[Cite as State v. Gray,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2022-02-006

: OPINION - vs - 2/6/2023 :

LARRY WAYNE GRAY, JR., :

Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 21CR38196

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.

The Helbling Law Firm, LLC, and John J. Helbling, for appellant.

HENDRICKSON, J.

{¶1} Appellant, Larry Wayne Gray, appeals from his judgment of conviction in the

Warren County Court of Common Pleas for trafficking marijuana, possessing marijuana,

and engaging in a pattern of criminal activity. For the reasons below, we affirm the decision

of the trial court.

{¶2} In the fall of 2020, the Warren County Drug Task Force ("WCDTF") began Warren CA2022-02-006

reviewing phone calls between an inmate, Joseph Lawter, and his girlfriend, Deeion

Sandlin. The two spoke about a drug supplier from California named Burgess Faris. Due

to the nature of these phone calls, the WCDTF began surveilling Sandlin.

{¶3} On October 23, 2020, the WCDTF observed Sandlin drive to a storage facility

in Beavercreek where she spoke with another individual, later identified to be Faris. Once

Sandlin and Faris were in the storage facility, the officers observed Faris load an object into

Sandlin's vehicle. Sandlin and Faris left the storage facility in separate vehicles and were

immediately stopped by the officers.1 After a canine alerted to drugs in Sandlin's vehicle,

officers searched her vehicle. Faris consented to a search of his vehicle.

{¶4} The search of Sandlin's vehicle yielded five pounds of marijuana in vacuum-

sealed, one-pound bags, stored in the tire compartment of her trunk, along with a black

storage tote with a yellow lid. The search of Faris' vehicle yielded roughly $14,700 in cash.

Thereafter, Sandlin consented to a search of her apartment, which contained two more

identical black totes with yellow lids. Faris consented to a search of the Beavercreek

storage unit, which contained another black tote with a yellow lid.

{¶5} During a subsequent interview, Faris informed the WCDTF that Gray was

involved in this drug-related activity. Faris told the officers that Gray had a warehouse in

Indiana containing 100 pounds of marijuana. Faris worked with the WCDTF to set up a

controlled buy for the 100 pounds of marijuana to take place the next day in the parking lot

of a Hooters restaurant in Mason, Ohio. Faris gave details to Detective Schweitzer of the

WCDTF regarding Gray's appearance, as well as the make, model, and license plate

number of Gray's vehicle. With this information, the WCDTF independently obtained Gray's

full identity, including his social security number and a photograph.

1. The officers stopped Sandlin and Faris based on their reasonable suspicion that Faris and Sandlin were engaged in criminal activity.

-2- Warren CA2022-02-006

{¶6} During the morning of October 24, 2020, prior to the controlled buy, Faris

provided real-time updates to Detective Schweitzer about the transaction, informing him

that because Gray had sold 50 pounds of the marijuana, the controlled buy would only

involve the other 50 pounds, and would take place around 1:00 p.m. Around that time, Gray

pulled into the Hooters parking lot driving the anticipated vehicle. The officers were able to

positively identify Gray based on the vehicle description and the photograph. Gray parked

the car, exited the vehicle, and walked around to the back of the car and opened the trunk.

The officers immediately converged on Gray, who was handcuffed and detained in a

marked cruiser.

{¶7} Trooper Lee read Gray his Miranda rights and then had his canine partner,

Ronnie, perform a free-air sniff around the exterior of the vehicle. The canine positively

alerted to drugs inside the vehicle, which was thereafter searched. The search of Gray's

vehicle yielded roughly 50 pounds of marijuana and $15,000 in cash. The marijuana was

individually packaged in one-pound, vacuum-sealed bags. There were also two black totes

with yellow lids found inside the vehicle. The black totes were identical to the ones found

in Sandlin's vehicle and Faris' storage unit.

{¶8} Gray was transported a short distance to the Deerfield Township post of the

Warren County Sheriff's office where he was interviewed by Detective Schweitzer. Prior to

conducting the interview, Detective Schweitzer asked Gray if he wanted to be informed of

his Miranda rights again. Gray declined and indicated that he understood his rights by

saying, "Yeah, I know my rights." Gray did not ask for a lawyer and did not exercise his

right to remain silent. During this interview, Gray told the Detective that Faris was a drug

dealer with a large marijuana farm in California. Gray stated that he first became involved

with Faris by purchasing small amounts of marijuana, but then began assisting Faris with

transporting larger amounts.

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{¶9} Gray was charged with trafficking in marijuana, a first-degree felony (Count I);

possession of marijuana, a second-degree felony (Count II); possession of criminal tools, a

fifth-degree felony (Count III); and engaging in a pattern of corrupt activity, a first-degree

felony (Count IV). Gray was found guilty on all but Count III.

{¶10} As reflected in its sentencing entry, the trial court merged Counts I and II, and

sentenced Gray as follows. On Count I, the court imposed an indefinite sentence of 5 years

minimum to 7 ½ years maximum. On Count IV, the court imposed an indefinite sentence

of 3 years minimum to 4 ½ years maximum to run consecutively to Count I, resulting in a

total minimum sentence of 8 years to 9 ½ years maximum.

{¶11} Gray now appeals his convictions, raising three assignments of error for our

review.

{¶12} Assignment of Error No. 1:

{¶13} THE TRIAL COURT ERRED TO THE DEFENDANT-APPELLANT'S

PREJUDICE WHEN IT DENIED THE DEFENDANT-APPELLANT'S MOTION TO

SUPPRESS.

{¶14} In his first assignment of error, Gray asserts that the trial court erred when it

denied his motion to suppress evidence obtained from the search of his vehicle.

Specifically, he argues that the automobile exception does not justify the warrantless search

of his vehicle's trunk. He further argues that because police had time to obtain a warrant,

a warrantless search of the vehicle was unreasonable. Additionally, Gray argues that the

motion to suppress was improperly denied because his initial Miranda warnings were no

longer effective when he was interviewed by the police.

A. STANDARD OF REVIEW

{¶15} In reviewing a motion to suppress, we are presented with a mixed question of

law and fact. State v. Thomas, 12th Dist. Warren No. CA2012-10-096,

, ¶

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18. The trial court, sitting as the trier of fact, is in the best position to evaluate witness

credibility and resolve factual questions. State v. Cochran, 12th Dist. Preble No. CA2006-

10-023,

. Provided the trial court's findings are supported by

competent, credible evidence, a reviewing court accepts the trial court's findings of fact.

However, an appellate court independently reviews the trial court's legal conclusions based

on those facts to determine, without deference to the trial court's decision, whether the facts

satisfy the appropriate legal standard. State v. Wilson, 12th Dist. Warren No. CA2006-01-

007,

.

{¶16} Gray's merit brief focuses only on the officer's failure to obtain a warrant for

the search of the vehicle as well as the scope of that search, but Gray makes no argument

challenging the initial stop of his vehicle. It is not until his reply brief that Gray argues that

the police officer's initial stop of his vehicle was unlawful, asserting that the automobile

exception is prefaced with either "some type of traffic violation" or "exigent circumstances."

As we have previously recognized, "[a]n appellant may not use a reply brief to raise new

issues or assignments of error." State v. Renfro, 12th Dist. Butler No. CA2011-07-142,

, ¶ 28. Thus, our analysis is limited only to whether the officers had

probable cause to search Gray's vehicle.

{¶17} With this in mind, we note, however, that the record shows that Gray's vehicle

was already stopped when the officers approached. Thus, the Fourth Amendment was not

implicated simply by the officers approaching Gray in the parking lot. Several Ohio courts

hold that when a vehicle is already stopped, an officer can approach the vehicle for the

purposes of conducting a routine investigation. State v. Murphy, 5th Dist. Fairfield No.

2005-CA-46,

; State v. Cookson, 4th Dist. Washington No. 00CA53,

, *9 (Sep. 25, 2001) ("[I]f a vehicle is already stopped or parked,

a police approach and encounter with the stationary vehicle and its driver does not implicate

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the Fourth Amendment."); State v. Cominsky, 11th Dist. Lake No. 2001-L-023,

, *5-6 (Dec. 14, 2001) (holding that because appellant's vehicle was

already stopped, the Fourth Amendment was not implicated when the officer approached

him). As such, the Fourth Amendment was not implicated when the officers initially

approached Gray's already stopped and parked vehicle.

B. THE AUTOMOBILE EXCEPTION

{¶18} Gray asserts that while Ohio recognizes the automobile exception, the

exception is limited in certain situations to the search of only the passenger compartment

and not the trunk of the vehicle. Gray argues that the case sub judice is one of these

situations.

{¶19} Under the Fourth Amendment, searches and seizures conducted without prior

approval by a judge or a magistrate are per se unreasonable, "subject to only a few

specifically established and well-delineated exceptions." State v. Shaibi, 12th Dist. Warren

No. CA2020-07-038,

, quoting State v. Kessler,

(1978). One of the well-established exceptions to the search warrant requirement is

the automobile exception, which allows the warrantless search of an automobile by police

officers who have probable cause to believe that the vehicle contains contraband. Carroll

v. United States,

,

(1925); State v. Vega,

(2018).

{¶20} With respect to automobiles, probable cause is "a belief reasonably arising

out of circumstances known to the seizing officer, that an automobile or other vehicle

contains that which by law is subject to seizure and destruction." State v. Lynn, 12th Dist.

Butler Nos. CA2017-08-129 and CA2017-08-132,

. The

determination of probable cause is "fact-dependent and turns on what the officers knew at

the time they conducted the search." State v. Raphael, 12th Dist. Warren Nos. CA2014-

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11-138 and CA2014-11-139,

. Thus, law enforcement officers may

search a vehicle without a warrant if the officers have probable cause to believe that the

vehicle contains contraband.

{¶21} The United States Supreme Court, as well as Ohio courts, have determined

that "the exterior 'sniff' by a trained narcotics dog to detect the odor of drugs is not a search

within the meaning of the Fourth Amendment to the United States Constitution." State v.

Rusnak,

(6th Dist. 1997); see also United States v. Place,

,

(1983). Therefore, the police need not have even a

reasonable suspicion of drug-related activity prior to subjecting the exterior of an otherwise

lawfully stopped vehicle to a canine sniff. State v. Cochran, 12th Dist. Preble No. CA2006-

10-023,

. However, if a trained narcotics dog alerts to the odor of

drugs from that lawfully stopped vehicle, "an officer has probable cause to search the

vehicle for contraband."

Thus, a vehicle lawfully stopped may be subjected to a canine

sniff even without the presence of a reasonable suspicion of drug-related activity; if the dog

positively alerts, then the officers have probable cause to search the vehicle. Id.; State v.

Morales, 5th Dist. Licking No. 2004 CA 68,

.

{¶22} In terms of the permissible scope of a search pursuant to the automobile

exception, the Ohio Supreme Court has held that "[w]here police officers have probable

cause to search an entire vehicle, they may conduct a warrantless search of every part of

the vehicle and its contents, including all movable containers and packages, that may

logically conceal the object of the search." (Emphasis added.) State v. Welch,

(1985); United States v. Ross,

,

(1982), paragraph

(c) of the syllabus. The Ohio Supreme Court, however, has limited the scope of a search

when the officer's probable cause is based solely on the odor of burnt marijuana, holding

that "[a] trunk and a passenger compartment of an automobile are subject to different

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standards of probable cause to conduct searches." State v. Farris,

(2006); State v. Lynn, 12th Dist. Butler Nos. CA2017-08-129 and CA2017-08-132, 2018-

Ohio-3335, ¶ 18 ("This proposition is established by the common sense observation that an

odor of burning marijuana would not create an inference that burning marijuana was located

in a trunk"); State v. Curry, 1st Dist. Hamilton No. C-210274,

("To

search a trunk, an officer must observe more than just an odor of burnt marijuana in the

passenger compartment").

{¶23} Nevertheless, Ohio courts have drawn a distinction between an officer

smelling burnt marijuana and a trained narcotics dog alerting to the presence of narcotics.

In the latter scenario, a positive alert by a trained drug sniffing dog is sufficient to establish

probable cause to search the trunk. State v. Ross, 9th Dist. Medina No. 15CA0021-M,

(noting that the Ohio Supreme Court, in reaching its ultimate

decision in Farris, relied on the Tenth Circuit's decision in United States v. Nielsen,

[10th Cir. 1993], where the Tenth Circuit stated that "[i]f this were a case of an

alert by a trained drug sniffing dog with a good record, we would not require corroboration

to establish probable cause" [to search the trunk]); see also State v. Waldroup,

(12th Dist. 1995) ("When the dog indicated that drugs were present in the

trunk of appellant's vehicle, the troopers had probable cause to search the trunk and the

container they found in the trunk").

{¶24} Trooper Brett Lee of the WCDTF testified that after Gray had been detained,

he and his canine partner, Ronnie, approached Gray's vehicle to perform a free-air sniff of

the outside of the vehicle.2 Prior to performing the free-air sniff, the car doors and trunk

2. The trial court heard testimony regarding Ronnie's level of training and no objections were raised at that time, nor does Gray raise any objections to Ronnie's qualifications or skills in his brief.

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were closed.3 Ronnie alerted to the driver's side of the vehicle by "bracketing, deep

breathing and he indicated near the driver's side rear well and the rear driver's side door

seam, by sitting down and staring into the vehicle." Trooper Lee stated that Ronnie's

behavior gave a "positive indication on a narcotic inside the vehicle." This positive alert

from Ronnie gave the officers probable cause to search Gray's vehicle.

{¶25} This is not a case where an officer smelled burnt marijuana and then searched

the entirety of the vehicle. Rather, the canine, and not the officer, detected the scent of

illegal narcotics. As explained above, if a trained narcotics dog "alerts to the odor of drugs

from a lawfully detained vehicle, an officer has probable cause to search the vehicle for

contraband." State v. Wilson, 12th Dist. Butler No. CA2019-08-141,

.

In this case, the contraband was 50 pounds of marijuana. Thus, the officers had probable

cause to search any part of the vehicle that may logically contain this large amount of

marijuana, including the trunk of the vehicle. As such, we find no error in the trial court's

denial of Gray's motion to suppress based on the scope of the search.

C. TIME TO OBTAIN A WARRANT

{¶26} Gray also argues that the trial court erred in denying his motion to suppress

because the officers had enough time to obtain a search warrant prior to conducting a

search of his vehicle.

{¶27} Implicit in this argument is that the automobile exception requires a separate

exigent circumstance to conduct a warrantless search. However, the United States

Supreme Court has recognized that the automobile exception has no separate exigency

requirement. Maryland v. Dyson,

,

(1999) ("[U]nder our

established precedent, the 'automobile exception' has no separate exigency requirement").

3. Gray opened the trunk himself after exiting the vehicle, and other officers opened the doors of the vehicle to ensure there were no other individuals inside the vehicle.

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This is because the "mobility of automobiles creates the exigent circumstance and is the

traditional justification for this exception to the Fourth Amendment's warrant requirement."

State v. Fritz, 12th Dist. Clermont Nos. CA2019-12-094 and CA2019-12-095, 2020-Ohio-

5231, ¶ 32. "If a car is readily mobile and probable cause exists to believe it contains

contraband, the Fourth Amendment thus permits police to search the vehicle without more."

(Emphasis added.) State v. Ivery, 11th Dist. Lake No. 2011-L-081,

, ¶ 23;

Pennsylvania v. Labron,

,

(1996). It is of no consequence

that Gray was outside of the car near the trunk when police approached and thereafter

detained him during the search of the vehicle. A vehicle's "inherent mobility—not the

probability that it might actually be set in motion—is the foundation of the mobility rationale."

State v. Battle, 10th Dist. Franklin No. 10AP-1132,

, ¶ 30.

{¶28} Gray further argues that because the officers obtained information regarding

Gray's identity by 9:00 a.m. on the day of the controlled buy, but the buy did not occur until

1:00 p.m. that day, this four-hour window gave the officers plenty of time to obtain a warrant.

However, as explained above, under the automobile exception, all that is required of law

enforcement to conduct a warrantless search of a readily mobile vehicle is probable cause.

{¶29} Here, the officers had probable cause to search Gray's vehicle based not only

on the canine's alert, but "on the events leading up to [the] stop or search." Bowling Green

v. Godwin,

,

. Faris provided information to Detective

Schweitzer regarding Gray's physical appearance as well as the license plate number and

make, model, and color of Gray's car. Through this information, the officers were able to

independently verify Gray's identity, including his birth date, social security number, and a

photograph. Faris informed police officers that Gray had 100 pounds of marijuana stored

in a warehouse in Indiana, and he set up a controlled buy with the police for the purchase

of that marijuana. Faris also provided details and real-time updates of the drug transaction

- 10 - Warren CA2022-02-006

to law enforcement officers, informing them that the transaction would involve 50 pounds of

marijuana, as Gray had sold the other half. The events leading up to the search unfolded

in the precise way Faris described—Gray arrived in the vehicle Faris described, with the

license plate Faris provided, at the location and time that Faris provided.

{¶30} We agree with the trial court that these facts, taken together, in addition to the

free-air sniff, gave the officers probable cause to search Gray's vehicle, including the trunk.

The officers were informed by Faris that Gray was going to arrive with 50 pounds of

marijuana, and it was logical for the officers to infer that the trunk of the vehicle could contain

this large amount. Thus, Gray's argument that the officers had time to obtain a warrant,

and violated Gray's Fourth Amendment rights by not doing so, is without merit.

D. MIRANDA WARNINGS

{¶31} Gray also asserts that the trial court erred in denying his motion to suppress

because his initial Miranda warnings were rendered stale between the time he was initially

advised of his rights upon detention and when he was interviewed at the police station.

{¶32} A defendant who is subject to a custodial interrogation "must be advised of

his Miranda rights and make a knowing and intelligent waiver of those rights before

statements obtained during the interrogation will be admissible." State v. Treesh,

(2001). However, it is "well-established that a suspect who receives

adequate Miranda warnings prior to a custodial interrogation need not be warned again

before each subsequent interrogation." State v. Rader, 12th Dist. Butler No. CA2010-11-

310,

, ¶ 8. That is, police are not required to re-administer Miranda

warnings when only a relatively short period of time has elapsed since the initial warnings.

{¶33} In determining whether initial Miranda warnings remain effective in a

subsequent interrogation, the Ohio Supreme Court has found that the following factors are

- 11 - Warren CA2022-02-006

relevant: (1) the length of time between the initial warnings and the subsequent

interrogation; (2) whether the initial warnings and the subsequent interrogation were given

in the same or different locations; (3) whether the warnings and subsequent interrogation

were conducted by the same or different officers; (4) the extent to which the subsequent

statement in the interrogation differed from any previous statements; and (5) the apparent

intellectual and emotional state of the suspect. State v. Roberts,

(1987); State v. Renfro, 12th Dist. Butler No. CA2011-07-142,

, ¶ 19.

{¶34} Here, both Trooper Lee and Detective Schweitzer testified that Trooper Lee

provided Gray with Miranda warnings when Gray was detained in the Hooters parking lot.

This conversation was not memorialized, either through a recording or a written waiver.

After Gray's vehicle was searched, Gray was transported to the nearby Deerfield Township

post. Shortly after arriving there, Schweitzer conducted a formal interview, which was

recorded.

{¶35} During this formal interview, Schweitzer told Gray he was "advised of his

rights on the scene" and then asked Gray if he "understood" his rights as they were read or

if he wanted Schweitzer to "advise them again." Gray made it clear that he understood

those rights and did not have Schweitzer repeat them. Schweitzer also said to Gray, "You

understand we are different cops, but just because we are different cops, you still have the

same rights, right? Even though I am not the one who advised you of your rights, you still

have the same rights, does that make sense to you?" Gray responded with, "Yeah, I know

my rights. Yeah, I understand."

{¶36} Based upon this factual background, we conclude that Schweitzer was not

required to re-advise Gray of his rights prior to conducting an interview. The purpose of

examining the Roberts factors is to determine whether the initial warnings "became stale

and remote so as to create a substantial possibility that the defendant was unaware of his

- 12 - Warren CA2022-02-006

rights." State v. Pack, 2nd Dist. Montgomery No. 28459,

. Ohio

courts have consistently held that anywhere from several to 24 hours between the initial

warnings and a subsequent interrogation is permissible when the offender remains in

continuous custody. State v. Grissom, 1st Dist. Hamilton No. C-100542,

,

¶ 14-15 (finding that three to four hours between the initial warnings and the interview did

not dilute the effectiveness of the initial warnings); State v. Brewer,

, 59-

60 (1990) (affirming the denial of defendant's motion to suppress when a statement was

made one day after defendant was advised of his Miranda rights by a different police

department); State v. Powell,

(2012) (finding that the Miranda

warnings were not stale where "[m]ore than 30 hours elapsed between the initial Miranda

warnings and [defendant's] second interview" and the defendant remained in continuous

custody).

{¶37} It is important to note that the Roberts factors present a question of degree;

simply because the factor exists does not give rise to an inherent violation. It is not clear

from the record how much time elapsed between Gray's initial warnings and the subsequent

interview. However, Detective Schweitzer testified that Gray was transported from the

Hooters parking lot to the Deerfield Township police station in about eight minutes.

Detective Schweitzer also testified that Gray sat in the interrogation room for roughly

another eight minutes before the interview began.4 Further, although the location of the

interview was different than the location of the initial warnings, the police station was mere

minutes from the location where Gray received his initial warnings. It is undisputed that the

officers conducting the interview were different from those who read Gray his rights, but

Gray remained in continuous custody during the interval between the initial warnings and

4. In his own brief, Gray does not provide specific details on the amount of elapsed time, and does not allege that the length of time diluted the effectiveness of the initial warnings.

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the subsequent interview. In reviewing these facts, they do not raise any concern that Gray

was unaware of his rights when the interview was conducted.

{¶38} While we agree with the trial court that the officers' failure to "provide the

advisement of rights in a manner that preserves them for judicial review is poor practice,"

we also agree with the trial court that the recording of the second interview demonstrates

that Gray's waiver of his rights was "certain and unequivocable." Therefore, because the

Miranda warnings initially provided to Gray remained effective throughout the second

interview where he waived those rights, the trial court did not err by denying Gray's motion

to suppress. Accordingly, the first assignment of error is overruled.

{¶39} Assignment of Error No. 2:

{¶40} REPRESENTATION BY TRIAL COUNSEL WAS "INEFFECTIVE" UNDER

STRICKLAND V. WASHINGTON.

{¶41} In his second assignment of error, Gray asserts that he received ineffective

assistance of counsel because his trial counsel failed to subpoena a witness and failed to

object to the amount of marijuana shown to the jury.

A. STANDARD OF REVIEW

{¶42} The Sixth Amendment to the United States Constitution guarantees

individuals the right to effective counsel. Strickland v. Washington,

,

(1984). Counsel is deemed ineffective where counsel's conduct undermines

the judicial process in such a way that the result of defendant's trial cannot be relied on has

having produced a just result.

. To prevail on an ineffective assistance of counsel

claim, the defendant must make the two-prong showing outlined in Strickland by proving

that (1) counsel's performance fell below an objective standard of reasonableness, and (2)

but for counsel's errors, the outcome of the proceedings would have been different. State

v. Baker, 12th Dist. Clermont No. CA2005-11-103,

, ¶ 5.

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{¶43} In evaluating the first prong, we must give great deference to counsel's

performance and "indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance[.]" Id. at ¶ 6. With respect to the second prong,

the defendant must show that there is a reasonable probability, absent counsel's errors, the

outcome of the proceeding would have been different. State v. Schenck, 12th Dist. Preble

No. CA2021-02-003,

. "The prejudice inquiry thus focuses not only on

outcome determination, but also on 'whether the result of the proceeding was fundamentally

unfair or unreliable.'"

quoting Lockhart v. Fretwell,

,

(1993).

{¶44} Gray argues that he was prejudiced by his trial counsel for not calling Faris to

the stand to testify. Gray avers that, had Faris been given the opportunity to testify, Faris

would have provided information to support Gray's assertion that Gray agreed to purchase

legal hemp, and not marijuana, from Faris. Gray further argues that his trial counsel should

have objected to additional amounts of marijuana being shown to the jury that went beyond

what was found in Gray's vehicle. We will address each of these in turn.

B. FAILURE TO SUBPOENA A WITNESS

{¶45} While trial counsel should consult with their client in matters of important trial

decisions, Ohio law gives great latitude to defense counsel regarding trial strategy. State

v. Murphy, 12th Dist. Butler No. CA2009-05-0128,

, ¶ 24, citing State v.

Smith,

(1985), fn. 1. This court has consistently held that "[t]he mere

failure to subpoena a witness for a trial is not a substantial violation of defense counsel's

essential duty absent a showing of prejudice." State v. Smith, 12th Dist. Fayette No.

CA20060-08-030,

. Further, the appellant bears the burden of showing

that the testimony of a witness not subpoenaed would have "significantly assisted the

defense and affected the outcome of the case." State v. Wells, 12th Dist. Warren No.

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CA2005-04-050,

.

{¶46} Gray asserts in his brief that he relied on Faris' representations that the

substances provided by Faris were legal hemp and not illegal marijuana. Gray argues that

Faris would have supported these assertions if given the opportunity to testify. In making

this argument, Gray offers mere speculation, which is "insufficient to find error on behalf of

trial counsel." Id. at ¶ 14. Aside from the speculative nature of Faris' testimony, there is no

reason to believe that the testimony would affect the outcome of the case. The state

presented evidence strongly indicating that Gray knew he was not dealing with a legal

substance.

{¶47} Among this evidence was Gray's custodial interview with Detective

Schweitzer. During the interview, Gray told Schweitzer that Faris "first wanted to send me

just a little personal weed and I dibbled and dabbled a little bit" and then "[Faris] came up

with the idea that he wanted to start shipping these containers to me with a bunch of pot in

them." Gray also told Schweitzer that, "according to [Faris], [Faris] has some sort of huge

marijuana farm out in California—that's what [Faris] does you know, he wheels and deals

marijuana." Several times, Gray mentions that Faris has people "all over" that Faris deals

with, and Gray described several encounters he had with Faris to assist him in unloading

"a bunch of weed." Gray does tell Schweitzer that some of what was located in his storage

facility was hemp, but when Schweitzer asked Gray, "Well how much weed is in there? I

don't care about no hemp," Gray responds, "About 20 pounds." Gray doesn't mention hemp

in the interview again.

{¶48} We do not find that counsel's decision to not subpoena Faris prejudiced Gray.

What Faris may have testified to is entirely speculative and Gray fails to demonstrate that

any potential testimony by Faris would have significantly assisted his defense and affected

the outcome of the case.

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C. FAILURE TO OBJECT TO THE PRESENTATION OF EVIDENCE

{¶49} Gray also argues that his defense counsel should have objected to the

presentation of the marijuana found in Sandlin's vehicle. He asserts that this evidence

prejudiced him in front of the jury because it was "contraband not attributable to his

conduct."

{¶50} Relevant to this assignment of error is Gray's charge for engaging in a pattern

of corrupt activity under R.C. 2923.32(A)(1). The statute mandates that no person who is

employed by or associated with any enterprise shall conduct or participate in, either directly

or indirectly, the affairs of the enterprise through a pattern of corrupt activity. R.C.

2923.32(A)(1). A "pattern of corrupt activity" requires "two or more incidents of corrupt

activity * * * that are related to the affairs of the same enterprise, are not isolated, and are

not so closely related to each other and connected in time and place that they constitute a

single event." R.C. 2923.31(E). "Corrupt activity" includes Gray's alleged acts of trafficking

in marijuana and possessing marijuana. R.C. 2923.30(I)(2)(c).

{¶51} Upon review, we find this assignment of error unpersuasive. Under Evid.R.

403(A), relevant evidence must be excluded "if its probative value is substantially

outweighed by the danger of unfair prejudice, or confusion of the issues, or of misleading

the jury." Evid.R. 403(A). To establish that Gray engaged in a pattern of corrupt activity,

"the state must show that the defendant was 'associated with' an 'enterprise.'" State v.

Sparks, 12th Dist. Warren Nos. CA2013-02-010 and CA2013-02-015,

. As the state is charged with proving each and every element of this offense, the state

presented evidence that Gray, Faris, and Sandlin were "associated-in-fact," meaning that

the group was a "continuing unit that function[ed] with a common purpose."

{¶52} The state's presentation of the marijuana found in Sandlin's vehicle was

probative of the charge of engaging in a pattern of corrupt activity. The presentation of this

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additional marijuana may have been prejudicial to Gray, but it's probative value far

outweighed any claim of prejudice, as it provided relevant evidence to the jury to allow them

to determine whether Gray engaged in a pattern of corrupt activity, or participated in an

isolated drug transaction unrelated to Sandlin or Faris. Therefore, trial counsel's objection

to the presentation of this evidence would have been futile. "An attorney is not ineffective

for failing to make futile requests[.]". State v. Brown, 12th Dist. Clermont No. CA2018-05-

027,

; State v. Allen, 4th Dist. Ross No. 21CA3736,

("[T]he failure to make a futile objection does not constitute deficient performance for

an ineffective assistance of counsel claim"). Further, the making of objections is a strategic

decision which should not be second-guessed by the court.

.

{¶53} Accordingly, because we find trial counsel was not ineffective for failing to

subpoena Faris or failing to make a futile objection, this assignment of error is overruled.

{¶54} Assignment of Error No. 3:

{¶55} THE TRIAL COURT ERRED TO DEFENDANT-APPELLANT'S PREJUDICE

WHEN IT SENTENCED DEFENDANT ON COUNT I.

{¶56} In his third assignment of error, Gray argues that the court should have only

sentenced him to a minimum of five years on Count 1 without including the indefinite term.

A. STANDARD OF REVIEW

{¶57} We note that Gray did not object to the calculation of his sentence, thus he is

limited to a review for plain error pursuant to Crim.R. 52(B). To constitute plain error, there

must be (1) a deviation from a legal rule, (2) an error that is "fundamental, palpable, and

obvious on the record such that it should have been apparent to the court without an

objection", and (3) the error must have "affected the defendant's substantial right, that is,

the error must have affected the outcome of the trial." State v. Dawson, 12th Dist. Butler

No. CA2021-08-099,

. The defendant bears the burden of

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demonstrating that a plain error affected his substantial right. State v. Perry,

,

. However, even if the defendant satisfies this burden, an

appellate court has discretion to disregard the error, and should correct it only to "prevent

a manifest miscarriage of justice." State v. Barnes,

(2002) ("Even if a

forfeited error satisfies these three prongs, however, Crim.R. 52[B] does not demand that

an appellate court correct it. Crim.R. 52[B] states only that a reviewing court 'may' notice

plain forfeited errors; a court is not obliged to correct them").

B. CALCULATION OF INDEFINITE SENTENCES

{¶58} Gray asserts that the trial court deviated from the mandates of R.C. 2929.144,

which provide instructions for calculating indefinite sentences for qualifying felonies.

Specifically, Gray asserts that the trial court erred in sentencing him to multiple indefinite

sentences.

{¶59} The minimum terms for qualifying felonies are calculated pursuant to division

(A)(1)(a) or (2)(a) of R.C. 2929.14. Division (A)(1)(a) provides that, for a felony of the first

degree, the prison term shall be an indefinite term with a stated minimum term between

three and 11 years, as selected by the court, and a maximum term that is determined

pursuant to R.C. 2929.144(B)(2). Similarly, division (2)(a) provides that, for a felony of the

second degree, the prison term shall be an indefinite term with a stated minimum term

between two and eight years, as selected by the court, and a maximum term that is

determined pursuant to R.C. 2929.144(B)(2). Thus, the court has discretion when imposing

the minimum terms of imprisonment. The maximum terms, however, are determined from

a mathematical formula pursuant to R.C. 2929.144.

{¶60} Applicable here is R.C. 2929.144(B)(2), which provides that when an offender,

like Gray, is sentenced to more than one felony, and at least one of the felonies is of the

first or second degree, and the court orders at least some of the prison terms to be served

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consecutively, the court calculates the range of the total sentence in two steps. First, to

calculate the low-end of this range (the minimum), the court must add all of the minimum

terms for qualifying felonies that are to be served consecutively with all of the definite terms

for non-qualifying felonies. Second, to calculate the high-end of the range (the maximum),

the court must add the minimum terms from the first step plus 50 percent of the longest

minimum term or definite term for the most serious felony being sentenced. R.C.

2929.144(B)(2).

{¶61} As reflected in the sentencing entry, the court merged Counts I and II, both of

which are felonies of the second degree. For Count I, the court imposed a minimum

sentence of 5 years and a maximum sentence of 7 ½ years. For Count IV, a felony of the

first degree, the court imposed a minimum sentence of 3 years and a maximum sentence

of 4 ½ years to be served consecutively to the sentence for Count I. The court then

calculated the mandatory minimum sentence to be 8 years, with a possible maximum

sentence of 9 ½ years.

{¶62} Gray asserts that the sentencing entry for Count I should only reflect the

minimum of 5 years without any indefinite terms. We agree with Gray, as well as with the

Eighth District, that "when one or more qualifying felonies are ordered to be served

consecutively, R.C. 2929.144(B)(2) only allows the court to impose 50 percent of the longest

minimum term for the most serious felony being sentenced and does not allow the court to

impose consecutive indefinite prison terms." State v. Bond, 8th Dist. Cuyahoga No.

110022,

. Thus, the trial court could only impose an indefinite term

for the "the most serious felony" which, in this case, was Count IV and not Count I. 5

5. At the sentencing hearing, the court did not state an indefinite sentence for Count 1. In sentencing Gray, the court stated, "So with regard to the Count 1, I am going to sentenced you to 5 years in prison. That is a mandatory prison period. The 5 years for Count 2 will merge into Count 1, so that is only one sentence. With regard to Count 4, I am going to impose a 3-year prison sentence. That is going to be consecutive to the time

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{¶63} However, because we review the error under a plain error standard, Gray

bears the burden of demonstrating that the trial court's error "affected his substantial right."

We find that Gray has failed to do so. In sentencing Gray, the trial court did not err in its

calculation of the maximum prison terms. The court properly added both minimum terms—

5 years for Count I and 3 years for Count IV—for a total minimum sentence of 8 years. The

court also properly added 50 percent of the longest minimum term for the most serious

felony. The most serious felony in Gray's case was Count IV, where the court imposed a

minimum sentence of 3 years. Fifty percent of 3 years is 1 ½ years, and when added to the

minimum sentence of 8 years, the maximum sentence totals 9 ½ years.

{¶64} The trial court's sentencing entry does not affect Gray's substantial rights. The

court properly calculated the minimum prison sentence to be 8 years, and thus there is no

risk that Gray will serve an improper sentence based on the error in the sentencing entry.

As we find that Gray's challenge does not rise to the level of plain error, we overrule Gray's

third assignment of error.

CONCLUSION

{¶65} The trial court did not err in denying Gray's motion to suppress. The law

enforcement officers in this case had probable cause to search Gray's vehicle, including

the trunk, based not only on the response of the canine's free-air sniff, but the facts and

circumstances known at the time of the search. Further, the motion was properly denied

as Gray was provided Miranda warnings at the time of the search and those warnings were

not rendered stale by a short passage of time and an inconsequential change in location.

In addition, Gray's counsel was not ineffective for failing to subpoena Faris and failing to

that you do for the Count 1, for a total of 8 years in prison. Now, you have been convicted of a sentence that carries with it an indefinite sentence. That means you get both a minimum prison term and a maximum prison term. In this case, I believe that because the most serious offense that I am sentencing you for is the F1, that means that your indefinite sentence is one-half of that term, which is 1 ½. So, your sentence is going to be 8 years to 9 ½ years because 1 ½ is the felony of the first degree because that is the most serious felony."

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object to evidence that was relevant and probative to the state's case. While the trial court's

sentencing entry contains a minor error, that error does not rise to the level of plain error in

this case as it has no effect on Gray's minimum mandatory prison sentence.

{¶66} Judgment affirmed.

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

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