[Cite as State v. Dixon,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : : Case No. 15CA3680 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY LARRY DIXON, : : Defendant-Appellant. : Released: 04/06/16 _____________________________________________________________ APPEARANCES:

James S. Sweeney, James Sweeney Law, LLC, Columbus, Ohio, for Appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Shane A. Tieman, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee. _____________________________________________________________

McFarland, J.

{¶1} Larry Dixon appeals from his convictions and sentences imposed

by the Scioto County Court of Common Pleas after a jury found him guilty

of possession and trafficking in both cocaine and heroin. On appeal,

Appellant contends that 1) the trial court erred when it failed to grant his

motion for acquittal as the guilty verdicts at the trial court were not

supported by sufficient evidence; 2) the trial court erred when it entered a

judgment against him when the judgment was not supported by the manifest Scioto App. No. 15CA3680 2

weight of the evidence; 3) the prosecuting attorney’s remarks during closing

argument constituted prosecutorial misconduct and plain error which

deprived him of a fair trial in violation of the United States Constitution; 4)

the trial court erred in failing to properly advise him of the consequences of

violating postrelease control, rendering his conviction partially void; and 5)

he received ineffective assistance of counsel to a degree that he did not

receive a fair trial.

{¶2} Because we have concluded that Appellant’s convictions are

supported by sufficient evidence and are not against the manifest weight of

the evidence, Appellant’s first and second assignments of error are

overruled. Further, as we did not find that the prosecutor’s comments during

closing argument rose to the level of plain error, Appellant’s third

assignment of error is overruled. With respect to Appellant’s fourth

assignment of error, we conclude that the trial court erred in failing to

properly impose postrelease control and as such, the postrelease control

portion of Appellant’s sentence is vacated and the matter is remanded to the

trial court for re-sentencing. Finally, because we cannot conclude that trial

counsel’s representation was deficient, Appellant’s fifth and final

assignment of error is overruled. Accordingly, Appellants convictions are Scioto App. No. 15CA3680 3

affirmed; however, the postrelease control portion of his sentence is vacated

and the matter is remanded for the proper imposition of postrelease control.

FACTS

{¶3} In the early morning hours on September 16, 2014, Trooper Nick

Lewis, with the Ohio State Highway Patrol, stopped a vehicle driven by

Appellant, Larry Dixon. Lewis was assigned to the drug interdiction team

and had been informed that there was a large supplier of crack cocaine in

Chillicothe. Lewis initially ran the tag as the vehicle passed by on U.S.

Route 23 and determined that the vehicle was owned by an older female in

Chillicothe. After Lewis began following the vehicle, he observed a traffic

violation and initiated a traffic stop.

{¶4} When he approached the stopped vehicle, Appellant, who was

driving the vehicle, informed Lewis he did not have a driver’s license or

identification. Lewis patted down Appellant and placed him in the back of

the cruiser. When Lewis noted that he smelled marijuana, Appellant stated

marijuana had been smoked in the vehicle earlier, but not by him. Lewis

then asked the passenger, Lawrence Barnes, to exit the vehicle. While

patting Barnes down, Barnes began to resist and a struggle ensued in which

both Lewis and Barnes went out of view of the trooper cam. Lewis later

testified during trial that during the pat down he felt an object in Barnes’ Scioto App. No. 15CA3680 4

pants, asked Barnes to remove the object and at that time Barnes began to

pull away from him. After reinforcements arrived, Barnes was again

searched but the object was no longer on his person. He was cuffed and

placed in the cruiser while the troopers searched the area.

{¶5} Trooper Basdin, who had arrived to assist Lewis, found a white

object lying in the grass in the area where Barnes and Lewis had struggled.

The contents were later identified as 22.464 grams of cocaine and 3.993

grams of heroin, the identity and weight of which the parties stipulated at

trial. The heroin was packaged into thirty-one small baggies, which Lewis

testified typically indicates they have been prepared for sale. Lewis also

testified that the drugs were concealed in the rear of Barnes’ pants. Both

Appellant and Barnes were Mirandized, placed under arrest and transported

to the Highway Patrol Post.

{¶6} Trooper Lewis testified that while at the post, he reviewed the

recording from the trooper cam. Not only did the camera record what

occurred outside the vehicle, but a recording was also made of Appellant and

Barnes while they were in the backseat of the cruiser. After hearing

comments by both Appellant and Barnes on the video, Lewis asked

Appellant if he would like to provide a written statement, however,

Appellant declined. Lewis testified that he asked Appellant if he smoked Scioto App. No. 15CA3680 5

crack cocaine, to which Appellant replied that he did. Appellant further

stated that although they had not discussed details, Barnes was to pay

Appellant in either cash or crack cocaine for transporting him.

{¶7} Subsequently, on November 4, 2014, Appellant and Lawrence

Barnes were both indicted on four felony counts, including count one,

trafficking in cocaine, a felony of the second degree in violation of R.C.

2925.03(A)(2) and 2925.03(C)(4)(e); count two, possession of cocaine, a

felony of the second degree in violation of R.C. 2925.11(A) and

2925.11(C)(4)(d); count three, trafficking in heroin, a felony of the third

degree in violation of R.C. 2925.03(A)(2) and 2925.03(C)(6)(d); and count

four, possession of cocaine, a felony of the third degree in violation of R.C.

2925.11(A) and 2925.11(C)(6)(c).1 A fifth count was contained in the

indictment, which charged obstructing official business, a fifth degree felony

in violation of R.C. 2921.31(A) and 2921.31(B), however, this count only

applied to Barnes.

{¶8} A one-day jury trial was held on December 15, 2014. The State

presented the testimony of Troopers Lewis and Basdin, and played the video

of the trooper cam for the jury. Appellant, through counsel, made a motion

for dismissal pursuant to Crim.R. 29(A), which was denied by the trial court.

1 Counts three and four were later amended to fourth degree felonies. Scioto App. No. 15CA3680 6

The defense then rested without presenting any evidence. The jury

subsequently found Appellant guilty of all four counts of the indictment. As

such, the trial court entered convictions on each count and sentenced

Appellant to a total mandatory prison term of four years.2 The trial court

further imposed a mandatory three-year term of postrelease control. It is

from this judgment entry that Appellant brings his current appeal, setting

forth five assignments of error for our review.3

ASSIGNMENTS OF ERROR

“I. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THE DEFENDANT’S [SIC] MOTION FOR ACQUITTAL AS THE GUILTY VERDICTS AT THE TRIAL COURT WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE.

II. THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST THE APPELLANT WHEN THE JUDGMENT WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.

III. THE PROSECUTING ATTORNEY’S REMARKS DURING CLOSING ARGUMENTS CONSTITUTED PROSECUTORIAL MISCONDUCT AND PLAIN ERROR WHICH DEPRIVED APPELLANT OF A FAIR TRIAL IN VIOLATION OF THE UNITED STATES CONSTITUTION.

IV. THE TRIAL COURT ERRED IN FAILING TO PROPERLY ADVISE APPELLANT OF THE CONSEQUENCES OF

2 In sentencing Appellant, the trial court imposed a four-year mandatory term as to count one, merged count two with count one, imposed a stated prison term of eighteen months on count three, and merged count four with count three. The trial court then ordered the sentences to be served consecutively for a total term of four years. 3 Appellant appealed from the trial court’s nunc pro tunc judgment entry entered on January 9, 2015. Scioto App. No. 15CA3680 7

VIOLATING POSTRELEASE CONTROL RENDERING APPELLANT’S CONVICTION PARTIALLY VOID.

V. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL TO A DEGREE THAT APPELLANT DID NOT RECEIVE A FAIR TRIAL.”

ASSIGNMENT OF ERROR I

{¶9} In his first assignment of error, Appellant contends that the trial

court erred when it failed to grant his motion for acquittal, as the guilty

verdicts were not supported by sufficient evidence. “A motion for acquittal

under Crim.R. 29(A) is governed by the same standard as the one for

determining whether a verdict is supported by sufficient evidence.” State v.

Tenace,

,

,

(2006), ¶ 37.

When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence,

if believed, reasonably could support a finding of guilt beyond a reasonable

doubt. State v. Thompkins,

,

(1997)

(stating that “sufficiency is a test of adequacy”); State v. Jenks,

,

(1991). The standard of review is whether,

after viewing the probative evidence and inferences reasonably drawn

therefrom in the light most favorable to the prosecution, any rational trier of

fact could have found all the essential elements of the offense beyond a Scioto App. No. 15CA3680 8

reasonable doubt. Jackson v. Virginia,

,

,

(1979);

.

{¶10} Furthermore, a reviewing court is not to assess “whether the

state's evidence is to be believed, but whether, if believed, the evidence

against a defendant would support a conviction.”

. Thus,

when reviewing a sufficiency-of-the-evidence claim, an appellate court must

construe the evidence in a light most favorable to the prosecution. State v.

Hill,

,

(1996); State v. Grant,

,

(1993). A reviewing court will not

overturn a conviction on a sufficiency-of-the-evidence claim unless

reasonable minds could not reach the conclusion that the trier of fact did.

State v. Tibbetts,

,

(2001); State v.

Treesh,

,

(2001).

{¶11} On appeal, Appellant challenges the sufficiency of the evidence

presented by the State in support of the offenses for which he was charged

and convicted, possession and trafficking of cocaine and heroin. R.C.

2925.03(A)(2) governs trafficking offenses and provides as follows:

“(A) No person shall knowingly do any of the following:

*** Scioto App. No. 15CA3680 9

(2) Prepare for shipment, ship, transport, deliver, prepare for

distribution, or distribute a controlled substance or a controlled

substance analog, when the offender knows or has reasonable

cause to believe that the controlled substance or a controlled

substance analog is intended for sale or resale by the offender

or another person.”

R.C. 2925.11(A) governs drug possession offenses and provides in section

(A) that “[n]o person shall knowingly obtain, possess, or use a controlled

substance or a controlled substance analog.”

{¶12} Appellant contends that the State failed to prove beyond a

reasonable doubt that he knowingly shipped the illegal drugs in question and

that he had either actual or constructive possession of them. “A person acts

knowingly, regardless of his purpose, when he is aware that his conduct will

probably cause a certain result or will probably be of a certain nature. A

person has knowledge of circumstances when he is aware that such

circumstances probably exist.” R.C. 2901.22(B). “[P]ossession” 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.

2925.01(K). “Possession may be actual or constructive.” State v. Moon, 4th Scioto App. No. 15CA3680 10

Dist. Adams No. 08CA875,

, ¶ 19; citing State v. Butler,

,

(1989) (“[t]o constitute possession, it is

sufficient that the defendant has constructive possession”).

{¶13} “ ‘Actual possession exists when the circumstances indicate

that an individual has or had an item within his immediate physical

possession.’ ” State v. Kingsland,

,

,

(4th Dist.); quoting State v. Fry, 4th Dist. Jackson No.

03CA26,

. “Constructive possession exists when an

individual knowingly exercises dominion and control over an object, even

though that object may not be within his immediate physical possession.”

State v. Hankerson,

,

(1982), syllabus;

State v. Brown, 4th Dist. Athens No. 09CA3,

, ¶ 19. For

constructive possession to exist, the state must show that the defendant was

conscious of the object's presence.

;

.

Both dominion and control, and whether a person was conscious of the

object's presence may be established through circumstantial evidence.

Brown at ¶ 19. “Moreover, two or more persons may have joint constructive

possession of the same object.”

{¶14} “Although a defendant's mere proximity is in itself insufficient

to establish constructive possession, proximity to the object may constitute Scioto App. No. 15CA3680 11

some evidence of constructive possession. * * * Thus, presence in the

vicinity of contraband, coupled with another factor or factors probative of

dominion or control over the contraband, may establish constructive

possession.”

; State v. Criswell, 4th Dist. Scioto No.

13CA3588,

, ¶ 11.

{¶15} In support of his contention that the State failed to demonstrate

Appellant knowingly shipped drugs, Appellant notes that he repeatedly

denied to Trooper Lewis that there was anything illegal in the vehicle. He

further argues that the statement he made indicating “they found it[,]” could

be attributed to the fact that he had likely seen Barnes toss the drugs during

the struggle with Lewis and was simply commenting that the troopers had

found the drugs. Based upon our review of the record, we reject Appellant’s

arguments regarding whether the State demonstrated Appellant had

knowledge of the drugs.

{¶16} A review of the record indicates that upon being stopped,

Appellant was cooperative with Trooper Lewis and denied that there was

anything illegal in the car. He admitted marijuana had been smoked in the

vehicle earlier, but not by him. Once Barnes was placed in the cruiser with

him, Appellant and Barnes conversed and Appellant made multiple

statements which seemingly denied any knowledge of illegal drugs in the Scioto App. No. 15CA3680 12

vehicle. However, once the troopers found the bag of drugs in the grassy

area on the side of the road, Appellant stated “they found it.” At that point,

the conversation took a turn. Barnes then began to question Appellant as to

whether he had set him up, and whether Appellant was a confidential

informant. These questions, though lodged by Barnes, infer Appellant knew

Barnes was carrying drugs.

{¶17} Further, a review of the trial transcript indicates Trooper Lewis

testified that when Barnes pulled away from him a second time, the video

shows Barnes had his hand down the back of his pants. The inference from

this testimony is that this is likely the point in which Barnes tossed the bag

of drugs.4 A review of the video, however, indicates that Barnes pulled

away from Lewis right in front of the cruiser. It appears from our review of

the trooper cam that Appellant was staring off to the side when this initial

struggle between Barnes and Lewis began, and then at some point Appellant

noticed that something was happening off to the side of the vehicle. In fact,

a review of the trooper cam video reveals that when Barnes was placed into

the cruiser, Appellant asked him what happened and stated he didn’t see

what happened. Additionally, as noted by the State, at one point on the

video Appellant can be heard stating “[w]e’re fucked.” Such a statement

4 This Court, after reviewing the video, was unable to determine the point in which Barnes tossed the drugs. Scioto App. No. 15CA3680 13

implies Appellant and Barnes were acting together, or at a minimum that

Appellant was complicit in Barnes’ conduct. These facts contradict

Appellant’s argument that his statement “they found it” was simply in

reference to him having seen Barnes toss the bag of drugs into the grass.

{¶18} Appellant also argues that the fact that he was to allegedly be

paid in crack cocaine or cash does not mean that he knew Barnes had crack

cocaine or heroin on his person at the time they were stopped. A review of

the record indicates that after being Mirandized, and while at the State

Highway Patrol Post, Appellant admitted to Trooper Lewis that he smoked

crack cocaine and that he was to be paid in either cash or crack cocaine to

drive Barnes to Kentucky. The significance of this statement is better

understood when considered in light of testimony by Trooper Lewis that

based upon his experience working drug interdiction, drugs travel south and

money travels north. While it is not out of the realm of possibility that

Appellant was completely clueless as to Barnes’ possession of drugs and

thought Barnes would obtain drugs to pay him once they arrived at their

destination, a more realistic scenario, construing the facts in a light most

favorable to the prosecution, is that Appellant knew he was transporting

Barnes, who was carrying drugs, and that in exchange for providing

transportation, Appellant would either be paid in cash that would be Scioto App. No. 15CA3680 14

obtained after said drugs were sold, or would be paid a portion of the drugs

that were being transported. Coupled with Appellant’s comments that “they

found it” and “[w]e’re fucked[,]” as well as Barnes’ accusations that

Appellant had set him up, we cannot conclude that the State failed to prove

Barnes was carrying drugs and was transporting them for sale, and that

Appellant had knowledge of these facts, and was complicit in this conduct.

{¶19} Appellant further contends that because the drugs were found

between Barnes’ buttocks, Appellant did not have actual or constructive

possession of them. Appellant argues that finding him in constructive

possession of the drugs at issue would require a belief that Appellant had

dominion and control over something that was in a very private part of

another’s body. However, this Court has found constructive possession in

such circumstances. For example, in State v. Crocker,

,

, this Court found that the driver of a vehicle had knowledge of

and was in constructive possession of heroin and cocaine that was concealed

in the vagina of the passenger of the vehicle. In determining Crocker had

knowledge of the drugs, we took into consideration text messages appearing

on Crocker’s phone and statements made by Crocker on the jail telephone

indicating he had knowledge of the drugs. Id. at ¶ 27. After concluding

Crocker had knowledge of the drugs, and noting the fact that Crocker drove Scioto App. No. 15CA3680 15

the rental car that was transporting the drugs, we further concluded that

Crocker was in a position to control the contraband. Id. Ultimately, we

determined in Crocker that the trial court reasonably concluded “that

Crocker knew about the heroin and cocaine and that he exercised dominion

and control over the drugs by knowingly transporting them in the rental car.”

Id. at ¶ 28.

{¶20} Here, we have determined that the facts, if believed and

considered in a light most favorable to the prosecution, demonstrate that

Appellant had knowledge of the drugs at issue. Here, like in Crocker,

Appellant was the driver of the vehicle transporting the drugs. The vehicle

at issue was registered to Appellant’s mother, thus this is not a situation

where Appellant was simply driving Barnes’ vehicle. Appellant apparently

obtained a vehicle from his mother to transport Barnes, who was carrying

drugs, to Kentucky, in exchange for payment in the form of either cash or

crack cocaine. Based upon these facts, and relying on our prior reasoning in

Crocker, we conclude that the State demonstrated that Appellant knowingly

transported drugs and that by driving the vehicle in which they were being

transported, he exercised dominion and control over the drugs. As such,

although Appellant was not in actual possession of the drugs, he

constructively possessed them. In light of the foregoing, we cannot Scioto App. No. 15CA3680 16

conclude that the trial court erred in denying Appellant’s Crim.R. 29(A)

motion for acquittal. Accordingly, Appellant’s first assignment of error is

overruled.

ASSIGNMENT OF ERROR II

{¶21} In his second assignment of error, Appellant contends that the

trial court erred when it entered a judgment against him when the judgment

was not supported by the manifest weight of the evidence. Appellant relies

on the same argument presented in his first assignment of error, contending

that the State failed to demonstrate that he was aware of the drugs found on

Barnes’ person, and failed to demonstrate Appellant was in actual or

constructive possession of the drugs.

{¶22} When considering whether a conviction is against the manifest

weight of the evidence, our role is to determine whether the evidence

produced at trial “attains a high degree of probative force and certainty

required of a criminal conviction.” State v.

; quoting State

v. Getsy,

,

(1998). The reviewing

court sits, essentially, as a “ ‘thirteenth juror’ and [may] disagree [ ] with the

fact finder's resolution of the conflicting testimony.”

quoting

State v.

; quoting Tibbs v. Florida,

,

(1982). The reviewing court must dutifully examine the entire Scioto App. No. 15CA3680 17

record, weighing the evidence and considering the credibility of witnesses,

but keeping in mind that credibility generally is an issue for the trier of fact

to resolve.

citing State v. Thomas,

,

(1982); State v. DeHass,

,

(1967), paragraph one of the syllabus.

{¶23} The reviewing court may reverse the conviction if it appears

that the factfinder, in resolving evidentiary conflicts, “ ‘clearly lost its way

and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.’ ”

; quoting State v.

Martin,

,

(1st Dist. 1983). On the

other hand, we will not reverse a conviction if the State presented substantial

evidence upon which the trier of fact could reasonably conclude that all

essential elements of the offense had been established beyond a reasonable

doubt.

citing State v. Eley,

,

(1978), syllabus.

{¶24} We have addressed in detail the evidence presented at trial in

addressing Appellant’s first assignment of error, where we determined that

Appellant’s convictions were supported by sufficient evidence, and as such,

the trial court did not err in denying Appellant’s Crim.R. 29(A) motion for

acquittal. In light of the evidence that was presented, as discussed above, we Scioto App. No. 15CA3680 18

find there was not only sufficient evidence, but substantial evidence upon

which the trier of fact reasonably could conclude that the essential elements

of the above offenses have been established beyond a reasonable doubt.

{¶25} Although the State acknowledges that some of Appellant’s

statements were subject to interpretation, we agree with the State that they

could also be interpreted to indicate knowledge. Likewise, we conclude the

facts before us constitute substantial evidence that Appellant was in

constructive possession of the drugs by driving the vehicle in which the

drugs were being transported. Further, we are mindful that credibility

generally is an issue for the trier of fact to resolve. The jury clearly believed

the State’s version of events and afforded weight accordingly to the

statements made by Appellant. Based upon the evidence it had before it, we

cannot conclude that the jury clearly lost its way and created such a manifest

miscarriage of justice that the convictions must be reversed. Accordingly,

Appellant’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

{¶26} In his third assignment of error, Appellant contends that the

prosecuting attorney’s remarks during closing argument constituted

prosecutorial misconduct and plain error which deprived Appellant of a fair

trial in violation of the United States Constitution. Failure to object to an Scioto App. No. 15CA3680 19

alleged error waives all but plain error. State v. Keeley, 4th Dist. Washington

No. 11CA5,

. Notice of Crim.R. 52(B) plain error

must be taken with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice. State v. Rohrbaugh,

,

,

; State v. Long,

,

(1978), paragraph three of the syllabus. To

find plain error, the outcome of trial must clearly have been otherwise. State

v. McCausland,

,

,

, ¶ 15;

State v. Braden,

,

,

.

{¶27} “The test for prosecutorial misconduct is whether the conduct

was improper and, if so, whether the rights of the accused were materially

prejudiced.” State v. Purdin, 4th Dist. Adams No. 12CA944,

; quoting State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-Ohio-

6191, ¶ 36; citing State v. Smith,

,

,

, ¶ 45; in turn citing State v. Smith,

,

(1984). “The ‘conduct of a prosecuting attorney during trial

cannot be grounds for error unless the conduct deprives the defendant of a

fair trial.’ ” Purdin at ¶ 31; quoting State v. Givens, 4th Dist. Washington

No. 07CA19,

; quoting State v. Gest,

,

(8th Dist. 1995). Accord State v. Apanovitch, 33 Scioto App. No. 15CA3680

,

(1987). “Prosecutorial misconduct

constitutes reversible error only in rare instances.”

quoting

State v. Edgington, 4th Dist. Ross No. 05CA2866,

;

citing State v. Keenan,

,

(1993). The

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

the prosecutor. * * * The Constitution does not guarantee an ‘error free,

perfect trial.’ ” Purdin at ¶ 31; quoting Leonard at ¶ 36; quoting

.

{¶28} Appellant contends that the following statement by the

prosecution constituted prosecutorial misconduct: “Midnight, African

American male asks for a ride to Portsmouth and he will pay you in crack or

money.” Appellant argues that the statement was essentially a racially

biased argument by the prosecution that suggested that because Appellant

was giving a ride to an African-American late at night “that something

nefarious was afoot.” Appellant argues the comment was inflammatory and

constituted plain error. However, based upon the following reasons, we

disagree.

{¶29} We initially note that we agree with Appellant that the

comment made during closing by the prosecution may have been

inappropriate, yet we cannot conclude that but for the comment the outcome Scioto App. No. 15CA3680 21

of the trial would have been different. As set forth above, we have already

noted that Appellant's convictions were based upon sufficient evidence and

were not against the manifest weight of the evidence. Further, this solitary

and isolated comment made by the prosecution was made during closing

arguments. The jury was instructed that “* * * attorneys are not witnesses,

and since it is your duty to decide the case solely on the evidence which you

see and here [sic] in this case, you must not consider as evidence any

statement of any attorney made during the trial.” The jury was further

instructed that “* * * the evidence does not include any statement of counsel

made during the trial, unless such statement was an admission or agreement

admitting certain facts. The opening statements and the closing arguments

of the counsel are designed to assist you, but they are not evidence.” “ ‘A

presumption always exists that the jury has followed the instructions given

to it by the trial court.’ ” State v. Murphy, 4th Dist. Scioto No. 09CA3311,

; quoting Pang v. Minch,

,

(1990), paragraph four of the syllabus.

{¶30} Bearing in mind our plain error standard of review, considering

that this statement was made one time during closing arguments, and in light

of the other evidence before the jury, we cannot conclude that Appellant

would not have been convicted but for the prosecutions’ reference to the Scioto App. No. 15CA3680 22

race of Appellant’s co-defendant. As such, Appellant has failed to

demonstrate plain error. Accordingly, Appellant’s third assignment of error

is overruled.

ASSIGNMENT OF ERROR IV

{¶31} In his fourth assignment of error, Appellant contends that the

trial court erred in failing to properly advise him of the consequences of

violating postrelease control, which Appellant claims rendered his

convictions partially void. More specifically, Appellant contends that

although the trial court informed him that he may receive a prison term for

the commission of a new felony while on postrelease control, and that that

prison term may be imposed “in addition to” any other prison term imposed

for the new offense, the trial court failed to inform him that a prison term

imposed for the commission of a new felony will be served “consecutively”

to the prison term for the violation of postrelease control. The State argues

that “in addition to” means essentially the same thing as “consecutive to,”

but concedes that this notification does not meet the sentencing requirements

for postrelease control notifications set forth in State v. Pippen, 4th Dist.

Scioto No. 14CA3595,

.

{¶32} “Generally, when reviewing felony sentences, we apply the

standard of review set forth in R.C. 2953.08(G)(2).” State v. Baker, 4th Dist. Scioto App. No. 15CA3680 23

Athens No. 13CA18,

. See also State v. Brewer, 4th

Dist. Meigs No. 14CA1,

(“we join the growing

number of appellate districts that have abandoned the Kalish plurality's

second-step abuse-of-discretion standard of review; when the General

Assembly reenacted R.C. 2953.08(G)(2), it expressly stated that ‘[t]he

appellate court’s standard of review is not whether the sentencing court

abused its discretion’ ”).5

{¶33} Under R.C. 2953.08(G)(2), we may only modify or vacate a

defendant's sentence if we find, clearly and convincingly, that (1) the record

does not support the mandatory sentencing findings, or (2) that the sentence

is “otherwise contrary to law.” We recognize that this is an “extremely

deferential standard of review.” State v. Venes,

,

, at ¶ 21. Although Kalish may not provide the standard of review

framework for reviewing felony sentences, it does provide guidance for

determining whether a sentence is clearly and convincingly contrary to law.

See State v. Lee, 12th Dist. Butler No. CA2012-09-182,

. According to Kalish, a sentence is not clearly and convincingly

contrary to law when the trial court considers the purposes and principles set

forth in R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly

5 State v. Kalish,

,

,

. Scioto App. No. 15CA3680 24

applies postrelease control, and sentences within the permissible statutory

range. Id.; See also Kalish at ¶ 18.

{¶34} In State v. Pippen, supra, this Court held that a trial court must

incorporate notice of the sanctions set forth in R.C. 2929.141(A) when

giving its notification of the potential penalties for violations of postrelease

control. More specifically, we held the court must include a notification that

a prison term imposed for commission of a new felony during a term of

postrelease control will be served consecutively to the prison term imposed

by the court for the violation of postrelease control. Pippen at ¶ 24. Here,

the trial court advised Appellant as follows, both on the record and in the

sentencing entry, with respect to postrelease control violations:

“If the violation is a new felony, Defendant may receive a

prison term of the greater of one year, or the time remaining on

post release control, in addition to any other prison term

imposed for the new offense.”

Thus, the entry does not state that the prison term must be served

consecutively to the term imposed for the violation of postrelease control.

{¶35} Under our holding in Pippen, the trial court's failure to advise

Appellant of all the consequences of violating postrelease control renders

that part of the sentence void and we must set it aside. Pippen at ¶ 25; citing Scioto App. No. 15CA3680 25

State v. Fischer,

,

,

.

Despite a split amongst appellate districts regarding whether this notification

is required, this Court recently adhered to our prior holding in Pippen in

State v. Adkins, 4th Dist. Lawrence No. 14CA29,

¶ 16

(acknowledging different holdings by different districts on this particular

question but reasoning that “principles of stare decisis require that we follow

our prior holding in Pippen unless there is a ‘special justification’ to depart

from it.”).

{¶36} Thus, we find merit to Appellant’s argument that the trial court

erred in failing to properly impose postrelease control, however, we disagree

with Appellant’s conclusion that such error renders his convictions void.

Instead, we conclude that the error renders only the postrelease control

portion of Appellant’s sentence void. Id. at ¶ 20. As such, we find merit to

Appellant’s fourth assignment of error. Accordingly, we order the

postrelease control portion of Appellant’s sentence to be vacated, and

remand this matter to the trial court for re-sentencing.

ASSIGNMENT OF ERROR V

{¶37} In his fifth and final assignment of error, Appellant contends

that he received ineffective assistance of counsel to a degree that he did not

receive a fair trial. Criminal defendants have a right to counsel, including a Scioto App. No. 15CA3680 26

right to the effective assistance from counsel. McMann v. Richardson,

,

(1970); State v. Stout, 4th Dist. Gallia

No. 07CA5,

. To establish constitutionally ineffective

assistance of counsel, a criminal defendant must show (1) that his counsel's

performance was deficient and (2) that the deficient performance prejudiced

the defense and deprived him of a fair trial. Strickland v. Washington,

,

, (1984); State v. Issa,

,

(2001); State v. Goff,

,

(1998). “In order to show deficient performance, the defendant must

prove that counsel's performance fell below an objective level of reasonable

representation. To show prejudice, the defendant must show a reasonable

probability that, but for counsel's errors, the result of the proceeding would

have been different.” State v. Conway,

, 2006-Ohio-

2815,

. “Failure to establish either element is fatal to

the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116,

.

{¶38} “When considering whether trial counsel's representation

amounts to deficient performance, ‘a court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance.’ ” State v. Walters, 4th Dist. Washington Nos. Scioto App. No. 15CA3680 27

13CA33, 13CA36,

; quoting

. “Thus, ‘the defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered sound

trial strategy.’ ” Id.; quoting

. “ ‘A properly licensed

attorney is presumed to execute his duties in an ethical and competent

manner.’ ” Id.; quoting State v. Taylor, 4th Dist. Washington No. 07CA11,

. “Therefore, a defendant bears the burden to show

ineffectiveness by demonstrating that counsel's errors were so serious that he

or she failed to function as the counsel guaranteed by the Sixth

Amendment.”

{¶39} Appellant contends that his trial counsel was deficient in two

ways. First, he argues that trial counsel failed to but should have objected to

the admission of testimony pertaining to his prior drug use. Specifically,

Appellant claims his trial counsel should have objected to testimony in

which Appellant, in response to Trooper Lewis’ inquiry, stated he smokes

crack cocaine. Appellant argues that the admission of this statement should

have been excluded under Evid.R. 404(B) as evidence of other crimes,

wrongs, or acts, which are not admissible to prove the character of a person

or to show action in conformity therewith. The State responds by arguing

that this testimony was not improper character testimony, but rather was an Scioto App. No. 15CA3680 28

admission against interest by Appellant. The State further argues that even

if the statement could be considered other acts testimony, evidence of

motive is admissible under other acts.

{¶40} At trial, Trooper Lewis testified as follows:

“I had asked Mr. Dixon if he wanted to give me a written

statement. He said at the time he didn’t want to give a written

statement. But as I’m sitting there doing my paperwork, the

incarceration forms, writing out his citation and things like that,

I began to talk to him and asked him, you know, if he smoked

crack cocaine. He advised that he did smoke crack cocaine. I

also asked if he was getting paid to take Mr. Barnes to – they –

they told me they were going to Kentucky, originally. I asked

him if he was getting paid to go to Kentucky. He said he didn’t

know. I asked him if he was going to get some of the crack

cocaine. He said they didn’t discuss details, he just knew that

he was getting paid to take him down there, whether it would be

cash or crack cocaine.”

{¶41} As argued by Appellant, under Evid.R. 404(B), “[e]vidence of

other crimes, wrongs, or acts is not admissible to prove” a defendant's

character or in order to show criminal propensity. However, as also argued Scioto App. No. 15CA3680 29

by the State, it may be admissible to show “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.”

(Emphasis added). We find that here, Appellant’s statement was admissible

for purposes of showing knowledge of the existence of the drugs at issue, as

well as motive for his involvement in the transportation of the drugs. Thus,

we cannot say that counsel’s performance was deficient for failing to object

to the admission of the statement, or that Appellant was prejudiced by the

failure to object. Further, as noted by the State, it is apparent that part of

defense counsel’s strategy was to paint the picture that Appellant was a drug

user, but not a trafficker, and counsel for Appellant argued to that effect

during closing arguments. Thus, it is reasonable to conclude that defense

counsel did not object to the admission of the statement for tactical reasons.

As such, we cannot conclude that Appellant has overcome the presumption

that counsel’s actions were sound trial strategy.

{¶42} Secondly, Appellant argues that trial counsel failed to object to

the playing of the videotaped statements between him and Barnes, as Barnes

was unable to be subjected to cross-examination. Appellant contends this

evidence violated his Sixth Amendment right of confrontation. The State

responds by primarily arguing that Appellant had no reasonable expectation

of privacy regarding statements made in the back of a police cruiser. The Scioto App. No. 15CA3680 30

State also argues that a recording of Appellant’s own actions and reactions

does not implicate the confrontation clause, that the statements of Barnes

were not offered for the truth of the matter asserted, and that playing the

video tape was part of defense counsel’s trial strategy.

{¶43} “[T]he admission or exclusion of evidence generally rests in the

trial court's sound discretion.” State v. Jeffers, 4th Dist. Gallia No. 08CA7,

, ¶ 17; citing State v. Sage,

,

(1987). “However, questions concerning evidentiary issues that also

involve constitutional protections, including confrontation clause issues,

should be reviewed de novo.” Jeffers at ¶ 17; citing State v. Hardison, 9th

Dist. Summit No. 23050,

.

{¶44} The Sixth Amendment to the United States Constitution

provides, “[i]n all criminal prosecutions, the accused shall enjoy the right

* * * to be confronted with the witnesses against him.” The Supreme Court

of the United States has “held that this bedrock procedural guarantee applies

to both federal and state prosecutions.” Crawford v. Washington,

,

, (2004); citing Pointer v. Texas,

,

, (1965). Likewise, Section 10, Article I of the Ohio

Constitution provides, “[i]n any trial, in any court, the party accused shall be

allowed * * * to meet the witnesses face to face.” Before its admission, Scioto App. No. 15CA3680 31

“[w]here testimonial evidence is at issue * * * the Sixth Amendment

demands what the common law required: unavailability and a prior

opportunity for cross examination.” Crawford,

.

{¶45} The threshold inquiry is whether the challenged out-of-court

statements were testimonial in nature and needed to be tested by

confrontation. See State v. Lewis, 1st Dist. Hamilton Nos. C-050989 and

C060010,

. Statements are “testimonial when the

circumstances objectively indicate that there is no * * * ongoing emergency,

and that the primary purpose of the interrogation is to establish or prove past

events potentially relevant to later prosecution.” Davis v. Washington,

,

, (2006); see also State v. Stahl,

,

,

, paragraph one of the syllabus.

Although the Supreme Court of the United States has not specifically

defined what constitutes a “testimonial” statement, it has been held, at a

minimum, to apply to “prior testimony at a preliminary hearing, before a

grand jury, or at a former trial, and responses to police interrogations.” State

v. Mills, 2nd Dist. Montgomery No. 21146,

; See also

State v. Ha, 9th Dist. Medina No. 07CA0089-M,

.

{¶46} Here, there was no ongoing emergency, and there was no

interrogation. Rather, the video played for the jury contained an ongoing Scioto App. No. 15CA3680 32

conversation between Appellant and Barnes while they were lodged in the

backseat of the trooper’s cruiser. All the statements made were voluntary

and not made in response to any sort of interrogation by law enforcement.

Thus, we cannot conclude that the statements contained in the trooper cam

video were testimonial as contemplated by Crawford, or that they offend the

confrontation clause.

{¶47} Further, as argued by the State, there could be no expectation of

privacy with respect to statements made in the back of a trooper’s cruiser.

As discussed by the Seventh District Court of Appeals:

“Various Ohio courts have held that there is no expectation of

privacy in the back of a police cruiser, and have declined to

exclude a variety of communications recorded in the back of a

cruiser without the knowledge of one or all individuals

involved. State v. Ingram, 9th Dist. No. 10CA0022-M, 2010-

Ohio-3546, ¶ 15-17 (appellant had no reasonable expectation in

his cell phone conversation with his mother which was recorded

while he was seated in the back seat of the police cruiser prior

to formal arrest) accord State v. Blackwell, 8th Dist. No. 87278,

(appellant had no reasonable

expectation of privacy in his unwittingly tape-recorded Scioto App. No. 15CA3680 33

conversation in the back of a police cruiser with two co-

defendants regardless of the fact that one co-defendant then

turned state's evidence) accord State v. Skidmore, 12th Dist. No.

CA99-12-137,

(August 7, 2000) (where

appellant, who had been arrested but not read his rights, and did

not know he was being recorded, made spontaneous statements

while in the back of the police cruiser, the reviewing court

found that there was no Miranda violation, appellant had no

expectation of privacy in the cruiser, and trial counsel was not

ineffective for not having sought to suppress the recording).”

State v. Dillard, 7th Dist. Columbiana No.

, 2012-

Ohio-2716, ¶ 37.

{¶48} We cannot conclude, based upon the facts before us and the

foregoing case law, that Appellant’s trial counsel’s performance was

deficient, or that the outcome of the trial would have been different had

counsel objected to the complained of testimony. Because we cannot

conclude that Appellant received ineffective assistance of counsel, his fifth

assignment of error is overruled.

{¶49} Having found no merit to the assignments of error challenging

his convictions, Appellant’s convictions are affirmed. However, having Scioto App. No. 15CA3680 34

found a sentencing error related to the imposition of postrelease control, the

postrelease control portion of Appellant’s sentence is vacated and this matter

is remanded to the trial court for proper imposition of postrelease control.

JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Scioto App. No. 15CA3680 35

Harsha, J., concurring in part and dissenting in part:

{¶50} I dissent from that part of the court’s opinion sustaining

Dixon’s fourth assignment of error and vacating the post-release-control

portion of his sentence. I did not participate in State v. Pippen, 4th Dist.

Scioto No. 14CA3595,

, and I dissented from State v.

Adkins, 4th Dist. No. 14CA29,

, the two cases cited by the

majority opinion in support of their disposition of the fourth assignment of

error.

{¶51} As I previously observed in my dissent to Adkins at ¶ 28-29, I

agree with the Eighth District’s holding in State v. Bybee,

,

(8th Dist.). See also State ex rel. Cornwall v. Sutula, 8th

Dist. Cuyahoga No. 103322,

, ¶ 6-9. Consequently, “[i]n

reading R.C. 2929.141(A) it is clear there is no provision in that statute

requiring the trial court in the original sentencing context to notify a

defendant that a court sentencing the defendant for a subsequent crime can

impose additional sanctions for the violation of post-conviction relief.”

Adkins at ¶ 29 (Harsha, J., dissenting). “Unlike R.C. 2929.19(B), which

expressly requires notifications concerning the parole board’s authority to

impose sanctions for violations, R.C. 2929.141(A) addresses the trial court’s

authority to do so, and is silent about notification in the original sentencing Scioto App. No. 15CA3680 36

context.”

As the Eighth District recently observed in rejecting our

holdings in Pippen and Adkins, “[b]oth the Seventh and Twelfth Districts

have rejected attempts to extend [the Supreme Court of Ohio’s] mandatory

notifications for postrelease control under R.C. 2929.19(B) to 2929.141,

because R.C. 2929.141 contains no such notification requirement.”

, citing State v. Mullins, 12th Dist. Butler No. CA2007-01-

028,

, and State v. Susany, 7th Dist. Mahoning No. 07 MA

7,

. Our appellate district appears to be the outlier on this

issue. I would join the Seventh, Eighth, and Twelfth Districts, overrule

those portions of our opinions in Pippen and Adkins that hold otherwise.

{¶52} I concur with the remainder of the opinion, except for the cite at

¶ 32 to our decision in State v.

Scioto App. No. 15CA3680 37

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and Appellee shall split costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion. Harsha, J.: Concurs in Part and Dissents in Part with Opinion.

For the Court,

BY: ____________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.