[Cite as State v. Hodges,
2025-Ohio-2050.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 24CA4061
v. :
ARI N. HODGES, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Darren L. Meade, Columbus, Ohio, for appellant1.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay
Willis, Assistant Prosecuting Attorney, Portsmouth, Ohio, for
appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:6-3-25
ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas Court
judgment of conviction and sentence. Ari N. Hodges, defendant
below and appellant herein, assigns four errors for review:
FIRST ASSIGNMENT OF ERROR:
“THERE WAS INSUFFICIENT EVIDENCE TO CONVICT
APPELLANT, AND APPELLANT’S CONVICTIONS WERE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
1
Different counsel represented appellant during the trial
court proceedings.
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SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED REVERSABLE [SIC.]
ERROR BY ACCEPTING SUBMISSION OF JURY
INSTRUCTIONS AFTER CLOSING ARGUMENTS.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED REVERSABLE [SIC.]
ERROR BY DENYING TRIAL COUNSEL’S REQUEST FOR
JURY INSTRUCTION THAT MERE PRESENCE OF AN
ACCUSED AT THE SCENE OF A CRIME, EVEN WITH
KNOWLEDGE OF THE COMMISSION OF THE CRIME, IS
NOT SUFFICIENT TO CONVICT.”
FOURTH ASSIGNMENT OF ERROR:
“THE CUMULATIVE EFFECT OF THE TRIAL COURT’S
ERROR CREATED REVERSABLE [SIC.] ERROR
WARRANTING REVERSAL.”
{¶2} During an October 2021 traffic stop, Ohio State Highway
Patrol Trooper Nick Lewis discovered cocaine and fentanyl on a
fellow passenger’s person and a bag of marijuana in the center
console of a rental vehicle in which appellant was the front seat
passenger. A Scioto County Grand Jury later returned an
indictment that charged appellant with (1) one count of trafficking
in cocaine in violation of R.C. 2925.03(A)(2), a first-degree
felony, (2) one count of trafficking in a fentanyl-related compound
in violation of R.C. 2925.03(A)(2), a first-degree felony, (3) one
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count of possession of cocaine in violation of R.C. 2925.11(A), a
first-degree felony, (4) one count of possession of a fentanyl-
related compound in violation of R.C. 2925.11(A), a first-degree
felony, (5) one count of possessing criminal tools in violation of
R.C. 2923.24(A), a fifth-degree felony, and (6) one count of
possession of marijuana in violation of R.C. 2925.11(A), a minor
misdemeanor.
{¶3} Appellee filed a notice of intent to introduce other acts
evidence as per Evid.R. 404(B). At a January 5, 2024 hearing on
the motion, appellee referred to a 2016 Cincinnati investigation
that led appellant to enter guilty pleas in federal court for
trafficking. In addition, appellee highlighted a current
investigation into a 2022 incident in which appellant drove a
rental vehicle in a high-speed pursuit, threw a bag of crack
cocaine from the vehicle, led law enforcement to seize “a number of
cellular phones from Mr. Hodges,” and engaged in multiple phone
communications that appeared related to trafficking in fentanyl.
After the hearing, the trial court denied the motion and concluded
that the incidents were too remote to show evidence of the same
plan or scheme and use of rental cars did not establish modus
operandi.
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{¶4} At the January 8, 2024 jury trial, Ohio State Highway
Patrol Trooper Nick Lewis testified that, at approximately 10 p.m.
on October 12, 2021, he worked in the drug interdiction unit when
he observed a southbound vehicle on U.S. 23 with a dark window tint
and a Florida license plate. As the vehicle neared Mile Post 13,
it crossed the white fog line. “As I pull up beside the vehicle,
we’re doing 70 [the speed limit in that area]. I’m entering the
plate into my mobile computer. And as we’re doing 70, suddenly he
just takes off, accelerates his speed, which catches my attention.”
Lewis initiated a traffic stop around Mile Post 10. Lewis noted
that the vehicle “takes about 50 seconds to stop, just almost a
minute, which is unusual.”
{¶5} Trooper Lewis stated that the Drug Enforcement Agency has
identified U.S. 23 as a major drug trafficking pipeline. Lewis
further explained that drug traffickers utilize rental vehicles
because they are free from defects, have “good tags,” are not
subject to forfeiture, and are less visible in the community.
However, Lewis explained that law enforcement can readily identify
rental vehicles because they typically lack bumper stickers,
license plate holders, and dealership tags.
{¶6} When Trooper Lewis approached the passenger side of the
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vehicle and asked for the rental agreement, he smelled marijuana.
He then asked the driver, James Freeman, to exit the vehicle,
patted him down for weapons, and placed him in the back of Lewis’s
cruiser. Lewis inquired about the group’s travel plans, and
Freeman said they “were going to Huntington, West Virginia to buy
groceries” for Freeman’s cousin. Lewis noted that because it was
already 10:00 p.m., “it’d probably be 11 o’clock by the time they
got there to buy groceries for his cousin. . . who he hadn’t seen
in two years at Marshall . . . [s]o I got red flags going off
already.” In addition, when Lewis asked Freeman why he initially
pulled away from him, he said, “one of the guys in the vehicle had
to use the bathroom, so he was trying to hurry up and get him to a
bathroom.” Lewis testified that all of the vehicle occupants were
from Cincinnati.
{¶7} After Trooper Lewis placed Freeman in the back of his
cruiser, he approached the passenger side a second time and spoke
with appellant, the front-seat passenger. When Lewis asked
appellant where they were headed, appellant did not answer. When
Lewis asked a second time, appellant stated they were “coming from
Cincinnati,” and “says Charleston, he thinks is where they’re
headed to. So, now I have a lot of red flags, a lot of indicators
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something criminal is going on. Three guys in a car, headed to two
different places.” Lewis explained, “at this point, I know I’m
going to search the vehicle because I could smell marijuana.”
Lewis patted down appellant and found nothing on his person.
{¶8} Trooper Lewis asked the backseat passenger, Quentin
Heard, to exit the vehicle, and during his pat down, Lewis
identified contraband between Heard’s buttocks. Lewis testified
that he seized three bags of apparent narcotics from Heard, and
when he asked Heard if the drugs were his, he said, ”they were all
his.”
{¶9} Trooper Lewis also found a box of 100 sandwich baggies in
the rental vehicle’s glove box in front of appellant, which Lewis
explained is “usually for packaging drugs.” Lewis testified that
he did not find a change of clothes or personal hygiene items for
any of the three occupants, just “maybe some random t-shirts.”
Lewis then asked Freeman for his cousin’s phone number, but Freeman
told him that “he didn’t have a phone number for his cousin, that
his cousin would call him, using some sort of - - I think he said
an office phone or a payphone, but he didn’t have a number.” Lewis
found it “odd that they were driving from Cincinnati to Huntington
at 10 o’clock at night and they didn’t have a - - anyway of getting
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a hold of this guy once they got down there.”
{¶10} Trooper Lewis told appellant that he found narcotics on
one passenger and sandwich baggies in the glove box. Appellant
told him “he didn’t have anything on his person. The only thing he
had was the weed. I believe he made the comment about he had just
gotten off work and got in the car and took off with - - with these
guys.”
{¶11} The lab results indicated that (1) one bag contained
49.4638 grams of fentanyl, worth approximately $6,000, (2) one bag
contained 18.8480 grams of cocaine, worth approximately $1,800-
1,900, and (3) one bag contained 9.7093 grams of cocaine, worth
approximately $1,000. Lewis testified that these amounts are all
trafficking amounts, not user amounts.
{¶12} Trooper Lewis explained that when he placed Freeman in
the back of his cruiser, he sought backup because he did not have
adequate space in his Chevy Tahoe to accommodate the three men.
Ohio State Highway Patrol Sergeant David Stuart responded to the
request and detained the other two men while Lewis searched the
vehicle. However, Lewis testified that, because Stuart was a
driving instructor at the time, he did not have adequate seating in
his vehicle either. Lewis testified that he typically works with
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another officer, but the lack of space in his cruiser, combined
with the fact that “I assumed it was cocaine at the time of the
stop . . . and our lab was running behind in 2021, and Lewis “would
have to take another trooper from the Portsmouth Post off the road
to help him transport,” caused Lewis to decide at that time to “cut
[the three men] loose and . . . [seek] a direct indictment.”
{¶13} Hertz Car Rental Company Corporate Security Manager Sam
Milanovich testified that Jamaine Freeman rented a 2019 Chevrolet
Trax with Florida license plates on Mitchell Avenue in Cincinnati
on October 6, 2021. Freeman, the only authorized driver, rented
the vehicle for one week to be returned to the same location on
October 13, 2021, but he returned it on October 27, 2021, two weeks
beyond the originally scheduled return date. From October 6 to
October 27, the vehicle accrued 4,834 miles.
{¶14} Quentin Heard testified that he is currently incarcerated
after he changed his plea to guilty and received a two to five-year
prison sentence in exchange for testifying against James Freeman
and appellant. Heard also conceded he has prior convictions for
carrying concealed weapons, weapons under disability, drug
possession, aggravated drug trafficking, resisting arrest, domestic
violence, and driving without a license. Heard stated that after
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he got out of prison, he moved to California, but then returned in
early 2021, and began to sell marijuana, then “crack cocaine,
heroin, stuff like that.” Heard testified that he had known
Freeman for about 12-15 years and that they met through a cousin.
Heard received a large inheritance in 2009, and after he spent it,
he and Freeman started to get involved in the drug scene.
{¶15} On October 12, 2021, Freeman called Heard and asked if he
wanted to travel to West Virginia to sell drugs because they could
make more money than in Cincinnati. Freeman and appellant picked
up Heard at his mother’s home. Heard had known appellant for five
or six years through mutual friends like Freeman. Heard said they
“probably roll a joint up. . . I think Hodges rolled a joint. We
had some liquor. So, it was time to hit the road.” When asked if
he had drugs with him, Heard replied, “Yeah. I had my - - I had my
drugs on me in my ass.” Heard explained, “[t]hey never in all my
years of selling drugs, they never found my drugs there. I’m only
going to carry enough that I know could fit in my butt.” Heard
also testified that he believed that everybody had drugs on them to
sell that day.
{¶16} Heard testified that when Trooper Lewis pulled them over,
Freeman and appellant panicked,
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they had drugs on them. And they get to shuffling in the
front seat, try to pour the drugs in the pop. The pop
explode. And now I’m telling them pour it on the floor,
man. Pour it on the floor, pour the pop on it. By the
time the - - the officer get to my door, it’s in the
backseat. I just grabbed it.
{¶17} Heard said appellant tossed drugs back to him and told
Heard to “do something with them.” Heard watched Trooper Lewis
remove Freeman from the vehicle, pat him down, and place him in the
back of Lewis’s cruiser, “so, I’m still trying to figure out what
to do with them. So, I just grabbed them and . . . put them on the
side of me. So, he take Hodges out, search him. So when he take
me out, I just slide it in my pants.” When Lewis removed him from
the vehicle and patted him down, Lewis found the drugs that Heard
had not concealed in his buttocks. Heard said Lewis “found the
nine grams of crack. . . I had it in two separate bags . . . If I
would have had it all in one bag, it probably wouldn’t have fell
out. So, I had it in two separate bags, because I ain’t think to
be pulled over. So, I tried to push it up a little more. I guess
when he pulled the - - the big bag out the - - that little bag of
crack fell - - fell out with it. . .”
{¶18} When asked what he said when Trooper Lewis asked if these
were his drugs, Heard replied, “Yes sir. I admitted to them.”
When asked if that “was an accurate statement,” Heard replied,
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“What the - - they wasn’t my drugs. I just admitted to them
because I didn’t want to be labeled a snitch, or I ain’t know they
was going to let us go, ride back with them, or go to jail, or - -
so I just said they was mine.” When asked, “[w]hat comes with
being labeled as a snitch,” Heard replied, “I mean, anything. It
depends on - - anything. You can - - it could - - you could be
cool. You could get killed. You could - - you could do - -
anything could happen to you. . . You could get beat up in prison,
stabbed in prison, any of that.”
{¶19} Heard also recalled that he “just told Hodges, I’m like,
man, just make sure you all get me a lawyer. I’m like, man, I’m
about to go to jail. Man, just make sure you all get me a lawyer,
and make sure I’m good.” Heard stated that in response, they said,
“I got you, bro. Don’t worry. We got you. We ain’t - - you ain’t
no worry.” Heard said the group planned to stay in West Virginia
until they had sold their drugs, and explained that when Trooper
Lewis let them leave the scene, they continued their trip to West
Virginia where Heard sold the rest of the drugs he still possessed,
“made like - - $900 to $1,000,” and Heard’s girlfriend picked him
up in West Virginia. Heard added that upon his arrest in December,
Freeman and appellant did not hire an attorney for Heard, and that
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other inmates were aware that he had “snitched.”
{¶20} Ohio State Highway Patrol Crime Laboratory Criminalist
Brianna Ray testified she tested the first sample with the “marquis
color test” and determined that it “most likely [consisted of]
cocaine.” Then, Ray performed a fourier transfer infrared
spectrometer (FTIR) test on the sample and positively identified it
as 18.8480 grams of cocaine. For the second sample, Ray performed
a gas chromatography mass spectrometry (GCMS) test and confirmed
that the substance was fentanyl “with an indication of
flurofentanyl. . . a fentanyl-related compound that is often seen
when you have a process of making fentanyl.” The substance weighed
49.4638 grams. Ray tested the final sample with the FTIR test and
determined that it consisted of 9.7093 grams of cocaine.
{¶21} At the close of appellee’s evidence, the trial court
denied appellant’s Crim.R. 29 motion for judgment of acquittal.
After deliberation, the jury found appellant guilty of (1)
trafficking in cocaine in violation of R.C. 2925.03(A)(2), a third-
degree felony (amount equal to or exceeding 10 grams but less than
20 grams), (2) trafficking in a fentanyl-related compound in
violation of R.C. 2925.03(A)(2), a first-degree felony (amount
equal to or exceeding 20 grams but less than 50 grams), (3)
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possession of cocaine in violation of R.C. 2925.11(A), a third-
degree felony (amount equal to or exceeding 10 grams but less than
20 grams), (4) possession of a fentanyl-related compound in
violation of R.C. 2925.11(A), a first-degree felony (amount equal
to or exceeding 20 grams but less than 50 grams), (5) possessing
criminal tools in violation of R.C. 2923.24(A), a fifth-degree
felony (2019 Chevrolet Captiva rental vehicle used in the
commission of the felonies), and (6) possession of marijuana in
violation of R.C. 2925.11(A), a minor misdemeanor.
{¶22} At the sentencing hearing, appellee agreed that the
trafficking and possession convictions should merge and elected to
proceed with the trafficking counts. The trial court considered
the pertinent sentencing statutes and factors, merged Counts 1 and
3 for purposes of sentencing, and proceeded to sentence on Count 1
trafficking in cocaine, and merged Counts 2 and 4 for purposes of
sentencing, and proceeded to sentence on Count 2 trafficking in a
fentanyl-related compound. The court observed that appellant
committed these offenses while on federal parole and had prior
felony convictions in both state and federal court and prior
misdemeanor convictions in state court. The court further
concluded that consecutive sentences are necessary to protect the
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public from future crime by appellant.
{¶23} The trial court sentenced appellant to (1) serve a 24-
month prison term on Count 1, (2) serve a mandatory minimum of 10-
years to an indefinite maximum of 15 years on Count 2, (3) serve a
6-month prison term on Count 5, (4) pay a $150 fine on Count 6, (5)
serve Counts 1 and 2 consecutively with each other, and Count 5
concurrently with the sentence in Count 2, for a minimum prison
term of 12-years with 10 years being mandatory, to an indefinite
maximum prison term of up to 17 years, (6) serve a mandatory 2-5
year postrelease control term, (7) pay a $20,000 fine, and (8) pay
costs. This appeal followed.
I.
{¶24} In his first assignment of error, appellant asserts that
sufficient evidence does not support his convictions and that his
convictions are against the manifest weight of the evidence.
Standard of Review
{¶25} As a threshold matter, because appellant challenges both
the sufficiency of the evidence and the manifest weight of the
evidence, we initially address both standards of review.
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{¶26} 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 (1997), syllabus; 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).
{¶27} 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 at 390 (Cook, J., concurring). Therefore, when
reviewing a sufficiency of the evidence claim, an appellate court
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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 (2001); State v. Treesh,
90 Ohio St.3d 460, 484 (2001).
{¶28} “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
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 (1978), syllabus. 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.
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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).
{¶29} Thus, an appellate court will generally defer to the
trier of fact on issues of evidence weight and credibility, as long
as a 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
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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).
{¶30} Consequently, when an appellate court reviews a manifest
weight of the evidence claim, the 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 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).
{¶31} In the case sub judice, appellant does not dispute the
minor misdemeanor marijuana offense and concedes that he owned and
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possessed the marijuana. However, appellant contends that he did
not constructively possess or traffick in the narcotics associated
with co-defendant Heard, nor did he use the rental vehicle as a
criminal tool. Appellant argues that (1) he did not rent the
vehicle, (2) he did not drive the vehicle, (3) no evidence suggests
that he knew of the trip’s purpose, (4) no evidence proves that
appellant knew Heard possessed narcotics, (5) no evidence suggests
that appellant knew about or owned the box of plastic bags found in
the glove compartment, and (6) Heard’s plea agreement made his
testimony suspect.
{¶32} Appellee, however, argues that Heard’s uncontroverted
testimony established that all three occupants possessed narcotics,
intended to “make some money,” via trafficking, and appellant threw
his drugs into the backseat when Trooper Lewis initiated the
traffic stop.
Possession
{¶33} R.C. 2925.11(A) sets forth the essential elements of the
offense of possession of drugs. The statute provides: “No person
shall knowingly obtain, possess, or use a controlled substance or a
controlled substance analog.”
R.C. 2901.22(B) defines when a person acts knowingly:
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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 a
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.
{¶34} Whether a defendant knowingly possessed a controlled
substance “is to be determined from all the attendant facts and
circumstances available.” State v. Teamer, 82 Ohio St.3d 490, 492
(1998); accord State v. Corson,
2015-Ohio-5332, ¶ 13 (4th Dist.)
To establish knowing possession of a controlled substance under
R.C. 2925.11(A), the state is not required to prove that “a
defendant knew the specific characteristics of the item possessed
that made it” a controlled substance. State v. Jordan,
89 Ohio
St.3d 488, 494 (2000); accord State v. Williams,
2005-Ohio-1597, ¶
34 (2d Dist.).
{¶35} “Possession of drugs can be either actual or
constructive.” State v. Bustamante, 2013-Ohio-4975, ¶ 25 (3d
Dist.), citing State v. Cooper,
2007-Ohio-4937, ¶ 25 (3d Dist.),
citing State v. Wolery,
46 Ohio St.2d 316, 329 (1976). “ ‘Actual
possession exists when the circumstances indicate that an
individual has or had an item within his immediate physical
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possession.’ ” State v. Kingsland, 2008-Ohio-4148, ¶ 13 (4th
Dist.), quoting State v. Fry,
2004-Ohio-5747, ¶ 39 (4th Dist.).
“Constructive possession exists when an individual knowingly
exercises dominion and control over an object, even though that
object may not be within his immediate physical possession.” State
v. Hankerson,
70 Ohio St.2d 87, (1982), syllabus; State v. Brown,
2009-Ohio-5390, ¶ 19 (4th Dist.). For constructive possession to
exist, the state must show that the defendant was conscious of the
object's presence. Hankerson,
70 Ohio St.2d at 91;
Kingsland at ¶
13; accord State v. Huckleberry,
2008-Ohio-1007, ¶ 34 (4th Dist.);
State v. Harrington,
2006-Ohio-4388, ¶ 15 (4th Dist.); Criss v.
City of Kent,
867 F.2d 259, 263 (6th Cir. 1988) (“Ohio law is clear
that a suspect can be in ‘constructive possession’ of …
property without having actual physical possession of the property
if it is located within premises under the suspect's control and he
was conscious of its presence.”).
{¶36} Both dominion and control, and whether a person was
conscious of the object's presence, may be established through
circumstantial evidence alone. E.g., Brown at ¶ 19; see, e.g.,
State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph one of the
syllabus (“[c]ircumstantial evidence and direct evidence inherently
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possess the same probative value”); State v. Davis, 2018-Ohio-4268,
¶ 50 (3d Dist.)(prosecution may establish constructive possession
by circumstantial evidence alone.). “Circumstantial evidence is
defined as ‘[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. . .’ ” State v. Nicely,
39 Ohio St.3d 147, 150 (1988),
quoting Black's Law Dictionary 221 (5th Ed.1979).
{¶37} Furthermore, to establish constructive possession, the
state need not show that the defendant had “[e]xclusive control”
over the contraband. State v. Tyler, 2013-Ohio-5242, ¶ 24 (8th
Dist.), citing State v. Howard,
2005-Ohio-4007, ¶ 15 (8th Dist.),
citing In re Farr, 10th Dist. Franklin No. 93AP-201,
1993 WL
464632, *6 (Nov. 9, 1993) (nothing in R.C. 2925.11 or 2925.01
states that illegal drugs must be in sole or exclusive possession
of accused at time of offense). Instead, “ ‘[a]ll that is required
for constructive possession is some measure of dominion or control
over the drugs in question, beyond mere access to them.’ ” Howard
at ¶ 15, quoting Farr at *6. Thus, simply because others may have
access to the contraband, in addition to the defendant, does not
mean that the defendant “could not exercise dominion or control
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over the drugs.” Tyler at ¶ 24; accord State v. Walker, 2016-Ohio-
3185, ¶ 75 (10th Dist.) because multiple persons may have joint
constructive possession of an object. State v. Philpott, 2020-
Ohio-5267, ¶ 67 (8th Dist.); Wolery,
46 Ohio St.2d at 332, 329
(“[p]ossession … may be individual or joint” and “control or
dominion may be achieved through the instrumentality of another”);
State v. Russell,
2022-Ohio-1746, ¶ 43 (4th Dist.).
Although a defendant’s mere proximity is in itself
insufficient to establish constructive possession,
proximity to the object may constitute some evidence of
constructive possession. Fry at ¶ 40. Thus, presence in
the vicinity of contraband, coupled with another factor or
factors probative of dominion or control over the
contraband, may establish constructive possession.
Kingsland, 2008-Ohio-4148, at ¶ 13.
{¶38} Although appellant contends that appellee adduced no
evidence to prove constructive possession, we note that appellee
adduced evidence that (1) appellant rode in a rental vehicle with
two other men, (2) the car traveled on a known drug corridor, (3)
appellant and the driver gave conflicting answers in response to
the question, “where are you headed,” (4) codefendant Heard
testified that when Trooper Lewis stopped them, the driver and
appellant panicked because “they had drugs on them,” (5)
codefendant Heard testified that appellant and the driver tried to
SCIOTO, 24CA4061
24
pour their drugs into “pop” on the floor of the vehicle,” and (6)
codefendant Heard testified that appellant “tossed them [the drugs]
back to” him in the backseat and told Heard to “do something with
them.”
{¶39} Thus, when Trooper Lewis found drugs on Heard’s person,
it is reasonable for the jury to conclude that appellant
constructively possessed those drugs. See State v. Davis, 2018-
Ohio-4368 (3d Dist.)(constructive possession requires ability to
exercise dominion and control over item, even without immediate
physical possession; readily usable drugs in close proximity to
accused can constitute sufficient circumstantial evidence to
support constructive possession); State v. Dues, 2014-Ohio-5276
(8th Dist.)(constructive possession proven via circumstantial
evidence after delay in opening apartment door and codefendant
threw drugs off of defendant’s balcony); State v. McClain, 2020-
Ohio-1436 (3d Dist.)(mere proximity to drugs is insufficient to
establish constructive possession, but proximity combined with
other factors indicative of dominion or control, such as furtive
movements, can support a finding of constructive possession); State
v. Fulton,
2024-Ohio-671 (7th Dist.)(readily usable drugs found in
close proximity to defendant can be sufficient circumstantial
SCIOTO, 24CA4061
25
evidence for constructive possession; defendant did not own
vehicle, but drugs where within reach); State v. Dixon, 2016-Ohio-
1491, ¶ 19 (4th Dist.)(defendant driver constructively possessed
drugs contained in another passenger’s buttocks); State v. Crocker,
2015-Ohio-2538, (4th Dist.)(constructive possession of drugs
carried in codefendant’s vagina proven when defendant was driver of
vehicle and text messages and jail phone calls proved knowledge).
{¶40} Further, appellant’s argument that Heard alone should be
responsible for the drugs does not help his position because two or
more people can have constructive possession of the same object.
State v. Reed, 2018-Ohio-4451, ¶ 20 (6th Dist.). In other words,
the fact that his fellow passengers might also have had something
to do with the drugs does not preclude a finding that appellant
constructively possessed them. See State v. Armstrong, 2025-Ohio-
771, ¶ 41 (6th Dist.).
{¶41} Thus, after we view the evidence in a light most
favorable to appellee, this evidence, albeit circumstantial,
sufficiently supported appellant’s constructive possession of
cocaine and fentanyl.
Trafficking
SCIOTO, 24CA4061
26
{¶42} R.C. 2925.03(A)(2) defines trafficking in
cocaine/fentanyl (Counts 1 & 2):
(A) No person shall knowingly do any of the following:
(2) Prepare for shipment, ship, transport, deliver, prepare
for distribution, or distribute a controlled substance or
a controlled substance analog, when the offender knows or
has reasonable cause to believe that the controlled
substance or a controlled substance analog is intended for
sale or resale by the offender or another person.
{¶43} Again, in the case sub judice, our review of the evidence
reveals that (1) appellant rode in a rental vehicle, (2) down a
known drug corridor, (3) appellant and the driver gave conflicting
answers to the response to the question, “where are you headed,”
(4) appellant was or had been smoking marijuana when Trooper Lewis
pulled the vehicle over, (5) appellant sat directly in front of the
glove box where Trooper Lewis found a box of plastic baggies used
for drug trafficking, (6) codefendant Heard testified that
appellant and the driver tried to pour their drugs into “pop” on
the floor of the vehicle,” (7) codefendant Heard testified that
appellant “tossed them [the drugs] back to” him in the backseat and
told Heard to “do something with them,” and (8) Trooper Lewis
testified that the weight of the fentanyl and cocaine indicated
“seller amounts,” not “user amounts.”
SCIOTO, 24CA4061
27
{¶44} Heard’s testimony supported appellant’s trafficking
convictions. For example, Heard stated that Freeman (the driver)
called him and asked him to “go to West Virginia” and asked him,
“You got some,” to which Heard replied, “Yeah, I got some,” which
Heard acknowledged meant “drugs.” Heard testified that they went
to West Virginia because it meant “more money,” meaning “it’s a
small town, small city or whatever, and they pay big. They going
to pay more than what Cincinnati going to pay.” Heard stated that
when Freeman picked him up at his mother’s house, appellant was
already in the vehicle.
{¶45} Heard testified that when Trooper Lewis pulled them over,
“everybody” panicked and “everybody” said “they got us,” including
appellant. Heard stated that Freeman “ain’t pull over right away,”
[b]ecause. . . they had drugs on them. And then get to
shuffling in the front seat, try to pour the drugs in the
pop. The pop explode. And now I”m telling them pour it
on the floor, man. Pour it on the floor, pour the pop on
it. By the time the - the officer get to my door, it’s in
the backseat. I just grabbed it.
{¶46} Heard explained that after that, appellant tossed his
SCIOTO, 24CA4061
28
drugs back to him because Freeman drove and appellant
[h]e like ‘do something with them.’ So, I - - I sit there
for a minute, and I just end up grabbing them. . . I grabbed
them off the console, put them back there with me. I seen
that he took - - he took Freeman out of the car first,
searched him took him to the back of the car, patted him
down, searched him. So, I’m still trying to figure out
what to do with them. So I just grabbed them and put them
- - put them on the side of me. So, he take Hodges out,
search him. So, when he take me out, I just slide it in
my pants.
{¶47} Thus, viewing the evidence in a light most favorable to
appellee, sufficient evidence supported appellant’s trafficking
convictions.
Possession of Criminal Tools
{¶48} In addition to possession and trafficking, the jury
convicted appellant of possession of criminal tools, i.e., the
rental car. R.C. 2923.24(A) defines possession of criminal tools
(Count 5): “(A) No person shall possess or have under the person's
control any substance, device, instrument, or article, with purpose
to use it criminally.”
{¶49} The statute requires proof of both control over the item
SCIOTO, 24CA4061
29
and the specific intention to use it to commit a crime. In re
L.M., 2024-Ohio-2974 (1st Dist.). In the context of a rental
vehicle, an automobile can be considered a criminal tool if a
criminal defendant uses it with the intent to facilitate a crime.
State v. Hodge,
2020-Ohio-3002, ¶ 47 (5th Dist.). Generally, the
key element is control over the vehicle and the intent to use it
criminally. For example, in State v. Tell,
2005-Ohio-1178, ¶ 25
(8th Dist.), the court found sufficient evidence to support a
possession of criminal tools conviction when the defendant used his
vehicle to commit a crime. Similarly, in State v. Gibson, 2003-
Ohio-5839 (8th Dist.), the court upheld a conviction where the
defendant used his car to facilitate drug transactions.
{¶50} However, if the person is neither the driver nor the
vehicle renter, establishing control over the vehicle becomes more
challenging. In State v. McShan, 77 Ohio App.3d 781 (Oct. 21,
1991, 8th Dist.), the Eighth District concluded that where the
defendant was the front seat passenger, the driver had title to the
vehicle, and nothing demonstrated that the defendant could exercise
dominion or control over the vehicle, the State failed to adduce
SCIOTO, 24CA4061
30
sufficient evidence to support a possession of criminal tools
conviction based on the vehicle. Id. at 783-784. This suggests
that mere presence in the vehicle, without evidence of control or
intent to use it criminally, may not be sufficient for a
conviction.
{¶51} In the case sub judice, however, although appellant was
neither the driver nor the renter of the vehicle, evidence adduced
at trial through codefendant Heard’s testimony established that
appellant, Freeman, and Heard intended to use the rental car to
travel from Cincinnati to West Virginia to sell narcotics. Thus,
we conclude that viewing the evidence in a light most favorable to
appellee, sufficient evidence supported appellant’s possession of
criminal tools conviction.
{¶52} Finally, appellant contends that the “actual evidence”
about his alleged possession and complicity with trafficking that
night was almost entirely offered by Quentin Heard, whose testimony
could be biased because he testified pursuant to a plea agreement.
Appellee, however, points out that the jury “was free to believe
all, part, or none of the testimony of each witness,” State v.
SCIOTO, 24CA4061
31
Hall, 2014-Ohio-2959, ¶ 2 (4th Dist.), and this court should defer
to the jury on these evidentiary weight and credibility issues.
State v. Daniels,
2011-Ohio-5603, ¶ 23 (4th Dist.); State v. Abudu,
2023-Ohio-2294, ¶ 65 (8th Dist.). Thus, the jury may assess what
weight, if any, to attribute to the testimony of each witness.
{¶53} To decide whether the case sub judice is an exceptional
case in which the evidence weighs heavily against conviction, this
court must review the record, weigh the evidence and all reasonable
inferences, and consider witness credibility. State v. Martin, 20
Ohio App.3d 172, 175, (1st Dist. 1983). However, a reviewing court
must bear in mind that credibility generally is an issue for the
trier of fact to resolve. State v. Schroeder,
2019-Ohio-4136, ¶ 61
(4th Dist.); State v. Dunn,
2012-Ohio-518, ¶ 16 (4th Dist.); State
v. Wickersham,
2015-Ohio-2756, ¶ 25 (4th Dist.). Because the trier
of fact sees and hears the witnesses, an appellate court will
afford substantial deference to a trier of fact's credibility
determinations.
Schroeder at ¶ 62. The jury has the benefit of
seeing witnesses testify, observing facial expressions and body
language, hearing voice inflections, and discerning qualities such
SCIOTO, 24CA4061
32
as hesitancy, equivocation, and candor. State v. Fell, 2012-Ohio-
616, ¶ 14 (6th Dist.); State v. Pinkerman, 2024-Ohio-1150, ¶ 26
(4th Dist.). Thus, an appellate court may reverse a conviction
only if the trier of fact clearly lost its way in resolving
conflicts in the evidence and created a manifest miscarriage of
justice. State v. Benge,
2021-Ohio-152, ¶ 28 (4th Dist.).
{¶54} Only in extraordinary circumstances when evidence
presented at trial weighs heavily in favor of acquittal, will an
appellate court overturn a conviction on the manifest weight of the
evidence grounds. State v. Ridenour, 2023-Ohio-2713, ¶ 50 (12th
Dist.). The case at bar is not one of those extraordinary cases.
Here, the evidence presented at trial does not weigh heavily in
favor of acquittal. Consequently, after our review of the record,
we conclude that ample competent, credible evidence supports
appellant's felony convictions. Thus, appellant's convictions are
not against the manifest weight of the evidence. We believe
appellee also satisfied its burden of persuasion.
{¶55} Accordingly, based upon the foregoing reasons, we
overrule appellant's first assignment of error.
SCIOTO, 24CA4061
33
II.
{¶56} In his second assignment of error, appellant asserts that
the trial court committed reversible error when it accepted the
submission of a jury instruction after closing arguments.
Apparently, before trial appellee sought a consciousness of guilt
jury instruction based on Heard’s testimony that appellant threw
his drugs in the backseat when Trooper Lewis initiated the traffic
stop. At the close of the trial court’s jury instructions,
appellee stated
I want to take responsibility for this up front, because
when you asked us about consciousness of guilt coming out,
I had an argument that I couldn’t bring back to the front
of my mind, and there is ample case law on what Quentin
Heard testified to. The tampering with the evidence by
throwing it back and trying to conceal it is a
consciousness of guilt. And I - - I don’t know why I
didn’t think about it earlier, but when he started his
first closing, I’m like, holy crap. So that’s the only
thing I would add is that I do feel like that consciousness
of guilt instruction should be in there based on the
testimony that was heard in the courtroom.
{¶57} Counsel objected and characterized the situation as, “a
little bit late in the instructions to do that.” The trial court
SCIOTO, 24CA4061
34
noted that it had apparently included the consciousness of guilt
instruction in earlier jury instruction drafts, but it did not
appear in the final draft. The court then referred to a previously
discarded version of the jury instructions, decided to add the
consciousness of guilt instruction and stated, “All right. I’m
going to give the additional instruction with that, because we did
hear the testimony. I hadn’t considered that, to be honest.” The
court then instructed the jury:
Ladies and Gentleman, I’m going to read an additional
instruction to you that originally I took out. But I’m
going - - I’ve considered the arguments of Counsel here at
the bench. I’m going to go ahead and put a variation of
that back in. So, I’m going to read it to you. You will
not have this in the jury room. If during your
deliberations you want a copy of this in the jury room,
I’ll print out a copy that doesn’t have my handwriting all
over it from the changes I’ve made here on the bench.
Testimony has been admitted that the Defendant tampered
with evidence. You’re instructed that tampering with
evidence does not raise a presumption of guilt, but it may
tend to indicate the Defendant’s conscious - -
consciousness of guilt. If you find that these facts do
not support the Defendant tampered with evidence, or if
you find that some other motive prompted the Defendant’s
conduct, or if you’re unable to decide what the Defendant’s
motivation was, then you should not consider this evidence
for any purpose. However, if you find the facts support
that the Defendant engaged in such conduct, and if you
SCIOTO, 24CA4061
35
decide that the Defendant was motivated by a consciousness
of guilt, you may, but are not required to, consider that
evidence in deciding whether the Defendant is guilty of
the crimes charged. You alone will determine what weight,
if any, to give this evidence.
{¶58} Trial courts are charged with giving juries “complete and
accurate” instructions that adequately reflect the issues argued in
the case before them. State v. Sneed, 63 Ohio St.3d 3, 9 (1992).
“A criminal defendant has the right to expect that the trial court
will give complete jury instructions on all issues raised by the
evidence.” State v. Howard,
2007-Ohio-6331, ¶ 26 (4th Dist.).
Trial courts should ordinarily give requested jury instructions if
they are correct statements of law that are applicable to the facts
in the case, and reasonable minds might reach the conclusion sought
by the instruction.
Id., citing Murphy v. Carrollton Mfg. Co.,
61
Ohio St.3d 585, 591 (1991).
{¶59} When reviewing errors in a jury instruction, a trial
court must consider a jury charge as a whole. State v. Brock,
2024-Ohio-1036, ¶ 28 (4th Dist.), citing State v. Huish, 2023-Ohio-
365, ¶ 54 (10th Dist.), citing Cromer v. Children's Hosp. Med. Ctr.
SCIOTO, 24CA4061
36
of Akron, 2015-Ohio-229, ¶ 35-36. However, “[a]n unnecessary,
ambiguous, or even affirmatively erroneous portion of a jury charge
does not inevitably constitute reversible error.”
Id. When a jury
instruction incorrectly states the law, a reviewing court applies a
mixed de novo and abuse of discretion standard of review, examining
the jury charge as a whole and determining “whether the jury charge
probably misled the jury in a matter materially affecting the
complaining party's substantial rights.”
Id.
Ohio Crim.R. 30(A) provides:
At the close of the evidence or at such earlier time during
the trial as the court reasonably directs, any party may
file written requests that the court instruct the jury on
the law as set forth in the requests. Copies shall be
furnished to all other parties at the time of making the
requests. The court shall inform counsel of its proposed
action on the requests prior to counsel’s arguments to the
jury and shall give the jury complete instructions after
the arguments are completed. The court also may give some
or all of its instructions to the jury prior to counsel’s
arguments. The court shall reduce its final instructions
to writing or make an audio, electronic, or other recording
of those instructions, provide at least one written copy
or recording of those instructions to the jury for use
during deliberations, and preserve those instructions for
the record.
{¶60} In the case sub judice, the trial court reduced all jury
SCIOTO, 24CA4061
37
instructions, other than the consciousness of guilt instruction, to
writing and submitted them to the jury for consideration during
deliberation. In fact, the court offered to send in a “clean copy”
of the oral consciousness of guilt instruction if requested because
the court’s copy contained the judge’s handwriting. We conclude
that any error in omitting the consciousness of guilt instruction
was harmless.
{¶61} As appellee points out, in State v. Perry, 2004-Ohio-297,
the Supreme Court of Ohio held that a trial court’s failure to
maintain written jury instructions with the “papers of the case” is
not a structural error requiring automatic reversal.
Id., at
syllabus. Similarly, in State v. Cosolis,
2002-Ohio-4302, ¶ 84
(10th Dist.), the court determined that the omission of written
instructions from the record constituted harmless error when the
oral instructions did not materially deviate from the written
instructions. Compare State v. Mayle,
2015-Ohio-4838, ¶ 19, 26
(7th Dist.)(reversal and new trial required when trial court failed
to provide any written jury instructions and the jury asked
questions that indicated it did not understand certain legal
SCIOTO, 24CA4061
38
definitions.)
{¶62} Thus, under the facts of this case, we believe that the
trial court did not err when it orally provided a consciousness of
guilt instruction, but provided all other instructions to the jury
in writing and offered to send in a clean copy of the consciousness
of guilt instruction if requested. Accordingly, we overrule
appellant’s second assignment of error.
III.
{¶63} In his third assignment of error, appellant asserts that
the trial court erred when it denied trial counsel’s request for a
jury instruction that the mere presence of an accused at the scene
of a crime, even with knowledge of the commission of the crime, is
insufficient to convict.
{¶64} Trial counsel’s proposed jury instruction provided: “The
mere presence of an accused at the scene of a crime, even with
knowledge of commission of the crime, is not sufficient to
convict.” The trial court indicated that the existing Kingsland
SCIOTO, 24CA4061
39
constructive possession instruction would make appellant’s proposed
instruction “repetitive.” Thus, the court stated, “I think . . .
to duplicate that would run the risk of causing confusion that
there’d be two separate findings the jury would have to make on
possession, as opposed to one.”
{¶65} When instructing regarding possession, the trial court
stated:
Possession is an essential element of the offense of
possession of cocaine. Possession may be actual or
constructive. Actual possession exists when the
circumstances indicate that an individual has or had an
item within his immediate physical possession.
Constructive possession exists when an individual is able
to exercise dominion or control over an item, even if the
individual does not have the item within his immediate
physical possession. For constructive possession to exist,
it must also be shown that the person was conscious of the
presence of the object. Although a defendant’s mere
proximity in and of itself- although a defendant’s mere
proximity is in itself insufficient to establish
constructive possession, proximity to the object may
constitute some evidence of constructive possession. Thus,
presence in the vicinity of contraband, coupled with
another factor or factors probative of dominion or control
over the contraband, may establish constructive
possession. Possess - - possession may be indicated by
other factors such as the availability of th drugs or the
amount of the drugs. The presence of a large amount of
drugs supports an inference that the Defendant may have
known about the presence of the drugs and that they
SCIOTO, 24CA4061
40
exercised control over the drugs in question. You are to
examine the totality of the circumstances when considering
actual and/or contrastive [sic.] possession. Whether an
inference is made rests entirely with the jury.
{¶66} A trial court generally has broad discretion to fashion
jury instructions. State v. Hamilton, 2011-Ohio-2783, ¶ 69 (4th
Dist.). However, “a trial court must fully and completely give the
jury all instructions which are relevant and necessary for the jury
to weigh the evidence and discharge its duty as the fact finder.”
State v. Comen,
50 Ohio St.3d 206(1990), paragraph two of the
syllabus. “Additionally, a trial court may not omit a requested
instruction, if such instruction is ‘a correct, pertinent statement
of the law and [is] appropriate to the facts ….’ ”
Hamilton at
¶ 69, quoting State v. Lessin,
67 Ohio St.3d 487, 493 (1993).
“When reviewing a trial court's jury instructions, the proper
standard of review for an appellate court is whether the trial
court's refusal to give a requested jury instruction constituted an
abuse of discretion under the facts and circumstances of the case.”
State v. Leasure,
2015-Ohio-5327, ¶ 49 (4th Dist.), citing State v.
Ellis,
2004-Ohio-610, ¶ 19 (5th Dist.); State v. Newby, 2024-Ohio-
SCIOTO, 24CA4061
41
1391, ¶ 68 (2d Dist.).
{¶67} Although the “mere presence at the scene” instruction and
the “constructive possession” instruction are not necessarily
interchangeable, in the case sub judice the court's general
instructions to the jury clearly indicated that, for appellant to
be found guilty, the jury must find that he had knowingly
participated in the offenses. A trial court is not required to
give a proposed instruction that is subsumed within the court's
general charge. State v. Johnson, 140 Ohio App.3d 385, 294 (1st
Dist. 2000), citing State v. Sneed,
63 Ohio St.3d 3, 9 (1992);
State v. Biggers,
1992 WL 86507 (1st Dist. Apr. 29, 1992).
Therefore, even if we assumed that the evidence presented at trial
arguably supported the requested charge, we would find no error in
the court's refusal to instruct the jury on “mere presence.”
{¶68} Accordingly, we overrule appellant’s third assignment of
error.
IV.
{¶69} In his final assignment of error, appellant asserts that
SCIOTO, 24CA4061
42
the cumulative effect of the trial court’s error created reversible
error that warrants reversal.
{¶70} Under the cumulative-error doctrine, “a conviction will
be reversed where the cumulative effect of errors in a trial
deprives a defendant of the constitutional right to a fair trial
even though each of numerous instances of trial court error does
not individually constitute cause for reversal.” State v. Garner,
74 Ohio St.3d 49, 64 (1995), citing State v. DeMarco,
31 Ohio St.3d
191 (1987), paragraph two of the syllabus; State v. Ruble, 2017-
Ohio-7259, ¶ 75 (4th Dist.); State v. Fannon,
2018-Ohio-5242, ¶ 124
(4th Dist.); State v. Thomas,
2024-Ohio-2281, ¶ 42 (4th Dist.).
“Before we consider whether ‘cumulative errors’ are present, we
must first find that the trial court committed multiple errors.”
State v. Smith,
2016-Ohio-5062, ¶ 106 (4th Dist.), citing State v.
Harrington,
2006-Ohio-4388, ¶ 57 (4th Dist.). However, because our
review of the record did not find trial court error, the cumulative
error doctrine does not apply. Thus, we overrule appellant's
fourth assignment of error.
{¶71} Accordingly, for all of the foregoing reasons, we affirm
SCIOTO, 24CA4061
43
the trial court's judgment.
JUDGMENT AFFIRMED.
SCIOTO, 24CA4061
44
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 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 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
SCIOTO, 24CA4061
45
BY:_____________________________
Peter B. Abele, Judge
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.
