[Cite as State v. Johnson,
2025-Ohio-3137.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 23CA11
v. :
RICHARD JOHNSON, : DECISION AND
JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
John M. Gonzales, Columbus, Ohio, for appellant.
Anneka P. Collins, Highland County Prosecuting Attorney, and
Adam J. King, Highland County Assistant Prosecuting Attorney,
Hillsboro, Ohio for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:8-27-25
ABELE, J.
{¶1} This appeal is pending before this court pursuant to
our October 23, 2024 decision that granted the application of
Richard Johnson, defendant below and appellant herein, to reopen
his appeal pursuant to App.R. 26(B). Appellant raises the
following assignments of error:1
1 Appellant’s brief contains 22 assignments of error. The first
11 assignments of error assert that appellate counsel was
ineffective for failing to raise 11 alleged errors. Assignments
of error 12 through 22 repeat those assignments of error without
the assertion that appellate counsel was ineffective. We have
reproduced those assignments of error in the appendix to this
HIGHLAND, 23CA11 2
FIRST ASSIGNMENT OF ERROR:
“APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT
ASSIGNING ERROR TO THE FACT THERE WAS
INSUFFICIENT EVIDENCE TO CONVICT MR. JOHNSON
OF ENGAGING IN A PATTERN OF CORRUPT
ACTIVITY. THE INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL IS A VIOLATION OF THE
APPELLANTS [SIC] RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL FOUND IN THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.”
SECOND ASSIGNMENT OF ERROR:
“APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT
ASSIGNING ERROR TO THE FACT THERE WERE JURY
INSTRUCTIONS THAT RELIEVED THE STATE OF
PROOF BEYOND A REASONABLE DOUBT THROUGH THE
INCORRECT READING OF FACTS RELATED TO THE
INDICTMENT. THE INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL IS A VIOLATION OF THE
APPELLANTS [SIC] RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL FOUND IN THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.”
THIRD ASSIGNMENT OF ERROR:
“APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT
ASSIGNING ERROR TO THE FACT TRIAL COUNSEL
NEVER OBJECTED TO THE COURT GIVING
INSTRUCTION’S [SIC] THAT LESSENED THE STATES
[SIC] BURDEN OF PROOF. THE INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL IS A
VIOLATION OF THE APPELLANTS [SIC] RIGHT TO
THE EFFECTIVE ASSISTANCE OF COUNSEL FOUND IN
THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.”
FOURTH ASSIGNMENT OF ERROR:
opinion. Due to the nature of this reopened appeal, we will
consider the first 11 assignments of error, and we summarily
overrule appellant’s 12th through 22nd assignments of error.
HIGHLAND, 23CA11 3
“APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT
ASSIGNING ERROR WHEN THE COURT TOLD THE
DEFENDANT HE HAD TO PROCEED PRO SE,
VIOLATING HIS RIGHT TO COUNSEL OF CHOICE.
THE INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL IS A VIOLATION OF THE APPELLANTS
[SIC] RIGHT TO THE EFFECTIVE ASSISTANCE OF
COUNSEL FOUND IN THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION.”
FIFTH ASSIGNMENT OF ERROR:
“APPELLATE COUNSEL WAS INEFFECTIVE WHEN HE
FAILED TO ASSIGN ERROR TO THE FACT THE TRIAL
JUDGE PROJECTED BIAS. THE INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL IS A
VIOLATION OF THE APPELLANTS [SIC] RIGHT TO
THE EFFECTIVE ASSISTANCE OF COUNSEL FOUND IN
THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.”
SIXTH ASSIGNMENT OF ERROR:
“APPELLATE COUNSEL WAS INEFFECTIVE WHEN HE
FAILED TO ASSIGN ERROR TO THE FACT THERE WAS
GOVERNMENT INTERFERENCE. THE INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL IS A
VIOLATION OF THE APPELLANTS [SIC] RIGHT TO
THE EFFECTIVE ASSISTANCE OF COUNSEL FOUND IN
THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.”
SEVENTH ASSIGNMENT OF ERROR:
“APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT
ASSIGNING ERROR TO THE FACT THE TRIAL JUDGE
COMPROMISED THE AUTONOMY RIGHT OF THE
DEFENDANT. THE INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL IS A VIOLATION OF THE
APPELLANTS [SIC] RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL FOUND IN THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.”
EIGHTH ASSIGNMENT OF ERROR:
HIGHLAND, 23CA11 4
“APPELLATE COUNSEL WAS INEFFECTIVE IN NOT
ASSIGNING ERROR TO THE FACT THE TRIAL COURT
ABUSED ITS DISCRETION IN ADVISING THE
DEFENDANT. THE INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL IS A VIOLATION OF THE
APPELLANTS [SIC] RIGHT TO THE EFFECTIVE OF
COUNSEL FOUND IN THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION.”
NINTH ASSIGNMENT OF ERROR:
“APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT
ASSIGNING ERROR TO THE FACT THERE WAS
INSUFFICIENT EVIDENCE TO CONVICT MR. JOHNSON
OF COUNTS 9, 10 AND 11. THE INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL IS A
VIOLATION OF THE APPELLANTS [SIC] RIGHT TO
THE EFFECTIVE ASSISTANCE OF COUNSEL FOUND IN
THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.”
TENTH ASSIGNMENT OF ERROR:
“APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT
ASSIGNING ERROR TO THE FACT THE TRIAL COURT
FAILED TO GRANT THE MOTION FOR ACQUITTAL AS
THERE WAS INSUFFICIENT EVIDENCE TO CONVICT
MR. JOHNSON OF COUNT 1. THE INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL IS A
VIOLATION OF THE APPELLANTS [SIC] RIGHT TO
THE EFFECTIVE ASSISTANCE OF COUNSEL FOUND IN
THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.
ELEVENTH ASSIGNMENT OF ERROR:
“APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT
ASSIGNING ERROR TO THE FACT THE TRIAL COURT
FAILED TO GRANT THE MOTION FOR ACQUITTAL AS
THERE WAS INSUFFICIENT EVIDENCE TO CONVICT
MR. JOHNSON OF COUNTS 9, 10 AND 11. THE
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
IS A VIOLATION OF THE APPELLANT’S RIGHT TO
THE EFFECTIVE ASSISTANCE OF COUNSEL FOUND IN
THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.”
HIGHLAND, 23CA11 5
{¶2} In the summer of 2022, a confidential informant (CI)
advised law enforcement officers that he could purchase
methamphetamine and marijuana from an individual known as
“Scoots.” The CI stated that he knew where Scoots lived and
indicated that he lived with his girlfriend, Kassie Brigner.
{¶3} The officers subsequently arranged two controlled buys.
During the first controlled buy, officers heard a male identify
himself as “Scoots” and tell the CI that “the marijuana was
California Dream strand.” The CI left appellant’s residence and
debriefed with law enforcement officers.
{¶4} For the second controlled buy, the CI stated that he
“could purchase a ball of meth from Scoots for $100,” with a
ball being 3.5 grams. Law enforcement officers surveilled the
purchase and observed appellant and Brigner inside the
residence. The CI gave appellant the money and left. When the
CI returned to the officers, he handed them a plastic bag that
contained a crystal substance.
{¶5} Law enforcement officers subsequently obtained a search
warrant for appellant’s property and, upon its execution,
discovered numerous items, including drugs, drug paraphernalia,
firearms, currency, ledger books, a stolen pickup truck,
chainsaws, and other tools. Subsequent testing revealed that
the drugs seized during the search of appellant’s residence
included the following: (1) 167.08 grams of methamphetamine;
HIGHLAND, 23CA11 6
(2) 13.41 grams of a mixture containing methamphetamine,
tramadol, 3-hydroxyphencyclidine (PCP), cocaine, para-
fluorofentanyl, and fentanyl; (3) 1.56 grams of a mixture
containing PCP, cocaine, tramadol, and fentanyl; (4) 1.63 grams
of methamphetamine; (5) 31.85 grams of methamphetamine; (6) .12
grams of fentanyl and PCP; (7) .40 grams of a mixture containing
PCP, tramadol, cocaine, para-fluorofentanyl, and fentanyl; (8)
.47 grams of a mixture containing PCP, cocaine, tramadol,
fentanyl, and para-fluorofentanyl; and (9) 3.93 grams of
cocaine.
{¶6} On September 6, 2022, Highland County Sheriff’s Deputy
Dylan Quenniville responded to a report of a female dancing
around the parking lot of the Rainsboro First Stop. When he
arrived, the vehicle that he had been looking for, a white SUV,
no longer was there, but he saw it stopped at a pizza shop.
Deputy Quenniville approached the vehicle and identified
appellant as the driver. Appellant’s license had been
suspended, so the deputy asked appellant to exit the vehicle.
Appellant’s female passenger, Kassie Brigner, had an active
warrant, and she was arrested. Because neither appellant nor
Brigner could drive the vehicle, the deputy requested that the
vehicle be towed.
{¶7} A subsequent search of the vehicle uncovered, among
other items, a bulletproof vest, ledger books, drug
HIGHLAND, 23CA11 7
paraphernalia, and a change purse that contained drugs. The
ledger books contained pages that listed names, drug amounts,
and dollar amounts. Later testing identified the drugs found in
appellant’s vehicle as (1) .17 grams of cocaine, (2) .44 grams
of methamphetamine, (3) .17 grams of fentanyl mixed with other
substances, (4) 2.82 grams of tramadol, fentanyl, and PCP, and
(5) .86 grams of tramadol and fentanyl.
{¶8} In January 2023, a Highland County Grand Jury returned
an indictment that charged appellant and Brigner with engaging
in a pattern of corrupt activity and multiple drug-related
offenses. Appellant entered not-guilty pleas and exercised his
right to a jury trial. Brigner decided to enter into a plea
agreement with the State that required her to testify at
appellant’s trial.
{¶9} At trial, the State presented evidence that appellant
and Brigner had been together for approximately two years, and,
during that time, had been selling drugs. The State introduced
into evidence the ledger books that appellant and Brigner used
to keep a record of their drug transactions. The ledger books
show names or initials of the buyers, drug amounts, and dollar
amounts. The State also introduced testimony that the large
quantity of methamphetamine discovered during the search of
appellant’s residence would have had a street value of more than
$16,000.
HIGHLAND, 23CA11 8
{¶10} After the State finished its direct examination of its
sixth witness, the court learned that appellant had “something”
that he wanted to state “on the record.” The court allowed
appellant to elaborate. Appellant stated that, although he is
“not a lawyer,” he had some “points” that he believed his trial
counsel “need[ed] to bring out,” such as the “collection of
evidence and stuff like that.” The court asked appellant to
explain, and he stated that, although the State had shown “all
of these photos and stuff,” he was not “in possession of that.”
{¶11} The trial court informed appellant that the conclusion
to be drawn from the evidence would be up to the jury and
advised appellant that if he had “evidence to contradict” the
State’s evidence, then he should discuss it with his attorney.
Appellant stated, “I hope that [trial counsel] represents me
well when she gets to cross-examine.” The court stated that it
did not know “what [counsel] could have done” with any of the
witnesses who had testified thus far. The court asked appellant
whether he believed that trial counsel should have asked a
question but did not. The court explained that it “didn’t see
it from the context of the testimony presented so far.”
Appellant stated, “Okay, we can continue but I’ve got it on
record that I’m not happy right now.”
{¶12} The trial court expressed that it did not expect
appellant “to be happy,” being in his position, and asked
HIGHLAND, 23CA11 9
appellant if he wished to proceed with trial counsel
representing him. Appellant responded, “Yes.” The court
inquired whether “there [was] any other specific thing that
[appellant was] unhappy about.” Appellant stated, “No. I’m
ready to proceed.”
{¶13} The trial court then indicated that it had been
informed that appellant wanted to fire his attorney. The court
stated that, if appellant fired his attorney, then he would need
to represent himself, which the court suggested would be “the
biggest mistake” appellant had “ever made in [his] life.” The
court pointed out that the trial was “about halfway or more past
the State’s case” and that “changing horses in the middle of the
stream isn’t usually a good idea.” Appellant replied, “Okay, I
won’t fire her.”
{¶14} The trial court next asked appellant whether he had
“anything else” that he wanted to say. Appellant asked why the
CI was not present to testify. The court stated, “I don’t know
why. I mean he’s not necessary. As I said, you’re not charged
with that case. But why would you want him here? All he would
do I assume is say that he bought from you and he—” Appellant
interjected, “I don’t know, he’s the one that started this whole
thing.” The court told appellant that the CI “would just be
another nail in your coffin” and asked appellant how the CI’s
testimony would help him. The court indicated that the CI would
HIGHLAND, 23CA11 10
testify, “I bought from this guy and I gave him this and that.
Here’s the dope that I turned over.” The court asked appellant
how that testimony would help his defense. Appellant stated
that he wanted the CI to testify that appellant was “the one
that handed [the CI] the dope.”
{¶15} The trial court stated that appellant’s decision to
call the CI to testify was a decision that he should make in
consultation with his attorney but that he “should leave the
trial tactics to” his attorney. The court asked appellant’s
attorney whether she planned to call the CI, and she stated that
she did not. The court asked her if it was “a tactical
decision,” and she stated that it was. The court asked
appellant whether he had “[a]nything else” to discuss, and
appellant stated, “No, sir. Continue on.”
{¶16} After both sides had finished examining the State’s
sixth witness, the State called Brigner to testify. Brigner
testified that she and appellant replenished drug supplies “[a]t
least once or twice a week.” She stated that the day before
officers executed the July 12, 2022 search warrant, they had
purchased 167 grams of methamphetamine. Brigner reported that
she and appellant intended to use some of it and sell some of it
for $200 to $300 an ounce. Brigner related that she helped
appellant prepare drugs for sale and saw appellant prepare drugs
for sale. She also indicated that she observed appellant accept
HIGHLAND, 23CA11 11
guns, tools, and equipment in exchange for drugs.
{¶17} Brigner also explained that she and appellant recorded
their drug transactions in the books that officers had
discovered during the search of appellant’s residence and
vehicle. The prosecutor asked Brigner to explain one of the
pages that showed dollar amounts that she, appellant, and two
other individuals had contributed for a total of $3,500.
Brigner stated that she had contributed $1,000, appellant
contributed $1,500, and the other two contributed the remaining
amount. Brigner testified that they used the money to purchase
fentanyl. Brigner could not recall the date they purchased
fentanyl, but stated that it occurred within the past year. She
further indicated that appellant had been paying $1,000 for an
ounce of fentanyl.
{¶18} After the State finished presenting evidence,
appellant asked the court to enter a judgment of acquittal,
which the trial court overruled.
{¶19} On July 3, 2023, the jury found appellant guilty of
all counts as charged in the indictment. The trial court
subsequently sentenced appellant to (1) serve a total 22-year,
9-month minimum prison sentence, to a total 27-year, 9-month
maximum prison sentence, (2) pay a $20,000 fine, (3) pay costs,
and (4) forfeit the property listed in the indictment.
HIGHLAND, 23CA11 12
{¶20} Following the trial court’s judgment of conviction and
sentence, appellant, with new appellate counsel, appealed the
trial court’s judgment. We affirmed the trial court’s judgment.
State v. Johnson, 2024-Ohio-2058 (4th Dist.).
{¶21} Appellant later filed an application to reopen his
appeal, which this court granted. Pursuant to App.R. 26(B)(7)
and (9), we now consider the merits of appellant’s reopened
appeal.
I
{¶22} App.R. 26(B)(7) states that a reopened appeal “shall
proceed as on an initial appeal” and requires the parties to
“address in their briefs the claim that representation by prior
appellate counsel was deficient and that the applicant was
prejudiced by that deficiency.” App.R. 26(B)(7); see State v.
Leyh, 2022-Ohio-292, ¶ 22.
{¶23} App.R. 26(B)(9) guides an appellate court’s review of
a reopened appeal and provides as follows:
If the court finds that the performance of appellate
counsel was deficient and the applicant was prejudiced
by that deficiency, the court shall vacate its prior
judgment and enter the appropriate judgment. If the
court does not so find, the court shall issue an order
confirming its prior judgment.
App.R. 26(B)(9); see Leyh at ¶ 25.
{¶24} We initially note that, although appellant frames each
of his first 11 assignments of error in terms of appellate
HIGHLAND, 23CA11 13
counsel’s ineffectiveness, his brief does not specifically argue
that counsel’s failure to raise any of the assignments of error
amounted to deficient performance or that any deficient
performance prejudiced appellant. While we question whether
appellant’s brief thus satisfies App.R. 26(B)(7), in the
interest of justice, we nevertheless will consider the
assignments of error. See State v. Carver, 2023-Ohio-2839, ¶ 9
(4th Dist.); State v. Mockbee,
2015-Ohio-3469, ¶ 22-23 (4th
Dist.). But see State v. Clark,
2023-Ohio-4839 (9th Dist.),
conflict certified,
2024-Ohio-2781.2
2 The Ohio Supreme Court identified the Ninth District’s decision
as being in conflict with State v. Carver,
2023-Ohio-2839 (4th
Dist.), and State v. Talley,
2023-Ohio-883 (11th Dist.), and
ordered the parties to brief the following issue:
“In circumstances where an appellant’s application for
reconsideration is granted under App.R. 26(B)(5) on the
grounds that there was a genuine issue as to whether the
applicant was deprived of the effective assistance of
counsel on appeal but appellant then fails to separately
address in their brief the claim that representation by
prior appellate counsel was deficient and that the
applicant was prejudiced by that deficiency as required
by App.R. 26(B)(7), can the appellate court presume
appellant is arguing that appellate counsel was
ineffective for failing to raise the arguments set forth
in his new assignments of error, or must the court affirm
its previous judgment due to appellant’s failure to
comply with the explicit requirements set forth in
App.R. 26(B)(7)?”
State v. Clark, 2024-Ohio-2781.
On April 22, 2025, the court heard oral arguments; as of this
writing, no decision has been issued.
HIGHLAND, 23CA11 14
II
{¶25} We review claims of ineffective assistance of
appellate counsel using the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). See Leyh,
2022-Ohio-292, at ¶
17; Mockbee,
2015-Ohio-3469, at ¶ 14 (4th Dist.). Reversal of a
conviction for ineffective assistance of appellate counsel
requires the defendant to show that (1) appellate counsel’s
performance was deficient, i.e., counsel was objectively
unreasonable “in failing to find arguable issues to appeal,”
Smith v. Robbins,
528 U.S. 259, 285 (2000), and (2) a reasonable
probability exists that, but for appellate counsel’s deficient
performance, the defendant “would have prevailed on his appeal.”
Id.; see also Strickland,
466 U.S. at 694;
Leyh at ¶ 18.
{¶26} Counsel’s performance is objectively unreasonable if
“counsel unreasonably failed to discover nonfrivolous issues and
to file a merits brief raising them.” Smith, 528 U.S. at 285;
see State v. Simpson,
2020-Ohio-6719, ¶ 22 (“Appellate counsel’s
performance was deficient if, considering all the circumstances,
it fell below an objective standard of reasonableness under
prevailing professional norms”). “A reasonable probability is a
HIGHLAND, 23CA11 15
probability sufficient to undermine confidence in the outcome.”
Strickland,
466 U.S. at 694.
{¶27} When evaluating appellate counsel’s performance,
courts “‘appl[y] a heavy measure of deference to counsel’s
judgments,’” State v. Tenace, 2006-Ohio-2987, ¶ 7, quoting
Strickland,
466 U.S. at 691, and “‘indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance.’”
Id., quoting
Strickland at 689.
Additionally, courts must remain mindful that “appellate counsel
who files a merits brief need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in
order to maximize the likelihood of success on appeal.” Smith,
528 U.S. at 288. Indeed, the “process of ‘winnowing out weaker
arguments on appeal and focusing on’ those more likely to
prevail, far from being evidence of incompetence, is the
hallmark of effective appellate advocacy.” Smith v. Murray,
477
U.S. 527, 536 (1986), quoting Jones v. Barnes (1983),
463 U.S.
745, 751–752; accord State v. Phillips,
74 Ohio St.3d 72, 87
(1995).
{¶28} In the case sub judice, we do not believe that
appellate counsel’s decision to forgo raising the 11 assignments
of error appellant subsequently identified was objectively
unreasonable. First, we observe that several assignments of
error largely duplicate others. For example, the first and
HIGHLAND, 23CA11 16
tenth assignments of error both challenge the sufficiency of the
evidence to support appellant’s conviction for engaging in a
pattern of corrupt activity. The second and third assignments
of error contend that the trial court erred when it instructed
the jury. Appellant’s fourth through eighth assignments of
error assert various errors allegedly arising from the trial
court’s colloquy with appellant when the court learned that
appellant indicated that he wanted to fire his trial counsel.
Appellant’s ninth and eleventh assignments of error challenge
the sufficiency of the evidence to support’s appellant’s
convictions relating to the drugs discovered inside a change
purse that officers discovered in appellant’s vehicle. We do
not believe that appellate counsel acted unreasonably by
omitting these 11 assignments of error and focusing instead on
the one that counsel likely believed had a possibility of
success.
{¶29} Furthermore, as we explain below, even if appellate
counsel performed deficiently by failing to raise the 11
assignments of error, appellant cannot establish a reasonable
probability that any deficient performance affected the outcome
of his appeal.
III
{¶30} For ease of discussion, we consider appellant’s first
and tenth assignments of error together.
HIGHLAND, 23CA11 17
{¶31} In his first assignment of error, appellant asserts
that appellate counsel was ineffective for failing to argue that
the State did not present sufficient evidence that he engaged in
a pattern of corrupt activity. He contends that the record does
not contain any evidence to show that he committed two or more
corrupt activities as defined in R.C. 2923.31(I)(2)(c). More
specifically, appellant asserts that the State did not present
sufficient evidence to establish that he committed more than one
corrupt activity involving a value greater than $1,000.
{¶32} In his tenth assignment of error, appellant argues
that appellate counsel was ineffective for failing to argue that
the trial court erred by overruling his Crim.R. 29(A) motion for
a judgment of acquittal regarding the offense of engaging in a
pattern of corrupt activity. Appellant reiterates his argument
that the record does not contain sufficient evidence to convict
him of that offense.
A
{¶33} 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). When reviewing the
sufficiency of the evidence, our inquiry focuses primarily upon
the adequacy of the evidence; that is, whether the evidence, if
believed, reasonably could support a finding of guilt beyond a
HIGHLAND, 23CA11 18
reasonable doubt.
Id. at syllabus. The “critical inquiry” on
appeal “is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” (Emphasis in original.) Jackson v.
Virginia,
443 U.S. 307, 318-319 (1979); e.g., State v. Jenks,
61
Ohio St.3d 259, 273 (1991). Furthermore, a reviewing court is
not to 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).
{¶34} Thus, when reviewing a sufficiency-of-the-evidence
claim, an appellate court must construe the evidence in a light
most favorable to the prosecution. 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 that 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).
{¶35} “A motion for acquittal under Crim.R. 29(A) is
governed by the same standard as the one for determining whether
a verdict is supported by sufficient evidence.” Tenace, 2006-
Ohio-2417, at ¶ 37. A trial court must grant a Crim.R. 29(A)
HIGHLAND, 23CA11 19
motion for judgment of acquittal “if the evidence is
insufficient to sustain a conviction of such offense or
offenses.” Crim.R. 29(A); accord State v. Coker, 2025-Ohio-
2051, ¶ 13.
{¶36} In the case sub judice, we do not believe that
appellate counsel’s failure to raise these two assignments of
error was objectively unreasonable, given that appellate counsel
instead argued that appellant’s conviction was against the
manifest weight of the evidence. On appellant’s direct appeal,
we determined that his conviction was not against the manifest
weight of the evidence. And, as we have stated in previous
cases, a finding that a conviction is supported by the manifest
weight of the evidence is “also dispositive of the issue of
sufficiency and, consequently, a Crim.R. 29 claim.” State v.
Waller, 2018-Ohio-2014, ¶ 30 (4th Dist.); e.g., State v.
McKinney,
2024-Ohio-4642, ¶ 63 (4th Dist.) (“a determination
that the weight of the evidence supports a conviction also is
dispositive of an insufficient-evidence claim”).
{¶37} Moreover, as we explain below, even if appellate
counsel’s decision not to argue that the State failed to present
sufficient evidence of two corrupt activities, each involving a
value greater than $1,000, was deficient, appellant cannot
establish a reasonable probability that the outcome of his
HIGHLAND, 23CA11 20
appeal would have been different if appellate counsel had raised
this assignment of error.
B
{¶38} R.C. 2923.32(A)(1) sets forth the offense of engaging
in a pattern of corrupt activity. The statute provides as
follows: “No person employed by, or associated with, any
enterprise shall conduct or participate in, directly or
indirectly, the affairs of the enterprise through a pattern of
corrupt activity . . . .”
{¶39} R.C. 2923.31(E) defines a “pattern of corrupt
activity” as “two or more incidents of corrupt activity, whether
or not there has been a prior conviction, that are related to
the affairs of the same enterprise, are not isolated, and are
not so closely related to each other and connected in time and
place that they constitute a single event.”
{¶40} R.C. 2923.31(I)(2)(c) defines “[c]orrupt activity” to
include “engaging in, attempting to engage in, conspiring to
engage in, or soliciting, coercing, or intimidating another
person to engage in” certain offenses, including, as relevant
here, (1) receiving stolen property, in violation of R.C.
2913.51, (2) aggravated drug trafficking, in violation of R.C.
2925.03, and (3) aggravated drug possession, in violation of
R.C. 2925.11,
HIGHLAND, 23CA11 21
when the proceeds of the violation . . . or the value of
the contraband or other property illegally possessed,
sold, or purchased in the violation exceeds one thousand
dollars, or any combination of violations described in
[R.C. 2923.31(I)(2)(c)] when the total proceeds of the
combination of violations, . . . or value of the
contraband or other property illegally possessed, sold,
or purchased in the combination of violations exceeds
one thousand dollars[.]
{¶41} Thus, for conduct to constitute a “corrupt activity,”
“[t]he violation or combination of violations must involve
proceeds, payments, claims, or value that exceeds the statutory
threshold amount of $1,000” State v. Bricher, 2024-Ohio-394, ¶
29 (3rd Dist.). For instance, drug trafficking constitutes a
corrupt activity when “the total proceeds of a violation of that
statute or a combination of violations of that statute” exceeds
$1,000. State v. Liggins,
2018-Ohio-243, ¶ 23 (6th Dist.),
citing R.C. 2923.31(I)(2)(c). Likewise, “receiving stolen
property constitutes ‘corrupt activity’ when the proceeds,
payments, or ‘value’ of the property in the aggregate exceeds
$1,000.” State v. Rich,
2018-Ohio-1225, ¶ 24 (2nd Dist.).
Accordingly, “individual transactions can be aggregated to form
a single corrupt activity.” State v. Kolle,
2022-Ohio-4322, ¶
38 (4th Dist.), citing Liggins,
2018-Ohio-243, at ¶ 23-24 (6th
Dist.).
{¶42} Importantly, however, a conviction for engaging in a
pattern of corrupt activity requires the State to produce
evidence that the defendant engaged in “at least two corrupt
HIGHLAND, 23CA11 22
activities, where the value of each corrupt activity, i.e., the
property illegally purchased, exceeds $1,000, for a total value
of at least $2,000.02[.]” State v. Burley, 2020-Ohio-4603, ¶ 35
(6th Dist.); accord Kolle,
2022-Ohio-4322, at ¶ 38 (4th Dist.),
quoting Liggins,
2018-Ohio-243, at ¶ 23 (6th Dist.) (“‘at the
minimum, the proceeds of [a] ‘pattern of corrupt activity’ must
be at least $2,000.02, since the proceeds of each ‘corrupt
activity’ must at least be $1,000.01’”).
{¶43} In the case at bar, we do not believe that appellant
can establish a reasonable probability that the outcome of his
appeal would have been different if appellate counsel had
challenged the sufficiency of the evidence to establish the
monetary value of the corrupt activities. Contrary to
appellant’s belief, the State did present some evidence to
establish that he committed more than one “corrupt activity.”
The record contains evidence that, during the search of
appellant’s residence, officers discovered a bag containing a
little more than 167 grams of methamphetamine with a resale
value of at least $16,000. The evidence thus supports a finding
that appellant violated R.C. 2925.11(A) and that the value of
the contraband exceeded $1,000.
{¶44} Moreover, appellant’s codefendant testified that she
and appellant sold a substantial quantity of drugs and recorded
those transactions in ledger books. These books show page after
HIGHLAND, 23CA11 23
page of drug transactions that would have had a combined value
of well-over $1,000. See generally State v. Bricher, 2024-Ohio-
394, ¶ 34 (3rd Dist.) (given evidence that defendant sold “large
quantities” of drugs, “a jury could easily conclude that the
value of the contraband involved in those two separate
violations of R.C. 2925.03 each exceeded $1,000.”). The State
thus presented sufficient evidence to allow a rational juror to
conclude that appellant violated R.C. 2925.03 and that the value
of the contraband exceeded $1,000.
{¶45} Additionally, the State presented evidence that
appellant was in possession of stolen property, including a
motor vehicle, in violation of R.C. 2913.51. Even though the
State did not present direct testimony regarding the value of
the motor vehicle, the State introduced a photograph of the
vehicle (a 2006 Chevrolet Truck), and the jury rationally could
have determined that the value of the motor vehicle exceeded
$1,000.
{¶46} Considering all of the evidence and viewing it in a
light most favorable to the prosecution, we conclude that a
reasonable juror could have found beyond a reasonable doubt that
appellant had participated in at least two incidents of corrupt
activity that established a pattern of corrupt activity.
Furthermore, even if we determined that the State could have
presented better evidence to support appellant’s convictions,
HIGHLAND, 23CA11 24
this determination would not alter the conclusion that the State
presented sufficient evidence to allow any rational juror to
find, beyond a reasonable doubt, the essential elements of the
offenses. See State v. Dent, 2020-Ohio-6670, ¶ 16 (sufficiency
inquiry does not ask “whether the [S]tate presented the best
evidence” but “whether the evidence presented, when viewed in a
light most favorable to the prosecution, would allow any
rational trier of fact to find the essential elements of the
crime beyond a reasonable doubt” [emphasis in original]).
{¶47} Thus, had appellate counsel challenged the sufficiency
of the evidence on direct appeal, the argument would not have
had a reasonable probability of success. Consequently,
appellate counsel was not ineffective for failing to raise this
issue on direct appeal.
{¶48} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first and tenth assignments of error.
IV
{¶49} For ease of discussion, we combine our review of
appellant’s second and third assignments of error.
{¶50} In his second assignment of error, appellant contends
that appellate counsel was ineffective for failing to argue that
the jury instructions “relieved the State of proof beyond a
reasonable doubt through the incorrect reading of facts related
to the indictment.” Appellant asserts that the engaging-in-a-
HIGHLAND, 23CA11 25
pattern-of-corrupt-activity statute required the State to prove
that the activities were “not so closely related to any other
act of corrupt activity connected in time and place that they
constitute one event.” He states that the trial court, however,
incorrectly advised the jury that “counts 2, 3, 4, 5, and 7
occurred on different dates as alleged in the indictment.”
Appellant contends that the trial court’s statement is incorrect
because the indictment contains only one date, July 12, 2022.
He claims that the trial court’s instruction thus reduced the
State’s burden of proof.
{¶51} In his third assignment of error, appellant asserts
that appellate counsel was ineffective for failing to argue that
trial counsel failed to object to the trial court’s instruction
“that lessened the States [sic] burden of proof.”
{¶52} To support his argument, appellant cites Middleton v.
McNeil, 541 U.S. 433 (2004), and Cool v. United States,
409 U.S.
100, 102–03 (1972). In Middleton, the Court stated:
In a criminal trial, the State must prove every
element of the offense, and a jury instruction violates
due process if it fails to give effect to that
requirement. See Sandstrom v. Montana, 442 U.S. 510,
520-521,
99 S.Ct. 2450,
61 L.Ed.2d 39 (1979).
Nonetheless, not every ambiguity, inconsistency, or
deficiency in a jury instruction rises to the level of
a due process violation. The question is “‘whether the
ailing instruction . . . so infected the entire trial
that the resulting conviction violates due process.’”
Estelle v. McGuire, 502 U.S. 62, 72,
112 S.Ct. 475,
116
L.Ed.2d 385 (1991) (quoting Cupp v. Naughten,
414 U.S.
141, 147,
94 S.Ct. 396,
38 L.Ed.2d 368 (1973)). “‘[A]
HIGHLAND, 23CA11 26
single instruction to a jury may not be judged in
artificial isolation, but must be viewed in the context
of the overall charge.’” Boyde v. California, 494 U.S.
370, 378,
110 S.Ct. 1190,
108 L.Ed.2d 316 (1990) (quoting
Cupp, supra, at 146-147,
94 S.Ct. 396). If the charge
as a whole is ambiguous, the question is whether there
is a “‘reasonable likelihood that the jury has applied
the challenged instruction in a way’ that violates the
Constitution.” Estelle, supra, at 72,
112 S.Ct. 475
(quoting Boyde, supra, at 380,
110 S.Ct. 1190).
Id. at 437; see also Kokitka v. Ford Motor Co.,
73 Ohio St.3d
89, 93 (1995), quoting Becker v. Lake Cty. Mem. Hosp. W.,
53
Ohio St.3d 202, 208 (1990) (“In examining errors in a jury
instruction, a reviewing court must consider the jury charge as
a whole and ‘must determine whether the jury charge probably
misled the jury in a matter materially affecting the complaining
party’s substantial rights.’”).
{¶53} In Cool, the Court determined that a trial court may
not instruct a jury to, in effect, “ignore defense testimony
unless it believes beyond a reasonable doubt that the testimony
is true.” Id. at 100. In that case, the defendant offered an
accomplice’s testimony in her defense. The trial court
instructed the jury that an accomplice’s testimony is “open to
suspicion” and further advised the jury that, if it was
convinced, “beyond a reasonable doubt,” that the accomplice’s
testimony was true, then the jury “should give it the same
effect as you would to a witness not in any respect implicated
in the alleged crime.” Id. at 102. The Court concluded that
HIGHLAND, 23CA11 27
the trial court’s instruction “place[d] an improper burden on
the defense and allow[ed] the jury to convict despite its
failure to find guilt beyond a reasonable doubt. Id. at 102–03.
The Court stated that a jury instruction cannot have “the effect
of substantially reducing the Government’s burden of proof,”
because “the Constitution requires proof of guilt beyond a
reasonable doubt.” Id. at 104.
{¶54} In the case at bar, we do not agree with appellant
that the trial court’s jury instruction, viewed in the context
of the overall charge, failed to give effect to the requirement
that the State prove every element of the offense beyond a
reasonable doubt or otherwise reduced the State’s burden of
proof. The trial court instructed the jury that, to find
appellant guilty of engaging in a pattern of corrupt activity,
it “must find beyond a reasonable doubt that on or about the
period of January 1, 2019, continuing through January 1, 2023,”
appellant, “while being employed by or associated with any
enterprise, did conduct, participate in, directly or indirectly,
the affairs of the enterprise through a pattern of corrupt
activity.”
{¶55} The trial court continued by setting forth the
essential elements of the offense and stated that one of the
elements was that “the offense occurred in Highland County, on
or about the period within the dates alleged in the indictment.”
HIGHLAND, 23CA11 28
With respect to “the element of time,” the court advised the
jury that the State need not prove that each “offense was
committed on the exact day as charged in the indictment. It is
sufficient to prove that the offense took place on a date
reasonably near the date claimed.”
{¶56} The trial court defined “pattern of corrupt activity”
as “one or more incidents of corrupt activity related to the
affairs of the same enterprise, are not isolated and are not so
closely related to each other, connected in time and place, that
they constitute a single event.” The court continued to explain
that “[a] finding of [a] pattern of corrupt activity requires
proof of at least two incidents of corrupt activity by
[appellant] within six years of each other.”
{¶57} The trial court next instructed the jury that “corrupt
activity” means “engaging in, attempting to engage in,
conspiring to engage in or soliciting, coercing or intimidating
another person to engage in any of the following conduct,” when
“the total proceeds of those combination of violations or value
of the contraband or other property illegally sold in the
combination of violations exceeds $1,000”: (1) “Count 2,
aggravated trafficking in methamphetamine”; (2) “Count 3,
aggravated possession of methamphetamine”; (3) “Count 4,
aggravated trafficking in drugs”; (4) “Count 5, aggravated
possession of drugs”; or (5) “Count 7, receiving stolen
HIGHLAND, 23CA11 29
property.” The court further instructed the jury that counts
two and three of the indictment were “alternative counts” and
that counts three and four likewise were “alternative counts.”
The court explained:
Only if you find the State proved [appellant] guilty by
proof beyond a reasonable doubt of two or more of the
violations alleged in count 2, 3, 4, 5, and 7, that
occurred on different dates as alleged in the
indictment, those findings alone are not, are
insufficient to establish a pattern of corrupt activity.
The State must prove beyond a reasonable doubt that at
least one of the violations was related to the affairs
in the same enterprise alleged and not so closely related
to any other act of corrupt activity connected in time
and place that they constitute one event.
{¶58} Reading the trial court’s jury instructions in light
of the overall charge fails to support appellant’s argument that
the trial court reduced the State’s burden of proof. Even
though the indictment contains the same date, July 12, 2022, for
counts 2, 3, 4, 5, and 7, the evidence presented at trial showed
that July 12, 2022, was the date that officers executed the
search warrant upon appellant’s residence and discovered
evidence indicating that appellant had been engaged in a pattern
of corrupt activity by trafficking and possessing drugs and by
possessing stolen property. The evidence did not suggest that
July 12, 2022, was the only date upon which appellant trafficked
or possessed drugs or possessed stolen property. Indeed,
appellant’s codefendant testified that the two had been engaged
in drug trafficking for about two years.
HIGHLAND, 23CA11 30
{¶59} Additionally, even if the trial court suggested that
the indictment alleged that counts 2, 3, 4, 5, and 7 occurred on
different dates, this statement must be read in context of the
court’s entire charge. The entirety of the court’s charge shows
that the court correctly advised the jury that, to find
appellant guilty, it must find that the State proved “beyond a
reasonable doubt that at least one of the violations was related
to the affairs in the same enterprise alleged and not so closely
related to any other act of corrupt activity connected in time
and place that they constitute one event.” The court further
instructed the jury that the time frame to consider for the
offense of engaging in a pattern of corrupt activity was the
period of January 1, 2019, through January 1, 2023, and that
“[a] finding of [a] pattern of corrupt activity requires proof
of at least two incidents of corrupt activity by Defendant
within six years of each other.” The court also advised the
jury that the State need not “prove the offense was committed on
the exact day as charged in the indictment.”
{¶60} Furthermore, any ambiguity, inconsistency, or
deficiency that may exist in the court’s jury instructions does
not rise to the level of a due process violation. Nothing in
the instructions suggests that an “‘ailing instruction . . . so
infected the entire trial that the resulting conviction violates
HIGHLAND, 23CA11 31
due process.’” Estelle, 502 U.S. at 72, quoting Cupp,
414 U.S.
at 147.
{¶61} Given the foregoing, appellate counsel could have
quite reasonably determined that raising an assignment of error
to challenge the trial court’s jury instructions, or trial
counsel’s failure to object to the jury instructions, would have
been pointless. Consequently, appellate counsel was not
ineffective for failing to raise these two assignments of error.
{¶62} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second and third assignments of error.
V
{¶63} In his fourth assignment of error, appellant asserts
that appellate counsel was ineffective for failing to argue that
the trial court deprived him of his right to counsel of his
choice when it informed appellant that, if he chose to fire his
current trial counsel, he would need “to proceed pro se.”
{¶64} The Sixth Amendment right to counsel includes “the
right to select and be represented by one’s preferred attorney.”
Wheat v. United States, 486 U.S. 153, 159 (1988). This right
does not guarantee, however, “that a defendant will inexorably
be represented by the lawyer whom he prefers.”
Id. Instead,
“the essential aim of the Amendment is to guarantee an effective
advocate for each criminal defendant.”
Id. Thus, the Sixth
Amendment right to counsel “does not guarantee that a criminal
HIGHLAND, 23CA11 32
defendant will be represented by a particular attorney.” Caplin
& Drysdale v. United States,
491 U.S. 617, 624 (1989).
{¶65} Moreover, “the right to counsel of choice is
circumscribed in several important respects.’” United States v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006), quoting Wheat,
486
U.S. at 159. Trial courts have “wide latitude in balancing the
right to counsel of choice against the needs of fairness and
against the demands of its calendar.” (Citations omitted.)
Id.; accord State v. Harmon,
2005-Ohio-1974, ¶ 32 (4th Dist.),
quoting United States v. Krzyske,
836 F.2d 1013, 1017 (6th Cir.
1988) (the “‘right to counsel of choice is not absolute; it must
be balanced against the court’s authority to control its own
docket, and a court must beware that a demand for counsel may be
utilized as a way to delay proceedings or trifle with the
court’”); see Morris v. Slappy,
461 U.S. 1, 11–12 (1983) (“only
an unreasoning and arbitrary insistence upon expeditiousness in
the face of a justifiable request for delay’ violates the right
to the assistance of counsel”). Additionally, trial courts have
an “‘independent interest in ensuring that criminal trials are
conducted within the ethical standards of the profession and
that legal proceedings appear fair to all who observe them.’”
Gonzalez-Lopez,
548 U.S. at 152, quoting Wheat,
486 U.S. at 160;
accord State v. Hurst,
2024-Ohio-5544, ¶ 25 (4th Dist.).
HIGHLAND, 23CA11 33
Factors to consider in deciding whether a trial court
erred in denying a defendant’s motion to substitute
counsel include “the timeliness of the motion; the
adequacy of the court’s inquiry into the defendant’s
complaint; and whether the conflict between the attorney
and client was so great that it resulted in a total lack
of communication preventing an adequate defense.”
United States v. Jennings (C.A.6, 1996), 83 F.3d 145,
148. In addition, courts should “balanc[e] . . . the
accused’s right to counsel of his choice and the public’s
interest in the prompt and efficient administration of
justice.” Id. Decisions relating to the substitution
of counsel are within the sound discretion of the trial
court. Wheat, 486 U.S. at 164,
108 S.Ct. at 1700,
100
L.Ed.2d at 152.
State v. Jones,
91 Ohio St.3d 335, 342–43 (2001).
{¶66} In the case sub judice, we do not believe that the
trial court violated appellant’s Sixth Amendment right to select
and be represented by counsel of his choice. First, appellant
did not unequivocally state that he wanted to replace his trial
counsel with substitute counsel. Once the trial court learned
that appellant had expressed some dissatisfaction with his trial
counsel, the trial court fully engaged in a discussion with
appellant to ascertain the reasons for his disenchantment.
After that inquiry, appellant agreed to proceed with his current
trial counsel. Moreover, appellant did not indicate that he
already had identified substitute counsel willing and able to
represent him.
{¶67} Additionally, appellant’s request was untimely. See
State v. Cobb, 2007-Ohio-1885, ¶ 15 (4th Dist.) (“A defendant’s
request to substitute retained counsel of his choice must be
HIGHLAND, 23CA11 34
timely and not disrupt the trial proceedings.). Appellant did
not raise any issue regarding trial counsel’s representation
until after the State had finished questioning the sixth
witness. See State v. Nicholson,
2007-Ohio-6653, ¶ 14 (8th
Dist.) (trial court did not err by denying defendant’s request
to discharge retained counsel when defendant raised the request
right before opening statements); Cobb,
2007-Ohio-1885, at ¶ 15,
16 (4th Dist.) (trial court did not err by denying defendant’s
request to continue the trial to allow him to obtain private
counsel in place of appointed counsel because defendant
requested continuance on the date of trial and continuing the
trial “would have inconvenienced the witnesses, opposing
counsel, and the court”); see also State v. Thompkins, 2024-
Ohio-4927, ¶ 25-26 (4th Dist.). Thus, assuming, arguendo, that
appellant made an unequivocal request for a continuance to allow
him to obtain substitute counsel, the “trial court could have
reasonably decided that appellant’s untimely request for a
continuance did not outweigh the court’s authority to control
its own docket.” Cobb,
2007-Ohio-1885, at ¶ 17 (4th Dist.).
{¶68} Consequently, appellant cannot establish that this
assignment of error would have had a reasonable probability of
success if appellate counsel had raised it on direct appeal. He
therefore cannot demonstrate that appellate counsel failed to
HIGHLAND, 23CA11 35
provide the effective assistance of appellate counsel by
omitting this assignment of error.
{¶69} Accordingly, based upon the foregoing reasons, we
overrule appellant’s fourth assignment of error.
VI
{¶70} In his fifth assignment of error, appellant asserts
that appellate counsel was ineffective for failing to argue that
the trial court judge displayed bias. Appellant points to a
comment that the court made about appellant’s request that the
confidential informant (CI) testify: The court stated that the
CI “would just be another nail in [appellant’s] coffin” and
would not help appellant.
{¶71} “[A] criminal trial before a biased judge is
fundamentally unfair and denies a defendant due process of law.”
State v. LaMar, 2002-Ohio-2128, ¶ 34
Judicial bias has been described as “a hostile feeling
or spirit of ill will or undue friendship or favoritism
toward one of the litigants or his attorney, with the
formation of a fixed anticipatory judgment on the part
of the judge, as contradistinguished from an open state
of mind which will be governed by the law and the facts.”
State v. Dean, 2010-Ohio-5070, ¶ 48, quoting State ex rel. Pratt
v. Weygandt,
164 Ohio St. 463 (1956), paragraph four of the
syllabus; accord State v. Weaver,
2022-Ohio-4371, ¶ 59.
“[O]pinions formed by the judge on the basis of facts introduced
or events occurring in the course of the current proceedings, or
HIGHLAND, 23CA11 36
of prior proceedings” and “judicial remarks during the course of
a trial that are critical or disapproving of, or even hostile
to, counsel, the parties, or their cases” ordinarily do not
demonstrate bias, unless those judicial opinions or remarks
“reveal such a high degree of favoritism or antagonism as to
make fair judgment impossible.” Liteky v. United States,
510
U.S. 540, 555 (1994); accord
Weaver at ¶ 59.
{¶72} Furthermore, judges are “presumed to follow the law
and not to be biased, and the appearance of bias or prejudice
must be compelling to overcome these presumptions.” In re
Disqualification of George, 2003-Ohio-5489, ¶ 5. Consequently,
“[a]llegations that are based solely on innuendo and speculation
are insufficient to establish bias or prejudice.” In re
Disqualification of Pokorny,
2013-Ohio-915, ¶ 6. We
additionally observe that “‘[b]ias against a party is difficult
to question unless the judge specifically verbalizes personal
bias or prejudice toward a party.’” Culp v. Olukoga, 2013-Ohio-
5211, ¶ 55 (4th Dist.), quoting Frank Novak & Sons, Inc. v.
Brantley, Inc.,
2001 WL 303716 (8th Dist. Mar. 29, 2001).
{¶73} In the case at bar, we perceive nothing in the record
to indicate that the trial judge exhibited any level of bias
sufficient to call the fairness of the trial into question.
Instead, during an extended colloquy with appellant regarding
his malcontent, appellant suggested that trial counsel should
HIGHLAND, 23CA11 37
call the CI to testify at trial. The court pointed out the
obvious fact that the CI’s testimony would be damaging to
appellant, i.e., if appellant called the CI to testify, the CI
would confirm that the photographic evidence that the State
admitted into evidence depicted appellant selling drugs to the
CI during the controlled buy. The trial court also advised
appellant that the decision to call the CI was his choice to
make in consultation with his trial counsel. Appellant’s trial
counsel indicated that the decision not to call the CI was a
tactical decision. Nothing indicates that the trial court
displayed bias against appellant so as to call the fairness of
the trial into question.
{¶74} Thus, appellant cannot establish a reasonable
probability that the outcome of his appeal would have been
different if appellate counsel had raised this assignment of
error. He therefore cannot demonstrate that appellate counsel
failed to provide the effective assistance of appellate counsel
by forgoing this assignment of error.
{¶75} Accordingly, based upon the foregoing reasons, we
overrule appellant’s fifth assignment of error.
VII
{¶76} In his sixth assignment of error, appellant asserts
that appellate counsel was ineffective for failing to argue that
“there was government interference.” He contends that the trial
HIGHLAND, 23CA11 38
court interfered with his choice to call the CI to testify as a
witness and that “[a]ny conduct from the trial judge that is
targeted to the defendant and is designed to persuade him to
refrain from, or exercise a right is outrageous government
conduct.”
{¶77} To support his argument, appellant cites a sentence
from United States v. Marshank, 777 F.Supp. 1507, 1519 (N.D.Cal.
1991), that reads as follows: “A Fifth Amendment due process
violation may occur when government interference in an attorney-
client relationship results in ineffective assistance of counsel
or when the government engages in outrageous misconduct.”
Appellant’s quotation, however, appears to have been taken out
of context. In Marshank, “[t]he government collaborated with
[the defendant]’s attorney to build a case against him, to
effect his arrest, and to ensure that he would cooperate with
the government rather than contest the charges against him.”
Id. at 1519. In the case sub judice, none of these facts exist.
{¶78} Marshank also observed that a court may “dismiss an
indictment when ‘the conduct of law enforcement agents is so
outrageous that due process principles would absolutely bar the
government from invoking judicial processes to obtain a
conviction.’” Id. at 1523, quoting United States v. Russell,
411 U.S. 423, 431–32 (1973). The court further noted that “[t]o
constitute a Fifth Amendment violation under Russell, the
HIGHLAND, 23CA11 39
government conduct at issue must be fundamentally unfair and
‘“shocking to the universal sense of justice,” mandated by the
Due Process Clause of the Fifth Amendment.’”
Id., quoting
Russell,
411 U.S. at 432, quoting Kinsella v. United States,
361
U.S. 234, 246, (1960). The Marshank court found this standard
met because “the government actively collaborated with [the
defendant’s attorney] to build a case against the defendant,
showing a complete lack of respect for the constitutional rights
of the defendant and [the defendant’s attorney]’s other clients
and an utter disregard for the government’s ethical
obligations.” Id. at 1524. Additionally, the “government
colluded with [the defendant’s attorney] to obtain an indictment
against the defendant, to arrest the defendant, to ensure that
[the defendant’s attorney] would represent the defendant despite
his obvious conflict of interest, and to guarantee the
defendant’s cooperation with the government.” Id.
{¶79} In the case at bar, none of these facts exist.
Moreover, nothing shows that the trial court otherwise engaged
in any conduct that is fundamentally unfair or shocking to the
universal sense of justice.
{¶80} Furthermore, as we noted in our discussion of
appellant’s fifth assignment of error, appellant’s trial counsel
indicated that the decision not to call the CI to testify was a
tactical decision.
HIGHLAND, 23CA11 40
{¶81} Consequently, appellant cannot establish a reasonable
probability that the outcome of his appeal would have been
different if appellate counsel had raised this assignment of
error. He therefore cannot demonstrate that appellate counsel
failed to provide the effective assistance of appellate counsel
by omitting this assignment of error.
{¶82} Accordingly, based upon the foregoing reasons, we
overrule appellant’s sixth assignment of error.
VIII
{¶83} For ease of discussion, we have combined our review of
appellant’s seventh and eighth assignments of error.
{¶84} In his seventh assignment of error, appellant asserts
that appellate counsel was ineffective for failing to argue that
the trial court compromised his “autonomy right.” Appellant
contends that “a defendant must be allowed to make his own
choices about the proper way to protect his own liberty,” Weaver
v. Massachusetts, 582 U.S. 286, 295 (2017), and that the trial
court violated that right when it advised him regarding the
firing of his trial counsel, his decision to represent himself,
and his desire to call the CI to testify as a witness.
{¶85} In his eighth assignment of error, appellant contends
that appellate counsel was ineffective for failing to argue that
the trial court abused its discretion by advising appellant.
HIGHLAND, 23CA11 41
{¶86} We believe that our disposition of appellant’s fourth,
fifth, and sixth assignments of error fully addresses the
arguments that appellant raises in his seventh and eighth
assignments of error. First, as we stated in our discussion of
appellant’s fourth assignment of error, the trial court did not
violate appellant’s right to counsel of his choice. After the
trial court explained that it would not continue the trial to
allow appellant to retain new counsel, appellant agreed to
proceed with his current counsel.
{¶87} To the extent that appellant asserts that the trial
court violated his right to represent himself, appellant never
asked the court that he be permitted to represent himself. See
State v. Dean, 2010-Ohio-5070, ¶ 68 (“The assertion of the right
to self-representation must be clear and unequivocal.”).
{¶88} Furthermore, the trial court did not compromise
appellant’s right to present a defense when it pointed out the
obvious fact that the CI’s testimony likely would be damaging.
Plus, appellant’s trial counsel confirmed that the decision not
to call the CI was a tactical decision.
{¶89} Consequently, appellant cannot establish a reasonable
probability that the outcome of his appeal would have been
different if appellate counsel had raised these arguments on
direct appeal. He therefore cannot demonstrate that appellate
HIGHLAND, 23CA11 42
counsel failed to provide the effective assistance of appellate
counsel by forgoing these assignments of error.
{¶90} Accordingly, based upon the foregoing reasons, we
overrule appellant’s seventh and eighth assignments of error.
IX
{¶91} For ease of discussion, we combine our review of
appellant’s ninth and eleventh assignments of error.
{¶92} In his ninth assignment of error, appellant asserts
that appellate counsel was ineffective for failing to argue that
the record does not contain sufficient evidence to support his
convictions for counts 9, 10, and 11—the drug possession charges
that arose out of the discovery of drugs inside a change purse
located on the front passenger floorboard of the vehicle
appellant had been driving. Appellant agrees that he was the
driver of the vehicle in which the drugs were discovered, but he
asserts that the State did not present any testimony to
establish “who the drugs belonged to.” Appellant asserts that
“[a] purse is something so closely identified with a person that
if it is with her, or in close proximity at the time the officer
stops her, then it is in her possession.” State v. Kuhn, 2023-
Ohio-2740, ¶ 20 (5th Dist.). Appellant states that the change
purse belonged to his codefendant. Appellant thus claims that
he did not possess the drugs found in the change purse and
further argues that “[o]nly one person can possess an item.”
HIGHLAND, 23CA11 43
{¶93} In his eleventh assignment of error, appellant argues
that appellate counsel was ineffective for failing to argue that
the trial court erred by overruling his motion for acquittal
regarding counts 9, 10, and 11.
{¶94} R.C. 2925.11(A) sets forth the essential elements of
the offense of possession of drugs. The statute provides as
follows: “No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.”
{¶95} “Possession” is generally defined as “having control
over a thing or substance, but may not be inferred solely from
mere access to the thing or substance through ownership or
occupation of the premises upon which the thing or substance is
found.” R.C. 2925.01(K). “Possession . . . may be individual
or joint, actual or constructive.” State v. Wolery, 46 Ohio
St.2d 316, 332 (1976); State v. Fry,
2004-Ohio-5747, ¶ 39 (4th
Dist.).
{¶96} “‘Actual possession exists when the circumstances
indicate that an individual has or had an item within his
immediate physical possession.’” State v. Kingsland, 2008-Ohio-
4148, ¶ 13 (4th Dist.), quoting Fry, 2004-Ohio-5747, at ¶ 39
(4th Dist.). “Constructive possession exists when an individual
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.
HIGHLAND, 23CA11 44
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. 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.”).
{¶97} 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, 2009-Ohio-5390, at
¶ 19 (4th Dist.); see, e.g., State v. Jenks,
61 Ohio St.3d 259
(1991), paragraph one of the syllabus (“[c]ircumstantial
evidence and direct evidence inherently 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
HIGHLAND, 23CA11 45
147, 150 (1988), quoting Black’s Law Dictionary 221 (5th
Ed.1979).
{¶98} 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,
1993 WL 464632, *6 (10th Dist. Nov.
9, 1993) (nothing in R.C. 2925.11 or 2925.01 states that illegal
drugs must be in the 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 over the drugs.” Tyler,
2013-Ohio-5242, at ¶ 24 (8th
Dist.); accord State v. Walker,
2016-Ohio-3185, ¶ 75 (10th
Dist.). In fact, “multiple persons may have joint constructive
possession of an object.” State v. Russell,
2022-Ohio-1746, ¶
43 (4th Dist.); see State v. Hodges,
2025-Ohio-2050, ¶ 40 (4th
Dist.) (“two or more people can have constructive possession of
the same object” and “the fact that [the defendant’s] fellow
passengers might also have had something to do with the drugs
HIGHLAND, 23CA11 46
does not preclude a finding that appellant constructively
possessed them”).
{¶99} 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, 2004-Ohio-5747, at ¶ 40 (4th Dist.). 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 (4th Dist.).
{¶100} In the present case, we believe that the State
presented evidence that would allow a reasonable juror to find,
beyond a reasonable doubt, that appellant constructively
possessed the drugs found in the change purse. Officers found
the change purse on the front passenger floorboard of the
vehicle that appellant had been driving. As the driver of the
vehicle, appellant would have been located close enough to the
change purse to be able to exercise some measure of dominion or
control over the drugs. Additionally, appellant’s codefendant,
who also had been inside the vehicle, stated that both she and
appellant were drug users. Based upon all of the circumstantial
evidence, a rational juror could have determined, beyond a
reasonable doubt, that appellant constructively possessed the
drugs found in the change purse.
HIGHLAND, 23CA11 47
{¶101} We again note that the question is not whether the
State introduced the best evidence but whether the evidence
presented, when viewed in a light most favorable to the
prosecution, would allow any rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt.
Dent, 2020-Ohio-6670, at ¶ 16. Thus, even if we were to
conclude that the State could have presented better evidence to
support appellant’s convictions, that conclusion would not alter
our decision that the State presented adequate evidence to allow
any rational trier of fact to find, beyond a reasonable doubt,
the essential elements of the offenses.
{¶102} Consequently, appellant cannot establish a reasonable
probability that the outcome of his appeal would have been
different if appellate counsel had raised these arguments on
direct appeal. He therefore cannot demonstrate that appellate
counsel failed to provide the effective assistance of appellate
counsel by omitting these assignments of error.
{¶103} Accordingly, based upon the foregoing reasons, we
overrule appellant’s ninth and eleventh assignments of error.
X
{¶104} We summarily overrule appellant’s 12th through 22nd
assignments of error and confirm our prior judgment.
JUDGMENT CONFIRMED.
HIGHLAND, 23CA11 48
JUDGMENT ENTRY
It is ordered that the judgment in the direct appeal be
confirmed and that appellee 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 Highland 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, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 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. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
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.
HIGHLAND, 23CA11 49
APPENDIX
TWELFTH ASSIGNMENT OF ERROR:
“MR. JOHNSON WAS CONVICTED OF ENGAGING IN A
PATTERN OF CORRUPT ACTIVITY WHEN THE
EVIDENCE WAS INSUFFICIENT TO SUPPORT THE
CONVICTION. THIS IS A VIOLATION OF MR.
JOHNSON’S SIXTH [A]MENDMENT RIGHT TO A FAIR
TRIAL AND HIS FOURTEENTH [A]MENDMENT RIGHT
TO DUE PROCESS OF LAW FOUND IN THE UNITED
STATES CONSTITUTION AS WELL AS COMPARABLE
PROVISIONS OF THE OHIO CONSTITUTION.”
THIRTEENTH ASSIGNMENT OF ERROR:
“THERE WERE JURY INSTRUCTIONS THAT RELIEVED
THE STATE OF PROOF BEYOND A REASONABLE DOUBT
THROUGH AN INCORRECT READING OF THE FACTS
RELATED TO THE INDICTMENT. THIS IS A
VIOLATION OF MR. JOHNSON’S RIGHT TO A FAIR
TRIAL AND DUE PROCESS OF LAW FOUND IN THE
SIXTH AND FOURTEENTH [A]MENDMENTS TO THE
UNITED STATES CONSTITUTION AS WELL AS
COMPARABLE PROVISIONS OF THE OHIO
CONSTITUTION.”
FOURTEENTH ASSIGNMENT OF ERROR:
“TRIAL COUNSEL WAS INEFFECTIVE WHEN SHE
FAILED TO OBJECT TO THE [C]OURT’S JURY
INSTRUCTIONS THAT LESSENED THE STATE’S
BURDEN OF PROOF. THIS IS A VIOLATION OF MR.
JOHNSON’S RIGHT TO THE EFFECTIVE ASSISTANCE
OF COUNSEL FOUND IN THE SIXTH [A]MENDMENT TO
THE UNITED STATES CONSTITUTION AS WELL AS
COMPARABLE PROVISIONS OF THE OHIO
CONSTITUTION.”
FIFTEENTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT VIOLATED MR. JOHNSON’S
RIGHT TO COUNSEL OF CHOICE. THIS IS A
VIOLATION OF MR. JOHNSON’S RIGHT TO A FAIR
TRIAL AND DUE PROCESS FOUND IN THE SIXTH AND
HIGHLAND, 23CA11 50
FOURTEENTH [A]MENDMENTS TO THE UNITED STATES
CONSTITUTION AS WELL AS COMPARABLE
PROVISIONS OF THE OHIO CONSTITUTION.”
SIXTEENTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT PROJECTED BIAS WHICH IS A
VIOLATION OF MR. JOHNSON’S RIGHT TO A FAIR
TRIAL AND HIS RIGHT TO DUE PROCESS FOUND IN
THE SIXTH AND FOURTEENTH [A]MENDMENTS TO THE
UNITED STATES CONSTITUTION AS WELL AS
COMPARABLE PROVISIONS OF THE OHIO
CONSTITUTION.”
SEVENTEENTH ASSIGNMENT OF ERROR:
“THERE WAS GOVERNMENTAL INTERFERENCE IN MR.
JOHNSON’S CASE. THIS IS A VIOLATION OF HIS
RIGHT TO A FAIR TRIAL AND DUE PROCESS THAT
ARE FOUND IN THE SIXTH AND FOURTEENTH
[A]MENDMENTS TO THE UNITED STATES
CONSTITUTION AS WELL AS COMPARABLE
PROVISIONS OF THE OHIO CONSTITUTION.”
EIGHTEENTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMPROMISED THE AUTONOMY
RIGHT OF MR. JOHNSON. THIS IS A VIOLATION
OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS
FOUND IN THE SIXTH AND FOURTEENTH
[A]MENDMENTS TO THE UNITED STATES
CONSTITUTION AS WELL AS COMPARABLE
PROVISIONS OF THE OHIO CONSTITUTION.”
NINETEENTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION BY
ADVISING MR. JOHNSON. THIS TYPE OF ABUSE OF
DISCRETION IS A VIOLATION OF MR. JOHNSON’S
RIGHT TO A FAIR TRIAL AND DUE PROCESS FOUND
IN THE SIXTH AND FOURTEENTH [A]MENDMENTS TO
THE UNITED STATES CONSTITUTION AS WELL AS
COMPARABLE PROVISIONS OF THE OHIO
CONSTITUTION.”
TWENTIETH ASSIGNMENT OF ERROR:
HIGHLAND, 23CA11 51
“MR. JOHNSON WAS CONVICTED OF COUNTS 9, 10
AND 11 WHEN THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT THE CONVICTIONS. THIS IS A
VIOLATION OF MR. JOHNSON’S SIXTH [A]MENDMENT
RIGHT TO A FAIR TRIAL AND HIS FOURTEENTH
[A]MENDMENT RIGHT TO DUE PROCESS OF LAW
FOUND IN THE UNITED STATES CONSTITUTION AS
WELL AS COMPARABLE PROVISIONS OF THE OHIO
CONSTITUTION.”
TWENTY-FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT FAILED TO GRANT THE MOTION
FOR ACQUITTAL AS THERE WAS INSUFFICIENT
EVIDENCE TO CONVICT MR. JOHNSON OF COUNT 1,
ENGAGING IN A PATTERN OF CORRUPT ACTIVITY.
THIS IS A VIOLATION OF HIS RIGHT TO A FAIR
TRIAL AND DUE PROCESS FOUND IN THE SIXTH AND
FOURTEENTH [A]MENDMENTS TO THE UNITED STATES
CONSTITUTION AS WELL AS COMPARABLE
PROVISIONS OF THE OHIO CONSTITUTION.”
TWENTY-SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT FAILED TO GRANT THE MOTION
FOR ACQUITTAL FOR COUNTS 9, 10 AND 11 WHEN
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE
CONVICTIONS. THIS IS A VIOLATION OF MR.
JOHNSON’S SIXTH [A]MENDMENT RIGHT TO A FAIR
TRIAL AND HIS FOURTEENTH [A]MENDMENT RIGHT
TO DUE PROCESS OF LAW FOUND IN THE UNITED
STATES CONSTITUTION AS WELL AS COMPARABLE
PROVISIONS OF THE OHIO CONSTITUTION.”
