[Cite as State v. Whitehead,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : Case No. 20CA3931

v. :

ERNEST WHITEHEAD, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Rick L. Ferrara, Cleveland, Ohio, for appellant.1

Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:2-11-22 ABELE, J.

{¶1} This is an appeal from a Scioto County Common Pleas Court judgment of

conviction and sentence. A jury found Ernest Whitehead, defendant below and appellant herein

guilty of two first-degree felonies: (1) trafficking in heroin in violation of R.C. 2925.03(A)(2),2

and (2) possession of heroin in violation of

1 Different counsel represented appellant during the trial court proceedings. 2 The trial court’s sentencing entry and the verdict form contain a clerical error. Both recite the offense as R.C. 2925.03(A)(1). The trial court, however, amended the indictment to charge R.C. 2925.03(A)(2). [Cite as State v. Whitehead,

.]

R.C. 2925.11(A). The trial court merged the possession offense with the trafficking offense and

sentenced appellant to serve a six-year prison term.

{¶2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“DEFENSE COUNSEL PROVIDED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE BY FAILING TO MOVE FOR DISMISSAL ON SPEEDY TRIAL GROUNDS, FAILING TO FILE A MOTION TO SUPPRESS, FAILING TO FILE A MOTION FOR SEPARATE TRIALS, AND FAILING TO PROVIDE ADEQUATE DEFENSE AT TRIAL.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED PLAIN ERROR IN AMENDING THE INDICTMENT PRIOR TO TRIAL TO ALTER COUNT ONE BY CHANGING AN ELEMENT OF THE OFFENSE.”

THIRD ASSIGNMENT OF ERROR:

“THE STATE OF OHIO PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR DRUG TRAFFICKING, DRUG POSSESSION, AND POSSESSION OF CRIMINAL TOOLS.”

FOURTH ASSIGNMENT OF ERROR:

“THE MANIFEST WEIGHT OF THE EVIDENCE DID NOT WARRANT CONVICTION ON ANY COUNT.”

FIFTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ACTED CONTRARY TO LAW IN IMPOSING A SIX YEAR TERM OF MANDATORY IMPRISONMENT.” [Cite as State v. Whitehead,

.]

{¶3} During the late-night hours of August 10, 2018, Ohio State Highway Patrol

Trooper Nick Lewis stopped a black sport-utility vehicle for following a vehicle too closely, for

making an unexpected lane change, and for driving 40 miles per hour in a 55 mile-per-hour

speed zone. During the ensuing traffic stop, Lewis and another trooper discovered

approximately 57 grams of heroin stuffed inside the lining of the backside of the driver’s seat.

The troopers questioned the three occupants, Carvion McKee, Henry Deandre Smith, and

appellant and all stated that they did not know that the vehicle contained heroin. The troopers

then allowed the occupants to leave and advised them that the prosecutor’s office likely would

present the matter to a grand jury.

{¶4} On August 22, 2019, a Scioto County Grand Jury returned indictments that

charged appellant, Smith, and McKee with trafficking in heroin in violation of R.C.

2925.03(A)(1), possessing heroin in violation of R.C. 2925.11(A), and possessing criminal tools

in violation of R.C. 2923.24(A). Appellant and Smith entered not guilty pleas.3

{¶5} The morning of trial, the state filed a motion to amend the indictment. The state

asserted that the indictment incorrectly recited the trafficking offense in terms of R.C.

2925.03(A)(1), rather than R.C. 2925.03(A)(2). The prosecutor explained that the amendment

did not change the name of the offense or the penalty, and that the case “always [has] been a

transport, deliver, shipment type of case.”

{¶6} Appellant’s counsel did not object to the state’s motion to amend the indictment

and agreed that the amendment would not change appellant’s defense strategy. The court asked

appellant whether he concurred, and he responded, “[y]es.”

3 According to the state, McKee later entered a guilty plea. 4 SCIOTO, 20CA3931

{¶7} Smith’s counsel likewise stated that “the case laws [sic] clear on this.” Smith’s

counsel further stated, “[w]e can tell by reading the discovery that it was a transport * * * case.”

Smith also indicated that the amendment would not change the defense strategy. The court thus

granted the state’s motion to amend the indictment to allege a violation of R.C. 2925.03(A)(2).

At trial, Trooper Lewis testified that around 11:30 p.m. on August 10, 2018 he noticed a

black vehicle “tailgating a lead vehicle.” Lewis followed the vehicle and noticed a change from

the right lane to the left lane and speed at 40 miles per hour in a 55-mile-per-hour zone. At this

point, Lewis stopped the vehicle and approached the driver to ask for identification. McKee sat

in the driver’s seat, Smith, who had rented the vehicle, sat in the front passenger seat, and

appellant in the left middle row, directly behind McKee. Lewis learned that all three occupants

are Michigan residents.

{¶8} After Trooper Lewis asked McKee to exit the vehicle, they walked to the cruiser.

Lewis stated that he asked McKee to exit the vehicle as part of his drug interdiction protocol and

to check on the status of his well-being. Lewis related that, when a vehicle is traveling 40 miles

per hour in a 55-mile-per-hour zone, “there’s typically a – a problem.” Lewis indicated he

wanted McKee out of the vehicle so Lewis could “try to figure out what was going on with him.”

Lewis explained he “had planned on placing [McKee] in the back of the cruiser while [he]

checked [McKee’s] driver’s license and just talk[ed] to him about why he was driving

erratically.” Because highway patrol policy is to conduct pat-down searches of individuals

before placing them in cruisers, Lewis asked McKee if he could conduct a pat-down search.

Lewis indicated that McKee agreed to the search. 5 SCIOTO, 20CA3931

{¶9} As Trooper Lewis started to conduct the pat-down search, he told McKee to keep

his hands out of his pockets. McKee, however, disobeyed that instruction and “the first thing

[McKee] does is takes his left hand[,] puts it in his pocket and pulls out something in his – his

fist.” Lewis noticed that McKee’s fist was “balled up.” Lewis asked McKee what he had in his

hand and, rather than answering, McKee “shove[d his hand] back down the front of his pants.”

Lewis then “grab[bed]” McKee and “put him against the – the rear of the vehicle.” As Lewis

handcuffed McKee, he noticed “a plastic baggie fall[] from his chest to the ground.” The plastic

bag contained “a small amount of marijuana residue.” At this point, Lewis requested backup

assistance.

{¶10} After Ohio State Highway Patrol Trooper Matt Lloyd responded to the call for

backup, he removed the front-seat passenger, Smith, patted him down for weapons, and placed

him in the rear of Trooper Lewis’ cruiser with McKee. Then, the troopers removed appellant,

patted him down, and placed him in the rear of Lloyd’s cruiser. Lewis explained that the

troopers removed the occupants because they knew that they would search the vehicle based

upon the discovery of marijuana residue.

{¶11} As Trooper Lewis began to search the vehicle, he also noticed what appeared to

be crack cocaine in the front passenger seat. A field test confirmed their suspicion and indicated

the substance to be crack cocaine.

{¶12} Trooper Lewis also stated that Trooper Lloyd searched the area where appellant

had been seated and noticed that a trim piece on the driver’s seat backrest appeared to have

“been tampered with.” Lloyd pulled the trim piece “back a little bit” and discovered a plastic

bag in the back of the driver’s seat that contained 57 grams of heroin worth around $6,000. 6 SCIOTO, 20CA3931

Lewis also testified that 57 grams of heroin is not an amount to suggest personal use and,

instead, “would be considered a trafficking amount.”

{¶13} During Trooper Lewis’ testimony, the state played a video of the traffic stop that

included the vehicle search and the conversation between McKee and Smith while seated in the

cruiser. McKee, who was extremely talkative, complained that the handcuffs hurt his wrists and,

as Trooper Lloyd started to search the area where he found the heroin, McKee began to yell for

the trooper. After the troopers discovered the heroin, Lewis read Smith and McKee the Miranda

warnings. Smith asked why they were being arrested and Lewis informed Smith and McKee that

they had discovered heroin in the vehicle. Smith and McKee both responded with disbelief.

Smith claimed he did not know anything about the heroin, that the vehicle is a rental car, that he

is a truck driver, and that the three occupants intended to visit “some females” in Kentucky.

Lewis agreed with Smith that the vehicle is a rental car, but pointed out to Smith and McKee that

Smith rented the vehicle about one week earlier. McKee likewise denied any knowledge about

the heroin and expressed surprise about its discovery. McKee also repeated Smith’s statements

that they intended to visit “some females” and that Smith is a truck driver.

{¶14} The troopers then removed Smith from the back of Trooper Lewis’ cruiser and

placed appellant in the back seat with McKee. McKee continued to express surprise to appellant

that the troopers discovered heroin and he stated he did not know how heroin ended up in the

vehicle. McKee told appellant that they were merely traveling to Kentucky to visit “some

females” and did not understand how they ended up in this predicament.

{¶15} When the troopers spoke with appellant, appellant also claimed he knew nothing

about the heroin in the back of the driver’s seat, even though the heroin had been stuffed inside 7 SCIOTO, 20CA3931

the seat-back directly in front of him. Trooper Lloyd testified he discovered a gap in the back of

the driver’s seat that “easily pull[ed] back,” and inside he discovered a plastic bag that contained

heroin.

{¶16} The state also presented the testimony of Josie Keating, a rental car agency

representative who rented the vehicle to Smith. Keating stated that the rental car would have

undergone an inspection before Smith took possession, and if the vehicle had any damage, it

would have been noted on the inspection report. Keating testified that Smith’s inspection report

indicated “no damage documented.” Keating also explained that Smith rented the vehicle on

July 31, 2018, was scheduled for return on August 8, but did not return the vehicle until August

25. Also, during the time that Smith had the rental vehicle the mileage increased by 4,412 miles.

{¶17} Scioto County Sheriff’s Captain James Carter testified that he oversees the jail

operations, including the telephone calls. Carter obtained recordings of two phone calls that

Smith made while in jail and the state played portions of each at trial. During the first call,

Smith spoke with his grandfather who stated that he had spoken with Smith’s lawyer and, when

asked if Smith had a job, the grandfather told the lawyer that Smith did not. Smith did state that

when he returned home he planned to apply for a job “do[ing] a line haul for Chrysler.” During

the second call, Smith spoke with an individual he referred to as “cuz.” Smith informed the

individual he had been arrested and was being held in Portsmouth. Smith stated that when

Trooper Lewis “pulled my man over who was driving,” Smith “was coming down to your crib.”

After Captain Carter’s testimony, the state rested.

{¶18} At this juncture, appellant and Smith moved for Crim.R. 29(A) judgments of

acquittal and asserted that the state failed to present sufficient evidence to show that they knew 8 SCIOTO, 20CA3931

about the heroin in the vehicle or that they constructively possessed the heroin. The trial court

overruled the motions.

{¶19} On October 8, 2020, the jury found appellant guilty of trafficking and possessing

heroin, both in an amount equal to or exceeding 50 grams. The jury also found appellant not

guilty of possessing criminal tools.

{¶20} On October 30, 2020, after the trial court merged the possession and trafficking

counts, the state elected to proceed to sentencing on the trafficking offense, and the trial court

sentenced appellant to serve six years in prison. This appeal followed.

I

{¶21} In his first assignment of error, appellant asserts that his trial counsel failed to

provide the effective assistance of counsel for the following reasons: (1) counsel failed to file a

motion to dismiss on speedy trial grounds; (2) counsel failed to file a motion to suppress

evidence; (3) counsel failed to file a motion to separate appellant’s trial from Co-defendant

Smith’s trial; and (4) counsel committed cumulative errors that resulted in prejudicial error.

A

{¶22} The Sixth Amendment to the United States Constitution, and Article I, Section 10

of the Ohio Constitution, provide that defendants in all criminal proceedings shall have the

assistance of counsel for their defense. The United States Supreme Court has generally

interpreted this provision to mean a criminal defendant is entitled to the “reasonably effective

assistance” of counsel. Strickland v. Washington,

,

,

(1984); accord Hinton v. Alabama,

,

,

(2014) 9 SCIOTO, 20CA3931

(Sixth Amendment right to counsel means “that defendants are entitled to be represented by an

attorney who meets at least a minimal standard of competence”).

{¶23} To establish constitutionally ineffective assistance of counsel, a defendant must

show that (1) his counsel’s performance was deficient, and (2) the deficient performance

prejudiced the defense and deprived the defendant of a fair trial. E.g., Strickland,

; State v. Myers,

,

,

; State v.

Powell,

,

,

, ¶ 85. “Failure to establish either

element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116,

. Therefore, if one element is dispositive, a court need not analyze both. State v. Madrigal,

,

(2000) (a defendant’s failure to satisfy one of the

ineffective-assistance-of-counsel elements “negates a court's need to consider the other”).

{¶24} The deficient performance part of an ineffectiveness claim “is necessarily linked

to the practice and expectations of the legal community: ‘The proper measure of attorney

performance remains simply reasonableness under prevailing professional norms.’” Padilla v.

Kentucky,

,

,

(2010), quoting Strickland,

; accord Hinton,

. Prevailing professional norms dictate that “a

lawyer must have ‘full authority to manage the conduct of the trial.’” State v. Pasqualone,

,

,

, quoting Taylor v. Illinois,

,

,

(1988).

{¶25} Furthermore, “‘[i]n any case presenting an ineffectiveness claim, “the

performance inquiry must be whether counsel’s assistance was reasonable considering all the

circumstances.”’” Hinton,

, quoting Strickland,

. Accordingly, 10 SCIOTO, 20CA3931

“[i]n order to show deficient performance, the defendant must prove that counsel’s performance

fell below an objective level of reasonable representation.” State v. Conway,

,

,

(citations omitted).

{¶26} Moreover, when considering whether trial counsel’s representation amounts to

deficient performance, “a court must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Strickland,

. Thus,

“the defendant must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.”

Additionally, “[a] properly licensed

attorney is presumed to execute his duties in an ethical and competent manner.” State v. Taylor,

4th Dist. Washington No. 07CA11,

, citing State v. Smith,

,

(1985). Therefore, a defendant bears the burden to show ineffectiveness

by demonstrating that counsel’s errors were “so serious” that counsel failed to function “as the

‘counsel’ guaranteed * * * by the Sixth Amendment.” Strickland,

; e.g., State v.

Gondor,

,

,

; State v. Hamblin,

,

(1988).

{¶27} To establish prejudice, a defendant must demonstrate that a reasonable probability

exists that “‘but for counsel’s errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine the outcome.’” Hinton,

, quoting Strickland,

; e.g., State v. Short,

, 2011-Ohio-

3641,

; State v. Bradley,

,

(1989),

paragraph three of the syllabus; accord State v. Spaulding,

,

,

, ¶ 91 (prejudice component requires a “but for” analysis). “‘[T]he question is 11 SCIOTO, 20CA3931

whether there is a reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.’” Hinton,

, quoting Strickland,

. Furthermore, courts ordinarily may not simply presume the existence of prejudice but,

instead, must require the defendant to affirmatively establish prejudice. State v. Clark, 4th Dist.

Pike No. 02CA684,

, ¶ 22; State v. Tucker, 4th Dist. Ross No. 01CA2592 (Apr.

2, 2002. As we have repeatedly recognized, speculation is insufficient to establish the prejudice

component of an ineffective assistance of counsel claim. E.g., State v. Tabor, 4th Dist. Jackson

No. 16CA9,

; State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-

3123, ¶ 22; State v. Simmons, 4th Dist. Highland No. 13CA4,

; State v.

Halley, 4th Dist. Gallia No. 10CA13,

; State v. Leonard, 4th Dist. Athens

No. 08CA24,

, ¶ 68; accord State v. Powell,

, 2012-Ohio-

2577,

, ¶ 86 (a purely speculative argument cannot serve as the basis for an

ineffectiveness claim). We further note that counsel’s failure to file a futile or frivolous motion

“‘cannot be the basis for claims of ineffective assistance of counsel and is not prejudicial.’”

State v. Waters, 4th Dist. Vinton No. 13CA693,

, quoting State v.

Witherspoon, 8th Dist. Cuyahoga No. 94475,

, ¶ 33.

B

{¶28} Appellant first argues that his trial counsel’s failure to file a motion to dismiss on

speedy trial grounds constitutes ineffective assistance. Appellant asserts that, before the General

Assembly tolled the speedy trial time provisions during the COVID-19 state of emergency, 200

speedy trial days had elapsed since his August 22, 2019 indictment. He contends that, after the 12 SCIOTO, 20CA3931

tolling period ended on July 30, 2020, 201 speedy trial days accrued. He thus asserts that 401

speedy trial days elapsed between the date of his indictment and his trial date.

{¶29} The state contends that, between appellant’s August 22, 2019 indictment and his

October 5, 2020 trial, 252 speedy trial days elapsed. The state thus asserts that appellant’s

statutory speedy trial rights had not been violated.

{¶30} Criminal defendants are guaranteed the right to a speedy trial under the Ohio and

United States Constitutions. Ohio Constitution, Article I, Section 10; Sixth Amendment to the

U.S. Constitution. “The speedy trial guarantee is designed to minimize the possibility of lengthy

incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of

liberty imposed on an accused while released on bail, and to shorten the disruption of life caused

by arrest and the presence of unresolved criminal charges.” United States v. MacDonald,

,

,

(1982); accord State v. Triplett,

,

(1997).

{¶31} In Ohio, R.C. 2945.71 to 2945.73 codify the state and federal constitutional

speedy trial guarantees. State v. Martin,

,

,

; State v. Parker,

,

,

. R.C.

2945.71(C)(2) requires the state to try a person charged with a felony “within two hundred

seventy days after the person’s arrest.”

{¶32} “When computing speedy trial time, the day of arrest is not counted.” State v.

Cimpaye, 2d Dist. No. 28304,

,

; accord State v. McIntyre,

4th Dist. Ross No. 15CA3524,

; State v. Evans, 11th Dist. Trumbull

No. 2003-T-0132,

(speedy trial rights not triggered until arrest). If a 13 SCIOTO, 20CA3931

person is held in jail awaiting trial, each day in jail counts as three days for purposes of

calculating the 270-day period specified in R.C. 2945.71(C)(2). R.C. 2945.71(E).

{¶33} R.C. 2945.72 specifies the circumstances that may toll the running of the speedy

trial clock. State v. Ramey,

,

,

, ¶ 24. As

relevant in the case at bar, R.C. 2945.72(H) states that “[t]he period of any continuance granted

on the accused’s own motion, and the period of any reasonable continuance granted other than

upon the accused’s own motion” extends the time within which the state must try a defendant.

{¶34} In the case sub judice, after our review we do not agree with appellant that 401

speedy trial days elapsed. Appellant’s calculation includes the time period between the date of

his indictment and the date of his arrest. However, as the foregoing cases explicitly indicate, the

speedy trial clock starts after a defendant’s arrest.

{¶35} In the case sub judice, appellant’s arrest occurred on July 6, 2020. The speedy

trial clock, therefore, started on July 7, 2020, the date after appellant’s arrest. Starting with July

7, (1) 25 days elapsed during July, (2) 31 days elapsed in August, (3) 30 days elapsed in

September, and (4) 4 days elapsed in October. The number of days add up to 90. Because

appellant remained jailed throughout those 90 days, under the triple-count provision 270 speedy

trial days elapsed between July 7 and October 5.

{¶36} However, because the first 25 days the speedy trial clock was tolled until July 30,

2020 due to the COVID-19 state of emergency, time was tolled in appellant’s case until July 31,

2020. Subtracting the July tolling period of 24 days (July 7-30) establishes that appellant’s

October 5, 2020 trial occurred within the 270-day time frame set forth in R.C. 2945.71(C)(2). 14 SCIOTO, 20CA3931

{¶37} Additionally, appellant’s speedy trial clock was further tolled on September 25,

2020 when the trial court granted the state’s motion to continue. The court stated in its entry that

granted the continuance that the speedy trial provisions were tolled until the trial begins. Hence,

we conclude that no violation of appellant’s speedy trial rights occurred.

{¶38} Consequently, trial counsel did not provide ineffective assistance of counsel for

the failure to file a motion to dismiss on speedy trial grounds when the motion would not have

had any reasonable probability of success.

C

{¶39} Appellant next argues that trial counsel’s failure to file a motion to suppress

evidence derived from the vehicle stop and search of the driver constitutes ineffective assistance

of counsel. Appellant contends that a reasonable probability exists that the trial court would

have suppressed the evidence if counsel had filed a motion to suppress. Appellant asserts that a

motion to suppress would have succeeded because (1) Trooper Lewis did not have any cause or

justification to stop the vehicle, and (2) Trooper Lewis lacked any suspicion that McKee was

armed and dangerous in order to justify the pat-down search.

{¶40} Initially, we point out that trial counsel’s “‘failure to file a suppression motion

does not constitute per se ineffective assistance of counsel.’” State v. Madrigal,

,

(2000), quoting Kimmelman v. Morrison,

,

,

(1986); accord State v. Neyland,

,

,

. “To establish ineffective assistance of counsel for failure to file a motion to

suppress, a defendant must prove that there was a basis to suppress the evidence in question.”

State v. Brown,

,

,

, citing State v. 15 SCIOTO, 20CA3931

Adams,

,

,

, ¶ 35. “‘Where the record contains

no evidence which would justify the filing of a motion to suppress, the appellant has not met his

burden of proving that his attorney violated an essential duty by failing to file the motion.’”

State v. Drummond,

,

,

, ¶ 208, quoting State

v. Gibson,

,

(8th Dist. 1980). “‘Even if some evidence in

the record supports a motion to suppress, counsel is still considered effective if counsel could

reasonably have decided that filing a motion to suppress would have been a futile act.’” State v.

Moon, 8th Dist. Cuyahoga No. 101972,

, ¶ 28, quoting State v. Suarez, 12th

Dist. Warren No. CA2014-02-035,

; see State v. Waters, 4th Dist. Vinton No.

13CA693,

, quoting State v. Witherspoon, 8th Dist. Cuyahoga No. 94475,

, ¶ 33 (“‘[t]he failure to do a futile act cannot be the basis for claims of ineffective

assistance of counsel and is not prejudicial’”).

{¶41} In the case at bar, as we explain below, we do not believe that appellant has

shown a valid basis to suppress the evidence discovered during the traffic stop. Even if some

evidence in the record might arguably support a suppression motion, trial counsel reasonably

could have decided that filing the motion would have been a futile act. Appellant has not,

therefore, shown that trial counsel violated an essential duty by failing to file a motion to

suppress evidence.

{¶42} The Fourth and Fourteenth Amendments to the United States Constitution, as well

as Section 14, Article I of the Ohio Constitution, protect individuals against unreasonable

governmental searches and seizures. Delaware v. Prouse,

,

,

(1979); State v. Gullett,

,

(1992). 16 SCIOTO, 20CA3931

“[S]earches [and seizures] conducted outside the judicial process, without prior approval by

judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a

few specifically established and well-delineated exceptions.” Katz v. United States,

,

,

(1967); State v. Roberts,

, 2006-

Ohio-3665,

.

{¶43} A traffic stop initiated by a law enforcement officer constitutes a seizure within

the meaning of the Fourth Amendment. Whren v. United States,

, 809–810,

,

(1996); Prouse,

. Thus, a traffic stop must comply

with the Fourth Amendment’s general reasonableness requirement. Whren,

. An

officer’s decision to stop a vehicle is reasonable when the officer has probable cause or

reasonable suspicion to believe that a traffic violation has occurred.

(citations omitted);

accord State v. Mays,

,

,

; Dayton v.

Erickson,

, 11–12,

(1996). Law enforcement officers also may

stop a vehicle if they have reasonable suspicion “that criminal activity ‘“may be afoot.”’” United

States v. Arvizu,

,

,

(2002), quoting United

States v. Sokolow,

,

,

(1989), quoting Terry v. Ohio,

,

,

(1968); accord State v. Tidwell,

,

,

(officer may “make an investigatory stop, including a

traffic stop, of a person if the officer has reasonable suspicion to believe that the person is or is

about to be engaged in criminal activity”).

{¶44} Courts that review whether an officer had a reasonable suspicion or probable

cause to stop a vehicle must consider the “totality of circumstances” as “viewed through the eyes 17 SCIOTO, 20CA3931

of the reasonable and prudent police officer on the scene who must react to events as they

unfold.” State v. Andrews,

,

(1991). The totality-of-

the-circumstances approach “allows officers to draw on their own experience and specialized

training to make inferences from and deductions about the cumulative information available to

them that ‘might well elude an untrained person.’” Arvizu,

, quoting United

States v. Cortez,

,

,

(1981).

{¶45} In the case sub judice, appellant argues that the trooper lacked reasonable

suspicion to stop the vehicle.4 Appellant asserts that, because the trooper did not articulate any

facts to suggest that the driver of the vehicle committed a traffic violation, the trooper lacked any

reasonable suspicion to stop the vehicle.

{¶46} Law enforcement officers need not necessarily observe a distinct traffic violation

in order to conduct an investigative stop of an automobile. See State v. Hawkins,

,

,

, ¶ 21-24. In Hawkins, the court held that an officer

possessed reasonable suspicion to stop a vehicle when the color of the vehicle did not match the

color listed on the vehicle’s registration and when the officer stated that, “in his experience, the

color discrepancy could signify that the vehicle either was stolen or had an illegal license plate.”

Id. at ¶ 24. The court explained that even though “color discrepancy” may not be a crime and

could have “an innocent explanation,” this color discrepancy may nevertheless give an officer

reasonable suspicion to believe that criminal activity is afoot. Id. at ¶ 23. The court reasoned:

4 Passengers in a vehicle, as well as the driver, have standing to challenge the constitutionality of a traffic stop. Brendlin v. California,

,

,

(2007); State v. Carter,

,

(1994). 18 SCIOTO, 20CA3931

To assign noncriminal behavior no weight would “seriously undercut the ‘totality of the circumstances’ principle which governs the existence vel non of ‘reasonable suspicion.’” [Arvizu, 534 U.S.] at 274-275. Behavior and circumstances that are noncriminal by nature may “be unremarkable in one instance * * * while quite unusual in another.” Id. at 276,

. An officer is “entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area's inhabitants.”

Id. at ¶ 23. Thus, the totality of the circumstances inquiry allows officers to consider all of the

surrounding circumstances -– even seemingly innocuous ones -- when determining whether they

have reasonable suspicion to believe that criminal activity may be afoot. See Arvizu,

(a vehicle’s deceleration may give an officer reasonable suspicion to stop a vehicle

depending upon the totality of the circumstances present in the case).

{¶47} In the case sub judice, Trooper Lewis articulated several factors to support a

reasonable belief that criminal activity could have been afoot at the time in question. First,

Lewis noted that the vehicle was a rental car and in his experience, individuals who transport

drugs commonly use rental cars to avoid detection. Additionally, Lewis observed that the

vehicle in question (1) failed to maintain a safe distance from the vehicle that traveled in front of

it, (2) slowed to 40 miles per hour while traveling in a 55-mile-per-hour zone, and (3) made an

unexpected lane change. The totality of the circumstances, therefore, supports a finding that

Lewis possessed reasonable suspicion that criminal activity may be afoot and probable cause that

a traffic violation had occurred. Consequently, we do not agree with appellant that Lewis lacked

a lawful basis to conduct the traffic stop. Thus, trial counsel’s failure to file a motion to suppress

evidence does not constitute ineffective assistance of counsel.

{¶48} Appellant next contends that his trial counsel’s failure to file a motion to suppress

evidence based upon Trooper Lewis’ pat-down search of McKee constitutes ineffective 19 SCIOTO, 20CA3931

assistance. Appellant, however, lacks standing to challenge the search of McKee. Rakas v.

Illinois,

, 133–134,

,

(1978), quoting Alderman v.

United States,

,

,

(1969) (“‘Fourth Amendment

rights are personal rights which * * * may not be vicariously asserted’”). Instead, “defendants

may only claim the benefits of the exclusionary rule if their Fourth Amendment rights have been

violated.” State v. Horsley, 4th Dist. Scioto No. 12CA3473,

.

{¶49} In view of the fact that appellant lacks standing to challenge the propriety of

Trooper Lewis’ search of the driver, trial counsel’s failure to file a motion to suppress evidence

on this basis does not constitute ineffective assistance.

{¶50} Consequently, we disagree with appellant that trial counsel was ineffective for

failing to file a motion to suppress. Instead, trial counsel reasonably could have determined that

filing a suppression motion would have been a futile or frivolous act.

D

{¶51} Appellant next asserts that his trial counsel’s failure to file a motion to separate

the joint trial from Co-defendant Smith constitutes ineffective assistance. Appellant contends

that evidence of Smith’s wrongdoing led the jury to convict appellant. Appellant points out that

Smith rented the vehicle, had dominion and control of the vehicle for approximately one month,

and the evidence “showed only that Appellant was in the backseat of the car.” Appellant

continues:

[Appellant] didn’t drive it. No forensics pointed to him having touched heroin or other drugs. No drugs were found in his seat. Appellant’s natural defense was to blame other people–namely Smith–and disassociate from him entirely. That could not happen with a joined trial. 20 SCIOTO, 20CA3931

Appellant thus argues that his trial counsel should have filed a motion to separate the trials and

that the failure to do so amounts to ineffective assistance of counsel.

{¶52} Crim.R. 8(B) specifies that multiple defendants may be joined in a single

indictment “if they are alleged to have participated in the same act or transaction or in the same

series of acts or transactions constituting an offense or offenses, or in the same course of criminal

conduct.” As a general rule, the law favors joinder of defendants and the avoidance of multiple

trials. E.g., State v. Gordon,

,

,

. Joint

trials “conserve[] judicial and prosecutorial time, lessen[] the not inconsiderable expenses of

multiple trials, diminish[] inconvenience to witnesses, and minimize[] the possibility of

incongruous results in successive trials before different juries.” State v. Thomas,

,

(1980); accord Zafiro v. United States,

,

,

(1993), quoting Richardson v. Marsh,

,

,

(1987) (joint trials “promote efficiency and ‘serve the interests of justice by

avoiding the scandal and inequity of inconsistent verdicts’”).

{¶53} If, however, joinder prejudices a defendant, Crim.R. 14 gives a trial court

discretion to sever the trials. Crim.R. 14 provides: “If it appears that a defendant * * * is

prejudiced by a joinder of * * * defendants * * * for trial together * * *, the court shall * * *

grant a severance of defendants, or provide such other relief as justice requires.”

{¶54} To establish that a trial court’s refusal to sever a trial constitutes an abuse of

discretion, a defendant must establish that holding combined trials prejudiced the defendant’s

rights.

; State v. Schaim,

,

(1992). The test

is 21 SCIOTO, 20CA3931

whether a joint trial is so manifestly prejudicial that the trial judge is required to exercise his or her discretion in only one way—by severing the trial. * * * A defendant must show clear, manifest and undue prejudice and violation of a substantive right resulting from failure to sever.

State v. Schiebel,

,

(1990), quoting United States v. Castro,

(9th Cir. 1989. A defendant must provide “the 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), syllabus.

{¶55} We observe that “defendants are not entitled to severance merely because they

may have a better chance of acquittal in separate trials.” Zafiro,

. Additionally,

“a trial court does not abuse its discretion in refusing to grant severance where the prejudicial

aspects of joinder are too general and speculative.” State v. Payne, 10th Dist. Franklin App. No.

02AP–723, 2003–Ohio–4891.

{¶56} In the case sub judice, appellant contends that trial counsel’s failure to request a

severance allowed the jury to hear evidence of Smith’s wrongdoing and that the jury may have

erroneously found appellant guilty based solely upon Smith’s wrongdoing. Consequently,

appellant asserts that his defense theory should have been to blame Smith for the criminal acts

and this could not be done without separate trials.

{¶57} After our review, we do not agree with appellant that counsel’s failure to ask the

trial court to sever the trials constitutes ineffective assistance. Here, appellant’s argument rests

upon speculation as to what might have occurred if appellant’s defense strategy had been to

blame Smith rather than to deny any knowledge whatsoever. Speculation is not sufficient to

establish that a joint trial prejudiced a defendant. 22 SCIOTO, 20CA3931

{¶58} Moreover, even if appellant had attempted to blame Smith, such mutually

antagonistic defenses do not necessarily require a trial court to sever a trial. See Zafiro,

. Instead, mutually antagonistic defense, typically warrant severance when the defenses

are “irreconcilable and mutually exclusive.” State v. Walters, Franklin App. No. 06AP–693,

2007–Ohio–5554, at ¶ 23, citing United States v. Berkowitz (C.A.5, 1981),

.

As the Walters court explained:

The essence or core of the defenses must be in conflict, such that the jury, in order to believe the core of one defense, must necessarily disbelieve the core of the other. [Berkowitz, 662 F.2d] at 1134. “In such a situation, the co-defendants do indeed become the government’s best witnesses against each other. Where two defendants present defenses that are antagonistic at their core, a substantial possibility exists ‘that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.’”

quoting United States v. Eastwood (C.A.5, 1973),

, quoting United States v. Robinson (D.C.Cir. 1970),

.

Walters at ¶ 23. Thus, a defendant is not entitled to severance based upon mutually antagonistic

defenses unless “there is a serious risk that a joint trial could compromise a specific trial right of

one of the defendants, or prevent the jury from making a reliable judgment about guilt or

innocence.” Zafiro,

.

{¶59} The Zafiro court described the type of prejudice that might warrant severance,

stating, “[s]uch a risk might occur when evidence that the jury should not consider against a

defendant and that would not be admissible if a defendant were tried alone is admitted against a

codefendant. For example, evidence of a codefendant’s wrongdoing in some circumstances

erroneously could lead a jury to conclude that a defendant was guilty.”

The court further

noted “[e]vidence that is probative of a defendant’s guilt but technically admissible only against

a codefendant also might present a risk of prejudice. Conversely, a defendant might suffer 23 SCIOTO, 20CA3931

prejudice if essential exculpatory evidence that would be available to a defendant tried alone

were unavailable in a joint trial.”

{¶60} In the case sub judice, appellant’s assertion that the joint trial prejudiced his rights

is speculative. The record contains no evidence that appellant or Smith attempted to blame the

other. Instead, the evidence shows that appellant and Smith denied culpability. Moreover, we

see no danger that the jury found appellant guilty based solely upon the evidence that Smith

rented the vehicle.

{¶61} We further note that the trial court instructed the jury that it “must separately

consider the evidence applicable to each Defendant as though he were being * * * separately

tried and you must state your findings as to each Defendant uninfluenced by your verdict as to

any other Defendant.” The Zafiro court stated that this type of instruction “suffice[s] to cure any

possibility of prejudice.”

.

{¶62} Thus, even if, for purposes of argument, we agreed with appellant that trial

counsel performed deficiently by failing to file a motion to sever, appellant cannot establish that

he suffered prejudice as a result of counsel’s decision not to seek separate trials. Counsel,

therefore, did not perform ineffectively for the failure to file a motion to sever the trials.

E

{¶63} Appellant also contends that trial counsel failed to (1) object at trial, (2) cite

appropriate authority to support his Crim.R. 29 motion for judgment of acquittal, and (3) give an

effective closing argument. Appellant claims that the combination of these failures deprived him

of constitutionally effective assistance of counsel. 24 SCIOTO, 20CA3931

1

{¶64} We first observe that the decision at trial to object, or not to object, ordinarily

constitutes a question of trial strategy. State v. Frierson, 8th Dist. Cuyahoga No. 105618, 2018-

Ohio-391, ¶ 25, citing State v. Johnson, 7th Dist. Jefferson No. 16 JE 0002,

. Accordingly, “the failure to make objections is not alone enough to sustain a claim of

ineffective assistance of counsel.” State v. Conway,

,

,

.

Experienced trial counsel learn that objections to each potentially objectionable event could actually act to their party’s detriment. * * * In light of this, any single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial * * * that failure to object essentially defaults the case to the state. Otherwise, defense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel’s failure cannot reasonably have been said to have been part of a trial strategy or tactical choice.

State v. Johnson,

,

,

.

{¶65} In the case sub judice, we do not believe that appellant established that trial

counsel “fail[ed] to use objections, despite numerous and clear reasons for doing so.”

Appellant did not show that trial counsel’s decisions not to object were so unreasonable as to

constitute deficient performance.

2

{¶66} Appellant also contends that trial counsel’s failure to cite State v. Criswell, 4th

Dist. Scioto No. 13CA3588,

, to support his Crim.R. 29 motion for judgment of

acquittal constitutes ineffective assistance. Appellant does not, however, precisely explain how

the failure to cite this particular case prejudiced the outcome of the trial or that the trial court 25 SCIOTO, 20CA3931

would have granted his motion if trial counsel had cited the case. (See, also discussion of

Criswell infra under appellant’s third assignment of error). Appellant thus has not met his

burden to establish that trial counsel provided ineffective assistance by failing to cite a specific

case.

3

{¶67} Appellant next argues that trial counsel performed ineffectively by failing to give

a more effective closing argument. Once again, because appellant does not precisely explain

how a different closing argument would have changed the result of the trial, appellant has not

met his burden to establish that trial counsel provided ineffective assistance by failing to give a

closing argument that appellant believes could have been more compelling.

4

{¶68} Finally, appellant asserts that the cumulative effect of trial counsel’s alleged

deficiencies deprived him of a fair trial. However, because we did not conclude that trial

counsel’s performance was deficient, appellant’s contention is without merit. See State v.

Webster, 10th Dist. Franklin No. 20AP-171,

.

{¶69} Accordingly, based upon the foregoing reasons, we overrule appellant’s first

assignment of error.

II

{¶70} In his second assignment of error, appellant asserts that the trial court plainly

erred by permitting the state to amend the indictment to charge him with trafficking in violation

of R.C. 2925.03(A)(2). Appellant contends that the amendment changed an element of the

offense from “sell or offer to sell” to “transport.” 26 SCIOTO, 20CA3931

{¶71} We first note that at trial, appellant and appellant’s counsel explicitly agreed to

the amendment. Appellant thus invited any error that may have occurred. The invited-error

doctrine precludes a litigant from “‘tak[ing] advantage of an error which [the litigant] invited or

induced.’” State v. Ford,

,

,

, ¶ 279, quoting

Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div.,

,

(1986), paragraph one of the syllabus. The doctrine generally applies “‘when a party

has asked the court to take some action later claimed to be erroneous, or affirmatively consented

to a procedure the trial judge proposed.’”

quoting State v. Campbell,

,

(2000). In the criminal context, the doctrine prevents a defendant from

making “‘an affirmative * * * decision at trial and then complain[ing] on appeal that the result of

that decision constitutes reversible error.’” State v. Doss, 8th Dist. Cuyahoga No. 84433, 2005-

Ohio-775, ¶ 7, quoting United States v. Jernigan,

(11th Cir. 2003); accord

State v. Brunner, 4th Dist. Scioto No. 18CA3848,

.

{¶72} Furthermore, assuming, arguendo, that appellant did not invite any error, as we

explain below we do not believe that any error occurred. Crim.R. 7(D) provides that a court may

amend an indictment “at any time before, during, or after a trial * * *, provided no change is

made in the name or identity of the crime charged.” Thus, an amendment is “proper when the

amendment [does] not change the penalty or the degree of the offense.” State v. Davis,

,

,

. Moreover, “[a]s long as the state complies

with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the original

indictment omits an essential element of the offense with which the defendant is charged.” State

v. Pepka,

,

,

, ¶ 15. 27 SCIOTO, 20CA3931

{¶73} In the case sub judice, appellant did not argue that the amendment changed the

penalty or the degree of the offense. Instead, appellant asserts that the amendment changed “the

actus reus.” Because appellant did not argue that the amendment changed the penalty or the

degree of the offense, his second assignment of error is meritless. See State v. Maxwell,

,

,

(amendment that simply changes certain

element of offense without changing the name of the offense or the penalty does not constitute an

improper amendment under Crim.R. 7(D)).

{¶74} Accordingly, based upon the foregoing reasons, we overrule appellant’s second

assignment of error.

III

{¶75} In his third assignment of error, appellant asserts that the state failed to present

sufficient evidence (1) to show that he trafficked in, or possessed, the heroin discovered in the

back of the driver’s seat, and (2) to support a possessing criminal tools conviction.

A

{¶76} A claim of insufficient evidence invokes a due process concern and raises the

question whether the evidence is legally sufficient to support the verdict as a matter of law.

Thompkins,

. When reviewing the sufficiency of the evidence, our inquiry

focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt.

at syllabus. The

standard of review is whether, after viewing the probative evidence and inferences reasonably

drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could 28 SCIOTO, 20CA3931

have found all the essential elements of the offense beyond a reasonable doubt. E.g., Jackson v.

Virginia,

,

,

(1979); State v. Jenks,

,

(1991). Furthermore, a reviewing court is not to assess “whether the

state’s evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” Thompkins,

(Cook, J., concurring).

{¶77} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate court

must construe the evidence in a light most favorable to the prosecution. E.g., State v. Hill,

,

(1996); State v. Grant,

,

(1993). A reviewing court will not overturn a conviction on a sufficiency-of-the-

evidence claim unless reasonable minds could not reach the conclusion that the trier of fact did.

State v. Tibbetts,

,

(2001); State v. Treesh,

,

(2001).

B

{¶78} Initially, we observe that, although the trial court found appellant guilty of

trafficking and possessing heroin, the trial court merged the possession offense with the

trafficking offense. Thus, if sufficient evidence supports appellant’s trafficking conviction, an

erroneous verdict on the merged count would be harmless. State v. Worley,

,

,

; State v. Powell,

,

(1990); State v. Campbell, 4th Dist. Vinton No. 20CA723,

; see State v.

Williams, 4th Dist. Scioto No. 11CA3408,

(because court does not impose

sentence for merged offenses, defendant is not “convicted” of merged offenses and no

“conviction” for appellate court to vacate). Consequently, if we determine that sufficient 29 SCIOTO, 20CA3931

evidence supports appellant’s trafficking conviction, we need not address appellant’s sufficiency

argument regarding the possession offense.

{¶79} R.C. 2925.03(A)(2)5 contains the essential elements of trafficking in drugs:

No person shall knowingly *** (2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.

{¶80} Additionally, R.C. 2923.03(A)(2), Ohio’s complicity statute provides, in relevant

part, that “[n]o person, acting with the kind of culpability required for the commission of an

offense, shall * * * [a]id or abet another in committing the offense.” “[T]o aid or abet is ‘”[t]o

assist or facilitate the commission of a crime, or to promote its accomplishment.”’” State v.

McFarland,

,

,

, quoting State v.

Johnson,

,

(2001), quoting Black’s Law Dictionary 69

(7th Ed. 1999).

{¶81} A conviction for complicity by aiding and abetting under R.C. 2923.03(A)(2)

requires the state to prove, beyond a reasonable doubt, “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.” Johnson at syllabus.

5 The trial court’s sentencing entry and verdict form apparently do not conform to the trial court’s oral decision to amend the indictment to charge a violation of R.C. 2925.03(A)(2). Instead, the court’s entry and verdict forms recite R.C. 2925.03(A)(1). None of the parties pointed out the discrepancy during the trial. The court did, however, instruct the jury in accordance with R.C. 2925.03(A)(2). Under these 30 SCIOTO, 20CA3931

“‘Participation in criminal intent may be inferred from presence, companionship and conduct

before and after the offense is committed.’”

, quoting State v. Pruett,

,

(4th Dist. 1971). However, “‘the mere presence of an accused at the

scene of a crime is not sufficient to prove, in and of itself, that the accused was an aider and

abettor.’” Id. at 243, quoting State v. Widner,

,

(1982).

“This rule is to protect innocent bystanders who have no connection to the crime other than

simply being present at the time of its commission.”

{¶82} We further observe that the complicity statute does not require the state to charge

the defendant with complicity. Instead, R.C. 2923.03(F) allows the state to charge the defendant

as a principal offender. The statute provides that “[a] charge of complicity may be stated in

terms of [the complicity statute], or in terms of the principal offense.”

{¶83} In the case sub judice, the state charged appellant in terms of the principal

offense. At trial, the state asserted that appellant also is guilty as an aider and abettor, and the

trial court gave the jury complicity instructions. Therefore, we will review whether the state

presented sufficient evidence to establish either that (1) appellant aided and abetted the principal

offender in committing trafficking in heroin, or (2) appellant committed trafficking in heroin as a

principal offender.

{¶84} In the case before us, we believe that the state presented sufficient evidence to

establish that appellant was more than an innocent bystander to the offense, but instead, that he

aided and abetted the principal offender to commit the offense of trafficking in heroin. As we

noted above, a complicity conviction requires the state to prove “that the defendant supported,

circumstances, we believe that the trial court committed a clerical error that it may correct at any time. 31 SCIOTO, 20CA3931

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.” Johnson at syllabus.

R.C. 2925.03(A)(2) requires that the offender act knowingly in committing the offense. A

complicity to trafficking in drugs conviction, therefore, requires the state to demonstrate that the

defendant knowingly “supported, assisted, encouraged, cooperated with, advised, or incited the

principal in the commission of the crime.” Johnson at syllabus.

{¶85} R.C. 2901.22(B) defines when a person acts knowingly:

A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when a person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

{¶86} We observe that “‘[t]he intent of an accused person dwells in his mind’” and that

intent “‘can never be proved by the direct testimony of a third person.” State v. Johnson,

,

(1978), quoting State v. Huffman,

,

(1936), paragraph four of the syllabus. Instead, intent “‘must be gathered from the

surrounding facts and circumstances under proper instructions from the court.’”

quoting

Huffman, paragraph four of the syllabus; e.g., State v. Conway,

, 2006-Ohio-

791,

, ¶ 143; State v. Garner,

,

,

(1995). We further observe that “[i]ntention is a question of fact, and not one of

law.” Koenig v. State,

,

(1929); State v. Wamsley, 6th Dist.

Butler No. CA2002-05-109,

, ¶ 18. 32 SCIOTO, 20CA3931

{¶87} We also note that to sustain an R.C. 2925.03(A)(2) trafficking conviction as a

principal offender, the state must prove that the defendant had control over, i.e., possessed, the

illegal substance. State v. Cabrales,

,

, 2008–Ohio–1625, ¶ 30,

quoting R.C. 2925.01(K) (in order to ship, transport, deliver, distribute, etc., “the offender must

‘hav[e] control over’” the illegal substance); see State v. Floyd, 7th Dist. No. 18 MA 0106, 2019-

Ohio-4878, ¶ 21 (R.C. 2925.03(A)(2) requires “possession of the controlled substance, either

constructive or actual”).

{¶88} “Possession” is generally defined as “having control over a thing or substance, but

may not be inferred solely from mere access to the thing or substance through ownership or

occupation of the premises upon which the thing or substance is found.” R.C. 2925.01(K).

Whether a person knowingly possessed a controlled substance “is to be determined from all the

attendant facts and circumstances available.” State v. Teamer,

,

(1998).

{¶89} “Possession * * * may be individual or joint, actual or constructive.” State v.

Wolery,

,

(1976); State v. Fry, Jackson App. No.

03CA26,

. “‘Actual possession exists when the circumstances indicate that

an individual has or had an item within his immediate physical possession.’” State v. Kingsland,

,

,

(4th Dist.), quoting Fry at ¶ 39.

“Constructive possession exists when an individual knowingly exercises dominion and control

over an object, even though that object may not be within his immediate physical possession.”

State v. Hankerson,

,

(1982), syllabus; State v. Brown, 4th

Dist. Athens No. 09CA3,

, ¶ 19. For constructive possession to exist, the state 33 SCIOTO, 20CA3931

must show that the defendant was conscious of the object’s presence. Hankerson,

;

; accord State v. Huckleberry, 4th Dist. Scioto No. 07CA3142, 2008-

Ohio-1007, ¶ 34; State v. Harrington, 4th Dist. Scioto No. 05CA3038,

.

{¶90} Both dominion and control, and whether a person was conscious of the object’s

presence, may be established through circumstantial evidence. E.g., Brown at ¶ 19; see, e.g.,

State v. Jenks,

,

(1991), paragraph one of the syllabus

(“[c]ircumstantial evidence and direct evidence inherently possess the same probative value”).

“Circumstantial evidence is defined as ‘[t]estimony not based on actual personal knowledge or

observation of the facts in controversy, but of other facts from which deductions are drawn,

showing indirectly the facts sought to be proved. * * * ’ ” State v. Nicely,

,

(1988), quoting Black’s Law Dictionary (5 Ed. 1979) 221.

{¶91} Furthermore, to establish constructive possession the state need not show that the

defendant had “[e]xclusive control” over the contraband. State v. Tyler, 8th Dist. Cuyahoga No.

99402,

, citing State v. Howard, 8th Dist. Cuyahoga No. 85034, 2005-

Ohio-4007, ¶ 15, citing In re Farr, 10th Dist. Franklin No. 93AP-201,

, *6

(Nov. 9, 1993) (nothing in R.C. 2925.11 or 2925.01 “states that illegal drugs must be in the sole

or exclusive possession of the accused at the time of the offense”). Instead, “‘[a]ll that is

required for constructive possession is some measure of dominion or control over the drugs in

question, beyond mere access to them.’” Howard at ¶ 15, quoting Farr at *6. Thus, simply

because others may have access in addition to the defendant does not mean that the defendant

“could not exercise dominion or control over the drugs.” Tyler at ¶ 24; accord State v. Walker,

10th Dist. Franklin No. 14AP-905,

. We further note that multiple persons 34 SCIOTO, 20CA3931

may have joint constructive possession of an object. State v. Philpott, 8th Dist. Cuyahoga Nos.

109173, 109174, and 109175,

, ¶ 67; Wolery,

(“[p]ossession * * * may be individual or joint” and “control or dominion may be achieved

through the instrumentality of another”).

{¶92} In the case sub judice, we believe that the record contains sufficient evidence that,

if believed, establishes that appellant aided and abetted the principal offender in committing drug

trafficking. First appellant does not dispute that the vehicle contained more than 50 grams of

heroin. Instead, appellant claims he did not know that the vehicle contained 50 grams of heroin.

Thus, the primary issue the jury had to resolve is whether appellant knowingly aided and abetted

the principal offender to commit drug trafficking. When Trooper Lewis stopped the vehicle, the

three occupants had been driving from Michigan to Kentucky, with Smith the front-seat

passenger, McKee the driver and appellant seated directly behind McKee. The back of the

driver’s seat had been cut open and stuffed into the seat lining a bag that contained more than 50

grams of heroin. Appellant would have been looking directly at the back of the driver’s seat.

The jury reasonably could have inferred that appellant knew about the damage to the driver’s

seat and knew that the driver’s seat had been damaged in order to conceal heroin. Furthermore,

the jury viewed the video evidence of the traffic stop, along with McKee’s and Smith’s backseat

cruiser conversation. McKee was the most vocal and when Smith spoke, he usually covered his

mouth or looked down. After the troopers told McKee and Smith they discovered heroin in the

vehicle, McKee and Smith expressed surprise. Both denied knowing that heroin was in the

vehicle and stated they simply were on their way to Kentucky to visit “some females.” Both also

stated that Smith is a truck driver. 35 SCIOTO, 20CA3931

{¶93} Appellant had been seated in Trooper Lloyd’s cruiser for the majority of the stop,

but near the end the troopers placed him in Trooper Lewis’ cruiser with McKee. McKee

continued to state that he did not know anything about the heroin and that they simply were

going to visit “some females” in Kentucky.

{¶94} The jury had the opportunity to view appellant’s demeanor shortly after the

troopers revealed that they had discovered heroin in the vehicle and could have determined that

the combination of appellant’s, McKee’s and Smith’s words and demeanor indicated that they

were less than truthful and acted in concert to concoct a cover story that Smith is a truck driver

and that the three were simply on their way to Kentucky to visit “some females.”

{¶95} We believe, that when viewed in a light most favorable to the prosecution, the

evidence shows that appellant assisted, facilitated, or supported the principal offender in

transporting the heroin, and not merely an innocent passenger. Because a rational trier of fact

could have found that appellant knowingly aided and abetted the principal offender in

committing the offense of trafficking in heroin, the record contains sufficient evidence to support

appellant’s trafficking conviction as an aider and abettor. Moreover, because the record contains

sufficient evidence to support appellant’s complicity to trafficking conviction, we need not

consider whether the record also contains sufficient evidence to show that appellant is guilty of

the offense as a principal offender. We note, however, that appellant’s proximity to the heroin,

the visible damage to the back of the driver’s seat, the length of time that appellant had been

seated with a direct view of the damage and within reach of the heroin, sufficiently shows that

appellant constructively possessed the heroin. See State v. Criswell, 4th Dist. Scioto No.

13CA3588,

, ¶ 11 quoting State v. Kingsland,

, 2008- 36 SCIOTO, 20CA3931

Ohio-4148,

(“‘presence in the vicinity of contraband, coupled with another

factor or factors probative of dominion or control over the contraband, may establish

constructive possession’”). See generally State v. Tackett, 11th Dist. Ashtabula No. 2018-A-

0052,

(defendants traveling in vehicle jointly constructively possessed

drugs located in backseat of vehicle). This is not a situation in which appellant, through mere

happenstance, found himself at a crime scene with no connection to the crime other than physical

presence. Rather, the evidence established that appellant and his companions traveled from

Michigan in a rented vehicle that contained a large amount of heroin concealed in the back of the

driver’s seat. Criminal intent may be established through circumstantial evidence, including

presence, companionship and conduct that occurred before, during and after the commission of a

criminal offense. Moreover, multiple persons may have simultaneous joint constructive

possession of an object.

{¶96} We further point out that in Criswell, we concluded that the state failed to present

sufficient evidence that the defendant possessed the drugs located in a vehicle that contained

multiple occupants. In Criswell, the state did not present any evidence to show that the

defendant “ever had access to” the drugs. Id. at 25. Contrastingly, in the case at bar appellant

was seated within reach of the plastic bag that contained heroin.

{¶97} For all of the foregoing reasons, we disagree with appellant that the record does

not contain sufficient evidence to support his trafficking conviction.

{¶98} Appellant also asserts that the state failed to present sufficient evidence to support

his possessing criminal tools conviction. As the state correctly points out, however, the jury 37 SCIOTO, 20CA3931

found appellant not guilty of this offense. Appellant’s argument, therefore, is moot. See App.R.

12(A)(1)(c).

{¶99} Accordingly, based upon the foregoing reasons, we overrule appellant’s third

assignment of error.

IV

{¶100} In his fourth assignment of error, appellant asserts that his conviction is against

the manifest weight of the evidence. Once again, appellant claims that the jury convicted him

based upon his mere presence in the vehicle and his relation to Smith.

{¶101} We observe that the “question to be answered when a manifest-weight issue is

raised is whether ‘there is substantial evidence upon which a jury could reasonably conclude that

all the elements have been proved beyond a reasonable doubt.’” State v. Leonard,

,

,

, ¶ 81, quoting State v. Getsy,

,

193–194,

(1998), citing State v. Eley,

,

(1978), syllabus. A court that is considering a manifest-weight challenge must “‘review the

entire record, weigh the evidence and all reasonable inferences, and consider the credibility of

witnesses.’” State v. Beasley,

,

,

,

quoting State v. McKelton,

,

,

; accord

State v. Hundley,

,

,

. 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,

. “‘Because the trier of fact sees and hears the 38 SCIOTO, 20CA3931

witnesses and is particularly competent to decide “whether, and to what extent, to credit the

testimony of particular witnesses,” we must afford substantial deference to its determinations of

credibility.’” Barberton v. Jenney,

,

,

,

quoting State v. Konya, 2nd Dist. Montgomery No. 21434,

, ¶ 6, quoting State v.

Lawson, 2nd Dist. Montgomery No. 16288,

, *4 (Aug. 22, 1997). As the court

in Eastley v. Volkman,

,

,

, ¶21, explained:

“‘[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. * * * 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.’”

Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland,

,

(1984), fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

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,

; accord State v. Howard, 4th Dist. Ross No.

07CA2948,

(“We will not intercede as long as the trier of fact has some

factual and rational basis for its determination of credibility and weight.”).

{¶102} Accordingly, if the prosecution presented substantial credible evidence upon

which the trier of fact reasonably could conclude, beyond a reasonable doubt, that the essential

elements of the offense had been established, the judgment of conviction is not against the

manifest weight of the evidence. E.g., Eley; accord Eastley at ¶ 12, quoting Thompkins,

, quoting Black’s Law Dictionary 1594 (6th ed. 1990) (explaining that a judgment is

not against the manifest weight of the evidence when ““‘the greater amount of credible 39 SCIOTO, 20CA3931

evidence”’” supports it). A court may reverse a judgment of conviction only if it appears that the

fact-finder, when it resolved the conflicts in evidence, “‘clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’”

Thompkins,

, quoting State v. Martin,

,

(1st Dist. 1983); accord

. A reviewing court should find a conviction

against the manifest weight of the evidence only in the “‘exceptional case in which the evidence

weighs heavily against the conviction.’” Thompkins,

, quoting Martin,

; accord State v. Clinton,

,

,

; State v. Lindsey,

,

(2000).

{¶103} In the case sub judice, we do not believe that the evidence weighs heavily against

appellant’s conviction for complicity to trafficking in heroin. As we explained in appellant’s

third assignment of error, the state presented ample circumstantial evidence to show that

appellant aided or abetted the principal offender in committing the offense. The jury obviously

credited the state’s theory of the case that appellant acted in concert with Smith and McKee to

transport drugs. After our review, we are unable to conclude that the jury committed a manifest

miscarriage of justice by convicting appellant.

{¶104} Accordingly, based upon the foregoing reasons, we overrule appellant’s fourth

assignment of error.

V

{¶105} In his fifth assignment of error, appellant asserts that his six-year prison sentence

is contrary to law. In particular, appellant contends that the circumstances do not support the

trial court’s decision to impose a six-year prison term because appellant (1) was 18 years of age 40 SCIOTO, 20CA3931

at the time of the offense, (2) had no previous felony convictions, and (3) committed a non-

violent offense. Appellant thus claims that the trial court should have imposed the minimum

term.

{¶106} When reviewing felony sentences, appellate courts apply the standard of review

outlined in R.C. 2953.08(G)(2). State v. Prater, 4th Dist. Adams No. 18CA1069, 2019-Ohio-

2745, ¶ 12, citing State v. Graham, 4th Dist. Adams No. 17CA1046,

, ¶ 13.

Under R.C. 2953.08(G)(2), “[t]he appellate court’s standard for review is not whether the

sentencing court abused its discretion.” Instead, R.C. 2953.08(G)(2) specifies that an appellate

court may increase, reduce, modify, or vacate and remand a challenged felony sentence if the

court clearly and convincingly finds either:

(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law.

{¶107} A defendant bears the burden to establish, by clear and convincing evidence, that

a sentence is either contrary to law or that the record does not support the specified findings.

State v. Behrle, 4th Dist. Adams No. 20CA1110,

; State v. Shankland, 4th

Dist. Washington Nos. 18CA11 and 18CA12,

, ¶ 20. “[C]lear and convincing

evidence is that measure or degree of proof which is more than a mere ‘preponderance of the

evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in

criminal cases, and which will produce 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. 41 SCIOTO, 20CA3931

{¶108} We further observe that “[n]othing 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.”

State v. Jones,

,

,

. Furthermore, “an

appellate court’s determination that the record does not support a sentence does not equate to a

determination that the sentence is ‘otherwise contrary to law’ as that term is used in R.C.

2953.08(G)(2)(b).” Id. at ¶ 32. Consequently, appellate courts cannot review a felony sentence

when “the appellant’s sole contention is that the trial court improperly considered the factors of

R.C. 2929.11 or 2929.12 when fashioning that sentence.” State v. Stenson, 6th Dist. Lucas No.

L-20-1074,

, citing

; accord State v. Orzechowski, 6th Dist.

Wood No. WD-20-029,

(“In light of Jones, assigning error to the trial

court’s imposition of sentence as contrary to law based solely on its consideration of R.C.

2929.11 and 2929.12 is no longer grounds for this court to find reversible error.”); State v. Loy,

4th Dist. Washington No. 19CA21,

.

{¶109} In the case sub judice, appellant’s assignment of error asserts that the trial court’s

six-year prison sentence is contrary to law because the court failed to consider certain factors that

appellant claims support a lesser term of imprisonment. As Jones indicates, however, R.C.

2953.08(G)(2)(b) does not allow this court to independently review the record to determine

whether the trial court imposed an appropriate sentence in light of the R.C. 2929.11 and R.C.

2929.12 factors.

{¶110} Accordingly, based upon the foregoing reasons, we overrule appellant’s fifth

assignment of error and affirm the trial court’s judgment. 42 SCIOTO, 20CA3931

JUDGMENT AFFIRMED. 43 SCIOTO, 20CA3931

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of 60 days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the 60-day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the 45-day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said 60 days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.