[Cite as State v. Jones,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-18-013

Appellee Trial Court Nos. 15CR942 15CR1040 v.

Hayward Jones DECISION AND JUDGMENT

Appellant Decided: February 1, 2019

*****

Dave Yost, Ohio Attorney General, and Christopher L. Kinsler, Assistant Attorney General, for appellee.

Geoffrey L. Oglesby, for appellant.

*****

SINGER, J.

{¶ 1} Appellant, Hayward Jones, appeals the March 8, 2018 judgment of the

Sandusky County Court of Common Pleas convicting him, following a jury trial, of 57

counts of drug law violations including engaging in a pattern of corrupt activity, conspiracy, and trafficking in various amounts of cocaine. For the reasons that follow,

we reverse and vacate in part, and affirm in part.

Assignments of Error

{¶ 2} Appellant sets forth the following assignments of error:

I. THE COURT ERRED IN FORCING MR. JONES TO USE

INEFFECTIVE STANDBY COUNSEL.

II. THE COURT ERRED IN NAMING SOMEONE AN EXPERT

WHEN THEIR OWN TESTIMONY IS INCONSISTENT.

III. THE COURT ERRED IN ALLOWING A VERDICT THAT IS

AGAINST THE MANIFEST WEIGHT OF EVIDENCE.

IV. MR. JONES’S MOTION FOR ACQUITTAL WAS

IMPROPERLY DENIED.

V. THE COURT ERRED IN GROUPING THE OFFENSES

TOGETHER ON THE VERDICT FORMS.

VI. THE COURT ERRED IN SENTENCING MR. JONES TO

MAXIMUM AND MANDATORY TIME AGAINST THE FACTORS OF

SENTENCING.

Background

{¶ 3} Appellant was indicted in two separate cases for 104 counts related to

conspiracy and drug trafficking. He was charged with 9 counts in case No. 15CR942,

2. and 95 counts in case No. 15CR1040.1 The cases were consolidated for purposes of trial

on April 7, 2016.

{¶ 4} Prior to trial, several of the counts were severed. Appellant pled not guilty

to the remaining counts. The matter was set for trial to be held on August 25, 2016, but a

tentative agreement was reached and a change of plea hearing was set for August 19,

2016.

{¶ 5} The change of plea did not happen and, instead, appellant terminated his

court-appointed counsel and elected to proceed without counsel. The court permitted

counsel to withdraw.

{¶ 6} Appellant moved for a continuance of the August 25, 2016 trial date, and the

court continued the matter. Trial was set for December 1, 2016.

{¶ 7} A pretrial was held on September 26, 2016, and appellant indicated that he

was hoping to retain counsel to proceed to trial. The court clarified that the onus was on

him.

{¶ 8} On November 21, 2016, appellant moved the court to continue the matter

and to appoint him two attorneys. He specifically requested “two or more lawyers,”

arguing they were needed in order for him “to receive the best, most impartial legal

representation.” On November 23, 2016, the trial court denied the motion, stating that it

1 Original Count Nos. 2-7, 9-13, 22-25, 30-33, 39, 42-48, 55-57, 59, 64-68, 71-76, 85 and 86, were dismissed upon motion of the state in a March 8, 2018 amended sentencing entry by the trial court.

3. was not going to allow appellant to “further manipulate the Court and continue the matter

any further.” The court appointed a seasoned attorney as standby counsel for appellant.

{¶ 9} The matter proceeded to jury trial on December 1, 2016. Appellant

represented himself with assistance from his standby counsel.

{¶ 10} At trial, the prosecution presented direct testimony from 13 different law

enforcement agents (“officers”). Appellant completed the trial pro se, and he consulted

with his standby counsel throughout the various proceedings.

{¶ 11} The officers testified about the extensive surveillance and investigation that

was involved in their case against appellant. Appellant called one of the officers on

direct examination. Admitted as evidence were call logs and actual call recordings.

These reflected calls and text messages in which others sought drugs from or agreed to

provide drugs to appellant. Expert testimony was offered by various officers to explain

the code language used in the calls/texts.

{¶ 12} On December 31, 2016, appellant was found guilty and sentenced to a total

prison term of 13 years on all counts in both cases. The consolidated judgment was

journalized on March 8, 2018. Appellant timely appeals.

Assignment of Error No. I

{¶ 13} In the first assigned error, appellant argues he was deprived of effective

assistance of counsel because the trial court forced him to proceed to trial without counsel

or “a fair chance.” Appellee contends appellant cannot establish ineffective assistance

because he chose to proceed pro se at trial.

4. {¶ 14} In evaluating ineffective assistance of counsel claims, the test is “whether

the accused, under all the circumstances, * * * had a fair trial and substantial justice was

done.” State v. Hester,

,

(1976), paragraph four of the

syllabus; see also Strickland v. Washington,

,

,

(1984). A court must determine whether there has been a substantial violation of any

of defense counsel’s essential duties to his client and whether the defense was prejudiced

by counsel’s ineffectiveness. See State v. Calhoun,

,

(1999).

{¶ 15} Appellant makes three main arguments in this first assigned error, and we

will address each in turn.

A. Waiver of Right to Counsel

{¶ 16} Appellant first argues the trial court erred in determining that he

knowingly, intelligently, and voluntarily waived his right to counsel.

{¶ 17} The Sixth and Fourteenth Amendments to the United States Constitution

afford most criminal defendants the right to the assistance of counsel before being

convicted and punished by imprisonment. Powell v. Alabama,

,

,

(1932); Gideon v. Wainwright,

,

,

(1953).

{¶ 18} Crim.R. 44 states in pertinent part as follows:

(A) Counsel in serious offenses. Where a defendant charged with a

serious offense is unable to obtain counsel, counsel shall be assigned to

5. represent him at every stage of the proceedings from his initial appearance

before a court through appeal as of right, unless the defendant, after being

fully advised of his right to assigned counsel, knowingly, intelligently, and

voluntarily waives his right to counsel.

***

(C) Waiver of counsel. Waiver of counsel shall be in open court

and the advice and waiver shall be recorded as provided in Rule 22. In

addition, in serious offense cases the waiver shall be in writing.

See, e.g., State v. Bumphus, 6th Dist. Erie No. E-03-043,

, ¶ 13. See also

Crim.R. 22 (“Proceedings may be recorded in shorthand, or stenotype, or by any other

adequate mechanical, electronic or video recording device.”).

{¶ 19} “To establish an effective waiver of right to counsel, the trial court must

make sufficient inquiry to determine whether defendant fully understands and

intelligently relinquishes that right.” See

citing State v. Gibson,

,

(1976), paragraph two of the syllabus. “To be valid a defendant’s waiver

of counsel must be made with an apprehension of the nature of the charges, the statutory

offense included within them, the range of allowable punishments thereunder, possible

defenses to the charges and circumstances in mitigation thereof, and all other facts

essential to a broad understanding of the whole matter.” (Inner quotations and citations

omitted.) Id.

6. {¶ 20} “The determination of whether there has been an intelligent waiver of right

to counsel must depend, in each case, upon the particular facts and circumstances

surrounding that case, including the background, experience, and conduct of the

accused.” Id., citing Johnson v. Zerbst,

,

,

(1938). “A sketchy or minimal inquiry touching upon only some of the above-

enumerated factors will not adequately establish an effective waiver of counsel.”

citing State v. McQueen,

,

(10th Dist. 1997).

{¶ 21} Here, and in terms of a written waiver, there is a journal entry in the record

in which appellant waived his right to counsel. More specifically, the August 19, 2016

journal entry states: “Defendant this day has elected to represent himself at jury trial

scheduled for 8/25/16 and to discharge his appointed counsel, Russell Leffler. Defendant

by his signature below knowingly makes this constitutional decision to represent

himself.” Appellant signed this entry.

{¶ 22} In terms of an open-court waiver, there is no transcript in the record of the

August 19, 2016 hearing. Our review of appellant’s praecipe to the trial court clerk

shows no request for transcript of the hearing. Therefore, we must presume the regularity

of the proceedings and conclude the court acted appropriately in accepting appellant’s

waiver of counsel. See App.R. 9(E); see also State v. Newman, 6th Dist. Wood No.

WD-15-031,

.

7. {¶ 23} Based on appellant’s actions, we find he knowingly, intelligently, and

voluntarily waived his right to counsel under Crim.R. 44(C), and thus there is no

effective assistance of counsel claim based on that argument.

B. Standby Counsel

{¶ 24} The court eventually appointed Leffler as standby counsel to assist

appellant in his quest to represent himself.

{¶ 25} Appellant now challenges this appointment as a second argument within

his first assigned error, asserting it presented additional issues concerning ineffective

assistance because he should have been afforded full representation as opposed to

standby counsel.

{¶ 26} In Bumphus, we recognized that “[a]fter the right to counsel has been

properly waived, trial courts may appoint standby counsel to assist the pro se defendant.”

Bumphus, 6th Dist. Erie No. E-03-043,

, at ¶ 14, citing State v. Martin,

,

,

. We also clarified that “the

defendant has no right to hybrid representation, which presents problematic ethical issues

concerning effective assistance of counsel when counsel has taken a more active role in

the defense.”

citing Martin at ¶ 33. “Thus, when permitted to go beyond mere

consultation, hybrid representation may constitute reversible error.” Id.

{¶ 27} Here, appellant moved the court to continue the trial date so he could be

appointed new attorneys two weeks prior to trial. He had already been granted a

continuance on August 26, 2016, after he wrote a letter to the court stating that he needed

8. “additional time to prepare to represent [him]self.” However, this time he requested the

continuance for the court to appoint two attorneys, arguing his case required two due to

the amount of charges. The court denied the continuance, specifically noting appellant

discharged a competent, experienced attorney and then knowingly, intelligently, and

voluntarily chose to proceed pro se. The trial court found appellant was solely seeking to

delay the proceedings.

{¶ 28} We agree, and we initially find no issue with the appointment of standby

counsel, as appellant indeed waived his right to counsel. See Martin at ¶ 32 (establishing

how the right to counsel and right to proceed pro se are both afforded but cannot be

asserted simultaneously). There is no basis to claim the denial of the continuance was an

abuse of discretion. Further, we find no evidence or indication in the record that Leffler’s

assistance was hybrid representation or went beyond mere consultation. Consequently,

we find no merit to this second argument.

C. Voir Dire

{¶ 29} As his third and final argument, appellant asserts the trial court improperly

deprived him of standby counsel during voir dire and committed error in disallowing him

from participating in voir dire.

{¶ 30} Crim.R. 24(B) states, in pertinent part, as follows:

Any person called as a prospective juror for the trial of any cause

shall be examined under oath or upon affirmation as to the prospective

juror’s qualifications. The court may permit the attorney for the defendant,

9. or the defendant if appearing pro se, and the attorney for the state to

conduct the examination of the prospective jurors or may itself conduct the

examination.

See, e.g., State v. Jones,

,

(1st Dist. 1984).

{¶ 31} A clear abuse of discretion occurs where a total preclusion or foreclosure of

good faith voir dire examination as to any proper subjects of inquiry within the context of

Crim.R. 24(C) is imposed, and such abuse of discretion is reversible error.

“This

must be so in order to ensure the right to trial by an impartial jury as embodied in the

Ohio and United States Constitutions.”

{¶ 32} In this case, the record reflects appellant proceeded to voir dire

examination pro se, and that he did not have standby counsel present as examinations

initially began. During pretrial discussion in chambers before the jurors were brought in,

appellant explained his predicament of not being clear on how to proceed in voir dire.

Specifically, the conversation was as follows:

[APPELLANT]: Yes, sir. I wanted to say that I have 105 charges

and when I— when I signed a waiver as far as to represent myself, it was

in— it was Mr. Leffler’s idea to do it just so I can buy time to retain

counsel, and I— well, I used that time to try to retain counsel, but the prices

were 50, $60,000—

THE COURT: Okay.

10. [APPELLANT]: — so that didn’t work out the way he planned it to

be, so that’s why I asked for a lawyer because the stuff that I’ve seen— me,

myself, I’m not a lawyer and I know what’s right is right and what’s wrong

is wrong. There’s a lot of stuff that I’ve read and it concerns my case and I

think I need help with presenting it. I don’t know how to—

THE COURT: Well, we’ve gone down that road, okay, and I—I’ve

got— Mr. Leffler is going to be here after the jury is selected. He’ll be

sitting in the back. If you feel you need him— I mean, this is guy [sic] is—

was a prosecutor for 20 years. All right?

[APPELLANT]: I understand.

{¶ 33} Voir dire then began and, during it, the trial court explained the process and

appellant’s rights under Crim.R. 24. Specifically, the court addressed appellant as such:

THE COURT: It would be your opportunity to address them, ask

them questions and to make yourself comfortable that— that they would be

good jurors in your case or bad jurors, and you will have— you’ll have four

preemptory challenges, as does the State, and if you discover that one of the

jurors, perhaps, is— should be disqualified for cause, you can attempt to

expose that of the Court’s benefit and that juror then would be excused and

another one would be called up, so this is your opportunity to go through

that process. Do you want to do that?

11. [APPELLANT]: Um, no, I don’t— no. I don’t know what— I

don’t know— no.

{¶ 34} After this exchange, the court then questioned whether appellee wanted to

take part in questioning jurors. Appellee requested certain jurors be questioned, and

eventually some jurors were dismissed for cause. Appellant was often asked if he had

any objections to the dismissals, but he usually responded in the negative to each.

{¶ 35} Appellant’s passive approach did not happen in all instances, however. For

instance, one prospective juror made a remark that “Sandusky County Court is a joke.”

Appellee wanted to either remove the juror or, if appellant had objection to such a

removal, wanted to question the prospective juror to “get to the bottom of it.” Appellant

was then asked by the court if he had such objection, to which he stated that he would

“probably rather talk to [the prospective juror] one-on-one and see[.]” The court agreed

and ordered a recess to allow counsel and appellant to talk with the prospective juror.

Appellee questioned him, and the record reflects appellant participated with one question.

The discussion was over and the court proceeded. The prospective juror was excused.

{¶ 36} The court then asked the parties if there were any jurors to challenge for

cause. Both appellee and appellant responded in the negative. Voir dire concluded and

the court addressed the jury, and the case proceeded to opening statements.

{¶ 37} Based on our review of the transcripts and applicable law, we cannot say

that appellant was denied his right to participate in voir dire. To the contrary, we find

12. appellant was given ample instruction and opportunity to, and that he actually did to a

certain degree, participate in voir dire.

{¶ 38} What’s more, although standby counsel was not present for appellant

during voir dire, appellant never objected to proceeding through it without him. This

means on appeal appellant is required to show plain error. See State v. Patton, 6th Dist.

Lucas No. L-12-1356,

, ¶ 39.

First, there must be an error, i.e., a deviation from the legal rule.

* * * Second, the error must be plain. To be ‘plain’ within the meaning of

Crim.R. 52(B), an error must be an ‘obvious’ defect in the trial

proceedings. * * * Third, the error must have affected ‘substantial rights.’

We have interpreted this aspect of the rule to mean that the trial court’s

error must have affected the outcome of the trial. State v. Eafford,

,

,

, ¶ 11[.]

See Patton at ¶ 39.

{¶ 39} In this case, we cannot say that we find a deviation from a legal rule

because appellant actually participated in voir dire. Additionally, we cannot say that

appellant has made a meritorious argument that the outcome of his trial would have been

different.

{¶ 40} Accordingly, the first assignment of error is not well-taken.

13. Assignment of Error No. II

{¶ 41} In the second assigned error, appellant argues the trial court committed

error when naming Michael Noel as an expert when Noel did not know basics about

slang, drug terminology. Appellee argues the trial court properly qualified Noel as an

expert.

{¶ 42} Evid.R. 702 provides that “[a] witness may testify as an expert if all of the

following apply:”

(A) The witness’ testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge,

skill, experience, training, or education regarding the subject matter of the

testimony;

(C) The witness’ testimony is based on reliable scientific, technical,

or other specialized information. To the extent that the testimony reports

the result of a procedure, test, or experiment, the testimony is reliable only

if all of the following apply:

(1) The theory upon which the procedure, test, or experiment is

based is objectively verifiable or is validly derived from widely accepted

knowledge, facts, or principles;

14. (2) The design of the procedure, test, or experiment reliably

implements the theory;

(3) The particular procedure, test, or experiment was conducted in a

way that will yield an accurate result.

See, e.g., State v. Richardson, 6th Dist. Lucas No. L-07-1214,

, ¶ 73-94.

{¶ 43} In this case appellant challenges the testimony of appellee’s witness,

special agent of the Drug Enforcement Agency, Officer Michael Noel.

{¶ 44} Appellant argues Noel’s testimony is contradicted by his own testimony.

More specifically, appellant contends since Noel testified that a “ball” or “eight ball” was

both 2.5 grams and 3.5 grams of cocaine, he must not be an expert for purposes of

Evid.R. 702, because such slang, drug terminology cannot represent both measurements.

Hence appellant claims Noel cannot be an expert without knowing those slang terms of

the trade, especially considering he was testifying as an expert on that particular topic.

{¶ 45} The trial court addressed, in open court, whether Noel was qualified as an

expert with respect to slang terminology of the drug trade.

{¶ 46} In particular, Noel testified to the meaning of a “split,” and appellant

objected and asked the court if Noel was testifying as an expert. The court turned to

appellee and stated, “[a]ll right. See what you can do to qualify Mr. Noel.”

{¶ 47} Appellee then began questioning Noel, to which he responded and provided

answers that were based on his knowledge, skill, experience, and training. Against

appellant’s objection, the trial court qualified Noel as an expert, stating as follows:

15. “Well, I think it’s sufficient, so the jury is still entitled to assign whatever weight [they]

wish to assign to Mr. Noel’s explanation of various drug lingo terms.”

{¶ 48} Under the first prong of Evid.R. 702, we note specialized knowledge is

certainly required to determine what certain slang terms mean in the drug trade, as that

knowledge or experience goes beyond that possessed by laypersons. This first element is

satisfied in the record. See Evid.R. 702(A).

{¶ 49} Under the second prong, and with regard to Noel’s qualifications,

knowledge, and experience, he testified that he had partaken in over 100 controlled

purchases during his career. He explained the process of setting up the controlled buys,

and described how he sits with informants and makes controlled calls to drug dealers. In

those calls, Noel explained, the informant and dealer use “code words to deter law

enforcement of the actual meaning of the conversation[.]” Noel testified that he then

confirms the meaning of those words because he analyzes the purchase and proves the

amount and drug involved. This second element is satisfied in the record. See Evid.R.

702(B).

{¶ 50} Under the third and last prong, we find Noel’s testimony and described

translations of drug, slang terms to be reliable based on the process where the amount and

drug involved are confirmed by the controlled calls and subsequent purchases. Noel

identified and described terms such as “rack,” “hizzie,” “half,” “split,” “game,” and

“eight ball,” and all the translations resulted from the reliable process Noel employed to

16. determine the meaning of those terms. This third element is satisfied in the record. See

Evid.R. 702(C).

{¶ 51} In sum, we find the elements of Evid.R. 702 were satisfied, and the trial

court did not commit error in determining Noel to be an expert. Accordingly, the second

assignment of error is not well-taken.

Assignments of Error No. III and IV

{¶ 52} In the third assigned error, appellant argues his convictions are against the

manifest weight. Appellee contends the verdicts were not against the manifest weight

because the convictions are amply supported in the record by competent, credible

evidence.

{¶ 53} In the fourth assigned error, appellant argues the court committed error

when denying his Crim.R. 29 motion. Appellee contends the Crim.R. 29 motion was

properly denied because there was sufficient evidence.

{¶ 54} We will address these assigned errors together for each of appellant’s

convictions.

A. Legal Standards

{¶ 55} The legal standard in reviewing the manifest weight is to determine

whether the greater amount of credible evidence supports the conviction. See Eastley v.

Volkman,

,

,

, ¶ 12, citing State v.

Thompkins,

,

(1997). The appellate court, as if

the “thirteenth juror” must review the record, weigh the evidence and all reasonable

17. inferences drawn from it, consider the witnesses’ credibility and decide, in resolving any

conflicts in the evidence, whether the trier-of-fact “clearly lost its way and created such a

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

ordered.” See State v. Steed, 6th Dist. Wood No. WD-15-069,

,

citing State v. Prescott,

, 2010-Ohio 6048,

(6th

Dist.).

{¶ 56} Crim.R. 29 motions for acquittal are reviewed under the same standard as a

sufficiency of the evidence claim. State v. Hollstein, 6th Dist. Lucas No. L-08-1184,

, ¶ 28. Whether there is sufficient evidence to support a conviction is a

question of law. State v. Thompkins,

,

(1997). In

reviewing a challenge to the sufficiency of evidence, “[t]he 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.” (Internal quotations omitted.) State v. Smith,

,

(1997). Appellate courts will not weigh evidence or assess credibility of the

witnesses. State v. Walker,

,

(1978).

B. Case No. 15CR942

{¶ 57} In case No. 15CR942, appellant was convicted of nine separate offenses.

{¶ 58} The initial offense listed in appellant’s indictment and bill of particulars

was the charge of engaging in a pattern of corrupt activity. Because this analysis

18. requires, among others, that two or more corrupt activities be shown in the record, we

will address this conviction after reviewing the other convictions in case No. 15CR0942.

Count Nos. 2 and 3

{¶ 59} Therefore, the first offenses we address are Count Nos. 2 and 3, which are

conspiracy in violation of R.C. 2923.01(A)(2), a felony of the second degree, and

trafficking in cocaine in violation of R.C. 2925.03(A)(2), a felony of the first degree.

{¶ 60} R.C. 2923.01(A)(2) provides:

(A) No person, with purpose to commit or to promote or facilitate

the commission of * * * engaging in a pattern of corrupt activity, corrupting

another with drugs, a felony drug trafficking * * * shall * * * (2) Agree

with another person or persons that one or more of them will engage in

conduct that facilitates the commission of any of the specified offenses.

See, e.g., State v. Varner, 6th Dist. Lucas No. L-06-1215,

.

{¶ 61} R.C. 2925.03(A)(2) provides:

(A) No person shall knowingly * * * (2) [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 * * * is intended

for sale or resale by the offender or another person.

19. {¶ 62} The indictment and bill of particulars in this case state that on or about

June 21, 2014, appellant conspired to purchase 56 grams of cocaine from another dealer.

No other fact is presented in the indictment or bill of particulars regarding these charges.

{¶ 63} At trial, the evidence adduced to support the counts and convictions was

Officer Michael Noel’s testimony regarding a taped conversation appellant had with

another drug dealer. Noel confirmed that the call occurred on June 21, 2014, at 9:39

a.m., and that the conversation consisted of appellant agreeing to share in the purchase of

cocaine.

{¶ 64} Review of the call and tape played for the jury reveals appellant called and

asked to be brought “a split,” to which the other dealer agreed.

{¶ 65} Noel testified that “a split” is “approximately two ounces,” or 56 grams of

cocaine. We thus find sufficient and competent, credible evidence appellant agreed to

purchase 56 grams of cocaine from another dealer, but note that no other evidence was

adduced regarding these charges.

{¶ 66} R.C. 2923.01(B) further provides:

(B) No person shall be convicted of conspiracy unless a substantial

overt act in furtherance of the conspiracy is alleged and proved to have

been done by the accused or a person with whom the accused conspired,

subsequent to the accused’s entrance into the conspiracy. For purposes of

this section, an overt act is substantial when it is of a character that

20. manifests a purpose on the part of the actor that the object of the conspiracy

should be completed.

See, e.g., State v. Childs,

,

(2000); State v.

Lambert,

,

(4th Dist.).

{¶ 67} “[A]n overt act is an open act, done outwardly, without attempt at

concealment, and performed pursuant to and manifesting a specific intent or design.”

State v. Papp,

,

(10th Dist. 1980).

{¶ 68} Based on the record, the basis and evidence that a substantial overt act

occurred sufficient to substantiate Count No. 2 presumably was the alleged purchasing of

the “split” in Count No. 3, which was to have happened on June 21, 2014.

{¶ 69} However, we find no evidence in the record to support the charge and

conviction under Count No. 3.

{¶ 70} To be exact, there is no evidence to show or support that appellant prepared

for shipment, shipped, transported, delivered, prepared for distribution, or distributed 56

grams of cocaine, on or around June 21, 2014. To the contrary, there is evidence in the

record that appellant called back later that day and left a message with the dealer,

complaining that the dealer stood him up. There is no other evidence the dealer called

appellant back about the drugs until June 24, 2014, which were the facts and evidence

offered to support Count Nos. 4 and 5. Therefore, we find neither the substantial overt

step was properly alleged nor the actual trafficking was proved to support Count Nos. 2

and 3.

21. {¶ 71} Accordingly, we find there is neither sufficient nor competent, credible

evidence to support the verdicts and convictions under Count Nos. 2 and 3.

Count Nos. 4 and 5

{¶ 72} In Count Nos. 4 and 5, appellant was indicted on and convicted of

trafficking in cocaine in violation of R.C. 2925.03(A)(2), supra, a felony of the first

degree, and conspiracy in violation of R.C. 2923.01(A)(2), supra, a felony of the second

degree.

{¶ 73} In the indictment and bill of particulars appellant is alleged to have

conspired to purchase, and to have actually purchased, an order of 56 grams of cocaine.

These crimes were alleged to have occurred on June 24, 2014.

{¶ 74} The evidence adduced at trial to support these counts and convictions was,

again, Noel’s testimony regarding a conversation appellant had with the same drug

trafficker of the facts under Count Nos. 2 and 3. Noel confirmed that a call between them

occurred on June 24, 2014, at 2:52 p.m., and that the conversation consisted of appellant

agreeing to share in the purchasing of cocaine. The dealer confirmed the cost as $5,400

or $5,500.

{¶ 75} Based on our review of the record, there is evidence appellant met with the

dealer on June 29, 2014, to purchase the “split” they had been discussing since June 21,

2014.

22. {¶ 76} R.C. 2925.03(C)(4)(f) states:

(4) If the drug involved in the violation is cocaine or a compound,

mixture, preparation, or substance containing cocaine, whoever violates

division (A) of this section is guilty of trafficking in cocaine. The penalty

for the offense shall be determined as follows: * * * (f) If the amount of

the drug involved equals or exceeds twenty-seven grams but is less than

one hundred grams of cocaine * * *, trafficking in cocaine is a felony of the

first degree[.]

{¶ 77} Accordingly, and based on our review of the entire record including the

filings, transcripts, and exhibits, we find sufficient and competent, credible evidence

supports the verdicts and convictions of Count Nos. 4 and 5.

Count Nos. 6 and 7

{¶ 78} In Count Nos. 6 and 7, appellant was indicted on and convicted of

trafficking in cocaine in violation of R.C. 2925.03(A)(2), supra, a felony of the third

degree, and conspiracy in violation of R.C. 2923.01(A)(2), supra, a felony of the fourth

degree.

{¶ 79} Appellant is alleged to have conspired to sell, and to have then sold, an

amount of cocaine between 10 and 20 grams on July 9, 2014.

{¶ 80} The evidence adduced at trial to support these counts and convictions was

Noel’s testimony regarding another conversation appellant had with the same drug

trafficker of the facts under Count Nos. 2 through 5. Noel confirmed that several calls

23. between them and a third dealer occurred on July 9 through July 11, 2014, and that

appellant agreed to purchase 14 grams of cocaine.

{¶ 81} Appellant called and asked for “a hizzie,” to which the dealer agreed. Noel

testified that “a hizzie” is a half-ounce of cocaine. We find sufficient and competent,

credible evidence appellant agreed to purchase 14 grams of cocaine with another dealer.

{¶ 82} Further, we find that the dealer then immediately called another dealer to

fill the order, there looking to purchase for distribution the drugs appellant requested, and

that subsequently appellant and the dealer agreed for him to hold onto the purchased

drugs. We find this is evidence of a substantial overt step in furtherance of the

agreement.

{¶ 83} We also find the record supports that on July 11, 2014, appellant called the

dealer back and requested “another half.” These are ultimately facts related to Count

Nos. 8 and 9, however, we note that the request for an additional 14 grams, coupled with

the overwhelming evidence of sales made by appellant, provides circumstantial evidence

appellant purchased and distributed the first 14 grams he purchased.

{¶ 84} Accordingly, and based on our review of the entire record, we find

sufficient and competent, credible evidence supports the verdicts under Count Nos. 6 and

7.

24. Count Nos. 8 and 9

{¶ 85} In Count Nos. 8 and 9, appellant was indicted on and convicted of

trafficking in cocaine in violation of R.C. 2925.03(A)(1), a felony of the third degree, and

conspiracy in violation of R.C. 2923.01(A)(2), supra, a felony of the fourth degree.

{¶ 86} R.C. 2925.03(A)(1) provides: “(A) No person shall knowingly * * *

(1) Sell or offer to sell a controlled substance or a controlled substance analog[.]”

{¶ 87} In the indictment, and as written verbatim in the bill of particulars, it is

alleged that on July 11, 2014, “Defendant and Hayward Jones arranged a drug transaction

in which Travis Tucker delivered the drugs to Jones.”

{¶ 88} Although we find the record supports appellant indeed requested “another

hizzie,” to which the dealer responded by phoning and arranging the sale, we find this

evidence only satisfies the elements for conspiracy under R.C. 2923.01(A)(2), not

trafficking under R.C. 2925.03(A)(1). We do not find sufficient or competent evidence

in the record to support that appellant sold or offered to sell cocaine to Travis Tucker.

Thus, there is competent evidence to support Count No. 9, but not Count No. 8.

Count No. 1

{¶ 89} The last offense we address is the pattern of corrupt activity in violation of

R.C. 2923.32(A), a felony of the first degree.

{¶ 90} R.C. 2923.32(A)(1) states: “No person employed by, or associated with,

any enterprise shall conduct or participate in, directly or indirectly, the affairs of an

enterprise through a pattern of corrupt activity.” See State v. Reyes, 6th Dist. Wood No.

25. WD-03-059,

. In the statute, “‘enterprise’ includes any individual

* * * organization, association, or group of persons associated in fact although not a legal

entity.” Id.; R.C. 2923.31(C). The term includes “illicit as well as licit enterprises.”

“Pattern of corrupt activity” means two or more incidents of corrupt activity, whether or

not there has been a prior conviction, which are related to affairs of the enterprise, are not

isolated, and are not so closely related that they constitute a single event. Id.; R.C.

2923.31(E).

{¶ 91} The indictment and bill of particulars set out that appellant, between

June 18, 2014, and July 30, 2014, committed two or more corrupt activities in association

with an enterprise. The alleged “enterprises,”

were or consisted of the dealers to and

from whom appellant sold and purchased drugs for profit.

{¶ 92} Based on confirmation appellant committed at least two applicable crimes

related to affairs of the enterprise(s), we find sufficient, competent and credible evidence

supports the verdict and conviction of Count No. 1.

{¶ 93} In sum we find the verdicts and convictions in Count Nos. 1, 4, 5, 6, 7, and

9, of case No. 15CR942, were amply supported in the record with sufficient, competent

and credible evidence, and that Count Nos. 2, 3, and 8 were not supported as such.

26. C. Case No. 15CR1040

{¶ 94} In case No. 15CR1040, appellant was convicted of 48 separate offenses.

Count Nos. 10 through 23

{¶ 95} The first offenses we address are Count Nos. 10 through 23, as presented in

the March 8, 2018 sentencing entry. Appellant was indicted on and convicted of

trafficking in cocaine in violation of R.C. 2925.03(A)(1), felonies of the fifth degree.

{¶ 96} R.C. 2925.03(A)(1) provides: “(A) No person shall knowingly * * *

(1) Sell or offer to sell a controlled substance or a controlled substance analog.”

{¶ 97} In the indictment and bill of particulars it is alleged that appellant sold less

than five grams of cocaine to the same individual on 14 occasions between August 26,

2014, and October 8, 2014.

{¶ 98} For Count No. 10, appellant is alleged to have sold cocaine to the

individual on August 26, 2014, at 5:08 p.m. Noel testified about how, and a phone

conversation was played in which, appellant negotiated the sale of a “nice teener.” Noel

specified “teener” means approximately 1.75 grams of cocaine. Review of the calls and

call log indicates appellant received a text from the individual the next day, on August

27, 2014, in which the individual stated, “[I] never bitch about stuff, but that was a small

teener.”

{¶ 99} R.C. 2925.03(C)(4)(a) states:

(4) If the drug involved in the violation is cocaine or a compound,

mixture, preparation, or substance containing cocaine, whoever violates

27. division (A) of this section is guilty of trafficking in cocaine. The penalty

for the offense shall be determined as follows: * * * (a) Except as

otherwise provided in division (C)(4)(b), (c), (d), (e), (f), or (g) of this

section, trafficking in cocaine is a felony of the fifth degree, and division

(B) of section 2929.13 of the Revised Code applies in determining whether

to impose a prison term on the offender[.]

{¶ 100} Based on our review of the record, we find sufficient and competent,

credible evidence supports that appellant sold 1.75 grams of cocaine as alleged in Count

No. 10.

{¶ 101} For Count Nos. 11 and 12, appellant is alleged to have sold cocaine to the

individual on September 11, 2014. Specifically, the individual called and wanted “more”

(also referenced a “fifty” or $50 worth) and, after numerous calls/texts back and forth, at

6:09 p.m., a phone conversation confirmed appellant saw and met the individual.

Surveillance by Officer Brendan Gillen also confirmed appellant met with the individual

that day.

{¶ 102} Consequently, we find sufficient and competent, credible evidence to

support the verdict and conviction in Count No. 11. Nevertheless we fail to find

sufficient evidence in the record to support Count No. 12, as no evidence was presented

to show appellant sold or offered cocaine to the individual on more than one occasion on

September 11, 2014.

28. {¶ 103} For Count Nos. 13 and 14, appellant is alleged to have sold cocaine to the

individual on September 12, 2014, at 11:43 a.m. The individual called and wanted to

“pick up something” from appellant, to which appellant agreed. The amount requested,

stated as “a four,” was never clarified in the record to be an exact amount. However,

Officer Noel did testify that informants and drug users/traffickers often spoke in code to

hide their intent, and that in this case numerical references inevitably were references to

amounts of cocaine.

{¶ 104} The record reveals that eventually the two agreed to meet at Anthony’s

Bar. Surveillance and testimony from Officers Kip Newton and Scott Wyckhouse

confirmed appellant and the individual’s cars were in Anthony’s parking lot at that time.

{¶ 105} Further, we find that the same individual called appellant back at 5:15

p.m., on September 12, 2014, and stated that he wanted “another good four.” Appellant

agreed and asked the individual to meet at Anthony’s Bar again. Subsequently, the

record reveals the individual called appellant back the next morning and complained

about the “shit from last night.” We find circumstantial evidence that appellant met with

the individual both in the afternoon, and at night, on September 12, 2014. Consequently,

sufficient and competent, credible evidence supports the verdicts and convictions of

Count Nos. 13 and 14.

{¶ 106} For Count No. 15, appellant is alleged to have sold cocaine to the

individual on September 13, 2014. The record reflects they arranged to meet at

29. Anthony’s for a “thirty,” and that surveillance confirmed they met at 5:01 p.m. We find

sufficient and competent, credible evidence to support the verdict and conviction.

{¶ 107} For Count No. 16, appellant is alleged to have sold cocaine on

September 16, 2014. The individual called appellant and they agreed to meet at

Anthony’s Bar, for a “twenty-five.” Ten minutes later the individual called appellant and

let him know he was outside. Officer Steve Cousino testified he surveilled Anthony’s

Bar parking lot that day and could confirm the two met. We find sufficient and

competent, credible evidence to support the verdict and conviction of Count No. 16.

{¶ 108} For Count No. 17, appellant is alleged to have sold cocaine on

September 17, 2014. At 5:38 p.m., the individual called and asked appellant for “another

two.” They arranged to meet at Anthony’s Bar, and after the meeting the individual was

pulled over and apprehended by Office George Dorsey, who testified he followed and

arrested the individual about three streets from Anthony’s Bar. Dorsey was informed by

other officers that the drug deal had just occurred prior to the pursuit and traffic stop and,

as reflected in the record with chemical testing, the arranged traffic stop confirmed the

individual had .1 and .26 of a gram of cocaine in the car. Appellant received a call from

the individual after the arrest to inform him that he was “busted by the cops.” We find

sufficient and competent, credible evidence supports the verdict and conviction of Count

No. 17.

{¶ 109} For Count No. 18, appellant is alleged to have sold cocaine on

September 22, 2014. At 2:55 p.m., the individual called and asked appellant if he had got

30. “anything,” to which appellant responded in the affirmative and said he would call back

in an hour. At 4:13 p.m., they discussed meeting at Anthony’s “in a minute,” and the

order was for “two.” Officer Lewton testified he surveilled the parking lot and could

confirm the two met. We find sufficient and competent, credible evidence supports the

verdict and conviction.

{¶ 110} For Count Nos. 19 and 20, appellant is alleged to have sold cocaine twice

on September 28, 2014. At 1:09 p.m., the individual called and asked appellant if he

would be around “in about an hour,” to which appellant responded in the affirmative.

The individual ordered “a three,” and stated that “this time” he had the cash. At 2:02

p.m., appellant was called and he confirmed he would see the individual in a minute.

Four minutes later the individual called appellant and was directed to “come to the alley

right by Dominoes, across the street.” We find sufficient and competent, credible

evidence supports the verdict and conviction of Count No. 19.

{¶ 111} The individual again began to call appellant around 7:27 p.m., on

September 28, 2014, but did not get an answer until 10:02 p.m. During that conversation

the individual ordered “a four.” Appellant responded “alright, I’m on my way from

Clyde.” They agreed to meet when appellant returned. At 10:34 p.m., they spoke and

appellant confirmed his location and that he was in view of the individual. We find

sufficient and competent, credible evidence supports the verdict and conviction of Count

No. 20.

31. {¶ 112} For Count Nos. 21 and 22, appellant is alleged to have sold cocaine twice

on September 30, 2014. At 12:53 p.m., the individual called appellant and they arranged

to meet “down by Anthony’s.” Five minutes later appellant confirmed he would be by

the tracks, and the individual stated that he wanted “two.” Officer Wyckhouse testified

he saw the individual drive toward the tracks around 1:00 p.m. that day, and a 1:05 p.m.

call confirmed the individual saw appellant and that they met. We find sufficient and

competent, credible evidence supports the verdict and conviction of Count No. 21.

{¶ 113} The call log further shows the individual called again around 3:18 p.m.,

and that he asked appellant for “another one of them.” Appellant discussed being

available in “about 30 minutes,” and a 5:04 p.m. conversation reveals they agreed to meet

at “the same spot” “at the tracks.” We find sufficient and competent, credible evidence

supports the verdict and conviction of Count No. 22.

{¶ 114} For Count No. 23, appellant is alleged to have sold cocaine on October 8,

2014. The individual called to arrange a meeting with appellant and, at 10:40 a.m., they

agreed to meet at Anthony’s Bar. Appellant stated the individual was to call before

arriving and, at 10:47 a.m., the individual did so and appellant confirmed he was walking

to meet “down by Anthony’s.” Officer Lewton confirmed he saw them meet. We find

sufficient and competent, credible evidence supports the verdict and conviction of Count

No. 23.

32. {¶ 115} In sum, and with the exception of Count No. 12, we hold the verdicts and

convictions of Count Nos. 10 through 23 were supported by sufficient and competent,

credible evidence.

Count Nos. 24 and 25

{¶ 116} In Count Nos. 24 and 25, appellant was indicted on and convicted of

trafficking in cocaine in violation of R.C. 2925.03(A)(1), supra, felonies of the first

degree.

{¶ 117} R.C. 2925.03(C)(4)(f) specifies:

(4) If the drug involved in the violation is cocaine or a compound,

mixture, preparation, or substance containing cocaine, whoever violates

division (A) of this section is guilty of trafficking in cocaine. The penalty

for the offense shall be determined as follows: * * * (f) If the amount of

the drug involved equals or exceeds twenty-seven grams but is less than

one hundred grams of cocaine and regardless of whether the offense was

committed in the vicinity of a school or in the vicinity of a juvenile,

trafficking in cocaine is a felony of the first degree, and the court shall

impose as a mandatory prison term one of the prison terms prescribed for a

felony of the first degree.

{¶ 118} Appellant allegedly sold an individual between 27 and 100 grams of

cocaine on two separate occasions. More specifically, he allegedly sold 28 grams and 84

grams on September 9 and/or 10, 2014.

33. {¶ 119} The evidence adduced to support the charges and convictions were officer

testimony and phone logs/recordings. Specifically, the record reveals appellant, on

September 9, 2014, at 9:05 a.m., told the individual that he had “like three of them,” and

that “they” were “like 14 though.” Officer Noel testified that based on his experience and

expertise that appellant and the individual were speaking in code, and that the discussion

was about the price for and quality of an ounce of cocaine (28 grams priced at $1,400).

We find sufficient and competent, credible evidence appellant offered to sell 28 grams of

cocaine.

{¶ 120} In that same conversation the individual stated that he would be calling

appellant back “around five o’clock.” Appellant agreed that, that time worked for him

and, at 5:15 p.m., the individual called and stated he was coming over. At 7:07 p.m.,

another discussion indicated appellant was “already there,” and that the individual would

be there. Officer Gillen testified to seeing the individual arrive at and leave appellant’s

home. We find sufficient and competent, credible evidence appellant sold the 28 grams

of cocaine, which supports the verdict and conviction under Count No. 24.

{¶ 121} Additionally, the record reflects that at 7:32 p.m., that same day, the

individual called appellant back and asked him if “the shit [was] coming back good and

everything?” Appellant responded in the affirmative, and immediately the individual said

“yeah, that shit looks a little better.” They then discussed whether appellant would be

able to do “another one” tomorrow. Appellant indicated that another one was possible

and, at 1:06 p.m., on September 10, 2014, they arranged a meeting. At 8:35 p.m.,

34. appellant confirmed they would meet at the “same place.” Although there is no evidence

appellant offered to sell or sold 84 grams of cocaine, we do find sufficient and competent,

credible evidence supports the verdict and conviction of Count No. 25, because the

record demonstrates appellant offered to sell another ounce of cocaine to the individual.

Count Nos. 26 and 27

{¶ 122} In Count Nos. 26 and 27, appellant was indicted on and convicted of

trafficking in cocaine in violation of R.C. 2925.03(A)(1), supra, felonies of the third

degree.

{¶ 123} R.C. 2925.03(C)(4)(d), in pertinent part, states:

(4) If the drug involved in the violation is cocaine or a compound,

mixture, preparation, or substance containing cocaine, whoever violates

division (A) of this section is guilty of trafficking in cocaine. The penalty

for the offense shall be determined as follows: * * * (d) Except as

otherwise provided in this division, if the amount of the drug involved

equals or exceeds ten grams but is less than twenty grams of cocaine,

trafficking in cocaine is a felony of the third degree, and, except as

otherwise provided in this division, there is a presumption for a prison term

for the offense.

{¶ 124} In the indictment and bill of particulars it is alleged that appellant sold 14

grams of cocaine on both September 12 and 14, 2014.

35. {¶ 125} The phone records presented at trial demonstrate that on September 12,

2014, at 5:08 p.m., the individual called appellant and stated that he had “got a lick for a

half right now.” They discussed whether the product was “chunk,” and the individual

said he would pay “$750 right now and $650 tomorrow,” in the event appellant would

give him a “zip.” Appellant stated he would need an hour to meet and, at 8:15 p.m., they

arranged to meet at “Casa Fiesta.” The order was clarified to be for “a half,” and at 8:51

p.m., the individual called to state he was outside, to which appellant stated he would

come outside. Noel testified a half meant 14 grams of cocaine, a “zip” meant a full

ounce, and “chunk” meant the product was in solid, bricked form. We find sufficient and

competent, credible evidence supports the verdict and conviction of Count No. 26.

{¶ 126} The individual again called on September 14, 2014, at 5:24 p.m. They

discussed whether appellant was “good for another one around?” Appellant stated that

he was indeed good for another, and he clarified on whether the individual meant a “half”

or “whole one.” The individual clarified he simply wanted another half (14 grams), and

that they could meet at the same location as last time, Casa Fiesta. We find sufficient and

competent, credible evidence supports the verdict and conviction of Count No. 27.

Count Nos. 28 and 29

{¶ 127} In Count Nos. 28 and 29, appellant was indicted on and convicted of

trafficking in cocaine in violation of R.C. 2925.03(A)(1), supra, felonies of the fifth

degree.

36. {¶ 128} Appellant allegedly sold or offered to sell less than five grams of cocaine

twice on September 17, 2014. At 11:44 a.m. that day, an individual called appellant and

stated that she needed a “seventy.” They discussed meeting at a Speedway gas station

and, at 11:56 a.m., appellant called to confirm the individual’s location. Moreover, and

later that same day, at 3:46 p.m., the individual called back and ordered “another dollar.”

At 3:55 p.m., a phone conversation revealed that the individual was in a car that was seen

by appellant because he asked “that was you?” after the individual stated appellant had

just passed her in his car. The individual replied and immediately confirmed the meeting

location.

{¶ 129} Additionally, there was officer testimony in the record to support that,

after this second meeting between appellant and the individual, the individual was pulled

over and arrested by police and drugs and a crack pipe were found in the vehicle. This

arrest confirmed the identity of the individual, and considering there were two meetings

arranged and that circumstantial evidence reasonably shows appellant discussed, offered

and sold drugs to the individual on those occasions, we find sufficient and competent,

credible evidence supports the verdicts and convictions of Count Nos. 28 and 29.

Count No. 30

{¶ 130} In Count No. 30, appellant was indicted on and convicted of trafficking in

cocaine in violation of R.C. 2925.03(A)(1), supra, a felony of the fifth degree.

{¶ 131} Appellant allegedly offered to sell an unspecified amount of cocaine to his

brother on August 17, 2014.

37. {¶ 132} Phone records reflect that at 7:13 p.m., the brother called and asked

appellant “how much work” he had. Appellant explained he “probably got like a quarter

left,” to which his brother responded by expressing that he needed “a ball.” Noel testified

that “a ball” is code language for an eighth of an ounce of cocaine, which he specified is

roughly 2.5 to 3.5 grams. Thus, we find sufficient and competent, credible evidence to

support the verdict and conviction of Count No. 30.

Count No. 31

{¶ 133} In Count No. 31, appellant was indicted on and convicted of trafficking in

cocaine in violation of R.C. 2925.03(A)(1), supra, a felony of the fifth degree.

{¶ 134} In the indictment and bill of particulars it is alleged that appellant offered

to sell an unspecified amount of cocaine to his brother on August 27, 2014.

{¶ 135} This charge stems from a conversation in which appellant directed another

individual to purchase cocaine from his brother. The record does not reflect that

appellant sold or offered to sell any cocaine but, rather, that he forwarded a customer to

his brother. We cannot say appellant personally offered or sold cocaine in this instance.

Accordingly, we do not find sufficient and competent, credible evidence to support Count

No. 31.

Count No. 32

{¶ 136} In Count No. 32, appellant was indicted on and convicted of trafficking in

cocaine in violation of R.C. 2925.03(A)(1), supra, a felony of the third degree.

38. {¶ 137} In the indictment and bill of particulars it is alleged that appellant sold his

brother more than or equal to 10 grams, but less than 20 grams, of cocaine on

September 3, 2014.

{¶ 138} At 11:35 p.m., appellant’s brother called him and asked “how much work

you got?” Appellant replied that he had none, and the brother stated he would check

back the next day. The next day he checked back, and appellant confirmed that he could

sell “a half.” Noel’s testimony confirmed that this was code for 14 grams of cocaine.

We find sufficient and competent, credible evidence supports the verdict and conviction

of Count No. 32.

Count Nos. 33 and 35

{¶ 139} In Count Nos. 33 and 35, appellant was indicted on and convicted of

trafficking in cocaine in violation of R.C. 2925.03(A)(1), supra, felonies of the fourth

degree.2

{¶ 140} R.C. 2925.03(C)(4)(d), in pertinent part, states:

(4) If the drug involved in the violation is cocaine or a compound,

mixture, preparation, or substance containing cocaine, whoever violates

division (A) of this section is guilty of trafficking in cocaine. The penalty

for the offense shall be determined as follows: * * * (c) Except as

otherwise provided in this division, if the amount of the drug involved

2 The trial court dismissed Count Nos. 34 and 59 with prejudice in its March 8, 2018 entry.

39. equals or exceeds five grams but is less than ten grams of cocaine,

trafficking in cocaine is a felony of the fourth degree, and division (B) of

section 2929.13 of the Revised Code applies in determining whether to

impose a prison term for the offense.

{¶ 141} In the indictment and bill of particulars it is alleged that appellant sold or

offered to sell his brother seven grams of cocaine twice on September 8 and 16, 2014.

{¶ 142} At 6:04 p.m., on September 8, 2014, appellant’s brother called and asked

appellant if he had “work.” Appellant replied in the affirmative, and the brother stated he

needed a “quart.” They arranged to meet at appellant’s home but, at 9:48 p.m., the

brother called and complained that appellant forgot. Appellant responded, stating he was

going to “put it on the scale real quick.” At 10:10 p.m., the brother called stating he was

at the door. We find sufficient and competent, credible evidence supports Count No. 33.

{¶ 143} Further, on September 16, 2014, at 1:07 p.m., the brother called appellant

and asked if he was “gonna go to work?” Appellant responded that he only had “a

quarter right now.” The brother declined. Nevertheless, we find sufficient and

competent, credible evidence supports Count No. 35, because appellant offered to sell

seven grams of cocaine.

Count No. 36

{¶ 144} In Count No. 36, appellant was indicted on and convicted of trafficking in

cocaine in violation of R.C. 2925.03(A)(1), supra, a felony of the fifth degree.

40. {¶ 145} Appellant allegedly offered to sell or sold less than 5 grams of cocaine on

October 2, 2014. At 11:02 a.m., an individual called and asked appellant if he had

“something nice for $30?” Appellant responded in the affirmative and agreed to deliver

the order to the individual’s home. We find sufficient and competent, credible evidence

supports the verdict and conviction of Count No. 36.

Count No. 37

{¶ 146} In Count No. 37, appellant was indicted on and convicted of trafficking in

cocaine in violation of R.C. 2925.03(A)(1), supra, a felony of the fifth degree.

{¶ 147} According to the trial court judgment, appellant was alleged to have sold

or offered to sell less than 5 grams of cocaine on September 6, 2014. The facts presented

to support this verdict and conviction were that appellant called a dealer and requested to

purchase a “quaker,” which expert testimony supported is a quarter-ounce (or seven

grams) of cocaine. No evidence in the record reveals appellant sold or offered to sell any

cocaine in this instance, and we find nothing to support Count No. 37.

Count No. 38

{¶ 148} In Count No. 38, appellant was indicted on and convicted of conspiracy in

violation of R.C. 2923.01(A)(2), a felony of the fourth degree.

{¶ 149} R.C. 2923.01(A)(2) provides:

(A) No person, with purpose to commit or to promote or facilitate

the commission of * * * a felony drug trafficking * * * shall * * * (2) Agree

41. with another person or persons that one or more of them will engage in

conduct that facilitates the commission of any of the specified offenses.

{¶ 150} In the indictment and bill of particulars it is alleged that appellant called

another dealer and ordered a half-ounce of cocaine on September 16, 2014. Specifically,

at 12:53 p.m., appellant called the dealer and asked “what’s up with you?” The dealer

responded, stating “Shit, ah, shit ah, I * * * I got probably ah like a half of one like that

ah available I can get to right now.” Appellant said “let me get it,” and they agreed the

dealer would call appellant back in 15 minutes. At 1:43 p.m., they agreed to meet where

they met “last time.” We find this is evidence of a substantial overt step in furtherance of

their agreement and, thus, the verdict and conviction of Count No. 38 is supported in the

record.

Count Nos. 39 through 54

{¶ 151} In Count Nos. 39 through 54, as presented in the March 8, 2018

sentencing entry, appellant was indicted on and convicted of trafficking in cocaine in

violation of R.C. 2925.03(A)(1), supra, felonies of the fifth degree.

{¶ 152} In the indictment and bill of particulars it is alleged that appellant sold less

than five grams of cocaine to different individuals on 16 occasions between August 15

and October 2, 2014.

{¶ 153} For Count No. 39, appellant is alleged to have sold or offered to sell less

than five grams of cocaine to an individual on September 15, 2014. At 1:17 p.m., the

individual texted appellant, asking “you got same?” Appellant texted back “yeah.”

42. Around 3:30 p.m., they exchanged texts and agreed to meet at Anthony’s Bar. Noel

testified that he saw the individual approaching appellant’s vehicle in Anthony’s parking

lot. We find sufficient and competent, credible evidence supports the verdict and

conviction of Count No. 39.

{¶ 154} For Count No. 40, appellant is alleged to have offered to sell less than five

grams of cocaine to the same individual of Count No. 39, that same day. The evidence

presented was phone records which revealed the individual stated, in a text issued to

appellant, “$50 for just one, right?” Appellant responded, “yeah.” We thus find

sufficient and competent, credible evidence supports the verdict and conviction of Count

No. 40.

{¶ 155} For Count Nos. 41 and 42, appellant is alleged to have sold or offered to

sell less than five grams of cocaine twice on August 15, 2014. At 3:40 p.m., an

individual called appellant and asked if appellant could do “a 40?” Appellant responded

in the affirmative, and they agreed to meet at Anthony’s Bar. At 3:48 p.m., another

conversation was held in which they again discussed the amount ordered (“$40”), and

appellant confirmed he was waiting. Furthermore, later that same day, at 6:27 p.m., the

individual called back and asked appellant if he could “do that again?” Appellant

responded in the affirmative and arranged another meeting at the “same spot.” We find

sufficient and competent, credible evidence supports the verdicts and convictions of

Count Nos. 41 and 42.

43. {¶ 156} For Count Nos. 43 and 44, appellant is alleged to have sold or offered to

sell less than five grams of cocaine twice on September 5, 2014. At 7:20 p.m., an

individual called appellant and asked if he could “do a 50?” Appellant responded in the

affirmative, and they agreed to meet “by the tracks.” Moreover, later that day the

individual called back and asked if appellant could “do that again?” Appellant responded

in the affirmative, and they agreed to meet at Anthony’s this time. Officer Mark Apple

surveilled Anthony’s parking lot that day and confirmed the two met. We find sufficient

and competent, credible evidence supports the verdicts and convictions of Count Nos. 43

and 44.

{¶ 157} For Count Nos. 45, 46, and 47, appellant is alleged to have sold or offered

to sell to the same individual less than five grams of cocaine three separate times on

September 12, 2014. At 8:41 a.m., the individual called and asked appellant if he wanted

to “hook up” in 10 to 15 minutes. Appellant approved and they agreed to meet at “the

office.” At 8:50 a.m., the individual called back and confirmed he was bringing what he

owed appellant. Four minutes later appellant confirmed he was right around the corner.

No order for drugs was placed by the individual and no other evidence was offered to

support this alleged transaction. Because this conversation only regarded appellant

getting paid back, we cannot say the verdict and conviction of Count No. 45 was

supported in the record.

{¶ 158} Later that day at 12:27 p.m., the same individual called and ordered a

“35.” Appellant agreed to meet by Anthony’s, but later changed the meeting location. At

44. 12:55 p.m., they discuss being near one another and, three minutes later, confirmed a

meeting location “around back” of a gas station. Officer Lewton testified to seeing the

two meet. We find substantial competent, credible evidence supports Count No. 46.

{¶ 159} The individual called appellant back that day at 4:44 p.m. He asked

appellant if appellant could “spot * * * a fifty?” Appellant agreed, and they arranged to

meet at Anthony’s. Further, the record reflects that six days later the individual called

back for more and mentioned that he has the $50 he owed appellant. We thus find

sufficient and competent, credible evidence supports Count No. 47.

{¶ 160} For Count Nos. 48, 49, and 50, appellant is alleged to have sold or offered

to sell the individual from Count Nos. 45 through 47, less than five grams of cocaine

three times on September 18, 2014. At 11:09 a.m., the individual called appellant and

mentioned that he wanted “a little piece.” He confirmed that he had $25 for appellant in

addition to the $50 he owed him. Appellant agreed he could fill the order. Then, at 3:04

p.m., the individual called back and asked appellant if he could do a “50?” Appellant

responded in the affirmative, and they arranged to meet at Speedway. At 3:12 p.m.,

appellant changed the meeting place, and the individual confirmed he would be there in a

second. The individual called appellant at 5:57 p.m., asking if appellant could “do

anything” for “15 bucks.” Appellant stated he could, and they arranged to meet “by

Daywood.” At 6:06 p.m., the individual called and was directed to a location where

appellant confirmed he could be seen “next to the pool.” We find sufficient and

competent, credible evidence supports Count Nos. 48, 49 and 50.

45. {¶ 161} For Count Nos. 51 through 54, appellant is alleged to have sold or offered

to sell the individual from Count Nos. 45 through 50, less than five grams of cocaine four

times on October 2, 2014.

{¶ 162} At 10:52 a.m., the individual called appellant and asked if appellant would

be available to “settle up” once he got into town and got to the bank. Appellant

confirmed his availability, and the individual then stated that he wanted a “40.” They

agreed to meet at Anthony’s Bar, and at 11:12 a.m., both confirmed they were almost

there. Then, at 1:15 p.m., the individual again called appellant and asked if appellant

could “do a 40?” Appellant replied in the affirmative and they agreed to meet “by

Copper.” Officer Lewton testified that he saw them meet at Copper Penny that day.

{¶ 163} Then again, at 3:14 p.m., the individual called and asked if appellant

could “do [him] a fat 20?” Appellant answered in the affirmative, and they arranged to

meet “over by Allen.” As the individual was waiting, appellant called and asked him if

he was around Allen. The individual stated he was on Allen, but that he left the area in

which he was because police were around. Appellant then directed the individual to stay

on Allen because he was “about a minute away.” Lastly, at 4:45 p.m. that same day, the

individual called and asked appellant if appellant “could spot [him] a 50?” Appellant

stated he could, and then said to give him 30 minutes. Although we find no evidence this

transaction occurred, there is evidence to support that appellant offered to sell the

cocaine. We thus find sufficient and competent, credible evidence to support Count Nos.

51 through 54.

46. Count No. 55

{¶ 164} In Count No. 55, appellant was indicted on and convicted of conspiracy in

violation of R.C. 2923.01(A)(2), supra, a felony of the second degree.

{¶ 165} In the indictment and bill of particulars it is alleged that appellant

conspired to purchase 28 grams of cocaine from another dealer on September 12, 2014.

{¶ 166} At 7:45 p.m., on September 12, 2014, appellant called the dealer and

asked “what a zipper hit for?” Appellant responded, stating “One-Four.” As noted

above, Officer Noel testified that using the word “zip” means an ounce (28 grams) of

cocaine, and that street value of an ounce is roughly $1,400, which is what the dealer

meant by “One-Four.” We find sufficient and credible, competent evidence to show an

agreement happened.

{¶ 167} Nevertheless, we fail to find additional evidence to show that a substantial

overt step in furtherance of this conspiracy occurred. See R.C. 2923.01(B), supra. Thus,

we cannot say that there is sufficient or competent, credible evidence to support Count

No. 55.

Count Nos. 56 through 58

{¶ 168} In Count Nos. 56 through 58, as presented in the March 8, 2018

sentencing entry, appellant was indicted on and convicted of three counts of conspiracy in

violation of R.C. 2923.01(A)(2), felonies of the fourth degree.

47. {¶ 169} In the indictment and bill of particulars it is alleged that appellant

conspired to purchase and trafficking 14 grams of cocaine on three separate occasions

from another dealer on September 17, 19, and 27, 2014.

{¶ 170} On September 17, 2014, at 5:12 p.m., appellant called the dealer from

Count No. 55, and appellant requested a “half on the fizzle.” The dealer agreed and

stated he would call appellant back in “about a half-hour.” At 8:03 p.m., appellant called

the dealer and asked if he had forgotten about appellant. They then agreed to meet

“down on Elliot.”

{¶ 171} No other phone conversation occurred between them until 1:42 p.m., on

September 18, 2014, at which time appellant called and said he was having problems

with the product. Specifically, appellant expressed that “it” kept “staying at 11” and not

“jumping to the 14.” Noel explained what the conversation was code for, as follows:

[PROSECUTOR]: Do you recognize these voices?

[NOEL]: Yes, [appellant] and [the individual].

[PROSECUTOR]: Okay. Someone’s having some issues; is that

correct?

[NOEL]: Yes.

[PROSECUTOR]: Who is-- * * * Who’s complaining?

[NOEL]: [Appellant] is having problems cooking his cocaine into

crack, and [the dealer] says that he will come back or come by his house to

48. see if he can fix it, so based on whatever [appellant] is doing with his

mixture, it’s not coming out. It’s not turning into crack.

{¶ 172} Because the record shows appellant took the step of cooking the drugs to

prepare them for sale, we find sufficient and competent, credible evidence supports Count

No. 56.

{¶ 173} On September 19, 2014, at 12:57 p.m., appellant called the dealer again

and asked for “another one of them.” They arranged to meet “at the house on Linden.”

At 1:07 p.m., the dealer sent a text message asking appellant if he was on his way, and

appellant responded “yea,” at 1:08 p.m. Because the record reveals appellant took the

step of meeting with the dealer, we find sufficient and competent, credible evidence

supports Count No. 57.

{¶ 174} Lastly, on September 27, 2014, at 10:30 a.m., appellant called the dealer

and asked for “a whole one.” The dealer stated that he did not have that much, and that

he only had a half. Appellant asked if he wanted $700 for it, or if he could sell it for

$650. They agreed to meet at the dealer’s home. At 10:38 p.m., the dealer called

appellant and appellant confirmed he was “about to pull up right now.” Because the

record reveals appellant took the step of meeting with the dealer, we find sufficient and

competent, credible evidence supports Count No. 58.

{¶ 175} In sum, appellant’s third and fourth assignments of error are well-taken in

part, and not well-taken in part. More specifically, all verdicts and convictions in Count

Nos. 10 through 58, of case No. 15CR1040, were amply supported in the record with

49. sufficient, competent and credible evidence, with the exception of Count Nos. 12, 31, 37,

45 and 55, which were not supported in the record as such.

Assignment of Error No. V

{¶ 176} In the fifth assigned error, appellant argues the trial court committed error

by grouping the offenses in the verdict forms. Appellee asserts that the court did not

improperly present the verdict forms, and that appellant’s reliance on Smith is misplaced.

{¶ 177} Appellant argues Smith stands for the proposition that grouping separate

counts on a verdict form results in reversible error. See State v. Smith, 8th Dist.

Cuyahoga No. 98280,

.

{¶ 178} In Smith, Smith challenged the trial court’s use of a single verdict form

from which he was convicted of two separate counts of aggravated burglary. Id. at ¶ 58.

The Smith court found the verdict form “essentially merged two separate counts into a

single verdict form, forcing the jury to make a single determination for two separate

counts.” (Quotations omitted.) Id.

{¶ 179} Appellant specifically argues that Smith is analogous to his case because

here the jury did not consider different facts and counts separately.

{¶ 180} Appellee distinguishes the case here from Smith by asserting that the jury

in Smith presented the court with a question which showed and reflected that they found

the defendant not guilty of one of the counts on the verdict form. Appellee notes there is

no such indication in the record here. We agree and find no such evidence in the record.

Thus, appellant’s fifth assignment of error is not well-taken.

50. Assignment of Error No. VI

{¶ 181} In the sixth and last assigned error, appellant argues the trial court erred in

sentencing appellant to the maximum and mandatory time. Appellee contends the court

did not err as such, and that appellant relies on bad law.

{¶ 182} We review felony sentences under a two-prong approach. R.C.

2953.08(G)(2) provides that an appellate court may increase, reduce, modify, or vacate

and remand a disputed sentence 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; or

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

See State v. Behrendt, 6th Dist. Lucas No. L-15-1135,

; see also State

v. Marcum,

,

,

, ¶ 23.

{¶ 183} A sentence is not contrary to law where the trial court considers the

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

recidivism factors under R.C. 2929.12, and imposes a sentence within the statutory range.

See State v. Craig, 6th Dist. Wood No. WD-14-061,

, ¶ 9.

{¶ 184} Here, appellant received an aggregate 13-year prison sentence, which

consisted of five mandatory 11-year sentences set to run concurrently with one another,

51. three two-year sentences set to run concurrently with one another but consecutively with

the 11-year sentences, and roughly 50 one-year sentences for the remaining convictions

set to run concurrently to all other sentences.

{¶ 185} The 11-year sentences were for felonies of the first degree, the two-year

sentences were for felonies of the second degree, and the remaining one-year sentences

were for various felonies ranging from third to fifth degrees.

{¶ 186} Pursuant to R.C. 2929.14(A)(1), the statutory sentencing range for a first-

degree felony is 3 to 11 years. Additionally, R.C. 2929.14(B)(3) provides:

* * * [I]f the offender commits a violation of section 2925.03 * * *

of the Revised Code and that section classifies the offender as a major drug

offender, * * * if the court imposing sentence upon an offender for a felony

finds that the offender is guilty of corrupt activity with the most serious

offense in the pattern of corrupt activity being a felony of the first degree,

* * * the court shall impose upon the offender for the felony violation a

mandatory prison term of the maximum prison term prescribed for a felony

of the first degree that, subject to divisions (C) to (I) of section 2967.19 of

the Revised Code, cannot be reduced * * *.

{¶ 187} In this case, appellant was sentenced to concurrent prison terms of 11

years for his first-degree felony convictions brought under Count Nos. 1, 3, 4, 24, and 25.

These counts consisted of convictions for engaging in a pattern of corrupt activity and

trafficking in cocaine under R.C. 2925.03. We find the sentence for Count No. 3 was

52. imposed contrary to law because the conviction was not supported in the record with

sufficient and competent, credible evidence. The sentences for Count Nos. 1, 4, 24, and

25, however, fall within the permissible range and are mandated by law.

{¶ 188} Furthermore, because appellant was sentenced to concurrent 11-year

prison terms under Count Nos. 1, 3, 4, 24, and 25, vacating Count No. 3 has no effect on

his aggregate prison term of 13 years. Nevertheless, we vacate the sentence imposed for

Count No. 3, and affirm the sentences imposed for Count Nos. 1, 4, 24, and 25.

{¶ 189} Pursuant to R.C. 2929.14(A)(2), the permissible range for a felony of the

second degree is a prison term of two to eight years.

{¶ 190} Here, appellant was sentenced to concurrent prison terms of two years for

his second-degree felonies, which were all convictions for conspiracy. These convictions

were for Count Nos. 2, 5, and 55, and although these imposed sentences were within the

permissible range, we find the sentences were imposed contrary to law.

{¶ 191} We have found there was not sufficient and competent, credible evidence

to support Count Nos. 2 and 55. Thus, sentences for those counts were issued contrary to

law.

{¶ 192} Additionally, we find the rule of merger as codified in R.C. 2923.01(G)

applies to Count No. 5. We note that because merger was not raised below, we must

proceed with a plain-error analysis.

{¶ 193} For plain error to exist, there must be an obvious deviation from a legal

standard which affects substantial rights or the outcome of trial. See, e.g., State v.

53. Russell, 2d Dist. Montgomery No. 17278,

, *5-9 (Dec. 10,

1999).

{¶ 194} R.C. 2923.01(G) provides: “When a person is convicted of committing or

attempting to commit a specific offense or of complicity in the commission of or attempt

to commit the specific offense, the person shall not be convicted of conspiracy involving

the same offense.”

{¶ 195} Stated otherwise, “R.C. 2923.01(G) merges the conspiracy offense, due to

its inchoate nature, into the substantive offenses which are the object of the conspiracy.”

State v. Marian,

,

(1980). See also State v.

Yarbrough, 3d Dist. Shelby No. 17-97-03,

, *41 (Mar. 31,

1999); State v. Perdue, 5th Dist. Richland No. CA-2565,

,

*5 (Aug. 1, 1988). But see State v. Varner, 6th Dist. Lucas No. L-06-1215, 2007-Ohio-

5306, ¶ 54-66 (finding convictions for two separate offenses is not prohibited by R.C.

2923.01 (G)).

{¶ 196} In this case Count Nos. 4 and 5 regarded the same 56 grams of cocaine.

Count No. 4 was for trafficking the drugs, and Count No. 5 was for the conspiracy

leading up to the purchasing and trafficking of the drugs. We find this count merges into

the substantive offense which was the object of the conspiracy. Thus an obvious

deviation from a legal standard exists. Russell. Moreover, we find that appellant was

sentenced to an additional two years, to run consecutively, as a result of the convictions

for Count Nos. 2, 5, and 55. Consequently, we find the outcome of the proceedings

54. would have been different, and that there exists plain error with regard to the sentences

under those counts.

{¶ 197} Accordingly, we vacate the sentences imposed for Count Nos. 2, 5, and

55, and we note this has an effect of reducing appellant’s total prison term.

{¶ 198} Pursuant to R.C. 2929.14(A)(3)-(5), the permissible range for the third-

degree felonies in this case is 9 to 36 months; for fourth-degree felonies it is 6 to 18

months; and for fifth-degree felonies it is 6 to 12 months.

{¶ 199} Here, appellant was sentenced to one-year prison terms for those

convictions of third, fourth, and fifth-degree felonies. These were convictions brought

under Count Nos. 6-23, 26-54, and 56-58. We find the sentences for Count Nos. 7, 8, 12,

31, 37, and 45, were imposed contrary to law. As stated above, there was not sufficient

and competent, credible evidence to support Count Nos. 8, 12, 31, 37, and 45. Further,

we find under R.C. 2923.01(G), the conviction for Count No. 7 would merge with that

imposed for Count Nos. 6. We therefore vacate those sentences imposed for Count Nos.

7, 8, 12, 31, 37, and 45, but note that vacating these counts has no effect on appellant’s

total stated prison term and that we affirm the remaining, year-long prison sentences

imposed.

{¶ 200} We lastly examine the record to determine if the sentences lawfully

imposed were otherwise contrary to law.

{¶ 201} R.C. 2929.11(A) provides, in relevant part: “The overriding purposes of

felony sentencing are to protect the public from future crime by the offender and others

55. and to punish the offender using the minimum sanctions that the court determines

accomplish those purposes * * *.” In order to comply with R.C. 2929.11, a trial court

must impose a sentence that is “reasonably calculated to achieve the two overriding

purposes of felony sentencing * * * commensurate with and not demeaning to the

seriousness of the offender’s conduct and its impact upon the victim, and consistent with

sentences imposed for similar crimes committed by similar offenders.” See R.C.

2929.11(B).

{¶ 202} In carrying out its obligations to impose a sentence consistent with the

purposes and principles of sentencing, the trial court must weigh the factors indicating

that the offender’s conduct is more serious than conduct normally constituting the offense

under R.C. 2929.12(B) against those factors indicating that the offender’s conduct is less

serious than conduct normally constituting the offense under R.C. 2929.12(C). Further,

the court must weigh the factors contained in R.C. 2929.12(D) indicating the likelihood

that the offender will commit future crimes against the factors contained in R.C.

2929.12(E) indicating that the offender is not likely to commit future crimes.

{¶ 203} We further note that a sentencing court is not required to use any specific

language or make specific findings to demonstrate that it considered the applicable

sentencing criteria. See State v. Arnett,

,

(2000);

State v. Thebeau, 6th Dist. Ottawa No. OT-14-017,

.

{¶ 204} Here, the trial court stated in open court and in its sentencing entry that it

considered the relevant sentencing criteria.

56. {¶ 205} For example, in open court at the December 5, 2016 hearing, the trial

court implied it considered the relevant sentencing criteria when stating, before

sentencing appellant, as follows: “My job is to attempt to protect the public from future

crime and impose an appropriate punishment. You’ve been to prison three times, twice

earlier on drug related activity. You’re back again and the jury has spoken.” The

transcript of the hearing also reveals several statements from the court outlining the

severity of appellant’s conduct and his negative effect on the community.

{¶ 206} The sentencing entry, moreover, details that the trial court considered the

relevant factors. It states:

The Court, having considered the purposes of felony sentencing

pursuant to ORC 2929.11, as well as the seriousness of the crime and

recidivism factors pursuant to ORC 2929.12, specifically, the fact that the

Defendant incurred three previous felony incarcerations and in this trial

suffered five felony one convictions among fifty-nine findings of guilt, the

Court finds the Defendant is not amenable to community control and it is

therefore ordered, adjudged and decreed that the Defendant be, and hereby

is, sentenced to control, care and custody of the Ohio Department of

Rehabilitations and Corrections * * *.

{¶ 207} Further, we find the following journal entry language shows more of the

applicable considerations, as follows: “The court finds that consecutive sentences in this

matter are necessary in order to punish the offender and are not disproportionate to the

57. seriousness of the Defendant’s conduct and the danger that the Defendant poses to the

public.”

{¶ 208} In light of the statements at the hearing, as well as the language contained

in the sentencing entry, we conclude that the trial court complied with its obligations

relating to the necessary sentencing considerations and criteria.

{¶ 209} Accordingly, appellant’s sixth assignment of error is well-taken in part,

and not well-taken in part.

Disposition Summary

Count No. Offense Code Degree Sentence Disposition Section Imposed on Appeal 1 Engaging in R.C. F1 11 Years Affirm Pattern of 2923.32(A) Corrupt Activity Mandatory R.C. 2923.01 Vacate Conviction 2 Conspiracy F2 2 years -Insufficient Credible Evidence Trafficking in R.C. 2925.03 Vacate Conviction 3 F1 11 Years -Insufficient Cocaine Mandatory Credible Evidence

4 Trafficking in R.C. 2925.03 F1 11 Years Affirm Cocaine Mandatory R.C. 2923.01 Vacate Sentence – 5 Conspiracy F2 2 years Merges with Count No. 4 pursuant to R.C. 2923.01(G) 6 Trafficking in R.C. 2925.03 F3 1 year Affirm Cocaine R.C. 2923.01 Vacate Sentence – 7 Conspiracy F4 1 year Merges with Count No. 6 pursuant to R.C. 2923.01(G) Trafficking in R.C. 2925.03 Vacate Conviction 8 F3 1 year -Insufficient Cocaine Credible Evidence

9 Conspiracy R.C. 2923.01 F4 1 year Affirm

10 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

58. 11 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine Trafficking in R.C. 2925.03 Vacate Conviction- 12 F5 1 year Insufficient Cocaine Credible Evidence

13 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

14 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

15 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

16 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

17 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

18 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

19 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

20 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

21 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

22 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

23 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

24 Trafficking in R.C. 2925.03 F1 11 Years Affirm Cocaine Mandatory 25 Trafficking in R.C. 2925.03 F1 11 Years Affirm Cocaine Mandatory 26 Trafficking in R.C. 2925.03 F3 1 Year Affirm Cocaine

27 Trafficking in R.C. 2925.03 F3 1 year Affirm Cocaine

28 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

29 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

30 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

59. Trafficking in R.C. 2925.03 Vacate Conviction 31 F5 1 year -Insufficient Cocaine Credible Evidence

32 Trafficking in R.C. 2925.03 F3 1 year Affirm Cocaine

33 Trafficking in R.C. 2925.03 F4 1 year Affirm Cocaine

35 Trafficking in R.C. 2925.03 F4 1 year Affirm Cocaine

36 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine Trafficking in R.C. 2925.03 Vacate Conviction 37 F5 1 year -Insufficient Cocaine Credible Evidence

38 Conspiracy R.C. 2923.01 F4 1 year Affirm

39 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

40 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

41 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

42 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

43 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

44 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine Trafficking in R.C. 2925.03 Vacate Conviction 45 F5 1 year -Insufficient Cocaine Credible Evidence

46 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

47 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

48 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

49 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

50 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

51 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

60. 52 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

53 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine

54 Trafficking in R.C. 2925.03 F5 1 year Affirm Cocaine R.C. 2923.01 Vacate Conviction 55 Conspiracy F2 2 Years -Insufficient Credible Evidence

56 Conspiracy R.C. 2923.01 F4 1 Year Affirm

57 Conspiracy R.C. 2923.01 F4 1 Year Affirm

58 Conspiracy R.C. 2923.01 F4 1 Year Affirm

Conclusion

{¶ 210} For the foregoing reasons, the March 8, 2018 judgment of the Sandusky

County Court of Common Pleas is reversed and vacated in part, and affirmed in part. We

modify the judgment to reflect that appellant is ordered to serve a total stated prison term

of 11 years, and his convictions and/or sentences for Count Nos. 2, 3, 8, 12, 31, 37, 45,

and 55, are vacated. The sentence imposed for Count No. 5 is vacated and merges with

No. 4, and the sentence imposed for Count No. 7 is vacated and merges with No. 6. The

judgment is otherwise affirmed, consistent with this decision. The parties are ordered to

split the costs of this appeal pursuant to App.R. 24.

Judgment reversed and vacated in part, and affirmed in part.

61. State v. Jones C.A. No. S-18-013

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. CONCUR. _______________________________ JUDGE James D. Jensen, J., DISSENTS.

JENSEN, J., dissenting,

{¶ 211} Contrary to the majority’s conclusion, I would hold that the trial court

erred in depriving appellant of standby counsel during voir dire. Therefore, I find that

this matter should be remanded to the trial court for a new trial, and I must respectfully

dissent.

{¶ 212} In appellant’s first assignment of error, he argues, inter alia, that the trial

court erred in depriving him of his right to standby counsel during voir dire.

62. {¶ 213} The United States Supreme Court has determined that a trial court may

appoint standby counsel to assist a defendant if and when the defendant seeks help, “and

to be available to represent the accused in the event that termination of the defendant’s

self-representation is necessary.” Faretta v. California,

,

,

(1975). Likewise, the Ohio Supreme Court has held that a trial court

may appoint standby counsel to assist a defendant who is acting pro se after a defendant

properly waives the right to counsel. State v. Martin,

, 2004-Ohio-

5471,

. “Standby counsel serves as an important resource for pro se

defendants by assisting them to navigate ‘the basic rules of courtroom protocol’ and to

‘overcome routine obstacles that stand in the way of the defendant’s achievement of his

own clearly indicated goals.’” State v. Newman, 5th Dist. Stark No. 2017CA00219,

, quoting McKaskle v. Wiggins,

,

,

(1984).

{¶ 214} The majority concludes that appellant’s argument is subject to plain-error

review because appellant “never objected to proceeding through [voir dire] with [standby

counsel].” Under its plain-error analysis, the majority rejects appellant’s argument

because appellant has failed to demonstrate that the result of the proceedings would have

been different were he permitted to have standby counsel available during voir dire.

{¶ 215} At the outset, I disagree that appellant failed to object to proceeding

through voir dire without the benefit of standby counsel. Prior to voir dire, appellant

requested the assistance of counsel because he recognized that he was in over his head

63. and needed assistance with presenting his defense. The trial court then rejected

appellant’s request, finding that it had “gone down that road.” The court went on to state

that it had appointed standby counsel, who would be present “after the jury is selected.”

After informing the court that he terminated his prior counsel because he did not feel as

though counsel was zealously advocating for him, appellant stated: “Judge, I’m not

trying to prolong this case or delay it anything. I just need proper counseling, that’s all I

ask for.”

{¶ 216} Later, at the beginning of voir dire, appellant was informed by the trial

court as to the process of voir dire. When asked if he wished to address the jury,

appellant responded: “I don’t even know what to say, so – I don’t know.” The court

provided additional information on peremptory and for-cause challenges, and again asked

appellant if he wished to go through the voir dire process, to which appellant responded:

“Um, no, I don’t – no. I don’t know what – I don’t know – no.” Without conducting any

further inquiry, the court moved on to inquire of the state as to whether it had any for-

cause challenges.

{¶ 217} Because appellant requested counsel prior to the start of voir dire,

implicitly objecting to proceeding pro se, I find that a plain-error analysis is not

appropriate in this case. However, even under a plain-error analysis, I conclude that the

trial court erred in failing to make standby counsel available to appellant during voir dire.

{¶ 218} In State v. Harris, 6th Dist. Erie No. E-02-019,

, we

considered the import of prejudice as it relates to a defendant’s right to counsel during

64. voir dire. There, we held that the absence of counsel during voir dire was inherently

prejudicial to the defendant and amounted to the denial of a fair trial. Id. at ¶ 33. In

reaching this conclusion, we referenced the decision of the United States Supreme Court

in United States v. Cronic,

,

,

(1984), wherein

the court held that “[t]he presumption that counsel’s assistance is essential requires us to

conclude that a trial is unfair if the accused is denied counsel at a critical stage of his

trial.”

. Voir dire is a critical stage of trial. State v. McWhorter, 8th Dist.

Cuyahoga No. 87443,

. In light of this authority, I find that

appellant was not required to demonstrate how he was prejudiced by the trial court’s

refusal to make standby counsel available during voir dire.

{¶ 219} As noted above, the purpose of standby counsel is to assist a defendant if

and when the defendant seeks help. Here, appellant clearly sought such help during voir

dire. Rather than granting appellant’s request, the trial court informed appellant that voir

dire would continue and that he would receive counsel once the jury was selected. In so

doing, I find that the trial court prevented appellant from utilizing his standby counsel for

the purposes set forth above, thereby depriving appellant of his right to counsel. State v.

Hardman, 8th Dist. Cuyahoga No. 102600,

; see also State v.

Robinson, 8th Dist. Cuyahoga 106721,

(concluding that a trial

court errs in prohibiting a defendant from using standby counsel in the manner allowed

under the law, even where the defendant has waived his right to counsel).

65. {¶ 220} Upon consideration of the record in this case, I find that the trial court

deprived appellant of his right to counsel when it refused to provide appellant with

standby counsel at voir dire. Because the majority concludes otherwise, I must dissent.

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

66.