[Cite as In re A.K.,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: A.K. : APPEAL NO. C-210178 TRIAL NO. 19-4023-X :

: O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 1, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

Raymond T. Faller, Hamilton County Public Defender, and Jessica R. Moss, Assistant Public Defender, for Defendant-Appellant, OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} An anonymous tip led to A.K.’s arrest for possession of drugs. After a juvenile

court adjudicated A.K. delinquent, she now appeals challenging the admission of this

anonymous tip into evidence, the admission of a photograph of the contents of her purse at

the time of her arrest, and the weight and sufficiency of the evidence in support of her

adjudication. Although we agree that the juvenile court committed an evidentiary error by

admitting the anonymous tip, we ultimately find this error harmless. Seeing no reversible

error below, we overrule A.K.’s assignments of error and affirm the judgment of the juvenile

court.

I. {¶2} This case arose after a security employee working at a local high school, Tonya

Terrell, received an anonymous tip that A.K., a 15 year-old student at the time, was selling

Xanax in the school. After pulling A.K. out of class, Ms. Terrell searched her purse and

discovered a bottle containing Oxycodone pills, with the name of the prescription owner

scratched off the label. Based on this evidence, the state eventually initiated delinquency

proceedings against A.K. for possession of drugs.

{¶3} At trial, A.K. testified that the pills belonged to her grandfather. She

explained that she often took care of her grandfather, and that she accompanied him to his

doctor’s appointment the day before and surmised that he must have placed the pills in her

purse at that time. According to A.K., her grandfather had a habit of storing his personal

items in her purse, such as his wallet, glasses, keys, and cellphone, which she claims were

also in her purse at the time of her arrest.

{¶4} Unfortunately, A.K.’s grandfather passed away before he could provide

testimony in this matter. However, Officer Dye, the school resource officer, recounted that

A.K.’s grandfather called him the day after her arrest and admitted that the pills belonged to

2 OHIO FIRST DISTRICT COURT OF APPEALS

him. Nevertheless, Officer Dye also testified that A.K. admitted to him during an interview

that “she got [the pills] from someone on the street.”

{¶5} That admission proved decisive, as the magistrate adjudicated A.K delinquent

for drug possession based upon it. The juvenile court subsequently adopted the magistrate’s

decision. On appeal, A.K. challenges (1) the admission of the anonymous tip alleging that

someone was selling drugs in the school, (2) the admission of a picture of the contents of her

purse, and (3) the weight and sufficiency of the evidence in support of her adjudication.

II.

{¶6} A.K.’s first assignment of error targets the anonymous tip identifying her as

someone selling drugs in the school as inadmissible hearsay along with a violation of her

Confrontation Clause rights under the federal and Ohio Constitutions. The anonymous tip

first emerged on direct examination of Ms. Terrell:

PROSCEUTOR: I want to draw your attention to April 2nd of 2019. Were you

notified of a situation for [sic] an anonymous tip?

MS. TERRELL: Yes.

PROSECUTOR: Okay. And without saying what that person said, what was

the nature of that allegation?

MS. TERRELL: The nature of that allegation was one of the administrators

had came to me and said that a young lady came to her saying that a young

lady was talking about—

DEFENSE COUNSEL: Objection, Your Honor. That’s hearsay.

MS. TERRELL: Okay.

PROSECUTOR: Without saying what they said, what was your impression of

what was going on?

3 OHIO FIRST DISTRICT COURT OF APPEALS

MS. TERRELL: Someone was serving—selling drugs in the school.

{¶7} But the state went further with Ms. Terrell, and had her connect the tip to

A.K., as the “young lady that they told us it was.” Therefore, the state did not simply use the

tip as background to explain why an investigation occurred, but as probative of A.K.’s guilt.

Reinforcing this point, when A.K. took the stand to testify in her own defense, the

prosecutor badgered her repeatedly about the anonymous tip, wielding it as substantive

evidence and straying well beyond Ms. Terrell’s limited testimony:

PROSECUTOR: Okay. And do you know why [Ms. Terrell] came and got you?

A.K.: No, I do not.

PROSECUTOR: Okay. Because there were allegations that you were selling

Xanax in the bathroom.

DEFENSE COUNSEL: Objection, Your Honor. That is completely irrelevant,

and that is hearsay.

THE COURT: Overruled.

***

PROSECUTOR: There were allegations that you were selling Xanax in the

bathroom, correct? Were you made aware of that?

A.K.: Yes.

PROSECUTOR: So your indication is that didn’t happen?

A.K.: Correct.

PROSECUTOR: Okay. So someone makes an allegation that you are in the

bathroom selling pills, correct, which, according to you, are [sic] not true?

A.K.: Which is not true, correct.

4 OHIO FIRST DISTRICT COURT OF APPEALS

PROSECUTOR: Were you walking around showing people the pills in your

purse?

A.K.: No, sir.

PROSECUTOR: Okay. So somehow someone makes an allegation against

you, that you were selling pills, or trying to sell pills—

DEFENSE COUNSEL: Your Honor, I’m going to object. That’s a

mischaracterization.

PROSECUTOR: This goes to her knowledge of the pills in her purse, Your

Honor.

DEFENSE COUNSEL: Yeah, but the allegation was that—

PROSECUTOR: Clearly relevant.

DEFENSE COUNSEL: —were that she was selling Xanax, not pills in general.

I would say that that statement is misleading.

THE COURT: Overruled.

PROSECUTOR: So you’re in your room when Ms. Terrell comes and gets you.

You are telling the Court you were not walking around that day shaking the

bottle around and showing everyone that you had pills, correct?

A.K.: I didn’t even know that I had pills in my purse.

PROSECUTOR: Okay. And yet somehow there’s an allegation against you

that you have pills, and it turns out to be completely accurate that you do have

pills in your purse; is that correct?

A.K.: I guess, yes.

5 OHIO FIRST DISTRICT COURT OF APPEALS

PROSECUTOR: So can you explain how someone knew there were pills in

your purse, if you were not walking around showing them to people? How

would they know?

***

PROSECUTOR: How would someone know that there were pills in your

purse, if you were not showing them or telling them about it? How would

they know? Would they have any idea how they were in there? They wouldn’t

would they?

***

PROSECUTOR: Would someone have any knowledge that there were pills in

your purse that you did not tell about it?

A.K.: No.

{¶8} After exhaustive probing on this point in cross-examination, the prosecutor

featured the anonymous tip in his closing argument, emphasizing it numerous times:

How would there be a complaint against her, a tip, that there were pills in her

purse if she had not shown anybody, that she had not told anybody about

them. And it just happened to turn out to be completely true, that there were

pills in her purse. It doesn’t make sense. If her story is true, that her

grandfather the very day before, put these items in her purse for her to hold

and forget them there, what are the odds that the very next day at school

someone just happens to find out and tips them off and they’re found in her

purse. Very, very little chance. * * * The much more likely situation is she

found those pills in her purse and were [sic] trying to sell them to people at

school, and that’s when the tip came in and they searched her purse and she

6 OHIO FIRST DISTRICT COURT OF APPEALS

got busted for it. * * * The only way this tip came out is by someone else

finding out first and her telling or showing that person what was going on.

{¶9} We begin with A.K.’s hearsay objection and the standard of review. “[W]hen

it comes to hearsay and its exceptions, Ohio courts have proven less-than-precise at times in

terms of the standard of review, generating conflicting precedent.” HSBC Bank USA, Natl.

Assn. v. Gill,

,

, ¶ 6 (1st Dist.). We have recognized that, in

light of Supreme Court precedent, “hearsay determinations are reviewed for an abuse of

discretion.” Id. at ¶ 10. That said, the Supreme Court has recently clarified that “a court

does not have discretion to misapply the law. A court has discretion to settle factual

disputes or to manage its docket, for example, but it does not have discretion to apply the

law incorrectly.” Johnson v. Abdullah, Slip Opinion No.

.

{¶10} “ ‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). Statements offered to explain why an investigation was

conducted are generally not hearsay because they are not offered for the truth of the matter

asserted. State v. Hackney, 1st Dist. Hamilton No. C-150375,

(“Generally, statements offered to explain an officer’s conduct during an investigation of a

crime are not hearsay because they are not offered for their truth.”). Nevertheless, a

statement that goes beyond describing the steps taken in an investigation and connects the

defendant with the crime charged is inadmissible hearsay. Id. at ¶ 23, citing State v. Ricks,

,

,

(holding that statements

were hearsay when they “went well beyond” describing witness conduct and instead

connected the defendant with the crime).

7 OHIO FIRST DISTRICT COURT OF APPEALS

{¶11} We elaborated on these points recently in State v. Hill, where we explained

that “when testimony is offered to explain the subsequent investigative activities of police

officers and not to prove the truth of the matter asserted, it may be admissible as

nonhearsay in certain circumstances.” State v. Hill, 1st Dist. Hamilton Nos. C-190638, C-

190639, C-190640 and C-190641,

. But to satisfy that standard, “ ‘the

conduct to be explained should be relevant, equivocal, and contemporaneous with the

statements; the probative value of [the] statements must not be substantially outweighed by

the danger of unfair prejudice; and the statements cannot connect the accused with the

crime charged.’ ”

quoting

.

{¶12} This is an easy case because the prosecutor conceded that the purpose of

introducing the anonymous tip was not simply to describe investigatory conduct, but “for

her knowledge of the pills in her purse.” The prosecutor also highlighted the anonymous tip

as the centerpiece of his closing argument, inviting the court to rely on it as substantive

proof that A.K. knew she had the pills. Perhaps more troubling, the state utilized the tip to

“connect the accused with the crime charged,” exactly as prior authority from this court and

the Supreme Court have admonished against.

{¶13} The anonymous tip was thus inadmissible hearsay because the state sought to

introduce the statement for proof of the matter asserted and as a vehicle to connect A.K.

with the crime charged, and the juvenile court abused its discretion by admitting it. See Hill

at ¶ 25 (trial court abused its discretion when “the statements were not admissible as

nonhearsay because they connected Hill with the offenses”). This conclusion that the

evidence regarding the tip ran afoul of hearsay requirements obviates our need to consider

whether it also violated the Confrontation Clause.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶14} We must now determine whether this evidentiary error was harmless. State

v. Morris,

,

,

(“Not every error

requires that a conviction be vacated or a new trial granted.”). “During a harmless-error

inquiry, the state has the burden of proving that the error did not affect the substantial

rights of the defendant.” Id. at ¶ 23; Hill at ¶ 26; Ricks,

, 2013-Ohio-

3712,

(reviewing Confrontation Clause violation for harmless

error). An evidentiary error was harmless if (1) there was no prejudice to the defendant

because of the admission of the evidence, (2) the error was harmless beyond a reasonable

doubt, and (3) after excising the evidence, the remaining evidence overwhelmingly supports

the judgment. State v. Smith,

,

, ¶ 23 (1st Dist.).

{¶15} Here, the juvenile court made clear that it based its judgment on Officer Dye’s

testimony that A.K. said she obtained the pills from someone on the street. The court found

this admission persuasive and inconsistent with A.K.’s story at trial—in other words, the

court relied on this evidence as part of its credibility appraisal of A.K. Since the juvenile

court did not appear to rely on the anonymous tip in reaching its judgment (the court did

not mention it at all), we have a difficult time seeing how A.K. suffered prejudice on this

record. Moreover, the fact that the label on the pill bottle was scratched off seriously

undermines A.K.’s claim that her grandfather placed the pills in her purse and instead

corroborates her admission that they were illicitly obtained. Based on the strength of

admissible evidence against her, we harbor no reasonable doubt that this hearsay error was

harmless and, thus, conclude that the admission of the anonymous tip constituted harmless

error.

III.

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{¶16} The second issue presented in A.K.’s first assignment of error implicates the

admissibility of the state’s exhibit 1, page 1, a photograph of items found in A.K.’s purse.

The photograph depicts the pill bottle, a vape pen, tobacco rolling papers, and several

lighters. A.K. maintains that the photograph constitutes irrelevant, unduly prejudicial, and

inadmissible character evidence.

{¶17} “The admission of evidence is within the sound discretion of the trial court.

* * * We will not disturb a trial court’s ruling on evidentiary issues on appeal absent an

abuse of discretion.” State v. Buck,

,

(1st Dist.).

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Evid.R. 401. However, relevant evidence “is not

admissible if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403.

{¶18} We do not believe that the juvenile court abused its discretion by admitting

the photograph under Evid.R. 401 or 403. The photograph is certainly relevant because it

depicts the pill bottle and other items belonging to A.K. The photograph is, therefore,

probative of whether A.K. actually had possession of the pills, and the location of where she

had them (i.e., her purse). The real question here is whether the photograph falls on the

unduly prejudicial side of the scale. A.K. insists that it does because it failed to capture all of

the items that were in her purse, such as her grandfather’s glasses, keys, wallet, and cell

phone. We can certainly envision scenarios in which a photograph might be rendered

inadmissible if it did not accurately capture what it purports to represent. But no question

exists here that the photograph accurately conveys certain contents from A.K.’s purse—her

10 OHIO FIRST DISTRICT COURT OF APPEALS

criticism that certain items were excluded does not, on this record, raise questions

concerning the admissibility of the photograph at hand under Evid.R. 401 or 403.

{¶19} Taking a slightly different approach, A.K. also challenges the photograph as

inadmissible character evidence. “Evidence of a person’s character or a trait of character is

not admissible for the purpose of proving action in conformity therewith on a particular

occasion.” Evid.R. 404; State v. Hartman,

,

,

(“ ‘Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith.’ This type of evidence

is commonly referred to as ‘propensity evidence’ because its purpose is to demonstrate that

the accused has a propensity or proclivity to commit the crime in question. Evid.R. 404(B)

categorically bars the use of other-acts evidence to show propensity.”), quoting Evid.R.

404(B). In this vein, A.K. argues that the state introduced the photograph to show that she

had drug paraphernalia (i.e., a vape pen) to establish propensity to possess contraband.

Even if she were right about that, when counsel lodged the objection, the court expressed its

sensitivity to evaluating only the evidence relevant to the charge at hand, suggesting that it

would disregard anything not directly related. We see nothing in the record to indicate that

the court could not do that, and the extraneous matters in the purse were not so prejudicial

as to taint the proceedings. On the record at hand, we do not believe that the juvenile court

committed an abuse of discretion by deeming the photograph admissible evidence.

{¶20} Accordingly, we overrule A.K.’s first assignment of error in full.

IV.

{¶21} In her second and third assignments of error, A.K. challenges the weight and

sufficiency of the evidence in support of her adjudication. We discuss them together for

convenience’s sake.

11 OHIO FIRST DISTRICT COURT OF APPEALS

{¶22} The standards for evaluating the weight and sufficiency of the evidence in

juvenile adjudications are the same as the standards used in adult criminal cases. In re A.P.,

,

, ¶ 9, 18 (1st Dist.). In reviewing whether the conviction

runs counter to the manifest weight of the evidence, we sit as a “thirteenth juror.” State v.

Thompkins,

,

(1997). We will reverse the trial court’s

decision to convict and grant a new trial only in “ ‘exceptional cases in which the evidence

weighs heavily against the [adjudication].’ ” State v. Sipple,

,

(1st Dist.), quoting State v. Martin,

,

(1st

Dist. 1983).

{¶23} On the other hand, “[t]o determine whether [an adjudication] is supported by

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

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

elements of the crime proven beyond a reasonable doubt.’ ” State v. Walker,

,

,

, ¶ 12, quoting State v. Jenks,

,

(1991), paragraph two of the syllabus.

{¶24} The juvenile court adjudicated A.K. delinquent under R.C. 2925.11, which

provides “[n]o person shall knowingly obtain, possess, or use a controlled substance or a

controlled substance analog.” A.K.’s weight and sufficiency challenges contend that A.K. did

not “knowingly” possess the pill bottle because she did not know that her grandfather

slipped it into her purse.

{¶25} A.K. claims that the weight of the evidence cannot support a determination

that she knew the pills were in her purse. She criticizes the juvenile court’s failure to give

proper weight to her testimony, reinforced by her grandfather’s admission, that the pills

belonged to him. She further seizes upon inconsistent testimony from Officer Dye and Ms.

12 OHIO FIRST DISTRICT COURT OF APPEALS

Terrell. Officer Dye initially testified that A.K. did not say whether she knew that the pills

were in her purse, but after the state refreshed his memory, he recalled that A.K. admitted

that she procured the pills from someone on the street. Ms. Terrell remembered that A.K.

said the pills belonged to someone at her house.

{¶26} We ultimately conclude that the juvenile court’s resolution of this conflicting

evidence amounts to credibility determinations that fall within its sound discretion. State v.

Robinson, 12th Dist. Butler No. CA2018-08-163,

(“ ‘When conflicting

evidence is presented at trial, [an adjudication] is not against the manifest weight of the

evidence simply because the trier of fact believed the prosecution testimony.’ ”), quoting

State v. Lunsford, 12th Dist. Brown No. CA2010-10-021,

, ¶ 17. A.K. fails to

demonstrate that this is an exceptional case where the evidence weighs heavily against the

adjudication.

{¶27} For A.K.’s challenge to the sufficiency of the evidence, she claims that the

state presented no evidence to establish that she knew the pills were buried in her purse.

But as we have already explained above, between Officer Dye’s testimony and the actual

bottle of pills, construed in a light most favorable to the state, we believe that a rational trier

of fact could conclude that A.K. knew she had possession of the pills. We accordingly

overrule A.K.’s challenge to the sufficiency and weight of the evidence.

* * *

{¶28} For the foregoing reasons, we overrule all three of A.K.’s assignments of error

and affirm the judgment of the juvenile court.

Judgment affirmed. MYERS, P. J., and CROUSE, J., concur. Please note:

The court has recorded its entry on the date of the release of this opinion

13