[Cite as State v. Alley,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-23-006

Appellee Trial Court No. 22CR68

v.

Matthew Alley DECISION AND JUDGMENT

Appellant Decided: January 12, 2024

*****

Beth A. Tischler, Sandusky County Prosecuting Attorney, and Alexis M. Otero, Assistant Prosecuting Attorney, for appellee.

Michael H. Stahl, for appellant.

*****

ZMUDA, J.

I. Introduction

{¶ 1} This matter is on appeal from the judgment of the Sandusky County Court of

Common Pleas, which, after a jury returned guilty verdicts on all charges, sentenced

appellant, Matthew Alley, to an aggregate minimum prison term of 14 years and an

aggregate maximum prison term of 17 years. For the reasons that follow, we affirm. II. Facts and Procedural Background

{¶ 2} Appellant is an admitted, long-time drug addict, with a prior record that

includes drug possession and drug trafficking convictions. In the summer of June, 2021,

appellant lived in a camper located in a friend’s yard where he sold drugs. After police

became aware of the drug sales from the camper, the Sandusky County Drug Task Force

investigated, using a confidential informant (CI) to make controlled buys from appellant.

Police placed a recording device on the CI, and the CI made controlled buys from

appellant in his camper on June 4, June 15, and June 17, 2021. On June 22, 2021, the task

force executed a search warrant at appellant’s home, and as a result, recovered quantities

of methamphetamine and fentanyl, drug paraphernalia, syringes, scales, money, and

weapons.

{¶ 3} On February 15, 2022, appellant was arraigned on 11 counts as follows:

Counts 1, 2, and 8, aggravated trafficking in drugs in violation of

R.C. 2925.03(A)(1) and (C)(1)(c), each a felony of the third degree;

Counts 3 and 4, aggravated trafficking in drugs in violation of R.C.

2925.03(A)(1) and (C)(1)(d), each a felony of the second degree;

Count 5, aggravated possession of drugs in violation of R.C.

2925.11(A) and (C)(1)(c), a felony of the second degree;

Count 6, aggravated trafficking in a fentanyl-related compound in

violation of R.C. 2925.03(A)(2) and (C)(9)(d), a felony of the third degree;

2. Count 7, possession of a fentanyl-related compound in violation of

R.C. 2925.11(A)(2) and (C)(2)(c), a felony of the third degree;

Count 9, aggravated possession of drugs in violation of R.C.

2925.11(A) and (C)(1)(b), a felony of the third degree;

Counts 10 and 11, possession of drugs in violation of R.C.

2925.11(A) and (C)(2)(a), each a felony of the fifth degree;

Counts 4, 6, and 8 each included a forfeiture specification within the

indictment.

{¶ 4} In the weeks leading up to trial, appellant requested the name and criminal

history of the CI, and also filed a motion to require the CI to testify at trial. The state

filed responses in opposition, but did provide appellant with the CI’s name and complete

criminal history. Appellant’s trial counsel acknowledged he viewed the videos of the

controlled buys several months before the scheduled trial. The trial court denied the

motion to compel the CI’s appearance at trial, and the CI did not appear at trial.

{¶ 5} Appellant’s case was tried to a jury on January 31, and February 1, 2023.

The state’s evidence included testimony by Task Force officers and Bureau of Criminal

Investigation scientists, and the trial court admitted numerous exhibits that included video

of the drug transactions and still shots taken from the video, photos of the cash used to

make the purchases, and photos taken during the search of appellant’s home and the

drugs seized as part of the investigation. The state also introduced as exhibits various

3. drug paraphernalia, drugs, money, and weapons seized in the search of appellant’s

camper. Additionally, the trial court admitted copies of the lab reports prepared by the

BCI scientists.

{¶ 6} Significant to this appeal, the state’s evidence demonstrated the amounts of

methamphetamine purchased by the CI, as charged in the first three counts of the

indictment. The evidence showed a purchase of 7.07 grams of methamphetamine for

$200 on June 4, 2021 (as alleged in count 1), a purchase of 6.92 grams of

methamphetamine for $200 on June 15, 2021 (as alleged in count 2), and a purchase of

27.79 grams of methamphetamine for $475 on June 17, 2021 (as alleged in count 3). The

state also presented evidence as the remaining counts, detailing the drugs, weapons (real

and fake), money, and paraphernalia seized as a result of the search of appellant’s

camper.

{¶ 7} At the close of the state’s case, the trial court admitted all the state’s

proffered exhibits without objection by the defense. Appellant moved for acquittal

pursuant to Crim.R. 29, which the state opposed. The trial court denied the motion for

acquittal.

{¶ 8} Appellant, himself, was the only witness to testify in the defense case, and

the defense pursued the defense of entrapment. Appellant admitted he was a drug user

and admitted to selling drugs from his camper to the CI, a man he had known for a year

or two and with whom he had engaged in drug transactions – sales, purchases, and trades

4. – in the past. Appellant testified that he had a source in Toledo, and the drugs usually

arrived within an hour when he “ordered” them from his source. He indicated his source

“fronted” him the drugs, and he took the delivered drugs and packaged half for sale to

cover the amount owed to his source, keeping the other half for his own use. Appellant

testified:

Yeah, I found out that you could buy it, sell half of it and buy it again; sell

half of it; buy it again. I found out you could do that, and that’s what I’ve

been doing to support my habit for 20 years.

{¶ 9} Appellant also acknowledged his prior convictions for possession and

trafficking, in 2016, 2019, and 2020, and admitted ownership of all the drugs seized from

his home. He further argued that he was a small-scale dealer, selling “less than bulk

amount” to each buyer, up until the CI requested a larger purchase. However, appellant

also testified that he was not opposed to larger sales, stating:

I can’t say – I can’t say for sure if I would or would not, um, I wasn’t out to

make money. I was taking care of my own habit. If I had to care of my own

habit and it meant doing big business, maybe I would.

In his testimony, appellant characterized his sales to the CI as a sale directly to the Task

Force even though he had no knowledge of the Task Force’s involvement at that time.

Appellant also admitted he and the CI “traded” pills containing fentanyl, while refusing

to describe the transactions as “sales.”

5. {¶ 10} At the close of appellant’s testimony, the defense rested without proffering

any exhibits. Appellant again moved for acquittal pursuant to Crim.R. 29, and the trial

court, again, denied the motion.

{¶ 11} The prosecutor and appellant’s trial counsel then made their closing

arguments to the jury. The prosecutor argued that appellant admitted that all the drugs

and other items seized from his camper were his, and the state had video evidence of all

three controlled buys to the CI. The prosecutor also noted appellant’s admission to prior,

drug trafficking convictions, and argued any claim of entrapment was refuted by

appellant’s own testimony that he had been selling to the CI for a couple of years and was

not suspicious when the CI asked to purchase a large amount of drugs. The state finally

noted appellant’s admission that he would probably sell the same large amount of drugs

to someone else if asked.

{¶ 12} Appellant’s trial counsel focused his closing argument on reaching a “just

verdict,” asking the jury to consider appellant’s living situation, his addiction, and the

fact appellant was not “a major player with lots of money and carrying on.” Appellant’s

counsel argued that when police began investigating appellant, they discovered only

small drug sales from the camper, but instead of attempting to apprehend the supplier that

appellant used, they chose to “induce” appellant to make a larger sale. Counsel argued

that this larger drug transaction “would never have occurred without the police setting it

6. up” and it would be wrong to convict appellant as the “big fish” instead of using

appellant to “go up the ladder” to get the supplier.

{¶ 13} The trial court instructed the jury and provided an instruction regarding the

affirmative defense of entrapment over the objection of the state. After deliberations, the

jury returned guilty verdicts on all counts in the indictment. The trial court continued the

matter for sentencing but did not request a presentence investigation report. The trial

court did request an updated records check which disclosed a 2013 Arizona conviction

for aggravated assault on an officer, for which appellant served a year of prison, and a

pending possession/trafficking case in Erie County.

{¶ 14} On February 17, 2023, the trial court held a sentencing hearing, and heard

from counsel and the appellant regarding sentence.

{¶ 15} The prosecution noted appellant’s record, with repeated convictions for

operating the business of selling methamphetamine and other drugs, arguing the amounts

of drugs sold from or seized from appellant’s camper had the potential to kill hundreds of

people. Therefore, the state argued that, while the drug offenses are not offenses of

violence, the offenses deeply affect the community in a negative way. After noting

counts 4 and 5, 6 and 7, and 8 and 9 were subject to merger under R.C. 2941.25, the state

elected to proceed to sentence as to Counts 4, 6, and 8. The state requested an aggregate

sentence of 18 years, arguing the record supported the imposition of consecutive

sentences.

7. {¶ 16} Appellant’s trial counsel argued for leniency, maintaining appellant was

not a major drug dealer but an addict, just trying to support his habit with small sales.

Counsel again referenced the entrapment claims, pursued at trial but implicitly rejected

by the jury.1 Appellant then spoke on his own behalf, apologizing for his conduct and

“for putting drugs in the community and making the community an unsafe place[.]”

{¶ 17} The trial court ordered Counts 4 and 5, 6 and 7, and 8 and 9 merged, and

noting the state’s election, proceeded to sentencing on Counts 4, 6, and 8. The trial court

considered the factors under R.C. 2929.11 and 2929.12, and imposed sentence as follows:

Count 1, aggravated trafficking in violation of R.C. 2925.03(A)(1)

and (C)(1)(c), a felony of the third degree: a prison term of 36 months;

Count 2, aggravated trafficking in violation of R.C. 2925.03(A)(1)

and (C)(1)(c), a felony of the third degree: a prison term of 36 months;

Count 3, aggravated trafficking in drugs in violation of R.C.

2925.03(A)(1) and (C)(1)(d), a felony of the second degree: a prison term

of 6 years;

Count 4, aggravated trafficking in drugs in violation of R.C.

2925.03(A)(1)

1 Counsel stated at hearing, “[O]bviously, the jury rejected our entrapment defense.”

8. and (C)(1)(d), a felony of the second degree: a prison term of 6

years;

Count 6, aggravated trafficking in a fentanyl-related compound in

violation of R.C. 2925.03(A)(2) and (C)(9)(d), a felony of the third degree:

a prison term of 24 months;

Count 8, aggravated trafficking in drugs in violation of R.C.

2925.03(A)(1) and (C)(1)(c), a felony of the third degree: a prison term of

24 months;

Count 10, possession of drugs in violation of R.C. 2925.11(A) and

(C)(2)(a), a felony of the fifth degree: a prison term of 12 months;

Count 11, possession of drugs in violation of R.C. 2925.11(A) and

(C)(2)(a), a felony of the fifth degree: a prison term of 12 months.

{¶ 18} Additionally, the trial court addressed the consecutive sentencing factors

under R.C. 2929.14(C)(4), and found:

As to the consecutive sentences under the discretionary consecutive

sentence findings, Court does find that consecutive sentences are made

necessary to protect the public from future crime or to [punish] the

Defendant and that consecutive sentences are not disproportionate to the

seriousness of the Defendant’s conduct and to the danger the Defendant

poses to the public, and at least two of the multiple offenses were

9. committed as part of one or more courses of conduct and the harm caused

by two or more of the multiple offenses so committed was so great or

unusual that no single prison term for any of the offenses committed as part

of any other course of conduct adequately reflects the seriousness of the

Defendant’s conduct, and the Defendant’s history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public

from future crime by the Defendant.

{¶ 19} The trial court ordered the sentences for Counts 1, 2, and 3 to run

concurrent to each other, ordered the sentence for Count 4 to run consecutive to the

sentence in Count 3, and ordered the sentence for Count 6 to run consecutive to the

sentence in Counts 3 and 4. The trial court then ordered the remainder of the counts to

run concurrent to each other, for an aggregate minimum sentence of 14 years, with the

aggregate maximum, indefinite term of 17 years. Additionally, pursuant to the forfeiture

specifications attached to Counts 4, 6, and 8, the trial court ordered the property forfeited.

{¶ 20} Appellant filed a timely appeal from the judgment.

III. Assignment of Error

{¶ 21} On appeal, appellant asserts the following assignments of error:

1. The trial court erred in denying Mr. Alley’s motion to require the

testimony of the Confidential Informant (C.I.) pursuant to hearsay and the

Confrontation Clause of the Ohio and United States Constitutions and

10. further erred in overruling objections to the Detective’s hearsay knowledge

gleaned from the declarant C.I., or alternatively, counsel provided

ineffective assistance of counsel.

2. The trial court committed plain error in admitting expert

testimony from Kristen Canfield of BCI without the State moving to

qualify her as an expert, resulting in insufficient evidence as to counts 1, 2,

and 3.

3. The trial court erred in imposing consecutive sentences.

IV. Analysis

{¶ 22} Appellant’s first and second assignments of error challenge evidence

regarding the first three counts in the indictment, or evidence obtained through the Task

Force’s use of the CI. His third assignment of error challenges the imposition of

consecutive sentences. In support of his argument, appellant references his entrapment

defense. Because appellant raised this affirmative defense, we must first address the

legal effect of that defense on the argument raised on appeal.

A. Appellant admitted to committing the charged offenses by raising the affirmative defense of entrapment.

{¶ 23} Appellant argued entrapment at trial and he testified on his own behalf,

admitting to selling drugs to the CI and claiming all the property seized from the camper

as his own. “Entrapment is an affirmative defense under R.C. 2901.05[(D)(1)].” State v.

11. Doran,

,

(1983), paragraph two of the syllabus.2

Pursuant to R.C. 2901.05(D)(1):

(1) An “affirmative defense” is either of the following:

(a) A defense expressly designated as affirmative;

(b) A defense involving an excuse or justification peculiarly within

the knowledge of the accused, on which the accused can fairly be required

to adduce supporting evidence.

By raising the defense of entrapment, “the commission of the offense is admitted and the

accused seeks to avoid criminal liability therefor by maintaining that the government

induced him to commit an offense that he was not predisposed to commit.” Doran at

193. As such, entrapment is the “classic confession and avoidance” that involves “an

excuse or justification.”

citing former R.C. 2901.05(C)(2).

{¶ 24} The record demonstrates that despite the trial court instructing the jury on

the affirmative defense of entrapment, the jury found appellant guilty on all counts

charged in the indictment. Now, on appeal, appellant attempts to challenge the evidence

for the crimes he admitted by asserting an affirmative defense, while also arguing his

unsuccessful entrapment defense to demonstrate prejudice and challenge the imposition

of consecutive sentences. Appellant raises no challenge, however, based specifically on

2 Doran cited to the same language under section (C)(2) of an earlier version of the statute.

12. matters related to his unsuccessful affirmative defense. Significantly, appellant does not

assert any error based on proof of his affirmative defense.

{¶ 25} While appellant might believe the Task Force entrapped him by enticing

him to make larger than usual sales to the CI, this belief is not an established fact on

appeal. Instead, the jury’s guilty verdicts demonstrated an implicit rejection of appellant’s

entrapment defense, as acknowledged by appellant at the time of sentencing. Therefore,

to the extent that appellant relies on entrapment to support his assigned errors on appeal,

we give no weight to appellant’s belief regarding entrapment in resolving the issues

raised on appeal.

B. The lack of testimony from the CI did not cause reversible error

{¶ 26} Appellant challenges only evidence relative to the first three counts of the

indictment. Appellant does not otherwise challenge the evidence or testimony related to

the remaining counts, focusing solely on the CI’s involvement and his entrapment

defense. We limit our analysis, relative to the first two assignments of error, accordingly.

{¶ 27} In his first assignment of error, appellant raises three, separate challenges.

Appellant argues the trial court erred in denying his motion to require the testimony of

the CI. He also argues the trial court erred in permitting testimony regarding what police

learned through the CI. Finally, appellant argues his trial counsel provided ineffective

assistance of counsel. For ease of discussion, we address these issues in reverse order.

13. 1. Failure to request a limiting instruction did not result in ineffective assistance of counsel

{¶ 28} We first consider appellant’s claim of ineffective assistance of counsel. In

considering this claim, we employ a two-step process. State v. Bradley,

,

(1989); see also Strickland v. Washington,

,

,

(1984). “[W]hen a convicted defendant complains of the

ineffectiveness of counsel’s assistance, the defendant must show that counsel’s

representation fell below an objective standard of reasonableness.”

,

quoting

. “Next, and analytically separate” from the issue of

effectiveness, “there must be a determination as to whether the defense was prejudiced by

counsel’s ineffectiveness.” (citation omitted)

. Applying this

standard, reversal is merited only if appellant demonstrates that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

.

{¶ 29} The specific error of counsel, argued by appellant, is his trial counsel’s

failure to request a limiting instruction regarding statements made by the CI contained in

the recordings of the controlled buys. In support of this claimed error, however,

appellant does not identify which statements required a limiting instruction.

{¶ 30} Appellant did not object to the admission of the recordings of the three

controlled buys, and within his own testimony, he acknowledged his sales to the CI, a

known associate of appellant. In arguing that a limiting instruction was necessary,

14. appellant relies on authority in which the out-of-court statements of the CI identified the

seller, an issue that remained a disputed issue at trial in that case. See State v. Ward, 3d

Dist. Seneca No. 13-11-17,

. The trial court in Ward admitted

recordings containing such statements, but provided a limiting instruction addressing the

hearsay within the recordings. Id at ¶ 46.

{¶ 31} In this case, the appellant, himself, established the issue of identity,

admitting he sold drugs to the CI in his trial testimony. Appellant references no other

statements that he claims required a limiting instruction. In order to demonstrate

ineffective assistance of counsel, appellant has the burden of demonstrating both that his

counsel’s performance fell below an objective standard of reasonableness and that, but

for his counsel’s unprofessional errors, the outcome of the trial would have been

different. State v. Alexander,

, -- N.E.3d -- (6th Dist.), ¶ 62-63, citing

;

.

{¶ 32} In this instance, appellant fails to demonstrate either deficiency or

prejudice, and based on his own admissions on the stand at trial, we find no basis to

determine the lack of a limiting instruction regarding any statement the CI made in the

recordings effected the outcome of trial. This determination regarding lack of prejudice

is dispositive of appellant’s claim of ineffective assistance of counsel. See

, quoting

(“If it is easier to dispose of an ineffectiveness claim on the

15. ground of lack of sufficient prejudice, which we expect will often be so, that course

should be followed.”).

{¶ 33} Accordingly, appellant fails to demonstrate error based on ineffective

assistance of counsel arising from the lack of a limiting instruction.

2. The admission of the detective’s testimony concerning information gleaned from the CI did not constitute reversible error

{¶ 34} Appellant next argues that the trial court committed error by overruling his

objection and permitting testimony that identified appellant as the seller. At trial, the

detective testified regarding what the CI observed, including information that identified

appellant as the individual selling drugs from the camper. Appellant’s trial counsel

objected to testimony regarding what the CI saw as a violation of his confrontation rights.

{¶ 35} “The Sixth Amendment’s Confrontation Clause provides, ‘In all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses

against him. * * *.’” State v. Maxwell,

,

,

. This means that out-of-court statements that are testimonial are inadmissible

unless the declarant is an unavailable witness and there was a prior opportunity to cross-

examine the declarant.

citing Crawford v. Washington,

, 124

S.Ct.1354,

(2004). “A statement will be said to be ‘testimonial’ if ‘it is

made with “a primary purpose of creating an out-of-court substitute for trial

testimony.”’” State v. Fitts, 6th Dist. Wood No. WD-18-092,

, ¶ 17,

16. quoting State v. Beasley,

,

,

(additional citation omitted.).

{¶ 36} The indication by the CI that he was buying drugs from appellant did not

concern a contested issue at trial. Moreover, while appellant argues that nobody but the

CI actually witnessed him selling drugs, the video recordings of the controlled buys

identified appellant as the seller, and these recordings were viewed by the jury during

trial. Appellant, thereafter, testified and admitted to selling drugs to the CI, indicating he

and the CI had bought, sold, and traded drugs with each other for around two years prior

to the controlled buys. It is unclear, and appellant fails to articulate, what right of cross-

examination was violated by the detective’s testimony.

{¶ 37} The Confrontation Clause guarantees an accused the opportunity to

effectively cross-examine a declarant, without any guarantee of an opportunity for a

successful cross-examination. (Citations omitted) State v. Arnold,

,

,

. In arguing a violation, appellant

mischaracterizes the evidence admitted through the detective as identifying evidence,

ignoring the record of trial in which appellant admitted to the offenses in pursuing his

affirmative defense.

{¶ 38} Considering the record, we find admission of the CI’s statement through

the detective’s testimony could only be deemed harmless error. Even assuming a

violation occurred, such error could only be construed as harmless where there is “no

17. reasonable possibility that the improperly admitted evidence contributed to the conviction

* * * the alleged confrontation error was harmless beyond a reasonable doubt.” (Citation

omitted.) State v. McKelton,

,

,

.

{¶ 39} Appellant’s claim of a Confrontation Clause violation, accordingly, would

not require reversal even if we determined such a violation occurred.

3. Appellant demonstrates no error in the trial court’s denial of his motion to compel the CI’s testimony at trial.

{¶ 40} Finally, appellant argues that the trial court erred in denying his motion to

compel the testimony of the CI at trial. Appellant characterizes the state’s failure to call

the CI as a witness in its case as a violation of his right to confront the CI under the Sixth

Amendment, based on admission of the recordings of the controlled buys. By

affirmatively stating no objection to the admission of the recordings at trial, appellant

waived his appellate challenge to this admission. State v. Fitts, 6th Dist. Wood Nos.

WD-18-092, WD-18-093,

, ¶ 21.

{¶ 41} On appeal, appellant does not argue plain error in the admission of the

recordings, and he acknowledges the admissibility of recordings to provide context for

the controlled buys. See, e.g., Fitts at ¶ 25 (“Ohio courts have routinely recognized that

‘audio recordings of actual drug transactions are not hearsay, and * * * the introduction

of such recordings does not violate the confrontation clause’”) (citations omitted.). This

leaves a Confrontation Clause challenge to a witness the state never called, albeit a

18. witness appellant may have wished to examine on the witness stand, likely in support of

his entrapment defense.

{¶ 42} The record demonstrated that appellant knew the CI, and appellant had a

history with the CI prior to the Task Force using the CI as its informant. The record also

demonstrated no effort by appellant to secure the CI’s testimony at trial, despite

appellant’s knowledge of the CI. Appellant, furthermore, makes no argument regarding

actual cross-examination of the CI, limiting his argument to his right to question the CI

under oath without any identification of the subject of the questioning.

{¶ 43} Considering appellant’s argument regarding the CI’s testimony, we find no

basis to find that testimony was required in this case, or that the trial court’s denial of

appellant’s motion to compel the CI to appear constituted error. Accordingly, based on

our determination regarding ineffective assistance of counsel and appellant’s

confrontation argument, relative to the CI, we find appellant’s first assignment not well-

taken.

C. The failure to move to qualify BCI scientist Canfield as an expert does not merit reversal.

{¶ 44} In his second assignment of error, appellant argues the trial court

committed plain error in permitting BCI scientist Kristen Canfield to offer expert

testimony. Appellant acknowledges that, while the state adduced testimony and evidence

of Canfield’s qualifications, the state failed to move to have her qualified as an expert

witness. Appellant did not object to either Canfield’s testimony or the admission of

19. Canfield’s report, waiving all but plain error. See State v. Hartman,

,

(2001) (where state never moved to qualify expert, but defense

counsel did not object or challenge the expert’s qualifications, defendant waived all but

plain error).

{¶ 45} Plain error is error “affecting substantial rights[.]” Crim.R. 52(B). To

demonstrate plain error, appellant must show an error occurred, that the error was plain,

and that the error affected his substantial rights. State v. Bond,

,

,

, citing State v. Wilks,

, 2018-

Ohio-1562,

, ¶ 52; Crim.R. 52(B). In considering whether substantial

rights have been implicated, “the trial court’s error must have affected the outcome of the

trial.” Bond at ¶ 17, quoting State v. Barnes,

,

(2002). Furthermore, we reverse based on plain error only in “exceptional circumstances

and only to prevent a manifest miscarriage of justice.” State v. Long,

,

(1978), paragraph three of the syllabus.

{¶ 46} In challenging the admission of Canfield’s testimony, appellant does not

dispute her qualifications or the accuracy of her testing and results, and merely argues

that the substance of her testimony was important to the state in demonstrating sufficient

evidence for conviction. Upon review of the record, we find no plain error based on

Canfield’s testimony.

20. {¶ 47} The record demonstrates Canfield had specialized knowledge, skill,

experience, training, and education as required by Evid.R. 702(B). Her curriculum vitae

indicated she had earned a master of science degree in forensic science and had

experience as a forensic scientist with the BCI, with additional training in the analysis of

controlled substances. Appellant’s trial counsel, moreover, did not challenge Canfield’s

qualifications in cross-examination, but instead probed into Canfield’s testing process,

inquiring into whether Canfield also tested the purity of the methamphetamine submitted

by police after obtaining the samples from the CI’s controlled buys. Furthermore,

appellant’s own testimony acknowledged the amount of drugs sold to the CI, with no

testimony that attempted to refute Canfield’s findings.

{¶ 48} Considering the record, we find no plain error, as Canfield’s training and

experience as a forensic scientist qualified her to testify as an expert, and appellant’s own

testimony tended to corroborate her testimony. See

(no plain error where

witness had requisite qualifications to provide expert opinion, despite failure to formally

tender as expert witness). Therefore, we find appellant’s second assignment of error not

well-taken.

D. The trial court’s imposition of consecutive sentences is supported by the record.

{¶ 49} In his final assignment of error, appellant argues the trial court erred in

imposing consecutive sentences, relying on the reasoning stated in State v. Gwynne, Slip

Opinion

(Gwynne IV). Specifically, appellant argues he was a small-

21. time drug dealer, “bedazzled by $500,” and was simply dealing drugs to support his

addiction, factors that should have weighed against consecutive sentences under the

authority of Gwynne IV, which permitted de novo review to determine whether the record

clearly and convincingly did not support the consecutive-sentence findings. Gwynne IV

at ¶ 1.

{¶ 50} On October 25, 2023, after briefing was completed in appellant’s case, the

Ohio Supreme Court vacated Gwynne IV on reconsideration. See State v. Gwynne, Slip

Opinion

(Gwynne V). In vacating the prior decision, upon which

appellant relies, the Supreme Court held:

R.C. 2953.08(G)(2)(a) is plain and unambiguous and permits an

appellate court to modify or vacate consecutive sentences if it clearly and

convincingly finds that the record does not support the trial court’s

consecutive-sentence findings. Our analysis simply applies this standard

created by the statute and concludes that the court of appeals could not

clearly and convincingly find that the record does not support the trial

court's findings. This does not mean that we would impose the same

sentence if we sat in the trial court’s place. But contrary to the assertion in

the first dissent, we may not rely on our own findings of fact (or

speculation)—such as a finding that criminal activity tends to reduce with

age, that Gwynne’s offenses were crimes of opportunity, or that mental-

22. health issues are likely involved—to second-guess the trial court’s factual

findings in support of consecutive sentences. Even the first dissent

recognizes that “‘the appellate court is constrained to considering only the

findings in R.C. 2929.14(C)(4) that the trial court has actually made,’” first

dissenting opinion at ¶ 71, quoting Gwynne IV, __ Ohio St.3d __, 2022-

Ohio-4607, __ N.E.3d __, at ¶ 21. Appellate review turns on whether the

trial court's findings are clearly and convincingly not supported by the

record, and if the evidence supports the trial court’s consecutive-sentence

findings, the analysis ends there.

State v. Gwynne, Slip Opinion

(Gwynne V).

{¶ 51} Based on his reliance on authority that is no longer good law, appellant’s

challenge to consecutive sentences does not address the trial court’s consideration of the

statutory factors in imposing consecutive sentences, and appellant, furthermore,

acknowledges that he “does meet some of the underlying criteria for such an imposition,”

challenging only the trial court’s finding that consecutive sentences are necessary to

protect the public and no disproportionate to the seriousness of the offender’s conduct

and to the danger posed to the public.

{¶ 52} The record, in this case, demonstrates the trial court made the required

findings under R.C. 2929.14(C)(4), both at the sentencing hearing and in the sentencing

entry. Pursuant to R.C. 2929.14(C)(4), the required findings are as follows:

23. If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness of

the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

24. {¶ 53} In challenging the trial court’s findings, appellant cites to trial testimony

rather than the findings made on the record at his sentencing hearing. Considering the

record of the sentencing hearing, we find the trial court addressed each of the required

findings, and the record clearly supports the trial court’s findings. The trial court’s

findings, moreover, included weighing the seriousness of the offenses and danger to the

public against the need to prevent future crime, punish the offender, and protect the

public. Considering this record, we do not find that the trial court’s findings lack clear

and convincing evidentiary support. Accordingly, we find appellant’s third and final

assignment of error not well-taken.

V. Conclusion

{¶ 54} Finding substantial justice has been done, we affirm the judgment of the

Sandusky County Court of Common Pleas. Appellant is ordered to pay the costs of this

appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Charles E. Sulek, P.J. JUDGE CONCUR. ____________________________ JUDGE

25. This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

26.