[Cite as State v. Holloway,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-91 : v. : Trial Court Case No. 2016-CR-265 : AKEYINDE E. HOLLOWAY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 16th day of November, 2018.

...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington Court House, Ohio 43160 Attorney for Defendant-Appellant

.............

WELBAUM, P.J. -2-

{¶ 1} Defendant-Appellant, Akeyinde Holloway, appeals from his conviction and

sentence on three counts of aggravated trafficking in drugs, three counts of trafficking in

drugs, three counts of aggravated possession of drugs, and three counts of possession

of drugs. After a jury found Holloway guilty of all counts as charged, the trial court

merged several counts and sentenced Holloway to a total of 12.5 years in prison. The

court also ordered forfeiture of money seized by the police.

{¶ 2} Holloway contends that the trial court erred in several ways, including

denying his motion to dismiss on speedy trial grounds, denying his motion to suppress

evidence, denying his Crim.R. 29(A) motion for acquittal, and imposing consecutive

sentences. In addition, Holloway argues that the judgment was supported by insufficient

evidence and against the manifest weight of the evidence, and that trial counsel rendered

ineffective assistance by failing to call a witness to testify at the suppression hearing.

Our review reveals no error, and the judgment of the trial court, therefore, will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} In the early months of 2016, Springfield Police Detective Jerrod Osborne had

been investigating Akeyinde Holloway for drug trafficking. On March 23, 2016, Osborne

was driving an unmarked car and was doing drive-bys of 17 North Shaffer Street in

Springfield, Ohio. During his surveillance, children were in the vicinity of the house.

{¶ 4} Around noon, Osborne saw what appeared to be a hand-to-hand drug

transaction between Holloway and a female. After seeing the transaction, Osborne

called Officer Elliott, who was a member of the SOFAST Task Force, and asked him to -3-

assist in making contact with Holloway. Osborne then doubled back, parked his car, and

exited. He was wearing a vest marked “police” and had a badge on his belt.

{¶ 5} When Osborne got to the scene, Holloway was standing at the edge of a

sidewalk that met the street. Osborne called out “Springfield Police,” said Holloway’s

name, and told him to stop. Instead of stopping, Holloway ran into 17 North Shaffer

Street. Osborne then ran to the south side of the house in case Holloway intended to

run out the back. As Osborne walked along the side of the house, he saw Holloway

through a large window in what turned out to be the kitchen. A bathroom was also visible

next to the kitchen, through an open door. Holloway was holding a purple bag, and

Osborne saw him make a crouching motion in the bathroom.

{¶ 6} Holloway then came out of the bathroom and went toward the front porch.

At that point, Osborne returned to the front of the house and saw Holloway come out to

the porch without the purple bag. Holloway asked what was wrong, and Osborne asked

Holloway what he had put down inside the house. Holloway did not reply. He also did

not reply to Osborne’s questions about what he was doing at the house or whether he

lived there.

{¶ 7} The door to the house was partially ajar, and Osborne knocked on the door.

A man, Donald Preston, was sitting on a couch near the door and responded. Osborne

told Preston why he was there and that he had seen Holloway place a bag in the

bathroom. Preston gave Osborne permission to search the areas where Osborne had

seen Holloway. However, Osborne did not obtain a signed consent form from Preston.

{¶ 8} After receiving permission to enter, Holloway went through the living room

and dining room, into the kitchen and bathroom area. After being in the house for less -4-

than a minute, Osborne found a purple Crown Royal bag sitting on the floor of the shower.

The shower was wet, but the bag was only partially wet on the bottom. Osborne

collected the bag, which contained drugs, arrested Holloway, and administered Miranda

rights. At that time, Osborne asked Holloway why he had run, and Holloway said, “yeah,

I ran. The police was outside.” Transcript of Trial Proceedings, Vol. II, p. 166.

{¶ 9} Upon searching Holloway, the police found $2,000 in Holloway’s pocket and

$1,900 inside a sock in his hoodie. Upon being tested, the drugs included about 4.71

grams of methamphetamine; 50 Diazepam (Valium) tablets; four Alprazolam (Xanax)

tablets; one Buprenorphine (Subutex) tablet; one Hydrocodone (Vicodin) tablet; and five

Oxycodone tablets.

{¶ 10} Holloway was subsequently indicted for 12 counts of trafficking and

possession of drugs, with forfeiture specifications. After a jury trial, Holloway was

convicted and sentenced, and this appeal followed.

II. Speedy Trial

{¶ 11} Holloway’s First Assignment of Error states that:

The Trial Court Erred in Denying Holloway’s Motion to Dismiss in

Violation of the Sixth and Fourteenth Amendments to the United States

Constitution and Section 10, Article I [of] the Ohio State Constitution.

{¶ 12} Under this assignment of error, Holloway contends that the trial court should

have dismissed the case against him due to violation of speedy trial requirements.

According to Holloway, after counting the time tolled by the filing of various motions, 333

days (with some days being triple-counted) elapsed from the date of his arrest to the time -5-

of trial.

{¶ 13} The Sixth Amendment of the United States Constitution and Section 10,

Article I of the Ohio Constitution guarantee the right to a speedy trial. Ohio implements

these rights through R.C. 2945.71, the speedy trial statute. Brecksville v. Cook,

,

(1996). Under R.C. 2945.71(C)(2), persons charged with

felonies must be brought to trial within two hundred seventy days after their arrest, subject

to any applicable tolling exceptions in R.C. 2945.72.

. For purposes of counting

time, “each day during which the accused is held in jail in lieu of bail on the pending

charge shall be counted as three days.” R.C. 2945.71(E).

{¶ 14} Defendants can establish a prima facie case for a speedy trial violation

when they show that the trial was held past the statutory time limit. The State then must

produce evidence showing that applicable exceptions tolled the time and the trial was

timely. State v. Butcher,

,

(1986); State v.

Hyde, 2d Dist. Clark No. 2013 CA 41,

. Our standard of review is

simply to count the days as R.C. 2945.71 directs. State v. Lackey,

,

, ¶ 22 (2d Dist.).

{¶ 15} In responding to Holloway’s argument, the State concurs with the dates

excluded by Holloway. However, the State notes that even if Holloway’s 333-day figure

is used as a starting point, these days must be further reduced by a motion to withdraw

that Holloway’s attorney filed on July 25, 2017. This motion was resolved on August 18,

2017, when the court granted the motion to withdraw and another attorney entered an

appearance on Holloway’s behalf. As the State notes, 24 days were tolled, and these

days were triple-counted because Holloway was in jail. Accounting for this tolling, 333 -6-

minus 72 equals 261, which means that Holloway went to trial in less than the 270 days

allotted under the speedy trial statute.

{¶ 16} In reviewing the file, we noted that documents attached to Holloway’s

speedy trial motion indicated that he appeared to have requested early disposition of his

case pursuant to R.C. 2941.401. Holloway’s motion, itself, did not rely on this statute;

instead Holloway relied only on R.C. 2945.71. See Doc. #35.

{¶ 17} Some discrepancy exists in the dates in the documents attached to the

speedy trial motion. Specifically, Holloway's signed request for disposition was dated

February 22, 2017. In contrast, the Ohio Department of Rehabilitation and Correction's

letter to the prosecutor and clerk, enclosing the request, was dated February 15, 2017.

In this letter, the ODRC indicated that it received Holloway’s request for disposition on

February 13, 2017. The case number on these documents was also incorrect, as the

disposition request referred to Case No. 16CR235, rather than 16CR265. There is no

indication in the record, however, that Holloway had another case pending in Clark

County.

{¶ 18} Holloway has also not raised R.C. 2941.401 on appeal. As a result, we

consider the issue waived. Nonetheless, even if we were to consider it, the outcome

would be no different.

{¶ 19} We have held that “[w]hen a defendant is incarcerated in this state on other

charges, R.C. 2941.401, a specific statute, prevails over the general speedy trial statutes

of R.C. 2945.71 et seq., and governs the time within which the state must bring him or

her to trial.” State v. Stewart, 2d Dist. Montgomery No. 21462,

,

citing R.C. 2945.71(F). (Other citations omitted.) -7-

{¶ 20} R.C. 2941.401 provides that:

When a person has entered upon a term of imprisonment in a

correctional institution of this state, and when during the continuance of the

term of imprisonment there is pending in this state any untried indictment,

information, or complaint against the prisoner, he shall be brought to trial

within one hundred eighty days after he causes to be delivered to the

prosecuting attorney and the appropriate court in which the matter is

pending, written notice of the place of his imprisonment and a request for a

final disposition to be made of the matter, except that for good cause shown

in open court, with the prisoner or his counsel present, the court may grant

any necessary or reasonable continuance.

***

The written notice and request for final disposition shall be given or

sent by the prisoner to the warden or superintendent having custody of him,

who shall promptly forward it with the certificate to the appropriate

prosecuting attorney and court by registered or certified mail, return receipt

requested.

{¶ 21} Using the earliest possible date of February 13, 2017, the 180-day period

would have expired around August 11, 2017, which was well before the time that Holloway

was brought to trial on August 30, 2017. However, we have held that the tolling

provisions in R.C. 2945.72 apply to R.C. 2941.401. See State v. Ray, 2d Dist. Greene

No. 2004-CA-64,

. The motion to withdraw filed by Holloway’s

counsel was filed on July 25, 2017, and was not resolved until August 18, 2017. That -8-

added an additional 24 days to the 180-day limit, meaning that the trial, which began on

August 30, 2017, was timely under R.C. 2941.401.

{¶ 22} Since the trial was timely under any set of circumstances, the First

Assignment of Error is overruled.

III. Motion to Suppress

{¶ 23} In his discussion, Holloway has combined his Second, Third, and Fourth

Assignments of Error, which relate to the trial court’s decision on his motion to suppress

evidence. We will do the same. These assignments of error state that:

The Trial Court Erred in Denying Holloway’s Motion to Suppress by

Finding Law Enforcement Had Consent to Enter and Search the Residence

Thereby Allowing Improper Evidence Into the Trial in Violation of the Fourth

Amendment of United States Constitution and Article I, Section 14 of the

Ohio Constitution.

The Trial Court Erred in Denying Holloway’s Motion to Suppress by

Finding Law Enforcement Was Lawfully Present on the House Curtilage

When Probable Cause Was Established Thereby Allowing Improper

Evidence Into the Trial in Violation of the Fourth Amendment of the United

States Constitution and Article I, Section 14 of the Ohio Constitution.

Trial Counsel Rendered Ineffective Assistance During Holloway’s

Motion to Suppress in Violation of Holloway’s Rights Under the Fifth, Sixth

and Fourteenth Amendments to the United States Constitution, and

Sections 10 and 16, Article I of the Ohio Constitution. -9-

A. Consent to Search

{¶ 24} In connection with the Second Assignment of error, Holloway contends that

Detective Osborne lacked a reasonable basis for believing that Donald Preston’s consent

to a search was valid. This argument is based on the fact that Osborne merely asked

Preston if he lived at the house.

{¶ 25} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” State v. Burnside,

,

,

. As a result, “an appellate court must accept the trial court's findings of

fact if they are supported by competent, credible evidence.”

“Accepting these facts

as true, the appellate court must then independently determine, without deference to the

conclusion of the trial court, whether the facts satisfy the applicable legal standard.”

{¶ 26} “Searches and seizures conducted without a prior warrant are

unreasonable per se, and therefore illegal, subject to several well-established exceptions

to the warrant requirement.” State v. Holloway, 2d Dist. Clark No. 04CA0070, 2006-

Ohio-4797, ¶ 16, citing Katz v. United States,

,

,

(1967). One such exception concerns searches that are conducted with the consent of

an owner or an occupier. State v. Posey,

,

(1988),

citing Maryland v. Macon,

,

,

(1985).

See also Illinois v. Rodriguez,

,

,

(1990)

(consent can be given “from a third party who possesses common authority over the -10-

premises”).

{¶ 27} “The authority which justifies the third-party consent does not rest upon the

law of property, with its attendant historical and legal refinements, * * * but rests rather on

mutual use of the property by persons generally having joint access or control for most

purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right

to permit the inspection in his own right and that the others have assumed the risk that

one of their number might permit the common area to be searched.” United States v.

Matlock,

,

,

, (1974).

{¶ 28} “To rely on the consent exception of the warrant requirement, the state must

show by ‘clear and positive’ evidence that the consent was ‘freely and voluntarily’ given.”

, quoting Bumper v. North Carolina,

,

,

(1968).

{¶ 29} Consenting third parties do not need to have actual authority over the

premises. State v. Portman, 2d Dist. Clark No. 2013-CA-68,

, citing

United States v. Ayoub,

(6th Cir. 2007). (Other citation omitted.). An

objective standard is used to decide if third-party consent is valid. Under this test,

“consent is valid if an officer looking at the then-available facts could reasonably conclude

that the third-party had apparent authority to consent.”

citing

. An

officer's belief is unreasonable “if the surrounding circumstances would lead a reasonable

person to doubt the authority of the third party.”

citing

.

{¶ 30} During the suppression hearing, Detective Osborne testified that Holloway

failed to respond when he asked if 17 North Shaffer was Holloway’s residence or if he

had been staying there. Shortly thereafter, Osborne knocked on the partially open door -11-

of the house and saw an older male (Donald Preston) sitting on a couch or love seat close

to the door. Osborne asked Preston if he lived there, and Preston said that he did.

Osborne also asked Preston if he knew Holloway, and he said that he did, “a little.”

Transcript of Suppression Hearing, p. 15. After that, Osborne explained to Preston what

had occurred and asked for consent to search the areas of the house where he had seen

Holloway.

Preston told Osborne that he could go ahead and look around.

Osborne also asked Preston if Holloway lived there, and Preston said no. Id. at p. 35.

{¶ 31} Holloway does not suggest what further inquiry would have been

reasonable or required. The police officer specifically asked if Preston lived at the

premises, and he was given a positive answer. There was no reason to doubt Preston’s

statement. In fact, Preston’s daughter, who was present at the time of the search and

testified at trial, confirmed that her father lived at the house and that he was sitting on the

couch when the police came inside. Transcript of Trial Proceedings, Vol. II, at pp. 272

and 277.

{¶ 32} Because the State established that the police had consent to search the

premises, the trial court did not err in overruling the motion to suppress. Accordingly, the

Second Assignment of Error is without merit.

B. Alleged Trespass on the Curtilage

{¶ 33} Under the Third Assignment of Error, Holloway contends that the trial court

erred in overruling the motion to suppress because Detective Osborne lacked probable

cause for a warrantless search based on the “exigent circumstances” exception.

According to Holloway, Osborne trespassed on the curtilage of the residence and his -12-

observation of the purple bag, therefore, was tainted.

{¶ 34} Due to the right of privacy guaranteed by the Fourth Amendment, “warrants

are generally required to search a person's home or his person unless ‘the exigencies of

the situation’ make the needs of law enforcement so compelling that the warrantless

search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona,

,

,

(1978), quoting McDonald v. United

States,

,

,

(1948). This is one of the

exceptions to the warrant requirement, and it can apply where delays in obtaining

warrants may endanger the police or others, or may allow evidence to be concealed or

destroyed. State v. Johnson,

,

,

(2d Dist.). Furthermore, while police cannot act on exigencies they create, where

“ ‘the police did not create the exigency by engaging or threatening to engage in conduct

that violates the Fourth Amendment, warrantless entry to prevent the destruction of

evidence is reasonable and thus allowed.’ ” State v. Goode, 2d Dist. Montgomery No.

25175,

, quoting Kentucky v. King,

,

,

(2011).

{¶ 35} “The curtilage is an area around a person's home upon which he or she

may reasonably expect the sanctity and privacy of the home. * * * Because the curtilage

of a property is considered to be part of a person's home, the right of the police to come

into the curtilage is highly circumscribed. * * * Absent a warrant, police have no greater

rights on another's property than any other visitor has. * * * The only areas of the curtilage

where the officers may go are those impliedly open to the public.” State v. Peterson,

,

,

(2d Dist.). -13-

{¶ 36} Despite these points, Osborne had a right to be in the curtilage, because

Holloway fled into the house when Osborne attempted to approach him about the hand-

to-hand transaction he had observed. Specifically, Osborne wore a bulletproof vest

marked “police,” had on a police badge, had identified himself as an officer, and told

Holloway to stop. Instead of doing so, Holloway ran into the house. Osborne then went

to the side of the house, as he was the only one there and he believed Holloway was

going to run out of the back door. Transcript of Suppression Hearing, at pp. 30 and 54-

55.

{¶ 37} The Supreme Court of Ohio has said that police officers may enter without

a warrant when they have identified themselves and “are in hot pursuit of a suspect who

flees to a house in order to avoid arrest * * *.” Middletown v. Flinchum,

,

(2002). Courts have also held that where suspects are subject

to lawful Terry stops, fleeing is “ ‘an affirmative act that hinders or impedes the officer in

the performance of the officer's duties as a public official and is a violation of R.C.

2921.31, obstructing official business.’ ” State v. Albright, 7th Dist. Mahoning No. 14 MA

0165,

, quoting State v. Harris, 10th Dist. No. 05AP-27, 2005-Ohio-

4553, ¶ 16.

{¶ 38} In Albright, the police were dispatched to the defendant’s house on a report

of underage drinking. When officers arrived, two persons were in the front yard, and the

officers believed they were under age 21. When an officer stated that he wanted to

speak to them, the two males ran down the driveway. The officers tried to follow, but the

defendant unsuccessfully attempted to block them. The officers then ran into the

backyard, but were unable to find the suspects. The police eventually arrested the -14-

defendant for obstructing official business. Id. at ¶ 3-5, 8, and 10.

{¶ 39} After the defendant was convicted, he argued on appeal that “he had a

legitimate expectation of privacy in the curtilage of his home,” and that “the officers had

no right to enter his property absent an exception to the warrant requirement.” Id. at

¶ 20. The court of appeals disagreed, noting that “[i]f a police officer has a reasonable,

articulable suspicion, in light of his experience, that criminal activity may be afoot, the

officer may conduct an investigatory stop.” Id. at ¶ 34, citing Terry v. Ohio,

,

,

(1968). The court further noted that after the two

suspects ran, “there was clearly reasonable suspicion justifying an investigatory stop.

Pursuing the individuals to conduct a Terry stop was an authorized act within the officer's

official capacity and was part of his lawful duties.” Id. at ¶ 41.

{¶ 40} The court then stated that, “[u]pon fleeing up the driveway, the suspects

entered the back yard. There was no indication the yard was fenced, contained in an

enclosure with the house, or was otherwise shielded. One could conclude the officer

was entitled to proceed to the back yard, an open field by all indications, when in pursuit

of fleeing individuals subject to at least a Terry stop.” Albright, 7th Dist. Mahoning No.

14 MA 0165,

.

{¶ 41} We discussed a similar situation in State v. Etherington,

,

,

(2d Dist.). In that case, the police had observed

the defendant engage in a suspected drug transaction and had followed him to his home,

where they intended to initiate a traffic stop because he failed to use a turn signal. Id. at

¶ 2-3. When police officers approached the defendant, he retreated toward his front door

and attempted to enter, just as an officer reached him. The officer and the defendant -15-

passed through the home’s door and into a room, and during a struggle, the defendant

threw a packet (which was later found to contain drugs) onto a chair. Id. at ¶ 4.

{¶ 42} After being charged, the defendant filed a motion to suppress. We

concluded that based on his observations, experience, and training, the police officer had

a “reasonable articulable suspicion” that the defendant had engaged in a drug transaction.

Id. at ¶ 11. We further concluded that the officer’s warrantless entry into the defendant’s

home did not violate the Fourth Amendment. First, the officer had reasonable suspicion

to conduct a Terry stop. Id. at ¶ 17-18. Second, the defendant’s flight from the police

escalated the officer’s reasonable suspicion into probable cause for arrest. Id. at ¶ 23.

{¶ 43} In the case before us, Detective Osborne stated that, before he became a

member of the drug unit, he had been involved in drug arrests as a patrolman, and

Holloway’s name had been mentioned. In addition, after becoming part of the drug unit,

Osborne had specifically received information that Holloway was selling narcotics.

Transcript of Suppression Hearing, at p. 8. Based on Osborne’s experience, he believed

that he had seen Holloway engaged in a hand-to-hand drug transaction, and Osborne

exited his vehicle to talk to Holloway. After Osborne identified himself as a police officer,

Holloway fled into the house. Under these circumstances, and as in Etherington,

Osborne had probable cause to pursue Holloway and to enter onto the curtilage, where

he saw Holloway with a purple bag.

{¶ 44} Because Holloway did have the right to enter the curtilage, his observations

while there did not violate Holloway’s Fourth Amendment rights, and should not have

been suppressed. Accordingly, Holloway’s Third Assignment of Error is overruled. -16-

C. Alleged Ineffective Assistance of Counsel

{¶ 45} Under this assignment of error, Holloway contends that trial counsel

rendered ineffective assistance of counsel by failing to call a known witness for the

suppression hearing. Holloway bases this argument on the fact that his sole witness at

trial, Ashley Preston, testified that she was present in 17 North Shaffer when Detective

Osborne entered. According to Ashley, she was sitting with her father on the couch and

did not recall the police knocking on the door. Instead, the police barged through the

door. Ashley also said she did not give the police permission or consent to search, nor

did she recall her father giving permission.

{¶ 46} Holloway contends that trial counsel “most assuredly” knew of this

information, and his failure to present this information at the suppression hearing was

prejudicial. In response, the State argues that Holloway’s argument is speculative,

because he failed to point to anything in the record showing that, at the time of the

suppression hearing, Holloway’s counsel knew what Ashley’s testimony would be, or that

she was available to testify at the hearing.

{¶ 47} “Reversal of a conviction on the grounds of ineffective assistance of counsel

requires a showing, first, that counsel's performance was deficient and, second, that the

deficient performance prejudiced the defense so as to deprive defendant of a fair trial.”

State v. Treesh,

,

(2001), citing Strickland v.

Washington,

,

,

(1984). “To show that

a defendant has been prejudiced by counsel's deficient performance, the defendant must

prove that there exists a reasonable probability that, were it not for counsel's errors, the

result of the trial would have been different.” State v. Bradley,

, 538 -17-

N.E.2d 373 (1989), paragraph three of the syllabus.

{¶ 48} Generally, the decision of trial counsel “whether to call a witness falls within

the rubric of trial strategy and will not be second-guessed by a reviewing court.”

. Accord State v. Martin, 2d Dist. Montgomery No. 20610,

.

Furthermore, “[d]ebatable trial tactics generally do not constitute a deprivation of effective

counsel.” State v. Phillips,

,

(1995).

{¶ 49} In September 2016, Holloway’s attorney filed a witness list that included

Ashley Preston, with a listed address of 19 North Shaffer St. See Doc. #19. The list did

not indicate the substance of any anticipated testimony. As the State notes, there is also

no indication in the record that trial counsel knew of the content of Ashley’s testimony at

the time of the suppression hearing, or, more importantly, whether she was available to

testify. In fact, Ashley stated at trial that she had originally lived at 19 North Shaffer, but

had moved into 17 North Shaffer at some point before the incident. Transcript of Trial

Proceedings, Vol. II, at pp. 272-273. Ashley also said that she had moved out of 17

North Shaffer and had lived at another address for over a year before she testified. Id.

at 283.

{¶ 50} In view of the fact that new counsel represented Holloway at trial, and that

the suppression hearing was held about two months before Ashley testified, i.e., when

she lived at a new address, there is no indication that former defense counsel would have

been able to locate Ashley and secure her testimony at the suppression hearing. As a

final matter, even if counsel had been able to produce Ashley for the suppression hearing,

whether she would have testified as she did at trial is a matter of speculation. Notably,

we are limited to the evidence in the record. -18-

{¶ 51} Based on the preceding discussion, we cannot find that trial counsel was

ineffective in failing to call Ashley as a witness at the suppression hearing. Accordingly,

the Fourth Assignment of Error is overruled.

IV. Denial of Motion for Acquittal and Manifest Weight

{¶ 52} Because the Fifth and Sixth Assignments of Error are interrelated, we will

discuss them together. Holloway’s Fifth Assignment of Error states that:

The Trial Court Erred in Denying Holloway’s Crim.R. 29 Motion for

Acquittal as the Evidence Presented Was Insufficient to Conclude that Guilt

Had Been Proved Beyond a Reasonable Doubt in Violation of His Rights to

Due Process and a Fair Trial Under the Fifth, Sixth and Fourteenth

Amendments to the United States Constitution, and Sections 10 and 16,

Article I of the Ohio Constitution.

{¶ 53} The Sixth Assignment of Error is as follows:

The Trial Court Erred in Entering a Finding of Guilty Because Such

Verdict Was Against the Manifest Weight of the Evidence. Fifth and

Fourteenth Amendments, United States Constitution, and Article I, Section

14 of the Ohio Constitution.

{¶ 54} Holloway’s argument under these assignments of error relates primarily to

the six counts of which he was convicted that involved trafficking. According to Holloway,

the State’s proof was deficient because the State relied on the testimony of only one

detective, even though other officers were at the scene. Holloway also points to the fact

that there was no DNA evidence, no surveillance log to substantiate Detective Osborne’s -19-

claim that he had been surveilling Holloway, no pictures of the children in the vicinity

(which involved an increase in the degree of the trafficking charges), and no signed written

form by Preston for consent to search.

{¶ 55} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581,

, citing State v. Thompkins,

,

(1997). In such situations, we apply the test from State v. Jenks,

,

(1991), which states that:

An appellate court's function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial

to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt. The

relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.

(Citation omitted).

at paragraph two of the syllabus.

{¶ 56} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” Wilson at ¶ 12, citing State v. Hufnagle, 2d Dist.

Montgomery No. 15563,

(Sept. 6, 1996).

{¶ 57} In this situation, a court reviews “ ‘the entire record, weighs the evidence

and all reasonable inferences, considers the credibility of witnesses and determines -20-

whether in resolving conflicts in the evidence, the jury clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a new

trial ordered. The discretionary power to grant a new trial should be exercised only in

the exceptional case in which the evidence weighs heavily against the conviction.’ ”

, quoting State v. Martin,

,

(1st

Dist. 1983). Accord State v. Drummond,

,

,

, ¶ 193. “The fact that the evidence is subject to different interpretations does not

render the conviction against the manifest weight of the evidence.” State v. Adams, 2d

Dist. Greene No. 2013-CA-61,

, citing Wilson, at ¶ 14.

{¶ 58} While “ ‘sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.’ ” State v. Winbush,

,

, ¶ 58 (2d Dist.),

quoting State v. McCrary, 10th Dist. Franklin No. 10AP-881,

, ¶ 11. As

a result, “ ‘a determination that a conviction is supported by the weight of the evidence

will also be dispositive of the issue of sufficiency.’ ”

quoting State v. Braxton, 10th

Dist. Franklin No. 04AP-725,

.

{¶ 59} A further principle is that appellate courts should cautiously exercise their

discretionary power of finding that judgments are against the manifest weight of the

evidence. This is because factfinders see and hear the witnesses and have unique

competence to decide whether, and to what extent, to credit their testimony. As a

consequence, we give substantial deference to credibility decisions of factfinders. See

Winbush at ¶ 59, citing State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL -21-

476684, *4 (Aug. 22, 1997).

{¶ 60} On the other hand, appellate judges are at least equally qualified, due to

their reason and experience, to express opinions on which of the competing inferences

suggested by the evidence should be preferred. For this reason, “we defer more to

decisions on what testimony should be credited, than we do to decisions on the logical

force to be assigned to inferences suggested by evidence, no matter how persuasive the

evidence may be.” State v. Brooks, 2d Dist. Montgomery No. 21531,

, citing Lawson at *4.

{¶ 61} In considering the evidence, we will focus on the trafficking offenses, since

this is what Holloway has done. Holloway was charged with having violated R.C.

2925.03(A)(2) (a trafficking offense), which provides that: “No person shall knowingly * * *

[p]repare 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.”

{¶ 62} Under R.C. 2925.03(C)(1), where certain Schedule I or II drugs are

involved, the offense is classified as aggravated trafficking, and under R.C.

2925.03(C)(1)(b), the degree of felony is increased if the offense is committed in the

vicinity of a school or a juvenile. Under R.C. 2925.01(BB), “[a]n offense is ‘committed in

the vicinity of a juvenile’ if the offender commits the offense within one hundred feet of a

juvenile or within the view of a juvenile, regardless of whether the offender knows the age

of the juvenile, whether the offender knows the offense is being committed within one

hundred feet of or within view of the juvenile, or whether the juvenile actually views the -22-

commission of the offense.”

{¶ 63} As was noted, Detective Osborne testified that he was working in the

Springfield drug unit and had been investigating Holloway during the early months of

2016. On the day of the arrest, Osborne was surveilling Holloway and had been doing

drive-bys of the residence at 17 North Shaffer Street. During a drive-by, he saw

Holloway engage in what, based on Osborne’s training and experience, was a hand-to-

hand drug transaction.

{¶ 64} Osborne also saw Holloway inside the house with a purple bag, which was

later found to contain a large amount of methamphetamine, 50 Valium tablets, and other

illegal drugs. Among the drugs were three separate types of Schedule II drugs

(methamphetamine, Hydrocodone, and Oxycodone), Trial Transcript, Vol. II, at pp. 232-

233, 238, and 239), as well as three types of lower-rated drugs (Valium, Xanax and

Subutex) (Schedules III and IV drugs). Holloway also had nearly $4,000 on his person.

Osborne additionally testified that he saw children within 100 feet of Holloway. Id. at p.

142.

{¶ 65} This evidence satisfied the above statutory requirements for aggravated

trafficking and trafficking in the vicinity of children. The only contradictory evidence came

from Holloway’s witness, who stated that she did not see Holloway selling drugs “out of”

the residence. The jury clearly did not believe her, and as noted, we give substantial

deference to a factfinder’s credibility decisions.

{¶ 66} As to the surveillance log, Holloway’s counsel inquired about this on cross-

examination. Detective Osborne stated that the log was in his office, and counsel asked

him to produce it. Trial Transcript, Vol. II, at pp. 185-186. Thereafter, defense counsel -23-

did not choose to recall Osborne and present testimony about the log.

{¶ 67} Concerning Holloway’s contention about the absence of pictures of

children, Osborne testified that while he observed the drug transaction, children were

within 100 feet of Holloway. Trial Transcript, Vol. II, pp. 142 and 222. It is true that the

State did not provide pictures of the children or their names. However, State’s Ex. 11,

taken the day of the incident, shows children’s toys and a tricycle in the front yard of 17

North Shaffer. Again, the jury was in a position to assess the credibility of the witnesses

and to give the testimony whatever weight the jury found appropriate. The same is true

of the lack of a written consent form for the search. Osborne did not obtain written

consent, but written consent, while preferable particularly as to defendants, is not

required. E.g., State v. Mayberry,

,

, ¶ 17 (2d Dist.)

(written consent is not required after oral consent has been given, but does reveal strong

evidence of defendant’s willingness to permit search).

{¶ 68} Finally, concerning the purple bag and its contents, Osborne testified that

he saw the bag in Holloway’s hands, and that he saw Holloway make a motion as if he

were crouching down. When Holloway came out of the house, he no longer had the bag.

Notably, possession of drugs may be either constructive or actual. State v. Williamson,

2d Dist. Montgomery No. 27147,

. “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.” (Citation omitted.)

State v. Hankerson,

,

(1982), syllabus.

{¶ 69} Courts look at all the available attendant facts and circumstances to decide

if an individual knowingly possessed controlled substances. State v. Teamer, 82 Ohio -24-

St.3d 490, 492,

(1998). Moreover, circumstantial evidence can be

used. This type of evidence has the same probative value as direct evidence. State v.

Flores-Lopez,

,

, ¶ 54 (2d Dist.), citing Jenks,

,

, at paragraph one of the syllabus.

{¶ 70} Here, Detective Osborne directly saw Holloway with the purple bag, and

later found the bag in the area where he saw Holloway crouching. In addition, the shower

was wet, but only the bottom of the bag was wet. Under the facts and circumstances, a

reasonable juror could conclude that Holloway constructively possessed the drugs. See

Flores-Lopez at ¶ 55.

{¶ 71} The State was also not required to use DNA evidence, as the eyewitness

testimony was sufficient to establish that Holloway had possession of the bag of drugs.

Nonetheless, the State did test some items in the bag for latent fingerprints. However,

the fingerprint evidence was insufficient for reliable identification. Transcript of Trial

Proceedings, Vol. II, at pp. 255-258. The State’s expert also explained why fingerprints

are not left on every item a person touches. Id. at pp. 256 and 258.

{¶ 72} Based on the preceding discussion, the jury’s verdict was not against the

weight of the evidence, and the trial court did not err in refusing to grant Holloway’s Crim.

R. 29(A) motion for acquittal. Accordingly, the Fifth and Sixth Assignments of Error are

overruled.

V. Failure to Merge Sentences

{¶ 73} Holloway’s Seventh Assignment of Error states that:

The Trial Court Erred in Imposing a Sentence of Eight Years -25-

Mandatory Imprisonment Plus Fifty-Four Months Consecutive in Violation

of the Fifth and Fourteenth Amendments to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution.

A. Allied Offenses

{¶ 74} Under this assignment of error, Holloway first contends that since the drugs

were all in the same bag, the guilty verdicts were for allied offenses of similar import, and

he should have been sentenced for only one count. Relying on State v. Ruff,

,

,

, Holloway argues that the six trafficking

convictions (counts one, three, five, seven, nine, and 11) should have been merged.

{¶ 75} In replying to this argument, the State notes that Holloway failed to object

at the sentencing hearing, and that we can review only for plain error. The State further

argues that after the Ruff decision, Ohio courts have continued to reject Holloway’s

argument.

{¶ 76} As to the State’s first point, we agree that Holloway failed to object to the

court’s failure to merge the trafficking convictions. Sentencing courts have a mandatory,

not a discretionary, duty to merge allied offenses. State v. Williams,

,

,

. Nonetheless, the Supreme Court of Ohio has

also held that:

An accused's failure to raise the issue of allied offenses of similar

import in the trial court forfeits all but plain error, and a forfeited error is not

reversible error unless it affected the outcome of the proceeding and

reversal is necessary to correct a manifest miscarriage of justice. -26-

Accordingly, an accused has the burden to demonstrate a reasonable

probability that the convictions are for allied offenses of similar import

committed with the same conduct and without a separate animus; absent

that showing, the accused cannot demonstrate that the trial court's failure

to inquire whether the convictions merge for purposes of sentencing was

plain error.

State v. Rogers,

,

,

. The court

further commented that “when an error in failing to merge allied offenses is obvious, it

rises to plain error.” Id. at ¶ 14.

{¶ 77} R.C. 2941.25, the allied offenses statute, provides that:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may

be convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶ 78} “As a practical matter, when determining whether offenses are allied

offenses of similar import within the meaning of R.C. 2941.25, courts must ask three

questions when the defendant's conduct supports multiple offenses: (1) Were the

offenses dissimilar in import or significance? (2) Were they committed separately? and -27-

(3) Were they committed with separate animus or motivation? An affirmative answer to

any of the above will permit separate convictions. The conduct, the animus, and the

import must all be considered.” Ruff,

,

,

.

{¶ 79} After consideration, we conclude that the drug offenses were not allied

offenses. Before Ruff was decided, we held that “the fact each violation of R.C. 2925.11

requires proof of the identity of a different drug that was possessed demonstrates ‘that

the legislature intended the possession of the different drug groups to constitute different

offenses.’ ” State v. Huber, 2d Dist. Clark No. 2010-CA-83,

,

quoting State v. Delfino,

,

(1986). Under the test

in Ruff, this means that the offenses are dissimilar in import or significance.

{¶ 80} In an opinion decided after Ruff, we continued to follow Huber. See State

v. Pendleton, 2d Dist. Clark No. 2017-CA-17,

. Pendleton involved an

indictment that included three counts of trafficking in drugs (heroin, cocaine, and fentanyl),

and three counts of possession. After the defendant was found guilty, the trial court

merged the trafficking and respective possession counts, and sentenced the defendant

to separate terms of imprisonment on the three trafficking counts. Id. at ¶ 10-11.

{¶ 81} On appeal, Pendleton argued that the trial court should have merged four

of his convictions because the heroin and fentanyl were based on the same two quantities

of mixed substances containing both heroin and fentanyl. Id. at ¶ 27. We disagreed,

however. We first cited decisions, including Huber, that had been rendered before and

after Ruff. Id. at ¶ 29. We then noted that the conviction for trafficking in heroin required

proof under R.C. 2925.03(C)(6), while the fentanyl conviction required proof under -28-

2925.03(C)(1). Due to the requirement of different facts under different subsections, we

concluded that the convictions should not be merged. Id. at ¶ 32.

{¶ 82} We did “question the propriety of characterizing the same 133.62 grams of

powder as 133.62 grams of heroin mixed with filler for purposes of determining the

quantity of heroin involved, and simultaneously, as 133.62 grams of fentanyl mixed with

filler for purposes of determining the quantity of fentanyl involved.” Id. at ¶ 58.

However, the majority concluded that we were required to affirm the convictions “in the

absence of a clear statutory mandate to the contrary, or any authority in the federal

constitution or the Ohio Constitution.” Id. at ¶ 59.

{¶ 83} The dissent concluded that the separate trafficking convictions were “allied

offenses of similar import due to the State's use of the same evidence – specifically, both

drugs and the same filler – to elevate the offense levels for both offenses.” (Emphasis

sic.) Pendleton, 2d Dist. Clark No. 2017-CA-17,

. (Froelich, J.,

concurring in part and dissenting in part.) Even the dissent recognized, however, “that

the simultaneous possession of different types of drugs constitutes separate offenses that

do not merge as allied offenses of similar import.” Id. at ¶ 68.1

{¶ 84} In view of our prior authority in Huber and Pendleton, we conclude that this

is not the exceptional case in which we should recognize plain error. In fact, there was

no error, as the trial court was correct in failing to merge the trafficking convictions. The

drugs involved were all different; in addition, three (methamphetamine, Oxycodone, and

Hydrocodone) were Schedule II drugs, one (Subutex) was a Schedule III drug, and two

1Pendleton has appealed to the Supreme Court of Ohio. See State v. Pendleton, 2018- 1348, filed on September 24, 2018. -29-

(Valium and Xanax) were Schedule IV drugs. Different statutory sections were also

involved, i.e., R.C. 2925.11(C)(1) and R.C. 2925.11(C)(8).

{¶ 85} After Ruff, other Ohio appellate districts have continued to hold that

offenses of possession of or trafficking in different types of drugs constitute separate

offenses and do not merge. See State v. Howard,

,

(4th Dist.); State v. Rice, 5th Dist. Licking No. 16-CA-87,

;

State v. Ratliff, 6th Dist. Lucas No. L-16-1187,

; State v. Hunt,

7th Dist. Jefferson No. 17 JE 0012,

; State v. Perry, 8th Dist.

Cuyahoga No. 105501,

; State v. Dodson, 9th Dist. Medina No.

16CA0020-M,

; State v. Woodard, 12th Dist. Warren No. CA2016-

09-084,

. Holloway has not provided us with contrary authority.

{¶ 86} Based on the preceding discussion, the trial court did not err in failing to

merge the six trafficking convictions.

B. Sentencing Review

{¶ 87} Holloway’s second argument under this assignment of error is that his

sentence should be decreased because the trial court failed to properly apply R.C.

2929.12(C)(3).

{¶ 88} In reviewing sentences, we are constrained by the standard of review in

R.C. 2953.08(G). State v. Withrow,

,

, ¶ 20 (2d Dist.).

This subsection of R.C. 2953.08 provides that, after reviewing the record, including the

trial court’s findings:

The appellate court may increase, reduce, or otherwise modify a -30-

sentence that is appealed under this section or may vacate the sentence

and remand the matter to the sentencing court for resentencing. The

appellate court's standard for review is not whether the sentencing court

abused its discretion. The appellate court may take any action authorized

by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section

2929.14, or division (I) of section 2929. 20 of the Revised Code, whichever,

if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶ 89} Trial courts have “ ‘full discretion to impose any sentence within the

authorized statutory range,” and do not have to “make any findings or give * * * reasons

for imposing maximum or more than minimum sentences.’ ” State v. Nelson, 2d Dist.

Montgomery No. 25026,

. However, “in exercising its discretion,

the court must carefully consider the statutes that apply to every felony case. Those

include R.C. 2929.11, which specifies the purposes of sentencing, and R.C. 2929.12,

which provides guidance in considering factors relating to the seriousness of the offense

and recidivism of the offender.” State v. Mathis,

,

,

.

{¶ 90} As was noted, Holloway argues that the trial court erred in applying R.C.

2929.12(C)(3). In relevant part, R.C. 2929.12(C) provides that “[t]he sentencing court

shall consider all of the following that apply regarding the offender, the offense, or the

victim, and any other relevant factors, as indicating that the offender's conduct is less -31-

serious than conduct normally constituting the offense: * * * (3) In committing the offense,

the offender did not cause or expect to cause physical harm to any person or property.”

{¶ 91} At the sentencing hearing, the trial court stated that “[i]n today’s society how

somebody can be dealing in these controlled substances and not realize the risk of

physical harm to persons is not clear to this Court.” Transcript of Proceedings

(Disposition), p. 14. According to Holloway, the court misapplied this factor because

there was no evidence of harm. In addition, Holloway notes that drug dealers do not

want to harm their clients; “they want their clients to live and be repeat customers so as

to increase their profits.” Appellant’s Brief, p. 23.

{¶ 92} While there was no “direct” evidence of harm, we reject Holloway’s

argument. “ ‘Physical harm to persons’ means any injury, illness, or other physiological

impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3).

{¶ 93} In State v. Breneman, 2d Dist. Champaign No. 2013-CA-57, 2014-Ohio-

4700, the trial court rejected a defendant’s argument that his conduct was less serious

under R.C. 2929.12(C)(3), because when he sold drugs, he did not “ ‘cause or expect to

cause physical harm to any person * * *.’ ” Id. at ¶ 11, quoting R.C. 2901.01(A)(3). In

finding that the trial court correctly considered the sentencing factors, we noted that the

defendant “himself acknowledged that his conduct in selling drugs was harmful, and it

defies logic to conclude that one selling drugs would not expect those drugs to cause

some type of physiological impairment in a user. In other words, as the court determined,

the factor set forth in R.C. 2929.12(C)(3) did not lessen the gravity of [the defendant’s]

offense.” Id. The same reasoning applies here.

{¶ 94} Holloway also mentioned consecutive sentences in his assignment of error, -32-

but he did not make any specific argument in this context. We have reviewed the

sentencing hearing; the trial court made the appropriate findings for imposing consecutive

sentences under R.C. 2929.14(C)(4), and the sentences are not contrary to law “when

the trial court makes the requisite statutory findings.” State v. Ropp, 2d Dist. Champaign

No. 2017-CA-32,

; see also Transcript of Proceedings (Disposition),

at p. 14.

{¶ 95} In addition, we have reviewed the presentence investigation report.

Holloway was 37 years old at the time of the report and had a significant criminal record,

beginning with many juvenile court felony charges and three or more adult felony

convictions before the current case. Holloway’s risk level was also high. Despite

having been incarcerated (according to Holloway’s own account), for 16 years of his life,

including time at the Department of Youth Services, Holloway has not been rehabilitated

successfully. Holloway also showed no remorse for his crime; at sentencing, he

maintained his innocence of the charges. This is inconsistent with his claim that as a

“drug dealer,” he did not intend to harm anyone because he wanted his clients to continue

to buy drugs.

{¶ 96} Accordingly, the trial court did not err in sentencing Holloway. Based on

the preceding discussion, the Seventh Assignment of Error is overruled.

VI. Conclusion

{¶ 97} All of Holloway’s assignments of error having been overruled, the judgment

of the trial court is affirmed. -33-

.............

FROELICH, J. and TUCKER, J., concur.

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Andrew P. Pickering Steven H. Eckstein Hon. Richard J. O’Neill