[Cite as State v. McClendon,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2021-09-021

: OPINION - vs - 5/2/2022 :

NEATHEN McCLENDON, :

Appellant. :

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CRI 20210129

Jess C. Weade, Fayette County Prosecuting Attorney, for appellee.

Steven H. Eckstein, for appellant.

BYRNE, J.

{¶1} Neathen McClendon was convicted of two criminal offenses in the Fayette

County Court of Common Pleas. McClendon appealed. We affirm McClendon's

convictions.

I. Procedural and Factual Background

{¶2} In June 2021, a Fayette County grand jury indicted McClendon on three

counts: (1) count one – tampering with evidence; (2) count two – trafficking in cocaine; and Fayette CA2021-09-021

(3) count three – possession of cocaine. The indictment resulted from a search warrant

executed at a residence in Washington Court House. Officers detained McClendon in a

bedroom after forcibly entering the home. In the bedroom's ensuite bathroom, officers

recovered small amounts of crack cocaine on the floor and evidence that suggested that

McClendon had flushed contraband (likely more crack cocaine) down the toilet.

A. Pre-Trial Discussion Concerning the Search Warrant

{¶3} At the final pretrial conference, McClendon's defense counsel said that he

would be requesting a copy of the search warrant and could not say until he saw it whether

he would be raising any challenge to the search warrant. During this conversation,

McClendon interjected, stating that "it was an arrest warrant. Instead of a search warrant,

because the residence that I was at it wasn't my residence at all." Ultimately, McClendon's

counsel did not move to suppress the evidence obtained during the execution of the search

warrant.

B. The Jury Trial

{¶4} The matter proceeded to a jury trial. Before trial commenced, the court

discussed pretrial matters with the prosecutor and defense counsel. During this

conversation, McClendon remarked that he wanted to challenge the search warrant. He

said that "they" (presumably the officers who conducted the search) had provided him with

a warrant receipt "that says that ah they uploaded a digital copy of my signature on it, which

I never signed." Besides claiming that the digital signature he was referring to was not his,

McClendon also repeated his claim that the residence where he was detained was not his

residence. McClendon also stated that he "never signed no paperwork like this, for them

to get a warrant to come search (unintelligible) about me." In response, McClendon's

defense counsel stated that he had determined that attempts to undermine or challenge the

search warrant were not going to be beneficial to the case.

-2- Fayette CA2021-09-021

{¶5} Trial commenced and the state presented the testimony of three law

enforcement officers who participated in the execution of the search warrant.

1. Testimony of Deputy Travis Burden

{¶6} Deputy Burden testified that he was a patrol deputy with the Fayette County

Sheriff's Office. On March 22, 2021, he was assigned to the Fayette County/Ross County

Joint Emergency Response Team. That day, the Response Team had been asked to assist

with execution of a search warrant at a residence located at 323 Forrest Street, Washington

Court House.

{¶7} Deputy Burden was assigned to the "Entry Team." His job was to enter the

residence and detain anyone found inside. He was specifically assigned to search the

second floor for persons who may be found there. Deputy Burden testified that the

procedure for entry is to knock on the door loudly and announce, "Sheriff's office." If no one

opened the door, law enforcement would force the door open and enter the residence.

{¶8} Deputy Burden testified that one of the team members knocked loudly on the

door, two or three times. One of the team members also announced they were with the

Sheriff's office and had a search warrant, loudly enough for anyone inside to hear. No one

answered, so the deputies forced the door open. Deputy Burden then entered the

residence. He estimated that three minutes passed between the first knock and the team

forcing the door open and entering the home.

{¶9} Deputy Burden observed a female downstairs. But because he was assigned

to search the second floor, not the first floor, Deputy Burden immediately proceeded

upstairs. At the top of the stairs, he entered a bedroom to the left of the stairwell and

observed McClendon lying on the bedroom floor. McClendon had his arms spread away

from his body. McClendon was "breathing heavily" and was "out of breath." Deputy Burden

detained McClendon. McClendon made a comment that "he only had weed," presumably

-3- Fayette CA2021-09-021

meaning marijuana. There was no one else found upstairs.

2. Testimony of Sergeant John Fausnaugh

{¶10} Sergeant Fausnaugh testified that he was part of the "Investigative Team"

executing the search warrant. While the Entry Team was entering and securing the

residence, he was in the back of the residence, watching for anyone who might try to

escape. No one came out of the residence.

{¶11} After officers secured the residence, Sergeant Fausnaugh's job was to

videotape the interior of the residence and then take photographs. Sergeant Fausnaugh

testified about photographs that he took in the bedroom where deputies detained

McClendon and in the bedroom's ensuite bathroom. Multiple photographs introduced at

trial depicted the floor of the bathroom and small white objects on or near a shower mat

next to the bathtub. Other photos depicted a "Tupperware"-style tray or lid near the base

of the toilet and a plastic container on the shower mat where the white objects were located.

Sergeant Fausnaugh also observed and photographed a bag containing over $2,500, which

was found on a bed in the bedroom, and a "bin," found on a desk in the bedroom, which

contained a digital scale, scissors, and a knife.

{¶12} Sergeant Fausnaugh observed droplets of water of various sizes on the

bathroom floor, near the toilet, and "about the toilet seat." The water droplets and their

locations led him to the conclusion that someone had tried to dispose of drugs by flushing

them down the toilet.

{¶13} Sergeant Fausnaugh testified that the white objects were collected into

evidence and sent to the Ohio Bureau of Criminal Investigation ("BCI") for testing. At BCI,

the white objects tested positive for cocaine.

3. Testimony of Detective Treg Brown

{¶14} Detective Brown testified that he was also present during the execution of the

-4- Fayette CA2021-09-021

search warrant and entered the house after it had been secured. Besides McClendon,

there was a female at the residence named Morgan Coil, as well as a 3-week-old infant.

McClendon and Coil were the parents of the infant.

{¶15} Detective Brown testified about "off-white rocks" found on the bathroom floor

that he suspected to be crack cocaine and that were collected into evidence. A clear plastic

container was found closer to where the off-white rocks were found, and this container

appeared to correspond to the tray or lid photographed lying near the base of the toilet.

{¶16} On cross-examination, Detective Brown testified that he believed that the

plastic container had held crack cocaine. He did not have it tested for trace amounts of

cocaine because BCI would not test for trace amounts and the Fayette County Sheriff's

Office had no other way to test for trace evidence.

{¶17} Through cross-examination of Sergeant Fausnaugh, McClendon's counsel

introduced several photographs of other items found in the bedroom where McClendon was

detained. These items included a jar containing what appeared to be marijuana. Under

cross-examination, Sergeant Fausnaugh agreed that scissors were more consistent with

marijuana use rather than crack cocaine use, but he maintained that scissors may also be

consistent with preparation of crack cocaine. And Detective Brown agreed on cross-

examination that a buyer of narcotics might use a digital scale to ensure that they were

receiving the amount sold to them.

4. Verdict and Sentence

{¶18} McClendon presented no evidence at trial. Upon the conclusion of the trial,

the jury returned guilty verdicts on tampering with evidence (count one) and possession of

cocaine (count three). The jury returned a not guilty verdict on trafficking in cocaine (count

two). The court issued a judgment entry of conviction and sentenced McClendon to a prison

term.

-5- Fayette CA2021-09-021

II. Law and Analysis

{¶19} McClendon appealed, raising three assignments of error. McClendon

presents his first two assignments of error together, and we will address those assignments

in the same manner.

{¶20} Assignment of Error No. 1:

{¶21} THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST

THE APPELLANT, WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{¶22} Assignment of Error No. 2:

{¶23} THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST

APPELLANT, WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶24} The generic phrasing of McClendon's assignments of error suggests he is

challenging all his convictions—that is, his convictions for tampering with evidence and

possession of cocaine. However, McClendon only presents argument about the tampering

with evidence count in the body of his brief. App.R. 12(A)(1)(b) provides that we must

determine an appeal on its merits on the assignments of error set forth in the briefs under

App.R. 16. In turn, App.R. 16(A)(7) obligates the appellant to include within his or her brief

"[a]n argument containing the contentions of the appellant with respect to each assignment

of error presented for review and the reasons in support of the contentions, with citations to

the authorities, statutes, and parts of the record on which appellant relies." App.R. 12(A)(2)

provides that we "may disregard an assignment of error presented for review if the party

raising it fails to identify in the record the error on which the assignment of error is based or

fails to argue the assignment separately in the brief, as required under App.R. 16(A)."

Because McClendon has not set forth any argument concerning count three, we need not

address whether his conviction for possession of cocaine was supported by sufficient

evidence, or whether it was against the manifest weight of the evidence. See State v.

-6- Fayette CA2021-09-021

Constable, 12th Dist. Clermont No. CA2006-12-107,

.

{¶25} As to the tampering charge, McClendon argues that the state presented

insufficient evidence that he knew an official proceeding or investigation was in progress or

that he destroyed or removed evidence. He contends that his conviction resulted from

impermissible inference stacking. For the same reasons, he argues that the jury lost its

way in convicting him of tampering with evidence and that his conviction was against the

weight of the evidence.

{¶26} When reviewing the sufficiency of the evidence underlying a conviction, an

appellate court examines the evidence to determine whether such evidence, if believed,

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

v. Paul, 12th Dist. Fayette No. CA2011-10-026,

, ¶ 9. Therefore, "[t]he

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

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt." State v. Jenks,

(1991), paragraph

two of the syllabus.

{¶27} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

, ¶

14. To determine whether a conviction is against the manifest weight of the evidence, the

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

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

miscarriage of justice that the conviction must be reversed, and a new trial ordered. State

v. Graham, 12th Dist. Warren No. CA2008-07-095,

, ¶ 66.

{¶28} In reviewing the evidence, an appellate court must be mindful that the original

-7- Fayette CA2021-09-021

trier of fact was in the best position to judge the credibility of witnesses and determine the

weight to be given to the evidence. State v. Blankenburg,

, 2012-

Ohio-1289, ¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the

manifest weight of the evidence only in the exceptional case in which the evidence weighs

heavily against the conviction. State v. Zitney, 12th Dist. Clinton No. CA2020-06-007, 2021-

Ohio-466, ¶ 15.

{¶29} "Although the legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different, '[a] determination that a

conviction is supported by the manifest weight of the evidence will also be dispositive of the

issue of sufficiency.'" State v. Billingsley, 12th Dist. Butler Nos. CA2019-05-075 and

CA2019-05-076,

, quoting State v. Jones, 12th Dist. Butler No.

CA2012-03-049,

.

{¶30} The jury found McClendon guilty of tampering with evidence in violation of

R.C. 2921.12(A)(1). That statute provides, "No person, knowing that an official proceeding

or investigation is in progress, or is about to be or likely to be instituted, shall do any of the

following: (1) Alter, destroy, conceal, or remove any * * * thing, with purpose to impair its

value or availability as evidence in such proceeding or investigation * * *." R.C.

2921.12(A)(1).

{¶31} As stated above, McClendon argues that the state failed to present sufficient

evidence, proving beyond a reasonable doubt, that he knew an investigation was in

progress or was likely to be implemented, and that the jury lost its way in so finding. But

Deputy Burden testified that the Entry Team members loudly knocked on the door and

loudly announced they were with the sheriff's office and were executing a search warrant.

They knocked and announced several times over the course of three minutes before forcing

entry. Deputy Burden stated that the level of noise was such that he believed that anyone

-8- Fayette CA2021-09-021

inside the home would have been able to hear the knocking and the announcement. Deputy

Burden testified that he kept announcing "Sheriff's office" after entering the residence.

{¶32} Deputy Burden made his way upstairs, where he found McClendon lying

prone on the floor with his arms stretched out. McClendon's position would suggest he

knew law enforcement officers were in the home and that he would soon be detained. Given

this testimony, we do not find that the jurors lost their way in finding that the state proved

that McClendon had knowledge of an official proceeding or investigation under R.C.

2921.12(A)(1).

{¶33} Next, McClendon argues that the state failed to present sufficient evidence

that he altered, destroyed, concealed, or removed anything in violation of R.C.

2921.12(A)(1), and that the jury lost its way in finding that he did so. But there was an

abundance of circumstantial evidence, which, when viewed collectively, indicated that

McClendon disposed of narcotics evidence by flushing it down the toilet. Jenks,

(circumstantial evidence has the same probative value as direct evidence

and is sufficient to prove the elements in a criminal case). That evidence consisted of water

droplets strewn about the bathroom in various locations, including near the toilet and farther

away from it. The jury could have concluded that this suggested that McClendon threw

objects into the toilet bowl with sufficient force to spray water outside the toilet.

{¶34} A part of a plastic container, appearing to be a tray or lid, was near the base

of the toilet and a corresponding container was found on the other half of the bathroom

floor, where small fragments of crack cocaine were recovered. This would circumstantially

indicate that the container contained the narcotics that McClendon had flushed down the

toilet and that some of those narcotics had not been successfully flushed.

{¶35} The overall condition of the bathroom was clean and tidy. The haphazardly

scattered plastic container pieces as well as the crack cocaine rocks strewn about the floor

-9- Fayette CA2021-09-021

contrasted with this tidiness. The jury could have concluded that this evidence suggested

that McClendon engaged in a frenzied but failed attempt to dispose of all the narcotics from

the plastic container.

{¶36} Finally, McClendon was the only person located on the second floor when the

search warrant was executed. His behavior upon being located by police—that is, lying

prone in the bedroom and breathing heavily—circumstantially corroborated a frenetic

attempt to dispose of narcotics. His unprompted statement that he "only had weed"

evidences a guilty mind and an effort to distract officers from his attempts to destroy the

crack cocaine that officers recovered in the nearby bathroom. Given this testimony and the

corresponding photographs introduced at trial, we do not find that the jury lost its way. See

State v. Moffett, 6th Dist. Sandusky No. S-10-056,

(affirming tampering

with evidence conviction based in part on circumstantial evidence of narcotics having been

flushed down toilet following knock-and-announce search warrant, including water on the

toilet seat and on the bathroom floor).

{¶37} The inferences in this case were not derived wholly from other inferences.

See State v. Braden, 12th Dist. Preble No. CA2013-12-012,

, quoting

State v. Cooper,

(12th Dist. 2002) ("It is well-established that '[a]

trier of fact may not draw an inference based entirely upon another inference, unsupported

by any additional fact or another inference from other facts.'"). Instead, all inferences as to

McClendon's conduct before Deputy Burden's arrival were based on evidence presented to

the jurors. Thus, the jury was not required to impermissibly stack inferences to find

McClendon guilty of tampering with evidence. See Braden at ¶ 13, quoting State v.

Maynard, 10th Dist. Franklin No. 11AP-697,

, ¶ 27 (the rule against stacking

inferences "does not prohibit using parallel inferences with additional facts, nor does it

'prohibit the drawing of multiple, separate inferences from the same set of facts.'").

- 10 - Fayette CA2021-09-021

{¶38} For all these reasons, we find that the jurors did not lose their way in convicting

McClendon and that his conviction was supported by the greater weight of the evidence.

Our finding that McClendon's conviction was not against the manifest weight of the evidence

is dispositive on the issue of sufficiency of the evidence. Billingsley,

. We therefore overrule McClendon's first and second assignments of error.

{¶39} Assignment of Error No. 3:

{¶40} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN VIOLATION

OF DEFENDANT-APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND

SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION & ARTICLE I,

SECTION 14 OF THE OHIO CONSTITUTION.

{¶41} McClendon argues that his trial counsel provided constitutionally defective

assistance by failing to move to suppress evidence obtained via the search warrant. In

support, McClendon cites his statements contesting the search warrant made on the record

before trial. McClendon argued that the search warrant was invalid because the return

stated that he had provided his electronic signature, when he denied doing so.

{¶42} To prevail on his ineffective assistance of counsel claim, McClendon must

show that his trial counsel's performance was deficient, and that he was prejudiced as a

result. State v. Petit, 12th Dist. Madison No. CA2016-01-005,

;

Strickland v. Washington,

,

(1984). The failure to satisfy

either prong of the Strickland test is fatal to an ineffective assistance of counsel claim. Petit

at ¶ 39. Trial counsel's performance will not be deemed deficient unless it fell below an

objective standard of reasonableness.

. To show prejudice, McClendon

must establish that, but for trial counsel's errors, there is a reasonable probability that the

result of the proceeding would have been different.

.

- 11 - Fayette CA2021-09-021

{¶43} The failure to move to suppress evidence does not constitute per se

ineffective assistance of counsel. State v. Smith, 12th Dist. Fayette No. CA2014-05-013,

, ¶ 44. To establish ineffective assistance of counsel for failure to move to

suppress, a defendant must be able to prove that there was a basis for suppression of the

evidence in question. State v. Brown,

,

, ¶ 65. Even

when there is some evidence in the record to support a motion to suppress, "an appellate

court presumes that defense counsel was effective if defense counsel could reasonably

have decided that the motion to suppress would have been futile." State v. Dominguez,

12th Dist. Preble No. CA2011-09-010,

, ¶ 20.

{¶44} McClendon supplemented the appellate record with a copy of the search

warrant and its attached return, titled "RETURN;RECEIPT; INVENTORY OF SEARCH

WARRANT." There is a signature line on this document where McClendon's signed name

appears. While the record is unclear on what document McClendon was referring to, this

is presumably the document.

{¶45} In his appellate brief, McClendon fails to articulate how this document, or how

McClendon's claim that the document falsely stated that he provided his digital signature,

would support the filing of a motion to suppress. This is the case because the search

warrant was not authorized based on any information or averments in the search warrant

return, as the return on its face was clearly prepared after the search warrant was executed.

McClendon also appears to misread the return when he contends that the return states he

provided his digital signature. Upon review, we find no such language in the return. Instead,

the only reference to anything "digital" or "electronic" in the return is in the space for the

detective who completed the form to provide an inventory of property taken pursuant to the

warrant. In that space, the detective wrote, by hand, "Image copy of Electronically Stored

Data." This reference is unclear, but perhaps it was a reference to the cell phone that

- 12 - Fayette CA2021-09-021

Detective Brown testified was found in the bedroom and was taken for later review. In any

case, an "Image Copy of Electronically Stored Data" is not a digital signature.

{¶46} Moreover, McClendon repeatedly disclaimed that 323 Forrest Street was his

residence. Fourth Amendment privacy rights are "'personal rights which, like some other

constitutional rights, may not be vicariously asserted.'" Rakas v. Illinois,

,

(1978), quoting Alderman v. United States,

,

(1969). As a result, a person who alleges error using evidence taken from someone else's

property cannot claim that his own rights have been violated. State v. Coleman,

(1989). Only those whose personal rights have been violated can raise

Fourth Amendment claims.

Thus, to challenge a search or seizure on Fourth

Amendment grounds, a defendant must possess a legitimate expectation of privacy in the

area searched, and the burden is upon the defendant to prove facts sufficient to establish

such expectation. State v. Renner, 12th Dist. Clinton No. CA2002-08-033, 2003-Ohio-

6550, ¶ 9. McClendon's disclaimer of 323 Forrest as his residence undercuts any argument

that he had a reasonable expectation of privacy under the Fourth Amendment or the Ohio

Constitution and that he could have mounted a successful challenge to the search warrant.1

{¶47} The record reflects that McClendon's counsel obtained a copy of the search

warrant, reviewed it, and determined that it would not be beneficial to attempt to challenge.

There is nothing in the record or on the face of the search warrant that would suggest that

this decision was anything but a reasonable exercise of professional judgment. McClendon

has failed to prove a basis to suppress the evidence collected by law enforcement and

therefore is unable to establish ineffective assistance of counsel. Brown,

1. With certain exceptions not applicable here, the Ohio Supreme Court has held that the Ohio Constitution affords protections coextensive with the Fourth Amendment. State v. Robinette,

(1997); State v. Brown,

,

, ¶ 23.

- 13 - Fayette CA2021-09-021

at ¶ 65. We overrule McClendon's third assignment of error.

III. Conclusion

{¶48} For the reasons discussed above, we find that McClendon's conviction for

tampering with evidence was supported by sufficient evidence as well as the greater weight

of the evidence. We also find that McClendon has not established that his trial counsel

provided ineffective assistance by failing to move to suppress evidence obtained through

the search warrant.

{¶49} Judgment affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.

- 14 -