[Cite as State v. Waver,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2015-08-155

: OPINION - vs - 7/25/2016 :

KHALEIM S. WAVER, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2014-10-1512

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

John T. Willard, P.O. Box 35, Hamilton, Ohio 45012, for defendant-appellant

RINGLAND, J.

{¶ 1} Defendant-appellant, Khaleim S. Waver, appeals from the judgment of the

Butler County Court of Common Pleas, finding him guilty of trafficking in heroin, possession

of heroin, and engaging in a pattern of corrupt activity, and sentencing him to an aggregate,

mandatory term of 30 years in prison. For the reasons that follow, we affirm the judgment of

the trial court.

{¶ 2} In 2014, allegations surfaced that appellant, along with his sister, NaKeisha Butler CA2015-08-155

Waver-Elliott ("Keisha"), William Lindsay, Adam Weber, and Weber's girlfriend, Shana

Panetta, ran a heroin trafficking operation in Hamilton, Ohio. Appellant and Lindsay would

bring bulk heroin to the apartment of Panetta and Weber where appellant, Lindsay, and

Weber would break down the bulk heroin into powder and put it into capsules, a process

referred to as "capping" the heroin. The group would generally "cap" 200 to 300 doses of

heroin at a time and then store the doses in Panetta's and Weber's apartment. Appellant

and Lindsay employed three "drug runners" to sell the drugs to buyers. Weber, acting

pursuant to appellant's instructions, was to distribute the heroin capsules to the drug runners

who would then sell the drugs to buyers. For two to three months, Weber, and sometimes

Panetta, handed out to appellant's drug-runners bags containing 50 to 100 capsules of

heroin.

{¶ 3} The heroin trafficking operation came to light when a person referred to at trial

as "Confidential Informant 992" told the Butler Undercover Regional Narcotics Unit ("BURN

Unit") about appellant's drug activities and offered to work with the police. With CI 992's

assistance, the BURN Unit investigated two apartments in the apartment complex at 692

Gordon Smith Blvd.: Apt. # 4, which was the home of appellant and Lindsay, and the

apartment directly above it, Apt. # 8, which was the home of Panetta and Weber. The police

also investigated the residence at 321 Washington Street where Keisha lived.

{¶ 4} As part of their investigation, the police arranged for CI 992 to make several

controlled buys from appellant and his co-conspirators at their residences. Agent Herring

would later explain at trial that the drug operation worked by having appellant or his co-

conspirators "front" a person who agreed to sell heroin for them with a certain amount of the

drug, meaning that appellant or his co-conspirators would give the person a certain amount

of heroin without expectation of immediate payment. After the person sold the heroin, the

person would return to the residence of appellant or one of his co-conspirators and "drop off"

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money to pay for the heroin and the person would then receive more heroin to sell.

{¶ 5} During the controlled buys or "money drops," CI 992 was accompanied by

either Agent Herring or Officer Chelsea LaRue,1 both of whom worked undercover during the

controlled buys. Before each controlled buy or money drop, Agent Herring or Officer LaRue

gave CI 992 recorded drug fund money or "marked money" to make the controlled buys or

money drops, and outfitted CI 992 with a small, audio and visual recorder. Before each

controlled buy or money drop, an officer would pat-down CI 992 and search CI 992's vehicle

for contraband. After each controlled buy, Agent Herring or Officer LaRue and CI 992 would

travel to another location, and Agent Herring or Officer LaRue would again search CI 992 for

money and contraband. Agent Herring also would take possession of the recording device

after each controlled buy or money drop, and then download the recording onto his laptop

computer at the police station.

{¶ 6} On August 18, 2014, at 7:58 p.m., CI 992, who was accompanied by Officer

LaRue, drove to Keisha's residence. Agent Herring was nearby with the surveillance team.

CI 992 paid Lindsay $400 for heroin that CI 992 had received from Keisha the day before.

Lindsay then provided CI 992 with another baggy of heroin capsules.

{¶ 7} On August 19, 2014, at 3:30 p.m., CI 992, accompanied by Agent Herring,

returned to Keisha's residence and paid Keisha $500 for the heroin Lindsay had provided to

CI 992 the day before. Keisha directed CI 992 to go to Weber's apartment, and told CI 992

that she would call ahead to Lindsay regarding the sale and Lindsay would tell Weber what

amount of heroin to give CI 992. Keisha also told CI 992 that if CI 992 saw a BMW outside

appellant's apartment, CI 992 should stop at appellant's apartment and appellant would tell

her what to get. At 4:47 p.m., CI 992 met appellant at his apartment. Appellant told CI 992 to

go upstairs to Weber's and Panetta's apartment where CI 992 would receive 100 capsules of

1. Officer LaRue is with the Village of Woodlawn Police Department in Hamilton County, Ohio. -3- Butler CA2015-08-155

heroin. CI 992 went upstairs to Panetta's and Weber's apartment where she met Panetta.

Panetta left momentarily and returned with a bag containing heroin capsules, which she gave

to CI 992.

{¶ 8} On August 20, 2014, at 9:54 p.m., CI 992, accompanied by Officer LaRue, went

to appellant's apartment. Agent Herring was again nearby with a surveillance team. CI 992

paid appellant for the heroin she had received the day before. Appellant made a phone call

to an unidentified person and told the person "to put something together" for CI 992.

Appellant also told the unidentified person there should be "ten and a half in the bag," and

ordered the other person to "take five out of the bag." Agent Herring later testified at trial that

based on his experience and training in narcotics, appellant's order to "take five out of the

bag" meant "to cap up 5 grams," which would produce 50 capsules of heroin.2

{¶ 9} On August 22, search warrants were executed simultaneously on all three

residences. At appellant's residence, appellant, his girlfriend, and two children were present.

Police found $3,900 in cash in appellant's bedroom, $500 of which was the marked money

that had been provided to CI 992 for use in the controlled buys. In Panetta's and Weber's

apartment, the police found 276 capsules of heroin that were packaged in multiple bags,

along with a bag containing unpackaged heroin powder. The heroin was stored at a location

in the apartment that was 30-40 feet away from appellant's apartment where the police had

found two children.

{¶ 10} Appellant and his four co-conspirators were charged in a 26-count indictment.

Appellant was specifically indicted on five drug-related counts: trafficking in heroin, a

second-degree felony, in violation of R.C. 2925.03(A)(1) (Count 17); possession of heroin, a

second-degree felony, in violation of R.C. 2925.11 (Count 18); trafficking in heroin, a first-

degree felony, in violation of R.C. 2925.03(A)(2) (Count 19); possession of heroin, a second-

2. CI 992 did not receive any heroin from appellant at the time she made the money drop to him on August 20. -4- Butler CA2015-08-155

degree felony, in violation of R.C. 2929.11 (Count 20); and engaging in a pattern of corrupt

activity, a first-degree felony, in violation of R.C. 2923.32(A)(1) (Count 21). Counts 19, 20,

and 21 each contained the same four specifications alleging the $3,900 in cash found inside

appellant's residence and three automobiles (a 2003 BMW, a 2001 GMC Yukon, and a 1997

Honda) owned by appellant are "proceeds of illegal activity and subject to forfeiture" pursuant

to R.C. 2941.1417 and 2981.04.

{¶ 11} At appellant's trial, the state presented a number of witnesses including

Panetta, Agent Herring, and Officer LaRue, who testified to the facts related above. The

state did not disclose the identity of CI 992 or use CI 992 as a witness at trial. The jury

convicted appellant of all five of the principal charges against him.

{¶ 12} The trial court merged appellant's conviction on Count 18 with his conviction

on Count 17, upon determining the offenses charged in those counts were allied offenses of

similar import, and merged appellant's conviction on Count 20 with his conviction on Count

19 for the same reason. The trial court sentenced appellant to an aggregate 30-year

mandatory prison term for his convictions on Counts 17, 19, and 21. Appellant was tried

separately by the bench on the criminal forfeiture specifications attached to Counts 19 and

21, after appellant waived his right to a jury trial on the specifications and pled no contest to

them. The trial court found appellant guilty of the specifications and issued forfeiture orders

regarding appellant's BMW, GMC Yukon, and Honda, and his interest in the $3,900 in cash

seized by police at the time of his arrest.

{¶ 13} Appellant now appeals and assigns the following as error:

{¶ 14} Assignment of Error No. 1:

{¶ 15} IT WAS ERROR AND AN ABUSE OF DISCRETION FOR THE COURT TO

ADMIT INTO EVIDENCE DVDS THAT ALLEGEDLY WERE RECORDED 8/19 2014 [sic]

AND IDENTIFIED AS EXHIBIT #85 AND EXHIBIT 106 THAT WAS ALLEGEDLY

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RECORDED 8/20/2014 AS THE SAME WERE HEARSAY AND WERE NOT PROPERLY

AUTHENTICATED AS REQUIRED BY OHIO RULES OF EVIDENCE, NOR WERE THE

DVDS THE BEST EVIDENCE. SINCE THE CONFIDENTIAL INFORMANT THAT MADE

THE VIDEO WAS NEVER DISCLOSED AND DID NOT TESTIFY THE STATEMENTS

WERE TESTIMONIAL IN NATURE AND THE APPELLANT WAS DENIED HIS SIXTH

AMENDMENT RIGHT TO CROSS[-]EXAMINE A KEY WITNESS.

{¶ 16} Assignment of Error No. 2:

{¶ 17} IT WAS ERROR TO ADMIT INTO EVIDENCE EXHIBITS OF ALLEGED

MEASURED AMOUNTS OF HEROIN AS THERE WAS NO EXPERT TESTIMONY AS TO

HOW MUCH OF THE POWDER WAS HEROIN AND HOW MUCH WAS FILLER AND NOT

HEROIN WITHOUT SUCH MEASUREMENT IT WAS IMPOSSIBLE FOR A JURY TO MAKE

A FINDING BEYOND REASONABLE DOUBT AS TO HOW MUCH HEROIN WAS IN THE

EXHIBITS BY WEIGHT. [SIC]

{¶ 18} Assignment of Error No. 3:

{¶ 19} IT WAS ERROR TO ADMIT THE TESTIMONY OF A CODEFENDANT INTO

EVIDENCE OF A CONSPIRACY WITHOUT INDEPENDENT PROOF OF A CONSPIRACY

BEING FIRST SHOWN.

{¶ 20} Assignment of Error No. 4:

{¶ 21} THE APPELLANT IN THE INSTANT CASE HAD INEFFECTIVE

ASSISTANCE OF COUNSEL.

{¶ 22} Assignment of Error No. 5:

{¶ 23} THE VERDICT IN THE INSTANT CASE WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE AND LACKED SUFFICIENT ADMISSIBLE EVIDENCE TO

SUPPORT A CONVICTION.

{¶ 24} Assignment of Error 6:

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{¶ 25} THE ERRORS IN THE INSTANT CASE WERE SO NUMEROUS AND

CRITICAL AND CUMULATIVE THAT IT WAS IMPOSSIBLE FOR THE APPELLANT TO

GET A FAIR TRIAL.

Authentication of Videos

{¶ 26} Appellant presents three different arguments in his first assignment of error.

He first argues the trial court erred by admitting into evidence the videos of the controlled

buys and "money drops" because the videos were not properly authenticated as required by

Evid.R. 901. Appellant contends the state's attempt to authenticate the videos through the

testimony of the investigating officers was insufficient because "[n]o member of the police

department was present when the videos were taken," as "[t]he police were in a car outside

the premises and had no view of what transpired outside their sight." Appellant contends the

"appropriate person to authenticate the videos was [CI 992] who never was identified and did

not testify[,]" and therefore his Sixth Amendment right to cross-examine a key witness against

him was violated. We disagree with this argument.

{¶ 27} Generally, a "trial court's decision to admit or exclude evidence will not be

reversed by a reviewing court absent an abuse of discretion." State v. Jackson, 12th Dist.

Fayette No. CA2011-01-001,

, ¶ 16. An abuse of discretion implies that the

court's decision was unreasonable, arbitrary, or unconscionable. State v. Hancock,

,

, ¶ 130.

{¶ 28} Evidence Rule 901(A) states that "[t]he requirement of authentication * * * as a

condition precedent to admissibility is satisfied by evidence sufficient to support a finding that

the matter in question is what its proponent claims." The "threshold requirement for

authentication of evidence is low and does not require conclusive proof of authenticity."

State v. Freeze, 12th Dist. Butler No. CA2011-11-209,

, citing State v.

Easter,

(4th Dist. 1991). Rather, "the state only needs to demonstrate

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a 'reasonable likelihood' that the evidence is authentic."

Either circumstantial evidence or

direct evidence may be used to prove the authenticity of evidence. State v. Vermillion, 4th

Dist. Allen No. 15CA17,

, ¶ 14. Testimony of a witness with knowledge that

the "matter is what it is claimed to be" is sufficient to properly authenticate an item pursuant

to Evid.R. 901(A).

{¶ 29} Evid.R. 901(B) contains a nonexclusive list of the means by which a proponent

may demonstrate authenticity and states, in pertinent part, as follows:

(B) Illustrations. By the way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming to the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

***

(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

{¶ 30} In Midland Steel Prods. Co. v. U.A.W. Local 486,

(1991), the court stated, in pertinent part, as follows:

Under Evid.R. 901(A), Midland Steel could introduce the videotapes into evidence only upon a sufficient showing that they accurately depicted appellants' misconduct. In Fisher v. State (1982),

,

, the court summarized two of the methods for authenticating photographic evidence like videotapes: "The admissibility of photographic evidence is based on two different theories. One theory is the 'pictorial testimony' theory. Under this theory, the photographic evidence is merely illustrative of a witness' testimony and it only becomes admissible when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on that witness' personal observation. * * * A second theory under which photographic evidence may be admissible is the 'silent witness' theory. Under that theory, the photographic evidence is a 'silent witness' which speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness. * * *" (Citations omitted.) See, also, United States v. Rembert (C.A.D.C. 1988),

. -8- Butler CA2015-08-155

The Ohio Supreme Court followed its decision in Midland Steel in State v. Pickens,

,

.

{¶ 31} Here, the videos that appellant claims were not properly authenticated were

taken by the audio and visual recording device given to CI 992 before each of the controlled

buys and money drops in this case. The videos included the transaction at Keisha's

residence on August 18 (Ex. 13), the transaction at Keisha's residence on August 19 (Ex.

16), the transaction at appellant's apartment and Panetta's and Weber's apartment on

August 19 (Ex. 17), and the transaction at appellant's apartment on August 20. The state

contends that Agent Herring testified that "he had knowledge of all the videos" and that "each

video was a fair and accurate depiction." The state asserts this evidence was sufficient to

meet "the low threshold for authentication," and therefore there was no need for the state to

call CI 992 as a witness to authenticate the videos.

{¶ 32} By asserting that Agent Herring "had knowledge of all the videos" and that

each video was a "fair and accurate depiction," the state is essentially arguing that it

authenticated all of the videos under the pictorial theory of authentication of photographic

evidence, including videos. A review of the evidence shows that while this theory of

authentication may be applicable to the videos taken at appellant's apartment and Panetta's

and Weber's apartment, it does not appear to apply to the residence of Keisha.

Nevertheless, the "silent witness" theory of authentication is applicable to all of the videos

admitted into evidence.

{¶ 33} Agent Herring testified that he was familiar with the layout inside 692 Gordon

Smith Blvd. and appellant's apartment, and that he "walked in the front door" of Panetta's and

Weber's apartment. Agent Herring also testified the video he retrieved from the August 19

transaction was a "true, fair and accurate recording of the incident as it happened[.]"

Therefore, Agent Herring's testimony regarding Exhibits 16, 17, and 20, which contained -9- Butler CA2015-08-155

video recordings of the drug transactions at the apartment of appellant and the nearby

apartment of Panetta and Weber, was sufficient to authenticate those videos under the

pictorial theory of authentication, since Agent Herring had been at those apartments and thus

was able to testify that the videos taken at those apartments were a true, fair and accurate

recording of the events shown in those videos.

{¶ 34} As to Exhibit 13, which is the video of the August 18 transaction at Keisha's

residence, it is not clear from the record whether Agent Herring was ever inside that

residence. Agent Herring testified that he was nearby with the surveillance team when

Officer LaRue accompanied CI 992 to Keisha's residence to drop off money and obtain more

heroin capsules on August 18. However, Agent Herring did not testify that he ever went

inside Keisha's residence, and while Officer LaRue testified that she accompanied CI 992 to

Keisha’s residence on August 18, Officer LaRue admitted that she did not enter the

residence with CI 992, and the state did not ask LaRue to authenticate Exhibit 13.

Nevertheless, all of the videos admitted in this case, including Exhibit 13, come within the

auspices of Evid.R. 901(B)(8) and the "silent witness" theory of authentication of

photographic evidence, including videos.

{¶ 35} In State v. Munion, 4th Dist. Scioto No. 12CA3520,

, narcotics

officers were investigating allegations of the production and trafficking of methamphetamine

at the residence of Crystal Collier. The officers enlisted the aid of a confidential informant

and outfitted him with a video recording device. On his second visit to Collier's residence, the

confidential informant stayed at the residence for about an hour and purchased some

methamphetamine. The video captured Collier in the residence with the defendant in that

case, Troy Munion, and Collier's two juvenile children. The following day, the officers

executed a search warrant on Collier's residence and discovered many items used in the

production of methamphetamine as well as an amount of methamphetamine. Munion and

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Collier were arrested. The confidential informant did not testify at Munion's trial. Instead, the

state used the lead detective in the case, Detective Koch, to authenticate the video recorded

by the confidential informant. Detective Koch testified that he and two other officers placed a

recording device on the confidential informant and watched him enter Collier's residence.

Munion was convicted and he appealed, arguing that Detective Koch could not authenticate

the video because he was not present inside the residence, and that Collier was the only

person who could authenticate the video because the video purportedly showed the inside of

her residence.

{¶ 36} The Fourth District Court of Appeals rejected Munion's argument. The court

first noted the protocol or procedure that Detective Koch and his department used when a

confidential informant made a recorded controlled buy, which included searching the

confidential informant for contraband before the transaction, outfitting the confidential

informant with a recording device, and then once the transaction is completed, searching the

confidential informant again for drugs or money, seizing any drugs or money found, and

collecting the video recording device. The court noted that at the beginning and end of the

video, Detective Koch appeared, stating the time, date and his identity. In disagreeing with

Munion's argument that Collier was needed to authenticate the video since the video

purportedly showed the inside of her residence where the confidential informant purchased

the methamphetamine, the court noted that Detective Koch testified as to the procedure he

used in producing the video and that the video is a true and accurate copy. The court

determined that "[u]nder the illustrations of Evid.R. 901(B), Detective Koch stands as a

witness who can testify as to the authentication of the video the investigation produced" and

that the procedure Detective Koch discussed involving the confidential informant "presents

the court with the 'process or system' that created the video." Id. at 22. Consequently, the

court found that Detective Koch's testimony was sufficient to authenticate the video.

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{¶ 37} We find the case presently before us to be similar to Munion. Agent Herring

and Officer LaRue testified to the procedures that are used when they have a confidential

informant make a controlled buy or money drop and that they used those procedures in this

case regarding the transactions that took place on August 18, 19, and 20. These procedures

are the same as, or similar to, the procedures used by the police in Munion. Agent Herring

also testified about the various features of the audio and visual recording device that was

provided to CI 992, including the feature that requires a code to be punched into the device

to start and stop the recording. Agent Herring testified that such a feature would prevent

someone without knowledge of how the device worked with tampering with the recording.

Agent Herring also testified that he has used the device about 20 to 30 times, thereby

indicating the reliability of the device.

{¶ 38} The only clear difference between this case and Munion involves the fact that,

unlike the lead detective in Munion, Agent Herring failed to use the "date" and "time" features

on the audio and visual recording device that he gave to CI 992 on the dates of the controlled

buys or money drops in this case. Agent Herring explained at trial that at the time this case

occurred, the device was new and he was not fully familiar with all of the features of the

device. However, Agent Herring testified that he did write down in his notes the dates and

times of the controlled buys. The absence of a date and time on the video recordings, alone,

does not preclude a finding that the video recordings were properly authenticated, given the

well-established principle that the threshold for authentication is low and does not require

conclusive evidence. Freeze,

. Therefore, we conclude the state

presented sufficient evidence to meet the "low threshold" necessary for authenticating the

videos of the controlled buys and money drops in this case.

Right to Confrontation

{¶ 39} Appellant also argues his right to confront the witnesses against him was

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violated because the videos the trial court admitted contained hearsay as they contained out-

of-court statements made by CI 992 who was never identified and did not appear or testify at

trial. However, the Confrontation Clause bars only the admission of "testimonial" hearsay.

Crawford v. Washington,

,

(2004). "[S]tatements made

unwittingly to a Government informant" have been held to be "clearly nontestimonial." Davis

v. Washington,

,

(2006), citing Bourjaily v. United States,

,

(1987). See also Ohio v. Clark, __ U.S. __,

(2015) ("Statements made to someone who is not principally charged with

uncovering and prosecuting criminal behavior are significantly less likely to be testimonial

than statements given to law enforcement officers."). See also State v. Ali, 2d Dist. Clark No.

2014 CA 59,

, ¶ 25. In light of this authority, we find that CI 992's out-of-

court statements on the videos that were admitted into evidence at appellant's trial were not

"testimonial" statements under Crawford, and therefore, the admission of these statements

did not violate appellant's confrontation rights.

Best Evidence

{¶ 40} Appellant also alleges the videos were edited by police, and after editing,

transferred to DVDs, and further asserts that Evid.R. 1002 "requires that the original [videos]

be admitted." He also claims, without citing any evidence in support, that the videos admitted

into evidence at his trial were "admittedly edited copies of the original videos[,]" and argues

the copies of the videos were not the "best evidence" of the transactions, as required by

Evid.R. 1002. However, there is no evidence in the record that the videos were edited, and

Evid.R. 1003 permits copies of videos to be admitted into evidence.

{¶ 41} Appellant contends the state gave no "cogent" reason for not admitting the

original videos and that "inconvenience for the prosecution is not a valid reason to ignore

Evidence Rule 1102 [sic]." However, Evid.R. 1003 provides that a copy or duplicate is

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admissible without requiring the proponent to show that he cannot produce the original.

Therefore, Evid.R. 1003 essentially provides that "duplicates are presumptively the equal of

originals[,]" and "the burden is on the opponent of the duplicate to establish conditions

requiring the use of the original." Weissenberger's Ohio Evidence Treatise, Section 1003.1

(2015). Here, appellant has failed to provide any cogent reason for requiring use of the

original videos.

{¶ 42} In light of the foregoing, appellant's first assignment of error is overruled.

Determining Weight of Controlled Substances with "Filler."

{¶ 43} In his second assignment of error, appellant asserts the trial court erred by

admitting into evidence exhibits that show the amounts of heroin involved, since there was no

expert testimony as to how much of the substance was heroin and how much was "filler," i.e.,

nonheroin and noncontrolled substances, thereby preventing the trier of fact from being able

to determine beyond a reasonable doubt how much heroin was involved. However, the

statute under which appellant was convicted does not require filler to be separated from the

controlled substance, and it is not improper to include filler in the total amount charged. See

R.C. 2925.03(C)(6) ("if the drug involved in the violation is heroin or a compound, mixture,

preparation, or substance containing heroin, whoever violates division (A) of this section is

guilty of trafficking in heroin"). (Emphasis added.) See also State v. Smith, 2d Dist. Greene

No. 2010-CA-36,

(state was not required to segregate the cocaine

from the other ingredients in the substance), citing, among other cases, State v. Bailey,

Montgomery App. No. 21123,

("filler" found in controlled substance can

be included in determining the controlled substance's weight).

{¶ 44} We find cases like Smith and Bailey to be persuasive. This court is aware

there is authority to the contrary and that this issue is currently before the Ohio Supreme

Court. See State v. Gonzales, 6th Dist. Wood No. No. WD-13-086,

, motion

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to certify allowed,

,

, and appeal allowed,

,

.

{¶ 45} Appellant also contends the trial court erred in allowing Agent Herring to testify

that heroin is "a very addictive drug and it has the potential to be very life-threatening due to

the compound of mixtures and the unknown amounts of heroin that are sometimes

distributed in the compound." Appellant argues "the admission of such evidence" violated

Evid.R. 702 (testimony by experts) and Crim.R. 16 (discovery). However, appellant did not

object to this portion of Agent Herring's testimony and thus has forfeited all but plain error.

State v. Hiler, 12th Dist. Butler No. CA2015-05-04,

.

{¶ 46} Plain error exists where there is an obvious deviation from a legal rule which

affected the defendant's substantial rights, or influenced the outcome of the proceeding.

State v. Barnes,

(2002). Therefore, appellant was required to

demonstrate a "reasonable probability" that the error resulted in prejudice. Here, the

exclusion of Detective Herring's testimony clearly would not have changed the result of these

proceedings, since this information is generally well known.

{¶ 47} Appellant also argues the trial court "did not follow the law as set out in R.C.

2925.11(A) and (C 4)," (sic), by which, presumably, he meant 2925.11(C)(6), since division

(C)(4) involves cocaine while division (C)(6) involves heroin. However, appellant has not

provided any explanation as to how the court failed to follow R.C. 2925.11(A), which provides

that "[n]o person shall knowingly obtain, possess, or use a controlled substance or a

controlled substance analog[,]" or division (C)(6) of that section, which provides that "[i]f the

drug involved in the violation is heroin or a compound, mixture, preparation, or substance

containing heroin, whoever violates division (A) of this section is guilty of possession of

heroin[,]" and then lists the penalties for the violation, which are dependent upon the amount

of heroin involved in the violation. R.C. 2925.11(C)(6)(b)-(f). Instead, it appears that

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appellant is simply asking us, once again, to follow the reasoning of the Sixth District Court of

Appeals in Gonzales at ¶ 38-47, which we have already declined to do. Given the foregoing,

appellant's second assignment of error is overruled.

Evid.R. 801(D)(2)(e) and Independent Proof of a Conspiracy.

{¶ 48} In his third assignment of error, appellant contends the trial court erred by

allowing a co-conspirator to testify without first providing independent proof of the conspiracy,

as required by Evid.R. 801(D)(2)(e). We disagree with this argument.

{¶ 49} Evid.R. 801(D)(2)(e) provides that a "statement is not hearsay if * * * [t]he

statement is offered against a party and is * * * a statement by a co-conspirator of a party

during the course and in furtherance of the conspiracy upon independent proof of the

conspiracy." State v. Hand,

,

, ¶ 100. The proponent of the

evidence need only to establish a prima facie case of conspiracy by admissible evidence that

raises a presumption or inference of conspiracy. State v. Eacholes, 12th Dist. Butler No.

CA2013-11-195,

.

{¶ 50} In this case, appellant argues that a conspiracy was not established by

independent evidence before Panetta, a co-conspirator, testified. However, in his brief,

appellant fails to specifically argue what hearsay statements Panetta testified to at trial that

required independent proof of a conspiracy in order to be admissible pursuant to Evid.R.

801(D)(2)(e).

{¶ 51} We first note that, like any other witness, Panetta's testimony regarding her

direct observations and actions was admissible, regardless of her status as a co-conspirator.

See State v. Mauro, 2d Dist. Montgomery No. 9499,

, * 2 (July 14, 1987).

Additionally, Panetta could testify to any statement made directly to her by appellant, as an

admission by a party-opponent pursuant to Evid.R. 801(D)(2)(a).

{¶ 52} Moreover, even if independent evidence of a conspiracy was not presented at

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the time Panetta testified to statements that would otherwise be hearsay, proof of a

conspiracy was subsequently offered by the state, and "[t]he premature admission of a

statement of a co-conspirator under Evid.R. 801(D)(2)(e) is harmless error where the

proponent subsequently supplies the requisite independent proof." Eacholes at ¶ 18, 20;

See also State v. Carter,

(1995). In light of the foregoing, appellant's

third assignment of error is overruled.

Ineffective Assistance

{¶ 53} In his fourth assignment of error, appellant argues his trial counsel provided

him with ineffective assistance of counsel.

{¶ 54} To prevail on an ineffective-assistance claim, a defendant must show that his

counsel's performance was deficient in that it fell below "an objective standard of

reasonableness" and that he was prejudiced by that deficient performance in that there exists

a "reasonable probability" that, but for counsel's deficient performance, the result of the trial

would have been different. Strickland v. Washington,

,

(1984). A "reasonable probability" is a probability sufficient to undermine confidence in the

outcome of the proceedings.

.

{¶ 55} Appellant first argues his trial counsel's performance was deficient because

counsel "made no attempt" to compel disclosure of CI 992's identity and thus effectively

denied him the right to confront all of the witnesses against him. However, CI 992 never

testified against appellant, and none of CI 992's out-of-court statements was offered for the

truth of the matter asserted. As a result, appellant was not entitled to confront CI 992, and

thus his trial counsel's performance cannot be deemed deficient for this reason.

{¶ 56} Appellant next argues his trial counsel's performance was deficient because

counsel failed to object to Panetta's testimony and failed to move to strike her testimony on

the basis that Panetta was an alleged co-conspirator and no independent foundation had

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been laid to show the existence of a conspiracy prior to her testimony. However, appellant's

trial counsel did raise an objection to Panetta's testimony, and the trial court overruled it.

Further, the trial court did not err in overruling the objection for the reasons set forth in our

response to appellant's third assignment of error. Thus, appellant's trial counsel's

performance was not deficient on this basis.

{¶ 57} Appellant faults his trial counsel for not objecting to the admission of the state's

expert reports on the substances seized in this case. However, there is no evidence in the

record to show, nor any explanation offered by appellant to explain, how the decision of

appellant's trial counsel not to object to the admission of these reports constituted a

performance error or how appellant was prejudiced by this alleged performance error.

{¶ 58} Appellant contends his trial counsel's performance was deficient because he

failed to object to a brief portion of Agent Herring's testimony that, appellant alleges, was

hearsay. Appellant is referring to Agent Herring's testimony that his department had received

information regarding appellant in the past, CI 992 approached him and expressed a desire

to be a confidential informant, and CI 992 had information on appellant and his involvement

in trafficking heroin. However, this testimony arguably was not hearsay, since it does not

appear to have been admitted to prove the truth of the matter asserted, but merely to provide

context regarding why the police began investigating appellant. Additionally, even if the

testimony constituted hearsay, appellant has, again, failed to show how he was prejudiced by

this testimony, because there is no reasonable probability that the outcome of his trial would

have been different had his trial counsel objected to this testimony.

{¶ 59} Lastly, appellant points out that he objected to his trial counsel's representation

of him during the trial and asked the trial court to postpone the trial so he could obtain new

counsel. Appellant also contends his trial counsel refused to call a necessary witness on his

behalf, thereby effectively depriving him of his Sixth Amendment right to call witnesses on his

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behalf.

{¶ 60} At the beginning of the second day of the trial, appellant informed the trial

court he no longer wanted his counsel to represent him, and asked the trial court to postpone

the trial so he could obtain a new lawyer. He claimed two of the state's witnesses,

presumably, Agent Herring and Officer LaRue, had committed perjury. He also claimed that

the videos of the controlled buys and money drops were presented "backwards" and "out of

order" and that this "was the whole problem with the authentication." He also claimed that he

wanted his trial counsel to call Weber as a witness to testify regarding the actual order in

which the videos were recorded. Appellant asked the trial court to declare a mistrial on the

grounds of prosecutorial misconduct and misconduct by the state's witnesses on the basis of

"tampering with the dates on the videos[,]" which, appellant claimed, enabled the state to

show the videos out of order and in a light most favorable to the state.

{¶ 61} The trial court refused appellant's request to postpone the trial. However, the

trial court told appellant that he would be permitted to substitute his current trial counsel with

a different attorney of his choosing if the new attorney showed up in time. The trial court also

told appellant that he would be permitted to call Weber to the stand if he chose to do so. The

prosecutor stated that Weber was in the Butler County Jail. Appellant then informed the trial

court that he wanted "to go on." The trial court stated it would interpret appellant's statement

as a withdrawal of his request to dismiss his current counsel, which appellant did not dispute.

Appellant never called Weber as a witness at trial.

{¶ 62} There is nothing in the record to show that the videos of the controlled buys

and money drops were presented out of order, as appellant contends. There is nothing in

the record to show that appellant was prohibited from calling Weber as a witness during trial

or that, if Weber had been called as a witness, he would have testified that the videos were

presented out of order. Thus, appellant has failed to prove either the performance prong or

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the prejudice prong of the Strickland standard as to this aspect of his ineffective assistance

claim.

{¶ 63} In light of the foregoing, appellant's fourth assignment of error is overruled.

Sufficiency and Manifest Weight of the Evidence, Cumulative Error

{¶ 64} In his fifth assignment of error, appellant contends that a review of the entire

record indicates there is insufficient admissible evidence to support a conviction on any of the

counts against him, including engaging in a pattern of corrupt activity, and the convictions

were against the manifest weight of the evidence. However, our review of the record shows

the state presented ample evidence to support each element of each offense and

accompanying specification with which appellant was charged and that appellant's

convictions on those charges and specifications were not against the manifest weight of the

evidence. Consequently, appellant's fifth assignment of error is overruled.

{¶ 65} In his sixth assignment of error, appellant alleges the errors committed at his

trial were "so numerous and critical and cumulative" that it was "impossible" for him to

receive a fair trial. However, appellant has failed to identify any reversible error at his trial,

and therefore the cumulative error doctrine has no application to this case. Accordingly,

appellant's sixth assignment of error is overruled.

{¶ 66} Judgment affirmed.

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

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