[Cite as State v. Alexander,

.]

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

State of Ohio, : Case No. 21CA1144

Plaintiff-Appellee, : DECISION AND JUDGMENT ENTRY v. :

Barry Alexander, : RELEASED 5/24/2022

Defendant-Appellant. : ______________________________________________________________________ APPEARANCES:

Brian T. Goldberg, Cincinnati, Ohio, for appellant.

David Kelley, Adams County Prosecutor, and Anthony Hurst, Assistant Adams County Prosecutor, West Union, Ohio, for appellee. ______________________________________________________________________ Hess, J.

{¶1} Barry Alexander appeals from a judgment of the Adams County Court of

Common Pleas convicting him of aggravated possession of drugs. In his first assignment

of error, he contends that the court erred by not granting a mistrial as a sanction for

discovery violations. Alexander invited any error the court made in selecting the sanction

for the first violation because he requested the sanction the court imposed. With respect

to the second violation, he has not shown that the court’s decision to strike the testimony

at issue and give curative instructions instead of granting a mistrial was unreasonable,

arbitrary, or unconscionable. Therefore, we overrule the first assignment of error.

{¶2} In his second assignment of error, Alexander contends that the trial court

erred when it denied his motion to suppress evidence seized during the execution of a

search warrant. Alexander asserts that the search was unconstitutional because law Adams App. No. 21CA1144 2

enforcement intentionally delayed searching his residence until he arrived there in a

vehicle so they could also search him and the vehicle under the terms of the warrant.

However, he failed in his burden to establish that evidence obtained pursuant to the

warrant should be suppressed. Therefore, we overrule the second assignment of error.

{¶3} In his third assignment of error, Alexander contends there was insufficient

evidence to support his conviction, and it was against the manifest weight of the evidence.

After viewing the evidence in a light most favorable to the prosecution, we conclude any

rational trier of fact could have found the essential elements of aggravated possession of

drugs proven beyond a reasonable doubt. And after weighing the evidence and all

reasonable inferences, considering the credibility of the witnesses after according the

requisite deference to the jury’s determinations, we conclude that in resolving evidentiary

conflicts, the jury did not clearly lose its way or create a manifest miscarriage of justice so

that we must reverse the conviction. Therefore, we overrule the third assignment of error.

{¶4} In his fourth assignment of error, Alexander contends that the trial court

erred by sentencing him under the Reagan Tokes Law because it is unconstitutional.

Alexander did not challenge the constitutionality of the Reagan Tokes Law at the trial

level, so he has forfeited all but plain error review as to this issue. Alexander does not

argue plain error, and even if he had, such an argument would fail because he has not

met his burden to establish beyond a reasonable doubt that the law is unconstitutional.

Thus, he cannot show that any error, much less plain error, occurred. Therefore, we

overrule the fourth assignment of error and affirm the trial court’s judgment. Adams App. No. 21CA1144 3

I. FACTS AND PROCEDURAL HISTORY

{¶5} The Adams County grand jury indicted Alexander on one count of

aggravated possession of drugs in violation of R.C. 2925.11(A), a first-degree felony. The

grand jury later issued a supplemental indictment additionally charging him with trafficking

in drugs in violation of R.C. 2925.03(A)(2), a first-degree felony. Alexander filed a motion

to suppress evidence which the trial court denied after a hearing, and the matter

proceeded to a two-day jury trial.

{¶6} Detective Sam Purdin of the Adams County Sheriff’s Office testified that on

March 2, 2021, he and Sergeant Brian Newland went to Alexander’s residence on Elm

Street in Peebles, Ohio, to execute a search warrant. No one appeared to be there, so

they went to Fifth Avenue to serve arrest warrants while they waited for Alexander to

come home. First, they tried to serve Elizabeth Michaels. As they pulled into her

driveway, Detective Purdin saw Alexander, Josh Renschen, and Samantha Arey walking

away from Michaels’s trailer toward a maroon Toyota Camry. Alexander got in the front

passenger seat, Arey got in the back seat, and Renschen started to get into the driver’s

seat but stopped when he saw law enforcement. Detective Purdin did not think any of

them had a valid driver’s license and spoke to Renschen about him not having a license.

Renschen said he was not driving. Sergeant Newland knocked on Michaels’s door, but

she did not answer. Detective Purdin and Sergeant Newland left and went a couple of

houses down where they unsuccessfully tried to serve a warrant on Roger Gilpin, Jr.

Afterwards, Detective Purdin saw the Camry speeding down Fifth Avenue and pursued it

with Sergeant Newland with the intent to conduct a traffic stop. However, the Camry

pulled into Alexander’s driveway before they could catch up to it. Adams App. No. 21CA1144 4

{¶7} Renschen and Arey exited the vehicle, and Alexander was sitting in the front

passenger seat with the door open and one foot out of the vehicle. Alexander had a

cooler in his hands and “seemed to be concerned” about it. He “appeared to just kind of

be looking around” and “fidgeting with this cooler.” “He had sat it down a couple of times

and picked it up. And he started to get out of the car and then sat back down.” While

Detective Purdin spoke to Renschen and Arey, Alexander exited the vehicle without the

cooler. Sergeant Newland read the search warrant to Alexander, and Detective Purdin

retrieved the cooler from the Camry’s front passenger floorboard, opened it, and saw “BA”

written on the lid. Inside the cooler, he found hypodermic needles, a black zippered bag

containing cash, and another zippered bag containing ten clear plastic baggies of what

appeared to be methamphetamine. Detective Purdin told Sergeant Newland about the

suspected methamphetamine, and he advised Alexander of his Miranda rights.

Alexander acknowledged his rights and “just started inquiring about how many years he

thought he would get and about a bill of particulars. He wanted to know what he could to

just kind of get it over with.” Subsequently, Alexander led Detective Purdin into his

bedroom and pointed out a glass pipe and set of digital scales. Detective Purdin testified

that people who buy and sell methamphetamine use digital scales to weigh the drug.

{¶8} Detective Purdin thought Alexander, who only has one eye, has difficulty

seeing but did not know the extent of the problem. Detective Purdin assumed that

Alexander could see some. Alexander did not need assistance to walk from Michaels’s

trailer to the Camry or from the Camry to his residence, led Detective Purdin into the

residence, and told Detective Purdin that he “could see shadows and make out figures

and so forth.” Adams App. No. 21CA1144 5

{¶9} Sergeant Newland of the Adams County Sheriff’s Office gave a similar

account of the events of March 2, 2021, leading up to the execution of the search warrant.

However, Sergeant Newland testified that he saw the cooler for the first time after

Detective Purdin removed it from the Camry, searched it, and notified him about the

suspected methamphetamine inside. Sergeant Newland advised Alexander of his

Miranda rights and asked him how much methamphetamine was inside the cooler.

Alexander said he did not know and asked Detective Purdin “how much time he would

get.” Renschen and Arey denied having any knowledge of the methamphetamine.

Sergeant Newland had Detective Purdin put the cooler back in the Camry so he could

photograph it. Sergeant Newland weighed the ten baggies in the cooler and performed

a field test on the contents. The baggies weighed 287 grams and tested positive for the

presence of methamphetamine. Sergeant Newland testified that a typical dose of

methamphetamine is a tenth of gram, and 287 grams would be of 2,870 doses, which is

more than a “personal use” amount.

{¶10} Pamela Farley, a forensic scientist at the Ohio Bureau of Criminal

Investigation testified that she analyzed six of the ten baggies law enforcement found.

The six baggies weighed 166.46 grams, plus or minus .08 grams, and contained

methamphetamine. Farley did not analyze the other four baggies because even if they

contained methamphetamine, the additional weight of the material in those baggies would

not increase the penalty level in this case. Farley testified that methamphetamine is a

schedule II controlled substance, and the bulk amount of it is three grams.

{¶11} The jury found Alexander guilty on both counts. The parties stipulated the

offenses should merge for sentencing purposes, so the court merged them, and the state Adams App. No. 21CA1144 6

elected to proceed to sentencing on the aggravated possession of drugs count. The court

imposed an indefinite prison term of 11 to 16.5 years.

II. ASSIGNMENTS OF ERROR

{¶12} Alexander presents four assignments of error:

I. The trial court erred to the prejudice of Mr. Alexander by refusing to grant a mistrial after prejudicial statements allegedly made by Mr. Alexander were elicited at trial that had not been provided to defense counsel.

II. The trial court erred to the prejudice of Mr. Alexander by improperly denying his motion to suppress.

III. The evidence was insufficient as a matter of law and/or against the manifest weight of the evidence to sustain Mr. Alexander’s conviction.

IV. The Reagan Tokes Act, as enacted by the Ohio legislator [sic] is unconstitutional, and the trial court erred by sentencing Mr. Alexander under that act.

III. SANCTION FOR DISCOVERY VIOLATIONS

{¶13} In his first assignment of error, Alexander contends that the trial court erred

by refusing to grant a mistrial after state’s witnesses testified about incriminating

statements he allegedly made to law enforcement which the prosecutor failed to disclose

to defense counsel during discovery. Alexander asserts that the trial court abused its

discretion because it imposed a sanction without inquiring into the circumstances

surrounding the discovery violations and considering the three factors required by State

v. Darmond,

,

,

. Alexander asserts

that if the trial court had conducted the proper inquiry, the least severe sanction for the

violations that would have been consistent with the purpose of the discovery rules would

have been a mistrial. Adams App. No. 21CA1144 7

A. Legal Principles

{¶14} “The overall objective of the criminal rules ‘ “is to remove the element of

gamesmanship from a trial.” ’ ”

, quoting Lakewood v. Papadelis,

,

(1987), quoting State v. Howard,

,

(1978). Crim.R. 16 governs discovery in criminal cases. Crim.R.

16(A) states that the purpose of the rule “is to provide all parties in a criminal case with

the information necessary for a full and fair adjudication of the facts, to protect the integrity

of the justice system and the rights of defendants, and to protect the well-being of

witnesses, victims, and society at large.” In addition, the Supreme Court of Ohio has

stated that “[t]he purpose of the discovery rules ‘is to prevent surprise and the secreting

of evidence favorable to one party.’ ”

, quoting

. “The

overall purpose is to produce a fair trial.”

.

{¶15} Crim.R. 16(B)(1) states:

Upon receipt of a written demand for discovery by the defendant, * * * the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state, subject to the provisions of this rule:

(1) Any written or recorded statement by the defendant * * *, including police summaries of such statements * * * [.]

{¶16} Crim.R. 16(L)(1) provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances. Adams App. No. 21CA1144 8

{¶17} “A trial court has broad discretion in determining a sanction for a discovery

violation, and a trial court’s decision will not be reversed absent an abuse of that

discretion.” State v. Shelby, 4th Dist. Lawrence No. 15CA20,

, citing

State ex rel. Duncan v. Middlefield,

,

,

. “A trial court abuses its discretion when it makes a decision that is

unreasonable, unconscionable, or arbitrary.” Darmond,

, 2013-Ohio-

966,

. “An abuse of discretion includes a situation in which a trial

court did not engage in a ‘ “sound reasoning process.” ’ ”

quoting State v. Morris,

,

,

, ¶ 14, quoting AAAA Ents., Inc. v. River

Place Community Urban Redevelopment Corp.,

,

(1990).

{¶18} The “ ‘trial court must inquire into the circumstances surrounding a

discovery rule violation and, when deciding whether to impose a sanction, must impose

the least severe sanction that is consistent with the purpose of the rules of discovery.’ ”

, quoting Lakewood,

,

, at paragraph

two of the syllabus. The Supreme Court of Ohio has “established three factors that should

govern a trial court’s exercise of discretion in imposing a sanction for a discovery violation

committed by the prosecution.” Id. at ¶ 35. They are “(1) whether the failure to disclose

was a willful violation of Crim.R. 16, (2) whether foreknowledge of the undisclosed

material would have benefited the accused in the preparation of a defense, and (3)

whether the accused was prejudiced.” Id. Adams App. No. 21CA1144 9

B. The Discovery Violations and Sanctions

{¶19} The first discovery violation relates to the following exchange between the

prosecutor and Detective Purdin on redirect examination during the first day of trial:

Q. What happened with the cash [in the black bag]?

A. Barry Alexander continued to ask that we speak to the sheriff and see if he could leave the money with his girlfriend, Helen.

Defense counsel objected, and during a sidebar, explained that the prosecutor did not

disclose Alexander’s alleged statement about the money in discovery. Defense counsel

asked the court to strike it from the record. The court granted that request, instructed the

jury to disregard testimony about the statement, and inquired whether any juror could not

follow its instruction. No juror indicated an inability to do so. After another sidebar, the

court again instructed the jury to disregard the testimony about Alexander’s alleged

statement. The court asked the jurors to raise their right hand if they could not follow the

instruction. None of them did.

{¶20} The second discovery violation relates to the following exchange between

the prosecutor and Sergeant Newland on direct examination during the first day of trial:

Q. Okay and then when you saw [the baggies containing a white crystalized substance] and you had read Mr. Alexander his rights immediately thereafter, what if anything did Mr. Alexander say about what was inside the cooler?

A. I initially asked him how much methamphetamine was inside the cooler. He stated that he didn’t know. At that time he began asking Detective Purdin how much time he would get. And that he stated [sic], pardon my language, that he was fucked. And things of that nature.

Defense counsel requested a sidebar and explained that Alexander’s alleged statement

that he was “fucked” was not in the discovery he received and “seems to be a pretty

damning statement to me.” The prosecutor stated, “I don’t think it is but that’s what Adams App. No. 21CA1144 10

[Sergeant] Newland just recalls. I don’t know.” Defense counsel requested a mistrial

“because it’s a pretty important statement,” and in the alternative, requested a curative

instruction. The prosecutor asserted that a mistrial was unnecessary and that “a curative

statement is fine.” The court denied the motion for a mistrial and instructed the jury to

“strike from your consideration the suggested statement that the defendant stated that he

was f’d * * * as if never heard.” The court asked the jurors to raise their right hand if they

could not “strike that from any and all consideration,” and none of them did.

{¶21} At the end of day one, the court asked the jurors to raise their right hand if

they felt, upon further reflection, that they could not follow the court’s instructions to strike

certain matters from their consideration. None of them did. On day two, defense counsel

renewed his motion for a mistrial. The court acknowledged Alexander’s alleged statement

that he was “fucked” was potentially inculpatory. However, the court noted that it had

given the jury curative instructions, that none of the jurors indicated they could not follow

them, and that the jurors “seemed very accepting that the rules are the rules.” Therefore,

the court decided to deny the renewed motion for a mistrial and give the jury another

curative instruction prior to deliberations. Defense counsel then stated:

I want to put on the record; it’s my duty also to disclose to the Court that I don’t believe that this was any type of intentional misconduct by the prosecutor’s office. There was nothing indicative to me of them hiding evidence or intentionally holding that in their back pocket. I think that, you know, if they knew about it I believe they would have disclosed it to me. But I just want to put on the record they were cooperative with me.

The court stated, “Of course the Court is a constant observer. And I would have to join it

did not appear to the Court to be a tactic of surprise.” And prior to deliberations, the court

gave another curative instruction as promised. Adams App. No. 21CA1144 11

C. Analysis of Discovery Violation 1

{¶22} Alexander invited any error the trial court made in not granting a mistrial as

a sanction for the state’s failure to disclose his alleged statement about the money.

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 Supreme Court of Ohio “ ‘has found invited error 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). Alexander did not request a mistrial as a sanction for the

state’s failure to disclose his alleged statement about the money. Rather, he asked the

court to strike Detective Purdin’s testimony about the statement from the record. The trial

court granted the requested sanction and gave the jury multiple curative instructions.

Alexander cannot now complain on appeal that the court erred by granting the sanction

he requested instead of a mistrial.

D. Analysis of Discovery Violation 2

{¶23} Alexander has not demonstrated that the trial court abused its discretion by

not granting a mistrial as a sanction for the state’s failure to disclose his alleged statement

that he was “fucked.” Alexander admits that it does not appear that the discovery violation

was intentional but asserts that through the exercise of due diligence, the prosecutor

could have “easily learned” about the alleged statement by speaking to his witnesses prior

to trial. However, during the motion to suppress hearing, the prosecutor specifically asked Adams App. No. 21CA1144 12

Sergeant Newland whether Alexander had made “any other acknowledgements or

inculpatory statements” after being advised of his Miranda rights aside from the ones

Sergeant Newland had already testified to at the hearing. Sergeant Newland said, “Not

to me he did not.” Therefore, the prosecutor had no reason to make additional inquiries

of him about the subject prior to trial.

{¶24} Nothing in the record suggests that Sergeant Newland remembered and

disclosed the alleged statement to the prosecutor before trial. When defense counsel

objected to Sergeant Newland’s testimony about it, the prosecutor made the comment

that the statement was “what [Sergeant] Newland just recalls,” implying the prosecutor

had no prior knowledge of it. Later, defense counsel essentially admitted that he did not

believe the discovery violation was willful, and the court indicated it agreed, stating that it

was a “constant observer” and that “it did not appear to the Court to be a tactic of surprise.”

Although the court made this comment after it denied the motions for a mistrial, the

comment nonetheless indicates that the court considered the willfulness factor. The fact

that the discovery violation was not willful weighs in favor of the court’s decision to strike

the alleged statement and give the jury curative instructions instead of granting the more

severe sanction of a mistrial.

{¶25} The trial court did not expressly address whether foreknowledge of the

alleged statement would have benefited Alexander in the preparation of his defense.

However, Alexander has not identified any potential benefit aside from the fact that

defense counsel “could have been prepared to address” the statement in voir dire and

opening statements and “formulated his cross-examination more appropriately.” The only

way this preparation could have benefited Alexander’s defense is if the trial court had Adams App. No. 21CA1144 13

allowed the statement into evidence, which it did not. Alexander also asserts that if

defense counsel had known about the statement, “there might have been discussions

about a plea resolution before proceeding with a jury trial.” However, we fail to see how

a possibility of pre-trial plea negotiations would have benefitted Alexander in the

preparation of his defense. Therefore, we conclude that the trial court’s decision to strike

the alleged statement and give curative instructions was sufficient to ensure Alexander

did not lose any benefit in the preparation of his defense due to the discovery violation.

{¶26} Alexander claims he was “extremely prejudiced by the discovery violation”

because the alleged statement amounts to an admission of guilt which undermines his

defense that the state could not prove that he possessed the methamphetamine. The

prejudice he identifies is not a result of the discovery violation but rather is a result of the

incriminating nature of the statement itself. In any event, the record reflects that the trial

court did consider the fact that the alleged statement was potentially inculpatory and

whether the jurors would be able to follow the court’s curative instructions. Although

Alexander asserts that the curative instructions were insufficient to guarantee he had a

fair trial, the jury is presumed to follow them. State v. Garner,

,

(1995). Nothing in the record rebuts that presumption. Therefore, the trial

court’s decision to strike the alleged statement from evidence and give curative

instructions was sufficient to relieve any prejudice the discovery violation created.

{¶27} Based on the foregoing, we cannot conclude that the trial court’s

determination that the least severe sanction consistent with the purpose of the discovery

rules was to strike the alleged statement and give curative instructions was unreasonable,

arbitrary, or unconscionable. “ ‘[T]he trial judge is in the best position to determine Adams App. No. 21CA1144 14

whether the situation in [the] courtroom warrants the declaration of a mistrial.’

” (Alterations sic.) State v. Ahmed,

,

,

,

¶ 92, quoting State v. Glover,

,

(1988). “[M]istrials

need be declared only when the ends of justice so require and a fair trial is no longer

possible.”

. Such circumstances are not present in this case.

E. Conclusion on First Assignment of Error

{¶28} For the foregoing reasons, we conclude that the trial court did not err by not

granting a mistrial as a sanction for discovery violations. Accordingly, we overrule the

first assignment of error.

IV. MOTION TO SUPPRESS

{¶29} In his second assignment of error, Alexander contends that the trial court

erred when it denied his motion to suppress. Alexander asserts that “law enforcement

intentionally delayed executing the search warrant” until he arrived at his residence in a

motor vehicle so that they could search him and the vehicle pursuant to the search

warrant. He asserts that “there was no reason for law enforcement to not immediately

execute the search warrant” because “[t]hey were in close proximity” to his residence and

“made contact with him” while attempting to serve Michaels. Alexander claims that “[t]his

intentional delay was unlawful and invalidated the search.” Alexander states that he is

not aware of any Ohio courts which have addressed this issue and that federal caselaw

he found on the subject indicates it is “likely not unlawful for police to intentionally

manipulate the timing of executing a search warrant.” Nonetheless, he claims that

“[p]ossession of a valid search warrant does not permit law enforcement to prolong

executing the warrant to search other people or vehicles coming onto the property” and Adams App. No. 21CA1144 15

that we should require law enforcement to have “a separate warrant or other probable

cause” to search him or the Camry. Otherwise, law enforcement will be able “to obtain a

search warrant and lay in wait until certain people or motor vehicles arrive on the

property.”

{¶30} Generally, “appellate review of a motion to suppress presents a mixed

question of law and fact.” State v. Codeluppi,

,

,

, citing State v. Burnside,

,

,

. The Supreme Court of Ohio has explained:

When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.

(Citations omitted.) Burnside at ¶ 8.

{¶31} “The Fourth Amendment to the United States Constitution and the Ohio

Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” State

v. Emerson,

,

,

. The Supreme

Court of Ohio has held that these provisions provide the same protection in felony cases.

State v. Hawkins,

,

,

, ¶ 18. “This

constitutional guarantee is protected by the exclusionary rule, which mandates the

exclusion at trial of evidence obtained from an unreasonable search and seizure.” State

v. Petty,

,

, ¶ 11 (4th Dist.).

{¶32} For a search or seizure to be reasonable under the Fourth Amendment, it

must be based on probable cause and executed pursuant to a warrant, unless an Adams App. No. 21CA1144 16

exception to the warrant requirement applies. State v. Moore,

,

(2000). The Fourth Amendment also requires that law enforcement “execute

search warrants in a reasonable manner.” State v. Gipson, 3d Dist. Hancock No. 5-09-

19,

. “When a motion to suppress attacks the validity of a search

conducted under a warrant, the burden of proof is on the defendant to establish that

evidence obtained pursuant to the warrant should be suppressed.” State v. Wallace,

,

, ¶ 27 (7th Dist.), citing State v. Dennis,

,

(1997).

{¶33} At the suppression hearing, Sergeant Newland testified that he applied for

the search warrant on March 2, 2021, sometime before noon. The same day, a judge

issued a search warrant commanding law enforcement to search Alexander’s residence

and “any and all other outbuildings, curtilage, vehicles and/or persons located on the

property.” Consistent with Crim.R. 41(C)(2), the warrant commanded that law

enforcement serve the warrant and perform the search “during the daytime within 3 days

from the issuance of this order.” See Crim.R. 41(C)(2) (“A search warrant shall command

the officer to search, within three days, the person or place named for the property

specified”). Law enforcement executed the search warrant around 4:00 p.m. the day it

was issued. Sergeant Newland admitted that they were waiting to execute the search

warrant until the Camry was present because that would indicate Alexander was home,

and they had reason to believe he would have methamphetamine with him. Detective

Purdin testified that they were waiting to execute the search warrant until they thought

Alexander was home because they assumed he “would have methamphetamine and that

he would have it on his person or with him close by.” Adams App. No. 21CA1144 17

{¶34} Alexander has not shown that law enforcement executed the search warrant

in an unreasonable manner. Law enforcement had three days to execute the search

warrant1 and did so well within that timeframe. Alexander cites no legal authority which

stands for the proposition that the Fourth Amendment prohibits law enforcement from

intentionally timing the execution of a search warrant for strategic purposes. He

acknowledges that the only legal authority he found on the subject supports the opposite

conclusion. If legal authority exists to support his assignment error, it is not our duty to

root it out. Koscielak v. United Ohio Ins. Co., 3d Dist. Defiance No. 4-19-20, 2020-Ohio-

3224, ¶ 28, quoting Harris v. Nome, 9th Dist. Summit No. 21071,

, ¶ 15

(“ ‘It is not the obligation of an appellate court to search for authority to support an

appellant’s argument as to an alleged error’ ”). Accordingly, we conclude that the trial

court did not err when it denied the motion to suppress, and we overrule the second

assignment of error.

V. SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE

{¶35} In his third assignment of error, Alexander contends that there was

insufficient evidence to support his conviction and that his conviction was against the

manifest weight of the evidence. Alexander suggests that he could not be convicted of

either charged offense because the state failed to show he knowingly possessed the

1 At least one appellate court has held that Crim.R. 45(A) applies when calculating the three-day time period for the execution of a search warrant under Civ.R. 41(C)(2). Dawson v. Richmond Heights, 8th Dist. Cuyahoga No. 105938,

, ¶ 21. Crim.R. 45(A) states: “In computing any period of time prescribed or allowed by these rules, * * * the date of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in computation.” Thus, the three-day period to execute a search warrant may exceed three calendar days. However, we need not consider the applicability of Crim.R. 45(A) in this case because law enforcement executed the search warrant the same day it was issued. Adams App. No. 21CA1144 18

methamphetamine in the cooler. He implies that evidence of the location in which the

cooler was found in the vehicle is unreliable because no one photographed the cooler

before Detective Purdin removed it from the vehicle. Alexander highlights the fact that in

addition to him, two other people had occupied the vehicle in which the cooler was found.

He also emphasizes that he “did not run or make any efforts to conceal the drugs,” that

there was no “forensic evidence” linking him to the drugs, and that he has vision issues

“which likely made it difficult for him to see what was inside the cooler.”

{¶36} In reviewing the sufficiency of the evidence for a conviction, “[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, superseded by constitutional amendment on other grounds

as stated in State v. Smith,

,

(1997), fn. 4, and

following Jackson v. Virginia,

,

,

(1979).

“A sufficiency assignment of error challenges the legal adequacy of the state’s prima facie

case, not its rational persuasiveness.” State v. Anderson, 4th Dist. Highland No. 18CA14,

, ¶ 13. “That limited review does not intrude on the jury’s role ‘to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.’ ” Musacchio v. United States,

,

,

(2016), quoting

.

{¶37} In determining whether a conviction is against the manifest weight of the

evidence, an appellate court

must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in Adams App. No. 21CA1144 19

resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that reversal of the conviction is necessary. In order to satisfy this test, the state must introduce substantial evidence on all the elements of an offense, so that the jury can find guilt beyond a reasonable doubt.

Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. However, we are reminded that generally, it is the role of the jury to determine the weight and credibility of evidence. “ ‘A jury, sitting as the trier of fact, is free to believe all, part or none of the testimony of any witness who appears before it.’ ” State v. Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016- Ohio-3338, ¶ 17, quoting State v. West, 4th Dist. Scioto No. 12CA3507,

. We defer to the trier of fact on these evidentiary weight and credibility issues because it is in the best position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility.

(Citations omitted.) Anderson at ¶ 14-15.

{¶38} Although the jury found Alexander guilty of aggravated possession of drugs

and trafficking in drugs, the trial court merged the offenses and sentenced Alexander only

on the aggravated possession of drugs count. As a result, if we conclude Alexander’s

conviction on that count was supported by sufficient evidence and was not against the

manifest weight of the evidence, an erroneous verdict on the merged count would be

harmless. See State v. Wickersham, 4th Dist. Meigs No. 13CA10,

, ¶ 21.

Therefore, it would be unnecessary for us to address his sufficiency and manifest weight

of the evidence argument with regard to the trafficking in drugs count. See

{¶39} R.C. 2925.11(A), the statute on drug possession offenses, states: “No

person shall knowingly obtain, possess, or use a controlled substance * * *.” “If the drug

involved in the violation is a compound, mixture, preparation, or substance included in

schedule * * * II * * * whoever violates division (A) of this section is guilty of aggravated

possession of drugs.” R.C. 2925.11(C)(1). “If the amount of the drug involved equals or Adams App. No. 21CA1144 20

exceeds fifty times the bulk amount but is less than one hundred times the bulk amount,

aggravated possession of drugs is a felony of the first degree * * *.” R.C.

2925.11(C)(1)(d).

{¶40} R.C. 2901.22(B) states:

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 the 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.

{¶41} “ ‘Possess’ * * * means 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).

“ ‘Possession * * * may be individual or joint, actual or constructive.’ ” (Alteration sic.)

State v. Whitehead, 4th Dist. Scioto No. 20CA3931,

, quoting State

v. Wolery,

,

(1976). “Actual possession exists

when the circumstances indicate that an individual has or had an item within [the

individual’s] immediate physical possession.” State v. Fry, 4th Dist. Jackson No. 03CA26,

. “Constructive possession exists when an individual knowingly

exercises dominion and control over an object, even though that object may not be within

[the individual’s] immediate physical possession.” State v. Hankerson,

,

(1982), syllabus. “For constructive possession to exist, the state must

show that the defendant was conscious of the object’s presence.” Whitehead at ¶ 89,

citing

. Adams App. No. 21CA1144 21

{¶42} The state introduced evidence from which any rational trier of fact could

have found the essential elements of aggravated possession of drugs proven beyond a

reasonable doubt, and in resolving conflicts in the evidence, the jury did not clearly lose

its way or create such a manifest miscarriage of justice that reversal of the conviction for

that offense is necessary. There is evidence that Alexander had actual possession of the

cooler, which contained methamphetamine, a schedule II controlled substance, in an

amount which equaled or exceeded 50 times the bulk amount but was less than 100 times

the bulk amount. Detective Purdin testified that he saw the cooler in Alexander’s hands

and watched him pick it up and put it down multiple times while sitting in the front

passenger seat of the Camry. There is also evidence that Alexander was knowingly in

possession of the methamphetamine. His initials were inside the cooler, suggesting it

belonged to him. His nervous behavior in the presence of law enforcement—looking

around, fidgeting with the cooler, and acting indecisive about whether to get out of the

Camry—indicates he knew the drugs were inside his cooler. Alexander made statements

suggestive of guilt, asking about “how many years” he would get and expressing a desire

to “get it over with.” In addition, he had drug-related paraphernalia inside his residence,

which he had just traveled to with the cooler.

{¶43} Sufficient evidence supports the aggravated possession of drugs conviction

and it was not against the manifest weight of the evidence. Consequently, any error the

jury may have committed by finding Alexander guilty of the merged offense of trafficking

in drugs is harmless, and we need not consider Alexander’s arguments as they relate to

that offense. Accordingly, we overrule the third assignment of error. Adams App. No. 21CA1144 22

VI. REAGAN TOKES LAW

{¶44} In his fourth assignment of error, Alexander contends that the trial court

erred by sentencing him under the Reagan Tokes Law because it is unconstitutional.

{¶45} The Reagan Tokes Law encompasses four newly enacted statutes and

amendments to 50 existing statutes. R.C. 2901.011. Relevant here, the Reagan Tokes

Law requires that a court imposing a prison term under R.C. 2929.14(A)(1)(a) or (2)(a)

for a first or second degree felony committed on or after March 22, 2019, impose a

minimum prison term under that provision and a maximum prison term determined under

R.C. 2929.144(B). R.C. 2929.144(A) and (C). There is a presumption that the offender

“shall be released from service of the sentence on the expiration of the offender’s

minimum prison term or on the offender’s presumptive earned early release date,

whichever is earlier.” R.C. 2967.271(B). A presumptive earned early release date is a

date determined under procedures described in R.C. 2967.271(F) which allow the

sentencing court to reduce the minimum prison term under certain circumstances. R.C.

2967.271(A)(2).

{¶46} R.C. 2967.271(C) states that the Ohio Department of Rehabilitation and

Correction (“ODRC”) may rebut the presumption in R.C. 2967.271(B) if it

determines, at a hearing, that one or more of the following applies:

(1) Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply:

(a) During the offender’s incarceration, the offender committed institutional rule infractions that involved compromising the security of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated. Adams App. No. 21CA1144 23

(b) The offender’s behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society.

(2) Regardless of the security level in which the offender is classified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within the year preceding the date of the hearing.

(3) At the time of the hearing, the offender is classified by the department as a security level three, four, or five, or at a higher security level.

If ODRC rebuts the presumption, it “may maintain the offender’s incarceration” after the

expiration of the minimum prison term or presumptive earned early release date for a

reasonable period of time, determined and specified by ODRC, which “shall not exceed

the offender’s maximum prison term.” R.C. 2967.271(D)(1).

{¶47} Alexander asserts that the Reagan Tokes Law violates the separation of

powers doctrine because it allows ODRC, an executive agency, to “extend a prison

sentence” if it concludes an offender committed an unprosecuted violation of law while

incarcerated. He claims this amounts to an exercise of judicial authority which the

legislature cannot delegate to the executive branch, relying on State ex rel. Bray v.

Russell,

,

(2000), to support his position. Alexander

also asserts that the Reagan Tokes Law violates procedural due process because

offenders have a liberty interest in being released on their presumptive release date, and

the law allows ODRC to “extend a prison sentence when an offender commits a violation

of law.” He quotes White v. Konteh, 11th Dist. Trumbull No. 99-T-0020,

,

*5 (Mar. 23, 1999), for the proposition that “[i]t is a fundamental tenet of due process that

the decision to restrict an individual’s freedom can only be made by a neutral magistrate,

not by law enforcement officials whose primary purpose is to place offenders in jail.” As Adams App. No. 21CA1144 24

used in that case, the phrase “neutral magistrate” refers to “a duly elected or appointed

judge of this state.”

.

{¶48} The constitutionality of a statute presents a question of law we review de

novo. Hayslip v. Hanshaw,

,

, ¶ 27 (4th Dist.). “Statutes

are presumed to be constitutional.” State v. Noling,

,

,

. “A statute will be upheld unless the challenger meets the burden

of establishing beyond a reasonable doubt that the statute is unconstitutional.”

{¶49} “A party may challenge a statute as unconstitutional on its face or as applied

to a particular set of facts.” Harrold v. Collier,

,

,

. “A facial challenge to a statute is the most difficult to bring successfully

because the challenger must establish that there exists no set of circumstances under

which the statute would be valid. The fact that a statute might operate unconstitutionally

under some plausible set of circumstances is insufficient to render it wholly invalid.”

(Citation omitted.)

Moreover, R.C. 1.50 states: “If any provision of a section of the

Revised Code or the application thereof to any person or circumstance is held invalid, the

invalidity does not affect other provisions or applications of the section or related sections

which can be given effect without the invalid provision or application, and to this end the

provisions are severable.”

{¶50} “ ‘[T]he question of the constitutionality of a statute must generally be raised

at the first opportunity and, in a criminal prosecution, this means in the trial court.’ ” State

v. Quarterman,

,

,

, quoting State

v. Awan,

,

(1986). “We may review the trial court

decision for plain error, but we require a showing that but for a plain or obvious error, the Adams App. No. 21CA1144 25

outcome of the proceeding would have been otherwise, and reversal must be necessary

to correct a manifest miscarriage of justice.” (Citation omitted.) Id. at ¶ 16. “The burden

of demonstrating plain error is on the party asserting it.” Id. The Supreme Court of Ohio

has also “stated that a forfeited constitutional challenge to a statute is subject to review

‘where the rights and interests involved may warrant it.’ ” Id., quoting In re M.D.,

,

(1988), syllabus.

{¶51} Although Alexander challenges the facial constitutionality of the Reagan

Tokes Law in its entirety, his argument focuses on R.C. 2967.271(C) and (D). Alexander

has not yet served his minimum sentence and been subject to the application of the

specific provisions of the Reagan Tokes Law he asserts make it unconstitutional. In prior

decisions, this court “repeatedly held that the constitutionality of sentencing pursuant to

the Reagan Tokes Law is not yet ripe because on direct appeal an appellant has yet to

serve his or her minimum prison term, which is the first instance in which the department

of corrections could take any action that affects the length of an appellant’s incarceration.”

State v. Meadows, 4th Dist. Ross No. 20CA3734,

. However, in

State v. Maddox, Slip Opinion No.

, the Supreme Court of Ohio recently

held that “a criminal defendant’s challenge to the constitutionality of R.C. 2967.271 is ripe

for review on the defendant’s direct appeal of his or her conviction and prison sentence.”

Maddox at ¶ 22. Therefore, we will address the merits of Alexander’s constitutional

arguments.

{¶52} Alexander did not challenge the constitutionality of the Reagan Tokes Law

at the trial level and has therefore forfeited all but plain error review. State v. Conant, 4th

Dist. Adams No. 20CA1108,

. Alexander has not argued plain error Adams App. No. 21CA1144 26

on appeal, and even if he had, as we explain below, such an argument would fail because

he has not met his burden to establish beyond a reasonable doubt that the law is

unconstitutional. Thus, he cannot show that any error, much less plain error, occurred.

{¶53} Alexander has failed in his burden to establish beyond a reasonable doubt

that the Reagan Tokes Law is unconstitutional because it violates the separation of

powers doctrine. His reliance on Bray is misplaced. In that case, the Supreme Court of

Ohio considered a facial challenge to the constitutionality of now repealed R.C. 2967.11,

also known as the “bad-time statute.” Bray,

,

.

{¶54} Former R.C. 2967.11(B) stated:

As part of a prisoner’s sentence, the parole board may punish a violation committed by the prisoner by extending the prisoner’s stated prison term for a period of fifteen, thirty, sixty, or ninety days in accordance with this section. * * * If a prisoner’s stated term is extended under this section, the time by which it is so extended shall be referred to as “bad time.”

A “violation” was defined as “an act that is a criminal offense under the law of this state

or the United States, whether or not a person is prosecuted for the commission of the

offense.” Former R.C. 2967.11(A). “Other sections in [former] R.C. 2967.11 set forth the

procedures to be followed to determine whether a ‘violation,’ a crime, [had] been

committed.”

.

{¶55} Bray held that the bad-time statute violated the separation of powers

doctrine and was therefore unconstitutional.

. The court explained that “[i]n our

constitutional scheme, the judicial power resides in the judicial branch,” and “[t]he

determination of guilt in a criminal matter and the sentencing of a defendant convicted of

a crime are solely the province of the judiciary.”

Provisions of the bad-time statute

“enable[d] the executive branch to prosecute an inmate for a crime, to determine whether Adams App. No. 21CA1144 27

a crime [had] been committed, and to impose a sentence for that crime.”

. This

was “no less than the executive branch’s acting as judge, prosecutor, and jury.”

Bray

explained that the bad-time statute “intrude[d] well beyond the defined role of the

executive branch as set forth in our Constitution,”

because [t]rying, convicting, and

sentencing inmates for crimes committed while in prison is not an exercise of executive

power,”

.

{¶56} The Second District Court of Appeals has explained that Bray does not

“compel the conclusion that the Reagan Tokes Law violates the separation of powers

doctrine” because

there is a significant distinction between the imposition of “bad time” as allowed by R.C. 2967.11 and the Reagan Tokes Law. R.C. 2967.11 authorized the parole board to sentence a defendant to an additional prison term beyond that which had been imposed by the trial court. In Bray, the defendant had served the entirety of the definite sentence imposed by the trial court; the parole board then tacked an additional prison term onto the defendant’s sentence. In contrast, under Reagan Tokes, the executive branch cannot keep a defendant in prison beyond the maximum sentence imposed by the trial court. In short, Reagan Tokes does not allow the ODRC to lengthen a defendant’s sentence beyond the maximum sentence imposed by the trial court.

State v. Barnes, 2d Dist. Montgomery No. 28613,

. Accord State

v. Hacker,

,

(3d Dist.), appeal allowed in part by

,

,

. See also State v. Delvallie, 2022-

Ohio-470,

(8th Dist.), appeal allowed by

We

agree with this reasoning and therefore reject Alexander’s argument that the Reagan

Tokes Law violates the separation of powers doctrine.

{¶57} Alexander has also failed in his burden to establish beyond a reasonable

doubt that the Reagan Tokes Law is facially unconstitutional because it violates due Adams App. No. 21CA1144 28

process. The Due Process Clause in the Fourteenth Amendment to the United States

Constitution states: “No State shall * * * deprive any person of life, liberty, or property,

without due process of law * * *.” The Due Course of Law Clause in Article I, Section 16

of the Ohio Constitution provides: “All courts shall be open, and every person, for an

injury done him in his land, goods, person, or reputation, shall have remedy by due course

of law, and shall have justice administered without denial or delay.” “The two clauses

provide equivalent due process protections.” State v. Wheatley,

,

(4th Dist.), citing State v. Aalim,

,

,

, ¶ 15.

{¶58} “Although the concept is flexible, at its core, procedural due process under

both the Ohio and United States Constitutions requires, at a minimum, an opportunity to

be heard when the state seeks to infringe a protected liberty or property right.” State v.

Cowan,

,

,

. “[T]he opportunity to

be heard must occur at a meaningful time and in a meaningful manner.”

“Under the

Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport

with prevailing notions of fundamental fairness.” California v. Trombetta,

,

,

(1984). The United States Supreme Court has

“ ‘defined the category of infractions that violate “fundamental fairness” very narrowly’

based on the recognition that, ‘[b]eyond the specific guarantees enumerated in the Bill of

Rights, the Due Process Clause has limited operation.’ ” Medina v. California,

,

,

(1992), quoting Dowling v. United States,

,

,

(1990). “The Bill of Rights speaks in

explicit terms to many aspects of criminal procedure, and the expansion of those Adams App. No. 21CA1144 29

constitutional guarantees under the open-ended rubric of the Due Process Clause invites

undue interference with both considered legislative judgments and the careful balance

that the Constitution strikes between liberty and order.”

{¶59} “A procedural due process analysis begins by examining ‘whether there

exists a liberty or property interest of which a person has been deprived.’ ”

, quoting Swarthout v. Cooke,

,

,

(2011). “If the person has been deprived of a protected liberty or property interest, the

question becomes ‘whether the procedures followed by the State were constitutionally

sufficient.’ ”

quoting

.

{¶60} Even if we agreed that R.C. 2967.271(C) and (D) deprive offenders of a

protected liberty interest, Alexander’s suggestion that due process requires that the

sentencing court, rather than ODRC, conduct the R.C. 2967.271(C) hearing and make

the decision whether to maintain the offender’s incarceration is not well-taken. The

Twelfth District Court of Appeals has rejected a similar due process argument, explaining:

The hearings conducted by the ODRC under R.C. 2967.271(C) are analogous to parole revocation proceedings, probation revocation proceedings, and postrelease control violation hearings * * *. This is because, as noted by the state as part of its appellate brief, “[a]ll three situations concern whether a convicted felon has committed violations while under the control and supervision of the [ODRC].” Therefore, because due process does not require the sentencing court to conduct parole revocation proceedings, probation revocation proceedings, or postrelease control violation hearings, we likewise conclude that due process does not require the sentencing court to conduct a hearing under R.C. 2967.271(C) to determine whether the ODRC has rebutted the presumption set forth in R.C. 2967.271(B).

(Alterations sic.) State v. Guyton, 12th Dist. Butler No. CA2019-12-203,

. See also Barnes, 2d Dist. Montgomery No. 28613,

(observing that appellant’s assertion that he had a due process right to have a judge Adams App. No. 21CA1144 30

determine whether to extend the presumed minimum prison term under the Reagan

Tokes Law, “though precluded by waiver, does not seem well founded” because “[t]he

extension of a defendant’s sentence beyond the presumptive minimum term is akin to the

decision to grant or deny parole,” and “[t]he parole decision in Ohio is an executive

function that does not involve the judiciary”). We agree with this reasoning and therefore

reject Alexander’s argument that the Reagan Tokes Law violates due process.

{¶61} Because Alexander has failed in his burden to establish beyond a

reasonable doubt that the Reagan Tokes Law is unconstitutional, we overrule his fourth

assignment of error.

VII. CONCLUSION

{¶62} Having overruled the four assignments of error, we affirm the trial court’s

judgment.

JUDGMENT AFFIRMED. Adams App. No. 21CA1144 31

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the ADAMS COUNTY COURT OF COMMON PLEAS to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________ Michael D. Hess, 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.