[Cite as State v. Taylor,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111694 v. :

JO DONTA TAYLOR, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 23, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-20-650400-A, CR-21-658502-A, and CR-21-660748-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Jonathan Block, Assistant Prosecuting Attorney, for appellee.

Joseph V. Pagano, for appellant.

FRANK DANIEL CELEBREZZE, III, P.J.:

Appellant Jo Donta Taylor (“appellant”) appeals his conviction and

sentence by the Cuyahoga County Court of Common Pleas for trafficking, drug

possession, having weapons while under disability, carrying a concealed weapon,

improper handling of a firearm in a motor vehicle, and possession of criminal tools. After a thorough review of the applicable law and facts, we affirm the judgment of

the trial court.

I. Factual and Procedural History

This case began with a traffic stop by Officer Matthew Mindlin (now a

detective) of the Parma Police Department. Ofc. Mindlin was a patrolman at the

time of the stop. He was traveling down W. 33rd Street in Parma, Ohio, when he

observed a gray Infiniti SUV with extremely heavy window tint and an unreadable

license plate.

Inside the vehicle was the driver, later identified as appellant, and a

passenger, later identified as Jermain Brown. Initially, appellant stated that he did

not have identification on him and could not remember his social security number.

Because the passenger also did not have a driver’s license and in the interest of

officer safety, Ofc. Mindlin had the occupants step out of the vehicle. Patrolman

Nicholas Schuld of the Parma Police Department also arrived on scene.

Ofc. Mindlin spoke with Brown and detected the odor of marijuana and

observed little pieces of marijuana in the vehicle, called “shake.” Brown stated that

he had marijuana on his person and was searched by Ofc. Mindlin. The search

yielded a small plastic cup that contained approximately one gram of marijuana.

Ofc. Mindlin then conducted a probable-cause search of the vehicle and

discovered several small baggies of marijuana, a digital scale that had marijuana

residue on it, and appellant’s social security card in the driver’s side door. He further

found a small plastic baggie with blue powder in it on the floorboard near the gas pedal. He believed the blue powder to be ecstasy. He showed the baggie to appellant

and asked if it was ecstasy. Appellant said that it was and that it belonged to his

brother. When Ofc. Mindlin turned to secure the baggie in the vehicle, intending to

then secure appellant in handcuffs, appellant fled the scene on foot.

Both officers chased after appellant, and Ofc. Schuld also released the

K9 officer, Coney. Appellant was apprehended and placed in handcuffs. They

returned to the vehicle where Brown had remained. Appellant and Brown were

secured into a patrol cruiser, and Ofc. Mindlin resumed searching appellant’s

vehicle.

Ofc. Mindlin located numerous debit cards, credit cards, and a

checkbook that were not in appellant or Brown’s names. A Gucci purse was

discovered under the back half of the driver’s seat. Upon opening the purse, Ofc.

Mindlin discovered two handguns. The rear passenger seat had a child’s car seat,

on top of which was a small safe. Inside the safe were marijuana receipts for a

dispensary in Michigan and a large bag of what was believed to be ecstasy pills.

Small denominations of money were also located throughout the vehicle along with

small plastic cups like the one found on Brown.

The pills and the baggie of blue powder were submitted for testing and

determined to be methamphetamine.

Appellant was indicted on six charges: trafficking, a felony of the second

degree, in violation of R.C. 2925.03(A)(2), along with a one-year firearm

specification; drug possession, a felony of the second degree, in violation of R.C. 2925.11, along with a one-year firearm specification; having weapons while under a

disability, a felony of the third degree, in violation of R.C. 2923.13(A)(3); carrying a

concealed weapon, a felony of the fourth degree, in violation of R.C. 2923.12(A)(2);

improper handling of a firearm in a motor vehicle, a felony of the fourth degree, in

violation of R.C. 2923.16(B); and possession of criminal tools, a felony of the fifth

degree, in violation of R.C. 2923.24.

Appellant elected to have a jury trial on all charges except for the

having-weapons-while-under-a-disability count, which was tried to the court. At

trial, the state presented the testimony of Myno Reed, the prior owner of the vehicle

appellant was driving, Ofc. Schuld, Ofc. Thomas Desmarteau, who tested the

firearms in this matter, Ofc. Mindlin, Edgar Andrus, a forensic scientist at the

Cuyahoga County Regional Forensic Science Laboratory, and Det. Norman Kekic,

who investigated the case.

The jury found appellant guilty of all charges, and the court found him

guilty of the remaining charge. At sentencing, the court determined that Counts 1

and 2 merged and that Counts 3, 4, and 6 merged. The court imposed a sentence on

Count 1 (trafficking), Count 5 (possession of criminal tools), and Count 6 (having

weapons while under a disability).

The court advised appellant that Count 1 was a qualifying felony under

the Reagan Tokes Law and sentenced him to a minimum term of two years with a

maximum term of three years. He was further sentenced to one year on the firearm

specification, to be served consecutively to his sentence on Count 1. The court imposed six months on Count 5 and nine months on Count 6, to be served

concurrently with Count 1. Appellant was also serving a nine-month prison term in

another case that the court determined was to run consecutively to the sentence in

this matter for a total prison sentence of three years and nine months to four years

and nine months.

Taylor then filed the instant appeal, raising eight assignments of error

for our review:

1. It was plain error and the appellant’s state and federal constitutional right to the effective assistance of counsel was violated when evidence was admitted without objection in violation of Evidence Rules 401, 402, 403, and 404.

2. Appellant was deprived of his state and federal constitutional rights to due process, a fair trial and effective assistance of counsel where the jury was permitted to return verdicts based on charges different than those found by the grand jury.

3. The trial court erred by denying appellant’s motion for mistrial and by emphasizing the inadmissible other act evidence through a curative instruction in violation of appellant’s federal and state constitutional right to a fair trial and due process.

4. Appellant’s convictions were not supported by sufficient evidence and the trial court erred by denying his motion for acquittal.

5. The convictions were against the manifest weight of the evidence.

6. Appellant was deprived of a fair trial where the jury heard inadmissible prejudicial hearsay testimony without a curative instruction and the court allowed law enforcement to vouch for the credibility of the non-testifying witness.

7. Appellant’s state and federal constitutional right to effective assistance of counsel was violated because counsel did not file a motion to suppress. 8. The trial court erred by imposing an indefinite sentence pursuant to the Reagan Tokes Act because it is unconstitutional.

II. Law and Argument

A. Admission of Evidence – Ineffective Assistance of Counsel and Plain Error

In his first assignment of error, appellant argues that evidence of

irrelevant other acts was admitted at trial — in particular, testimony regarding the

presence of debit cards, credit cards, and a checkbook in other people’s names. He

contends that this evidence was admitted to allow the jury to infer that appellant

had bad character, in violation of Evid.R. 404(B). He acknowledges that his trial

counsel failed to object to this evidence, but argues that this amounts to ineffective

assistance of counsel.

“[A] reviewing court’s analysis is generally limited to reviewing issues raised on appeal solely for plain error or defects affecting a defendant’s substantial rights pursuant to Crim.R. 52(B). State v. Tisdale, 8th Dist. Cuyahoga No. 74331,

(Dec. 17, 1988). The plain error doctrine should be invoked by an appellate court only in exceptional circumstances to prevent a miscarriage of justice. State v. Cooperrider,

,

(1983). Plain error will be recognized only where, but for the error, the outcome of the case would clearly have been different. Id.”

State v. Bell, 8th Dist. Cuyahoga No. 106842,

, quoting State v.

King,

,

,

(8th Dist.).

“The admissibility of other-acts evidence under Evid.R. 404(B) is a

question of law” that we review de novo. State v. Hartman,

,

,

. However, “the trial court’s weighing of the

probative value of admissible evidence against the danger of unfair prejudice to the defendant under Evid.R. 403(A) involves an exercise of judgment[.]” State v.

Kamer, 6th Dist. Wood No. WD-20-084,

, citing State v.

Worley,

,

,

, citing

. “[S]o we review that decision for an abuse of discretion.”

citing

An

abuse of discretion occurs where “‘the trial court’s attitude, in reaching its decision,

was arbitrary, unreasonable, or unconscionable.’” Johnson v. Abdullah,

,

,

, quoting Celmer v. Rodgers,

,

,

, ¶ 19.

Evid.R. 404(B)1 provides:

(B) Other crimes, wrongs or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this rule shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Evid.R. 403(A) adds that “[a]lthough relevant, evidence is not

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

prejudice, of confusion of the issues, or of misleading the jury.” The exclusion of

relevant evidence under Evid.R. 403(A) rests within the discretion of the trial court.

1 This is the version of Evid.R. 404(B) in effect at the time of the trial. Mostly nonsubstantive changes to division (B) went into effect on July 1, 2022, and the quoted provision is now split between Evid.R. 404(B)(1) and (2). State v. Skatzes,

,

,

, ¶ 107, citing

State v. Sage,

,

(1987), paragraph two of the

syllabus.

“Evid.R. 404(B) categorically prohibits evidence of a defendant’s other

acts when its only value is to show that the defendant has the character or propensity

to commit a crime.” State v. Smith,

,

,

, citing Hartman,

,

,

. “Other-acts evidence may, however, be admissible for another non-

character-based purpose, such as ‘motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.’”

quoting

“‘The key

is that the evidence must prove something other than the defendant’s disposition to

commit certain acts.’”

quoting

“The threshold question is whether the evidence is relevant.”

, citing

; Evid.R. 401; see also State v. Williams,

,

,

. “[T]he problem with other-acts

evidence is rarely that it is irrelevant; often, it is too relevant.”

, citing

; see 1A Wigmore, Evidence, Section 58.2, at 1212 (Tillers

Rev. 1983). For purposes of Evid.R. 404(B), “the relevance examination asks

whether the proffered evidence is relevant to the particular purpose for which it is

offered, as well as whether it is relevant to an issue that is actually in dispute.”

citing

; see also Huddleston v. United States,

,

,

(1988). If the court determines that the evidence is probative of an issue in the

case and is not based upon improper character inferences, the next question is

whether the value of the evidence “‘is substantially outweighed by the danger of

unfair prejudice, of confusion of the issues, or of misleading the jury.’”

, quoting Evid.R. 403(A); Hartman,

,

,

. “Because other-acts evidence “‘almost always carries some risk

that the jury will draw the forbidden propensity inference,’” courts should be vigilant

in balancing the prejudicial impact of the evidence against its probative value.”

quoting

, quoting United States v. Gomez,

(7th

Cir. 2014) (en banc).

In a claim of ineffective assistance of counsel, the burden is on the

defendant to establish that counsel’s performance fell below an objective standard

of reasonable representation and prejudiced the defense. State v. Bradley,

,

(1989), paragraph two of the syllabus; Strickland v.

Washington,

,

,

(1984). To determine

whether counsel was ineffective, appellant must show that: (1) counsel’s

performance was deficient, in that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment,

and (2) counsel’s deficient performance prejudiced the defense in that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial whose result

is reliable. Strickland. In Ohio, a properly licensed attorney is presumed competent. Vaughn

v. Maxwell,

,

(1965). In evaluating whether a

petitioner has been denied the effective assistance of counsel, the Supreme Court of

Ohio held that the test is “whether the accused, under all the circumstances, * * *

had a fair trial and substantial justice was done.” State v. Hester,

,

(1976), paragraph four of the syllabus.

When making that evaluation, a court must determine whether there

has been a substantial violation of any of defense counsel’s essential duties to his

client and whether the defense was prejudiced by counsel’s ineffectiveness. State v.

Lytle,

,

(1976); State v. Calhoun,

,

(1999). To show that a defendant has been prejudiced, the

defendant must prove that there exists a reasonable probability that, were it not for

counsel’s errors, the result of the trial would have been different. Bradley at

paragraph three of the syllabus; Strickland.

Part of appellant’s strategy at trial was to argue that it was not his

vehicle and that other individuals were associated with the vehicle. Thus, it could

have been defense counsel’s trial strategy to not object to the testimony regarding

the debit cards, credit cards, and checkbook that did not belong to appellant. They

could also have belonged to other people, which is what appellant argued about the

drugs and the firearms.

“[T]his court will not second-guess what could be considered to be a

matter of trial strategy.” State v. Gray, 8th Dist. Cuyahoga No. 83097, 2004-Ohio- 1454, ¶ 54, citing State v. Smith,

,

(1985). The

failure to object is not a per se indicator of ineffective assistance of counsel because

counsel may refuse to object for tactical reasons. State v. Wright, 8th Dist.

Cuyahoga No. 92344,

, ¶ 45, citing State v. Gumm,

, 428,

(1995).

The record in this case with regard to trial counsel’s actions fails to

demonstrate that his performance fell below an objective standard of

reasonableness. In addition, appellant has not demonstrated that the admission of

the evidence relating to the credit cards, debit cards, and checkbook belonging to

other people affected his substantial rights or that the outcome of the case would

have been different. Accordingly, appellant’s first assignment of error is overruled.

B. Jury Verdicts – Ineffective Assistance of Counsel

In his second assignment of error, appellant argues that he received

ineffective assistance of counsel when the jury was permitted to return verdicts

based upon charges different from those found by the grand jury. Specifically,

appellant contends that he was indicted on charges of possession and trafficking of

methamphetamine, and the state presented evidence and told the jury that they

could find appellant guilty if they believed he had possessed and sold marijuana.

Appellant points to his trial counsel’s closing argument where he

stated that the jury was “free to hold [his] client responsible for the marijuana found

in the vehicle.” He told the jury that they were “free to judge [appellant] for

possessing and having marijuana in his car,” but that they could not “hold him responsible for the [guns or the] methamphetamine because he did not know they

were in that car.” Appellant asserts that the state then argued that appellant was

guilty of drug trafficking because of the presence of the marijuana and the fact that

it was individually packaged for sale.

We agree that the prosecutor may have misled the jury in his closing

argument since appellant’s drug charges related to only the methamphetamine, not

marijuana. Generally, Ohio courts allow prosecutors considerable latitude in closing

arguments and they may comment freely on ‘“what the evidence has shown and

what reasonable inferences may be drawn therefrom.’” State v. Lott,

,

(1990), quoting State v. Stephens,

,

(1970). Nevertheless, they must ‘“avoid insinuations and assertions

calculated to mislead[.]’” State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and

100899,

, ¶ 110, quoting

. Courts must review the

prosecutor’s statement within the context of the entire trial, rather than take the

comments out of context and give them their most damaging meaning. State v.

Williams, 8th Dist. Cuyahoga No. 97039,

, citing State v. Hill,

,

(1996).

“A misstatement of law by the prosecutor is harmless error if the trial

court correctly instructs the jury as to the law.” State v. Deanda,

,

, ¶ 48 (3d Dist.), citing State v. Carter,

,

(1995). In its initial instructions to the jury, the court stated: You must accept and follow the law as I state it to you whether or not you agree with the law. If anything concerning the law said by the attorneys and their argument or any time during the trial conflicts with my instruction of the law, you must follow my instructions.

With regard to the possession and trafficking charges, the court read

the indictment to the jury and stated as follows with regard to Counts 1 and 2:

Count 1, trafficking. The Defendant, Jo Donta Taylor, is charged with trafficking in violation of Revised Code 2925.03(A)(2) in count 1 of the indictment.

***

Before you can find the Defendant guilty, you must find beyond a reasonable doubt that on or about the 31st day of March, 2021 and in Cuyahoga County, Ohio the Defendant did knowingly prepare for shipment, ship, transport, deliver, prepare for distribution or distribute a controlled substance or a controlled substance analog when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or release by the offender or another person and the drug involved in the violation is any compound, mixture, preparation or substance included in schedule I or schedule II, to-wit; methamphetamine, a schedule II drug and the amount of the drug involved equals or exceeds five times the bulk amount, but is less than 50 times the bulk amount.

***

If your verdict is guilty of trafficking as charged in count 1 of the indictment, you will continue your deliberations and make an additional finding as to whether the amount of methamphetamine included in this case was or was not in an amount that equals or exceeds five times the bulk amount, but is less than 50 times the bulk amount and indicate such findings on the further finding verdict form.

***

Count 2, drug possession. The Defendant, Jo Donta Taylor, is charged with drug possession in violation Revised Code Section 2925.11(A) in count 2 of the indictment. Before you can find the Defendant guilty of drug possession, you must find beyond a reasonable doubt that on or before the 31st day of March, 2021 and in Cuyahoga County, Ohio, the Defendant did knowingly obtain, possess, or use a controlled substance or controlled substance analog and the drug involved in the violation is a compound, mixture, preparation or substance included in schedule I or schedule II; to-wit methamphetamine, a schedule II drug, and the amount of the drug involved equals or exceeds five times the bulk amount, but is less than 50 times the bulk amount.

***

If you[r] verdict is guilty of drug possession as charged in count 2 of the indictment, you will continue your deliberations and make an additional finding as to whether the amount of methamphetamine involved in this case was or was not an amount that equals or exceeds five times the bulk amount but is less than 50 times the bulk amount and indicate such findings on the further finding verdict form.

The court further read the verdict forms with regard to Counts 1 and

2:

Count 1 reads, “We the jury in this case, being duly empaneled and sworn, do find the Defendant, Jo Donta Taylor,” and you would write “guilty” or “not guilty of trafficking in violation of 2925.03(A)(2) of the Ohio Revised Code as charged in count 1 of the indictment.” This needs to be signed by all 12 members of the jury.

If you find the Defendant guilty in the above, you will then consider and complete the following further finding specifications and forfeitures. “We the jury in this case find the Defendant, Jo Donta Taylor, is guilty of trafficking and we further find that the amount of the controlled substance in count 1; to-wit, methamphetamine was or was not in an amount that equals or exceeds five times the bulk amount, but is less than 50 times the bulk amount” and that needs to be signed by all 12 members.

***

Count 2 reads, “We the jury in this case, being duly empaneled and sworn, do find the Defendant, Jo Donta Taylor,” you would put “guilty” or “not guilty of drug possession in violation of 2925.11(A) of the Ohio Revised Code as charged in count 2 of the indictment.” If you find the Defendant guilty in the above, you will then consider and complete the following further findings. Again, this needs to be signed by all 12 members.

Further findings, “We the jury in this case find the Defendant, Jo Donta Taylor, is guilty of drug possession and we further find the amount of the controlled substance in count 2; to-wit, methamphetamine” you will put “was” or “was not in the amount that equal or exceeds five times the bulk amount, but less than 50 times the bulk amount” and you would sign this with all 12 members.

Appellant does not dispute that the instructions given by the court

were a correct statement of the law. The instructions and the verdict forms clearly

referred only to methamphetamine.

“The test for prosecutorial misconduct during closing arguments is

whether the remarks were improper and, if so, whether they prejudicially affected

the accused’s substantial rights.” State v. Were,

, 2008-Ohio-

2762,

, ¶ 198, citing State v. Smith,

,

(1984). We must look at the entire closing argument to determine whether it

deprived appellant of a fair trial or prejudiced him. State v. Morton, 8th Dist.

Cuyahoga No. 109200,

, citing Were at

In the overall context of closing arguments, and given that the trial

court correctly instructed the jury as to the drug charges, we find that the

prosecutor’s statements did not prejudicially affect a substantial right of appellant.

There is no probability that his statements “‘“so infected the trial with unfairness as

to make the resulting convictions a denial of due process.”’” State v. Kirkland,

,

,

, quoting Darden v. Wainwright,

,

,

(1986), quoting

Donnelly v. DeChristoforo,

,

,

(1974).

Appellant’s second assignment of error is overruled.

C. Mistrial

In his third assignment of error, appellant argues that the trial court

erred in denying his motion for mistrial and by emphasizing the other acts evidence

through a curative instruction. Appellant contends that Det. Kekic was allowed to

testify that appellant was stopped in the same vehicle — the Infiniti — in June 2021

in Middleburg Heights. Appellant objected to this testimony.

The decision to grant or deny a motion for mistrial lies within the

sound discretion of the trial court. State v. Miller, 8th Dist. Cuyahoga No. 100461,

, citing State v. Garner,

,

(1995). We will not disturb that “exercise of discretion absent a showing that the

accused has suffered material prejudice.”

citing Sage,

,

. A mistrial is only warranted when “the ends of justice so require and ‘a

fair trial is no longer possible.’”

quoting State v. Franklin,

,

(1991).

“In determining whether a mistrial is necessary, the exercise of ‘sound

discretion’ generally requires that a trial court (1) allow both parties to state their

positions on the issue, (2) consider their competing interests, and (3) explore

reasonable alternatives, if any, before declaring a mistrial.” State v. Bogan, 8th Dist.

Cuyahoga No. 106183,

, citing N. Olmsted v. Himes, 8th Dist. Cuyahoga Nos. 84076 and 84078,

. “A trial court must act

‘rationally, responsibly, and deliberately’ in determining whether to declare a

mistrial.”

quoting State v. Gunnell,

,

,

, ¶ 33.

Appellant placed on the record his objection to testimony regarding

appellant’s additional traffic stop in the Infiniti and concluded by stating that he was

going to be moving for a mistrial. He argued that appellant was prejudiced by

testimony relating to the traffic stop because it constituted improper evidence of

additional bad acts by appellant. He further contended that he should have been

able to object to the testimony outside of the presence of the jury.

The state responded that appellant opened the door to such evidence

by arguing that the car did not belong to him and that he owned nothing in the

vehicle. He had specifically raised the presence of the woman’s purse in the vehicle,

maintaining that everything in the vehicle belonged to Reed as the actual owner of

the vehicle.

The record reflects that the trial court heard competing positions from

the state and defense regarding the testimony. After consideration, the trial court

determined that a curative instruction was appropriate and provided as follows:

First, I want to address testimony you heard yesterday.

Ladies and gentlemen, you did hear yesterday that [appellant] was stopped in Middleburg Heights on June 22nd of 2021. You are to infer nothing from this other than he was operating the motor vehicle in question on that date. Okay? Appellant maintained that he still objected even with the curative instruction.

However, “[t]his court has explained that ‘[c]urative instructions have been

recognized as an effective means of remedying errors or irregularities that occur

during trial.’” State v. Solomon, 8th Dist. Cuyahoga No. 109535,

, quoting State v. Williams, 8th Dist. Cuyahoga No. 94242,

,

¶ 21.

While testimony regarding the subsequent traffic stop may have

implied that appellant committed an additional “bad act,” the state did not introduce

this evidence to show appellant’s character and that he acted in conformity

therewith. Rather, the testimony was to show that appellant had used the vehicle

on more than one occasion. In addition, the testimony simply noted that appellant

was stopped while driving the vehicle. Nothing was stated about the reason for the

stop or any other conduct by appellant.

Appellant further argues that the court erred by giving the curative

instruction because it emphasized the other act evidence of the subsequent traffic

stop. We find the curative instruction appropriate in this case because it instructed

the jury to focus on the purpose of the evidence — that appellant had access to and

had driven the vehicle after Reed had retrieved the vehicle from the impound lot.

This court has held that “[w]here the trial court has sustained an objection and

provided a curative instruction to the jury, we must presume the jury followed the

trial court’s instruction.” State v. Sailor, 8th Dist. Cuyahoga No. 83552, 2004-Ohio-

5207, ¶ 34. Nothing in the record rebuts that presumption. Accordingly, we cannot find that the trial court erred in declining to

declare a mistrial or administering the curative instruction. Appellant’s third

assignment of error is overruled.

D. Sufficiency of the Evidence

In his fourth assignment of error, appellant argues that there was

insufficient evidence to support any of his convictions. He asserts that there was no

fingerprint or DNA evidence connecting him to the guns or methamphetamine

found in the car. He further contends that the state was permitted to present

statements made by the passenger when that passenger did not testify and was not

subject to cross-examination.

Where a party challenges the sufficiency of the evidence supporting a

conviction, a determination of whether the state has met its burden of production at

trial is conducted. State v. Hunter, 8th Dist. Cuyahoga No. 86048,

, citing State v. Thompkins,

,

(1997). An

appellate court reviewing sufficiency of the evidence must determine “‘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. Leonard,

,

,

, ¶ 77, quoting State v. Jenks,

,

(1991),

paragraph two of the syllabus. With a sufficiency inquiry, an appellate court does

not review whether the state’s evidence is to be believed but whether, if believed, the

evidence admitted at trial supported the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682,

, ¶ 25, citing

. A sufficiency

of the evidence argument is not a factual determination, but a question of law.

Appellant argues that there is no fingerprint or DNA evidence

connecting him to the guns or methamphetamine found in the vehicle. However, as

we have noted, Ohio law does not require forensic evidence to sustain a conviction.

State v. Jones, 8th Dist. Cuyahoga No. 108894,

. “This court

has long held that circumstantial evidence is sufficient to sustain a conviction if that

evidence would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.” State v. Heinish,

,

(1990).

Appellant further contends that the police did not thoroughly

investigate the case. However, as stated by the Supreme Court of Ohio:

Appellant essentially argues that the state’s evidence could have and should have been better than it was. Even if that is true, however, the state need only have had sufficient evidence, not the best possible evidence, to survive a challenge on insufficiency grounds. State v. Dye, 9th Dist. Summit No. 17763,

, *8 (Mar. 12, 1997), rev’d on other grounds,

,

(1998).

State v. Wilks,

,

,

, ¶ 166.

As noted above, “[a]n appellate court’s function when reviewing the

sufficiency of the evidence to support a criminal conviction is to examine the

evidence admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable doubt.” Id.

at ¶ 167, citing Jenks,

,

, at paragraph two of the syllabus. Here, there was sufficient evidence, including the evidence of ongoing drug

trafficking, appellant’s additional use of the vehicle and his attempted flight, to

support appellant’s convictions. This evidence, if believed, would have convinced

the average mind that appellant was guilty beyond a reasonable doubt.

Appellant’s fourth assignment of error is overruled.

E. Manifest Weight of the Evidence

In his fifth assignment of error, appellant argues that his convictions

were against the manifest weight of the evidence. He asserts that the testimony of

Reed, the prior owner of the Infiniti, was “inconsistent and suspicious.” In addition,

he contends that the police investigation was insufficient, in particular the fact that

they failed to fingerprint anyone in the case.

A reviewing court “weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts

in the evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.” State v.

Martin,

,

(1st Dist. 1983). A reversal on the

basis that a verdict is against the manifest weight of the evidence is granted “only in

the exceptional case in which the evidence weighs heavily against the conviction.”

Appellant argues that the testimony of Reed lacked credibility because

“[i]t is unclear why she would claim [that] she had sold the car in 2020 when the

evidence establishes that she retrieved it with the title from police custody in 2021.” On cross-examination, appellant’s trial counsel asked Reed about

picking up the Infiniti from the impound lot. She stated that she had received a

letter in the mail stating the car was in the impound. Reed was shown Exhibit B,

which was the vehicle inventory report from the city of Parma, which Reed had

received when she went to pick up the vehicle. She confirmed that she was listed on

the report as the owner of the vehicle.

Reed had previously testified on direct examination that her boyfriend

had sold the vehicle and that she had not gone to the sale and did not know how

much money her boyfriend made on the sale. She further testified that she did not

know appellant and had not left any firearms, marijuana, or methamphetamine in

the vehicle.

We find no merit to this assignment of error. As this court has

previously stated:

The criminal manifest weight of-the-evidence standard addresses the evidence’s effect of inducing belief. State v. Wilson,

,

,

, ¶ 25, citing Thompkins,

,

(1997). Under the manifest weight-of-the- evidence standard, a reviewing court must ask the following question: whose evidence is more persuasive — the state’s or the defendant’s? Wilson at

Although there may be legally sufficient evidence to support a judgment, it may nevertheless be against the manifest weight of the evidence.

; State v. Johnson,

,

,

(2000).

When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact finder’s resolution of the conflicting testimony. Wilson at

quoting Thompkins at

Reversal on manifest weight grounds is reserved for the “exceptional case in which the evidence weighs heavily against the conviction.” Thompkins at

State v. Williams, 8th Dist. Cuyahoga No. 108275,

.

When sitting as the “thirteenth juror” analyzing a manifest weight

argument, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider the credibility of the witnesses, and, in resolving

conflicts in the evidence, determine whether the jury clearly lost its way and created

such a manifest miscarriage of justice that the verdict must be reversed and a new

trial ordered. Cleveland v. Yontosh, 8th Dist. Cuyahoga No. 99076, 2013-Ohio-

3137, ¶ 10, citing State v. Caraballo, 8th Dist. Cuyahoga No. 89775, 2008-Ohio-

5248.

With regard to Reed’s testimony, we acknowledge that it is unclear

how Reed could have sold the Infiniti yet remained the registered owner of the

vehicle. However, whether the sale of the Infiniti had been properly recorded, why

Reed was still listed as the owner of the vehicle, and whether the proper procedure

was filed in returning the vehicle to Reed are not questions before us.

Although the reviewing court considers the credibility of witnesses in

a challenge to the manifest weight of the evidence, it does so “with the caveat that

the trier of fact is in the best position to determine a witness’[s] credibility through

its observation of his or her demeanor, gestures, and voice inflections.” State v.

Campbell, 8th Dist. Cuyahoga Nos. 100246 and 100247,

.

“Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder’s determinations of credibility.”

State v. Robinson, 8th Dist. Cuyahoga No. 99290,

, quoting

State v. Lawson, 2d Dist. Montgomery No. 16288,

(Aug. 22, 1997). A factfinder is free to believe all, some, or none of the testimony of

each witness appearing before it. State v. Ellis, 8th Dist. Cuyahoga No. 98538, 2013-

Ohio-1184, ¶ 18.

Moreover, “‘a conviction is not against the manifest weight of the

evidence simply because the [factfinder] rejected the defendant’s version of the facts

and believed the testimony presented by the state.’” State v. Jallah, 8th Dist.

Cuyahoga No. 101773,

, ¶ 71, quoting State v. Hall, 4th Dist. Ross

No. 13CA3391,

.

In reviewing the entire record, we cannot say that any issues with

Reed’s credibility caused the jury to lose its way and created a manifest miscarriage

of justice.

The remainder of appellant’s assertions under this assignment of

error simply reference the arguments raised in his first assignment of error

regarding sufficiency of the evidence. However, “sufficiency” and “manifest weight”

challenges present two distinct legal concepts. Eastley v. Volkman,

,

,

, ¶ 23. App.R. 16(A) requires a party to

separately argue each assignment of error. See Cleveland v. Hall, 8th Dist.

Cuyahoga No. 101820,

, ¶ 14, citing App.R. 16(A)(7) (overruling appellant’s assignment of error relating to a sufficiency challenge pursuant to App.R.

16(A)(7) because the appellant did not make a specific argument regarding why the

convictions were not supported by sufficient evidence and only addressed the issues

relating to the manifest-weight challenge). Pursuant to App.R. 12(A)(2), an

appellate court may disregard any assignment of error, or portion thereof, if the

appellant fails to make a separate argument. State v. Wells, 8th Dist. Cuyahoga No.

98388,

.

Appellant’s fifth assignment of error is overruled.

F. Hearsay Testimony

In his sixth assignment of error, appellant argues that the jury heard

inadmissible hearsay evidence and that one of the officers who testified vouched for

the credibility of a nontestifying witness.

Appellant points to the testimony of Ofc. Mindlin, who testified that

Brown, the passenger, “advised [him] that [appellant] was his drug dealer.”

Appellant’s trial counsel objected, which was sustained, but there was no curative

instruction given (or asked for). Ofc. Mindlin further testified that Brown was not

arrested or charged because “he was honest” and appellant never stated that the

guns belonged to Brown.

This court has held that it is improper for a witness to vouch for the

credibility of another witness. State v. Young, 8th Dist. Cuyahoga No. 79243, 2002-

Ohio-2744 (holding that it was plain error when a detective testified that a witness

was “telling the truth”). An officer is not vouching for witness credibility, however, by explaining the investigative procedure he followed. State v. Monroe, 8th Dist.

Cuyahoga No. 94768,

(finding the detective’s testimony that

defendant’s comment was inconsistent with other evidence did not invade the

province of the jury); see also State v. Smith, 8th Dist. Cuyahoga No. 95243, 2011-

Ohio-3051 (finding that the detective’s testimony that one statement corroborated

another is not to say that either was true, but rather that they were consistent).

Ofc. Mindlin was not vouching for Brown’s credibility but was

explaining his investigation, and thus his testimony was proper. Accordingly,

appellant’s sixth assignment of error is overruled.

G. Ineffective Assistance of Counsel – Failure to File Motion to Suppress

In his seventh assignment of error, appellant contends that he

received ineffective assistance of counsel when his trial counsel failed to file a motion

to suppress evidence arising from the traffic stop and subsequent search.

The failure to file a motion to suppress is not per se ineffective

assistance of counsel. See, e.g., State v. Musleh, 8th Dist. Cuyahoga No. 105305,

; State v. Watts, 8th Dist. Cuyahoga No. 104188, 2016-Ohio-

8318, ¶ 17, citing State v. Madrigal,

,

(2000).

Rather, a trial counsel’s failure to file a motion to suppress constitutes ineffective

assistance of counsel only if there is a reasonable probability that, had the motion to

suppress been filed, it would have been granted and that suppression of the

challenged evidence would have affected the outcome of the case. State v. Frierson,

,

(8th Dist.). Counsel is not required to file a

motion to suppress if doing so would be a futile act. See, e.g., Musleh at ¶ 31; State

v. Armstrong, 8th Dist. Cuyahoga No. 103088,

.

In this case, Ofc. Mindlin testified that he observed heavy tint on the

vehicle’s windows and that the license plate in the window was unreadable due to

the dark tint. Det. Kekic testified that the level of window tint was “28 percent,”

which relates to how much light can get through the window; the legal limit is 70

percent. He stated that the window tint level on the vehicle appellant was driving

would be a valid reason for a traffic stop.

The state contends that appellant’s trial counsel was provided with

discovery that included evidence not presented at trial, such as police reports and

officer body-camera video. In viewing such evidence, the state maintains that trial

counsel would have been able to determine that there was sufficient probable cause

to stop and search the vehicle. In addition, the state asserts that appellant’s counsel

could have been exercising trial strategy by denying ownership of the safe, thereby

not having standing to challenge the search.

While the evidence referred to by the state is not before us and thus

cannot be considered, we still find that appellant’s trial counsel was not ineffective

in declining to file a motion to suppress. There was clear testimony that Ofc. Mindlin

observed a traffic violation in that the windows were tinted too dark. This court has

held that window-tint violations provide reasonable suspicion or probable cause for

a traffic stop. See, e.g., State v. Bowie, 8th Dist. Cuyahoga No. 88857, 2007-Ohio- 4297, ¶ 9 (police had probable cause for traffic stop to determine whether car

windows were illegally tinted); State v. Knox, 8th Dist. Cuyahoga Nos. 98713 and

98805,

(same); Richmond Hts. v. Williams, 8th Dist. Cuyahoga

No. 73500,

, 6 (Nov. 15, 1998) (police had probable

cause for traffic stop based on reasonable suspicion of excessive window tinting);

Cleveland v. Davis, 8th Dist. Cuyahoga No. 106780,

(traffic

stop for window-tint violation was valid); In re Coleman, 8th Dist. Cuyahoga No.

65459,

, 6 (Dec. 30, 1993) (lawful traffic stop for

violation of municipal ordinance prohibiting tinted windows).

In addition, with regard to the safe, the Supreme Court of Ohio has

held that the discovery of other indicia of criminal activity in the vehicle during a

search gives rise to probable cause to search other areas of the vehicle, including

containers that could contain contraband. State v. Vega,

, 2018-

Ohio-4002,

; State v. Taylor,

,

, ¶ 15 (8th Dist.) (en banc). Ofc. Mindlin had probable cause to search the vehicle

based upon the odor of marijuana and his observation of “shake” in the vehicle.

Once inside the vehicle, he observed further indicia of criminal activity, thus

constituting probable cause to open the safe.

Appellant’s trial counsel was not ineffective in declining to file a

motion to suppress evidence. Appellant’s seventh assignment of error is overruled. H. Reagan Tokes Law

In appellant’s eighth assignment of error, he contends that his

indefinite sentence under the Reagan Tokes Law was unconstitutional, citing our

decisions in State v. Delvallie,

,

(8th Dist.); and

State v. Sealey,

,

(8th Dist.).

This court has conducted en banc review of the constitutionality of the

Reagan Tokes Law. See State v. Delvallie,

,

(8th

Dist.). In Delvallie, this court found “that the Reagan Tokes Law, as defined under

R.C. 2901.011, is not unconstitutional.” Delvallie at ¶ 17. This court vacated the

decisions cited by appellant and overruled the separation-of-powers, right to jury

trial, and due process challenges presented by appellant and consequently, we need

not dwell on them.

Pursuant to Delvallie, appellant’s eighth assignment of error is

overruled. The trial court did not err in imposing an indefinite prison sentence for

appellant’s qualifying offenses.

III. Conclusion

All of appellant’s assignments of error are overruled. His convictions

were supported by sufficient evidence and not against the manifest weight of the

evidence. Further, appellant did not receive ineffective assistance of counsel, and

the trial court did not err in its admission of testimony or giving a curative instruction. Finally, appellant’s sentence was properly imposed under the Reagan

Tokes Law.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

___________________________________________ FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and MICHAEL JOHN RYAN, J., CONCUR