State v. Jackson

[Cite as State v. Jackson, 2026-Ohio-1486.]




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

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 25CA4120
                               :
     v.                        :
                               :    DECISION AND JUDGMENT
WALTER JACKSON,                :    ENTRY
                               :
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

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

Shane A. Tieman, Scioto County Prosecuting Attorney, Jay S. Willis,
Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
_____________________________________________________________

Smith, P.J.

        {¶1} Walter Jackson, “appellant,” appeals the May 15, 2023 judgment

entry of the Scioto County Court of Common Pleas. Appellant was

convicted of multiple drug and related offenses at a jury trial. Herein,

appellant raises five assignments of error asserting that his trial attorney

rendered ineffective assistance of counsel and otherwise challenging his

convictions and sentence. Based on our review of the record, we find no

merit to appellant’s assignments of error. Accordingly, all are overruled

and the judgment of the trial court is affirmed.
Scioto App. No. 25CA4120                                                                                2


                     FACTUAL AND PROCEDURAL BACKGROUND

         {¶2} Subsequent to appellant’s jury trial wherein he was convicted of

multiple drug and related criminal offenses, he appealed to this court.

However, we found that we had no jurisdiction to consider the merits of the

appeal due to lack of a final appealable order. See State v. Jackson, 2025-

Ohio-322, “Jackson I.” We set forth the factual and procedural background

as previously set forth in Jackson I at paragraphs three through seven.

         {¶3} On August 2, 2022, an indictment was filed charging appellant

with eight felony drug-related counts. Appellant was arrested on those

charges, retained counsel, was arraigned, and pled not guilty. The matter

then proceeded through discovery.

         {¶4} Subsequently, on November 22, 2022, a second indictment was

filed under the same case number charging appellant with 12 felony counts

as follows:1

         Count One:

         Trafficking in a Fentanyl-Related Compound, in violation of R.C.

2925.03(A)(2) and (C)(9)(g), a felony of the first degree (also containing

R.C. 2941.141(A) and 2941.1417(A) firearm specifications);




1
  Some of the counts contained in the second indictment were the same as those contained in the first
indictment, some were different, and there were four new counts.
Scioto App. No. 25CA4120                                                        3


      Count Two:

      Possession of a Fentanyl-Related Compound, in violation of R.C.

2925.11(A) and (C)(11)(f), a felony of the first degree (also containing R.C.

2941.141(A) and 2941.1417(A) firearm specifications);

      Count Three:

      Trafficking in a Fentanyl-Related Compound, in violation of R.C.

2925.03(A)(2) and (C)(9)(e), a felony of the second degree (also containing

R.C. 2941.141(A) and 2941.1417(A) firearm specifications);

      Count Four:

      Possession of a Fentanyl-Related Compound, in violation of R.C.

2925.11(A) and (C)(11)(d), a felony of the second degree (also containing

R.C. 2941.141(A) and 2941.1417(A) firearm specifications);

      Count Five:

      Trafficking in Cocaine, in violation of R.C. 2925.03(A)(2) and

(C)(4)(d), a felony of the third degree (also containing R.C. 2941.141(A) and

2941.1417(A) firearm specifications);

      Count Six:

      Possession of Cocaine, in violation of R.C. 2925.11(A) and (C)(4)(c),

a felony of the third degree (also containing R.C. 2941.141(A) and

2941.1417(A) firearm specifications);
Scioto App. No. 25CA4120                                                      4


      Count Seven:

      Aggravated Trafficking in Drugs, in violation of R.C. 2925.03(A)(2)

and (C)(1)(c), a felony of the third degree (also containing R.C. 2941.141(A)

and 2941.1417(A) firearm specifications);

      Count Eight:

      Aggravated Possession of Drugs, in violation of R.C. 2925.11(A) and

(C)(1))(b), a felony of the third degree (also containing R.C. 2941.141(A)

and 2941.1417(A) firearm specifications);

      Count Nine:

      Having Weapons While Under Disability, in violation of R.C.

2923.13(A)(3) and (B), a felony of the third degree (also containing a R.C.

2941.1417(A) firearm specification);

      Count Ten:

      Having Weapons While Under Disability, in violation of R.C.

2923.13(A)(2) and (B), a felony of the third degree (also containing a R.C.

2941.1417(A) firearm specification);

      Count Eleven:

      Improperly Handling Firearms in a Motor Vehicle, in violation of

R.C. 2923.16(B) and (I), a felony of the fourth degree (also containing a

R.C. 2941.1417(A) firearm specification); and
Scioto App. No. 25CA4120                                                       5


      Count Twelve:

      Possessing Criminal Tools, in violation of R.C. 2923.24(A) and (C), a

felony of the fifth degree.

      {¶5} Appellant was again arraigned and pled not guilty to the charges,

but this time he was represented by appointed counsel, who had replaced his

previously retained counsel. During the second arraignment hearing and the

pretrial hearings conducted thereafter, the second indictment was referred to

as a superseding indictment, and it appears the parties only discussed the

counts contained in the second indictment.

       {¶6} The matter thereafter proceeded to trial on March 13, 2023.

Appellant was found guilty of all 12 counts contained in the second

indictment, along with 8 firearm specifications. After merging several of the

counts for purposes of sentencing, appellant received an aggregate prison

sentence of 25 years and 6 months to an indefinite term of 31 years, with 18

years being mandatory. The trial court issued a judgment entry on May 15,

2023 imposing sentence. The entry was timely appealed, but dismissed as

discussed in Jackson I.

      {¶7} The appeal has now been perfected, and the May 15, 2023

judgment entry is properly before us. Additional facts are set forth below,

where relevant.
Scioto App. No. 25CA4120                                                        6


                           ASSIGNMENTS OF ERROR

      I.     THE TRIAL COURT ERRED TO THE
             PREJUDICE OF MR. JACKSON’S SIXTH
             AMENDMENT RIGHTS BY ENTERING
             JUDGMENT OF CONVICTION AFTER A
             TRIAL    AT   WHICH  HE   RECEIVED
             INEFFECTIVE ASSISTANCE OF COUNSEL
             FOR HIS DEFENSE.

      II.    THE TRIAL COURT ERRED TO THE
             PREJUDICE   OF MR.   JACKSON  BY
             CONDUCTING THE TRIAL WITHOUT HIM
             BEING PRESENT.

      III.   THE TRIAL COURT ERRED TO THE
             PREJUDICE OF MR. JACKSON BY FAILING
             TO MERGE ALLIED OFFENSES OF SIMILAR
             IMPORT AT THE TIME OF SENTENCING.

      IV.    THE TRIAL COURT ERRED IN IMPOSING
             CONSECUTIVE SENTENCES WHEN THE
             RECORD DID NOT SUPPORT THE FINDINGS
             MADE BY THE TRIAL COURT TO IMPOSE
             CONSECUTIVE SENTENCES.

      V.     MR. JACKSON’S CONVICTIONS WERE NOT
             SUPPORTED BY SUFFICIENT EVIDENCE
             AND IS CONTRARY TO THE MANIFEST
             WEIGHT OF THE EVIDENCE.


             Assignment of Error One-Ineffective Assistance of Counsel

                                Standard of Review

      {¶8} The Sixth Amendment to the United States Constitution and

Article I, Section 10 of the Ohio Constitution provide that defendants in all
Scioto App. No. 25CA4120                                                          7


criminal proceedings shall have the assistance of counsel for their defense.

The United States Supreme Court has generally interpreted this provision to

mean a criminal defendant is entitled to the “reasonably effective assistance”

of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); accord

Hinton v. Alabama, 571 U.S. 263, 272 (2014) (the Sixth Amendment right to

counsel means “that defendants are entitled to be represented by an attorney

who meets at least a minimal standard of competence”). See State v. Billiter,

2025-Ohio-4693 (4th Dist.), at ¶ 53.

        {¶9} To establish constitutionally ineffective assistance of counsel, a

defendant must show that (1) trial counsel's performance was deficient and

(2) the deficient performance prejudiced the defense and deprived the

defendant of a fair trial. E.g., Strickland, 466 U.S. at 687; State v. Myers,

2018-Ohio-1903, ¶ 183; State v. Powell, 2012-Ohio-2577, ¶ 85. “Failure to

establish either element is fatal to the claim.” State v. Jones, 2008-Ohio-

968, ¶ 14 (4th Dist.). Therefore, if one element is dispositive, a court need

not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389 (2000) (a

defendant's failure to satisfy one of the ineffective-assistance-of-counsel

elements “negates a court's need to consider the other”). See also Billiter, at

¶ 53.
Scioto App. No. 25CA4120                                                        8


       {¶10} The deficient performance part of an ineffectiveness claim “is

necessarily linked to the practice and expectations of the legal community:

‘The proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.’ ” Padilla v. Kentucky,

559 U.S. 356, 366 (2010), quoting Strickland, 466 U.S. at 688; accord

Hinton, 571 U.S. at 273. See also Billiter, at ¶ 54. Accordingly, “[i]n order

to show deficient performance, the defendant must prove that counsel's

performance fell below an objective level of reasonable representation.”

(Citations omitted.) State v. Conway, 2006-Ohio-2815, ¶ 95. Furthermore,

“ ‘[i]n any case presenting an ineffectiveness claim, the performance inquiry

must be whether counsel's assistance was reasonable considering all the

circumstances.’ ” Hinton, 571 U.S. at 273, quoting Strickland, 466 U.S. at

688.

       {¶11} Moreover, when considering whether trial counsel's

representation amounts to deficient performance, “a court must indulge a

strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance[.]” Strickland, 466 U.S. at 689; see

Billiter, at ¶ 55. Thus, “the defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered sound

trial strategy.” Id. Additionally, “[a] properly licensed attorney is presumed
Scioto App. No. 25CA4120                                                       9


to execute his duties in an ethical and competent manner.” State v. Taylor,

2008-Ohio-482, ¶ 10 (4th Dist.), citing State v. Smith, 17 Ohio St.3d 98, 100

(1985). Therefore, a defendant bears the burden to show ineffectiveness by

demonstrating that counsel's errors were “so serious” that counsel failed to

function “as the ‘counsel’ guaranteed ... by the Sixth Amendment.”

Strickland, 466 U.S. at 687; e.g., State v. Gondor, 2006-Ohio-6679, ¶ 62;

State v. Hamblin, 37 Ohio St.3d 153, 156 (1988).

      {¶12} To establish prejudice, a defendant must demonstrate “ ‘a

reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’ ” Hinton,

571 U.S. at 275, quoting Strickland, 466 U.S. at 694; e.g., State v. Short,

2011-Ohio-3641, ¶ 113; State v. Bradley, 42 Ohio St.3d 136 (1989),

paragraph three of the syllabus; accord State v. Spaulding, 2016-Ohio-8126,

¶ 91 (prejudice component requires a “but for” analysis). “ ‘[T]he question

is whether there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.’ ” Hinton,

571 U.S. at 275, quoting Strickland, 466 U.S. at 695.

      {¶13} On the prejudice prong, the defendant must show there is a

reasonable probability the result of the proceedings would have been
Scioto App. No. 25CA4120                                                       10


different but for the deficient performance; a reasonable probability is one

“sufficient to undermine confidence in the outcome.” State v. Baker, 2023-

Ohio-2061, at ¶ 24 (7th Dist.). Lesser tests of prejudice have been rejected:

“It is not enough for the defendant to show that the errors had some

conceivable effect on the outcome of the proceeding.” Id. at 142, fn. 1,

quoting Strickland, 466 U.S. at 693. Prejudice from defective representation

justifies reversal only where the results were unreliable or the proceeding

was fundamentally unfair due to the performance of trial counsel. Carter,

72 Ohio St.3d at 558, citing Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).

      {¶14} Furthermore, courts ordinarily may not simply presume the

existence of prejudice but, instead, must require a defendant to affirmatively

establish prejudice. E.g., State v. Clark, 2003-Ohio-1707, ¶ 22 (4th Dist.);

see Billiter, at ¶ 57. Additionally, we have repeatedly recognized that

speculation is insufficient to establish the prejudice component of an

ineffective assistance of counsel claim. E.g., State v. Tabor, 2017-Ohio-

8656, ¶ 34 (4th Dist.); State v. Leonard, 2009-Ohio-6191, ¶ 68 (4th Dist.);

accord State v. Powell, 2012-Ohio-2577, ¶ 86 (a purely speculative

argument cannot serve as the basis for an ineffectiveness claim).

       {¶15} If there was no prejudice, then there is no need to review

whether the performance was deficient and vice versa. State v. Madrigal, 87
Scioto App. No. 25CA4120                                                       11


Ohio St.3d 378, 389 (2000). “There is no reason for a court deciding an

ineffective assistance claim * * * to address both components of the inquiry

if the defendant makes an insufficient showing on one.” Bradley, 42 Ohio

St.3d at 143, quoting Strickland, 466 U.S. at 697. “The object of an

ineffectiveness claim is not to grade counsel's performance. If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, which we expect will often be so, that course should be followed.”

Id.

                                     Legal Analysis

         {¶16} Appellant raises several issues under the first assignment of

error.

                             Issue One-Motion to Suppress

         {¶17} Appellant argues that his trial counsel should have filed a

motion to suppress challenging probable cause for the stop. Appellant

points to Trooper Lewis’s testimony that he stops a lot of rental vehicles,

pays special attention to rental cars, and decided to follow appellant because

his vehicle had Florida plates. Appellant points out that when Trooper

Lewis decided to follow him, he had not observed any traffic violations.

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

the Ohio Constitution, Article I, Section 14, prohibit unreasonable searches
Scioto App. No. 25CA4120                                                        12


and seizures.” State v. Duncan, 2025-Ohio-1504, ¶ 9 (4th Dist.), quoting

State v. Emerson, 2012-Ohio-5047, ¶ 15. The Supreme Court of Ohio has

held that these provisions provide the same protection in felony cases. State

v. Hawkins, 2019-Ohio-4210, ¶ 18 (4th Dist.). “This constitutional

guarantee is protected by the exclusionary rule, which mandates the

exclusion at trial of evidence obtained from an unreasonable search and

seizure.” State v. Petty, 2019-Ohio-4241, ¶ 11 (4th Dist.).

       {¶19} “ ‘[S]earches [and seizures] conducted outside the judicial

process, without prior approval by [a] judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject only to a few

specifically established and well-delineated exceptions.’ ” (Citations

omitted.). State v. Conley, 2019-Ohio-4172, ¶ 17 (4th Dist.), quoting Katz v.

United States, 389 U.S. 347, 357 (1967). “Once a defendant demonstrates

that he or she was subjected to a warrantless search or seizure, the burden

shifts to the state to establish that the warrantless search or seizure was

constitutionally permissible.” State v. Dorsey, 2019-Ohio-3478, ¶ 13 (4th

Dist.). In this case, Trooper Lewis acted without a warrant in initiating the

traffic stop at issue.

       {¶20} The record before us indicates that this case involved an

investigatory stop. Investigatory stops “must be supported by a reasonable,
Scioto App. No. 25CA4120                                                        13


articulable suspicion that the driver has, is, or is about to commit a crime,

including a minor traffic violation.” Petty at ¶ 12, citing State v. Hudson,

2018-Ohio-2717, ¶ 14 (4th Dist.), and State v. Fowler, 2018-Ohio-241, ¶ 16

(4th Dist.), in turn citing United States v. Williams, 525 Fed.Appx. 330, 332

(6th Cir. 2013) and Florida v. Royer, 460 U.S. 491, 501-507 (1983). In

Petty, supra, we explained as follows:

             “To justify a traffic stop based upon reasonable
      suspicion, the officer must be able to articulate specific
      facts that would warrant a person of reasonable caution to
      believe that the driver has committed, or is committing, a
      crime, including a minor traffic violation.” State v. Taylor,
      2016-Ohio-1231, ¶ 18 (4th Dist.). The existence of
      reasonable suspicion depends on whether an objectively
      reasonable police officer would believe that the driver's
      conduct constituted a traffic violation based on the totality
      of the circumstances known to the officer at the time of the
      stop. Id.

      {¶21} Additionally, a police officer may stop the driver of a vehicle

after observing even a de minimis violation of traffic laws. See State v.

Williams, 2014-Ohio-4897, ¶ 9 (4th Dist.), citing Whren v. United States,

517 U.S. 806 (1996), and Dayton v. Erickson, 76 Ohio St.3d 3 (1996),

syllabus. “[A] traffic stop with the proper standard of evidence is valid

regardless of the officer's underlying ulterior motives as the test is merely

whether the officer ‘could’ have performed the act complained of; pretext is

irrelevant if the action complained of was permissible.” See State v.
Scioto App. No. 25CA4120                                                          14


Koczwara, 2014-Ohio-1946, ¶ 22 (7th Dist.), citing Erickson at 7 and 11,

665 N.E.2d 1091.

Petty at ¶ 12-13.

      {¶22} Furthermore, “ ‘ “[t]he propriety of an investigative stop by a

police officer must be viewed in light of the totality of the surrounding

circumstances.” ’ ” State v. Strong, 2019-Ohio-2888, ¶ 19 (4th Dist.),

quoting State v. Eatmon, 2013-Ohio-4812, ¶ 13 (4th Dist.), in turn quoting

State v. Freeman, 64 Ohio St.2d 291, paragraph one of the syllabus (1980).

See Duncan, supra at ¶ 13. The totality of the circumstances approach

“ ‘allows officers to draw on their own experience and specialized training

to make inferences from and deductions about the cumulative information

available to them that “might well elude an untrained person.” ’ ” Strong at

¶ 19, quoting United States v. Arvizu, 534 U.S. 266, 273 (2002) (overruled in

part on separate grounds by Davis v. Washington, 547 U.S. 813 (2006), in

turn quoting U.S. v. Cortez, 449 U.S. 411, 418 (1981).

      {¶23} R.C. 4511.33(A)(1) governs rules for driving in marked lanes

and requires that all vehicles “be driven, as nearly as is practicable entirely

within a single lane or line of traffic and shall not be moved from such lane

or line until the driver has first ascertained that such movement can be made

with safety.” A marked lanes violation constitutes a de minimis violation of
Scioto App. No. 25CA4120                                                         15


traffic law and provides justification for an investigatory stop. See State v.

Alexander-Lindsey, 2016-Ohio-3033, ¶ 11 (4th Dist.).

       {¶24} Trooper Lewis’s stop of the rental vehicle was a marked lanes

violation. Appellant acknowledges that pretextual stops are permissible but

points out that an officer must observe an actual traffic violation. Appellant

argues that in this case, there is no evidence that a marked lanes violation

occurred. He claims because the stop was unlawful, the evidence found as a

result should have been suppressed. Appellant concludes that his counsel

was ineffective for failure to file a motion to suppress. For the reasons

which follow, we disagree.

      {¶25} At trial, Trooper Lewis testified he was working on Tuesday,

June 28, 2022 , at approximately 11:00 p.m. when he observed appellant’s

vehicle, a Dodge Ram truck with Florida license plates which appeared to be

a rental vehicle. Because it caught his attention, he began to follow it

southbound on U.S. 823. Trooper Lewis identified and authenticated State’s

Exhibit 1, video camera footage from his cruiser. Exhibit 1 contained three

files, a front camera, body camera, and rear camera which captured his stop

and investigation. The prosecutor played the footage for the jury. Trooper

Lewis testified that he activated his overhead lights, got behind appellant’s
Scioto App. No. 25CA4120                                                       16


vehicle, and observed the vehicle drifting over the fog line several times.

Specifically, he testified:

             So around Mile Post 14.4, which would be that
      slight righthand curve there in the roadway, he drifted over
      the white fog line there, and then as we came under the
      overpass for Fallen- - Lucasville…Fallen Timber, we - -
      he crossed over the white fog line on two separate
      occasions by a tire width on that- - which you can see that
      on the video, and I initiated a traffic stop for it…So, it’d
      be his right-side tires completely over the white fog line.


      {¶26} Appellant concedes that the footage from the front camera,

which captured the stop, clearly shows the rental vehicle touching the fog

line. However, appellant contends it is not at all clear if the vehicle ever

crossed completely over the fog line. The Supreme Court of Ohio has

recently explained that although driving on or touching the white fog line

does not constitute a marked lanes violation, the plain language of R.C.

4511.33(A)(1) “ ‘discourages or prohibits’ a driver from crossing it.” State

v. Turner, 2020-Ohio-6773, ¶ 37.

      {¶27} “ ‘Counsel's failure to file a motion to suppress is not per se

ineffective assistance of counsel.’ ” State v. Woodfork, at ¶ 79, quoting State

v. Thompkins, 2024-Ohio-4927, ¶ 66 (4th), citing State v. Walters, 2013-

Ohio-772, ¶ 20 (4th Dist.), in turn citing State v. Madrigal, 87 Ohio St.3d

378, 389 (2000). Rather, “ ‘the failure to file a motion to suppress amounts
Scioto App. No. 25CA4120                                                       17


to ineffective assistance of counsel only when the record demonstrates that

the motion would have been successful if made.’ ” Thompkins at ¶ 66,

quoting State v. Resendiz, 2009-Ohio-6177, ¶ 29 (12th Dist.). Further, “we

are to presume that trial counsel was effective if he could have reasonably

decided that filing a motion to suppress would be a futile act, even if there is

some evidence in the record to support a motion.” Walters at ¶ 20, citing

Resendiz at ¶ 29.

      {¶28} Based upon our review of the front camera footage, it appears

that appellant drove a tire-width across the fog line at least once, and it looks

like he drove on the fog line a substantial period while being observed.

Trooper Lewis, however, was the person observing appellant on the highway

that night. Trooper Lewis’s trial testimony was detailed and clear that

appellant drove over the fog line a tire-width at least twice. Undoubtedly,

this would have been Trooper Lewis’s testimony at a suppression hearing on

the matter.

      {¶29} At a suppression hearing, the trier of fact would be free to

discount or outright reject Trooper Lewis’s testimony, and it would have

been free to accept it. State v. Hammond, 2019-Ohio-4253, ¶ 56 (4th Dist.);

State v. Wooten, supra, at *4. Based upon our review, we find that the trial

court would most likely have concluded that under the totality of the
Scioto App. No. 25CA4120                                                      18


circumstances, there was probable cause to stop appellant’s vehicle. Thus,

had trial counsel chosen to file a suppression motion, it would most likely

have been an unsuccessful and futile act. Thus, appellant cannot

demonstrate deficient performance. In light of the foregoing, appellant’s

first argument is without merit.

                                Issue Two - Objections

      {¶30} Appellant argues that his counsel should have made several

objections to irrelevant and unfairly prejudicial evidence relating to the

troopers’ testimonies about the marijuana they found in the rental vehicle

and Trooper Lewis’s description of appellant’s clothing. Appellant argues

that none of this testimony was relevant because he was not charged with

trafficking or possession of marijuana. He contends that the marijuana and

clothing testimony was offered only to urge the jurors to assume that “ he is

a drug dealer.” He asserts that trial counsel’s failure to object to this

irrelevant and unfairly prejudicial evidence constituted ineffective assistance

of counsel. For the reasons which follow, we disagree.

                                    Legal Analysis

      {¶31} Both officers testified they smelled the odor of marijuana when

they approached appellant’s vehicle. Trooper Day testified that as soon as

he opened the driver’s door, he noticed the “strong odor of raw marijuana.”
Scioto App. No. 25CA4120                                                       19


Trooper Lewis also testified that that he discovered a package of Swisher

Sweets on the front passenger side. He opened the package and found

marijuana residue mixed in with the tobacco.

      {¶32} Trooper Day testified he could see “shake” lying all over the

floor of the vehicle. He explained that “shake” is “bits and pieces of

marijuana that fall when people are rolling marijuana into a cigar. Trooper

Lewis described appellant as wearing a shirt with a logo that read: “Purple

Hash” and had a marijuana leaf on each side.

      {¶33} We have observed that “trial counsel's ‘failure to make

objections is not alone enough to sustain a claim of ineffective assistance of

counsel.’ ” State v. Platt, 2024-Ohio-1330, at ¶ 93 (4th Dist.), quoting State

v. Conway, 2006-Ohio-2815, ¶ 103; accord State v. Sowell, 2016-Ohio-

8025, ¶ 144 (rejecting argument that failing to preserve error is inherently

prejudicial and stating, “[i]t is not enough that an alleged error resulted in a

disadvantage for an accused”). Instead, a defendant still must “show that

any particular failure to object substantially violated an[ ] essential duty

[and] was prejudicial.” State v. Fears, 86 Ohio St.3d 329, 347(1999);

accord State v. Holloway, 38 Ohio St.3d 239, 244 (1988).

      {¶34} Additionally, trial counsel's decision to object, or not to object,

may be a legitimate trial strategy or tactical decision for the reason that
Scioto App. No. 25CA4120                                                        20


“ ‘each potentially objectionable event could actually act to [the defendant]’s

detriment.’ ” State v. Johnson, 2006-Ohio-6404, ¶ 140, quoting Lundgren v.

Mitchell, 440 F.3d 754, 774 (C.A. 6, 2006). See Platt, at ¶ 94. Thus,

             “any single failure to object usually cannot be said
      to have been error unless the evidence sought is so
      prejudicial * * * that failure to object essentially defaults
      the case to the state. Otherwise, defense counsel must so
      consistently fail to use objections, despite numerous and
      clear reasons for doing so, that counsel's failure cannot
      reasonably have been said to have been part of a trial
      strategy or tactical choice.”

Johnson at ¶ 140, quoting Lundgren, 440 F.3d at 774; cf. United States v.

Cronic, 466 U.S. 648, 656 (1984). We are also mindful that objections of

counsel are subject to the trial court’s broad discretion in the admission or

exclusion of evidence. See State v. Dodridge, 2025-Ohio-2856, ¶ 44 (4th

Dist.) (Citations omitted).

      {¶35} In September 2016, medical marijuana was legalized in Ohio.

R.C. Chapter 3796. Possession and recreational use of marijuana by adults

at least 21 years of age became legal on December 7, 2023. R.C. Chapter

3780. In this appeal, appellant has not challenged the search of the rental car

which was based on the testimony that there was a strong odor of raw

marijuana. He has not asserted that the marijuana found was for medical

purposes.
Scioto App. No. 25CA4120                                                       21


      {¶36} In State v. Moore, 90 Ohio St. 3d 47, 49 (2000), the Supreme

Court of Ohio held that the smell of marijuana, alone, by a person qualified

to recognize the odor, is sufficient to establish probable cause to search a

motor vehicle, pursuant to the automobile exception to the warrant

requirement. See State v. Tomlin, 2024-Ohio-4710, at ¶ 24 (5th Dist.). See

also State v. Thompkins, 2024-Ohio-4927, at ¶ 69 (4th Dist.). While the

continued validity of Moore may be challenged in the future, Trooper Lewis

stopped appellant on June 28, 2022, over a year before the recreational-use

law became effective. See State v. Waters, 2025-Ohio-4479, at ¶20 (1st

Dist.). Thus, we see no reason why evidence of the marijuana found in the

rental vehicle appellant drove would have been excluded as evidence at his

trial, had trial counsel objected to this testimony.

      {¶37} In State v. Thompson, 2020-Ohio-5257 (8th Dist.), Thompson

challenged the admission of the marijuana seized during the stop under

Evid.R. 404(B) and R.C. 2945.59, which “preclude admission of other acts

evidence to prove a character trait in order to demonstrate conduct in

conformity with that trait.” State v. Williams, 2012-Ohio-5695, ¶ 16

(citations omitted). Pointing out that he was not charged with any

marijuana-related offenses, Thompson claimed that the state admitted the

raw marijuana solely to paint a portrait of him as a prolific drug dealer.
Scioto App. No. 25CA4120                                                        22


         {¶38} The appellate court observed that even if the admission of the

state's marijuana exhibits constituted error, it could only reverse the

conviction if the court found that the error was not harmless error. See

Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not

affect substantial rights shall be disregarded.”). In Thompson, defense

counsel stipulated to the admission of body camera footage, which showed

the police's recovery of raw marijuana from inside the vehicle. The court

wrote:

                The marijuana is clearly visible in the video and the
         officers speak with each other about finding it. The
         admission of the video (without any redactions or edits)
         ensured that the jury would learn that Mr. Thompson
         possessed marijuana at the time of the stop. Since the jury
         appreciated the presence of marijuana on the scene
         through properly-admitted evidence, we find that the
         admission of the raw marijuana, if erroneous, would
         constitute harmless error on this record. In other words, it
         did not tell the jury anything that it did not already know.


         {¶39} Similarly, defense counsel stipulated to admission of State’s

Exhibit 1, the traffic camera footage from Trooper Lewis’s cruiser. In the

video, the loose marijuana on the floor and the marijuana mixed in the

Swisher Sweets package is plainly visible. Furthermore, when appellant

exited the vehicle, his T-shirt with its logo of “Purple Hash” with a

marijuana leaf on each side is also plainly visible.
Scioto App. No. 25CA4120                                                         23


      {¶40} As in Thompson, the jury viewed the raw marijuana and

appellant’s clothing through properly-admitted video footage. Herein, even

if trial counsel had objected to the testimony, it is not likely the objection

would have been sustained. And, even if admission of the troopers’

testimonies was erroneous, we cannot find that the error would have

changed the outcome of appellant’s trial.

      {¶41} We view counsel’s decision not to object as a matter of trial

strategy. Accordingly, we do not find counsel’s performance was deficient.

This argument is also without merit.

                               Issue Three - Crim.R. 29

      {¶42} At the conclusion of trial, appellant’s attorney declined to make

a Crim.R. 29 motion, even though the trial court specifically inquired about

it. Appellant argues herein that there is no logical reason or trial strategy not

to make a Crim. R. 29 motion. For the reasons which follow, we disagree.

                      Standard of Review- Crim.R. 29 motions

      {¶43} Crim.R. 29(A) provides that “[t]he court on motion of a

defendant or on its own motion, after the evidence on either side is closed,

shall order the entry of a judgment of acquittal * * * if the evidence is

insufficient to sustain a conviction of such offense or offenses.” See also

State v. Cheatham, 2025-Ohio-2584, at ¶ 11 (4th Dist.). An appellate court
Scioto App. No. 25CA4120                                                        24


reviews the denial of a Crim.R. 29(A) motion under the same standard as

that used to review a sufficiency-of-the evidence claim. State v. Gonz, 2024-

Ohio-5885, ¶ 9 (4th Dist.); State v. Webb, 2023-Ohio-4050, ¶ 42 (4th Dist.);

State v. Tenace, 2006-Ohio-2417, ¶ 37. Whether the evidence presented at

trial is legally sufficient to sustain a verdict is a question of law. See Gonz,

at ¶ 10; State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Therefore,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.” Webb,

supra, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of

the syllabus, (superseded by constitutional amendment on other grounds as

stated in State v. Smith, 80 Ohio St.3d 89, 102 (1997), fn. 4, and following

Jackson v. Virginia, 443 U.S. 307 (1979)).

      {¶44} As will be discussed fully below, we find appellant’s

convictions are supported by sufficient evidence. Therefore, in our view,

had trial counsel made a Crim.R. 29 motion, it would not have been

successful. We are again mindful that defense counsel is not required to

perform a futile act. Based on the foregoing, we do not find appellant’s trial

counsel performed deficiently on this particular basis. Accordingly,

appellant’s argument hereunder is also without merit.
Scioto App. No. 25CA4120                                                          25


               Issue Four - Cross-examination and Closing Argument

      {¶45} At trial, defense counsel did not cross-examine Trooper Day or

Brianna Ray, the OSHP’s forensic analyst. Herein, appellant suggests that

Trooper Day could have been questioned as to his own forensic testing or

why the troopers apparently did not attempt to speak to appellant’s brother

who had allegedly had the rental car the day before. Appellant urges that

questioning of Trooper Day could have emphasized the lack of appellant’s

actual possession of the contraband and the fact that appellant did not

attempt to hide or tamper with the contraband and substances found during

the search appellant also argues that his counsel should have explored Ray’s

testing procedures on the various illicit substances. For the reasons which

follow, we disagree that counsel performed deficiently on these bases.

      {¶46} “Generally, ‘[t]he extent and scope of cross-examination

clearly fall within the ambit of trial strategy, and debatable trial tactics do

not establish ineffective assistance of counsel.’ ” State v. Guysinger, 2017-

Ohio-1167, ¶ 27, quoting State v. Leonard, 2004–Ohio–6235, ¶ 146.

Moreover, “ [a]n appellate court reviewing an ineffective assistance of

counsel claim must not scrutinize trial counsel's strategic decision to engage,

or not engage, in a particular line of questioning on cross-examination. ”
Scioto App. No. 25CA4120                                                         26


(Internal citations omitted.). See State v. Allah, 2015–Ohio–5060, ¶ 23 (4th

Dist.).

          {¶47} Based on our review, we conclude that trial counsel made

strategic choices. Appellant’s claim that cross-examination on the above

topics would have aided his case is mere speculation. See State v. Russell,

2009-Ohio-5145, at ¶ 27 (4th Dist.). His trial counsel may have concluded

that cross-examination on the above topics would have only reinforced the

amounts of the substances, emphasized appellant’s lack of surprise when the

contraband was discovered, and further damage appellant’s credibility.

          {¶48} Appellant also claims his trial attorney’s closing argument was

ineffective. First, he points out the defense closing argument was less than

two pages. Appellant next suggests that his attorney should have discussed

reasonable doubt more fully. Finally, appellant argues that his counsel

should have discussed the lack of physical evidence against him. Again, for

the reasons which follow, we disagree.

          {¶49} “[C]ounsel are afforded wide latitude during closing arguments.

The length of a closing argument ordinarily involves questions of discretion

and strategy.” State v. Billiter, at ¶ 67 (4th Dist.), quoting State v. Grate,

2020-Ohio-5584, ¶ 163; accord State v. White, 2024-Ohio-549, ¶ 65 (4th

Dist.), quoting Guysinger, at ¶ 34 (4th Dist.) (“Generally, ‘[c]ounsel's
Scioto App. No. 25CA4120                                                         27


decision on whether to give an opening statement or closing argument and

how to formulate and deliver them are tactical decisions.’ ”). The length of

a closing argument thus is a debatable trial tactic that generally does “ ‘not

constitute a deprivation of effective counsel.’ ” Grate at ¶ 163, quoting State

v. Lang, 2011-Ohio-4215, ¶ 192. Likewise, “ ‘[t]he substance of closing

argument falls within the realm of trial strategy.’ ” State v. White, 2024-

Ohio-549, ¶ 65 (4th Dist.), quoting State v. Cameron, 2009-Ohio-6479, ¶ 31

(10th Dist.); accord State v. Sharpless, 1998 WL 1759070, *9 (“[t]he

substance of closing argument is a trial strategy that may not be second-

guessed with hindsight”).

      {¶50} In Billiter, appellant argued similarly that trial counsel failed to

provide the effective assistance of counsel during closing argument as

follows:

             [C]ounsel's closing argument “was not effective
      and likely had little impact on the jury…” [T]rial counsel's
      closing argument spans “less than three pages of the
      transcript.” [S]he did not “discuss reasonable doubt, the
      importance of it, or how high of a burden it is for the State
      to overcome.”

      {¶51} In Billiter, we concluded that “appellant could overcome the

presumption that the length and substance of trial counsel's closing argument

was a matter of reasonable trial strategy, especially considering the strength

of the State's evidence.” Id. at ¶ 68. The same is true herein. The State of
Scioto App. No. 25CA4120                                                      28


Ohio’s circumstantial evidence of drug possession and trafficking was

substantial. In closing, defense counsel discussed reasonable doubt.

Defense counsel emphasized the fact that it was a rental vehicle appellant

traveled in and noted that appellant consistently denied possession of the

drugs and firearm. Counsel emphasized the rental agent’s testimony that

sometimes, after cars are dropped off, Enterprise employees find drugs in

them. Counsel reminded the jurors that they must find all elements of the

offenses beyond a reasonable doubt. As in Billiter, we view appellant’s

brief argument as a matter of reasonable trial strategy. Thus, this argument

is also without merit.

                           Issue Five - Preparation for Trial

      {¶52} Appellant contends that his trial counsel was not prepared for

his trial and failed to meet with him in the days leading up to trial.

Appellant cites to a discussion the first morning of trial. Defense counsel

made a motion to continue the trial indicating that appellant had new counsel

he wished to represent him. Appellant indicated that he thought the trial was

being continued due to a scheduling conflict. He then stated: “I’ve been

told one thing and it’s been another here in court.” Appellant indicated he

thought he would be having a suppression hearing, not at trial. He found out
Scioto App. No. 25CA4120                                                        29


the trial date was not continued. He also stated: “I don’t even know what

my defense is.”

      {¶53} In response, defense counsel explained the details of the

scheduling conflict and its resolution. The assistant prosecutor also advised

the court that appellant would have known about the trial date at his final

pretrial hearing. Appellant reiterated his displeasure and view of the

situation. Appellant also referenced plea negotiations as follows: “[Y]es, I

was told when they pulled the deal off the table, I- - I hadn’t even heard of

that deal before ten minutes before I came into court that day.” The trial

court then looked at his notes and advised appellant that the offer was

originally made at the end of November 2022. Appellant maintained that he

had not been informed.

      {¶54} “Absent any indication in the record * * * that counsel failed to

properly investigate the case and adequately prepare for trial and given the

presumption of competent representation, we cannot conclude that counsel's

performance fell below an objective standard of reasonableness.” State v.

Laws, 2021-Ohio-166, at ¶ 47 (3d Dist.); State v. Griffin, 3d Dist. Allen No.

1-03-31, 2004-Ohio-287, ¶ 17. “[A]claim of ineffective assistance of

counsel on direct appeal cannot be premised on decisions of trial counsel

that are not reflected in the record of proceedings[,] * * * [or] [s]peculation
Scioto App. No. 25CA4120                                                                                    30


regarding the prejudicial effects of counsel's performance * * *.” State v.

Fridley, 2019-Ohio-3412, at ¶ 32 (9th Dist.). State v. Leyland, 2008-Ohio-

777, ¶ 7 (9th Dist.). Upon review of the record herein, we simply do not

have anything except appellant’s unsubstantiated assertions that his trial

counsel failed to properly prepare his case for trial.2 Accordingly, this

argument is also without merit.

         {¶55} Based on the foregoing, appellant’s first assignment of error, in

its entirety, is hereby overruled.

                           Assignment of Error Two - Trial in Absentia

                                             Standard of Review

         {¶56} Under the second assignment of error, appellant contends that

the trial court erred when it proceeded with the jury trial despite his absence.

This argument implicates appellant’s federal and state due process rights.

To find that a defendant’s right to confrontation was violated, we must find

that the trial court abused its discretion in removing the defendant. See State

v. Dumas, 2015-Ohio-2683, at ¶ 19 (7th Dist.), citing Illinois v. Allen, 397

U.S. 337 at 343 (date).

                                                 Legal Analysis


2
  “ ‘ “We may not consider matters outside the record on a direct appeal. Instead, an appellant may raise
matters outside the record by filing a postconviction relief petition in the trial court.” ’ ” Cheatham, supra,
at ¶ 89, quoting State v. Spires, 2011-Ohio-3661, ¶ 30 (4th Dist.), in turn quoting State v. Hoke, 2011-Ohio-
1221 at ¶ 10 (4th Dist.).
Scioto App. No. 25CA4120                                                         31


      {¶57} Article I, Section 10 of the Ohio Constitution states, “ ‘[i]n any

trial, in any court, the party accused shall be allowed to appear and defend in

person and with counsel.’ ” State v. Blanton, 2018-Ohio-1278, at ¶ 100 (4th

Dist.), quoting State v. Lawwill, 2007-Ohio-2627, at ¶ 60 (8th Dist.). See

State v. Smith, 2021-Ohio- 2866, at ¶ 39 (4th Dist.). “ ‘A criminal defendant

has a federal and state fundamental due process right to be present at all

critical stages of his trial, absent a waiver of rights or other extraordinary

circumstances.’ ” Blanton, supra, quoting State v. Drummond, 2006-Ohio-

7078, at ¶ 93 (7th Dist.)(Internal citations omitted.). See also Crim.R.

43(A). “ ‘Crim.R. 43 provides a criminal defendant the right to be present at

every stage of the criminal proceedings and any modification of a

sentence.’ ” State v. Smith, 2015-Ohio-841, ¶ 12 (4th Dist.), quoting State v.

Patrick, 2013-Ohio-3821, ¶ 10 (4th Dist.); citing Crim.R. 43(A)(1); compare

State v. Glasser, 2012-Ohio-3265, ¶ 49 (4th Dist.), citing State v. Davis,

2008-Ohio-2, at ¶ 90.

       {¶58} However, a defendant's right to be present at trial is not

absolute. State v. White, 82 Ohio St.3d 16, 26 (1998). Crim.R. 43(A) also

provides that if a trial is commenced in the presence of the defendant, who

thereafter voluntarily absents himself, the trial may continue in defendant's

absence. See State v. Dennis, 2005-Ohio-1530, (10th Dist.); State v.
Scioto App. No. 25CA4120                                                                               32


Harrison, 88 Ohio App.3d 287, 290 (1st Dist.1993). Therefore, the right to

be present at trial may be waived by the defendant's own acts. State v.

Meade, 80 Ohio St.3d 419, 421 (1997). A defendant's presence is required

at trial unless he waives his right or extraordinary circumstances exist

requiring exclusion, such as his misconduct. See State v. Smith, 2021-Ohio-

2866, at ¶ 40 (4th Dist.); Dumas, supra; State v. Brown, 2004-Ohio-3368

(5th Dist.), citing State v. Williams, 6 Ohio St.3d 281, 286 (1983).3

The exclusion of a defendant should be considered in light of the whole

record. United States v. Gagnon, 470 U.S. 522, 526 (1985).

        {¶59 } Appellant failed to attend the second day of his trial. In Taylor

v. United States, 414 U.S. 17 (1973), the United States Supreme Court

discussed Fed. Rule Crim. Proc. 43 with respect to the consequences of the

defendant's voluntary absence from trial, as follows:

               [FRCP 43] reflects the long-standing rule
        recognized by this Court in Diaz v. United States, 223 U.S.
        442, 455 (1912):

                ‘(W)here the offense is not capital and the accused
        is not in custody, the prevailing rule has been, that if, after
        the trial has begun in his presence, he voluntarily absents
        himself, this does not nullify what has been done or
        prevent the completion of the trial, but, on the contrary,
        operates as a waiver of his right to be present and leaves

3
 For example, “Where a defendant's conduct in the courtroom is so disruptive that the hearing or trial
cannot reasonably be conducted with the defendant's continued physical presence, the hearing or trial may
proceed in the defendant's absence or by remote contemporaneous video.” Crim.R. 43(B); Smith, supra, at
¶ 40.
Scioto App. No. 25CA4120                                                       33


      the court free to proceed with the trial in like manner and
      with like effect as if he were present.’ (Citations omitted.)

      {¶60} Ohio case law also provides that after a trial has commenced in

the defendant's presence, a trial court may proceed without the defendant if

the absence is voluntary. State v. Murray, 2004-Ohio-654, at ¶ 12 (1st

Dist.); State v. Liston, 1999 WL, 778377, * 3 (11th Dist.). Whether or not a

defendant's absence is voluntary is an issue of fact. Id., quoting In re Ruth ,

1998 WL 552997, at *3 (11th Dist.); State v. Chancey, 2000 WL 193235, at

*4 (8th Dist.) This court is bound to accept a trial court's findings of fact if

they are supported by competent, credible evidence. State v. Dalton, 2003-

Ohio-3813, at ¶ 20. Unrebutted evidence that the defendant was aware of

his obligation to attend the court proceeding and did not appear is sufficient

to support a finding that the absence is voluntary. See Chancey, at *4.

      {¶61} When appellant failed to attend, the parties discussed the matter

out of the presence of the jury as follows:

             Mr. Stratton: Yes, Your Honor. Mr. Jackson
      contacted me about 7:00 a.m. this morning, indicating that
      he has car trouble. I informed the Court shortly after that,
      along with the Prosecutor, that my client was having a
      problem with - - car trouble. He indicated he is still in
      Michigan. The last communication I had with him was at
      8:15. I have sent him four additional text messages after
      that trying to get his location, and then asking him
      additional questions. I also tried to call him twice. I’ve
      left two voice messages, and I can attempt to call him to -
      - again on the record, if you so, please.
Scioto App. No. 25CA4120                                            34



             The Court: …We were here til a little bit after
      5:00 last night…. A little surprising he would decide to
      drive back to Michigan last night considering I - - I’d
      informed him that we needed to talk this morning and go
      over jury instructions at 8:30. I’m thinking it’s about a
      five-hour drive, maybe longer, depending on which side
      of Michigan he lives in…. Any reason why he decided to
      go back to Michigan? To be honest, Mr. Stratton, it looks
      like he wasn’t planning on coming back.

             Mr. Stratton: Your Honor, he said he would be
      back. I specifically asked him that yesterday. I said,
      “make sure you come back tomorrow.” He said, “I’ll be
      back. I’ll be here.” And his…reason for not being here
      earlier is because of car trouble. That’s why he’s saying -
      - he gave some indication of that.

             The Court: Well, I know I’d asked you to find out
      where he is at having car trouble so we could send local
      law enforcement by to check on his wellbeing, see if they
      could get the car started, and getting him headed this
      direction. If you have been able to find out from him
      exactly where he’s at?

             Mr. Stratton: Your Honor, I asked him “what is the
      address you’re at.?” I’ve asked him that twice. I’ve also
      asked - - left voice messages for that, asking him where
      he’s at, that “the Court needs to know.” Your Honor, my
      text messages have read receipts on them, and the last four
      messages, he has read, but has not responded.

             The Court: … So, anything else you’d like to say
      for the record, Mr. Stratton?

            Mr. Stratton: Your Honor, he could be out, you
      know, trying to get his car fixed. He was here all day
      yesterday. I have no other - - nothing else to say on it.
Scioto App. No. 25CA4120                                                       35


      {¶62} At this point, the prosecutor suggested that a jury instruction to

be given to the jury in defendant’s absence, indicating that the jury was not

to speculate on that in any way. The prosecutor also indicated that he had

done a Google map search and appellant’s home address in Westland,

Michigan appeared to nearly a five-hour drive. The trial court noted the

time was 9:40 a.m. and that he would give defense counsel a little more time

to attempt contact with appellant. The court noted if he could confirm the

excuse of car trouble, he would tell the jury to come back at 1:00 p.m. The

court took a short recess and returned at 10:00 a.m. The court inquired as to

whether defense counsel had heard from appellant. Defense counsel

indicated he had left four voice messages and was receiving no response to a

text message, although it indicated it was read. Defense counsel also

advised that he had called from the court’s number, his own, and an

unavailable number. The State requested to proceed in appellant’s absence.

      {¶63} At this point, the trial court noted that it was near the end of

trial and that the jury had been sworn and as such, the court would proceed

with trial in appellant’s absence. The court issued a warrant for appellant’s

arrest. Defense counsel moved for a mistrial, noting that appellant had given

a reason for his absence. The trial court denied the motion.
Scioto App. No. 25CA4120                                                                                   36


         {¶64} When the jury returned to the courtroom, the trial court gave

the following instruction:

                All right. Well, you’ve probably noticed that the
         Defendant is not present. As jurors, you must not
         speculate on why the Defendant is not present. This trial
         will continue without him being present. You must…also
         not consider the fact he is not present for any purpose.
         Your duties as jurors is constrained to determining the
         issues as raised in the indictment, and you may not
         consider the Defendant’s absence for any purpose. My
         question to the jurors and the alternative juror is can you
         follow this instruction? If so, I need you to nod your
         heads, yes. Okay. Anyone that feels they cannot follow
         my instruction? No one’s raised their hand. All right. The
         trial will continue with the defendant’s absence.

         {¶65} Based on our review, it appears that appellant’s absence was

completely voluntary.4 In this case, it also appears that the trial court gave

appellant every benefit of the doubt, giving defense counsel additional time

to try to secure appellant’s presence, offering to delay the start of trial if

appellant confirmed the reason for his absence, and crafting the special jury

instruction. We also find no reason to conclude that the jurors did not follow

the instruction.

         {¶66} Based on the foregoing, appellant’s second assignment of error

is also without merit and is hereby overruled.




4
 We also observe that at sentencing, appellant apologized to the court for his behavior in failing to attend
on the second day but made no effort to explain or verify the previously given reason of car trouble.
Scioto App. No. 25CA4120                                                       37


                    Assignment of Error Three - Allied Offenses

      {¶67} At sentencing, the trial court merged Counts One, R.C.

2925.03(A)(2), trafficking in a fentanyl-related compound, and Two, R.C.

2925.11(A), possession of a fentanyl-related compound. The court also

merged Counts Three, R.C., trafficking in a fentanyl-related compound, and

Four, R.C. 2925.11(A), possession of a fentanyl-related compound. The

counts each contained a firearm specification. Appellant argues that the trial

court erred by not also merging the trafficking Counts One and Three.

                                 Standard of Review

      {¶68} The Double Jeopardy Clause of the Fifth Amendment to the

United States Constitution provides that no person shall “be subject for the

same offence to be twice put in jeopardy of life or limb.” See State v .

Hughes, 2021-Ohio-3127, at ¶ 17 (4th Dist.). This protection applies to

Ohio citizens through the Fourteenth Amendment and is additionally

guaranteed by Article I, Section 10 of the Ohio Constitution. This

constitutional protection prohibits multiple punishments in a single trial for

the same conduct in the absence of a clear indication of contrary legislative

intent. Missouri v. Hunter, 459 U.S. 359, 366 (1983); State v. Fannon,

2018-Ohio-5242, ¶ 129 (4th Dist.).
Scioto App. No. 25CA4120                                                     38


       {¶69} The General Assembly enacted R.C. 2941.25 to identify when a

court may impose multiple punishments:

       (A)Where the same conduct by defendant can be
       construed to constitute two or more allied offenses of
       similar import, the indictment or information may contain
       counts for all such offenses, but the defendant may be
       convicted of only one.

       (B) Where the defendant's conduct constitutes two or more
       offenses of dissimilar import, or where his conduct results
       in two or more offenses of the same or similar kind
       committed separately or with a separate animus as to each,
       the indictment or information may contain counts for all
       such offenses, and the defendant may be convicted of all
       of them.

       {¶70} Although the trial court's duty to merge allied counts at

sentencing is mandatory, State v. Underwood, 2010-Ohio-1, ¶ 26, a

defendant bears the burden to establish that he is entitled to the R.C. 2941.25

protection. State v. Washington, 2013-Ohio-4982, ¶ 18. An appellate court

reviews a trial court's determination de novo as to whether offenses

constitute allied offenses of similar import that require R.C. 2941.25 merger.

State v. Williams, 2012-Ohio-5699, ¶ 28; State v. Cole, 2014-Ohio-2967, ¶ 7

(4th Dist.).

                                   Legal Analysis

       {¶71} In State v. Ruff, 2015-Ohio-995, the Supreme Court of Ohio

discussed the proper analysis to determine whether two offenses merge
Scioto App. No. 25CA4120                                                      39


under R.C. 2941.25. “In determining whether offenses are allied offenses of

similar import within the meaning of R.C. 2941.25, courts must evaluate

three separate factors - the conduct, the animus, and the import.” Id. at

paragraph one of the syllabus. “Under R.C. 2941.25(B), a defendant whose

conduct supports multiple offenses may be convicted of all the offenses if

any one of the following is true: (1) the conduct constitutes offenses of

dissimilar import, (2) the conduct shows that the offenses were committed

separately, or (3) the conduct shows that the offenses were committed with

separate animus.” Id. at paragraph three of the syllabus. “Two or more

offenses of dissimilar import exist within the meaning of R.C. 2941.25(B)

when the defendant's conduct constitutes offenses involving separate victims

or if the harm that results from each offense is separate or identifiable.” Id.

at paragraph two of the syllabus.

      {¶72} Appellant argues that the fentanyl found in Count One was

located in an energy drink can and the fentanyl found in Count Three was

located in a backpack. Appellant submits that these are offenses of similar

import because the substances were located at the same time and place.

Appellant argues that Ohio’s drugs trafficking and possession laws are

aimed at preventing harm to single victim - society in general. See generally
Scioto App. No. 25CA4120                                                       40


State v. Bontrager, 2022-Ohio-1367, ¶ 16 (4th Dist.). Therefore, any harm

is not separate and identifiable.

      {¶73} In response to appellant’s arguments, the State asserts that the

fentanyl relating to Counts One and Three constituted offenses with separate

animus and are offenses of dissimilar import. At sentencing, the prosecutor

argued that the fentanyl relating to Count One was discovered in a Venom

energy drink can that was concealed in a false compartment. The fentanyl in

Count One was part of a 72.3-gram mixture of fentanyl, tramadol, and

cocaine. By contrast, the fentanyl relating to Count Three was found in a

storage compartment behind the driver’s seat. This fentanyl was in an

amount of 10.13 grams and was solely fentanyl.

      {¶74} On appeal, the State also points to the digital scales, sandwich

baggies, and loaded firearm also located in the vehicle. The State contends

that these items, along with the drugs of different weights and found in

separate compartments, all reflect indicia of trafficking and intent to sell

these items separately. The State urges us to conclude that Counts One and

Three resulted in separate animus and are offenses of similar disport.

      {¶75} We note that at sentencing, appellant had a new attorney, who

raised the issue of merger but did not formally object when the trial court

declined to merge Counts One and Three. Therefore, the argument is
Scioto App. No. 25CA4120                                                                                   41


waived except for plain error. See State v. Hughes, 2025-Ohio-894, at ¶ 21

(4th Dist.), citing State v. Rogers, 2015-Ohio-2459, ¶ 28 (“the failure to

raise the allied offense issue at the time of sentencing forfeits all but plain

error”). Under the plain-error doctrine, intervention by a reviewing court is

warranted only under exceptional circumstances to prevent injustice. See

Hughes, at ¶ 22.5

         {¶76} Appellant’s argument is similar to an argument posited in State

v. Jones, 2024-Ohio-2959 (3d Dist.). On appeal, Jones argued that the trial

court erred by failing to merge his aggravated-possession-of-drugs

convictions under Counts Three and Four in his case because “[t]he relevant

drug-related statutes do not clearly indicate that the General Assembly

intended to punish crystal-form and pill-form methamphetamine doubly.”

Id. at ¶ 50.

         {¶77} The Jones court began by observing that “[t]he term ‘animus’

means “ ‘purpose or, more properly, immediate motive.” ’ ” Id., at ¶ 49

(citations omitted), quoting State v. Logan, 60 Ohio St.2d 126, 131 (1979).



5
  See also State v. Long, 53 Ohio St.2d 91(1978), paragraph three of the syllabus (“Notice of plain error ...
is to be taken with the utmost caution, under exceptional circumstances and only to prevent a miscarriage
of justice”). Thus, to prevail under the plain-error doctrine, appellant must establish that “an error
occurred, that the error was obvious, and that there is ‘a reasonable probability that the error resulted in
prejudice,’ meaning that the error affected the outcome of the trial.” (Emphasis added in Rogers.) State v.
McAlpin, 2022-Ohio-1567, ¶ 66, quoting Rogers at ¶ 22; see also State v. Wilks, 2018-Ohio-1562, ¶ 52,
State v. Bailey, 2022-Ohio-4407, ¶ 8.
Scioto App. No. 25CA4120                                                      42


“ ‘Like all mental states, animus is often difficult to prove directly, but must

be inferred from the surrounding circumstances.’ ” State v. Ramey, 2015-

Ohio-5389, at ¶ 71 (2d Dist.), quoting Logan at 131. “ ‘Thus, the manner in

which a defendant engages in a course of conduct may indicate distinct

purposes.’ ” Ramey, supra quoting State v. Whipple, 2012-Ohio-2938, ¶ 38

(1st Dist.). “ ‘Courts should consider what facts appear in the record that

“distinguish the circumstances or draw a line of distinction that enables a

trier of fact to reasonably conclude separate and distinct crimes were

committed.” ’ ” Ramey quoting Whipple at ¶ 38, in turn quoting State v.

Glenn, 2012-Ohio-1530, ¶ 9 (8th Dist.).

      {¶78} The Jones court also observed at ¶ 55 that it is well established

that “ ‘the legislature intended the possession of the different drug groups to

constitute different offenses.’ ” State v. Polachek, 2010-Ohio-5421, ¶ 27,

quoting State v. Delfino, 22 Ohio St.3d 270, 273 (1986). However, Jones

was found guilty of committing two separate counts of possessing the same

substance in different forms. In support of his argument that his convictions

were allied offenses of similar import under R.C. 2941.25, Jones contended

that the “record contain[ed] no evidence that Mr. Jones possessed crystal-

form methamphetamine for some purpose distinct from his possession of

pill-form methamphetamine.” Id. at ¶ 56. The State disputed Jones's
Scioto App. No. 25CA4120                                                       43


argument, noting that “[t]he drugs were in different forms, in different

locations, and one was found in a backpack which would indicate

portability” for purposes of sale. Id.

      {¶79} The Jones court agreed with the State, finding that based on the

specific facts and circumstances of the case, the trial court did not err by

failing to merge Jones's aggravated-possession-of-drugs convictions.

“[E]ven though the methamphetamine was discovered on the same day in

Jones's residence (albeit in different forms), we conclude that Jones

committed the offenses separately and with a separate animus or

motivation.” Id. at ¶ 58. The Jones court pointed to its own prior decision

that the simultaneous possession of a single drug in different forms is not

dispositive of an allied-offense analysis. See State v. Kamara, 2019-Ohio-

5385, ¶ 47 (3d Dist.), (concluding that “although powder cocaine and crack

cocaine are two different forms of cocaine, that fact is not dispositive”).

Jones also noted that “[u]nder Ohio law, the fact that drugs may have been

recovered on the same date is not dispositive of the allied offense issue.” Id.

at ¶ 60; Gomez at ¶ 24.

      {¶80} The Jones court held:

             In this case, the record reveals that law enforcement
      recovered differing quantities of the pill-form
      methamphetamine and crystal-form methamphetamine in
      different locations of Jones's residence….Specifically,
Scioto App. No. 25CA4120                                              44


      after searching Jones’ residence… law enforcement
      recovered 5.11 grams of methamphetamine in crystal form
      and 12.8 grams of methamphetamine in pill form….The
      crystal-form methamphetamine was discovered in close
      proximity to digital scales with white residue along with
      creatine powder, which is “used to * * * cut drugs for
      sale…” Separately, law enforcement recovered the pill-
      form methamphetamine from a backpack that also
      contained a large amount marijuana. The backpack
      containing the drugs was found hidden in a pile of
      clothing, which was situated next to the door of Jones's
      residence. Also hidden in the pile of clothing was a
      firearm.

             Based on these facts, we conclude that Jones
      possessed the pill-form methamphetamine and crystal-
      form methamphetamine separately and with a separate
      animus or motivation. See State v. Delgadillo-Banuelos,
      2019-Ohio-4174, ¶ 20 (10th Dist.), (concluding that
      “where the facts presented indicate law enforcement's
      recovery on the same date of differing quantities of the
      same type of illicit substance at different locations, R.C.
      2941.25 permits a conviction and sentence for each of the
      offenses”). Critically, the record reveals that law
      enforcement discovered two distinctly different stashes of
      methamphetamine in this case. See id. at ¶ 18, quoting
      Gomez at ¶ 20, fn. 1 (identifying “federal courts [that]
      ‘have held that convictions for multiple counts of
      possession on the same date involving distinct stashes of
      drugs do not raise multiplicity or double jeopardy issues’
      ”). Moreover, the record reveals that pill-form
      methamphetamine and crystal-form methamphetamine
      were not only in different forms but they were also
      packaged separately…. Consequently, we conclude that
      Jones “possessed the drugs separately, and with a separate
      animus or motivation.” State v. Wolfe, 2022-Ohio-117, ¶
      36 (5th Dist.). (Citation omitted.) Thus, the trial court did
      not err by failing to merge Jones's aggravated-possession-
      of-drugs convictions.
Scioto App. No. 25CA4120                                                      45


Jones, at ¶ ¶ 62-63.

      {¶81} At appellant’s sentencing, the trial court concluded that under

the specific facts of the case - “the packaging of those items, the location in

different locations of the vehicle and…the contraband found in the vicinity,

in particular a hidden compartment suggests that these offenses were

committed with a separate animus.” Based on the case law as discussed

above, we agree with the trial court’s determination. Thus, we do not find

that the trial court committed plain error by failing to merge Counts One and

Three. Accordingly, the third assignment of error is without merit and is

hereby overruled.

                 Assignment of Error Four - Consecutive Sentence

      {¶82} Due to the consecutive nature of the sentences, the court

imposed a minimum prison term of 25 years and six months, with 18 years

being mandatory, to an indefinite maximum prison term of up to 31 years.

Appellant concedes that the trial court made the appropriate findings on the

record. However, Appellant argues that consecutive sentences are not

supported by the record. Specifically, appellant contends that the sentences

were not necessary to protect the public from future crime; not necessary to

punish him; were disproportionate; and were not based upon a history of

criminal conduct.
Scioto App. No. 25CA4120                                                      46


                  Standard of Review - Felony Sentencing

      {¶83} When reviewing felony sentences, appellate courts apply the

standard set forth in R.C. 2953.08(G)(2). State v. Hill, 2025-Ohio-798, ¶ 30

(4th Dist.); State v. Spencer, 2024 Ohio-59, ¶ 13 (4th Dist.). R.C.

2953.08(G)(2)(a) provides that “[t]he appellate court's standard for review is

not whether the sentencing court abused its discretion.” Instead, the statute

authorizes appellate courts to “increase, reduce, or otherwise modify a

sentence” “if it clearly and convincingly finds either of the following”:

             (a) That the record does not support the sentencing
                 court's findings under division (B) or (D) of
                 section 2929.13, division (B)(2)(e) or (C)(4) of
                 section 2929.14, or division (I) of section
                 2929.20 of the Revised Code, whichever, if any,
                 is relevant;

             (b) That the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2).

                           Legal Analysis

       {¶84} The Supreme Court of Ohio has recognized that R.C.

2953.08(G)(2) means that appellate courts ordinarily, “ ‘defer to trial courts’

broad discretion in making sentencing decisions.’ ” State v. Collins, 2024-

Ohio-2891, ¶ 22 (4th Dist.), quoting State v. Gwynne, 2023-Ohio-3851, ¶ 11.

(Citations omitted.) As recently stated by the Supreme Court of Ohio in

State v. Glover, 2024-Ohio-5195, ¶ 39:
Scioto App. No. 25CA4120                                                     47


             That makes sense: the trial judge presided over the
      trial and heard the witnesses testify, the defendant made
      his allocution to the sentencing judge directly, and the trial
      judge will often have heard directly from the victims at
      sentencing. Thus, an appellate court's role is not to be a
      “second-tier sentencing court.”

Hill, supra, at ¶ 31; State v. Jones, 2020-Ohio-6729, ¶ 41-42.

      {¶85} In State v. Hammons, 2024-Ohio-6128, the Sixth District court

provided a thorough discussion of the Supreme Court's decision in Glover,

supra. “The Ohio Supreme Court has made it clear that ‘an appellate court

may not reverse or modify a trial court's sentence based on its subjective

disagreement with the trial court.’ ” Hammons, supra, at ¶ 22, quoting

Glover, 2024-Ohio-5195, ¶ 45. The Glover court noted that “[t]he court of

appeals may have disagreed with the trial court's assessment [of the

magnitude of the harm inflicted by Glover] but this disagreement with the

trial court's assessment is far different from concluding that the record

clearly and convincingly does not support the trial court's consecutive-

sentence findings.” Id. at ¶ 55.

      {¶86} Thus, R.C. 2953.08(G)(2) provides that an appellate court may

increase, reduce, or otherwise modify consecutive sentences only if the

record does not “clearly and convincingly” support the trial court's R.C.

2929.14(C)(4) consecutive-sentence findings. The clear-and-convincing

standard for appellate review in R.C. 2953.08(G)(2) is written in the
Scioto App. No. 25CA4120                                                        48


negative. Collins, ¶ 22; Gwynne, 2023-Ohio-3851, at ¶ 13. Moreover,

“clear and convincing evidence” is “that measure or degree of proof which is

more than a mere ‘preponderance of the evidence,’ but not to the extent of

such certainty as is required ‘beyond a reasonable doubt’ in criminal cases,

and which will produce in the mind of the trier of facts a firm belief or

conviction as to the facts sought to be established.” Cross v. Ledford, 161

Ohio St. 469 (1954), paragraph three of the syllabus.

      {¶87} In general, a statutory presumption exists in favor of concurrent

sentences pursuant to R.C. 2929.41(A) and R.C. 2929.14(C)(4) governs the

imposition of consecutive terms of imprisonment. Collins, ¶ 23; Glover,

supra, at ¶ 38. To justify the imposition of consecutive terms of

imprisonment, “a trial court must make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its

sentencing entry, but the court has no obligation to state reasons to support

its findings.” State v. Blair, 2019-Ohio-2768 ¶ 52 (4th Dist.), citing State v.

Bonnell, 2014-Ohio-3177, syllabus. This Court explained the findings

required to support the imposition of consecutive sentences:

             “Under the tripartite procedure set forth in R.C.
      2929.14(C)(4), prior to imposing consecutive sentences a
      trial court must find that: (1) consecutive sentences are
      necessary to protect the public from future crime or to
      punish the offender; (2) consecutive sentences are not
      disproportionate to the seriousness of the offender's
Scioto App. No. 25CA4120                                                     49


      conduct and to the danger the offender poses to the public;
      and (3) that one of three circumstances specified in the
      statute applies.”

Hill, supra, ¶ 36, quoting State v. Cottrill, 2020-Ohio-7033, ¶ 14 (4th Dist.).

      {¶88} Further, as we outlined in Cottrill, and more recently in Collins,

the three circumstances are:

            “(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.”

Cottrill at ¶ 14, and Collins, ¶ 24, quoting R.C. 2929.14(C)(4)(a)-(c).

      {¶89} The record must support any findings that the applicable

statutory sentencing provisions require and made by the sentencing court,

such as those contained in R.C. 2929.14(C)(4)(c). Collins, ¶ 25; State v.

Drummond, 2024-Ohio-81, ¶ 11 (4th Dist.). Further, in Drummond we

observed that the plain language of R.C. 2953.08(G)(2) requires an appellate
Scioto App. No. 25CA4120                                                          50


court to defer to a trial court's consecutive-sentence findings, and to uphold

the trial court's findings unless those findings are clearly and convincingly

not supported by the record. Drummond at ¶ 12. In State v. Bonnell, 2014-

Ohio-3177, the Supreme Court of Ohio held, “In order to impose

consecutive terms of imprisonment, a trial court is required to make the

findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into its sentencing entry[.]” Id. at ¶ 37.

      {¶90} As is well-established, the trial court is not required to use

“talismanic words,” but it must be clear from the record that it actually made

the findings required by statute. State v. Bonnell, 2014-Ohio-3177, syllabus,

at ¶ 37; State v. Venes at ¶ 14. The Supreme Court of Ohio further explained

that the word “finding” in this context means that the trial court “must note

that it engaged in the analysis” and that it “considered the statutory criteria

and specifie[d] which of the given bases warrants its decision.” Bonnell at ¶

26. As long as the reviewing court can discern that the trial court engaged in

the correct analysis and can determine that the record contains evidence to

support the findings, consecutive sentences should be upheld. Id. at ¶ 29.

      {¶91} In this case, the sentencing transcript and entry reflect that the

trial court engaged in the correct analysis. The record contains evidence to

support the findings that appellant’s consecutive sentences are necessary to
Scioto App. No. 25CA4120                                                    51


protect the public from future crime, necessary to punish him, were

proportionate, and were based on his history of criminal conduct.

      {¶92} At sentencing, appellant’s counsel pointed out that appellant, a

Michigan resident, was 34-years old with six children. While he had two

prior felonies, counsel indicated appellant had never actually served a prison

term. Counsel also informed that appellant’s mother died in 2022 and

consequently he became involved with drugs.

      {¶93} Appellant argues herein that consecutive sentences were not

necessary to protect the public from future crime. Appellant points out that

if the sentences were ordered to be served concurrently, he would still have a

mandatory prison sentence of 11-16 ½ years, keeping him incarcerated until

his 40’s. Appellant also argues the mandatory sentence of 11-16 ½ years is

sufficient punishment for his conduct. Appellant also argues that his

criminal history does not warrant consecutive sentences to protect the public

from future crime.

      {¶94} The prosecutor pointed out and the record reflects that

appellant had two prior felony convictions, one for drugs and one for

robbery. The prosecutor also pointed out that appellant had various bond

violations throughout the pretrial proceedings and failed to attend the second

day of trial. A firearm was confiscated from the vehicle appellant drove,
Scioto App. No. 25CA4120                                                      52


along with the illegal substances. This court has previously observed that

“ ‘the possession, use, and distribution of illegal drugs “represent one of the

greatest problems affecting the health and welfare of our population.” ’ ”

State v. Wyke, 2025-Ohio-4990, at ¶ 51 (4th Dist.), quoting State v. Gipson,

2022-Ohio-2069, at ¶ 53, (6th Dist.), quoting Treasury Emps. v. Von Raab,

489 U.S. 656, 668 (1989). In Wyke, we also observed “Alcohol, drugs and

guns are a deadly combination. * * * A staggering percentage of the

shooting accidents that occur every year involve alcohol or drugs.”

Remington Arms Company, Ten Commandments of Firearm Safety,

available at https://www.remington.com/support/safety-center/ten-

commandments-firearm-safety (accessed Sept. 25, 2020)

[https://perma.cc/NCD7-TDWB]. See Wyke, supra.

      {¶95} Appellant also argues that his sentence is disproportionate to

the seriousness of his conduct and the danger he poses to the public and is

actually harsher than a prison sentence one would serve for committing a

homicide. In State v. Alexander, 2024-Ohio-2565, ¶ 112 (7th Dist.), the

court held that “[a] defendant alleging disproportionality in felony

sentencing has the burden of producing evidence to ‘indicate that his

sentence is directly disproportionate to sentence given to other offenders

with similar records who have committed these offenses.’ ” State v.
Scioto App. No. 25CA4120                                                      53


Williams, 2015-Ohio-4100, ¶ 52 (7th Dist.), citing State v. Wilson, 2013-

Ohio-3915, ¶ 16 (8th Dist.). See also State v. Hill, 2025-Ohio-798, at ¶ 44

(4th Dist.). Thus, not only must a defendant demonstrate a disproportionate

sentence, but he must also provide evidence of a similarly situated

defendant, including consideration of all prior criminal records.

      {¶96} Furthermore, proportionality review should focus on individual

sentences, rather than on the cumulative impact of multiple sentences

imposed consecutively. See Hill, supra, at 45, citing State v. Taylor, 2024-

Ohio-238 (5th Dist.) (citations omitted), at ¶ 20. “Where none of the

individual sentences imposed on an offender are grossly disproportionate to

their respective offenses, an aggregate prison term resulting from

consecutive imposition of those sentences does not constitute cruel and

unusual punishment.” Id. As a general rule, a sentence falling within the

terms of a valid statute cannot amount to a cruel and unusual punishment.

Id. at ¶ 21. Moreover, the Glover court also noted that, “[n]owhere does the

appellate-review statute direct an appellate court to consider the defendant's

aggregate sentence.” Id. at ¶ 43; See also, State v. Scott, 2024-Ohio-5849, ¶

108 (6th Dist.)

      {¶97} Herein, appellant has not argued the disproportionality of his

individual sentences. Each of the individual sentences was within the
Scioto App. No. 25CA4120                                                       54


statutory range. To support a proportionality argument, appellant should

have presented evidence to indicate that his sentence is “directly

disproportionate to sentences given other offenders with similar records”

who have committed the same offenses. As appellant did not, he has failed

to present the type of evidence, in support of his proportionality argument,

as required by Ohio law.

      {¶98} Based on the foregoing, appellant’s consecutive sentence is

clearly and convincingly supported by the record and is not otherwise

contrary to law. Accordingly, appellant’s fourth assignment of error is

without merit and is hereby overruled.

              Assignment of Error Five - Sufficiency/Manifest
                                 Weight

                              Standard of Review

      {¶99} When reviewing whether the evidence is sufficient to sustain a

conviction, the focus is on the adequacy of the evidence. See State v.

Maynard, 2025-Ohio-4943, at ¶ 43 (4th Dist.); State v. Sims, 2023-Ohio-

1179, ¶ 115 (4th Dist.). Thus, “[t]he standard of review is whether, after

viewing the probative evidence and inferences reasonably drawn therefrom

in the light most favorable to the prosecution, any rational trier of fact could

have found all the essential elements of the offense beyond a reasonable

doubt.” Id.
Scioto App. No. 25CA4120                                                       55


      {¶100} In determining whether a criminal conviction is against the

manifest weight of the evidence, an appellate court reviews the entire record,

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. See Maynard, at ¶ 24, citing

State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), citing State v. Martin, 20

Ohio App.3d 172, 175 (1st Dist. 1983). “Judgments supported by some

competent, credible evidence going to all the essential elements of the case

will not be reversed by a reviewing court as being against the manifest

weight of the evidence.” C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d

279 (1978), syllabus.

      {¶101} The weight and credibility of evidence are to be determined

by the trier of fact. See Maynard, at ¶ 25, citing State v. Kirkland, 2014-

Ohio-1966, ¶ 132. The trier of fact “is free to believe all, part or none of the

testimony of any witness,” and we “defer to the trier of fact on these

evidentiary weight and credibility issues because it is in the best position to

gauge the witnesses’ demeanor, gestures, and voice inflections, and to use

these observations to weigh their credibility.” State v. Dillard, 2014-Ohio-

4974, ¶ 28 (4th Dist.), citing State v. West, 2014-Ohio-1941, ¶ 23 (4th Dist.).
Scioto App. No. 25CA4120                                                      56


      {¶102} “In addition, ‘[a] verdict is not against the manifest weight of

the evidence because the finder of fact chose to believe the State's

witnesses.’ ” Maynard, supra, at ¶ 26, quoting State v. Chancey, 2015-

Ohio-5585, ¶ 36 (4th Dist.) (Citations omitted.). Moreover, “ ‘[w]hile the

jury may take note of inconsistencies and resolve or discount them

accordingly, * * * such inconsistences [sic] do not render defendant's

conviction against the manifest weight or sufficiency of the evidence.’ ”

State v. Corson, 2015-Ohio-5332, ¶ 31 (4th Dist.), quoting State v. Proby,

2015-Ohio-3364, ¶ 42 (10th Dist.), citing State v. Gullick, 2014-Ohio-1642,

¶ 10 (10th Dist.).

      {¶103} A finding that a conviction is supported by the manifest

weight of the evidence is “also dispositive of the issue of sufficiency.” Sims,

2023-Ohio-1179, ¶ 120 (4th Dist.), citing State v. Waller, 2018-Ohio-2014,

¶ 30 (4th Dist.). See Maynard, at ¶ 27.

                                   Legal Analysis

      {¶104} The trial court merged appellant’s possession convictions with

the trafficking convictions, and the State elected that appellant be sentenced

on the trafficking counts. So, here we are concerned with the trafficking

convictions. Even so, a trafficking conviction must consider the offender's

possession of the drugs “because to sustain an R.C. 2925.03(A)(2)
Scioto App. No. 25CA4120                                                          57


trafficking conviction as principal offender, the state must also prove that the

defendant had control over, i.e., possessed, the illegal substance.” Maynard,

supra, at ¶ 28, quoting State v. Foster, 2023-Ohio-746, at ¶ 22 (4th Dist.),

citing State v. Cabrales, 2008-Ohio-1625, ¶ 40, quoting R.C. 2925.01(K) (in

order to ship, transport, deliver, distribute, etc., “the offender must ‘hav[e]

control over’ ” the illegal substance); see also State v. Jones, 2011-Ohio-

1108, ¶ 11 (4th Dist.).

      {¶105} R.C. 2925.03(A)(2) provides, in pertinent part, “(A) [n]o

person shall knowingly do any of the following * * * (2) [p]repare 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 resale by the offender or

another person.”

      {¶106} “Possession” is generally defined as “having control over a

thing or substance but may not be inferred solely from mere access to the

thing or substance through ownership or occupation of the premises upon

which the thing or substance is found.” R.C. 2925.01(K); State v. Bennett,

2024-Ohio-4557, ¶ 35, (4th Dist.); Maynard, at ¶ 30. “Possession may be

actual or constructive.” Bennett at ¶ 35 citing State v. Gavin, 2015-Ohio-
Scioto App. No. 25CA4120                                                      58


2996, ¶ 35, (4th Dist.), quoting State v. Moon, 2009-Ohio-4830, ¶ 19, (4th

Dist.). “Actual possession exists when circumstances indicate that an

individual has or had an item within his immediate physical possession[.]”

Id. citing State v. Kingsland, 2008-Ohio-4148, ¶ 13 (4th Dist.). Constructive

possession, on the other hand, “exists when an individual knowingly

exercises dominion and control over an object, even though that object may

not be within his immediate physical possession.” Id. citing Gavin at ¶ 35.

       {¶107} In addition, R.C. 2901.22(B) provides:

             A person acts knowingly, regardless of purpose,
      when the person is aware that the person's conduct will
      probably cause a certain result or will probably be of a
      certain nature. A person has knowledge of circumstances
      when the person is aware that such circumstances
      probably exist. When knowledge of the existence of a
      particular fact is an element of an offense, such knowledge
      is established if a person subjectively believes that there is
      a high probability of its existence and fails to make inquiry
      or acts with a conscious purpose to avoid learning the fact.

See Maynard, at ¶ 31; State v. Crumpton, 2024-Ohio-5064, ¶ 28 (4th Dist.).

                                   Legal Analysis

      {¶108} Appellant does not specifically argue lack of proof of specific

elements, except for “possession.” Appellant’s sufficiency and “manifest

weight” arguments are set forth, generally, follows:

            None of the drugs were found in the actual
      possession of Mr. Jackson. All the contraband was found
      in another backpack, and there was no testimony offered
Scioto App. No. 25CA4120                                                     59


      that any of the belongings of Mr. Jackson or identification
      of him were found inside the bag or backpack. An iPad
      was found inside one of the bags, but no evidence was
      offered that the iPad belonged to Mr. Jackson. There was
      some testimony that his brother had been driving the car
      the day before. No testimony was presented that any sort
      of DNA testing or fingerprint testing was found on the
      drugs or firearm. When asked about the contraband, Mr.
      Jackson denied any knowledge. The evidence was not
      sufficient to warrant convictions for drug trafficking, drug
      possession, weapons offenses, or possession of criminal
      tools.


      {¶109} Appellant was convicted of 12 counts which included

trafficking and possession of a fentanyl-related compound, trafficking and

possession of cocaine, having a weapon while under disability, improper

handling of a firearm and criminal tools. Counts One through Eight

included firearm specifications. These counts have been set forth fully

above at Paragraph Four.

      {¶110} Appellant denies actual or constructive possession of the

drugs found in the rental vehicle he was driving. However, the jury

obviously found circumstantial evidence that appellant possessed the drugs.

The State may prove its case through circumstantial evidence.

      It is well-established * * * that “a defendant may be
      convicted solely on the basis of circumstantial evidence.”
      State v. Nicely, 39 Ohio St.3d 147, 151 (1988).
      “Circumstantial evidence and direct evidence inherently
      possess the same probating value.” Jenks, paragraph one
      of the syllabus. “Circumstantial evidence is defined as
Scioto App. No. 25CA4120                                                                                  60


         ‘[t]estimony not based on actual personal knowledge or
         observation of the facts in controversy, but of other facts
         from which deductions are drawn, showing indirectly the
         facts sought to be proved. * * * ’ ” Nicely, 39 Ohio St.3d
         at 150, quoting Black's Law Dictionary (5 Ed.1979) 221.
         See State v. Sheets, 2025-Ohio- at ¶ 20 (4th Dist.); State v.
         Wickersham, 2015-Ohio-2756, ¶ 39 (4th Dist.); see also
         State v. Barnes, 2020-Ohio-3943, ¶ 23-24( 4th Dist.).

         {¶111} At appellant’s trial, the jury heard testimony from four State’s

witnesses. The trial court also admitted 27 State’s exhibits.6 In this appeal,

appellant has not challenged the qualifications of the expert witness, the

qualification and experience of the troopers, the findings on the report, or the

chain of custody of the various items of physical evidence.

         {¶112} Both Trooper Lewis and Trooper Day testified as to their

background, years of experience, and years of training with the OSHP and

specifically with drug interdiction. Both troopers testified that there was a

hard hat and safety vest (“props”) on the front passenger seat, yet they found

no other evidence substantiating appellant’s claim that he worked




6
  These exhibits included Exhibit 1, the video camera footage; Exhibit 13, a photograph of a child’s
backpack in which the .45-caliber Highpoint handgun was located, and a photograph of the Mason jar with
pills, cocaine, and fentanyl; various photographs of the rental vehicle, interior and exterior, hard hat, and
safety vest; various photographs of the marijuana residue, digital scales, sandwich baggies, Venom drink
can, handgun; Enterprise rental documents; property control forms showing chain of custody for the
firearm and drugs seized; and Exhibit 24, Brianna Ray’s written report of the drug testing. Exhibit 19
consisted of the actual drugs sent for testing. 19-A was the fentanyl-cocaine mixture; 19-B contained ten
10-milligram oxycodone pills; 19-C contained 90 ten-milligram oxycodone pills; 19-D contained 14 grams
of cocaine; and 19-E consisted of 10 grams of fentanyl.
Scioto App. No. 25CA4120                                                     61


construction. Both troopers also explained the significance of appellant’s

use of a rental vehicle.

      {¶113} Both troopers identified appellant in the courtroom. Trooper

Lewis testified that appellant denied knowledge of the marijuana residue, the

other substances, and the firearms. However, both troopers testified that

appellant did not express an emotional reaction or surprise about the items or

about being arrested. The jury heard the following additional testimony.

                                Trooper Lewis

      {¶114} Trooper Lewis’s testimony regarding probable cause for the

traffic stop has been set forth fully above. Trooper Lewis also testified:

             [He says he’s going down to West Virginia, two
      different jobsites, staying until Saturday, but he didn’t
      know the name of the place. He kept calling it Pike, Pike
      something, but he couldn’t me exactly where he was
      headed to….He says foreman on a construction crew. He
      had two different locations that he was headed to, but he
      couldn’t give me the name of one of them.

      {¶115} Based on the odor of marijuana, Trooper Lewis testified he

decided to search the rental car. Appellant explained that “his lady” had

rented the vehicle. Trooper Lewis testified that the vehicle was rented to

Nikki Hall for a month. Trooper Lewis testified, “I asked him at one point

how long he had the truck, told me a week.” Then, because of the odor of

marijuana, he told appellant he was going to pat him down. Trooper Lewis
Scioto App. No. 25CA4120                                                       62


testified: “So, he basically went from he had it for a week, and then once I

told him I could smell marijuana he denied smoking any marijuana but said

his girlfriend’s brother, who had the vehicle the day before.”

      {¶116} Dispatch advised Trooper Lewis that appellant resided in

Westland, Michigan, near Detroit, and that he had a suspended driver’s

license. Trooper Lewis identified State’s Exhibits 5 and 6, which showed

the Swisher Sweets package and marijuana residue. He found a digital

scale, typically used for weighing drug amounts, under the center console.

He also identified State’s Exhibits 7 and 8, respectively photographs of the

center console with scale and a closer shot of the scale with residue.

      {¶117} Trooper Lewis testified that he flipped up the back seat and

found a black duffle bag containing clothing and a Venom energy drink can

with a false lid. When Trooper Lewis opened the top lid of the Venom can,

he found a compressed powder, which ended up being approximately 72

grams of a fentanyl-cocaine mixture.

      {¶118} Trooper Lewis testified that Trooper Day found a child’s

backpack from the storage compartment on the floor, which contained a .45

caliber Highpoint handgun. Trooper Day handed him a Mason jar which

contained a white powder, 14 grams of cocaine, 10 grams of fentanyl, and

100 10 milligram oxycodone pills. Trooper Lewis also pulled clothes and
Scioto App. No. 25CA4120                                                         63


sandwich baggies out of the backpack. He explained that sandwich baggies

are used for packaging dope to be resold. Trooper Lewis later testified that

the drugs seized were valued at approximately $12,000 in cash.

      {¶119} On cross-examination, Trooper Lewis testified he did not see

the driver when appellant’s truck passed and admitted that appellant did not

appear to be avoiding him. He denied he decided to follow appellant

because of the Florida tags. Trooper Lewis denied following close to cause

appellant to be nervous and hopefully commit a traffic violation. Trooper

Lewis admitted he did not know what CBD oil smells like and he has not

had training about it.

                              Trooper Ryan Day

      {¶120} Trooper Day testified he was sitting with Trooper Lewis on

U.S. Route 23 at Milepost 12 in separate vehicles. He eventually assisted

Lewis with the stop of the black Dodge 1500 appellant drove. Trooper Day

testified as soon as he opened the driver’s door, he noticed the strong odor of

raw marijuana.

      {¶121} Trooper Day identified State’s Exhibit 2, the hard hat and

reflective vest from appellant’s truck. He also identified the digital scales.

Trooper Day identified State’s Exhibit 14, the Highpoint .45 caliber

semiautomatic handgun he recovered from the backpack. Trooper Day also
Scioto App. No. 25CA4120                                                     64


found a sweatshirt and wrapped inside it was a Mason jar with pills and

powder. Trooper Day testified the firearm was later determined to be

operable.

                                    Brianna Ray

      {¶122} Briana Ray testified she was employed as a Criminalist at the

OSHP Crime Lab. The court qualified Ray as an expert in drug chemistry.

Ray identified State’s Exhibit 24, her written report. Upon her

testing, she identified Tramadol, Cocaine, and Fentanyl. She was able to

identify the presence of the compounds, but not any quantitative amounts.

She testified Tramadol is a Schedule IV drug. Cocaine and Fentanyl are

Schedule II substances. She explained her testing procedures. Her results

were consistent. She identified all tablets as Oxycodone.

                                   Robert Iddings

      {¶123} Mr. Iddings testified he is a Group Risk Manager Enterprise

Rent-Acar, Alamo, and National (EAN Holdings). He oversees the state of

West Virginia and locations in Ohio, Kentucky, and Maryland. He is

familiar with the policies and procedures of Enterprise Rental Car and its

record-keeping system.

       {¶124} Mr. Iddings testified that every vehicle is cleaned and

sanitized, inside and outside, so that it will appear brand new for each
Scioto App. No. 25CA4120                                                       65


customer. Their procedures became even more stringent after Covid. The

vehicle’s condition and safety are checked each time a vehicle is returned.

      {¶125} When a vehicle is returned, it is checked to make sure nothing

belonging to the renter is left behind. At times, people leave items like

cameras, cell phones, cell phone chargers, sunglasses, and toys. In his

experience, no one has ever left a “vast amount of drugs” or large amounts

of cash.

      {¶126} Mr. Iddings identified State’s Exhibits 25 and 26,

respectively Enterprise rental agreements with Walter Jackson and Nikki

Hall. The addresses on both rental agreements were the same. State’s

Exhibit 27 was described as a renter search history. This record was

consistent with State’s Exhibits 25 and 26, showing rentals for the relevant

time period and excessive charges incurred.

      {¶127} On cross-examination, Mr. Iddings admitted that guns and

drugs such as small bags of marijuana have been found. He explained that

people rent cars for vacation, work-related matters, or if they need a

replacement vehicle due to damage. On redirect, Mr. Iddings admitted that

people can rent cars to transport drugs.

      {¶128} Based on the foregoing, we find appellant’s convictions are

supported by sufficient circumstantial evidence and are not against the
Scioto App. No. 25CA4120                                                     66


manifest weight of the evidence. Any rational trier of fact could have found

all elements of the offenses proven beyond a reasonable doubt. And, the

jury’s verdict was not a manifest miscarriage of justice. Accordingly,

appellant’s fifth assignment of error is without merit. It is hereby overruled.

                                     Conclusion

      {¶129}Based on the foregoing, we find none of appellant’s

assignments of error have merit. Accordingly, all assignments of error are

overruled, and the judgment of the trial court is affirmed.


                                 JUDGMENT AFFIRMED.
Scioto App. No. 25CA4120                                                       67


                            JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and appellant to
pay costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.

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

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

Abele, J. and Wilkin, J. concur in Judgment and Opinion.

                                 For the Court,
                                 ________________________
                                 Jason P. Smith
                                 Presiding Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 22, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.