[Cite as State v. Boyd,
2025-Ohio-3248.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-24-022
OT-25-023
Appellee Trial Court No. 2022 CR 003
2022 CR 100
v.
Markum M. Boyd DECISION AND JUDGMENT
Appellant Decided: September 9, 2025
…
James J. VanEerten, Ottawa County Prosecuting Attorney,
and Thomas A. Matuszak, Assistant Prosecuting Attorney, for appellee.
Michael H. Stahl, for appellant.
…
DUHART, J.
{¶ 1} Appellant, Markum M. Boyd, appeals from a judgment entered by the
Ottawa County Court of Common Pleas convicting him of multiple drug-related offenses
following a jury trial. For the reasons that follow, the trial court’s judgment is affirmed.
Statement of the Case
{¶ 2} The Ottawa County grand jury returned an indictment charging Boyd with
six felonies stemming from a January 2, 2022 traffic stop: Count One, trafficking in
cocaine, in violation of R.C. 2925.03(A)(2) and (C)(4)(g), a felony of the first degree;
Count Two, aggravated trafficking in drugs (methamphetamine – Schedule II), in
violation of R.C. 2925.03(A)(2) and (C)(1)(f), a felony of the first degree; Count Three,
trafficking in a fentanyl-related compound, in violation of R.C. 2925.03(A)(2) and
(C)(9)(h), a felony of the first degree; Count Four, possession of cocaine, in violation of
R.C. 2925.11(A) and (C)(4)(f), a felony of the first degree; Count Five, aggravated
possession of drugs, in violation of R.C. 2925.11(A) and (C)(1)(e), a felony of the first
degree; and Count Six, possession of a fentanyl-related compound, in violation of R.C.
2925.11(A) and (C)(11)(g), a felony of the first degree. All six of those charges included
specifications that appellant was a major drug offender pursuant to R.C. 2941.1410(B)
and for the forfeiture of $2,300.00 pursuant to R.C. 2941.1417(A).
{¶ 3} Boyd was arraigned on January 18, 2022. He then filed a motion to suppress
all evidence and statements that were obtained following the search and seizure of a blue
duffle bag that was in the trunk of the stopped vehicle. Boyd based the motion on alleged
violations of his Fourth Amendment rights. An evidentiary hearing was held on the
matter, and in a judgment entry journalized on August 11, 2022, the trial court denied the
motion to suppress.
2.
{¶ 4} On January 9, 2023, the State filed a written request for jury instructions on
possession, ownership, constructive possession, joint possession, and complicity. On the
third day of trial, defense counsel objected to the complicity instruction, arguing that
there was no evidence to support the charge of complicity and, therefore, providing the
instruction would confuse the jury. The trial court -- unpersuaded by defense counsel’s
argument -- overruled the objection and provided all of the State’s requested instructions.
{¶ 5} On February 23, 2024, the State filed a notice of intent to use cell phone
evidence obtained from a forensic extraction of Boyd’s cell phone. Boyd responded by
filing a liminal motion to exclude all cell phone evidence.
{¶ 6} Trial was held before a jury on March 18-20, 2024 and the jury unanimously
found Boyd guilty as charged.
{¶ 7} At a sentencing hearing held on April 16, 2024, the trial court sentenced
Boyd to serve an aggregate prison term of 15 to 20.5 years.
{¶ 8} Appellant timely appealed his convictions.
Statement of the Facts
Suppression Hearing
{¶ 9} The trial court held the suppression hearing. The State presented Trooper
Race Baker as its only witness. Boyd did not testify nor call any witnesses or admit any
evidence.
{¶ 10} Trooper Baker testified that on January 2, 2022, he was engaged in
stationary patrol on State Route 2, observing both eastbound and westbound traffic. At
3.
approximately 10:15 p.m., he observed a Chevy Impala traveling eastbound toward him.
Using his laser unit, he checked the vehicle’s speed at 63 mph in a 55 mph zone. As the
vehicle passed him, it slowed dramatically to 52 mph, a deceleration of 11 mph. At first,
he let the vehicle travel down the road and get out of view. He then pulled out of his
stationary location and pursued the vehicle.
{¶ 11} When Trooper Baker caught up to the Chevy Impala, he manually activated
his dashboard-mounted, front-facing camera. The camera captured the bulk of Trooper
Baker’s encounter with the Chevy Impala and its occupants. As testified to by Trooper
Baker -- and as demonstrated in the video -- the following events took place. Trooper
Baker activated his overhead lights, and the Chevy Impala rolled to a stop. Dispatch
revealed that the Chevy Impala was registered to a rental car company.
{¶ 12} Trooper Baker greeted the front seat occupants, notified them of the reason
for the stop, and asked for a driver’s license, registration, and proof of insurance. He was
informed that the car was a rental. During this encounter with the front seat occupants, he
noticed that the back seat passenger was lying down across the rear row of seats.
{¶ 13} Trooper Baker asked for the rental agreement, and the driver, Ashley
Brown, stated that she did not have it and that she left it at home. Trooper Baker asked
Brown to step out of the vehicle, and he escorted her to his patrol car, where he placed
her in the front seat.
{¶ 14} Brown told Trooper Baker that her dad had rented the vehicle for her and
that she could ask her dad to text her the rental agreement. Trooper Baker retrieved
4.
Brown’s phone from the rental car and, upon returning to his cruiser, handed the phone to
Brown. Trooper Baker asked Brown whether the rental agreement might be in the center
console of the car, and Brown responded that her dad “keeps them in his email.”
{¶ 15} Trooper Baker returned to the rental vehicle and asked the front seat
passenger, Stacy Walters, if the rental agreement was in the center console. She answered
no. Trooper Baker noticed that Boyd remained in the rear seat, in the same position as
before, appearing to be asleep. At the same time, Trooper Baker detected the odor of
burnt marijuana emanating from the vehicle.
{¶ 16} Trooper Baker returned to his patrol car. At this point, he was transitioning
the inquiry from a traffic investigation to a criminal investigation, and so he radioed
dispatch to get another unit on the scene. He asked Brown whether she was able to get the
rental agreement. A couple of minutes later, Brown provided Trooper Baker with an
electronic copy of the rental agreement, which she had received on her phone from her
father.
{¶ 17} Trooper Baker told Brown he could smell marijuana in the rental car, and
she admitted that there was some in the vehicle, stating, “It’s just a little bit. It’s a roach.”
Brown also admitted the roach was hers. Trooper Baker told her that he was going to
write her a warning.
{¶ 18} Approximately five minutes later, a deputy from the Ottawa County
Sheriff’s Department appeared on the scene to assist Trooper Baker. When Trooper
Baker and the deputy returned to the rental vehicle, Trooper Baker observed that Boyd
5.
was now sitting up and was on his cell phone. Walters and Boyd were asked to step out
of the vehicle. Boyd was put in the back of the deputy’s car. At one point, Trooper Baker
noticed that Boyd was using FaceTime to communicate with someone on his cell phone.
Trooper Baker asked Boyd to give up the cell phone while the officers investigated. Boyd
argued with him and refused to relinquish his phone. Eventually, Trooper Baker grabbed
the phone and snatched it from Boyd’s hands.
{¶ 19} Trooper Baker began a search of the front seat area of the passenger
compartment of the vehicle. He discovered a burnt marijuana cigarette near the center
console in a Newport cigarette pack, and he discovered a gram of raw marijuana bud in a
second cigarette pack. He stated that he was able to smell the odor of raw marijuana
within the passenger compartment of the vehicle. On cross-examination, Trooper Baker
specified that the odor of raw marijuana came from the second cigarette pack.
{¶ 20} Trooper Baker next began to search the rear seat area of the passenger
compartment of the vehicle. There he found a glass tube containing an unlit marijuana
cigarette. Next, Trooper Baker folded down the rear seat and saw a blue duffel bag in the
trunk. He said that the duffel bag was readily accessible to the vehicle’s rear passenger.
{¶ 21} Trooper Baker walked to the rear of the vehicle and unzipped the duffel
bag. At the top of the bag was a plastic “Foot Locker” bag containing multiple smaller
plastic baggies, each of which held a white crystalline substance that Trooper Baker
identified as methamphetamine. In addition, there was a vacuum-sealed plastic bag that
contained a white and yellow powder, which Trooper Baker identified as fentanyl. A
6.
third plastic bag was found to contain a block of white powder, which Trooper Baker
identified as cocaine. Also discovered in the duffel bag were a couple of small jars of
marijuana and some men’s clothing.
{¶ 22} Following this discovery, Boyd, Brown, and Walters were all taken into
custody and Mirandized. During a search of Boyd incident to his arrest, Trooper Baker
discovered more marijuana and $2,300 in U.S. currency. Boyd denied having any
knowledge about the property that was discovered in the trunk of the rental car.
{¶ 23} Trooper Baker testified that while he investigated the traffic offense, he
mentally catalogued a number of observations that led him to believe that the occupants
of the Chevy Impala might be engaged in criminal conduct. Those observations, or
“criminal factors” as Trooper Baker called them, are as follows. First, there was the
“dramatic change” in driving behavior as the Chevy Impala passed Trooper Baker’s
location. The car slowed from 63 mph to 52 mph and then continued down the road at
that significantly slowed speed. According to Trooper Baker, the typical driver speeds up
again once he or she is out of the view of law enforcement.
{¶ 24} Another observation was that the Chevy Impala was a rental car. Trooper
Baker explained that rental cars are frequently used by criminals to avoid forfeiture when
a vehicle is used in connection with a crime.
{¶ 25} Next, Trooper Baker noticed that upon his initial approach Brown was
smoking a freshly lit cigarette and Walters was “frantically trying to light” one. Trooper
Baker testified that cigarettes are often used as a masking agent to cover up the odor of
7.
alcohol or drugs. He noted that Walters’s hands were visibly shaking as she tried to light
her cigarette, despite the fact that she had no reason to be nervous about the speeding
offense because she was not the driver who had committed the offense.
{¶ 26} Another circumstance of interest was that the renter of the Chevy Impala
was not present. And although Brown said that she did not have a copy of the rental
agreement because she had left it at home, Trooper Baker later found the rental
agreement in Brown’s wallet, which was located underneath the rental car driver’s seat.
{¶ 27} Next, Trooper Baker noticed that Brown exited the Chevy Impala with a lit
cigarette but without her coat, which was odd given the cold weather. When Brown got
into the front seat of Trooper Baker’s patrol car, she put her head down and appeared to
be talking to herself.
{¶ 28} Brown initially told Trooper Baker that they were going to Virginia, but
she later corrected herself and said West Virginia. Brown also stated that she was taking
her “cousin” to Virginia, which, in Trooper Baker’s experience can occur when a person
claims to know someone they might not actually know.
{¶ 29} In addition, Brown told Trooper Baker that the car had been rented in
Jackson, Michigan, and that from there it took about five-and-a-half hours to get to
Virginia. Trooper Baker knew, however, that Virginia was about an eight-hour drive
from the western portion of Ohio. Although Brown said that her dad had rented the
vehicle, she did not initially provide her father’s name.
8.
{¶ 30} Brown said she and her companions were going to Morgantown, West
Virginia. Trooper Baker recounted that a fellow trooper who had conducted a traffic stop
on a rental vehicle that was coming from Michigan and going to Morgantown, West
Virginia, had discovered a “large amount” of narcotics in that vehicle. In addition,
Trooper Baker himself had previously stopped a vehicle heading to Morgantown, West
Virginia, and had found the vehicle to contain one-and-a-half kilos of methamphetamine.
{¶ 31} When Trooper Baker approached the Chevy Impala a second time in order
to get Brown’s phone, he noticed that Boyd still appeared to be asleep in the back seat. In
Trooper Baker’s experience, it was unusual for an adult to remain asleep following a
traffic stop and police interaction with the vehicle’s occupants. He testified that on a prior
occasion when he encountered a passenger who feigned sleep, it was discovered that the
person had a felony warrant out for his arrest.
{¶ 32} When Trooper Baker asked front-seat passenger Walters for her
identification, she questioned him and was hesitant to provide her information. When she
was asked where the group was headed, Walters -- contradicting Brown -- told Trooper
Baker that they were going to Michigan. Trooper Baker noted that the rental car, when
stopped, had been traveling eastbound, away from Michigan.
{¶ 33} By the time Trooper Baker had returned to his patrol car for the second
time, he believed that some other criminal activity was afoot. Brown told Trooper Baker
that they were going to West Virginia for a court appearance the next day, but she did not
know what the court appearance was for. Trooper Baker considered it unusual that Brown
9.
was texting her father instead of just calling him and asking him to send her a copy of the
rental agreement.
{¶ 34} When Trooper Baker approached the rental car for a third time to see if
Walters could help find a copy of the rental agreement, Boyd remained prone in the back
seat.
{¶ 35} Twelve minutes and 42 seconds into the encounter, Trooper Baker was still
attempting to determine if the occupants of the rental car were lawfully in possession of it
or if the rental car had been stolen. It was at this time that he smelled the odor of burnt
marijuana coming from within the rental vehicle and mentally transitioned his inquiry
from a traffic investigation to a criminal investigation.
Jury Trial
Boyd’s liminal motion concerning cell phone evidence
{¶ 36} At the outset of the trial, counsel for the parties discussed with the court
Boyd’s liminal motion. In this motion, Boyd sought to exclude, among other things,
screen shots of text messages that were received on Boyd’s cell phone. Ultimately, the
trial court determined that the text messages were relevant to show Boyd’s “knowledge
of drug lingo,” “which might go to his knowledge that there were…narcotics in the car.”
Boyd’s opening statement
{¶ 37} During a brief opening statement, counsel for Boyd asked the jury to
consider why the State’s witnesses (Brown and Walters) “are testifying the way they
10.
are,” but claimed that it was not a question of finger-pointing, but rather a question of
weighing the credibility of the witnesses.
The State’s case-in-chief
{¶ 38} During its case-in-chief, the State called seven witnesses: 1) Ashley Brown;
2) Stacy Walters; 3) Trooper Race Baker; 4) Sergeant Ryan Randall; 5) Trooper Ryan
Stewart; 6) Keith Ferguson; and 7) Taylor Britton.
Ashley Brown
{¶ 39} Brown was a 37-year-old single mother of two, who lived in Jackson,
Michigan. She stated that Stacy Walters was her cousin, that Boyd was the father of two
of Walters’s children, and that Brown had known Boyd for about five to ten years.
{¶ 40} Brown testified that her father had rented her a Chevy Impala for her
birthday weekend and that she made a first trip from Jackson, Michigan, to Morgantown,
West Virginia, together with Walters, on December 31, 2021. She stated that the purpose
of that trip was to retrieve Walters’s car, because the plates on that vehicle had expired.
On the drive back, Boyd, who had been in Morgantown, allegedly rode with Walters in
her car.
{¶ 41} Brown testified that on January 1, 2022, she received two phone calls from
Walters, and that during the second call, Walters handed her cell phone to Boyd, who
then asked Brown to give him a ride back to West Virginia. Brown testified that Boyd
first offered her a couple hundred dollars, then changed the amount to $500, and then
$700, at which point Brown agreed to drive him.
11.
{¶ 42} Brown picked up Boyd and Walters at Walters’s house. Brown stated that
when she arrived, Boyd put a duffel bag in the trunk of her rental car. Brown never asked
Boyd what was in the duffel bag, and Boyd never told her. When they left Walters’s
house, Brown was driving, Walters was in the front passenger seat, and Boyd was in the
rear seat behind Walters. Brown testified that they made a brief stop in Detroit, where
Boyd went into a house while Brown and Walters stayed in the rental car. According to
Brown, the duffel bag remained in the trunk, undisturbed.
{¶ 43} After the three of them left Detroit, they headed toward Morgantown, West
Virginia, and were pulled over by a state trooper in Ottawa County, Ohio. Brown testified
that just before the stop, Boyd was awake in the back seat, talking with Walters about the
trip. During the traffic stop, Brown gave police consent to search her rental car.
{¶ 44} Brown testified that she was “absolutely” surprised when the police
discovered a large amount of drugs in the trunk. Brown promptly told the police that the
duffel bag did not belong to her and that Boyd had gotten into her vehicle with the bag.
Brown cooperated with the police. She let them look in her cell phone and she voluntarily
interviewed with Trooper Ryan Stewart.
{¶ 45} Eventually, the police allowed Brown to leave with the rental car and her
cell phone, and they returned the duffel bag to Walters after they removed the drug
evidence.
12.
Stacy Walters
{¶ 46} Stacy Walters was Brown’s cousin and the mother of three children, two of
whom she had with Boyd. Walters testified that she had known Boyd for approximately
17 years.
{¶ 47} Walters testified that in late December 2021, around New Year’s Eve,
Brown drove her to Morgantown, West Virginia so that she could pick up her 2019 Jeep
Cherokee. Brown drove her there in Brown’s rental car. When Walters drove her own car
back from Morgantown to Jackson, Michigan, Boyd rode with her.
{¶ 48} Soon after returning to Jackson, Boyd asked Walters to call Brown to ask
for a ride back to Morgantown. Walters called Brown and then let Boyd speak with her.
Brown agreed to give Boyd a ride back to Morgantown.
{¶ 49} Brown picked up Boyd and Walters at Walters’s home. Walters testified
that she did not bring any luggage, because it was to be a round trip. She further testified
that when Boyd got into the rental car, he put a duffel bag in the trunk. Walters stated that
Boyd did not tell her what was in the duffel bag and that she did not ask, because she
thought it was just clothes. She further stated that when they made a stop in Detroit, Boyd
got out of the car, but he left the duffel bag in the trunk. Walters testified that she never
got into the bag or tried to control it.
{¶ 50} When the three left Detroit that night, Brown was driving, Walters was in
the front passenger seat, and Boyd was in the back. Ultimately, police found drugs in the
duffel bag in the trunk. Like Brown, Walters cooperated with the police. She spoke with
13.
the police and stated that she was honest with them. In addition, she allowed the police to
look in her cell phone. The police did not find anything incriminating in her cell phone.
{¶ 51} Eventually, the police let Walters leave with Brown in Brown’s rental car,
and they gave Walters the duffel bag, along with the clothing that had been discovered
within it. Walters identified the clothing in the duffel bag as belonging to Boyd. Walters
stated that after she got home, she put the clothes in her closet, because she did not know
what else to do with them. She said that she ultimately ended up giving them to her son,
because he was about the same size as Boyd.
{¶ 52} When asked on direct examination why the jury should believe her claim
that the drugs in the duffel bag had nothing to do with her, she stated, “Because I’m
telling the truth. It didn’t have nothing to do with me. I told the truth in, back in that case
and I’m telling the truth now.”
Trooper Race Baker
{¶ 53} During his trial testimony, Trooper Baker recounted most of the same facts
about which he had testified during the suppression hearing, including the litany of
“criminal factors” he had noted, which involved not just Boyd, but also Brown and
Walters. He mentioned the fact and significance of: 1) Brown’s driving behavior on the
highway, including the drastic speed change; 2) Brown’s and Walters’s freshly lit
cigarettes at the time of the stop; 3) the stopped car’s status as a rental vehicle; 4)
Brown’s initial misstatement about going to Virginia; 5) Walters’s misstatement about
going to Michigan; 6) Brown’s actions in texting rather than phoning her father; and 7)
14.
the smell of burnt marijuana in the car. Trooper Baker especially highlighted the fact that
Boyd had feigned sleep during the majority of the traffic stop but suddenly awoke and
got on his cell phone when the deputy sheriff arrived to serve as backup. Trooper Baker
testified that during his 10-year career as a trooper, he had experienced only one other
occasion where an adult appeared to be sleeping during a traffic stop, and on that
occasion it was discovered that the adult had an active felony warrant for his arrest.
{¶ 54} Trooper Baker also highlighted the fact that when he told Boyd he could
not use his cell phone while under investigative detention, Boyd ignored him and
continued to use his phone. Boyd was FaceTiming with someone who was giving him
advice about the police encounter, telling Boyd that “they can’t do that.” Boyd continued
to argue with Trooper Baker, refusing to get off his phone. After about two minutes of
arguing, Trooper Baker “snatched” Boyd’s cell phone from him and put it on the front
seat of the deputy sheriff’s cruiser, while Boyd was detained in the back. Trooper Baker
described Boyd as “uncooperative” during the encounter.
{¶ 55} Trooper Baker then began his search of the rental car, beginning with the
passenger compartment. He explained that the trunk could be accessed from the rear
passenger compartment by folding down one of the back seats, and that when he did that,
he was able to see the duffel bag.
{¶ 56} When he opened the duffel bag, he discovered a large quantity of drugs. In
all, Trooper Baker discovered five one-pound bags of methamphetamine, a block of
cocaine that weighed approximately 125 grams, and a vacuum-sealed baggie with two
15.
balls of fentanyl that weighed approximately 200 grams. The only other things in the
duffel bag were articles of men’s clothing, such as shirts and jeans.
{¶ 57} Trooper Baker testified that both Brown and Walters told him at the scene
of the traffic stop that the duffel bag belonged to Boyd. He further testified that when he
searched Brown and Walters, he did not find anything such as cash or drugs, but when he
searched Boyd, he found a small baggie of marijuana and approximately $2,300 in cash.
Trooper Baker explained to the jury that traffickers finance the sale of drugs with cash.
{¶ 58} In response to Boyd’s questions as to why certain items of evidence had not
been tested for fingerprints or DNA, Trooper Baker explained that even if those items
had been tested for such things, and even if Boyd’s fingerprints and DNA had been
discovered on incriminating pieces of evidence, scientists still could not say when or how
those fingerprints or DNA got onto those items.
Trooper Ryan Stewart
{¶ 59} Trooper Stewart confirmed that the amount of drugs seized in this case was
not for personal use but rather was “definitely trafficking weight.” He also explained that
drug traffickers almost exclusively use cash to facilitate their business because it leaves
no paper trail.
{¶ 60} When police seized the drugs in this case, Trooper Stewart was called in to
interview the three occupants of the rental car.
{¶ 61} Trooper Stewart interviewed Walters for a total of approximately 25-30
minutes. She told him that she had known Boyd for about 13 years and that they had
16.
children together and spoke frequently. She confirmed that they had been traveling from
Jackson, Michigan to West Virginia. During her interview, she let Trooper Stewart look
through her cell phone. Trooper Stewart noted that during his interview with Walters, she
was guarded but not evasive, she answered questions, and she never asserted her
constitutional rights.
{¶ 62} Trooper Stewart also interviewed Brown. He stated that she was very
emotional -- both visibly and audibly upset -- because she had been put in this situation.
But she answered his questions without evasion and never invoked her constitutional
rights. She explained her earlier trip to Morgantown, West Virginia and the current trip
from Jackson, Michigan to Morgantown. Trooper Stewart confirmed that Brown allowed
him to go through her cell phone.
{¶ 63} Finally, Trooper Stewart described his interview with Boyd, which lasted
about 10 to 15 minutes. According to Trooper Stewart, Boyd “was evasive on the
questions about the contraband that was found, whose it was, who was responsible for it,
with a lot of indirect questions or indirect answers pertaining to the questions [Trooper
Stewart] had asked him.” Based on the first two interviews with Walters and Brown,
Trooper Stewart’s belief was that Boyd had “all or most responsibility for the, the drugs
at the time.” He stated that he wanted to gain Boyd’s cooperation, because his goal was
“to work up the ladder, to get to the higher food chain people.” Ultimately, Trooper
Stewart terminated the interview because he and Boyd were “going around in circles.” He
knew he “wasn’t going to get anywhere with what [he] was trying to achieve, so [he]
17.
ended it.” Trooper Stewart noted that during the interview Boyd’s cell phone kept
receiving alerts that were visible on his lock screen from people who were trying to
contact him, including an individual who was saved in Boyd’s phone as “Ven.”
{¶ 64} During cross-examination, Trooper Stewart confirmed that Brown and
Walters were eventually released on the night of the drug seizure. He characterized their
release as a “group decision.” Police gave Brown and Walters the rental car and the
duffel bag that still contained the clothing inside.
{¶ 65} Trooper Stewart then explained that, based on the interviews and the fact
that both Brown and Walters had said that Boyd put the duffel bag into the trunk of the
rental car, no further investigation had been done in terms of fingerprint or DNA
evidence. Trooper Stewart did not think that further investigation of the men’s clothing
was pertinent, because Boyd was the only male in the car. Trooper Stewart then
explained why, in his experience, it would have been a futile gesture for law enforcement
personnel to attempt to test certain items of evidence for fingerprints or DNA.
Sergeant Ryan Randall
{¶ 66} Sergeant Ryan Randall applied for and obtained a search warrant to
conduct a forensic extraction of Boyd’s seized cell phone. As a result, Boyd’s cell phone
was sent to the Ohio State Highway Patrol’s Computer Crimes Unit for forensic
extraction.
18.
Analyst Keith Ferguson
{¶ 67} Keith Ferguson is a forensic computer specialist with the Ohio State
Highway Patrol. He explained how he conducted the forensic extraction of Boyd’s cell
phone, whose contents were eventually analyzed by Taylor Britton.
Analyst Taylor Britton
{¶ 68} Taylor Britton is an intelligence analyst with the Ohio State Highway
Patrol. He analyzed the forensic extraction from Boyd’s cell phone, which was the
subject of Boyd’s liminal motion. Britton looked through Boyd’s messages, contacts,
internet search history, photos, and location data. Based upon the trial court’s motion in
limine rulings, Britton limited his testimony to the data that was contained in Boyd’s cell
phone for the eight days leading up to the seizure in this case, that is, from December 25,
2021, through January 2, 2022.
{¶ 69} Britton tallied the number of incoming and outgoing calls and identified the
top ten most frequently used numbers for that eight-day period. The most used number
was involved in 146 calls. The third most used number, which belonged to Walters, was
involved in 113 calls.
{¶ 70} Britton also analyzed Boyd’s GPS data, which tracked Boyd’s travel near
Morgantown, West Virginia, his trip from Morgantown to Jackson, and the balance of his
return trip from Jackson to Ottawa County. The GPS data corroborated Brown’s and
Walters’s testimony.
19.
{¶ 71} Finally, Britton identified several text messages sent to Boyd’s cell phone
that used coded drug language. According to Britton, people who are engaged in drug
trafficking seldom use proper names such as cocaine, fentanyl, acetylfentanyl,
carfentanyl, or heroin.
{¶ 72} Relying on his personal knowledge and experience, Britton identified
several text strings that used coded language, such as “girl” and “boy,” “half,” and
“green.” Britton translated those terms for the jury. He also identified several text
messages that were sent to Boyd using such terms, but to which Boyd never responded,
suggesting that Boyd understood the coded language. For example, prior to the stop,
someone texted Boyd, “Can you help me with like a 40 or a half until later? I’m detoxing
so bad. And Ashton is about to be going for his day report assessments.” Also prior to the
stop, someone texted Boyd, “Yo, both the girl and the boy wasn’t any good. For real, I’m
not lying, man. So hit me up when you get something else better.” During the traffic stop,
“Ven” texted Boyd, “I need that up if you got it.” Also during the traffic stop, “Ven”
texted Boyd, “Let me know. Got people waiting. I’ll wait for a few minutes before I start
calling around.”
Crim.R. 29 motion
{¶ 73} At the conclusion of Boyd’s case-in-chief, Boyd moved for a judgment of
acquittal under Crim.R. 29. The basis for the motion was that the State Patrol had
returned the duffel bag and men’s clothing, which “had probative evidence,” to Walters,
who “apparently by the charges of this case wasn’t the owner.” The State opposed the
20.
motion, noting that such was not an appropriate basis for a Crim.R. 29 motion, and the
trial court denied the motion.
Complicity instruction
{¶ 74} On the morning of the third day of trial, the trial court met with Boyd and
counsel for the parties and reviewed jury instructions. The trial court stated that it
intended to provide a complicity instruction to the jury. The trial court noted Boyd’s
objection, stating:
[Defense counsel] objects to that. He points out that no
witness has explicitly taken the stand and said that there was
fault on the part of the two women who were in the car on
January 2d with Mr. Boyd. They were released by the
Highway Patrol. The duffle bag was returned to one of them.
And in that circumstance, as I understand it, Mr. Wittenberg
doesn’t think that this part of the charge ought to be given.
Defense counsel confirmed the court’s understanding of the objection, stating, “I think
the Court is accurate insofar as you’ve gone.”
{¶ 75} The State argued in support of the instruction, pointing out that the defense
had presented the theory that Boyd was somehow innocent and that someone else was
culpable -- either Walters or Brown, or perhaps other unnamed “players” for which Boyd
was the middleman.
{¶ 76} The trial court overruled Boyd’s objection, stating:
I’ll overrule the objection and will give the complicity in
committing a crime portion of the charge as drafted. As I’ve
said to Counsel informally when we chatted about this in
chambers a little while ago, I’m concerned about the
inference that the jury might draw that because they were
present, Ms. Walters and Ms. Brown could have had
21.
knowledge and could have some legal culpability, and that
they were simply trying to layoff responsibility on Mr. Boyd.
That would be negated by telling them, as we try to do here,
that even if other people are involved as complicitors or
aiders and abettors, that doesn’t provide a defense for Mr.
Boyd.
Closing arguments
{¶ 77} The State, in its closing argument, asked the jury to consider the effect of
the text messages on Boyd, particularly in light of the fact that he never responded by
asking what they meant. In other words, the State argued, the text messages showed that
Boyd “spoke the language” of drug trafficking.
{¶ 78} The State also asked the jury to consider the jury instructions regarding
actual possession, constructive possession, joint possession, complicity, and reasonable
doubt. Regarding the question of doubt, the State asked the jury to distinguish between
mere possible/imaginary doubt as opposed to reasonable doubt because the State
anticipated that Boyd would re-cast possible/imaginary doubt as reasonable doubt during
his closing argument and, in so doing, would blame Brown and Walters for the drugs that
were seized from the trunk of the rental car.
{¶ 79} Defense counsel explained in closing argument that the State wanted the
jury to believe either that the testimony of Brown and Walters was truthful and credible
or that they were aiders and abettors. He argued that “if allegations are made as to Stacy
Walters and Ashley Brown, it’s a result of the evidence, not because I’m finger-pointing
at them or saying anything other than what the evidence showed.” In support of this
statement, Boyd pointed out that many of the “criminal factors” cited by Trooper Baker
22.
involved Brown and Walters, and not Boyd. He also pointed out that police returned the
bag to Walters, suggesting that the bag and its contents belonged to her. Finally, defense
counsel stated:
If you conclude either or both of these witnesses were more
than merely present, that is that they were accomplices
because they shared knowledge and intent to break the law,
then you are advised under Ohio law, testimony by an
accomplice should be viewed with grave suspicion and
weighed with great caution. The testimony of an accomplice
does not become inadmissible because of the complicity,
moral turpitude, or self-interest, but the admitted or claimed
complicity of an accomplice may affect their credibility and
require that it be weighed with great caution.
{¶ 80} The State responded to Boyd’s arguments as follows:
Everything in this case points to the Defendant as the one
who was calling the shots. Whether or not Stacy and Ashley
were involved is not relevant to your determination of the
charges against the Defendant. The only thing that’s relevant
is whether or not you believe he acted knowingly, he
possessed those drugs in some fashion, actual possession,
constructive possession, or joint possession…and that he had
those drugs with the intent for them to be sold or resold by
himself or another.
Jury instructions
{¶ 81} The trial court provided the jury with standard complicity instructions. For
each count, the trial court instructed the jury that they could find Boyd guilty either as a
principal offender who acted alone or as a complicitor who acted knowingly with others.
The trial court specified that “the mere presence of a person at the scene of an offense is
not sufficient to prove, in and of itself, that they were an aider and abettor. There must be
23.
some substantial and overt act committed to make someone an aider and abettor, or that
shows beyond a reasonable doubt their knowing complicity in committing a crime.”
{¶ 82} Of Brown and Walters, the trial court -- recalling that the two women had
testified that they were traveling in the automobile with Boyd on the evening of January
2, 2022, and that they had “some knowledge of events that occurred”-- told the jury that
the “[o]ne or both women may have been knowingly and voluntarily involved in illegal
conduct, or one or both may have had no knowledge and any criminal activity and no
intent to break the law.” The trial court advised the jury that if it concluded that either or
both witnesses were more than merely present and were, instead accomplices, their
testimony, although admissible, should be viewed with grave suspicion and weighed with
great caution.
Jury verdicts
{¶ 83} Following deliberations, the jury returned with unanimous guilty verdicts
on all six counts.
Sentencing
{¶ 84} At sentencing, the trial court found that the charge for trafficking in cocaine
merged with the charge for possession of cocaine; the charge for aggravated trafficking in
drugs merged with the charge for aggravated possession of drugs; and the charge for
trafficking in a fentanyl-related compound merged with the charge for possession of a
fentanyl-related compound. In each instance, the State elected to proceed with sentencing
on the related trafficking charge.
24.
Assignments of Error
{¶ 85} On appeal, Boyd asserts the following assignment of error:
I. The trial court erred in failing to suppress evidence
seized as a result of the unlawful detention of Markum
Boyd.
II. The conviction is insufficient of evidence and contrary
to the manifest weight of the evidence.
III. The trial court erred in permitting hearsay and
character evidence to be admitted over objection.
IV. The trial court erred in giving a complicity instruction
in this case over objection.
Law and Analysis
The trial court did not err when it denied Boyd’s motion to suppress.
{¶ 86} “‘Appellate review of a motion to suppress presents a mixed question of
law and fact.’” State v. Donaldson, 2019-Ohio-232, ¶ 14 (6th Dist.), quoting State v.
Burnside,
2003-Ohio-5372, ¶ 8. “When the trial court considers a motion to suppress, it
acts as the factfinder and is in the best position to resolve factual questions and to
evaluate the credibility of witnesses.”
Id., citing
Burnside at ¶ 8. “We accept the trial
court’s findings of fact if they are supported by competent, credible evidence, but we
must independently determine whether the facts satisfy the applicable legal standard
without deferring to the trial court’s legal conclusions.”
Id.
{¶ 87} Here, the parties do not dispute that Trooper Baker was constitutionally
permitted to initiate the traffic stop for a speeding violation. They also do not dispute that
Trooper Baker was constitutionally permitted to detain the rental car and its occupants
25.
until he had obtained and processed the driver’s license, registration, and proof of
insurance from Brown, whose father had rented the car. It is not even disputed that
Trooper Baker’s detection of the odor of burnt marijuana emanating from the passenger
compartment of the rental car established probable cause to search the passenger
compartment of the car. The issue, as articulated in Boyd’s first assignment of error, is
whether Trooper Baker had probable cause to further search the trunk of the car and its
containers.
{¶ 88} The Supreme Court of Ohio has established that “[a] trunk and a passenger
compartment of an automobile are subject to different standards of probable cause to
conduct searches.” State v. Farris, 2006-Ohio-3255, ¶ 51. “Probable cause for an
extended search of an automobile exists where, based on the totality of the circumstances,
there is a ‘fair probability that contraband or evidence of a crime will be found in a
particular place.’” State v. Beavers,
2007-Ohio-2915, ¶ 11 (8th Dist.), quoting State v.
Steen,
2004-Ohio-2369, ¶ 5 (9th Dist.), quoting Illinois v. Gates,
462 U.S. 213, 238
(1983). In Farris, the Ohio Supreme Court found that the odor of burnt marijuana in the
passenger compartment of a vehicle justifies a search of the passenger compartment but
does not itself justify an extended search to the trunk of a car.
Farris at ¶ 52. The Farris
court, concluding there were no factors to justify an extended search of the defendant’s
vehicle, expressly noted that, except for the “light odor of marijuana,” the police had
found no “other contraband” within the passenger compartment. Id.
26.
{¶ 89} Here, it was discovery of actual, physical marijuana in the passenger
compartment, together with the numerous “criminal factors” that were enumerated by
Trooper Baker -- and not just the odor of burnt marijuana or even the odor of raw
marijuana emanating from the cigarette pack -- that gave Trooper Baker probable cause
to search the rest of the car, including the trunk, where Trooper Baker could see by way
of his search of the passenger compartment that there existed a duffel bag that was
accessible to anyone seated in the back seat.1 See State v. Price, 2013-Ohio-130, ¶ 18 (6th
Dist.) (under the totality of the circumstances, which included the discovery of a small
amount of marijuana and a black bag that smelled of marijuana upon a search of the
passenger compartment, there was probable cause to search the trunk of the vehicle);see
also State v. Boykins,
2024-Ohio-5898, ¶ 17 (4th Dist.) (discovery that defendant
possessed illegal drugs in her vehicle gave trooper probable cause to search the entire
vehicle); State v. Lynn,
2018-Ohio-3335, ¶ 19 (12th Dist.) (discovery of a small amount
of marijuana and pills in vehicles glove compartment provided officers with probable
cause to extend search to vehicle’s trunk);
Beavers at ¶ 12 (discovery of contraband in
1
Although in cases going forward there may now be some question as to whether the
smell of marijuana or even the presence of marijuana -- whose medical and recreational
possession and use has been legalized in Ohio -- is alone sufficient to establish probable
cause, because non-medical marijuana was still illegal in Ohio at the time of the traffic
stop in this case and because Trooper Baker relied on other factors to determine that he
had probable cause to believe that he would find contraband in the rental vehicle, we
need not address the matter here. See State v. Tomlin,
2024-Ohio-4710, ¶ 24-25 (2d Dist.)
(because non-medical marijuana was illegal in Ohio at time of traffic stop, any detection
of the odor of marijuana would give probable cause to search); State v. Wright, 2024-
Ohio-1763, ¶ 26-27 (1st Dist.) (in light of other factors, there was no need to decide
whether police dog’s sniff and alert, standing alone, provided probable cause to search).
27.
plain view on a vehicle’s middle console gave police probable cause to search the entire
car, including the trunk); State v. Greenwood,
2004-Ohio-2737, ¶ 10-12 (2d Dist.)
(observation of marijuana on the passenger seat and floorboard gave officer probable
cause to believe that the vehicle contained contraband; thus, the officer was entitled to
search the entire vehicle, including the trunk).
{¶ 90} Further, “when officers have ‘probable cause to search for contraband in a
car, it is reasonable for police officers…to examine packages and containers without a
showing of individualized probable cause for each one.’” State v. Malone, 2022-Ohio-
1409, ¶ 31 (4th Dist.), quoting Wyoming v. Houghton, 526 U.S. 295, 320 (1999); accord
State v. Vega,
2018-Ohio-4002, ¶ 16 (officer could lawfully open sealed envelope located
inside vehicle when officer possessed probable cause to search vehicle); see also
Boykins
at ¶ 17 (once trooper had probable cause to search the entire vehicle, he could search
anywhere where evidence could be concealed, including the defendant’s purse);
Greenwood at ¶ 11 (probable cause to search entire vehicle permitted search of trunk and
its contents). Thus, Trooper Baker could lawfully search not just the trunk of the car, but
also the duffel bag that was contained within. Accordingly, Boyd’s first assignment of
error is found not well-taken.
The convictions are based on sufficient evidence and are not against
the manifest weight of the evidence.
{¶ 91} Boyd argues in his second assignment of error that his convictions are
“insufficient of evidence and contrary to the manifest weight of the evidence.”
28.
{¶ 92} “Sufficiency of evidence is a term of art for applying the legal standard to
determine whether the evidence is legally sufficient to support the verdict as a matter of
law.” Toledo v. Manning, 2019-Ohio-3405, ¶ 13 (6th Dist.), citing State v. Thompkins,
78
Ohio St.3d 380, 386 (1997). “The test for sufficiency is one of adequacy, or ‘whether the
evidence, if believed, can sustain the verdict as a matter of law.’” State v. Kimble, 2025-
Ohio-310, ¶39 (6th Dist.), quoting
Manning at ¶ 12, citing State v. Myers, 2018-Ohio-
1903, ¶ 132. “Indeed, in making that determination, the appellate court will not weigh the
evidence or assess the credibility of the witnesses.” Kimble at ¶ 39, citing State v. Walker,
55 Ohio St.2d 208, 212 (1978).
{¶ 93} By contrast, in determining whether Boyd’s conviction is against the
manifest weight of the evidence, we must review the record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses and decide, in resolving
any conflicts in the evidence, whether the trier of fact “clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.” State v. Prescott, 190 Ohio App.3d 702,
2010-Ohio-6048, ¶ 48 (6th Dist.),
citing
Thompkins at 387. “We do not view the evidence in a light most favorable to the
State; rather, we ‘sit as a “thirteenth juror” and scrutinize “the factfinder's resolution of
the conflicting testimony.”’” State v. Jackson,
2024-Ohio-2419, ¶ 67 (6th Dist.), quoting
State v. Lewis,
2022-Ohio-4421, ¶ 22 (6th Dist.), quoting State v. Robinson, 2012-Ohio-
6068, ¶ 15 (6th Dist.). “Although we consider the credibility of witnesses under a
manifest-weight standard, we must, nonetheless, extend special deference to the fact-
29.
finder's credibility determinations, given that it is the finder of fact that has the benefit of
seeing the witnesses testify, observing their facial expressions and body language,
hearing their voice inflections, and discerning qualities such as hesitancy, equivocation,
and candor.” State v. Brooks,
2023-Ohio-2978,
2023 WL 5500445, ¶ 13 (6th Dist.), citing
State v. Fell,
2012-Ohio-616, ¶ 14 (6th Dist.).
{¶ 94} In this case, Boyd claims that the State failed to prove that he had
constructive possession of the duffel bag, because the bag also contained clothing that fit
Walters’s son and because the bag was ultimately returned to Walters. He further claims
that “[n]o effort was made to independently identify the owner of the bag, or [to]
associate it with” Boyd.
{¶ 95} As indicated above, the possession related offenses merged with the
associated trafficking offenses, and the State elected to proceed to sentencing on the
trafficking offenses, all of which were the result of Boyd’s violation of R.C.
2925.03(A)(2).
{¶ 96} Under R.C. 2925.03(A)(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.
30.
{¶ 97} Recently, this court held that “[t]he plain language of R.C. 2925.03(A)(2)
does not require that an offender be in ‘possession’ of the controlled substance at the time
they are arrested for trafficking in order to be convicted.” State v. Stuart, 2025-Ohio-
2420, ¶ 23 (6th Dist.).
To require the state to show that the offender had possession
of the controlled substance would create an absurd result that
would allow a drug trafficker to prepare controlled substances
for delivery, arrange for their transport, and facilitate their
sale, but avoid criminal liability because they were not found
in possession of those substances.
Id. Thus, in this case, as in Stuart, the State was not obligated to present evidence that
Boyd had actual or constructive possession of the duffel bag, but only that he knowingly
transported the bag containing controlled substances intended for sale or resale. At trial,
the State presented evidence sufficient to support the trafficking charges in the form of
testimony by Brown and Walters that Boyd placed the fully-packed duffel bag in the
trunk of Brown’s rental vehicle.
{¶ 98} Not only was Boyd’s conviction based on sufficient evidence, it was also
supported by the manifest weight of the evidence. We disagree with Boyd’s suggestion
that the jury clearly lost its way or created a manifest miscarriage of justice when it
apparently accepted the “extraordinarily self-serving” testimony of Brown and Walters.
“‘Although we consider the credibility of witnesses in a manifest weight challenge, we
are mindful that the determination regarding witness credibility rests primarily with the
trier of fact because the trier of fact is in the best position to view the witnesses and
31.
observe their demeanor, gestures, and voice inflections -- observations that are critical to
determining a witness’s credibility.’” State v. Bentz, 2017-Ohio-5483, ¶ 98 (3d Dist.),
quoting State v. Williams,
2013-Ohio-573, ¶ 31 (8th Dist.). The jury -- who was
repeatedly cautioned that any accomplice testimony should be viewed with grave
suspicion and weighed with great caution -- was free to accept or reject any or all of
Brown’s and Walters’s testimony concerning Boyd’s having placed the duffel bag in the
trunk. See
id.
{¶ 99} To the extent that Boyd argues that the State provided insufficient evidence
relating to the possession offenses, we note that the trial court did not impose sentence on
those offenses and, therefore, any claims regarding sufficiency or weight of the evidence
as to those offenses are not properly before us. See State v. Powell, 2024-Ohio-5122,¶ 13-
15 (2d Dist.); State v. Volpi,
2023-Ohio-4488, ¶ 125-127 (11th Dist.); State v. Cottrell,
2023-Ohio-3932, ¶ 22 (12th Dist.).
{¶ 100} For the foregoing reasons, Boyd’s second assignment of error is found not
well-taken.
The trial court abused its discretion when it admitted forensic extraction evidence
from Boyd’s cell phone, but the error was harmless.
{¶ 101} Boyd argues in his third assignment of error that the trial court erred in
permitting hearsay and character evidence in the form of forensic extraction evidence
from Boyd’s cell phone. “‘Decisions involving the admissibility of evidence are reviewed
under an abuse-of-discretion standard of review.’” State v. Urbanek, 2023-Ohio-2249, ¶
62 (6th Dist.), citing Estate of Johnson v, Randall Smith, Inc.,
2013-Ohio-1507, ¶ 22,
32.
citing State v. Hancock,
2006-Ohio-160 “‘Similarly, decisions granting or denying a
motion in limine are reviewed under an abuse-of-discretion standard of review.’”
Urbanek at ¶ 62, citing Illinois Controls, Inc. v. Langham,
70 Ohio St.3d 512, 526
(1994).
{¶ 102} Boyd argues that the trial court abused its discretion when it admitted
forensic evidence from Boyd’s cell phone because the evidence constituted inadmissible
hearsay and character evidence. In response, the State argues that this evidence -- in the
form of text messages that were sent to Boyd by various third parties -- showed Boyd’s
knowledge, which was an essential element of all six offenses charged in this case.
{¶ 103} Evid.R. 801(C) defines “hearsay” as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.” “But a statement is not hearsay when offered for a purpose other
than to prove the truth of the matter asserted, e.g., to show its effect on the listener.” State
v. Crocker, 2015-Ohio-2528, ¶ 50 (4th Dist.). In addition, “‘[q]uestions and commands
are not statements covered under the hearsay rule.’” State v. Fitts, 2020-1154, ¶ 34 (6th
Dist.), quoting United States v. Ellis, E.D. Mich. No. 12-CR-20228,
2013 WL 2285457,
*2 (May 23, 2013). “Multiple courts have held that text messages received on a
defendant’s cell phone are not hearsay when the messages are not offered for the truth of
the matter asserted.” State v. Norris,
2016-Ohio-5729, ¶ 32 (2d Dist.), citing Crocker and
State v. Miller,
2015-Ohio-330, ¶ 17 (1st Dist.).
33.
{¶ 104} According to Boyd, the text messages that were sent to him were offered
for their truth. In his brief, he highlights the text message that stated “Yo, both the girl
and the boy wasn’t any good. For real, I’m not lying, man. So hit me up when you get
something else better.” Another of the text messages stated, “Can you help me with like a
40 or a half until later? I’m detoxing so bad. And Ashton is about to be going for his day
report assessments.” A third text message said, “I need that up if you got it.” And the
fourth said, “Let me know. Got people waiting. I’ll wait for a few minutes before I start
calling around.”
{¶ 105} Ignoring the texted questions and commands, which are not statements
covered under the hearsay rule, we are left with little more than the statement that “both
the boy and the girl wasn’t any good.” The truth of whether or not the “boy” and “girl” to
which the sender was referring was good is clearly of no consequence in this case.
{¶ 106} Next, Boyd argues that the text messages were impermissibly advanced to
establish his knowledge through propensity, in violation of Evid.R. 404(B). Evid.R.
404(B) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show conformity therewith.” See also State v.
Hartman, 2020-Ohio-4440, ¶ 20-21. “‘Other acts’ evidence, however, may be admissible
for other limited purposes including “proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” State v. Kryling, 2023-
Ohio-1921, ¶ 49 (6th Dist.), citing Evid.R. 404(B). “‘The key is that the evidence must
34.
prove something other than the defendant’s disposition to commit certain acts.,’”
Id.,
citing State v. Kamer,
2022-Ohio-2070, ¶ 129 (6th Dist.), citing
Hartman at ¶ 22.
{¶ 107} To determine whether “other acts” evidence is admissible requires a
specific procedural analysis. First, the evidence must meet a two-pronged relevance
requirement; that is, evidence must be relevant to (1) “the particular purpose for which it
is offered – i.e., a non-character-based purpose, as allowed by Evid.R. 404(B)”; and (2)
“an issue that is actually in dispute – i.e., an issue that is material to the case as required
by Evid.R. 401.” Kamer at ¶ 130, citing State v. Smith,
2020-Ohio-4441, ¶ 37-38. If the
evidence satisfies this relevancy requirement, its admissibility is determined under
Evid.R. 403(A), which states that relevant evidence “is not admissible if its probative
value is substantially outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.” See Kryling at ¶ 50.
{¶ 108} Whether a trial court erred in determining that “other acts” evidence was
admissible under Evid.R. 404(B) is a question of law that is subject to de novo review. Id.
at ¶ 51, citing Kamer at ¶ 132, citing State v. Worley,
2021-Ohio-2207, ¶ 117. The trial
court’s weighing of the probative value of admissible evidence against the danger of
unfair prejudice is reviewed for abuse of discretion.
Id., citing
Kamer at ¶ 132, citing
Hartman at ¶ 30.
{¶ 109} In this case, we need not complete this analysis, because Boyd is correct
in his assertion that the State did not satisfy the prerequisites of Evid.R. 404(B) to even
allow the trial court to entertain the admission of the disputed evidence.
35.
{¶ 110} “When a party seeks to admit ‘other acts’ evidence pursuant to Evid.R.
404(B), the rule explicitly requires that party to ‘provide reasonable notice of any such
evidence the proponent intends to introduce at trial so that an opposing party may have a
fair opportunity to meet it’ and ‘articulate in the notice the permitted purpose for which
the proponent intends to offer the evidence, and the reasoning that supports the
purpose.’” Kryling at ¶ 52, citing Evid.R. 404(B)(2)(a) and (b).
{¶ 111} Thus, it was incumbent upon the State to identify which of the excepted
purposes identified in Evid.R. 404(B)(2) it intended to rely on to introduce the otherwise
inadmissible “other acts” evidence. In this case, the record demonstrates that the State’s
only argument for admission of the “other acts” evidence was to show that Boyd had
knowledge of various coded drug terms -- a reason that is clearly not identified as an
exception under Evid.R. 404(B).
{¶ 112} Here, the evidence showed that a text sent to Boyd on December 26,
2021, contained the words “boy” and “girl.” The State presented expert witnesses who
wrote a report indicating that “boy” is slang for heroin or crack cocaine, and “girl” is
slang for cocaine, heroin, or fentanyl. In addition, the State presented a Highway Patrol
forensic report showing that cocaine and fentanyl were in the duffel bag that was
confiscated on January 22, 2022. But the State did not identify any connection between
the drugs that were found in the duffel on January 2, 2022, and the December 26, 2021
texts that allegedly referred to drugs.
36.
{¶ 113} The mere fact that someone sent Boyd texts containing code words for
drugs in no way establishes that Boyd knew there were drugs in the duffel bag that was
found in the car. In equating a person’s understanding of drug terminology to the
probability of that person committing a crime, the State makes a propensity argument of
the kind that Evid.R. 404(B) is designed to eliminate. “‘The key is that the evidence must
prove something other than the defendant’s disposition to commit certain acts.’” State v.
Hawks, 2025-Ohio-23, ¶ 32 (5th Dist), quoting State v. Hartman,
2020-Ohio-4440, ¶ 22.
{¶ 114} A case on point is State v. Jones, 2021-Ohio-2621 (6th Dist.), wherein this
court similarly found that the State had made a propensity argument in violation of
Evid.R. 404(B). Id. at ¶ 78. In Jones, the State offered evidence of the appellant’s
previous drug arrests as evidence that the appellant “knowingly possessed drugs under
similar circumstances.” In determining that the trial court’s decision to admit that
evidence was in error, we stated:
Essentially, the state’s logic is that because appellant is a drug
dealer, he must have known that the drugs were in the van.
However, aside from appellant’s propensity to be involved in
drug activity, the 2001 drug arrest and the 2019 controlled
delivery have no bearing on whether appellant had knowledge
that the drugs were in the storage compartment of the van on
January 3, 2017; the evidence of those other acts does not
show that appellant had knowledge that the specific drugs
existed, or that appellant placed those drugs in the van.
{¶ 115} As in Jones, at no point, either at trial or in this appeal, did the State
properly seek to introduce the statements for one of the purposes identified in Evid.R.
37.
404(B)(2). This failure to comply with the rule compels a finding by this court that the
trial court erred in admitting the “other acts” evidence. See Kryling at ¶ 53.
{¶ 116} Having determined that the trial court erred in admitting coded text
messages that did not reference the specific drugs that were at issue in this case, we must
now determine whether the error was harmless. See id. at ¶ 54, citing State v. Moore,
2021-Ohio-765, ¶ 37 (6th Dist.). Harmless error is “any error, defect, irregularity, or
variance which does not affect substantial rights.”
Kamer at ¶ 154. “The state bears the
burden of proving that the error did not affect a defendant’s substantial rights.”
Id., citing
Moore at ¶ 33. “When determining whether a trial court’s improper admission of other
acts evidence affected the substantial rights of a defendant, an appellate court must (1)
determine whether the error prejudiced the defendant (i.e., the error affected the verdict),
(2) declare a belief that the error was not harmless beyond a reasonable doubt, and (3)
excise the improper evidence from the record, look to the remaining evidence, and
determine whether there is evidence beyond a reasonable doubt of defendant’s guilt.”
Kamer at ¶ 155, citing State v. Harris,
2015-Ohio-166, ¶37. “In other words, ‘an
appellate court must consider both the impact of the offending evidence on the verdict
and the strength of the remaining evidence.’”
Id.
{¶ 117} At the outset, we recognize that the similar nature of the improperly
admitted “other acts” evidence to the charged offense weighs in favor of finding that the
error was not harmless. See Kryling at ¶ 55, citing Kamer at ¶ 156. However, we find,
after excising the improperly admitted evidence, that the remaining evidence at trial,
38.
including the testimony of witnesses Brown and Walters regarding the constructive
possession of the drugs, overwhelmingly establishes Boyd’s guilt beyond a reasonable
doubt.
{¶ 118} In this case, the remaining (undisputed) evidence shows that Boyd asked
Brown to drive him to West Virginia, and that Boyd agreed to pay her $700 to do it. The
evidence further showed that Boyd put the duffel bag full of drugs in the car, and that it
was Boyd, and Boyd alone, who had access to the duffel and the drugs from his position
in the back seat of Brown’s rental car. Finally, there was testimony by both Brown and
Walters that prior to the traffic stop and police search, neither Brown nor Walters was
aware of the bag’s contents.
{¶ 119} In this circumstance, it is appropriate to find that the improper admission
of “other acts” evidence was harmless error. See Kryling at ¶ 58, citing Kamer at ¶ 159,
quoting State v. Rahman,
23 Ohio St.3d 146, 151 (1986) (“‘[C]ases where imposition of
harmless error is appropriate must involve … overwhelming evidence of guilt[.]’”). For
these reasons, we find that the trial court’s error in improperly admitting the “other acts”
evidence in violation of Evid.R. 404(B) at trial was harmless and does not warrant
reversal of Boyd’s conviction. Therefore, we find Boyd’s third assignment of error not
well-taken.
The trial court did not abuse its discretion when it gave a standard complicity
instruction at trial.
{¶ 120} Boyd argues in his fourth and final assignment of error that the trial court
erred in giving a complicity instruction, first because there was “not any evidence
39.
presented by the state that either the front seat passenger or the driver were involved in
the criminal acts.” He then argues, seemingly paradoxically, that the complicity
instruction unfairly and prejudicially undermined his defense that he was an innocent
passenger, who was merely present and not culpable.
{¶ 121} “‘The court must give all instructions that are relevant and necessary for
the jury to weigh the evidence and discharge its duty as the factfinder.’” State v. Carter,
2024-Ohio-444, ¶ 14 (10th Dist.), citing State v. Joy,
74 Ohio St.3d 178, 181 (1995).
(Additional citation omitted.) On the other hand, “‘It is well established that the trial
court will not instruct the jury where there is no evidence to support an issue.’” State v.
Mankin,
2020-Ohio-5317, ¶ 34 (10th Dist.), quoting Murphy v. Carrollton Mfg. Co.,
61
Ohio St.3d 585, 591 (1991). (Additional citation omitted.) When reviewing a record to
determine whether there is sufficient evidence to support the provision of an instruction,
“‘an appellate court should determine whether the record contains evidence from which
reasonable minds might reach the conclusion sought by the instruction.’”
Murphy at 591,
quoting Feterle v. Huettner,
28 Ohio St.2d 54, (1971) syllabus.
{¶ 122} In general, a trial court’s jury instructions are reviewed for an abuse of
discretion. State v. Dovangpraseuth, 2006-Ohio-1533, ¶ 30 (10th Dist.). “An appellate
court will not reverse a conviction in a criminal case due to jury instructions unless the
jury instructions amount to prejudicial error.” State v. Munye,
2015-Ohio-3362, ¶ 15
(10th Dist.), citing State v. Moody,
2001 WL 242547 (Mar. 13, 2001), citing State v.
DeHass,
10 Ohio St.2d 230 (1967), paragraph two of the syllabus. “Prejudicial error is
40.
found where a court fails to give an instruction that is pertinent to the case, states the law
correctly, and is not covered by the general charge.
Carter at ¶ 15, citing State v. Sneed,
63 Ohio St.3d 3, 9 (1992); State v. Angel,
2021-Ohio-4322, ¶ 67 (10th Dist.), quoting
Joy
at 181. “No purpose is served by giving instructions on law that does not apply to the
facts and circumstances of the case.” State v. O.E.P.T.,
2023-Ohio-2035, ¶ 83 (10th
Dist.). “‘In general, the rule regarding appellate review of jury instructions is that a sole
instruction must be viewed within the context of the whole set rather than in isolation.’”
State v. Moore,
2007-Ohio-5905, ¶ 26 (3d Dist.).
{¶ 123} “It is well established that the prosecution ‘“may charge and try an aider
and abettor as a principal[,] and if the evidence at trial reasonably indicates that the
defendant was an aider or abettor rather than a principal offender, a jury instruction
regarding complicity may be given.”’” State v. Lane, 2022-Ohio-3775, ¶ 64 (3d Dist.),
citing State v. Sidders,
2009-Ohio-409, ¶ 37 (3d Dist.), quoting State v. Demecs, 2006-
Ohio-3802, ¶ 18 (6th Dist.).
{¶ 124} R.C. 2923.03 defines complicity and provides, in pertinent part:
(A) No person, acting with the kind of culpability required for
the commission of an offense, shall do any of the following:
…
(2) Aid or abet another in committing the offense[.]
…
(D) If an alleged accomplice of the defendant testifies against
the defendant in a case in which the defendant is charged with
complicity in the commission of or an attempt to commit an
offense, an attempt to commit an offense, or an offense, the
41.
court, when it charges the jury, shall state substantially the
following:
“The testimony of an accomplice does not become
inadmissible because of his complicity, moral turpitude, or
self-interest, but the admitted or claimed complicity of a
witness may affect his credibility and make his testimony
subject to grave suspicion, and require that it be weighed with
great caution.
It is for you, as jurors, in the light of all the facts presented to
you from the witness stand, to evaluate such testimony and to
determine its quality and worth or its lack of quality and
worth.”
“‘The legislative purpose of R.C. 2923.03(D) is to alert juries of the potentially self-
serving motivation behind an accomplice’s testimony in a strong and uniform manner.’”
State v. Williams, 2019-Ohio-2657, ¶ 50 (6th Dist.), quoting State v. Woodson, 2004-
Ohio-5713, ¶ 17 (10th Dist.), citing State v. Ramsey,
2004-Ohio-3618, ¶ 49 (8th Dist.).
{¶ 125} In this case, the evidence permitted the jury to come to one of four
conclusions: 1) Boyd acted alone in committing the offenses; 2) Brown and/or Walters
aided or abetted Boyd in committing the offenses; 3) Boyd aided or abetted Brown and/or
Walters in committing the offenses; or 4) Boyd was not guilty of the offenses. Although
Brown and Walters were not charged, claimed to have had no knowledge of the drugs,
and said the duffel bag belonged to Boyd, many of the criminal factors cited by Trooper
Baker involved those witnesses, and not Boyd. And as noted by the trial court, Brown
and Walters, who traveled with Boyd in the rental car that carried the bag of drugs and
had “some knowledge of events that occurred,” may well have been voluntarily involved
in illegal conduct or, conversely, may have been completely innocent.
42.
{¶ 126} Boyd, on his side, claimed to have had no knowledge of the duffel bag
and the drugs; therefore, at trial -- from opening statements, through cross-examination of
the State’s witnesses, to closing statements -- he pointed the finger of blame at Brown
and Walters. Whether or not Brown and Walters were involved in the criminal activity
and whether their testimony was credible was for the jury to decide, and the trial court’s
instructions contemplated and provided for all potential allowable outcomes.
{¶ 127} Boyd claims that the complicity instruction prejudicially undermined any
conclusion that he was simply an innocent party. To the contrary, the trial court made
clear in its instructions that “the mere presence of a person at the scene of an offense is
not sufficient to prove, in and of itself, that they were an aider and abettor. There must be
some substantial and overt act committed to make someone an aider and abettor, or that
shows beyond a reasonable doubt their knowing complicity in committing a crime.”
{¶ 128} The complicity theory and instruction actually helped Boyd, inasmuch as
it gave rise to the accomplice instruction, which advised the jury that if it concluded that
either or both witnesses were more than merely present and were, instead accomplices,
their testimony, although admissible, should be viewed with grave suspicion and weighed
with great caution. Viewing the complicity instruction in light of the evidence and within
the context of the whole set of jury instructions, we find no abuse of discretion and no
error, much less prejudicial error, on the part of the trial court. Accordingly, Boyd’s
fourth assignment of error is found not well-taken.
43.
Conclusion
{¶ 129} The judgment of the Ottawa County Court of Common Pleas is affirmed.
Appellant is ordered to pay the costs of appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Gene A. Zmuda, J. ____________________________
JUDGE
Myron C. Duhart, J.
____________________________
Charles E. Sulek, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
44.
