[Cite as State v. Roberts,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2020 CA 0035 AKILI ROBERTS : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2019- CR-0403

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 19, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP MEGAN PATITUCE Richland County Prosecutor AARON SCHWARTZ 32 South Park Street 16855 Industrial Parkway Mansfield, OH 44902 Strongsville,OH 44149 [Cite as State v. Roberts,

.]

Gwin, P.J.

{¶1} Defendant-appellant Akili Roberts [“Roberts”] appeals his convictions and

sentences after a jury trial in the Richland County Court of Common Pleas.

Facts and Procedural History

{¶2} Cuyahoga County Sheriff's Office Deputy Michael Twombly, and his K-9

Officer Ciga were at the Orange Avenue Post Office in Cleveland, Ohio working parcel

drug interdiction by assignment. On February 7, 2019, Ciga alerted to a package. Before

opening the package, Deputy Twombly applied for and received a federal search warrant.

The parcel was photographed, opened, and searched. Inside, wrapped in cellophane,

inside of a freezer bag, was a parcel wrapped up like a present. This parcel contained

over 500 grams of cocaine. The parcel, the wrapping, and the contents were

photographed. The package was closed, resealed, and turned over to the postal

inspectors to prepare for delivery. A location device, a GPS and a transmitter, were

attached to the package so as to alert law enforcement when the package was opened.

{¶3} On the afternoon of February 7, 2019, Sergeant Steve Blust and Detective

Wayne Liggett of the Mansfield Police Department did an initial drive by of the intended

address of the package, 222 Penn Avenue in Mansfield, Ohio for surveillance purposes.

Roberts’s vehicle, identified by its license plate, was parked in front of the house. A

second drive-by was conducted by Sergeant Blust and a postal inspector on February 8,

2019. Sergeant Blust observed two black male subjects at the address sitting in a Grand

Prix, a car that was registered to Roberts.

{¶4} On February 8, 2019, a controlled delivery to the address listed on the

package, 222 Penn Avenue, in Mansfield, Ohio, was made by a postal inspector, Richland County, Case No. 2020 CA 0035 3

monitored by Sergeant Blust of METRICH. The package was left on the porch while law

enforcement officers watched the house. Officers soon saw Roberts’s car. Roberts was

driving and Herbert Taylor was in the passenger seat.

{¶5} Taylor ran out of the car, grabbed the package, jumped back in the car, and

the car attempted to speed away. The sensor warning from the box went off, which

indicated that the box had been opened. The car was stopped by Detective Rahall and

other law enforcement officers. Taylor was holding the package when the vehicle was

stopped. When the vehicle was searched, law enforcement found, in addition to the

postal package containing the cocaine, a few cell phones. The contents of these phones

were downloaded for information and analyzed by Detective Liggett. On one phone, there

was a message sent on the 7th of February, that read, "(S) end me the number; it's Penn,

right?"

{¶6} On April 30, 2019, a Confidential Informant (CI) made a controlled drug buy

from Roberts. Before going to the location of the purchase, the CI made a controlled

phone call, dialed by the officers, to one of the subjects of the investigation, Herbert

Taylor. Detective Nicole Gearhart, assigned to METRICH, searched the CI to make sure

she had no contraband on her person and then she fitted her with the transmitter

recording device that was used during the transaction. Before the CI left for the pre-

arranged location, Detective Perry Wheeler searched her vehicle. He also issued her the

control money, which had been photocopied to record serial numbers, for the buy. Then,

the CI drove to 264 East First Street, Mansfield, Ohio, followed by law enforcement.

{¶7} Officers could not watch the video of the controlled buy in real time;

however, they could hear the audio in real time. When the CI returned from the buy, Richland County, Case No. 2020 CA 0035 4

Detective Gearhart removed the recording device from her. The video recording from the

CI showed the CI arriving at the house, the CI handing money to Roberts, who in turn can

be heard on the tape giving the order for the drugs. When the CI left the house, she drove

to the station, followed by law enforcement. When she arrived at the station, the recording

device was removed. Detective Wheeler recovered the drugs and subsequently

submitted them to the Crime Lab for analysis. The CI was not allowed to touch the

equipment and the officers watched the video as it was being downloaded to verify the

events of the buy and to corroborate what they were hearing with what was on the video.

The Cl was also debriefed, asked to tell the officers what happened from the time that

she left until the time she returned. The CI in this case, Tara Sauer, tragically passed

away prior to trial.

{¶8} On May 9, 2019, the same CI made another controlled drug buy from

Roberts. Detective Gearhart again searched the CI when she arrived at the law

enforcement office. She fitted the CI with the transmitter recording device, activated it

before she left, and deactivated it and collected it when she returned. Detective Wheeler

issued the buy money. Detective Gearhart downloaded the video burned it onto CD, and

completed the integrity report on the equipment. Sergeant Joseph Soehnlen collected

the drugs directly from the CI after the buy. Detective Wheeler took the drugs from

Sergeant Soehnlen, packaged them, and submitted them to the Crime Lab for analysis.

{¶9} By May 10, 2019, arrest warrants for Roberts and Taylor were certified,

signed and active. Detective Wheeler worked surveillance on one of two residences

associated with the Roberts. On May 10, 2019, Roberts was driving the same vehicle

that he had been driving on February 8, 2019, a gold Pontiac Grand Prix, the day of the Richland County, Case No. 2020 CA 0035 5

controlled delivery to the address on Penn. Detective Wheeler followed him in an

unmarked vehicle. Roberts stopped his car, got out, and started walking towards

Wheeler's unmarked vehicle. Detective Wheeler then stepped out of his vehicle, arrested

Roberts, and transported him to the Richland County Jail. Roberts had a wallet, a social

security card, and a cell phone. Inside of Roberts’s wallet were bills with serial numbers

that matched those used in the controlled buy on May 9, 2019. Also found on his person

were keys, later identified as keys to a safe located in a house on East First Street.

{¶10} On May 10, 2019, in addition to the arrest warrant for Roberts, law

enforcement also had a search warrant for a house on 264 East First Street. Present at

that address was Roberts’s older son Akili Roberts, Jr., Erica Carr, Mercedes Granados,

Brianna Johnson, and Roberts’s younger son, Akki. Mail addressed to Roberts was also

found at that address.

{¶11} Sergeant Soehnlen and Detective Rahall started upstairs, where they first

encountered Erica Carr as she left the bathroom, where she was attempting to flush small

packets of drugs. Upstairs, in the northwest bedroom, was a safe. Access to that safe

was gained from keys that had been found in Roberts’s possession earlier that day when

he was arrested. While Detective Soehnlen stayed upstairs, Special Agent Minichello

brought Roberts’s keys upstairs and used them to open the safe. Inside of the safe, police

found wrapped up bags, a scale, a box of latex gloves or some type of surgical gloves.

They also found a large number of small baggies that Sergeant Soehnlen testified were

commonly used for packaging drugs. Also found on the nightstand was Inositol powder,

a dietary supplement, which is used as a cutting agent for drugs. Richland County, Case No. 2020 CA 0035 6

{¶12} Neither the keys, nor the safe, were taken into evidence, so as not to cause

any inconvenience to the residents. Law enforcement never found any other key that fit

the safe in the house at 264 East First Street.

{¶13} On April 18, 2019, in Case No. 2019-CR-00339, Roberts was indicted on

one count of Possession of Cocaine, in violation of R.C. 2925.11(A), a felony of the first

degree, with a Forfeiture specification, a violation of R. C. 2941.1417(A).

{¶14} On June 7, 2019, in Case No. 2019-CR-0403, Roberts was indicted on a

three-count indictment. Count One charged Roberts with Trafficking in a Fentanyl-related

Compound, in violation of R.C. 2925.03(A)(1), a felony of the fourth degree. Count Two

charged Roberts with Trafficking in Heroin, in violation of R.C. 2925.03(A)(1), a felony of

the fourth degree. Count Three charged Roberts with Trafficking in Cocaine, in violation

of R.C. 2925.03(A)(1), a felony of the fifth degree.

{¶15} On July 12, 2019, Case No. 2019-CR-0404, Roberts was indicted on one

count of Trafficking in Heroin, in violation of R.C. 2925.03(A)(2)&(C)(6)(e), a felony of the

second degree, with a Firearm specification, in violation of R.C. 2941.141, and with two

Forfeiture specifications, in violation of R.C. 2941.1417, one count of Possession of

Heroin, in violation of R.C. 2925.11(A)&(C)(6)(d), a felony of the second degree, with a

Firearm specification, in violation of R.C. 2941.141, and with two Forfeiture specifications,

in violation of R.C. 2941.1417, one count of Trafficking in Fentanyl-related Compound in

violation of R.C. 2925.03(A)(2)&(C)(9)(e), a felony of the second degree, with a Firearm

specification, in violation of R.C. 2941.141, and with two Forfeiture specifications, in

violation of R.C. 2941.1417; one count of Possession of Fentanyl in violation of R.C.

2925.11(A)&(C)(11)(D), a felony of the second degree, with a Firearm specification, in Richland County, Case No. 2020 CA 0035 7

violation of R.C. 2941.141, and with two Forfeiture specifications, in violation of R.C.

2941.1417, one count of Aggravated Trafficking in Drugs in violation of R.C.

2925.03(A)(2)7(C)(1)(a), a felony of the fourth degree, with a Firearm specification, in

violation of R.C. 2941.141, and with two Forfeiture specifications, in violation of R.C.

2941.1417, and Aggravated Possession of Drugs in violation of R.C.

2925.11(A)&(C)(1)(A), a felony of the fifth degree, with a Firearm specification, in violation

of R.C. 2941.141, and with two Forfeiture specifications, in violation of R.C. 2941.1417.

{¶16} On October 23, 2019 the trial court, over defense objection, granted the state's

motion for joinder, joining all three of the cases together for the purposes of trial. The three

cases proceeded to jury trial on March 2, 2020.

{¶17} The jury found Roberts guilty of all three Counts in Case no. 2019-CR-0403,

the jury found Roberts not guilty of the sole count in 2019-CR-0339 , and the jury found

Roberts not guilty on all six counts in 2019-CR-0404.

{¶18} As to 2019-CR-0403, the Court sentenced Roberts to eighteen months each

on Counts 1 and 2 and twelve months on Count 3, to be served consecutively, for an

aggregate prison term of four years.

Assignments of Error

{¶19} Roberts raises five Assignments of Error,

{¶20} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

GRANTING THE STATE'S MOTION TO JOIN THE TWO INDICTMENTS.

{¶21} “II. THE TRIAL COURT ERRED IN ADMITTING VIDEOS RECORDED BY

A DECEASED CONFIDENTIAL INFORMANT IN VIOLATION OF MR. ROBERTS'S

SIXTH AMENDMENT RIGHTS. Richland County, Case No. 2020 CA 0035 8

{¶22} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING A

MOTION FOR MISTRIAL MADE AS A RESULT OF PROSECUTORIAL MISCONDUCT.

{¶23} “IV. MR. ROBERTS'S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶24} “V. THE TRIAL COURT ERRED IN SENTENCING MR. ROBERTS TO A

FOUR-YEAR TERM OF INCARCERATION.”

I.

{¶25} In his First Assignment of Error, Roberts argues the trial court's decision to

grant the state's motion to join the three cases was an abuse of discretion.

Standard of Appellate Review.

{¶26} “Two or more offenses may be charged in the same indictment, information

or complaint in a separate count for each offense if the offenses charged * * * are of the

same or similar character * * *.” Crim.R. 8(A). Crim.R. 8(A) also allows the joinder of

offenses that “are based on the same act or transaction, or are based on two or more

acts or transactions connected together or constituting parts of a common scheme or

plan, or are part of a course of criminal conduct.” Permitting joinder “conserves resources

by avoiding duplication inherent in multiple trials and minimizes the possibility of

incongruous results that can occur in successive trials before different juries.” State v.

Hamblin,

,

(1988).

{¶27} “Notwithstanding the policy in favor of joinder,” Crim.R. 14 permits a

defendant to request severance of the counts in an indictment “on the grounds that he or

she is prejudiced by the joinder of multiple offenses.” State v. LaMar,

,

,

. The defendant “has the burden of furnishing the Richland County, Case No. 2020 CA 0035 9

trial court with sufficient information so that it can weigh the considerations favoring

joinder against the defendant’s right to a fair trial.” State v. Torres,

,

(1981). But even if the equities appear to support severance, the

state can overcome a defendant’s claim of prejudicial joinder by showing either that (1) it

could have introduced evidence of the joined offenses as other acts under Evid.R. 404(B)

or (2) the “evidence of each crime joined at trial is simple and direct,” State v. Lott,

,

(1990). See, State v. Ford,

,

,

, ¶103.

{¶28} We review a trial court’s ruling on a Crim.R. 14 motion for an abuse of

discretion. State v. Hand,

,

,

, ¶ 166;

Ford at ¶ 103. A defendant who appeals the denial of relief bears a heavy burden:

He must affirmatively demonstrate (1) that his rights were

prejudiced, (2) that at the time of the motion to sever he provided the trial

court with sufficient information so that it could weigh the considerations

favoring joinder against the defendant’s right to a fair trial, and (3) that given

the information provided to the court, it abused its discretion in refusing to

separate the charges for trial.

State v. Schaim,

,

(1992); Ford at ¶106. An abuse

of discretion exists where the reasons given by the court for its action are clearly

untenable, legally incorrect, or amount to a denial of justice, or where the judgment

reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick,

9th Dist. Summit No. 26827,

; In re Guardianship of S .H., 9th Dist. Richland County, Case No. 2020 CA 0035 10

Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking

No. 2006–CA–41, 2006–Ohio–5823, ¶54.

Issue for Appellate Review: Whether the trial court abused its discretion in

joining the case for trial.

{¶29} Roberts argues that beyond the base allegations of drugs, the facts in the

three cases were distinct. One case involved alleged sales to an informant, one case

involved the execution of a search warrant at a home, and the third case involved a co-

defendant's pick-up of a box containing drugs.[Appellant’s Brief at 4-5]. The state argues

all of the cases are tied together. They take place within a short span of time between

February and May, 2019. All three of the cases were investigated by the same law

enforcement agency and officers: the METRICH (Metro-Richland County) Enforcement

Unit. In two of the cases, Roberts is charged with trafficking and in the third, with

possessing a large quantity of cocaine. The state argues the offenses "are based on two

or more acts or transactions connected together or constituting parts of a common

scheme or plan, or are part of a course of criminal conduct," and were rightly joined.

[Appellee’s Brief at 7].

{¶30} Roberts fails to show that the trial court’s judgment reaches an end or

purpose not justified by reason and the evidence or that the reasons given by the court

for its action are clearly untenable, legally incorrect, or amounted to a denial of justice

and he therefore fails to establish an abuse of discretion.

{¶31} In the case at bar, the evidence concerning the mailing, delivery and pick-

up of the box containing five hundred grams of cocaine and the evidence of the two

controlled buys led to the issuance of the search warrant. The evidence of each of the Richland County, Case No. 2020 CA 0035 11

crimes was simple and direct. The jury was clearly capable of segregating the evidence

of the multiple charges when, as in the present case, the evidence of each crime is

uncomplicated. See State v. Hamblin,

,

(1988).

The evidence did not confuse the jury and was not highly prejudicial. The jury in the case

at bar found Roberts not guilty of all six charges and the attendant specifications, the

most serious of the charges, in Case Number 2019 CR 0404, and also not guilty of

possession of cocaine with its attendant specification in Case No. 2019 CR0339. The

jury convicted Roberts only of the controlled buy charges that were recorded with both

audio and video.

{¶32} We cannot conclude that Roberts was prejudiced by the joinder. We

conclude that the trial court did not abuse its discretion in joining the offenses for trial.

{¶33} Roberts’s First Assignment of Error is overruled.

II.

{¶34} In his Second Assignment of Error, Roberts contends that the trial court

erred when it permitted the state to introduce the audio and video recordings of the

undercover drug buys that took place on April 30, 2019 and May 9, 2019 into evidence.

More specifically, Roberts argues that pursuant to the U.S. Supreme Court’s decision in

Crawford v. Washington,

,

,

(2004), the taped

statements should have been excluded by the trial court as they contained out-of-court

statements made by a confidential informant who did not appear or testify at trial.

Standard of Appellate Review

{¶35} “[A] trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the Richland County, Case No. 2020 CA 0035 12

rules of procedure and evidence.” Rigby v. Lake Cty.,

,

(1991). “However, we review de novo evidentiary rulings that implicate the

Confrontation Clause. United States v. Henderson,

(6th Cir. 2010).”

State v. McKelton,

,

,

.

{¶36} We note that any error will be deemed harmless if it did not affect the

accused’s “substantial rights.” Before constitutional error can be considered harmless, we

must be able to “declare a belief that it was harmless beyond a reasonable doubt.”

Chapman v. State of Cal.,

,

,

(1967).

Issue for Appellate Review: Whether the trial court violated Roberts’s right to

confrontation by allowing the state to introduce video and audio recordings made during

the controlled drugs on April 30, 2019 and May 9, 2019.

{¶37} The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the

witnesses against him.”

{¶38} In Crawford v. Washington,

,

,

(2004), the Supreme Court of the United States held that out-of-court statements that are

testimonial are barred, under the Confrontation Clause, unless the witness is unavailable

and the defendant had a prior opportunity to cross-examine the witness, regardless of

whether the statements are deemed reliable by the trial court. The Court defined these

“testimonial” statements to include “ex parte in-court testimony or its functional equivalent-

that is, material such as affidavits, custodial examinations, prior testimony that the

defendant was unable to cross-examine, or similar pretrial statements that declarants

would reasonably expect to be used “prosecutorially” and “extrajudicial statements * * * Richland County, Case No. 2020 CA 0035 13

contained in formalized testimonial materials, such as affidavits, depositions, prior

testimony, or confessions,” and “statements that were made under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial.”

.

{¶39} Thus as to “testimonial evidence,” “the Sixth Amendment demands what the

common law required: unavailability and a prior opportunity for cross-examination.”

. “To trigger a violation of the Confrontation Clause, an admitted statement must

be testimonial in nature, and must be hearsay.” United States v. Deitz,

(6th Cir. 2009). A statement is testimonial where a reasonable person would anticipate

that his or her statement would be used “against the accused in investigating and

prosecuting the crime.” United States v. Cromer,

(6th Cir. 2004). See

also State v. Stahl,

,

,

, at paragraph

two of the syllabus.

{¶40} In the case at bar, we find that any statements made by the confidential

informant on the recordings to be non-testimonial in nature, and thus, the Confrontation

Clause does not bar them. The confidential informant made the statements to Roberts

and his co-defendant who are not law-enforcement officers, and the statements “were not

the result of any official examination.” State v. Nix, 1st Dist. No. C-030696, 2004-Ohio-

5502, ¶75.

{¶41} Roberts does not identify with specificity any statement contained on the

recordings that he contends are objectionable and prejudicial. It does not appear from

the record that the state used or argued at trial that any statements made by the

confidential informant implicated Roberts in the sale or possession of drugs, or that any Richland County, Case No. 2020 CA 0035 14

statements established the elements of the crimes for which Roberts was indicted. See,

United States v. Hearn,

(6th Cir. 2007).

{¶42} Further, “[t]he testimony at issue was offered to explain the subsequent

investigative activities of the witnesses. It was not offered to prove the truth of the matter

asserted. It is well established that extrajudicial statements made by an out-of-court

declarant are properly admissible to explain the actions of a witness to whom the

statement was directed. See United States v. Zamarripa (C.A.8, 1976),

, certiorari denied

,

,

; State v. Lopez

(1957),

,

. The testimony was properly admitted for

this purpose.” State v. Thomas,

,

(1980).

{¶43} In the case at bar, the confidential informants statements are admissible as

providing context for Roberts’s statements and actions, not for the truth of the matter

asserted. See United States v. Sexton,

(6th Cir.), vacated on

other grounds,

(2005). Therefore, because the statements of the

confidential informant are not hearsay, they fall outside of the scope of the Confrontation

Clause and the recorded events of April 30, 2019 and May 9, 2019 were properly admitted

at Roberts’s trial. State v. Suber, 5th Dist. Licking No. 16 CA 14,

.

{¶44} Roberts’s Second Assignment of Error is overruled.

III.

{¶45} In his Third Assignment of Error, Roberts maintains that the trial court

abused its discretion in denying his motion for a mistrial after the state's misconduct.

Standard of Appellate Review. Richland County, Case No. 2020 CA 0035 15

{¶46} “Mistrials need to be declared only when the ends of justice so require and

a fair trial is no longer possible.” State v. Franklin,

,

(1991). The standard of review for evaluating a trial court’s decision to grant or deny a

mistrial is abuse of discretion. State v. Maurer,

,

(1984).

In reviewing a claim that a mistrial should have been granted, the Ohio Supreme Court

has noted “[t]his court has instead adopted an approach which grants great deference to

the trial court’s discretion in this area, in recognition of the fact that the trial judge is in the

best position to determine whether the situation in his courtroom warrants the declaration

of a mistrial.” State v. Shaffer, 5th Dist. Richland No. 2003-CA-0108,

,

¶18 quoting [State v.] Widner [

,

(1981)]. See, also,

Wade v. Hunter,

,

,

(1949).

{¶47} An abuse of discretion can be found where the reasons given by the court

for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or

where the judgment reaches an end or purpose not justified by reason and the evidence.

Tennant v. Gallick, 9th Dist. Summit No. 26827,

; In re Guardianship

of S.H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,

5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823, ¶54

Issue for Appellate Review: Whether the trial court abused its discretion by

denying Roberts’s motion for a mistrial.

{¶48} In this case, the trial court allowed the jurors to submit questions. At the

conclusions of Wayne Liggett’s testimony, a juror submitted a question, but the defense,

at sidebar, objected to the question. 4T at. 480-4811. The trial court sustained the

1 For clarity, the jury trial transcript will be referred to as, “__T.__,” signifying the volume and the page number. Richland County, Case No. 2020 CA 0035 16

objection to which the state replied: "There's a defense objection? Note it's a defense

objection." 4T. at 482. The parties stepped back from the bench, and the trial court

advised the jury that it would not ask the question. Specifically, the trial court stated:

“Ladies and gentlemen, I can't ask the witness this particular question. Not that it wasn't

relevant or anything, but for evidentiary ruling reasons. With that, we're going to let

Detective Liggett step down. He's done. And we're going to go ahead and do lunch." 4T.

at 482. The state then replied; "I didn't know if the Court was going to sustain the defense's

objection." 4T. at 482. After the jury had been excused, the defense lodged an objection

to the state's statement and moved for a mistrial. 4T. at 483-88.

{¶49} Crim. R. 52(A) defines harmless error, “Any error, defect, irregularity, or

variance which does not affect substantial rights shall be disregarded.” Before

constitutional error can be considered harmless, we must be able to “declare a belief that

it was harmless beyond a reasonable doubt.” Chapman v. California

,

,

(1967). Where there is no reasonable possibility that unlawful

testimony contributed to a conviction, the error is harmless and therefore will not be

grounds for reversal. State v. Lytle,

,

(1976), paragraph

three of the syllabus, vacated on other grounds in Lytle v. Ohio,

,

,

(1978).

{¶50} In the case at bar, the jury acquitted Roberts of the six most serious charges

and specifications and acquitted Roberts of seven of the ten indicted charges against

Roberts. Accordingly, we find there is no reasonable possibility that comments of the

prosecutor contributed to Roberts’s conviction. Richland County, Case No. 2020 CA 0035 17

{¶51} The trial court did not abuse its discretion in denying Roberts’s motion for a

mistrial.

{¶52} Roberts’s Third Assignment of Error is overruled.

IV.

{¶53} In his Fourth Assignment of Error, Roberts maintains that his convictions

are against the manifest weight of the evidence. Although he phrases his assignment of

error in terms of “manifest weight,” Roberts nonetheless contends, “Assuming arguendo

that the videos were admissible, the evidence was still insufficient to establish Mr. Roberts's

guilt beyond a reasonable doubt…. There is no evidence that Mr. Roberts engaged in a

drug transaction.” [Appellant’s Brief at 11].

Standard of Appellate Review– Sufficiency of the Evidence.

{¶54} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States,

,

,

(2013); Hurst v. Florida,

,

(2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker,

,

,

, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson,

,

,

, ¶13.

{¶55} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks,

, 574 Richland County, Case No. 2020 CA 0035

(1991), paragraph two of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith,

, 102 at n.4,

(1997; Walker, at ¶30. “The relevant inquiry is whether, after viewing the

evidence in the 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.” Jenks at

paragraph two of the syllabus. State v. Poutney,

,

,

. Thus, “on review for evidentiary sufficiency we do not second-guess

the jury's credibility determinations; rather, we ask whether, ‘if believed, [the evidence]

would convince the average mind of the defendant's guilt beyond a reasonable doubt.’”

State v. Murphy,

,

(2001), quoting Jenks at

paragraph two of the syllabus; Walker at ¶31. We will not “disturb a verdict on appeal on

sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached by

the trier-of-fact.’” State v. Ketterer,

,

,

,

¶ 94, quoting State v. Dennis,

,

(1997); State v.

Montgomery,

,

,

.

Issue for Appellate Review: Whether, after viewing the evidence in the light

most favorable to the prosecution, the evidence, if believed, would convince the

average mind of Roberts’s guilt on each element of the crimes for which he was

convicted beyond a reasonable doubt.

{¶56} R.C. 2925.03(A) sets forth the essential elements of trafficking in drugs: "No

person shall knowingly sell or offer to sell a controlled substance."

{¶57} In Case Number 2019 CR 0403 Roberts was charged with knowingly selling

or offering to sell a fentanyl related substance on April 30, 2019 [Count 1], heroin on May Richland County, Case No. 2020 CA 0035 19

9, 2019 [Count 2], and cocaine on May 9, 2019 [Count 3]. There is no dispute as to either

the identity or quantity of the drug involved in each count.

{¶58} Whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances, including the

doing of the act itself.” State v. Huff,

,

(1st Dist.

2001) (Footnote omitted.) Thus, “[t]he test for whether a defendant acted knowingly is a

subjective one, but it is decided on objective criteria.” State v. McDaniel, 2nd Dist.

Montgomery No. 16221,

(May 1, 1998), citing State v. Elliott,

,

(10th Dist. 1995).

{¶59} In the case at bar, the jury was instructed on complicity. 4T. at 637. R.C.

2923.03(A)(2) sets forth the elements for complicity and provides, in relevant part:

No person, acting with the kind of culpability required for the

commission of an offense, shall do any of the following:

***

(2) Aid or abet another in committing the offense;

***

(B) It is no defense to a charge under this section that no person with

whom the accused was in complicity has been convicted as a principal

offender.

(C) No person shall be convicted of complicity under this section

unless an offense is actually committed, but a person may be convicted of

complicity in an attempt to commit an offense in violation of section 2923.02

of the Revised Code. Richland County, Case No. 2020 CA 0035 20

***

{¶60} It is true that a person's mere association with a principle offender is not

enough to sustain a conviction based on aiding and abetting. State v. Sims,

,

(8th Dist. 1983). In order to constitute aiding and

abetting, the accused must have taken some role in causing the commission of the

offense.

With respect to the requirements for a conviction for complicity by aiding and

abetting, the Supreme Court of Ohio has stated,

To support a conviction for complicity by aiding and abetting pursuant

to R.C. 2923.03(A)(2), the evidence must show that the defendant

supported, assisted, encouraged, cooperated with, advised, or incited the

principal in the commission of the crime, and that the defendant shared the

criminal intent of the principal. Such intent may be inferred from the

circumstances surrounding the crime.

State v. Johnson,

, 2001–Ohio–187,

, at syllabus.

{¶61} Aiding and abetting may be shown by both direct and circumstantial

evidence, and participation may be inferred from presence, companionship, and conduct

before and after the offense is committed. State v. Cartellone,

,

, (8th Dist. 1981), citing State v. Pruett,

,

(4th Dist. 1971); See also, State v. Mendoza,

,

(3rd Dist. 2000), quoting State v. Stepp,

, 568–569,

(4th Dist. 1997).

{¶62} Aiding and abetting may also be established by overt acts of assistance

such as driving a getaway car or serving as a lookout. State v. Cartellone, 3 Ohio App.3d Richland County, Case No. 2020 CA 0035 21

at 150,

. See also, State v. Trocodaro,

,

(10th Dist. 1973); State v. Lett,

, 2005–Ohio–1308,

(8th Dist.); State v. Polite, 5th Dist. Stark No. 2017 CA 00129, 2018-Ohio-

1372, ¶56.

{¶63} The events of April 30, 2019 and May 9, 2019 were controlled buys that

were recorded in real time by the confidential informant. State’s Exhibit 2 and State’s

Exhibit 3; 2T. at 318; 340; 344 3T. at 578. Roberts is seen in both videos. 3T. at 339;

344; 388.

{¶64} On April 30, 2019, Roberts is seen on the couch with a significant number

of dollar bills in in hands. Money was handed to Roberts by the confidential informant. 2T.

at 391. The confidential informant is seen in the basement while the codefendant weighs

and packages the drugs. He hands the drugs to the confidential informant in the living

room.

{¶65} On May 9, 2019, the confidential informant is seen entering the vehicle and

driving to the residence. The co-defendant answers the door. The confidential informant

waits in the living room. Both the co-defendant and Roberts return to the living room. The

confidential informant can be heard to say, “You gonna do me good?” It appears that

Roberts hugs the confidential informant. The confidential informant leaves the residence

and drives back to MERTECH.

{¶66} Evidence was presented during Roberts’s jury trial that the confidential

informant and the vehicle were searched both before and after returning on April 30, 2019

and May 9, 2019. 2T. at 274-276; 317-319; 3T. at 494-496. The confidential informant

was fitted with the transmitter/recording device. 3T. at 494-496. The confidential informant Richland County, Case No. 2020 CA 0035 22

was provided with buy money that had been photocopied for the purpose of later

identifying it. 2T. at 275; 319. Law enforcement officers followed the confidential informant

to the house and back to MERTECH. 2T. at 275-276. Law enforcement officers took

possession of the drugs and the recording device, and once again searched her and her

vehicle. 2T. at 276; 319.

{¶67} Roberts had in his wallet at the time of his arrest on May 10, 2019 ninety

dollars of the one hundred eighty dollar buy money used by the confidential informant to

purchase the drugs on May 9, 2019. 2T. at 355. The drugs purchased by the confidential

informant were submitted to the laboratory. The video was downloaded while being

watched and burned to disks. 3T. at 495-496. An integrity report was run to establish the

video had not been altered. 3T. at 495.

{¶68} If the state relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction.” State v. Jenks,

,

(1991), paragraph one of the syllabus, superseded by

State constitutional amendment on other grounds as stated in State v. Smith,

,

(1997). “Circumstantial evidence and direct evidence inherently

possess the same probative value [.]” Jenks, 61 Ohio St.3d at paragraph one of the

syllabus. Furthermore, “[s]ince circumstantial evidence and direct evidence are

indistinguishable so far as the jury's fact-finding function is concerned, all that is required

of the jury is that i[t] weigh all of the evidence, direct and circumstantial, against the

standard of proof beyond a reasonable doubt.“ Jenks,

,

. While inferences cannot be based on inferences, a number of conclusions can result Richland County, Case No. 2020 CA 0035 23

from the same set of facts. State v. Lott,

,

(1990),

citing, Hurt v. Charles J. Rogers Transp. Co,

, 331,

(1955). Moreover, a series of facts and circumstances can be employed by a jury as

the basis for its ultimate conclusions in a case. Lott,

,

, citing Hurt, 164 Ohio St. at 331,

.

{¶69} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Roberts aided and abetted in knowingly selling or offering to sell controlled substances

as alleged in Case Number 19 CR 403, Counts 1, 2 and 3. We hold, therefore, that the

state met its burden of production regarding the element of trafficking in a fentanyl related

substance, heroin and cocaine, and, accordingly, there was sufficient evidence to support

Roberts’s convictions.

Standard of Appellate Review – Manifest Weight.

{¶70} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins,

, 386–387,

(1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith,

,

, 1997–Ohio–355; State v.

Issa,

,

(2001).

“[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the

finding of facts. Richland County, Case No. 2020 CA 0035 24

***

“If the evidence is susceptible of more than one construction, the reviewing

court is bound to give it that interpretation which is consistent with the

verdict and judgment, most favorable to sustaining the verdict and

judgment.”

Seasons Coal Co., Inc. v. Cleveland,

,

(1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

{¶71} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa,

,

(2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.

Because the trier of fact sees and hears the witnesses and is particularly competent to

decide whether, and to what extent, to credit the testimony of particular witnesses, the

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney,

, 2010–Ohio–2420,

. In

other words, “[w]hen there exists two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–

Ohio–1152, at ¶ 13, citing State v. Gore,

,

(7th

Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

{¶72} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘the jury clearly lost Richland County, Case No. 2020 CA 0035 25

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

reversed and a new trial ordered.’” State v. Thompkins, supra,

,

quoting State v. Martin,

,

, 720–721(1st Dist.

1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

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

Issue for Appellate Review: Whether the jury clearly lost their way and created

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

trial ordered.

{¶73} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. “While the trier of

fact may take note of the inconsistencies and resolve or discount them accordingly * * *

such inconsistencies do not render defendant’s conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739,

(Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236,

(May 28, 1996). Indeed, the trier of fact need not believe all of a witness’

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill,

, 67,

(1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell,

,

(4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks,

,

(1991), paragraph one of the syllabus, superseded by State constitutional Richland County, Case No. 2020 CA 0035 26

amendment on other grounds as stated in State v. Smith,

, 102 at n.4,

(1997).

{¶74} In the case at bar, the jury heard the witnesses and viewed the evidence.

The jury saw the witnesses subject to cross-examination. The jury heard Roberts’s

attorney’s arguments and explanations about the evidence and his actions. Further, the

jury was able to view the events in real-time through the body cameras and pictures from

the officers involved. The jury found Roberts not guilty of all six counts and specifications

in Case Number 19-CR-404 and one count in Case Number 19-CR-399. Thus, a rational

basis exists in the record for the jury’s decision.

{¶75} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins,

, 386–387,

(1997), quoting Martin,

,

. Based upon

the foregoing and the entire record in this matter we find Roberts’s convictions are not

against the sufficiency or the manifest weight of the evidence. To the contrary, the jury

appears to have fairly and impartially decided the matters before them. The jury heard

the witnesses, evaluated the evidence, and was convinced of Roberts’s guilt. The jury

neither lost their way nor created a miscarriage of justice in convicting Roberts of the

offenses.

{¶76} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crimes for which Roberts was convicted.

{¶77} Roberts’s Fourth Assignment of Error is overruled.

V. Richland County, Case No. 2020 CA 0035 27

{¶78} In his Fifth Assignment of Error, Roberts argues first that the sentences

imposed by the trial court is inconsistent with the purposes of felony sentencing, and further

that the imposition of consecutive sentences was not supported by the record.

Standard of Appellate Review.

{¶79} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum,

, 2016–Ohio–1002,

, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004,

. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell,

, 2014–Ohio–3177,

, ¶28.

{¶80} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford,

,

(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb,

(1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

.

{¶81} Recently, the Ohio Supreme Court reviewed the issue of “whether a

sentence is “contrary to law” under R.C. 2953.08(G)(2)(b) when an appellate court finds

that the record does not support a sentence with respect to R.C. 2929.11 and 2929.12.” Richland County, Case No. 2020 CA 0035 28

State v. Jones, Oh. Sup. Ct. No. 2018-0444,

,

(Dec.

18, 2020).2 A plurality of the Court in Jones found,

Nothing in R.C. 2953.08(G)(2) permits an appellate court to

independently weigh the evidence in the record and substitute its judgment

for that of the trial court concerning the sentence that best reflects

compliance with R.C. 2929.11 and 2929.12. In particular, R.C.

2953.08(G)(2) does not permit an appellate court to conduct a freestanding

inquiry like the independent sentence evaluation this court must conduct

under R.C. 2929.05(A) when reviewing a death penalty-sentence. See

State v. Hundley, ––– Ohio St.3d ––––,

, ––– N.E.3d ––, ¶

128 (recognizing that R.C. 2929.05(A) requires de novo review of findings

and other issues within its scope).

,

, ¶ 42. The Court in Jones noted that,

R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate

a sentence if it clearly and convincingly finds that “the record does not

support the sentencing court’s findings under” certain specified statutory

provisions. But R.C. 2929.11 and 2929.12 are not among the statutory

provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D),

2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.

,

, ¶ 28. The plurality concluded,

2 We note that Jones was decided after briefs were filed in the case at bar. However, Jones does not change the law; rather, Jones simply clarifies existing law and precedents. Richland County, Case No. 2020 CA 0035 29

R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an

appellate court to modify or vacate a sentence based on its view that the

sentence is not supported by the record under R.C. 2929.11 and 2929.12.

,

, ¶39. The Court clarified,

The statements in Marcum at ¶ 23 suggesting that it would be “fully

consistent” with R.C. 2953.08(G) for an appellate court to modify or vacate

a sentence when the record does not support the sentence under R.C.

2929.11 or 2929.12 were made only in passing and were not essential to

this court’s legal holding. The statements are therefore dicta.

,

, ¶ 27.

Issue for Appellate Review: Whether the record clearly and convincing does

not support Roberts’s sentence under 2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4),

and 2929.20(I).

R.C. 2929.13(B).

{¶82} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony.

Roberts was convicted of two felonies of the fourth degree and one felony of the fifth

degree. In relevant part the statute provides,

(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an

offender is convicted of or pleads guilty to a felony of the fourth or fifth

degree that is not an offense of violence or that is a qualifying assault

offense, the court shall sentence the offender to a community control

sanction or combination of community control sanctions if all of the following

apply: Richland County, Case No. 2020 CA 0035 30

(i) The offender previously has not been convicted of or pleaded

guilty to a felony offense.

(ii) The most serious charge against the offender at the time of

sentencing is a felony of the fourth or fifth degree.

(iii) If the court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, the department,

within the forty-five-day period specified in that division, provided the court

with the names of, contact information for, and program details of one or

more community control sanctions that are available for persons sentenced

by the court.

Emphasis added. In addition, R.C. 2929.13(B)(1)(b)(ix) expressly recognizes a trial

court’s “discretion to impose a prison term” on a defendant who is found guilty of a fifth-

degree felony and “previously had served * * * a prison term.” See State v. Lawson, 2018-

Ohio-1532,

(2nd Dist.), citing State v. Robinson, 2nd Dist. Champaign

No. 2012-CA-17,

, and State v. Parker, 8th Dist. Cuyahoga No.

104610,

; See also, State v. Chatterton, 2nd Dist. Miami No. 2020-

CA-2,

. Finally, R.C. 2929.13(B)(1)(b)(v)(i)(i)(i) provides a trial court

discretion to impose a prison term on a defendant who is found guilty of a fourth or fifth

degree felony if the court finds that the offender committed the offense for hire or as part

of an organized criminal activity.

{¶83} Roberts has two prior felony convictions. 5T. at 742. The legislature did not

impose a time limit upon the prior felony convictions, unlike R.C. 2929.13(B)(1)(a)(iii)

which provides, “(iii) The offender previously has not been convicted of or pleaded guilty Richland County, Case No. 2020 CA 0035 31

to a misdemeanor offense of violence that the offender committed within two years prior

to the offense for which sentence is being imposed.” Emphasis added.

{¶84} Furthermore, Roberts’s sentences were within the statutory sentencing

range and therefore there is nothing to indicate that the sentence is contrary to law.

R.C. 2929.13(C).

{¶85} R.C. 2929.13(C) applies to one convicted of a third degree felony. This

provision therefore does not apply in Roberts’s case.

R.C. 2929.13(D).

{¶86} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or

second degree, for a felony drug offense that is a violation of any provision of Chapter

2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison

term is specified as being applicable, and for a violation of division (A)(4) or (B) of section

2907.05 of the Revised Code for which a presumption in favor of a prison term is specified

as being applicable.

{¶87} Roberts was not convicted of a felony of the first or second degree.

Accordingly, R.C. 2929.13(D) does not apply to Roberts’s case.

R.C. 2929.14 (B)(2)(e).

{¶88} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court

can impose upon a defendant under specified circumstances. Roberts was not given an

additional prison sentence.

R.C. 2929.14 (C)(4) Consecutive Sentences.

{¶89} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. Richland County, Case No. 2020 CA 0035 32

{¶90} In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption

by making the statutory, enumerated findings set forth in R.C. 2929.14(C) (4). State v.

Bonnell,

,

,

. This statute requires

the trial court to undertake a three-part analysis. State v. Alexander, 1st Dist. Hamilton

Nos. C–110828 and C–110829,

,

, ¶ 15.

{¶91} R.C. 2929.14(C)(4) provides,

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender’s conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct. Richland County, Case No. 2020 CA 0035 33

(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶92} Thus, in order for a trial court to impose consecutive sentences the court

must find that consecutive sentences are necessary to protect the public from future crime

or to punish the offender. The court must also find that consecutive sentences are not

disproportionate to the offender’s conduct and to the danger the offender poses to the

public. Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18,

or while under post-release control for a prior offense; (b) at least two of the multiple

offenses were committed as part of one or more courses of conduct, and the harm caused

by two or more of the offenses was so great or unusual that no single prison term for any

of the offenses committed as part of any of the courses of conduct would adequately

reflect the seriousness of the offender’s conduct; or (c) the offender’s criminal history

demonstrates that consecutive sentences are necessary to protect the public from future

crime by the offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-

2058, ¶ 36.

{¶93} In State v. Bonnell,

, 2014–Ohio–3177,

,

syllabus, the Supreme Court of Ohio stated that:

In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the Richland County, Case No. 2020 CA 0035 34

sentencing hearing and incorporate its findings into its sentencing entry, but

it has no obligation to state reasons to support its findings.

{¶94} Furthermore, the sentencing court is not required to recite “a word-for-word

recitation of the language of the statute.” Bonnell, ¶ 29. “[A]s long as the reviewing court

can discern that the trial court engaged in the correct analysis and can determine that the

record contains evidence to support the findings, consecutive sentences should be

upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a

consecutive sentence contrary to law. Bonnell, ¶ 34. The findings required by R.C.

2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing

entry. Id. at the syllabus. However, a trial court’s inadvertent failure to incorporate the

statutory findings in the sentencing entry after properly making those findings at the

sentencing hearing does not render the sentence contrary to law; rather, such a clerical

mistake may be corrected by the court through a nunc pro tunc entry to reflect what

actually occurred in open court. Bonnell, ¶ 30.

{¶95} In this case, the record does support a conclusion that the trial court made

all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive

sentences.

R.C. 2929.14(C)(4): [T]he court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is necessary to

protect the public from future crime or to punish the offender and that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct

and to the danger the offender poses to the public.

{¶96} The trial court considered this factor. 5T. at 752-753. Richland County, Case No. 2020 CA 0035 35

R.C. 2929.14(C)(4)(a): The offender committed one or more of the multiple

offenses while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

{¶97} This provision does not apply to Roberts’s case.

R.C. 2929.14(C)(4)(b): At least two of the multiple offenses were committed

as part of one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single prison

term for any of the offenses committed as part of any of the courses of conduct

adequately reflects the seriousness of the offender’s conduct.

{¶98} The trial court considered this factor. 5T. at 752-753.

R.C. 2929.14(C)(4)(c): The offender’s history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶99} The trial court considered this factor. 5T. at 752-753.

R.C. 2929.20.

{¶100} R.C. 2929.20 (I) is inapplicable, as Roberts was not applying to the court

for judicial release.

{¶101} The fact that Roberts received a different sentence from his co-defendant

does not in and of itself establish that Roberts was punished for going to trial. The record

precludes meaningful comparison of Roberts’s sentence to that of his co-defendant. We

have neither the pre-sentence investigation report nor the transcript concerning the trial Richland County, Case No. 2020 CA 0035 36

court’s sentencing of the co-defendant. The record, such as it is, indicates that the co-

defendant entered a negotiated guilty plea to one count. 5T. at 754.

{¶102} In State v. Hill,

,

(1994), the defendant

was convicted of complicity to trafficking in marijuana, and sentenced to one year in prison

and further ordered to forfeit his apartment complex. His co-defendant received probation

instead of a prison sentence.

,

. On appeal, he argued that

the trial court abused its discretion by giving him a harsher sentence than was given his

co-defendant.

The Ohio Supreme Court observed,

There is no question that on its face the sentence received by

appellant, when compared to Newbauer’s punishment, is disproportionate.

Given the fact that Newbauer received probation, appellant’s one-year

prison sentence does appear to be harsh. However, as a general rule, an

appellate court will not review a trial court’s exercise of discretion in

sentencing when the sentence is authorized by statute and is within the

statutory limits. See, generally, Toledo v. Reasonover (1965),

,

,

. See, also, State v.

Cassidy (1984),

, 21 OBR 107, 108-109,

; State v. Burge (1992),

,

; and State v. Grigsby (1992),

,

.

,

,

. Roberts cites no precedent, or any

other authority, for reversal of an otherwise valid sentence on the basis that more culpable

co-defendants were not punished more severely. There is no requirement that co- Richland County, Case No. 2020 CA 0035 37

defendant’s receive equal sentences. State v. Lloyd, 11th Dist. Lake No. 2002-L-069,

; United State v. Frye,

(6th Cir. 1987). Each

defendant is different and nothing prohibits a trial court from imposing two different

sentences upon individuals convicted of similar crimes. State v. Aguirre, 4th Dist. Gallia

No. 03CA5,

, ¶ 50. In this case, there is nothing in the record to show that

the difference in Roberts’s sentence from that of his co-defendant was the result of

anything other than the individualized factors that were applied to Roberts. State v.

Beasley, 8th Dist. Cuyahoga No. 82884,

.

{¶103} We conclude that the trial court did not commit error when it sentenced

Roberts to a sentence that differed from his co-defendant. Upon review, we find that the

trial court’s sentencing on the charges complies with applicable rules and sentencing

statutes. The sentence was within the statutory sentencing range. R.C. 2953.08(G)(2)(b)

does not provide a basis for an appellate court to modify or vacate a sentence based on

its view that the sentence is not supported by the record under R.C. 2929.11 and

2929.12. State v. Jones, Oh. Sup. Ct. No. 2018-0444,

,

(Dec. 18, 2020), ¶39.

{¶104} Roberts’s Fifth Assignment of Error is overruled. Richland County, Case No. 2020 CA 0035 38

{¶105} The judgment of the Richland County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Wise, John, J., and

Wise, Earle E., J., concur

[Cite as State v. Roberts,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2020 CA 0035 AKILI ROBERTS : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2019- CR-0403

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 15, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP MEGAN PATITUCE Richland County Prosecutor AARON SCHWARTZ 32 South Park Street 16855 Industrial Parkway Mansfield, OH 44902 Strongsville,OH 44149 [Cite as State v. Roberts,

.]

Gwin, P.J.

{¶1} Defendant-appellant Akili Roberts [“Roberts”] appeals his convictions and

sentences after a jury trial in the Richland County Court of Common Pleas.

Facts and Procedural History

{¶2} Cuyahoga County Sheriff's Office Deputy Michael Twombly, and his K-9

Officer Ciga were at the Orange Avenue Post Office in Cleveland, Ohio working parcel

drug interdiction by assignment. On February 7, 2019, Ciga alerted to a package. Before

opening the package, Deputy Twombly applied for and received a federal search warrant.

The parcel was photographed, opened, and searched. Inside, wrapped in cellophane,

inside of a freezer bag, was a parcel wrapped up like a present. This parcel contained

over 500 grams of cocaine. The parcel, the wrapping, and the contents were

photographed. The package was closed, resealed, and turned over to the postal

inspectors to prepare for delivery. A location device, a GPS and a transmitter, were

attached to the package so as to alert law enforcement when the package was opened.

{¶3} On the afternoon of February 7, 2019, Sergeant Steve Blust and Detective

Wayne Liggett of the Mansfield Police Department did an initial drive by of the intended

address of the package, 222 Penn Avenue in Mansfield, Ohio for surveillance purposes.

Roberts’s vehicle, identified by its license plate, was parked in front of the house. A

second drive-by was conducted by Sergeant Blust and a postal inspector on February 8,

2019. Sergeant Blust observed two black male subjects at the address sitting in a Grand

Prix, a car that was registered to Roberts.

{¶4} On February 8, 2019, a controlled delivery to the address listed on the

package, 222 Penn Avenue, in Mansfield, Ohio, was made by a postal inspector, Richland County, Case No. 2020 CA 0035 3

monitored by Sergeant Blust of METRICH. The package was left on the porch while law

enforcement officers watched the house. Officers soon saw Roberts’s car. Roberts was

driving and Herbert Taylor was in the passenger seat.

{¶5} Taylor ran out of the car, grabbed the package, jumped back in the car, and

the car attempted to speed away. The sensor warning from the box went off, which

indicated that the box had been opened. The car was stopped by Detective Rahall and

other law enforcement officers. Taylor was holding the package when the vehicle was

stopped. When the vehicle was searched, law enforcement found, in addition to the

postal package containing the cocaine, a few cell phones. The contents of these phones

were downloaded for information and analyzed by Detective Liggett. On one phone, there

was a message sent on the 7th of February, that read, "(S) end me the number; it's Penn,

right?"

{¶6} On April 30, 2019, a Confidential Informant (CI) made a controlled drug buy

from Roberts. Before going to the location of the purchase, the CI made a controlled

phone call, dialed by the officers, to one of the subjects of the investigation, Herbert

Taylor. Detective Nicole Gearhart, assigned to METRICH, searched the CI to make sure

she had no contraband on her person and then she fitted her with the transmitter

recording device that was used during the transaction. Before the CI left for the pre-

arranged location, Detective Perry Wheeler searched her vehicle. He also issued her the

control money, which had been photocopied to record serial numbers, for the buy. Then,

the CI drove to 264 East First Street, Mansfield, Ohio, followed by law enforcement.

{¶7} Officers could not watch the video of the controlled buy in real time;

however, they could hear the audio in real time. When the CI returned from the buy, Richland County, Case No. 2020 CA 0035 4

Detective Gearhart removed the recording device from her. The video recording from the

CI showed the CI arriving at the house, the CI handing money to Roberts, who in turn can

be heard on the tape giving the order for the drugs. When the CI left the house, she drove

to the station, followed by law enforcement. When she arrived at the station, the recording

device was removed. Detective Wheeler recovered the drugs and subsequently

submitted them to the Crime Lab for analysis. The CI was not allowed to touch the

equipment and the officers watched the video as it was being downloaded to verify the

events of the buy and to corroborate what they were hearing with what was on the video.

The Cl was also debriefed, asked to tell the officers what happened from the time that

she left until the time she returned. The CI in this case, Tara Sauer, tragically passed

away prior to trial.

{¶8} On May 9, 2019, the same CI made another controlled drug buy from

Roberts. Detective Gearhart again searched the CI when she arrived at the law

enforcement office. She fitted the CI with the transmitter recording device, activated it

before she left, and deactivated it and collected it when she returned. Detective Wheeler

issued the buy money. Detective Gearhart downloaded the video burned it onto CD, and

completed the integrity report on the equipment. Sergeant Joseph Soehnlen collected

the drugs directly from the CI after the buy. Detective Wheeler took the drugs from

Sergeant Soehnlen, packaged them, and submitted them to the Crime Lab for analysis.

{¶9} By May 10, 2019, arrest warrants for Roberts and Taylor were certified,

signed and active. Detective Wheeler worked surveillance on one of two residences

associated with the Roberts. On May 10, 2019, Roberts was driving the same vehicle

that he had been driving on February 8, 2019, a gold Pontiac Grand Prix, the day of the Richland County, Case No. 2020 CA 0035 5

controlled delivery to the address on Penn. Detective Wheeler followed him in an

unmarked vehicle. Roberts stopped his car, got out, and started walking towards

Wheeler's unmarked vehicle. Detective Wheeler then stepped out of his vehicle, arrested

Roberts, and transported him to the Richland County Jail. Roberts had a wallet, a social

security card, and a cell phone. Inside of Roberts’s wallet were bills with serial numbers

that matched those used in the controlled buy on May 9, 2019. Also found on his person

were keys, later identified as keys to a safe located in a house on East First Street.

{¶10} On May 10, 2019, in addition to the arrest warrant for Roberts, law

enforcement also had a search warrant for a house on 264 East First Street. Present at

that address was Roberts’s older son Akili Roberts, Jr., Erica Carr, Mercedes Granados,

Brianna Johnson, and Roberts’s younger son, Akki. Mail addressed to Roberts was also

found at that address.

{¶11} Sergeant Soehnlen and Detective Rahall started upstairs, where they first

encountered Erica Carr as she left the bathroom, where she was attempting to flush small

packets of drugs. Upstairs, in the northwest bedroom, was a safe. Access to that safe

was gained from keys that had been found in Roberts’s possession earlier that day when

he was arrested. While Detective Soehnlen stayed upstairs, Special Agent Minichello

brought Roberts’s keys upstairs and used them to open the safe. Inside of the safe, police

found wrapped up bags, a scale, a box of latex gloves or some type of surgical gloves.

They also found a large number of small baggies that Sergeant Soehnlen testified were

commonly used for packaging drugs. Also found on the nightstand was Inositol powder,

a dietary supplement, which is used as a cutting agent for drugs. Richland County, Case No. 2020 CA 0035 6

{¶12} Neither the keys, nor the safe, were taken into evidence, so as not to cause

any inconvenience to the residents. Law enforcement never found any other key that fit

the safe in the house at 264 East First Street.

{¶13} On April 18, 2019, in Case No. 2019-CR-00339, Roberts was indicted on

one count of Possession of Cocaine, in violation of R.C. 2925.11(A), a felony of the first

degree, with a Forfeiture specification, a violation of R. C. 2941.1417(A).

{¶14} On June 7, 2019, in Case No. 2019-CR-0403, Roberts was indicted on a

three-count indictment. Count One charged Roberts with Trafficking in a Fentanyl-related

Compound, in violation of R.C. 2925.03(A)(1), a felony of the fourth degree. Count Two

charged Roberts with Trafficking in Heroin, in violation of R.C. 2925.03(A)(1), a felony of

the fourth degree. Count Three charged Roberts with Trafficking in Cocaine, in violation

of R.C. 2925.03(A)(1), a felony of the fifth degree.

{¶15} On July 12, 2019, Case No. 2019-CR-0404, Roberts was indicted on one

count of Trafficking in Heroin, in violation of R.C. 2925.03(A)(2)&(C)(6)(e), a felony of the

second degree, with a Firearm specification, in violation of R.C. 2941.141, and with two

Forfeiture specifications, in violation of R.C. 2941.1417, one count of Possession of

Heroin, in violation of R.C. 2925.11(A)&(C)(6)(d), a felony of the second degree, with a

Firearm specification, in violation of R.C. 2941.141, and with two Forfeiture specifications,

in violation of R.C. 2941.1417, one count of Trafficking in Fentanyl-related Compound in

violation of R.C. 2925.03(A)(2)&(C)(9)(e), a felony of the second degree, with a Firearm

specification, in violation of R.C. 2941.141, and with two Forfeiture specifications, in

violation of R.C. 2941.1417; one count of Possession of Fentanyl in violation of R.C.

2925.11(A)&(C)(11)(D), a felony of the second degree, with a Firearm specification, in Richland County, Case No. 2020 CA 0035 7

violation of R.C. 2941.141, and with two Forfeiture specifications, in violation of R.C.

2941.1417, one count of Aggravated Trafficking in Drugs in violation of R.C.

2925.03(A)(2)7(C)(1)(a), a felony of the fourth degree, with a Firearm specification, in

violation of R.C. 2941.141, and with two Forfeiture specifications, in violation of R.C.

2941.1417, and Aggravated Possession of Drugs in violation of R.C.

2925.11(A)&(C)(1)(A), a felony of the fifth degree, with a Firearm specification, in violation

of R.C. 2941.141, and with two Forfeiture specifications, in violation of R.C. 2941.1417.

{¶16} On October 23, 2019 the trial court, over defense objection, granted the state's

motion for joinder, joining all three of the cases together for the purposes of trial. The three

cases proceeded to jury trial on March 2, 2020.

{¶17} The jury found Roberts guilty of all three Counts in Case no. 2019-CR-0403,

the jury found Roberts not guilty of the sole count in 2019-CR-0339 , and the jury found

Roberts not guilty on all six counts in 2019-CR-0404.

{¶18} As to 2019-CR-0403, the Court sentenced Roberts to eighteen months each

on Counts 1 and 2 and twelve months on Count 3, to be served consecutively, for an

aggregate prison term of four years.

Assignments of Error

{¶19} Roberts raises five Assignments of Error,

{¶20} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

GRANTING THE STATE'S MOTION TO JOIN THE TWO INDICTMENTS.

{¶21} “II. THE TRIAL COURT ERRED IN ADMITTING VIDEOS RECORDED BY

A DECEASED CONFIDENTIAL INFORMANT IN VIOLATION OF MR. ROBERTS'S

SIXTH AMENDMENT RIGHTS. Richland County, Case No. 2020 CA 0035 8

{¶22} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING A

MOTION FOR MISTRIAL MADE AS A RESULT OF PROSECUTORIAL MISCONDUCT.

{¶23} “IV. MR. ROBERTS'S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶24} “V. THE TRIAL COURT ERRED IN SENTENCING MR. ROBERTS TO A

FOUR-YEAR TERM OF INCARCERATION.”

I.

{¶25} In his First Assignment of Error, Roberts argues the trial court's decision to

grant the state's motion to join the three cases was an abuse of discretion.

Standard of Appellate Review.

{¶26} “Two or more offenses may be charged in the same indictment, information

or complaint in a separate count for each offense if the offenses charged * * * are of the

same or similar character * * *.” Crim.R. 8(A). Crim.R. 8(A) also allows the joinder of

offenses that “are based on the same act or transaction, or are based on two or more

acts or transactions connected together or constituting parts of a common scheme or

plan, or are part of a course of criminal conduct.” Permitting joinder “conserves resources

by avoiding duplication inherent in multiple trials and minimizes the possibility of

incongruous results that can occur in successive trials before different juries.” State v.

Hamblin,

, 158,

(1988).

{¶27} “Notwithstanding the policy in favor of joinder,” Crim.R. 14 permits a

defendant to request severance of the counts in an indictment “on the grounds that he or

she is prejudiced by the joinder of multiple offenses.” State v. LaMar,

,

,

, ¶ 49. The defendant “has the burden of furnishing the Richland County, Case No. 2020 CA 0035 9

trial court with sufficient information so that it can weigh the considerations favoring

joinder against the defendant’s right to a fair trial.” State v. Torres,

,

343,

(1981). But even if the equities appear to support severance, the

state can overcome a defendant’s claim of prejudicial joinder by showing either that (1) it

could have introduced evidence of the joined offenses as other acts under Evid.R. 404(B)

or (2) the “evidence of each crime joined at trial is simple and direct,” State v. Lott,

, 163,

(1990). See, State v. Ford,

,

,

, ¶103.

{¶28} We review a trial court’s ruling on a Crim.R. 14 motion for an abuse of

discretion. State v. Hand,

,

,

, ¶ 166;

Ford at ¶ 103. A defendant who appeals the denial of relief bears a heavy burden:

He must affirmatively demonstrate (1) that his rights were

prejudiced, (2) that at the time of the motion to sever he provided the trial

court with sufficient information so that it could weigh the considerations

favoring joinder against the defendant’s right to a fair trial, and (3) that given

the information provided to the court, it abused its discretion in refusing to

separate the charges for trial.

State v. Schaim,

, 59,

(1992); Ford at ¶106. An abuse

of discretion exists where the reasons given by the court for its action are clearly

untenable, legally incorrect, or amount to a denial of justice, or where the judgment

reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick,

9th Dist. Summit No. 26827,

, ¶35; In re Guardianship of S .H., 9th Dist. Richland County, Case No. 2020 CA 0035 10

Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking

No. 2006–CA–41, 2006–Ohio–5823, ¶54.

Issue for Appellate Review: Whether the trial court abused its discretion in

joining the case for trial.

{¶29} Roberts argues that beyond the base allegations of drugs, the facts in the

three cases were distinct. One case involved alleged sales to an informant, one case

involved the execution of a search warrant at a home, and the third case involved a co-

defendant's pick-up of a box containing drugs.[Appellant’s Brief at 4-5]. The state argues

all of the cases are tied together. They take place within a short span of time between

February and May, 2019. All three of the cases were investigated by the same law

enforcement agency and officers: the METRICH (Metro-Richland County) Enforcement

Unit. In two of the cases, Roberts is charged with trafficking and in the third, with

possessing a large quantity of cocaine. The state argues the offenses "are based on two

or more acts or transactions connected together or constituting parts of a common

scheme or plan, or are part of a course of criminal conduct," and were rightly joined.

[Appellee’s Brief at 7].

{¶30} Roberts fails to show that the trial court’s judgment reaches an end or

purpose not justified by reason and the evidence or that the reasons given by the court

for its action are clearly untenable, legally incorrect, or amounted to a denial of justice

and he therefore fails to establish an abuse of discretion.

{¶31} In the case at bar, the evidence concerning the mailing, delivery and pick-

up of the box containing five hundred grams of cocaine and the evidence of the two

controlled buys led to the issuance of the search warrant. The evidence of each of the Richland County, Case No. 2020 CA 0035 11

crimes was simple and direct. The jury was clearly capable of segregating the evidence

of the multiple charges when, as in the present case, the evidence of each crime is

uncomplicated. See State v. Hamblin,

, 159,

(1988).

The evidence did not confuse the jury and was not highly prejudicial. The jury in the case

at bar found Roberts not guilty of all six charges and the attendant specifications, the

most serious of the charges, in Case Number 2019 CR 0404, and also not guilty of

possession of cocaine with its attendant specification in Case No. 2019 CR0339. The

jury convicted Roberts only of the controlled buy charges that were recorded with both

audio and video.

{¶32} We cannot conclude that Roberts was prejudiced by the joinder. We

conclude that the trial court did not abuse its discretion in joining the offenses for trial.

{¶33} Roberts’s First Assignment of Error is overruled.

II.

{¶34} In his Second Assignment of Error, Roberts contends that the trial court

erred when it permitted the state to introduce the audio and video recordings of the

undercover drug buys that took place on April 30, 2019 and May 9, 2019 into evidence.

More specifically, Roberts argues that pursuant to the U.S. Supreme Court’s decision in

Crawford v. Washington,

,

,

(2004), the taped

statements should have been excluded by the trial court as they contained out-of-court

statements made by a confidential informant who did not appear or testify at trial.

Standard of Appellate Review

{¶35} “[A] trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the Richland County, Case No. 2020 CA 0035 12

rules of procedure and evidence.” Rigby v. Lake Cty.,

, 271,

(1991). “However, we review de novo evidentiary rulings that implicate the

Confrontation Clause. United States v. Henderson,

, 333 (6th Cir. 2010).”

State v. McKelton,

,

,

, ¶97.

{¶36} We note that any error will be deemed harmless if it did not affect the

accused’s “substantial rights.” Before constitutional error can be considered harmless, we

must be able to “declare a belief that it was harmless beyond a reasonable doubt.”

Chapman v. State of Cal.,

, 24,

,

(1967).

Issue for Appellate Review: Whether the trial court violated Roberts’s right to

confrontation by allowing the state to introduce video and audio recordings made during

the controlled drugs on April 30, 2019 and May 9, 2019.

{¶37} The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the

witnesses against him.”

{¶38} In Crawford v. Washington,

,

,

(2004), the Supreme Court of the United States held that out-of-court statements that are

testimonial are barred, under the Confrontation Clause, unless the witness is unavailable

and the defendant had a prior opportunity to cross-examine the witness, regardless of

whether the statements are deemed reliable by the trial court. The Court defined these

“testimonial” statements to include “ex parte in-court testimony or its functional equivalent-

that is, material such as affidavits, custodial examinations, prior testimony that the

defendant was unable to cross-examine, or similar pretrial statements that declarants

would reasonably expect to be used “prosecutorially” and “extrajudicial statements * * * Richland County, Case No. 2020 CA 0035 13

contained in formalized testimonial materials, such as affidavits, depositions, prior

testimony, or confessions,” and “statements that were made under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial.”

.

{¶39} Thus as to “testimonial evidence,” “the Sixth Amendment demands what the

common law required: unavailability and a prior opportunity for cross-examination.”

. “To trigger a violation of the Confrontation Clause, an admitted statement must

be testimonial in nature, and must be hearsay.” United States v. Deitz,

, 683

(6th Cir. 2009). A statement is testimonial where a reasonable person would anticipate

that his or her statement would be used “against the accused in investigating and

prosecuting the crime.” United States v. Cromer,

, 675 (6th Cir. 2004). See

also State v. Stahl,

,

,

, at paragraph

two of the syllabus.

{¶40} In the case at bar, we find that any statements made by the confidential

informant on the recordings to be non-testimonial in nature, and thus, the Confrontation

Clause does not bar them. The confidential informant made the statements to Roberts

and his co-defendant who are not law-enforcement officers, and the statements “were not

the result of any official examination.” State v. Nix, 1st Dist. No. C-030696, 2004-Ohio-

5502, ¶75.

{¶41} Roberts does not identify with specificity any statement contained on the

recordings that he contends are objectionable and prejudicial. It does not appear from

the record that the state used or argued at trial that any statements made by the

confidential informant implicated Roberts in the sale or possession of drugs, or that any Richland County, Case No. 2020 CA 0035 14

statements established the elements of the crimes for which Roberts was indicted. See,

United States v. Hearn,

, 483-486(6th Cir. 2007).

{¶42} Further, “[t]he testimony at issue was offered to explain the subsequent

investigative activities of the witnesses. It was not offered to prove the truth of the matter

asserted. It is well established that extrajudicial statements made by an out-of-court

declarant are properly admissible to explain the actions of a witness to whom the

statement was directed. See United States v. Zamarripa (C.A.8, 1976),

,

982, certiorari denied

,

,

; State v. Lopez

(1957),

, 51-2,

, 666. The testimony was properly admitted for

this purpose.” State v. Thomas,

, 232,

(1980).

{¶43} In the case at bar, the confidential informants statements are admissible as

providing context for Roberts’s statements and actions, not for the truth of the matter

asserted. See United States v. Sexton,

, 743 (6th Cir.), vacated on

other grounds,

(2005). Therefore, because the statements of the

confidential informant are not hearsay, they fall outside of the scope of the Confrontation

Clause and the recorded events of April 30, 2019 and May 9, 2019 were properly admitted

at Roberts’s trial. State v. Suber, 5th Dist. Licking No. 16 CA 14,

.

{¶44} Roberts’s Second Assignment of Error is overruled.

III.

{¶45} In his Third Assignment of Error, Roberts maintains that the trial court

abused its discretion in denying his motion for a mistrial after the state's misconduct.

Standard of Appellate Review. Richland County, Case No. 2020 CA 0035 15

{¶46} “Mistrials need to be declared only when the ends of justice so require and

a fair trial is no longer possible.” State v. Franklin,

, 127,

(1991). The standard of review for evaluating a trial court’s decision to grant or deny a

mistrial is abuse of discretion. State v. Maurer,

,

(1984).

In reviewing a claim that a mistrial should have been granted, the Ohio Supreme Court

has noted “[t]his court has instead adopted an approach which grants great deference to

the trial court’s discretion in this area, in recognition of the fact that the trial judge is in the

best position to determine whether the situation in his courtroom warrants the declaration

of a mistrial.” State v. Shaffer, 5th Dist. Richland No. 2003-CA-0108,

,

¶18 quoting [State v.] Widner [

,

(1981)]. See, also,

Wade v. Hunter,

, 687,

, 836,

(1949).

{¶47} An abuse of discretion can be found where the reasons given by the court

for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or

where the judgment reaches an end or purpose not justified by reason and the evidence.

Tennant v. Gallick, 9th Dist. Summit No. 26827,

, ¶35; In re Guardianship

of S.H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,

5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823, ¶54

Issue for Appellate Review: Whether the trial court abused its discretion by

denying Roberts’s motion for a mistrial.

{¶48} In this case, the trial court allowed the jurors to submit questions. At the

conclusions of Wayne Liggett’s testimony, a juror submitted a question, but the defense,

at sidebar, objected to the question. 4T at. 480-4811. The trial court sustained the

1 For clarity, the jury trial transcript will be referred to as, “__T.__,” signifying the volume and the page number. Richland County, Case No. 2020 CA 0035 16

objection to which the state replied: "There's a defense objection? Note it's a defense

objection." 4T. at 482. The parties stepped back from the bench, and the trial court

advised the jury that it would not ask the question. Specifically, the trial court stated:

“Ladies and gentlemen, I can't ask the witness this particular question. Not that it wasn't

relevant or anything, but for evidentiary ruling reasons. With that, we're going to let

Detective Liggett step down. He's done. And we're going to go ahead and do lunch." 4T.

at 482. The state then replied; "I didn't know if the Court was going to sustain the defense's

objection." 4T. at 482. After the jury had been excused, the defense lodged an objection

to the state's statement and moved for a mistrial. 4T. at 483-88.

{¶49} Crim. R. 52(A) defines harmless error, “Any error, defect, irregularity, or

variance which does not affect substantial rights shall be disregarded.” Before

constitutional error can be considered harmless, we must be able to “declare a belief that

it was harmless beyond a reasonable doubt.” Chapman v. California

, 24,

,

(1967). Where there is no reasonable possibility that unlawful

testimony contributed to a conviction, the error is harmless and therefore will not be

grounds for reversal. State v. Lytle,

,

(1976), paragraph

three of the syllabus, vacated on other grounds in Lytle v. Ohio,

,

,

(1978).

{¶50} In the case at bar, the jury acquitted Roberts of the six most serious charges

and specifications and acquitted Roberts of seven of the ten indicted charges against

Roberts. Accordingly, we find there is no reasonable possibility that comments of the

prosecutor contributed to Roberts’s conviction. Richland County, Case No. 2020 CA 0035 17

{¶51} The trial court did not abuse its discretion in denying Roberts’s motion for a

mistrial.

{¶52} Roberts’s Third Assignment of Error is overruled.

IV.

{¶53} In his Fourth Assignment of Error, Roberts maintains that his convictions

are against the manifest weight of the evidence. Although he phrases his assignment of

error in terms of “manifest weight,” Roberts nonetheless contends, “Assuming arguendo

that the videos were admissible, the evidence was still insufficient to establish Mr. Roberts's

guilt beyond a reasonable doubt…. There is no evidence that Mr. Roberts engaged in a

drug transaction.” [Appellant’s Brief at 11].

Standard of Appellate Review– Sufficiency of the Evidence.

{¶54} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. __,

, 2156,

(2013); Hurst v. Florida,

,

621,

(2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker,

,

,

, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson,

,

,

, ¶13.

{¶55} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks,

, 574 Richland County, Case No. 2020 CA 0035

(1991), paragraph two of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith,

, 102 at n.4,

(1997; Walker, at ¶30. “The relevant inquiry is whether, after viewing the

evidence in the 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.” Jenks at

paragraph two of the syllabus. State v. Poutney,

,

,

, ¶19. Thus, “on review for evidentiary sufficiency we do not second-guess

the jury's credibility determinations; rather, we ask whether, ‘if believed, [the evidence]

would convince the average mind of the defendant's guilt beyond a reasonable doubt.’”

State v. Murphy,

, 543,

(2001), quoting Jenks at

paragraph two of the syllabus; Walker at ¶31. We will not “disturb a verdict on appeal on

sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached by

the trier-of-fact.’” State v. Ketterer,

,

,

,

¶ 94, quoting State v. Dennis,

, 430,

(1997); State v.

Montgomery,

,

,

, ¶74.

Issue for Appellate Review: Whether, after viewing the evidence in the light

most favorable to the prosecution, the evidence, if believed, would convince the

average mind of Roberts’s guilt on each element of the crimes for which he was

convicted beyond a reasonable doubt.

{¶56} R.C. 2925.03(A) sets forth the essential elements of trafficking in drugs: "No

person shall knowingly sell or offer to sell a controlled substance."

{¶57} In Case Number 2019 CR 0403 Roberts was charged with knowingly selling

or offering to sell a fentanyl related substance on April 30, 2019 [Count 1], heroin on May Richland County, Case No. 2020 CA 0035 19

9, 2019 [Count 2], and cocaine on May 9, 2019 [Count 3]. There is no dispute as to either

the identity or quantity of the drug involved in each count.

{¶58} Whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances, including the

doing of the act itself.” State v. Huff,

, 563,

(1st Dist.

2001) (Footnote omitted.) Thus, “[t]he test for whether a defendant acted knowingly is a

subjective one, but it is decided on objective criteria.” State v. McDaniel, 2nd Dist.

Montgomery No. 16221,

(May 1, 1998), citing State v. Elliott,

,

(10th Dist. 1995).

{¶59} In the case at bar, the jury was instructed on complicity. 4T. at 637. R.C.

2923.03(A)(2) sets forth the elements for complicity and provides, in relevant part:

No person, acting with the kind of culpability required for the

commission of an offense, shall do any of the following:

***

(2) Aid or abet another in committing the offense;

***

(B) It is no defense to a charge under this section that no person with

whom the accused was in complicity has been convicted as a principal

offender.

(C) No person shall be convicted of complicity under this section

unless an offense is actually committed, but a person may be convicted of

complicity in an attempt to commit an offense in violation of section 2923.02

of the Revised Code. Richland County, Case No. 2020 CA 0035 20

***

{¶60} It is true that a person's mere association with a principle offender is not

enough to sustain a conviction based on aiding and abetting. State v. Sims,

, 58,

, 674-675 (8th Dist. 1983). In order to constitute aiding and

abetting, the accused must have taken some role in causing the commission of the

offense.

With respect to the requirements for a conviction for complicity by aiding and

abetting, the Supreme Court of Ohio has stated,

To support a conviction for complicity by aiding and abetting pursuant

to R.C. 2923.03(A)(2), the evidence must show that the defendant

supported, assisted, encouraged, cooperated with, advised, or incited the

principal in the commission of the crime, and that the defendant shared the

criminal intent of the principal. Such intent may be inferred from the

circumstances surrounding the crime.

State v. Johnson,

, 2001–Ohio–187,

, at syllabus.

{¶61} Aiding and abetting may be shown by both direct and circumstantial

evidence, and participation may be inferred from presence, companionship, and conduct

before and after the offense is committed. State v. Cartellone,

, 150,

, (8th Dist. 1981), citing State v. Pruett,

, 34,

(4th Dist. 1971); See also, State v. Mendoza,

, 342,

(3rd Dist. 2000), quoting State v. Stepp,

, 568–569,

(4th Dist. 1997).

{¶62} Aiding and abetting may also be established by overt acts of assistance

such as driving a getaway car or serving as a lookout. State v. Cartellone, 3 Ohio App.3d Richland County, Case No. 2020 CA 0035 21

at 150,

. See also, State v. Trocodaro,

,

(10th Dist. 1973); State v. Lett,

, 52, 2005–Ohio–1308,

, 1163 (8th Dist.); State v. Polite, 5th Dist. Stark No. 2017 CA 00129, 2018-Ohio-

1372, ¶56.

{¶63} The events of April 30, 2019 and May 9, 2019 were controlled buys that

were recorded in real time by the confidential informant. State’s Exhibit 2 and State’s

Exhibit 3; 2T. at 318; 340; 344 3T. at 578. Roberts is seen in both videos. 3T. at 339;

344; 388.

{¶64} On April 30, 2019, Roberts is seen on the couch with a significant number

of dollar bills in in hands. Money was handed to Roberts by the confidential informant. 2T.

at 391. The confidential informant is seen in the basement while the codefendant weighs

and packages the drugs. He hands the drugs to the confidential informant in the living

room.

{¶65} On May 9, 2019, the confidential informant is seen entering the vehicle and

driving to the residence. The co-defendant answers the door. The confidential informant

waits in the living room. Both the co-defendant and Roberts return to the living room. The

confidential informant can be heard to say, “You gonna do me good?” It appears that

Roberts hugs the confidential informant. The confidential informant leaves the residence

and drives back to MERTECH.

{¶66} Evidence was presented during Roberts’s jury trial that the confidential

informant and the vehicle were searched both before and after returning on April 30, 2019

and May 9, 2019. 2T. at 274-276; 317-319; 3T. at 494-496. The confidential informant

was fitted with the transmitter/recording device. 3T. at 494-496. The confidential informant Richland County, Case No. 2020 CA 0035 22

was provided with buy money that had been photocopied for the purpose of later

identifying it. 2T. at 275; 319. Law enforcement officers followed the confidential informant

to the house and back to MERTECH. 2T. at 275-276. Law enforcement officers took

possession of the drugs and the recording device, and once again searched her and her

vehicle. 2T. at 276; 319.

{¶67} Roberts had in his wallet at the time of his arrest on May 10, 2019 ninety

dollars of the one hundred eighty dollar buy money used by the confidential informant to

purchase the drugs on May 9, 2019. 2T. at 355. The drugs purchased by the confidential

informant were submitted to the laboratory. The video was downloaded while being

watched and burned to disks. 3T. at 495-496. An integrity report was run to establish the

video had not been altered. 3T. at 495.

{¶68} If the state relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction.” State v. Jenks,

, 272,

(1991), paragraph one of the syllabus, superseded by

State constitutional amendment on other grounds as stated in State v. Smith,

,

(1997). “Circumstantial evidence and direct evidence inherently

possess the same probative value [.]” Jenks, 61 Ohio St.3d at paragraph one of the

syllabus. Furthermore, “[s]ince circumstantial evidence and direct evidence are

indistinguishable so far as the jury's fact-finding function is concerned, all that is required

of the jury is that i[t] weigh all of the evidence, direct and circumstantial, against the

standard of proof beyond a reasonable doubt.“ Jenks, 61 Ohio St.3d at 272,

. While inferences cannot be based on inferences, a number of conclusions can result Richland County, Case No. 2020 CA 0035 23

from the same set of facts. State v. Lott,

, 168,

(1990),

citing, Hurt v. Charles J. Rogers Transp. Co,

, 331,

(1955). Moreover, a series of facts and circumstances can be employed by a jury as

the basis for its ultimate conclusions in a case. Lott, 51 Ohio St.3d at 168,

, citing Hurt, 164 Ohio St. at 331,

.

{¶69} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Roberts aided and abetted in knowingly selling or offering to sell controlled substances

as alleged in Case Number 19 CR 403, Counts 1, 2 and 3. We hold, therefore, that the

state met its burden of production regarding the element of trafficking in a fentanyl related

substance, heroin and cocaine, and, accordingly, there was sufficient evidence to support

Roberts’s convictions.

Standard of Appellate Review – Manifest Weight.

{¶70} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins,

, 386–387,

(1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith,

,

, 1997–Ohio–355; State v.

Issa,

, 67,

(2001).

“[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the

finding of facts. Richland County, Case No. 2020 CA 0035 24

***

“If the evidence is susceptible of more than one construction, the reviewing

court is bound to give it that interpretation which is consistent with the

verdict and judgment, most favorable to sustaining the verdict and

judgment.”

Seasons Coal Co., Inc. v. Cleveland,

, 80,

(1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

{¶71} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa,

, 67,

(2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.

Because the trier of fact sees and hears the witnesses and is particularly competent to

decide whether, and to what extent, to credit the testimony of particular witnesses, the

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney,

, 2010–Ohio–2420,

, ¶ 20. In

other words, “[w]hen there exists two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–

Ohio–1152, at ¶ 13, citing State v. Gore,

, 201,

(7th

Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

{¶72} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘the jury clearly lost Richland County, Case No. 2020 CA 0035 25

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

reversed and a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,

quoting State v. Martin,

, 175,

, 720–721(1st Dist.

1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

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

Issue for Appellate Review: Whether the jury clearly lost their way and created

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

trial ordered.

{¶73} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. “While the trier of

fact may take note of the inconsistencies and resolve or discount them accordingly * * *

such inconsistencies do not render defendant’s conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739,

(Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236,

(May 28, 1996). Indeed, the trier of fact need not believe all of a witness’

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill,

, 67,

(1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell,

,

(4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks,

, 272,

(1991), paragraph one of the syllabus, superseded by State constitutional Richland County, Case No. 2020 CA 0035 26

amendment on other grounds as stated in State v. Smith,

, 102 at n.4,

(1997).

{¶74} In the case at bar, the jury heard the witnesses and viewed the evidence.

The jury saw the witnesses subject to cross-examination. The jury heard Roberts’s

attorney’s arguments and explanations about the evidence and his actions. Further, the

jury was able to view the events in real-time through the body cameras and pictures from

the officers involved. The jury found Roberts not guilty of all six counts and specifications

in Case Number 19-CR-404 and one count in Case Number 19-CR-399. Thus, a rational

basis exists in the record for the jury’s decision.

{¶75} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins,

, 386–387,

(1997), quoting Martin,

,

. Based upon

the foregoing and the entire record in this matter we find Roberts’s convictions are not

against the sufficiency or the manifest weight of the evidence. To the contrary, the jury

appears to have fairly and impartially decided the matters before them. The jury heard

the witnesses, evaluated the evidence, and was convinced of Roberts’s guilt. The jury

neither lost their way nor created a miscarriage of justice in convicting Roberts of the

offenses.

{¶76} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crimes for which Roberts was convicted.

{¶77} Roberts’s Fourth Assignment of Error is overruled.

V. Richland County, Case No. 2020 CA 0035 27

{¶78} In his Fifth Assignment of Error, Roberts argues first that the sentences

imposed by the trial court is inconsistent with the purposes of felony sentencing, and further

that the imposition of consecutive sentences was not supported by the record.

Standard of Appellate Review.

{¶79} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum,

, 2016–Ohio–1002,

, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004,

, ¶31. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell,

, 2014–Ohio–3177,

, ¶28.

{¶80} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford,

,

(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb,

(1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

.

{¶81} Recently, the Ohio Supreme Court reviewed the issue of “whether a

sentence is “contrary to law” under R.C. 2953.08(G)(2)(b) when an appellate court finds

that the record does not support a sentence with respect to R.C. 2929.11 and 2929.12.” Richland County, Case No. 2020 CA 0035 28

State v. Jones, Oh. Sup. Ct. No. 2018-0444,

,

(Dec.

18, 2020).2 A plurality of the Court in Jones found,

Nothing in R.C. 2953.08(G)(2) permits an appellate court to

independently weigh the evidence in the record and substitute its judgment

for that of the trial court concerning the sentence that best reflects

compliance with R.C. 2929.11 and 2929.12. In particular, R.C.

2953.08(G)(2) does not permit an appellate court to conduct a freestanding

inquiry like the independent sentence evaluation this court must conduct

under R.C. 2929.05(A) when reviewing a death penalty-sentence. See

State v. Hundley, ––– Ohio St.3d ––––,

, ––– N.E.3d ––, ¶

128 (recognizing that R.C. 2929.05(A) requires de novo review of findings

and other issues within its scope).

,

, ¶ 42. The Court in Jones noted that,

R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate

a sentence if it clearly and convincingly finds that “the record does not

support the sentencing court’s findings under” certain specified statutory

provisions. But R.C. 2929.11 and 2929.12 are not among the statutory

provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D),

2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.

,

, ¶ 28. The plurality concluded,

2 We note that Jones was decided after briefs were filed in the case at bar. However, Jones does not change the law; rather, Jones simply clarifies existing law and precedents. Richland County, Case No. 2020 CA 0035 29

R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an

appellate court to modify or vacate a sentence based on its view that the

sentence is not supported by the record under R.C. 2929.11 and 2929.12.

,

, ¶39. The Court clarified,

The statements in Marcum at ¶ 23 suggesting that it would be “fully

consistent” with R.C. 2953.08(G) for an appellate court to modify or vacate

a sentence when the record does not support the sentence under R.C.

2929.11 or 2929.12 were made only in passing and were not essential to

this court’s legal holding. The statements are therefore dicta.

,

, ¶ 27.

Issue for Appellate Review: Whether the record clearly and convincing does

not support Roberts’s sentence under 2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4),

and 2929.20(I).

R.C. 2929.13(B).

{¶82} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony.

Roberts was convicted of two felonies of the fourth degree and one felony of the fifth

degree. In relevant part the statute provides,

(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an

offender is convicted of or pleads guilty to a felony of the fourth or fifth

degree that is not an offense of violence or that is a qualifying assault

offense, the court shall sentence the offender to a community control

sanction or combination of community control sanctions if all of the following

apply: Richland County, Case No. 2020 CA 0035 30

(i) The offender previously has not been convicted of or pleaded

guilty to a felony offense.

(ii) The most serious charge against the offender at the time of

sentencing is a felony of the fourth or fifth degree.

(iii) If the court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, the department,

within the forty-five-day period specified in that division, provided the court

with the names of, contact information for, and program details of one or

more community control sanctions that are available for persons sentenced

by the court.

Emphasis added. In addition, R.C. 2929.13(B)(1)(b)(ix) expressly recognizes a trial

court’s “discretion to impose a prison term” on a defendant who is found guilty of a fifth-

degree felony and “previously had served * * * a prison term.” See State v. Lawson, 2018-

Ohio-1532,

, ¶ 16 (2nd Dist.), citing State v. Robinson, 2nd Dist. Champaign

No. 2012-CA-17,

, ¶ 22, and State v. Parker, 8th Dist. Cuyahoga No.

104610,

, ¶ 6-10; See also, State v. Chatterton, 2nd Dist. Miami No. 2020-

CA-2,

, ¶5. Finally, R.C. 2929.13(B)(1)(b)(v)(i)(i)(i) provides a trial court

discretion to impose a prison term on a defendant who is found guilty of a fourth or fifth

degree felony if the court finds that the offender committed the offense for hire or as part

of an organized criminal activity.

{¶83} Roberts has two prior felony convictions. 5T. at 742. The legislature did not

impose a time limit upon the prior felony convictions, unlike R.C. 2929.13(B)(1)(a)(iii)

which provides, “(iii) The offender previously has not been convicted of or pleaded guilty Richland County, Case No. 2020 CA 0035 31

to a misdemeanor offense of violence that the offender committed within two years prior

to the offense for which sentence is being imposed.” Emphasis added.

{¶84} Furthermore, Roberts’s sentences were within the statutory sentencing

range and therefore there is nothing to indicate that the sentence is contrary to law.

R.C. 2929.13(C).

{¶85} R.C. 2929.13(C) applies to one convicted of a third degree felony. This

provision therefore does not apply in Roberts’s case.

R.C. 2929.13(D).

{¶86} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or

second degree, for a felony drug offense that is a violation of any provision of Chapter

2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison

term is specified as being applicable, and for a violation of division (A)(4) or (B) of section

2907.05 of the Revised Code for which a presumption in favor of a prison term is specified

as being applicable.

{¶87} Roberts was not convicted of a felony of the first or second degree.

Accordingly, R.C. 2929.13(D) does not apply to Roberts’s case.

R.C. 2929.14 (B)(2)(e).

{¶88} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court

can impose upon a defendant under specified circumstances. Roberts was not given an

additional prison sentence.

R.C. 2929.14 (C)(4) Consecutive Sentences.

{¶89} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. Richland County, Case No. 2020 CA 0035 32

{¶90} In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption

by making the statutory, enumerated findings set forth in R.C. 2929.14(C) (4). State v.

Bonnell,

,

,

, ¶ 23. This statute requires

the trial court to undertake a three-part analysis. State v. Alexander, 1st Dist. Hamilton

Nos. C–110828 and C–110829,

,

, ¶ 15.

{¶91} R.C. 2929.14(C)(4) provides,

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender’s conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct. Richland County, Case No. 2020 CA 0035 33

(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶92} Thus, in order for a trial court to impose consecutive sentences the court

must find that consecutive sentences are necessary to protect the public from future crime

or to punish the offender. The court must also find that consecutive sentences are not

disproportionate to the offender’s conduct and to the danger the offender poses to the

public. Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18,

or while under post-release control for a prior offense; (b) at least two of the multiple

offenses were committed as part of one or more courses of conduct, and the harm caused

by two or more of the offenses was so great or unusual that no single prison term for any

of the offenses committed as part of any of the courses of conduct would adequately

reflect the seriousness of the offender’s conduct; or (c) the offender’s criminal history

demonstrates that consecutive sentences are necessary to protect the public from future

crime by the offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-

2058, ¶ 36.

{¶93} In State v. Bonnell,

, 2014–Ohio–3177,

,

syllabus, the Supreme Court of Ohio stated that:

In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the Richland County, Case No. 2020 CA 0035 34

sentencing hearing and incorporate its findings into its sentencing entry, but

it has no obligation to state reasons to support its findings.

{¶94} Furthermore, the sentencing court is not required to recite “a word-for-word

recitation of the language of the statute.” Bonnell, ¶ 29. “[A]s long as the reviewing court

can discern that the trial court engaged in the correct analysis and can determine that the

record contains evidence to support the findings, consecutive sentences should be

upheld.”

A failure to make the findings required by R.C. 2929.14(C)(4) renders a

consecutive sentence contrary to law. Bonnell, ¶ 34. The findings required by R.C.

2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing

entry.

at the syllabus. However, a trial court’s inadvertent failure to incorporate the

statutory findings in the sentencing entry after properly making those findings at the

sentencing hearing does not render the sentence contrary to law; rather, such a clerical

mistake may be corrected by the court through a nunc pro tunc entry to reflect what

actually occurred in open court. Bonnell, ¶ 30.

{¶95} In this case, the record does support a conclusion that the trial court made

all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive

sentences.

R.C. 2929.14(C)(4): [T]he court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is necessary to

protect the public from future crime or to punish the offender and that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct

and to the danger the offender poses to the public.

{¶96} The trial court considered this factor. 5T. at 752-753. Richland County, Case No. 2020 CA 0035 35

R.C. 2929.14(C)(4)(a): The offender committed one or more of the multiple

offenses while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

{¶97} This provision does not apply to Roberts’s case.

R.C. 2929.14(C)(4)(b): At least two of the multiple offenses were committed

as part of one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single prison

term for any of the offenses committed as part of any of the courses of conduct

adequately reflects the seriousness of the offender’s conduct.

{¶98} The trial court considered this factor. 5T. at 752-753.

R.C. 2929.14(C)(4)(c): The offender’s history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶99} The trial court considered this factor. 5T. at 752-753.

R.C. 2929.20.

{¶100} R.C. 2929.20 (I) is inapplicable, as Roberts was not applying to the court

for judicial release.

{¶101} The fact that Roberts received a different sentence from his co-defendant

does not in and of itself establish that Roberts was punished for going to trial. The record

precludes meaningful comparison of Roberts’s sentence to that of his co-defendant. We

have neither the pre-sentence investigation report nor the transcript concerning the trial Richland County, Case No. 2020 CA 0035 36

court’s sentencing of the co-defendant. The record, such as it is, indicates that the co-

defendant entered a negotiated guilty plea to one count. 5T. at 754.

{¶102} In State v. Hill,

,

(1994), the defendant

was convicted of complicity to trafficking in marijuana, and sentenced to one year in prison

and further ordered to forfeit his apartment complex. His co-defendant received probation

instead of a prison sentence. Id. at 29, 635 N.E.2d at 1252. On appeal, he argued that

the trial court abused its discretion by giving him a harsher sentence than was given his

co-defendant. Id. The Ohio Supreme Court observed,

There is no question that on its face the sentence received by

appellant, when compared to Newbauer’s punishment, is disproportionate.

Given the fact that Newbauer received probation, appellant’s one-year

prison sentence does appear to be harsh. However, as a general rule, an

appellate court will not review a trial court’s exercise of discretion in

sentencing when the sentence is authorized by statute and is within the

statutory limits. See, generally, Toledo v. Reasonover (1965),

, 24,

, 14,

, 180-181. See, also, State v.

Cassidy (1984),

, 102, 21 OBR 107, 108-109,

, 323; State v. Burge (1992),

, 249,

, 869; and State v. Grigsby (1992),

, 302,

, 190.

70 Ohio St.3d at 29,

,

. Roberts cites no precedent, or any

other authority, for reversal of an otherwise valid sentence on the basis that more culpable

co-defendants were not punished more severely. There is no requirement that co- Richland County, Case No. 2020 CA 0035 37

defendant’s receive equal sentences. State v. Lloyd, 11th Dist. Lake No. 2002-L-069,

at ¶ 21; United State v. Frye,

, 667(6th Cir. 1987). Each

defendant is different and nothing prohibits a trial court from imposing two different

sentences upon individuals convicted of similar crimes. State v. Aguirre, 4th Dist. Gallia

No. 03CA5,

, ¶ 50. In this case, there is nothing in the record to show that

the difference in Roberts’s sentence from that of his co-defendant was the result of

anything other than the individualized factors that were applied to Roberts. State v.

Beasley, 8th Dist. Cuyahoga No. 82884,

, ¶ 23.

{¶103} We conclude that the trial court did not commit error when it sentenced

Roberts to a sentence that differed from his co-defendant. Upon review, we find that the

trial court’s sentencing on the charges complies with applicable rules and sentencing

statutes. The sentence was within the statutory sentencing range. R.C. 2953.08(G)(2)(b)

does not provide a basis for an appellate court to modify or vacate a sentence based on

its view that the sentence is not supported by the record under R.C. 2929.11 and

2929.12. State v. Jones, Oh. Sup. Ct. No. 2018-0444,

,

(Dec. 18, 2020), ¶39.

{¶104} Roberts’s Fifth Assignment of Error is overruled. Richland County, Case No. 2020 CA 0035 38

{¶105} The judgment of the Richland County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Wise, John, J., and

Wise, Earle E., J., concur