[Cite as State v. Prater,
2024-Ohio-5367.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 23CA1178
v. :
JERICHO PRATER, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for appellant1.
Aaron E. Haslam, Adams County Prosecuting Attorney, West Union,
Ohio, for appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:11-4-24
ABELE, J.
{¶1} This is an appeal from an Adams County Common Pleas Court
judgment of conviction and sentence. Jericho Prater, defendant
below and appellant herein, assigns three errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.
PRATER BY IMPROPERLY DENYING HIS MOTION TO
SUPPRESS.”
1
Different counsel represented appellant during the trial
court proceedings.
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SECOND ASSIGNMENT OF ERROR:
“MR. PRATER’S CONVICTION WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE AND IS CONTRARY TO THE
MANIFEST WEIGHT OF THE EVIDENCE.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.
PRATER BY ALLOWING THE STATE OF OHIO TO IMPEACH
HIM WITH A PRIOR CONVICTION [THAT] WAS NOT AN
IMPEACHABLE OFFENSE.”
{¶2} In May 2022, an Adams County Grand Jury returned an
indictment that charged appellant with one count of aggravated
possession of drugs in violation of R.C. 2925.11(A), a second-
degree felony, with a finding that “the amount of drugs was apx.
18.88 grams total.2” Appellant entered a not guilty plea.
{¶3} Subsequently, appellant filed (1) a motion to suppress
evidence uncovered during a traffic stop, and (2) a motion in
limine to prohibit the introduction of evidence obtained from the
warrantless search of a separate, closed, and locked container
found in appellant’s vehicle. At the suppression hearing, Adams
County Sheriff’s Detective Sam Purdin testified that on August 26,
2
The trial court later granted the state’s motion to amend the
indictment to find that “the amount of drugs found was
approximately 23.67 grams.”
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2021, at around 4:00 p.m., he received a phone call from Laura
Dryden from a business in West Union. Dryden told Purdin that
appellant attempted to sell methamphetamine to her and to obtain
hypodermic needles from her. In addition, a Peebles police officer
(Nicholas) advised Purdin that he “had received complaints that
[appellant] was driving around on a suspended license in a red
Dodge pickup truck … and selling drugs.” Throughout his
career, Purdin had several dealings with appellant, “usually drug
related.”
{¶4} Detective Purdin verified appellant’s suspended license
with dispatch prior to his contact with appellant at a gas station.
When appellant exited his vehicle and began to pump gas, Purdin
advised appellant that he knew appellant did not possess a valid
license, but nevertheless allowed him to continue to pump gas.
Appellant informed Purdin that “he had used methamphetamine earlier
that morning … and knew his license was under suspension.”
When Purdin inquired whether appellant’s vehicle contained drugs,
appellant told Purdin he did not have drugs in the vehicle and said
that Purdin “was welcome to look in the vehicle.” Purdin
acknowledged that, at the time he searched appellant’s vehicle, he
ADAMS, 23CA1178
4
did not arrest appellant, but “[h]e wasn’t free to leave.” Purdin
also allowed appellant to eat his McDonald’s lunch while he talked
to him and searched his truck.
{¶5} The State played Detective Purdin’s body camera footage
for the court. In the video, Purdin asked appellant, “did you have
a problem if I checked your vehicle?” Appellant replied,
“[inaudible] I mean you are more than welcome to look in it. I
mean it’s.” After a discussion about appellant’s recent location,
Purdin asked, “so, you got anything on?” Appellant replied, “No, I
mean, I swear I went over there to get needles.” Appellant
explained that the needles were for a friend. When asked if he
still used heroin, appellant replied, “no.” When asked if he still
used methamphetamine, appellant replied, “Yeah.”
{¶6} Detective Purdin explained to Adams County Sheriff’s
Detective Brian Newland that appellant said they could check his
vehicle. Purdin asked appellant, “how much you got? A couple
balls?” Appellant replied, “I wasn’t going to sell it. I mean, so
you thought I was selling it?” Purdin then gives appellant his
sandwich and asks, “You got anything in your pockets man? …
When is the last time you used?” Appellant replied, “this
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morning.”
{¶7} Initially, Detective Purdin found a hypodermic needle in
the center console of appellant’s truck. Purdin then said to
Detective Newland, “One thing I checked that center console, but I
didn’t check under it. That’s kind of a weird spot for that, you
might have something. I don’t know what that’s about. . . Up under
here, under the dash.” Purdin eventually located a black, locked
cylindrical container under the dashboard on the driver’s side of
the vehicle. The body camera footage shows at 19:20 that Purdin
retrieved the black cylinder and said, “What’s up with this? Ever
seen that? Give me your key.” Appellant replied, “ain’t got a key
for it. Don’t have a key for it. You’ll have to get a warrant for
it. . . search warrant. I don’t know what to tell ya.” Purdin
instructed Detective Newland, “Check his other pocket.” Appellant
said, “You can’t just take it without a warrant. I do know the
law.” Newland handcuffed appellant as Purdin replied, “Well, you
admitted to using. You got a needle.” Appellant replied, “You
still got to get a search warrant.” Purdin stated, “Key’s in your
pocket.” Appellant replied, “That don’t matter.” Appellant
stated, “I’ll tell you there’s dope in it. I can’t tell you how
ADAMS, 23CA1178
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much.” When asked “what kind of dope is it,” appellant replied,
“It’s meth,” to which Purdin replied, “Well, let me read you your
rights.”
{¶8} Detective Purdin testified that he “had noticed earlier
that [appellant] had a … key on him that … reminded me of *
… like a pop machine key.” Appellant “told me I needed to get a
search warrant. I believe that’s what he told me.” However,
Detective Newland “retrieved that key from Mr. Prater and . . .
opened up the lockbox.” At that point, appellant “stated there was
drugs in it. Um, it was at that moment or near that I read him his
Miranda rights and then inquired more of him, and uh, stated it was
methamphetamine, and that was for his personal use.” Purdin stated
he found “three baggies of crystalized substance,” and “pieces of a
pill or something.”
{¶9} The body camera footage showed that after Detective
Purdin advised appellant of his Miranda rights, Purdin stated,
“That’s a lot of dope Jericho. What’s up with these? Is this
heroin in here? I don’t want to overdose.” Appellant replied,
“No. Well, it’s Xanax.” When Purdin asked again, “What’s this?,”
appellant replied, “That’s meth. . . methamphetamine, it’s all
ADAMS, 23CA1178
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methamphetamine.” After the encounter, Purdin allowed appellant to
call his sister to come get him and drive the truck away.
{¶10} On cross-examination, Detective Purdin acknowledged that
he or Detective Newland reached into appellant’s pocket to obtain
the key that Purdin recalled seeing earlier when he checked
appellant’s pockets for contraband. Purdin also acknowledged that
a family member drove the vehicle and appellant from the scene.
{¶11} The State argued that two exceptions to the warrant
requirement permitted the warrantless vehicle search. First, the
state argued that probable cause existed for the officer to believe
the truck contained evidence relevant to a crime and exigent
circumstances existed because (1) the officer observed appellant
operate his truck without a valid license, and (2) appellant
admitted he used methamphetamine earlier that day. Second, the
state argued that appellant consented to the search of his truck,
including consent to search the container found within the truck.
At the hearing, although counsel conceded that appellant consented
to the vehicle search, appellant challenged the removal of the key
from appellant’s pocket and the opening of the locked container
after appellant withdrew his consent. After hearing the evidence,
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the trial court overruled appellant’s motion to suppress evidence
without analysis.
{¶12} At the jury trial, Detective Purdin testified that on
August 26, 2021, he observed appellant operate a vehicle while
under a license suspension. Purdin confirmed the suspension with
dispatch and, when he approached appellant at a gas station,
appellant acknowledged his license suspension. Purdin asked
appellant for his registration and asked if “anything in the
vehicle . . . shouldn’t be in there.” Appellant stated, “there
wasn’t. At one point he . . . gave me permission to search the
vehicle.” At that time, Detective Newland arrived to assist, and
they searched appellant’s vehicle. They located a hypodermic
needle in the front console and found a lock box under the driver’s
side dashboard. When asked whether appellant told them the
contents of the box, Purdin stated, “I believe he told me it was
drugs.”
{¶13} On cross-examination, Detective Purdin acknowledged that
he checked appellant’s license about 30 minutes before he observed
him and acknowledged that Detective Newland removed the key from
appellant’s pants without appellant’s permission. Purdin testified
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that the lab reports state that Exhibit 11 weighed 11.770 grams and
Exhibit 12 weighed 18.885 grams.
{¶14} Ohio Bureau of Criminal Investigation (BCI) Forensic
Scientist Stanton Weasler testified that BCI did not complete the
initial testing when they received the sample. Because of a
backlog of drug cases, the Attorney General’s Office outsourced
some cases to other labs, including Hamilton County. After Brian
Scouting with Hamilton County performed the initial testing under a
contract with BCI, BCI’s evidence transport technicians transported
the evidence from Hamilton County to BCI. Under the outsourcing
policy, evidence will be “retested” if testimony is necessary.
Therefore, Weasler testified about both the Hamilton County test
results and the BCI test results. Weasler noted that, although
both labs identified the substance as methamphetamine, Hamilton
County’s test resulted in a lower weight because the Hamilton
County lab stops “testing as soon as they get to the relevant . . .
penalty threshold . . . So out of three bags of . . . crystalline
substance, Mr. Scott only weighed . . . and analyzed two of them,
and I weighed and analyzed all three.” Thus, that is the reason
Hamilton County’s weight reflects 18.885 grams while BCI’s reflects
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23 grams, both exceeding the bulk amount.
{¶15} At the close of the State’s case, the trial court denied
appellant’s Crim.R. 29 motion for judgment of acquittal.
{¶16} Appellant testified that on August 26, 2021, he drove to
Portsmouth because his “kids’ mom had went to treatment the day
before.” After appellant took cigarettes to her, he visited a
McDonald’s restaurant near Peebles, then stopped at a gas station.
While appellant pumped gas, Detective Purdin “pulled in behind me.”
{¶17} Appellant stated that he interacted with Detective Purdin
in the past, primarily regarding license suspensions. Appellant
also stated, “whether I’ve had a license or not, there’s never been
one time that he’s never searched me. Every time he has ever had
any contact with me, I’ve been searched. Whether I give him
permission or not, that’s the reason I gave him permission to
search, because he was going to regardless.” Appellant explained,
“I gave him permission at the beginning to search my vehicle. Uh,
when he found the container, uh, I told him to get a warrant.”
Appellant noted that his pants pocket held the key to the container
and he did not voluntarily hand it to officers, nor give permission
to officers to retrieve it from his pocket.
ADAMS, 23CA1178
11
{¶18} On cross-examination, appellant admitted that he (1)
owned the vehicle he drove on August 26, 2021, (2) drove with a
suspended driver’s license, (3) gave permission to search the
vehicle, (4) owned the black cylinder found in the vehicle, (5)
owned part of the methamphetamine in the cylinder, (6) possessed
the drugs for personal use, (7) used methamphetamine earlier that
morning, (8) possessed the key to unlock the cylinder, and (9)
withdrew his consent or permission to search after officers found
the cylinder. Appellant also disputed the weight of the
methamphetamine, and argued that two of the three bags belonged to
his girlfriend. Appellant further admitted, over objection, that
in 2018 he entered a guilty plea and had been convicted of fifth-
degree felony aggravated drug possession. At this juncture the
defense rested and the trial court overruled appellant’s renewed
Crim.R. 29 motion for judgment of acquittal.
{¶19} After the State’s closing argument, the trial court sua
sponte raised the issue that Exhibit 10 (appellant’s 2018
aggravated drug possession guilty plea) should not have been
admitted into evidence. The trial court overruled counsel’s
mistrial motion, stated that Exhibit 10 would not be admitted into
ADAMS, 23CA1178
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evidence, and instructed the jury:
So, ladies and gentlemen of the jury, there was an inquiry,
uh, when the defendant was on the witness stand in regard
to a prior offense. Uh, the court, uh, has addressed this
matter with the counsel and I instructed the jury and you
can determine if you can follow this instruction, that as
a juror in your deliberations, you would not be permitted.
You would not be permitted to consider for any reason the
testimony in regard to the prior conviction. And you must
purge that as if never heard. You must only make your
decision and your verdict based upon the relevant evidence
that you determine as the trier of fact as relates to this
allegation, you must disregard any prior allegation or
suggestion of conviction. I wanna give you a moment to
think about that.
Is there any juror that does not understand the court’s
instruction? You must strike from all consideration and
neither think about nor discuss any testimony or suggestion
of evidence and State’s Exhibit ‘10' would not be admitted
into evidence. Is there any juror that cannot follow that
instruction? And if so, we would ask that you indicate by
raising your hand. No such indication.
{¶20} After the trial court instructed the jury to “strike from
all consideration” Exhibit 10 and related testimony, it appears
that the packet of exhibits considered during the jury’s
deliberations inadvertently included Exhibit 10.
{¶21} After deliberation, the jury (1) found appellant guilty
of aggravated possession of drugs in violation of R.C. 2925.11(A),
and (2) found that the amount of methamphetamine equaled or
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exceeded five times the bulk amount, but less than fifty times the
bulk amount.
{¶22} After the trial court considered the pertinent sentencing
statutes and factors, the court sentenced appellant to (1) serve a
5-year minimum up to 7 ½ - year maximum prison term, (2) serve a
mandatory 18-month to 3-year post-release control term, (3) pay a
mandatory $2,500 fine with the minimum mandatory $7,500 fine waived
due to future indigency per mandatory incarceration, and (4) pay
costs. This appeal followed.
I.
{¶23} In his first assignment of error, appellant asserts that
the trial court erred when it did not suppress the evidence
obtained during the search of his vehicle. In particular,
appellant argues that he did not consent to the search, that
Detective Purdin did not have probable cause for the warrantless
search, and the search was invalid under other warrant exceptions.
{¶24} Appellee, however, contends that Detective Purdin
possessed a reasonable suspicion for the vehicle stop and possessed
probable cause for the warrantless search of appellant’s vehicle
ADAMS, 23CA1178
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and the hidden container under the dashboard. Appellee further
argues that appellant voluntarily consented to the search and
revoked consent after Purdin lawfully seized the container.
{¶25} Generally, “appellate review of a motion to suppress
presents a mixed question of law and fact.” State v. Codeluppi,
2014-Ohio-1574, ¶ 7, citing State v. Burnside,
2003-Ohio-5372, ¶ 8;
State v. Bennett,
2021-Ohio-937, ¶ 9 (4th Dist.). The trial court
is best positioned to evaluate witness credibility at a suppression
hearing. State v. Dunlap,
73 Ohio St.3d 308, 314 (1995), State v.
Flanders,
2007-Ohio-503, ¶ 11 (4th Dist.). Therefore, we must
uphold the trial court's findings of fact if competent, credible
evidence in the record supports them.
Dunlap, supra. However, we
conduct a de novo review of the trial court's application of the
law to the facts. State v. Roberts,
2006-Ohio-3665, ¶ 100,
Burnside at ¶ 8, State v. Anderson,
100 Ohio App.3d 688, 691, (4th
Dist. 1995).
{¶26} The Fourth Amendment to the United States Constitution
ensures “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.” The search of the vehicle and the cylinder found therein
ADAMS, 23CA1178
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occurred without a warrant, and warrantless searches are per se
unreasonable unless the search falls under one of the “ ‘jealously
and carefully drawn’ ” exceptions to the warrant requirement.
Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971), quoting Jones
v. United States,
357 U.S. 493, 499 (1958). Thus, when a defendant
challenges a warrantless search, the State carries the burden to
show, by at least a preponderance of the evidence, that the search
and/or seizure fits within one of the defined exceptions to the
warrant requirement. See Xenia v. Wallace,
37 Ohio St.3d 216, 218
(1988), citing State v. Kessler,
53 Ohio St.2d 204, 207 (1978);
State v. Banks-Harvey,
2018-Ohio-201, ¶ 18, citing Athens v. Wolf,
38 Ohio St.2d 237, 241 (1974).
A. Consent
{¶27} We begin with the search of appellant’s vehicle.
Appellant first challenges the voluntariness of his initial consent
under the totality of the circumstances. Appellant argues that
officers ordered him out of his vehicle, questioned him several
times about drugs in the vehicle, and questioned him about why he
lied about from where he traveled. Further, appellant submits that
ADAMS, 23CA1178
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Detective Purdin acknowledged that appellant could not leave prior
to the search. Moreover, appellant contends that Purdin unlawfully
extended the stop beyond the initial stop for driving under
suspension, noting that after a brief conversation about
appellant’s driver’s license, Purdin immediately asked if the car
contained anything that “shouldn’t be there.” Finally, appellant
claims that even if he consented to the vehicle search, he revoked
that consent prior to officers finding the suspected contraband.
{¶28} Police officers do not need a warrant, probable cause, or
even a reasonable, articulable suspicion to search when a suspect
voluntarily consents to a search. See Schneckloth v. Bustamonte
(1973), 412 U.S. 218, 219; State v. Comen (1990),
50 Ohio St.3d
206, 211. Consent to a search is “a decision by a citizen not to
assert Fourth Amendment rights.” Katz, Ohio Arrest, Search and
Seizure (2004 Ed.), 341, Section 17:1. The United States Supreme
Court has acknowledged the importance of consent searches in police
investigations and stated that “a valid consent may be the only
means of obtaining important and reliable evidence” to apprehend a
criminal.
Schneckloth, supra, 412 U.S. at 227–228. Moreover, the
Supreme Court has reaffirmed the principle that “[p]olice officers
ADAMS, 23CA1178
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act in full accord with the law when they ask citizens for consent”
in United States v. Drayton, 536 U.S. 194, 207 (2002). Here,
however, appellant contends (1) any consent he gave for the search
of his vehicle was involuntary, and (2) that if he did consent, he
limited or withdrew that consent prior to the discovery of the
methamphetamine in the locked cylinder.
{¶29} To establish the consent exception to the probable cause
and warrant requirements of the federal and Ohio constitutions, the
State has the burden to establish by “clear and positive” evidence
that “consent was, in fact, freely and voluntarily given.” Bumper
v. North Carolina, 391 U.S. 543 (1968); State v. Posey,
40 Ohio
St.3d 420, 427 (1988). Therefore, whether consent to search is
voluntary or the product of duress or coercion is ordinarily a
question of fact to be determined from the totality of the
circumstances. Schneckloth,
412 U.S. at 219, 248-249. The
standard for measuring the scope of a suspect's consent under the
Fourth Amendment is that of “objective” reasonableness- what would
the typical reasonable person have understood by the exchange
between the officer and the suspect?” Florida v. Jimeno,
500 U.S.
248, 251 (1991), citing Illinois v. Rodriguez,
497 U.S. 177, 183-
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189 (1990).
{¶30} Further, Schneckloth sets forth seven factors for a court
to consider when it determines whether consent is voluntary
including: (1) the suspect’s custodial status and the length of the
initial detention; (2) whether the suspect gave consent in public
or at a police station; (3) the presence of threats, promises, or
coercive police procedures; (4) the suspect’s words and conduct;
(5) the extent and level of the suspect’s cooperation with police;
(6) the suspect’s awareness of his right to refuse to consent and
his status as a “newcomer to the law”; and (7) the suspect’s
education and intelligence. Id. at 248-249.
{¶31} In the case sub judice, we cannot conclude that the trial
court erred when it found that appellant initially consented to the
search of his vehicle. Law enforcement officers detained appellant
in a nonviolent manner in a public setting, only briefly detained
appellant before officers requested consent to search, and did not
engage in threats, promises, or coercive procedures. Furthermore,
appellant appeared to be cooperative with police, did not appear to
be a newcomer to the law, appeared to be aware of his right to
refuse to consent, and appellant’s education and intelligence have
ADAMS, 23CA1178
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not been questioned. It appears, however, that appellant later
withdrew his consent with regard to the locked container search.
Appellant contends that when officers found the locked container,
“it was not immediately apparent what was inside.” Appellant notes
that it could have contained money, jewelry, prescription
medication, important documents, etc. Appellant argues that once
he revoked consent, officers should have ended the search rather
than to take the key from appellant’s person and open the
container. Appellee contends, however, that appellant voluntarily
consented to the search and offered his purported revocation of
consent only after officers lawfully seized the container.
{¶32} In general, an individual may limit the scope of consent
to search and even may choose to revoke that consent entirely.
See, e.g., United States v. Drayton, 536 U.S. 194, 207; Painter v.
Robertson,
185 F.3d 557, 567 (6th Cir. 1999);
Jimeno, supra,500
U.S. at 252; State v. Riggins,
2004-Ohio-4247, ¶ 26 (1st Dist.).
The prevailing rule among Ohio courts is that consent to a search
may be limited in time, duration, area, and intensity or may
revoked at any time, even after the search has begun. See Lakewood
v. Smith,
1 Ohio St.2d 128, 130 (1965); State v. Crawford, 2003-
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Ohio-902, (2nd Dist.); State v. Mack, 118 Ohio App.3d 516, 519 (6th
Dist. 1997); State v. Rojas,
92 Ohio App.3d 336, (8th Dist. 1993);
State v. Arrington,
96 Ohio App.3d 375 (12th Dist. 1994); State v.
Gomez,
2019-Ohio-481 (5th Dist.);
Riggins at ¶ 27.
{¶33} Thus, whether a search is authorized by warrant or
consent, the terms of authorization limit the scope of the search.
Walter v. United States, 447 U.S. 549, 656 (1980). Consequently,
when a suspect places an express limitation on the scope of a
consensual search, those limitations must be observed. For
example, when a suspect tells police, “The search is over. I am
calling off the search,” the suspect revoked his consent. United
States v. Dichiarinte,
445 F.2d 126, 128-129 (7th Cir. 1971). See
also Painter v. Robertson,
185 F.3d at 567 (although officers
obtained consent to enter and search, search should have terminated
instantly upon Painter's revocation of consent).
{¶34} Furthermore, a suspect may withdraw his or her consent by
actions. For example, a suspect’s actions may communicate the
limitation of a search, such as opening a door and then closing it.
See State v. Robinson, 103 Ohio App.3d 490, 495 (1st Dist. 1995).
See also Commonwealth v. Fox,
48 S.W.3d 24 (Ky. 2001) (defendant
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originally expressly consented to search of bags in truck bed, but
later rescinded consent when he took the bag and pushed it to the
front where the officer could not see it; thus police needed a
warrant to search the bag.); State v. Jordan, 1995 WL 137033 (2d
Dist. Mar. 31, 1995) (defendant withdrew consent when blocked
police officer’s hand from reaching into his pants pocket); United
States v. Ibarra,
731 F.Supp. 1037, 1039 (D.Wyo.1990)(defendant
terminated consent when he closed and locked vehicle trunk after
prior consensual search); Cooper v. State,
480 So.2d 8, 11
(Ala.Crim.App. 1985)(defendant withdrew consent when he locked
plane doors after consensual search); People v. Hamilton,
168
Cal.App.3d 1058 (1985)(attempt to close bedroom door is “direct,
positive” act inconsistent with consent).
{¶35} In the case sub judice, we observe that if a suspect may
withdraw consent by express words or actions, then appellant
withdrew his consent when he stated, “You can’t just take it [the
key in his pocket to the locked container] without a warrant. … I
do know the law. … You still have to get a search warrant.”
{¶36} Appellee argues, however, that an item properly seized
before a suspect withdraws consent is not subject to suppression
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under the Fourth Amendment. Riggins, supra, at ¶ 26; State v.
Moscoso,
2018-Ohio-2877, ¶ 26 (5th Dist.). However, in the instant
case although Detective Purdin seized the locked container prior to
appellant’s statement regarding a warrant, the officers could not
search the locked container without appellant’s key. Therefore,
the evidence reveals that appellant unequivocally withdrew his
consent as it pertained to the locked container.
{¶37} Thus, we conclude that the evidence adduced at the
suppression hearing and at trial reveals that appellant did
initially consent to the search of his vehicle, but later withdrew
consent as it pertained to his locked container.
B. Probable Cause
{¶38} The appellee also asserts that probable cause justified
the warrantless vehicle search and the corresponding search of the
locked container.3 An investigative stop does not violate the
3
It is interesting to recognize that in the case sub judice
the officer stopped appellant for driving under a license
suspension. During the course of the encounter, and after the
vehicle search, the officer permitted appellant’s family member to
come to the scene and drive away with appellant and his vehicle.
However, the officer could have chosen to make a custodial arrest
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Fourth Amendment if an officer has a reasonable suspicion, based
upon specific and articulable facts, that criminal activity “may be
afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968). For example, an
officer may make an investigatory stop solely on the knowledge that
the vehicle’s owner does not possess a valid driver’s license.
State v. Elliott,
2009-Ohio-6006, ¶ 17 (4th Dist.).
{¶39} In the case sub judice, Detective Purdin testified that
he (1) received information from Peebles police officer (Nicholas)
that day that appellant drove a red Dodge pickup truck with a
suspended driver’s license and attempted to sell drugs from his
truck, (2) received a call from Laura Dryden that day who stated
that appellant stopped at her place of business in West Union and
attempted to sell her methamphetamine and attempted to obtain
hypodermic needles from her, and (3) confirmed appellant’s driver’s
license suspension with dispatch prior to the vehicle stop.
{¶40} First, Detective Purdin’s personal knowledge of
for the license violation and conducted a search incident to
appellant’s custodial arrest, including a search of the vehicle and
any containers found within the vehicle. A search incident to
custodial arrest does not require independent probable cause to
search. Arizona v. Gant, 556 U.S. 332, (2009).
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appellant’s license suspension provided reasonable suspicion for
the initial investigative stop. See State v. Harrington, 2003-
Ohio-3636 (5th Dist.)(officer’s personal knowledge specific nature
of defendant’s driving status provided reasonable suspicion); State
v. Jones, 2004-Ohio-1535 (7th Dist.)(when officer knows vehicle’s
owner possesses suspended operator's license and draws rational
inference that vehicle’s owner is likely to be operating the
vehicle, reasonable suspicion exists to justify investigatory stop;
Tallmadge v. McCoy,
96 Ohio App.3d 604 (9th Dist.)(when officer
knows vehicle’s owner has suspended operator's license and draws
rational inference that vehicle’s owner is likely to be operating
vehicle, sufficient reasonable suspicion exists to justify
investigatory stop), State v. Yeager,
1999 WL 769965 (4th
Dist.)(because officer had information regarding vehicle owner's
suspended license, officer possessed reasonable suspicion to stop
the vehicle, even without independent identification of driver);
State v. Greathouse,
2010-Ohio-1209 (8th Dist.)(because it is
reasonable to infer vehicle’s driver may be its registered owner,
even absent a physical description or other corroboration, officer
who learns registered vehicle’s owner lacks driving privileges is
ADAMS, 23CA1178
25
permitted to stop operator to investigate whether operator is
licensed). Taken together, we conclude that the facts adduced at
the suppression hearing firmly established reasonable suspicion for
an investigative stop.
{¶41} The next consideration is whether, after the initial
investigative stop, probable cause existed to search appellant’s
vehicle. Under the automobile exception, a warrantless search of a
lawfully stopped automobile is reasonable within the meaning of the
Fourth Amendment when law enforcement has probable cause to believe
the vehicle contains contraband and exigent circumstances
necessitate a search or seizure. State v. Welch, 18 Ohio St.3d 88,
91 (1985); State v. Young,
2012-Ohio-3131, ¶ 34 (12th Dist.); State
v. Windle,
2017-Ohio-7813, ¶ 36 (4th Dist.). Probable cause exists
when there is a fair probability that contraband or evidence of a
crime will be found in a particular place. State v. Bostwick,
2011–Ohio–3671, ¶ 25 (4th Dist.); Illinois v. Gates,
462 U.S. 213,
238 (1983).
{¶42} The Fourth Amendment's automobile exception justifies “a
warrantless search of a lawfully stopped vehicle if [officers] have
probable cause to believe that the vehicle contains contraband.”
ADAMS, 23CA1178
26
State v. Mitchell, 2022-Ohio-2564, ¶ 13 (1st Dist.), citing United
States v. Ross,
456 U.S. 798, 825 (1982), and State v. Moore,
90
Ohio St.3d 47, 51 (2000). Warrantless vehicle searches are
reasonable given the innate mobility of vehicles, which “ ‘can be
quickly moved out of the locality or jurisdiction in which the
warrant must be sought.’ ”
Ross at 806, quoting Carroll v. United
States,
267 U.S. 132, 153 (1925). The scope of the search extends
to “every part of the vehicle and its contents that may conceal the
object of the search.” Id. at 825.
{¶43} In the case at bar, Detective Purdin testified that
shortly before he encountered appellant, he received information
from business owner Laura Dryden that appellant attempted to sell
drugs to her and sought hypodermic needles from her earlier that
day. Courts in Ohio have held that “[i]n the case of a citizen-
informant who is victimized or merely witnesses a crime and reports
it out of a sense of civic duty, the police may be entitled to
presume that the informer is reliable.” State v. Shepherd, 122
Ohio App.3d 358, 366 (2d Dist. 1997), citing Toledo v. Elkin,
68
Ohio Misc.2d 59 (1994)), citing United States v. Harris,
403 U.S.
573 (1971); State v. Carstensen,
1991 WL 270665 (2d Dist. 1991);
ADAMS, 23CA1178
27
see also State v. Carroll, 2005-Ohio-3093, ¶ 22 (11th Dist.).
Thus, an officer may derive his or her knowledge from an
informant's tip. In State v. Colbert,
1990 WL 20095 (1st Dist.),
the court held that:
… [P]olice have probable cause to conduct a search for
contraband when detailed information provided to them by a
confidential but reliable informant is subsequently
corroborated, in some significant combination, with
respect to the name or physical description of a suspect,
the location of the illegal sale, the time of the sale,
the description of the automobile driven by the suspect or
the car's license plate numbers.
Id.
{¶44} The First District concluded that probable cause existed
to justify Colbert’s warrantless arrest and seizure and underscored
that (1) the officer testified that the informant had proved to be
reliable numerous times in the past, (2) the suspect’s identity,
location of illegal activity and description of the suspect’s car
corroborated the details of the tip, and (3) the informant observed
the suspect holding the contraband immediately before the arrest.
The court noted that the fact that police obtained the information
one week prior to the arrest and search did not render it
unreliable, because the informant's account involved ongoing
ADAMS, 23CA1178
28
activity. Id. at *2.
{¶45} In State v. Walker, 1998 WL 429121 (10th Dist.), the
Tenth District held that the confidential informant's tip, which
included the name and description of the defendant, the location
and time of the arranged transaction, a description of the
defendant's vehicle, as well as the informant's subsequent
allegation at the scene that he observed defendant in possession of
cocaine, established probable cause. Id. at *6. See also State v.
Darding,
1987 WL 11863 (1st Dist.), (search of defendant, which
preceded arrest, did not constitute unlawful search incident to
arrest; probable cause established based on reliable informant’s
tip, which set forth description of defendant, his attire, the
female to whom defendant would transfer drugs, transaction location
and fact that drugs would be found in defendant’s front vest
pocket.). In the case sub judice, we believe that Laura Dryden’s
call to Detective Purdin earlier that day to inform him that
appellant had “attempted to sell methamphetamine to her and
attempted to obtain hypodermic needles from her,” provided probable
cause for Purdin to search appellant’s vehicle. In addition to
Dryden’s tip, Detective Purdin also relied on an officer’s tip.
ADAMS, 23CA1178
29
Earlier that day, Peebles Police Officer called Purdin and stated
that he “had received complaints that [appellant] was driving
around on a suspended license in a red Dodge pickup truck . . .
selling drugs.” The specificity of appellant’s name, the alleged
illegal activity, and information concerning appellant’s license
suspension provided further probable cause for officers to search
appellant’s vehicle. Furthermore, Purdin observed a hypodermic
needle in the truck’s console.
{¶46} In State v. Kelley, 2011-Ohio-3545 (4th Dist.), we held
that an officer may rely upon information collectively known to the
law enforcement officers involved in the search or investigation.
Id. at ¶ 26, citing State v. Cook,
65 Ohio St.3d 516, 521 (1992).
“An officer need not have knowledge of all of the facts necessary
to justify [a search], as long as the law enforcement body as a
whole possesses such facts and the detaining officer reasonably
relies upon those who posses the facts.”
Id., citing Cook. In the
case at bar, Detective Purdin relied on both a tip from a citizen
informant and information provided by law enforcement. Moreover,
appellant admitted to Purdin that he “used methamphetamine earlier
that morning,” “knew his license was under suspension,” and Purdin
ADAMS, 23CA1178
30
testified that he had “several prior dealings” with appellant,
“usually drug-related.” See State v. Skinner, 2005-Ohio-4273, ¶ 33
(10th Dist.)(officer arrested defendant with large amount of
powdered cocaine approximately two weeks prior).
{¶47} Here, for all of the reasons cited above, we believe that
these facts support the probable cause determination that
appellant’s vehicle likely contained contraband or evidence of a
crime. Thus, we conclude that probable cause existed to search the
vehicle, thus justifying the warrantless search of the vehicle
under the automobile exception to the Fourth Amendment.
{¶48} As set forth above, under the “automobile exception” to
the warrant requirement, police officers may perform a warrantless
search of a vehicle so long as they have probable cause to believe
the vehicle contains contraband or evidence of a crime. See State
v. Robinson, 2016-Ohio-905 (4th Dist.) ¶ 26, citing State v.
Chaffins,
2014-Ohio-1969, ¶ 18 (4th Dist.), and State v. Williams,
2013-Ohio-594, ¶ 25 (4th Dist.). However, although officers may
have probable cause to search appellant’s vehicle, appellant
asserts that officers lacked probable cause to search the locked
container.
ADAMS, 23CA1178
31
{¶49} After some evolving jurisprudence, in California v.
Acevedo, 500 U.S. 565 (1991), the United States Supreme Court held
that “police may search an automobile and the containers within it
where they have probable cause to believe contraband or evidence is
contained.”
Id. at 580. Officers observed a man pick up a FedEx
package suspected to contain marijuana and transport it to an
apartment. After they observed the man leave an apartment and drop
into a trash bin the package and paper that had contained the
marijuana, one officer left the scene to obtain a search warrant.
Shortly after, officers observed another man leave the apartment
carrying a blue knapsack, which appeared to be half full. Officers
stopped him, searched the knapsack, and found 1 ½ pounds of
marijuana.
Id. at 567. Twenty minutes later, Acevedo entered the
apartment, stayed about ten minutes, and reappeared carrying a
brown paper bag that appeared full. Officers noticed that the bag
appeared to be the size of one of the wrapped marijuana packages
sent from Hawaii. Acevedo walked to a vehicle, placed the bag in
the trunk of the car, and started to drive away when officers in a
marked police car stopped him, opened the trunk and the bag, and
found marijuana.
Id.
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32
{¶50} The Court noted that United States v. Ross held that
“closed containers encountered by the police during a warrantless
search of a car pursuant to the automobile exception could also be
searched. Thus, this Court in Ross took the critical step of saying
that closed containers in cars could be searched without a warrant
because of their presence within the automobile.” Id. at 572.
{¶51} The court continued:
This Court in Ross rejected Chadwick 's distinction between
containers and cars. It concluded that the expectation of
privacy in one's vehicle is equal to one's expectation of
privacy in the container, and noted that “the privacy
interests in a car's trunk or glove compartment may be no
less than those in a movable container.” 456 U.S., at 823,
102 S.Ct., at 2172. It also recognized that it was arguable
that the same exigent circumstances that permit a
warrantless search of an automobile would justify the
warrantless search of a movable container. Id., at 809,
102 S.Ct., at 2165. In deference to the rule of Chadwick
and Sanders, however, the Court put that question to one
side. Id., at 809–810,
102 S.Ct., at 2165. It concluded
that the time and expense of the warrant process would be
misdirected if the police could search every cubic inch of
an automobile until they discovered a paper sack, at which
point the Fourth Amendment required them to take the sack
to a magistrate for permission to look inside. We now must
decide the question deferred in Ross: whether the Fourth
Amendment requires the police to obtain a warrant to open
the sack in a movable vehicle simply because they lack
probable cause to search the entire car. We conclude that
it does not.
ADAMS, 23CA1178
33
{¶52} Moreover, the Court noted that “[t]o the extent that the
Chadwick–Sanders rule protects privacy, its protection is minimal.
Law enforcement officers may seize and hold a container until they
obtain a search warrant. Acevedo at 575, citing Chadwick, 433
U.S., at 13. “Since the police, by hypothesis, have probable cause
to seize the property, we can assume that a warrant will be
routinely forthcoming in the overwhelming majority of cases.”
Sanders, 442 U.S., at 770, 99 S.Ct., at 2596 (dissenting opinion).
{¶53} In Wyoming v. Houghton, 526 U.S. 295 (1999), the Court
further reduced protections for containers in cars when it held
that probable cause to believe that the driver of a vehicle has
illegal drugs in the car gives the police the authority to conduct
a warrantless search of a passenger's purse found on the backseat
floor of the passenger compartment, even if the police have no
particularized reason to believe drugs are in the passenger's
purse. See Lee, Package Bombs, Footlockers and Laptops: What the
Disappearing Container Doctrine Can Tell Us About the Fourth
Amendment, 100 JCRLC 1403, 1441 (2010).
{¶54} Although the case sub judice involved a locked container
rather than simply a closed container, we believe that Acevedo
ADAMS, 23CA1178
34
supports our conclusion that because probable cause existed for
officers to search appellant’s vehicle, probable cause extended to
the search of the locked container because the permissible scope of
the search has been extended to items found inside a vehicle. See
State v. Vega, 154 Ohio St.3d 569,
2018-Ohio-4002, ¶ 18 (sealed
envelopes); State v. Kumuhone, 8th Dist. Cuyahoga No. 112272, 2023-
Ohio-2586, ¶ 28 and State v. Fritz, 12th Dist. Clermont Nos.
CA2019-12-094, CA2019-12-095,
2020-Ohio-5231, ¶ 35 (a backpack);
State v. Sullivan, 12th Dist. Preble No. CA2018-10-016, 2019-Ohio-
2279, ¶ 23 (a locked tool box).
{¶55} Moreover, other state and federal cases support our
conclusion. For example, in State v. Wilson, 478 N.J.Super. 564,
(2024), the Superior Court of New Jersey, Appellate Division, held:
It seems clear under the Fourth Amendment that no
distinction is drawn between locked and unlocked containers
for purposes of the automobile exception. See United
States v. Mazzone, 782 F.2d 757, 760 (7th Cir. 1986) (“[I]f
the police have probable cause to believe that there is
contraband or other lawfully seizable material anywhere in
the car they can search for it even if it is in a sealed
container, or in a closed or even locked compartment such
as the glove compartment or the trunk.”). In Ross, the
United States Supreme Court explained, “[t]he scope of a
warrantless search of an automobile ... is not defined by
the nature of the container in which the contraband is
secreted. Rather, it is defined by the object of the search
ADAMS, 23CA1178
35
and the places in which there is probable cause to believe
that it may be found.” 456 U.S. at 824,
102 S.Ct. 2157.
Further, “[t]he scope of a warrantless search based on
probable cause is no narrower ... than the scope of a
search authorized by a warrant supported by probable
cause.” Id. at 823,
102 S.Ct. 2157.
{¶56} The court further stated, “[e]ven accepting that
motorists who take the precaution of locking a glove box have a
higher subjective expectation of privacy in its contents than if
they had left the glove box unlocked, our courts have never equated
that heightened expectation to the expectation of privacy in a
home.” Id.
{¶57} In United States v. Marsh, 2020 WL 758815 (M.D.Tenn Feb
14, 2020), a district court upheld a warrantless search when
officers executed a search for marijuana based on probable cause
and the owner or occupants of the car refused to provide means of
opening the glovebox. The court concluded, “the fact that the
search was warrantless does not alter the analysis. Once probable
cause for the search of an automobile is established, the scope is
the same as if the Officers were acting pursuant to a warrant.”
Id. at *4, citing Ross,
456 U.S. at 823. Therefore, the court held
that officers did not act unreasonably when they pried open the
ADAMS, 23CA1178
36
glovebox.
{¶58} In State v. Reis, 2014 ND 30, the Supreme Court of North
Dakota held that when police officers have probable cause to
believe a vehicle contains contraband and the automobile exception
to the warrant requirement applies, officers may search the vehicle
and any containers within the vehicle that may contain the object
of the search, citing
Ross, supra, at 800. Id. at ¶ 18. See also,
United States v. Sena,
2024 WL 3677601 (D.N.M.)(locked containers
are equally subject to search as unlocked containers), Carter v.
Parris,
910 F.3d 835 (6th Cir. 2018)(fact that lockbox is locked
container inside the car makes no difference as Supreme Court long
ago dispensed with categorical distinction between cars and
containers within cars.); People v. Ellis,
62 N.Y.2d 393, 398
(1984) (automobile exception applies to closed, and even locked,
containers and compartments within a car.) Thus, in addition to
probable cause to search appellant’s vehicle, we conclude that
probable cause existed to search the locked container found
therein.
{¶59} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
ADAMS, 23CA1178
37
II.
{¶60} In his second assignment of error, appellant asserts that
insufficient evidence supports his conviction and his conviction is
contrary to the manifest weight of the evidence.
{¶61} A claim of insufficient evidence invokes a due process
concern and raises the question whether the evidence is legally
sufficient to support the verdict as a matter of law. State v.
Thompkins, 78 Ohio St.3d 380, 386, syllabus (1997); State v.
Blevins,
2019-Ohio-2744, ¶ 18 (4th Dist.). When reviewing the
sufficiency of the evidence, an appellate court's inquiry focuses
primarily on the adequacy of the evidence; that is, whether the
evidence, if believed, could reasonably support a finding of guilt
beyond a reasonable doubt.
Id. at syllabus. The 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.
E.g., Jackson v. Virginia,
443 U.S. 307, 319 (1979); State v.
Jenks,
61 Ohio St.3d 259, 273 (1991); State v. Brock, 2024-Ohio-
ADAMS, 23CA1178
38
1036, ¶ 13 (4th Dist.).
{¶62} Furthermore, under the sufficiency of the evidence
standard a reviewing court does not assess “whether the state's
evidence is to be believed, but whether, if believed, the evidence
against a defendant would support a conviction.” Thompkins, 78
Ohio St.3d 380, 390 (1997) (Cook, J., concurring). Therefore, when
an appellate court reviews a sufficiency of the evidence claim, the
court must construe the evidence in a light most favorable to the
prosecution. See, e.g., State v. Hill,
75 Ohio St.3d 195, 205
(1996); State v. Grant,
67 Ohio St.3d 465, 477 (1993). A reviewing
court will not overturn a conviction on a sufficiency of the
evidence claim unless reasonable minds could not reach the
conclusion the trier of fact did. State v. Tibbetts,
92 Ohio St.3d
146, 162; State v. Treesh,
90 Ohio St.3d 460, 484 (2001).
{¶63} “Although a court of appeals may determine that a
judgment of a trial court is sustained by sufficient evidence, that
court may nevertheless conclude that the judgment is against the
weight of the evidence.” Thompkins, 78 Ohio St.3d at 387. “The
question to be answered when a manifest weight issue is raised is
whether ‘there is substantial evidence upon which a jury could
ADAMS, 23CA1178
39
reasonably conclude that all the elements have been proved beyond a
reasonable doubt.’ ” State v. Leonard, 2004-Ohio-6235, ¶ 81,
quoting State v. Getsy,
84 Ohio St.3d 180, 193–194 (1998), citing
State v. Eley,
56 Ohio St.2d 169, syllabus (1978). A court that
considers a manifest weight challenge must “ ‘review the entire
record, weigh the evidence and all reasonable inferences, and
consider the credibility of witnesses.’ ” State v. Beasley, 2018-
Ohio-493, ¶ 208, quoting State v. McKelton,
2016-Ohio-5735, ¶ 328.
However, the reviewing court must bear in mind that credibility
generally is an issue for the trier of fact to resolve. State v.
Issa,
93 Ohio St.3d 49, 67 (2001); State v. Murphy,
2008-Ohio-1744,
¶ 31 (4th Dist.). “ ‘Because the trier of fact sees and hears the
witnesses and is particularly competent to decide “whether, and to
what extent, to credit the testimony of particular witnesses,” we
must afford substantial deference to its determinations of
credibility.’ ” Barberton v. Jenney,
2010-Ohio-2420, ¶ 20, quoting
State v. Konya,
2006-Ohio-6312, ¶ 6 (2d Dist.), quoting State v.
Lawson,
1997 WL 476684 (2d Dist. Aug. 22, 1997).
{¶64} Generally, an appellate court will defer to the trier of
fact on issues of evidence weight and credibility, as long as a
ADAMS, 23CA1178
40
rational basis exists in the record for the fact-finder's
determination. State v. Picklesimer, 2012-Ohio-1282, ¶ 24 (4th
Dist.); accord State v. Howard,
2007-Ohio-6331, ¶ 6 (4th Dist.)
(“We will not intercede as long as the trier of fact has some
factual and rational basis for its determination of credibility and
weight.”). Accordingly, if the prosecution presented substantial
credible evidence upon which the trier of fact reasonably could
conclude, beyond a reasonable doubt, that the essential elements of
the offense had been established, the judgment of conviction is not
against the manifest weight of the evidence. Accord Eastley v.
Volkman,
2012-Ohio-2179, ¶ 12, quoting Thompkins,
78 Ohio St.3d at
387, quoting Black's Law Dictionary 1594 (6th Ed. 1990) (a judgment
is not against the manifest weight of the evidence when “ ‘ “the
greater amount of credible evidence” ’ ” supports it).
{¶65} Consequently, when a court reviews a manifest weight of
the evidence claim, a court may reverse a judgment of conviction
only if it appears that the fact-finder, when it resolved the
conflicts in evidence, “ ‘clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’ ” Thompkins, 78 Ohio St.3d at
ADAMS, 23CA1178
41
387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983); accord
McKelton at ¶ 328. Finally, a reviewing court
should find a conviction against the manifest weight of the
evidence only in the “ ‘exceptional case in which the evidence
weighs heavily against the conviction.’ ” Thompkins,
78 Ohio St.3d
at 387, quoting Martin,
20 Ohio App.3d at 175; accord State v.
Clinton,
2017-Ohio-9423, ¶ 166; State v. Lindsey,
87 Ohio St.3d
479, 483 (2000).
{¶66} Appellant asserts that the prosecution failed to adduce
sufficient evidence to support his drug possession conviction. In
particular, appellant contends that, although he admitted at trial
that he possessed the methamphetamine found inside the black
cylinder inside his vehicle, he denied that he possessed 23.67
grams of methamphetamine and claimed only one of three bags of
methamphetamine found inside the container belonged to him. He
further claims that “no forensic evidence was offered linking Mr.
Prater to the drugs,” and argues that it is unknown how long the
container had been inside of the vehicle or how long the drugs had
been inside of the container.
{¶67} R.C. 2925.11(A) sets forth the essential elements of
ADAMS, 23CA1178
42
aggravated possession of drugs: No person shall knowingly obtain,
possess, or use a controlled substance or a controlled substance
analog. In the case sub judice, both Detective Purdin’s testimony
and the body camera footage played for the jury established that
the black cylinder found under the dashboard of a vehicle owned and
operated by appellant contained methamphetamine. Moreover, Ohio
Bureau of Criminal Investigation Forensic Scientist Stanton
Wheasler testified that the bulk amount for a schedule II-
controlled substance, including methamphetamine, is three grams and
that the amount of methamphetamine in this case equaled or exceeded
five times the bulk amount as the methamphetamine weighed 23.67
grams.
{¶68} Appellant also contends that his conviction for
aggravated drug possession is against the manifest weight of the
evidence. As noted above, in a manifest weight review, we must
“weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether, in resolving
conflicts in the evidence, the trier of fact clearly lost its way
and created a manifest miscarriage of justice.” Thompkins, 78 Ohio
St.3d 380, 387 (1997). Once again, Detective Purdin’s testimony
ADAMS, 23CA1178
43
and body camera footage established that appellant possessed the
methamphetamine found inside of the container inside of the truck
he owned and had been driving while under suspension prior to
Detective Purdin’s stop. In fact, as appellee points out, when
asked about the contents of the cylinder, appellant stated,
“methamphetamine, it’s all methamphetamine.”
{¶69} Consequently, in the case sub judice, when we weigh the
evidence adduced at trial and all reasonable inferences therefrom,
we cannot conclude that the trier of fact lost its way. Here, the
evidence revealed that appellant possessed the requisite amount of
methamphetamine. The trier of fact considered this evidence, found
appellant guilty of aggravated possession of drugs in violation of
R.C. 2925.11(A), and further found that the amount of
methamphetamine equaled or exceeded five times the bulk amount but
less than fifty times the bulk amount. Thus, in view of the
foregoing, we conclude that appellant’s conviction for aggravated
drug possession is not against the manifest weight of the evidence.
{¶70} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
ADAMS, 23CA1178
44
III.
{¶71} In his final assignment of error, appellant asserts that
the trial court erred when it allowed the State to impeach him with
a prior conviction that does not constitute an impeachable offense.
During appellant’s cross-examination, and over his counsel’s
objection, the State impeached appellant with a prior conviction
for fifth-degree felony possession of drugs. The trial court,
however, later acknowledged the improper admission, but denied
counsel’s mistrial request and gave a curative instruction. The
prosecution asserts that a jury is presumed to follow a trial
judge’s instructions, including curative instructions, and cites
State v. Garner, 74 Ohio St.3d 49, 59 (1995). Further, the State
refers to this as a brief, isolated remark that did not prejudice
appellant.
{¶72} In general, the grant or denial of a motion for a
mistrial rests in a trial court's sound discretion and should not
be disturbed on appeal absent an abuse of that discretion. State
v. Houk, 2020-Ohio-1547, ¶ 9 (4th Dist.), citing
Treesh, supra,90
Ohio St.3d at 480 (2001). “Mistrials need be declared only when
the ends of justice so require and a fair trial is no longer
ADAMS, 23CA1178
45
possible.” State v. Franklin, 62 Ohio St.3d 118, 127 (1991).
{¶73} As appellee points out, the Supreme Court of Ohio has
held that a brief, isolated remark, followed promptly by a curative
instruction, does not generally necessitate a mistrial. State v.
Trimble, 2009-Ohio-2961 (evidence of prior conviction inadmissible,
trial court sustained objection, and instructed jury to disregard
answer, mistrial not required as fair trial still possible); State
v. Meddock,
2017-Ohio-4414, ¶ 48 (4th Dist.)(trial court twice
instructed jury to disregard testimony stricken from record);
Treesh,
90 Ohio St.3d at 482(because trial court immediately
sustained defense counsel's objection and prohibited prosecutor
from pursuing the line of inquiry, trial court did not err in
overruling Treesh's motion for mistrial).
{¶74} Our review reveals, however, that the evidence at issue
in the case at bar did not constitute a brief, isolated remark
followed promptly by a curative instruction. Instead, appellee
improperly impeached appellant with a prior conviction for the same
offense for which he was being tried. It does appear that the
trial court did, in fact, give an extensive curative instruction,
but inadvertently included the exhibit with other trial exhibits
ADAMS, 23CA1178
46
submitted for the jury’s consideration.
{¶75} Relevant evidence may include prior convictions,
including convictions used for impeachment purposes. A prior
conviction, admissible subject to Evid.R. 609, is relevant to the
accused's credibility. State v. Moore, 40 Ohio St.3d 63, 65
(1988). See Evid.R. 609(A); State v. Wright,
48 Ohio St.3d 5, 7
(1990). “To determine whether the defendant was deprived of a fair
trial, we must determine whether, ‘absent the improper remark[ ],
the jury would have found the appellant guilty beyond a reasonable
doubt.’ ” State v. Walburg, 2011–Ohio–4762, ¶ 52 (10th Dist.),
quoting Columbus v. Aleshire, 2010–Ohio–2773, ¶ 42 (10th Dist.),
citing State v. Maurer,
15 Ohio St.3d 239, 267 (1984). Further, as
an appellate court, we must presume that the jury followed the
trial court's instructions. Walburg at ¶ 53, citing State v.
Noling, 2002–Ohio–7044, ¶ 39.
{¶76} In the case sub judice, at the close of the State’s
evidence appellant’s counsel made a motion under Crim.R. 29 for
judgment of acquittal, which the trial court denied. Appellant
then testified on his own behalf. During cross-examination,
appellant acknowledged that he owned the red truck, drove with a
ADAMS, 23CA1178
47
suspended driver’s license, permitted the vehicle search, owned the
black cylinder found in the vehicle, and owned at least a portion
of the methamphetamine in the container. Appellant also
acknowledged that he used methamphetamine in the morning on August
26, 2021.
{¶77} The State then said, “It’s not your first run in with
this court from drugs, correct?” Appellant replied, “No, sir.”
The State asked, “Been here before, correct?” Appellant replied,
“Yes, sir.” The State asked, “Been convicted of possession of
drugs, correct?” Appellant replied, “Yes, sir.” At that point,
counsel objected. At sidebar, the State pointed to appellant’s
2018 conviction for fifth-degree felony aggravated possession of
drugs. The trial court then overruled the objection and permitted
questions about the 2018 conviction.
{¶78} Later, after the State gave its closing argument and
briefly referenced Exhibit 10, the trial court called the parties
to a sidebar and stated:
COURT: Looking at Rule [inaudible], evidence [inaudible]
accused has been a convicted of a crime. Well evidence
that the accused has been convicted of a crime [inaudible].
If the crime is punishable by [inaudible] or imprisonment,
the excess of one year. I believe the maximum is one year.
ADAMS, 23CA1178
48
ATTORNEY HASLAM: [inaudible].
COURT: Not in excess of one year. So I think the court
has erred in its ruling on the admissibility of “10.” Your
thoughts? Obviously, obviously I, I can advise the jury
and admonish them not to consider State’s Exhibit “10.”
Um, and ask if there’s anyone that cannot purge that.
ATTORNEY HASLAM: May I see.
COURT: Yeah. I haven’t seen Exhibit “10,” but it was
suggested that it was a felony of the 5th degree.
ATTORNEY CANTRELL: Let me make sure, let me grab it.
COURT: Thank you. I don’t think it would be used to attack
his truthfulness because he’s admitted that he believed it
was methamphetamine.
ATTORNEY CANTRELL: He is truthful.
COURT: So, my intent is to instruct them. Would you like
to be heard before I give that instruction?
ATTORNEY CANTRELL: I think for the record, I need to ask
the court for a mistrial. Um, I, I didn’t acknowledge that
it was less than a year, I thought it was any felonies.
Um, but now that we are aware of it, I think it likely an
error that’s detrimental to his case being that he’s
testified and that the prior conviction, even if directed
that they don’t understand it or to not, uh, consider it.
I, I think it’s already been said that he has prior
conviction and admitted to it.
ATTORNEY HASLAM: I think a curative instruction, we only
not admitted State’s “10" along with, uh, striking
testimony related to the prior objection is enough.
ADAMS, 23CA1178
49
COURT: So, I’ll say this for the record, that I think, uh,
certainly it’s, uh, is effective representation of the
defendant to request the mistrial. I believe that’s wholly
appropriate. I do believe that, uh, the court is, uh, is
going to attempt, I don’t believe that another court is
going to attempt to instruct the jury, uh, that they shall
disregard any testimony, uh, and discussion as to State’s
Exhibit “10,” even with redactions, State’s Exhibit “10"
will not be admitted into evidence. And with any testimony
regarding State’s Exhibit “10,” uh, and or, uh, prior
convictions is irrelevant to this case. The decision must
be made only upon those facts constituting this alleged
offense.
Uh, so I’m going to, uh, deny your motion for mistrial,
but I believe it’s, uh, wholly appropriate, uh, in the
effect of, uh, representation of your client. And if I
get an indication from the jury, I reserve the ability to
reverse that ruling in regard to the mistrial if I feel
that jurors are, uh, capable of, of purging that from their
considerations.
At that point, the court addressed the jury and instructed:
COURT: So, ladies and gentlemen of the jury, there was an
inquiry, uh, when the defendant was on the witness stand
in regard to a prior offense. Uh, the court, uh, has
addressed this matter with the counsel and I instructed
the jury and you can determine if you can follow this
instruction, that as a juror in your deliberations, you
would not be permitted. You would not be permitted to
consider for any reason the testimony in regard to the
prior conviction. And you must purge that as if never
heard. You must only make your decision and your verdict
based upon the relevant evidence that you determine as the
trier of fact as relates to this allegation, you must
disregard any prior allegation or suggestion of conviction.
I wanna give you a moment to think about that.
ADAMS, 23CA1178
50
Is there any juror that does not understand the court’s
instruction? You must strike from all consideration and
neither think about nor discuss any testimony or suggestion
of evidence and State’s Exhibit “10" would not be admitted
into evidence. Is there any juror that cannot follow that
instruction? And if so, we would ask that you indicate by
raising your hand. No such indication.
{¶79} Subsequently, defense counsel gave his closing argument.
However, it appears that the exhibits given to the jury
inadvertently included State’s Exhibit 10 in an envelope marked
“Evidence Prater.” It is undisputed that State's Exhibit 10 should
not have been provided to the jury. The question now is what
effect this inadvertent action had on this case, if any.
{¶80} In State v. Westwood, 2002-Ohio-2445 (4th Dist.), this
court considered a case in which a bag of marijuana had been
mistakenly given to the jury. This court noted:
Ohio law is not particularly instructive on the subject of
unadmitted evidence that is mistakenly submitted to a jury.
The Ohio Supreme Court has touched on this issue, but their
opinions provide little guidance. In State v. Cooper
(1977), 52 Ohio St.2d 163, 180,
370 N.E.2d 725, 736, the
Court rejected the argument that reversible error occurred
when unadmitted exhibits found their way into the jury room
because (1) the record did not definitively show that the
exhibits were actually given to the jury and (2) even if
they were, any error was harmless in light of the
cumulative nature of the evidence in relation to the other
evidence adduced at trial. Similarly, in State v. Grant
ADAMS, 23CA1178
51
(1993), 67 Ohio St.3d 465, 483,
620 N.E.2d 50, 69, the
Court held that no error occurred when certain scientific
slides, not admitted into evidence, may have been taken
into the jury room. The court noted that even if the
evidence had appeared in the jury room, the evidence was
repetitive of other evidence introduced at trial.
Westwood at ¶ 24.
{¶81} In Westwood, we noted that this court twice considered
this particular issue. In State v. Seymour, 1993 WL 472875, (4th
Dist. Nov. 9, 1993), we held that the presence of unadmitted
exhibits in the jury room did not mandate a reversal because (1)
overwhelming evidence of guilt existed, and (2) those exhibits were
cumulative of other evidence and therefore harmless. Later, in
State v. Wheeler,
1997 WL 106892 (4th Dist. Mar. 4, 1997), we
rejected an argument that sending unadmitted exhibits to the jury
room constituted reversible error because defense counsel consented
to the procedure. Finally, we recognized that the Eighth District
considered the issue in State v. Allen,
1983 WL 5914 (8th Dist.
Apr. 7, 1983), but found no error because the jury had yet to view
the unadmitted exhibits. We further observed in Westwood that
federal law holds that the jury room must be kept free of evidence
not received during trial and its presence, if prejudicial, will
ADAMS, 23CA1178
52
vitiate the verdict. Westwood at ¶ 28 (citations omitted).
Finally, we cited Merritt v. Maryland,
367 Md. 17 (Md.App. 2001),
where an application for a search warrant not admitted into
evidence made its way into the jury room. The document contained
(1) evidence that accused the defendant of other criminal acts, (2)
improper opinion evidence that accused the defendant of murder, and
(3) improper evidence that bolstered the investigator’s
credibility. Id. at 766. We noted that, despite what the Maryland
court described as “overpowering evidence” of guilt, the statements
included in the unadmitted application should be deemed so
prejudicial as to warrant a new trial. Id. at 767.
{¶82} In Westwood, we also wrote that “[w]hat emerges from
these cases is a general consensus that, if unadmitted exhibits are
mistakenly given to the jury during deliberation, and if the
defendant has suffered prejudice as a result thereof, the
conviction cannot stand.” Id. at ¶ 37. We observed that in
Westwood the jury sent a note to the trial court to inquire about
the significance of the bag of marijuana. Moreover, we explained
that the exhibit did not appear to be repetitive of other evidence
introduced at trial. We did not, however, address whether
ADAMS, 23CA1178
53
prejudice is presumed or whether the onus is on the appellant to
affirmatively demonstrate prejudice. Nevertheless, we concluded
that Westwood suffered prejudice. Id. In the case sub judice, we
find no such prejudice.
{¶83} In State v. Houston, 2010-Ohio-2367 (1st Dist.), the
trial court erroneously submitted a copy of an unadmitted police
report to the jury. Id. at ¶ 6. Houston argued that the police
report gave rise to actual prejudice because it (1) mentioned that
Houston had been cited for marijuana possession when this had not
been raised through trial testimony, (2) the report listed a
witness as his next-of-kin when Houston attempted to distance
himself from that witness as a trial strategy “to the point of
attempting to demonstrate that [the witness] was the true owner of
the gun with a motive to plant the gun on Houston,” (3) the report
listed Houston’s address as a residence at which Houston claimed he
did not live, and (4) the report stated that Houston had an
outstanding warrant for a traffic violation. Id.
{¶84} The First District observed:
Ohio law is not particularly instructive on the subject of
unadmitted evidence that is mistakenly submitted to a
jury.” [State v. Westwood (May 15, 2002), 4th Dist. No.
ADAMS, 23CA1178
54
01CA50, 2002–Ohio–2445, at ¶ 24.] Unlike federal law, and
contrary to Houston's argument, Ohio law does not presume
prejudice for unadmitted evidence, but rather takes a caseby-case approach, examining (1) whether the record reflects
whether the exhibits were actually given to the jury, and
(2) whether the error was harmless in light of the
cumulative nature of the evidence in relation to the other
evidence adduced at trial. [Id., citing State v. Cooper
(1977), 52 Ohio St.2d 163, 180,
370 N.E.2d 725.]
The First District deemed the police report harmless because it
contained information cumulative of other, properly admitted
evidence. Id. at ¶ 8. The court concluded that, “in relation to
the other evidence adduced at trial,” Houston's police report given
to the jury contained evidence cumulative of other evidence adduced
at trial, and specifically noted the jury did not hear testimony
regarding the marijuana possession citation in the police report.
See also State v. Shouse,
2014-Ohio-4620, ¶ 23 (12th Dist.)(ample
evidence against defendant to sustain guilty verdict despite
admission of unredacted medical records that contained 5 hearsay
statements that identified defendant as perpetrator); State v.
Locklin,
2006-Ohio-3855, (2d Dist.) (prejudicial effect of
unadmitted exhibit mistakenly submitted to jury harmless because
exhibit repetitive or cumulative of other evidence introduced at
ADAMS, 23CA1178
55
trial and substantial evidence of defendant’s guilt existed); State
v. Adams, 2008-Ohio- 3136, ¶ 15 (although police report contained
some information not presented at trial, other evidence established
Adams' guilt and jury indicated they could disregard the police
report).
{¶85} In the case sub judice, we once again recognize that the
trial court gave the jury an extensive curative instruction that
advised the jury to disregard the exhibit and all testimony about
the prior conviction. The court also asked the jury if any juror
could not follow the instruction to disregard the information.
Moreover, we also point out that at trial the State adduced
substantial evidence of appellant’s guilt. Here, appellant
acknowledged that he used methamphetamine earlier that day, owned
the red truck, drove with a suspended driver’s license, permitted
the vehicle search, owned the black cylinder found in the truck,
and owned at least a portion of the methamphetamine in the
cylinder. The jury, sitting as the trier of fact, may choose to
believe or disbelieve the testimony of any witness who offers
testimony. Apparently, in the instant case the jury opted to find
appellant’s testimony not credible. This is within the jury’s
ADAMS, 23CA1178
56
purview. Here, we cannot conclude that appellant suffered
prejudice. Thus, based upon the foregoing reasons, we overrule
appellant’s third assignment of error.
{¶86} Accordingly, we hereby affirm the trial court’s judgment.
JUDGMEN
T AFFIRMED.
ADAMS, 23CA1178
57
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee shall
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court
directing the Adams 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 the 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 that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________
Peter B. Abele, Judge
ADAMS, 23CA1178
58
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.
