurrently or consecutively, and because Siefer has a prior criminal history,

evidencing a likelihood of recidivism under R.C. 2929.12(D), we find no error in

the trial court’s imposition of Siefer’s sentence.

{¶35} Accordingly, we overrule Siefer’s second assignment of error.

Assignment of Error No. V

{¶36} In her fifth assignment of error, Siefer contends that the prosecutor

engaged in misconduct denying her right to a fair trial and due process of law.

Specifically, Siefer contends that she was denied a fair trial and due process of law

when the State delayed in identifying the confidential informant; when the State

elicited inadmissible and prejudicial testimony from Detective Francis; when the

State, during its opening statement, vouched for the credibility of Roberts’ and the

police officers, denigrated Siefer, and exaggerated the amount of drugs found;

when the State, during its closing argument, vouched for Roberts’ credibility,

exaggerated the amount of drugs found in the safe, and speculated about the

purpose of the video camera in Siefer’s bedroom. We disagree.

{¶37} “[T]he test for prosecutorial misconduct is whether the remarks were

improper and, if so, whether the remarks prejudicially affected the accused’s

substantial rights.” State v. Twyford,

,

;

see also, State v. Smith (1984),

. Thus, an improper

-17- Case No. 5-09-24

question or remark made by the prosecutor can nevertheless fail to constitute

reversible error. State v. Satta, 3d Dist. No. 9-01-38,

, at ¶27.

Ultimately, “the touchstone of this analysis is the fairness of the trial, not the

culpability of the prosecutor.” Tywford, 94 Ohio St.3d at 355.

{¶38} First, Siefer challenges the State’s failure to timely disclose the

confidential informant’s identity. Initially, we note Crim.R. 16 governs the

disposition of this issue. The failure to comply with Crim.R. 16 is governed by

Crim.R. 16(L)(1), which provides:

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.

{¶39} A prosecutor’s violation of Crim.R. 16 is reversible error, “only

when there is a showing that (1) the prosecution’s failure to disclose was willful,

(2) disclosure of the information prior to trial would have aided the accused’s

defense, and (3) the accused suffered prejudice.” State v. Jackson,

,

, ¶131, citing State v. Parson (1983),

.

{¶40} Two months prior to trial, Siefer filed a discovery motion requesting

the State to reveal the confidential informant’s identity. As far as the record is

-18- Case No. 5-09-24

concerned, the State never filed a response to Siefer’s discovery request.

However, Crim.R. 16 does not require such a filing with the trial court. See State

v. Godfrey,

,

(Rogers, J., Concurring).

Accordingly, this fact alone is not sufficient to find reversible error.

{¶41} Pertinent to the disposition of Siefer’s contention is the fact that

Roberts’ identity was revealed to Siefer at the final pre-trial conference, which

occurred four days prior to trial. In addition, the State gave Siefer a copy of

Roberts’ LEADS report the following day. With this information, Siefer’s trial

counsel visited Roberts at his residence in attempt to speak with him, but Roberts

declined to speak. During trial, the issue was brought to the trial court’s attention,

but the trial court concluded Siefer had sufficient notice of the informant’s

identity. Nevertheless, prior to Roberts’ testimony, Siefer’s trial counsel was

allotted ten minutes to speak with Roberts, who again declined to speak.

{¶42} In light of the following, we find the State’s delay in disclosing

Roberts’ identity was neither willful nor prejudicial to Siefer. Siefer did request

Roberts’ identity to be disclosed two months prior to trial, yet at no time following

that motion did Siefer file a motion to compel the State to disclose Roberts’

identity. Looking at the record, it appears Siefer waited until the final pre-trial

conference to press the issue about the confidential informant’s identity, at which

point the State disclosed his identity and LEADS report. Accordingly, Siefer had

-19- Case No. 5-09-24

Roberts’ information three full days prior to trial, which provided Siefer sufficient

time to meet with Roberts. See State v. Phillips (1993),

, 842-

43. Indeed, Siefer’s trial counsel visited Roberts’ residence several days before

trial, and attempted to speak with Roberts about the case. When the issue was

brought to the trial court’s attention, the trial court allotted time for Siefer’s trial

counsel to speak with Roberts’ prior to his testimony. See State v. James (1990),

3d Dist. No. 1-89-57,

. From these facts, we find Siefer was given

ample opportunity to learn about and meet with Roberts, and prepare for his

testimony. Moreover, if Siefer felt as though she needed more time to prepare for

Roberts’ testimony, she could have moved for a continuance. Accordingly, we

find nothing in the record that demonstrates that any delay in disclosing Roberts’

identity to Siefer was the result of willful conduct, nor anything to indicate

prejudice to Siefer.

{¶43} Second, Siefer contends that Roberts was directed to not speak with

Siefer’s trial counsel. The only evidence Siefer offers in support of this contention

is Detective Francis’ testimony, during which he testified that he told Siefer’s trial

counsel to leave Roberts alone. While we do not condone Detective Francis’

statement, this fact alone is not prejudicial to Siefer. First, Siefer’s trial counsel

should have been aware that Detective Francis’ statement did not prohibit him

from speaking to Roberts. In fact, it appears that Siefer’s trial counsel was aware

-20- Case No. 5-09-24

of this fact, because after Detective Francis told counsel to stop bothering Roberts,

counsel visited Roberts’ residence. More importantly, Roberts testified that he

was never directed to not speak with Siefer’s trial counsel, and that he alone chose

not to speak. In light of Roberts’ testimony, and the absence of any countervailing

evidence, we find no prejudicial conduct occurred with regard to Roberts’ decision

to not speak with Siefer’s trial counsel.

{¶44} Third, Siefer contends that the State improperly elicited inadmissible

and prejudicial information from Detective Francis, and that such conduct

amounted to prosecutorial misconduct. Specifically, Siefer challenges the

following colloquy:

Q: Why do you assume that those items on the table and in the safe belong to Rosemary Siefer?

Mr. Schuman: Object, Your Honor. I don’t think that was in the testimony.

The Court: I’m going to overrule. It’s up to the jury to make these decisions as to what the evidence before them is.

Detective Francis: Due to the intelligence we received about the residence, being it was her residence, she was present at the time, yes, the drugs – they were in her possession.

Q: Specifically why do you say that?

A: She was at the residence and the drugs were there.

Q: Okay. Did you ever receive intelligence as to Rosemary having drugs in her safe?

-21- Case No. 5-09-24

A: Yes

Mr. Shuman: Object, Your Honor. That calls for hearsay testimony.

The Court: Sustained. Jury instructed to disregard the question and the answer.

Trial Tr., p. 386-87.

{¶45} We first note that the question to Detective Francis as to why he

assumed the items on the table and in the safe belonged to Siefer was improper.

The question calls for speculation and a conclusion on the part of the witness.

Such a question improperly invades the province of the jury. The jury is the fact

finder at trial and Detective Francis’ assumptions are immaterial and prejudicial.

However, given the substantial evidence presented at trial, including Siefer’s own

statements during the search, we find the error to be harmless in this case. The

later question regarding the receipt of intelligence about the contents of the safe,

was objected to and sustained. Therefore, we find that issue was properly resolved

by the trial court. As to the remainder of the colloquy, we find nothing which

amounts to prosecutorial misconduct. Accordingly, we find that no prosecutorial

misconduct took place with regard to testimony elicited during the State’s

examination of Detective Francis.

{¶46} Siefer’s two remaining contentions concerning prosecutorial

misconduct pertain to the State’s opening statement and closing argument. The

-22- Case No. 5-09-24

test for prosecutorial misconduct during opening statements and closing arguments

is whether the remarks made by the prosecutor were improper and, if so, whether

they prejudicially affected a substantial right of the accused. State v. White,

,

. In opening statements and closing arguments,

prosecutors are entitled to some latitude regarding what the evidence has shown

and the inferences that can be drawn. State v. Ballew,

, 255,

. “‘It is improper for an attorney to express his or her personal belief

or opinion as to the credibility of a witness or as to the guilt of the accused.’”

State v. Van Meter (1998),

, quoting State v. Williams,

, 12,

. However, “[a] prosecutor may state his

opinion if it is based on the evidence presented at trial.” State v. Watson (1991),

, abrogated on other grounds by State v. McGuire,

,

. Additionally, we review a prosecutor’s opening

statement and closing argument in its entirety.

If, in the context of the entire

trial, it appears clear beyond a reasonable doubt that the jury would have found the

defendant guilty, even without the improper remarks, then the trial will not be

deemed unfair. State v. Tenace,

,

, at ¶45,

citing State v. Treesh,

, 464,

. Again, the

touchstone of this analysis “is the fairness of the trial, not the culpability of the

-23- Case No. 5-09-24

prosecutor.” State v. Myers,

,

, quoting

Smith v. Phillips (1982),

.

{¶47} Siefer challenges the State’s opening statement in four respects.

First, she challenges the manner in which the prosecutor vouched for Roberts’

credibility. Second, she challenges her portrayal by the prosecutor. Third, she

challenges the manner in which the prosecutor vouched for the police officers’

credibility, particularly with regard to obtaining the second search warrant.

Fourth, she challenges the prosecutor’s discussion and phrasing concerning the

amount of drugs found in the safe.

{¶48} In reviewing the State’s entire opening statement, we find the

prosecutor’s statements were reasonably based on the evidence presented at trial.

In addition, we find that any opinions expressed during the opening statement

were proper, as they did not exceed the latitude of permissible opinions. Ballew,

. Accordingly, we find that Siefer was not prejudiced by the

State’s opening statement.

{¶49} Next, Siefer challenges the State’s closing argument in three

respects. First, she challenges the manner in which the prosecutor vouched for

Roberts’ credibility. Second, she challenges the prosecutor’s discussion and

phrasing concerning the amount of drugs found in the safe. Third, she challenges

-24- Case No. 5-09-24

the prosecutor’s speculation about the purpose of the video camera in Siefer’s

bedroom.

{¶50} In reviewing the State’s entire closing argument, we find the

prosecutor’s statements were reasonably based on the evidence presented at trial.

As to the first two challenged comments, we note that they are substantially

similar to those made in the State’s opening statement, which we found to be

proper. As to the prosecutor’s speculation concerning the purpose of the camera

in Siefer’s bedroom, we find that the prosecutor was simply drawing an inference,

which he may do, Ballew,

, as long as he is not expressing his

personal belief or opinion about the credibility of a witness or the accused. See

Williams,

. Accordingly, we find that Siefer was not

prejudiced by the State’s closing argument.

{¶51} In finding that there was no prosecutorial misconduct with regard to

disclosing the confidential informant’s identity, and that none of the questions or

remarks made by the State during trial prejudicially affected Siefer’s substantial

right to a fair trial and due process of law, we overrule Siefer’s fifth assignment of

error.

-25- Case No. 5-09-24

Assignment of Error No. VI

{¶52} In her sixth assignment of error, Siefer contends that the trial court

erred by giving the jury an instruction for constructive possession because there

was no evidence Siefer was aware of the drugs presence in the safe. We disagree.

{¶53} To prove a charge of possession of a controlled substance, the State

must show that the accused knowingly obtained, possessed, or used a controlled

substance. R.C. 2925.11(A). The Revised Code defines “possession” 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. 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. Teamer,

, 492,

.

{¶54} Possession may be actual or constructive. State v. Haynes (1971),

. For constructive possession to exist, the State must demonstrate

that the defendant was able to exercise dominion or control over the item, even

though the item may not be within his immediate physical possession. State v.

Wolery (1976),

; see, also, State v. Alexander, 8th Dist. No.

90509,

; State v. Messer (1995),

.

Further, it must also be shown that the person was conscious of the object’s

-26- Case No. 5-09-24

presence. State v. Hankerson (1982),

. Circumstantial

evidence alone is sufficient to support a finding of constructive possession. State v.

Jenks (1981),

, paragraph two of the syllabus,

superseded by state constitutional amendment on other grounds in State v. Smith,

,

.

{¶55} At trial, evidence of Siefer’s control over the safe was proffered via

Detective Francis’ testimony. During execution of the first search warrant, Siefer

stated that the bedroom, and the safe within it, was hers. Siefer also claimed the

contents of the safe were hers. Siefer even attempted to open the safe, but was

unsuccessful. In addition, there is nothing in the record that suggests anyone other

than Siefer had access to the safe, which bolsters the fact that Siefer exercised

some degree of control over the safe. Accordingly, we find that there was

sufficient evidence to conclude Siefer exercised control over the safe.

{¶56} As to her consciousness of the safe’s contents, specifically the crack

cocaine, powder cocaine, and Oxycodone, Siefer argues that her intoxication

abrogated her consciousness of the safe’s contents. We do not agree. When Siefer

caused the drugs to be placed in the safe she became conscious of their presence.

That consciousness lingers. The fact that her intoxication during the execution of

the search warrant may have affected her memory about the contents of the safe is

of no consequence in determining whether she was conscious of the drugs

-27- Case No. 5-09-24

presence in the safe. Siefer admitted that the contents of the safe were hers. We

find that this fact, coupled with the absence of evidence that someone else had

access to the safe, provided sufficient evidence to conclude Siefer was conscious

of the drugs presence in the safe.

{¶57} In light of the foregoing, we find that the trial court properly included

an instruction for constructive possession. Accordingly, we overrule Siefer’s sixth

assignment of error.

Assignment of Error No. VII

{¶58} In her seventh assignment of error, Siefer contends that trial counsel

was ineffective because he did not seek suppression of Siefer’s condition and

statements she made during the execution of the search warrant. We disagree.

{¶59} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley (1989),

, paragraph two of syllabus. To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different.

at paragraph three of syllabus. “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial. State v. Waddy (1992),

, superseded by

-28- Case No. 5-09-24

constitutional amendment on other grounds as recognized by State v. Smith,

, 103,

.

{¶60} Furthermore, the court must look to the totality of the circumstances

and not isolated instances of an allegedly deficient performance. State v. Malone

(1989), 2d Dist. No. 10564,

. “Ineffective assistance does not

exist merely because counsel failed ‘to recognize the factual or legal basis for a

claim, or failed to raise the claim despite recognizing it.’”

quoting Smith v.

Murray (1986),

.

{¶61} The United States Supreme Court has held that the “failure to file a

suppression motion does not constitute per se ineffective assistance of counsel”

Kimmelman v. Morrison (1986),

, cited in State v. Madrigal,

,

. There must also be a reasonable probability

that the motion will be successful. State v. Ligon, 3d Dist. No. 4-2000-25, 2001-

Ohio-2231. Thus, this Court’s determination of whether Siefer’s trial counsel was

ineffective relies upon whether there was a reasonable probability that a motion to

suppress would have been successful. State v. Pierce, 3d Dist. No. 11-09-05,

.

{¶62} First, Siefer contends that her trial counsel was ineffective because

he did not attempt to suppress evidence of Siefer’s physical condition during the

execution of the search warrant. To be successful, a motion to suppress the

-29- Case No. 5-09-24

introduction of Siefer’s physical condition during the execution of the search

warrant would have to challenge the legality of the search itself. Had the police

unlawfully entered Siefer’s residence any evidence discovered therein would be

inadmissible. Siefer did file a motion to suppress concerning the first search

warrant, but the trial court denied the motion, which was not appealed.3

Accordingly, the record reflects that the police, including Detective Francis,

lawfully entered Siefer’s residence. Once lawfully inside, anything Detective

Francis witnessed as to Siefer’s physical condition, such as her intoxicated state, is

properly admissible. As a result, we find that a motion to suppress Siefer’s

condition would not have been successful.

{¶63} Second, Siefer contends that her trial counsel was ineffective because

he did not attempt to suppress the statements Siefer made during the execution of

the search warrant. In order to suppress her statements, Siefer would have to

demonstrate that her statements were unlawfully obtained by the police. Siefer

was in custody at the time she identified the bedroom, safe, and contents of the

safe as hers. However, nothing in the record demonstrates that Siefer was forced,

coerced, or otherwise unlawfully persuaded to make those statements. Instead, the

record demonstrates that Siefer freely made the statements. Without any evidence

3 Even if the denial of the suppression motion were appealed, review of the record does not indicate that the trial court erred in overruling Siefer’s motion.

-30- Case No. 5-09-24

to suggest otherwise, we cannot find, with reasonable certainty, that a motion to

suppress Siefer’s statements would have succeeded.

{¶64} Consequently, because we find no error in trial counsel’s failure to

file a motion to suppress Siefer’s condition and statements, we find no error in

trial counsel’s performance.

{¶65} Accordingly, we overrule Siefer’s seventh assignment of error.

Assignments of Error No. III & IV

{¶66} In her third and fourth assignments of error, Siefer contends that the

trial court improperly informed her about the terms of her post-release control, and

did not comply with Crim.R. 32(C). In November 2010, finding that the trial court

did err, this Court stayed the appeal, and remanded the case back to the trial court

for resentencing. The trial court resentenced Siefer in December 2010. Upon

review of the latest judgment entry, we find that the trial court properly

resentenced Siefer. Accordingly, we find Siefer’s third and fourth assignments of

error to be moot, and we decline to address them. App.R. 12(A)(1)(c).

{¶67} Having found no error prejudicial to Siefer herein, in the particulars

assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jnc

-31-