[Cite as State v. Anderson, 2023-Ohio-4463.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 23CA0007-M
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE RAYSHON M. ANDERSON COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 20CR0868
DECISION AND JOURNAL ENTRY
Dated: December 11, 2023
HENSAL, Presiding Judge.
{¶1} Rayshon Anderson appeals his convictions by the Medina County Court of
Common Pleas. This Court affirms.
I.
{¶2} On August 24, 2020, an Ohio State Patrol Trooper initiated a traffic stop after
observing a vehicle traveling southbound on Interstate 71 at 94 miles per hour. The trooper learned
that the driver, Mr. Anderson, had a suspended license and warrants for his arrest from another
jurisdiction. While conducting an inventory search so that the vehicle could be towed, another
trooper noticed a baggie containing a white, powdery substance in the driver’s door compartment.
Upon further search of the vehicle, a scale was also identified. The contents of the baggie were
later determined to contain heroin. Mr. Anderson was charged with possession of heroin and, in a
supplemental indictment, assault against a police officer. 2
{¶3} A jury found Mr. Anderson guilty of the drug charge and found that the amount of
heroin involved was more than one hundred grams. Mr. Anderson then pleaded guilty to assault.
The trial court found that Mr. Anderson was a major drug offender and sentenced him to a
mandatory eleven-year prison term for possession of heroin. The trial court also sentenced him to
a concurrent nine-month prison term for assault. Mr. Anderson appealed, assigning five errors for
this Court’s review. This Court has rearranged his assignments of error for purposes of disposition.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT DENIED MR. ANDERSON[’S] [MOTION TO] CONTINUE THE TRIAL FOR MR. ANDERSON TO CONDUCT INDEPENDENT ANALYSIS OF THE SUBSTANCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE CONSTITUTION.
{¶4} Mr. Anderson’s first assignment of error argues that the trial court erred by denying
his request for a continuance so that additional testing of the substance at issue could be conducted.
This Court does not agree.
{¶5} According to Revised Code Section 2925.51(E), any defendant accused of a drug
offense “is entitled, upon written request made to the prosecuting attorney, to have a portion of the
substance that is * * * the basis of the alleged violation preserved for the benefit of independent
analysis performed by a laboratory analyst employed by the accused person, or, if the accused is
indigent, by a qualified laboratory analyst appointed by the court.” The prosecuting attorney must
provide the sample to the defendant’s analyst at least fourteen days before trial. Id. The purpose
of Section 2925.21(E) is to guarantee that individuals accused of committing drug offenses can
prepare a defense when the composition of the drugs at issue is in question. State v. Napier, 12th
Dist. Butler No. CA2020-03-038, 2020-Ohio-5457, ¶ 19. Section 2925.21(E) therefore guarantees
that, upon request, a sample of the drugs at issue will be preserved and provided to the defendant’s 3
analyst—but Section 2925.21(E) does not create a right to testing itself. See State v. Ojezua, 2d
Dist. Montgomery No. 27768, 2018-Ohio-3812, ¶ 27-28.
{¶6} Although Mr. Anderson frames his assignment of error in terms of the requirements
of Section 2925.21(E), the record demonstrates that those requirements are not at issue. There is
no dispute that the drug evidence in this case has been preserved—rather, Mr. Anderson’s
assignment of error challenges the trial court’s denial of a continuance that he requested on the eve
of trial to compel independent drug testing to be conducted in a specific manner.
{¶7} On October 13, 2022, Mr. Anderson, who was represented by a retained attorney
providing services pro bono, moved the trial court to grant independent testing of the drugs at the
State’s expense. The trial court awarded Mr. Anderson $2,000 for that purpose on October 18,
2022, and set the case for a jury trial commencing on December 12, 2022. Nothing further related
to the testing appears on the record until four days before trial, when Mr. Anderson moved the trial
court to compel the Medina County Drug Task Force to release a sample of the drugs to his expert
for testing. In that motion, Mr. Anderson represented that his expert’s initial position was that he
wanted the entire remaining sample released, but that he had modified his request to include a
representative sample of one gram. Mr. Anderson also explained that his request of the State had
been to send the sample from their custody to his expert but that the State had refused to do so
absent a court order to that effect. Mr. Anderson represented that the cost of compensating his
expert for his travel to Ohio to conduct the independent analysis would consume most of the $2,000
that the trial court had previously awarded and, consequently, he asked the trial court to compel
the State to send the sample to his expert by hand delivery or common carrier.
{¶8} On the date that the trial began, Mr. Anderson requested a continuance for the first
time, reiterating the request that the trial court compel the State to send a sample to his expert. The 4
State indicated that it would not consent to a sample being transported out of its custody to a third
party for testing. The State explained:
So we’re not going to give up a gram of the drug evidence in a major drug offender case to send it out somewhere that we don’t know. We don’t even know this person. You know, that’s just not the way it’s done. It’s always done in the custody and control of the State of Ohio, as this Court is well aware, and throughout the years, it’s never been made to do otherwise.
The trial court also noted the unusual nature of Mr. Anderson’s request:
I have * * * had independent analysis and testing for cases on my docket for twenty- three years, and I don’t remember a single instance where the drug wasn’t tested at the agency by the independent analyst, and the - - I don’t know that there’s a way to do it otherwise. I’ve never ordered drugs released from BCI for analysis.
***
* * * [W]e’ve had other analysts * * * drive to BCI. The evidence doesn’t leave BCI. They do whatever testing is necessary and they prepare a report. That’s what I’ve seen, and I’m trying to figure out why that couldn’t be done in this case.
In that respect, the trial court noted that the motion for independent testing at the State’s expense
had been granted almost two months before trial was scheduled to begin. The trial court observed
that the appropriate motion would have been for Mr. Anderson to request any additional funds that
were necessary for his expert to travel to BCI but noted that no such motion had been filed and
that Mr. Anderson had not brought the matter to the trial court’s attention until the eve of trial.
{¶9} The decision to grant or deny a continuance is committed to the discretion of the
trial court. State v. Unger, 67 Ohio St.2d 65 (1981), syllabus. In this case, the trial court observed
that the motion for independent testing had been granted almost two months earlier but noted that
the motion to compel was not filed before the Court until the eve of trial. In addition, it appears
from the record of that hearing that on the day of trial, Mr. Anderson maintained his position that
the trial court should grant a continuance and compel the State to release the sample to his expert
by common carrier. Given these circumstances, we cannot conclude that the trial court abused its 5
discretion by denying that continuance. In doing so, we also note that Mr. Anderson had the
opportunity to thoroughly cross-examine the analyst during trial. Compare State v. Buis, 2d Dist.
Montgomery No. 27778, 2018-Ohio-1727, ¶ 13-14 (considering an argument under Section
2925.51(E) that the State failed to preserve evidence that was later destroyed). Mr. Anderson’s
second assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE STATE FAILED TO ESTABLISH ON THE RECORD SUFFICIENT EVIDENCE TO SUPPORT THE CHARGES LEVIED AGAINST MR. ANDERSON.
{¶10} Mr. Anderson’s first assignment of error argues that his conviction and the trial
court’s determination that he is a major drug offender are not supported by sufficient evidence.
{¶11} “Whether a conviction is supported by sufficient evidence is a question of law that
this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶
18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the
prosecution has met its burden of production by presenting sufficient evidence to sustain a
conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this
Court must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443
U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in
favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it
allows the trier of fact to reasonably conclude that the essential elements of the crime were proved
beyond a reasonable doubt. Id.
{¶12} Mr. Anderson was convicted of possessing heroin in violation of Section
2925.11(A), which prohibits any person from knowingly obtaining, possessing, or using a 6
controlled substance. Under Section 2955.11(C)(6)(f), possession of heroin is a first-degree felony
when the amount involved is equal to or greater than one hundred grams, the offender is classified
as a major drug offender, and the maximum penalty for a first-degree felony is mandatory.
{¶13} To “possess” something, for purposes of R.C. 2925.11(A), is to have control over
it. R.C. 2925.01(K). Possession cannot be inferred from “mere access * * * through ownership
or occupation of the premises upon which the thing or substance is found.” Id. Nonetheless,
possession may be either actual or constructive. State v. Hilton, 9th Dist. Summit No. 21624,
2004-Ohio-1418, ¶ 16, citing State v. McShan, 77 Ohio App.3d 781, 783 (8th Dist.1991).
“Constructive possession exists when an individual knowingly exercises dominion and control
over an object, even though that object may not be within his immediate physical possession.”
State v. Jackson, 9th Dist. Summit No. 28691, 2018-Ohio-1285, ¶ 38, quoting State v. Hankerson,
70 Ohio St.2d 87 (1982), syllabus. Presence in the vicinity of an item, standing alone, does not
establish constructive possession, but other factors taken together—such as proximity to the item
in plain view or knowledge of its presence—may be circumstantial evidence of possession. State
v. Owens, 9th Dist. Summit No. 23267, 2007-Ohio-49, ¶ 23.
{¶14} The trooper who undertook an inventory search of Mr. Anderson’s vehicle testified
that when he opened the driver’s door, he noticed a baggie containing a white, powdery substance
in the cupholder area of the door compartment. He noted that the baggie was in plain view when
he opened the door, and he explained that it was in an area that would have been next to the left
leg of the driver. The trooper agreed that the baggie was easily accessible to someone seated in
the driver’s seat. According to the troopers who testified, Mr. Anderson was the driver of the
vehicle, and he was its only occupant. See State v. Sprouse, 9th Dist. Summit Nos. 29406, 29407,
2020-Ohio-91, ¶ 9-10. 7
{¶15} Considering the troopers’ testimony alone and making all inferences in favor of the
State, as this Court must do when reviewing the sufficiency of the evidence, a trier of fact could
reasonably conclude beyond a reasonable doubt that Mr. Anderson had dominion and control over
the baggie and its contents. This Court also notes, however, that Mr. Anderson testified in his own
defense and acknowledged that the baggie and its contents belonged to him.
{¶16} Mr. Anderson has also argued that the State did not present sufficient evidence that
he possessed an amount of heroin equal to or greater than one hundred grams. In his Criminal
Rule 29 motion, Mr. Anderson argued that the State did not produce sufficient evidence that he
possessed the drugs at issue. He did not argue that the State failed to prove that the weight of the
heroin was greater than or equal to one hundred grams. This Court has consistently held that when
an appellant articulates specific arguments in support of a Rule 29 motion, all other arguments are
forfeited for purposes of appeal. State v. Navest, 9th Dist. Summit No. 28339, 2017-Ohio-5561, ¶
27. Because Mr. Anderson articulated specific arguments in support of his Rule 29 motion, he has
forfeited his argument related to the weight of the heroin for purposes of his first assignment of
error.
{¶17} Mr. Anderson’s conviction for possession of heroin and his designation as a major
drug offender are not supported by insufficient evidence. His first assignment of error is overruled.
ASSIGNMENT OF ERROR III
MR. ANDERSON’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE CONSTITUTION.
{¶18} In his third assignment of error, Mr. Anderson has argued that his conviction and
his designation as a major drug offender are against the manifest weight of the evidence. This
Court does not agree. 8
{¶19} When considering whether a conviction is against the manifest weight of the
evidence, this Court must:
review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State
v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶20} Mr. Anderson has argued that the evidence did not establish that he knowingly
possessed one hundred grams or more of heroin because, according to his own testimony, he
believed that the substance inside the baggie was fake. “A person acts knowingly, regardless of
purpose, when the person is aware that the person’s conduct will probably cause a certain result or
will probably be of a certain nature.” R.C. 2901.22(B).
{¶21} The Medina County Drug Task Force submitted the substance at issue in this case
to BCI for analysis. According to the analyst who tested the substance, a presumptive color test
yielded “a very slow faint purple, which is indicative of an opiate substance.” Having identified
the type of substance, she testified, she then used two separate gas chromatograph/mass
spectrometer instruments to test two different samples of the substance. Based on the results of
those tests, the analyst determined that the substance contained heroin.
{¶22} Mr. Anderson testified that during a period of time in which he was unable to find
consistent work and short on funds, an acquaintance gave him a package of drugs to sell.
According to Mr. Anderson, he paid the acquaintance an advance in exchange for the package,
which the friend told him contained heroin. Mr. Anderson testified that he believed he could sell
the contents of the package for $60,000-$70,000 if the quality was high, so he provided samples 9
to some people who had purchased drugs from him on previous occasions. He recalled that his
customers told him that it did not affect them, so they refused to purchase it. Mr. Anderson testified
that he suspected they had a high tolerance, so he tested the substance on his tongue. He explained
that he would expect heroin to have a strong, medicine-like taste, but that the substance tasted like
“just a lot of cut” but with “a slight like medicine taste.”
{¶23} Mr. Anderson testified that after he was unsuccessful in finding buyers, he decided
to offer the drugs to another acquaintance with less experience for $3,000. According to Mr.
Anderson, that person refused but offered to help him with a job opportunity instead. Mr.
Anderson explained that he started working with that acquaintance in June 2020, quit the job in
August, and spent all his earnings on a trip to Las Vegas. He testified that he was rehired and was
speeding on the date of the traffic stop because he had overslept on the day of his orientation. Mr.
Anderson remembered putting the baggie in the door compartment because he hoped he could still
make a sale, but he testified that he had forgotten it was there on the day of the incident. During
cross-examination, Mr. Anderson testified that he thought the heroin was fake, but he also
acknowledged that it was also possible that it was a bad batch. He reiterated that there was a
slightly medicinal taste to the substance and explained that it tasted like something was wrong with
it.
{¶24} The weight of the evidence does not support the conclusion that Mr. Anderson did
not knowingly possess heroin because he believed that the substance in the baggie was fake. Even
if the baggie contained a significant amount of filler, as Mr. Anderson maintains, the analyst
testified that her initial test indicated the presence of opiates and that two subsequent tests
identified heroin in two different samples. Possession of heroin in violation of Section
2925.11(C)(6) includes “a compound, mixture, preparation, or substance containing heroin.” Id. 10
Compare State v. Gonzalez, 150 Ohio St.3d 276, 2017-Ohio-777, ¶ 9-10 (concluding that the
amount of cocaine possessed under Section 2925.11(A) includes “the whole compound or
preparation of cocaine, including fillers” because “the statutory definition of cocaine plainly
encompasses a compound or preparation that includes cocaine.”). The jury did not clearly lose its
way by concluding that Mr. Anderson knowingly possessed the heroin found in his car.
{¶25} Mr. Anderson also argues that his conviction and his designation as a major drug
offender are against the manifest weight of the evidence because the evidence did not establish
that he possessed one hundred or more grams of heroin. Mr. Anderson himself, however, testified
that he believed the package contained about one hundred grams. The analyst testified that the
first step in her testing procedure includes “obtain[ing] a weight of the substance prior to any
testing * * *.” (Emphasis added.) She explained that weight was 102.26 grams, and there was no
testimony that implied otherwise. This argument is also not well taken.
{¶26} This Court cannot conclude that this is the exceptional case in which the evidence
weighs heavily against the conviction. See Otten, 33 Ohio App.3d at 340. Mr. Anderson’s
conviction is not against the manifest weight of the evidence, and his third assignment of error is
overruled.
ASSIGNMENT OF ERROR IV
MR. ANDERSON WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
{¶27} Mr. Anderson’s fourth assignment of error argues that he was denied effective
assistance of counsel based on trial counsel’s unusual behavior while his case was pending and
counsel’s failure to obtain independent testing of the substance at issue.
{¶28} In order to demonstrate ineffective assistance of counsel, a defendant most show
(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the 11
‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by
counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,
466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for
counsel’s errors, there is a reasonable possibility that the outcome of the trial would have been
different. Id. at 694.
{¶29} In a direct appeal, ineffective assistance of counsel must be demonstrated by
evidence within the record. See generally State v. Madrigal, 87 Ohio St.3d 378, 390-391 (2000).
“[A] claim of ineffective assistance of counsel on direct appeal cannot be premised on decisions
of trial counsel that are not reflected in the record of proceedings * * * [and] [s]peculation
regarding the prejudicial effects of counsel’s performance will not establish ineffective assistance
of counsel.” State v. Zupancic, 9th Dist. Wayne No. 12CA0065, 2013-Ohio-3072, ¶ 4, quoting
State v. Leyland, 9th Dist. Summit Nos. 23833, 23900, 2008-Ohio-777, ¶ 7.
{¶30} The record supports Mr. Anderson’s representation that trial counsel missed two
pretrial appearances and was not aware that a motion had been set for a hearing. When the trial
court expressed concern about trial counsel’s absences, trial counsel insisted that they reflected a
scheduling error on his part. Mr. Anderson’s proposed alternative explanation for counsel’s
actions is based on facts that are not contained within the record on appeal, and they cannot form
the basis for a claim of ineffective assistance of counsel. See Madrigal at 390-391.
{¶31} Mr. Anderson has also argued that trial counsel was ineffective because he waited
until four days before trial to request a continuance or otherwise bring the failure to obtain
independent testing of the substance at issue to the trial court’s attention. “A defendant’s failure
to satisfy one prong of the Strickland test negates a court’s need to consider the other.” Id. at 389,
citing Strickland at 697. Mr. Anderson suggests that independent testing would have established 12
that the substance was not, in fact, heroin. Consequently, he maintains, he would not have been
convicted had the testing been conducted. There is no evidence in the record that supports Mr.
Anderson’s assertion, and prejudice resulting from ineffective assistance of counsel cannot be
established through speculation. Zupancic at ¶ 4, quoting Leyland at ¶ 7.
{¶32} Mr. Anderson has not demonstrated that he received ineffective assistance of trial
counsel. His fourth assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED WHEN IT DENIED INTRODUCTION OF RELEVANT EVIDENCE.
{¶33} In his fifth assignment of error, Mr. Anderson argues that the trial court erred by
prohibiting him from questioning the analyst about the purity of the drugs at issue. This Court
does not agree.
{¶34} Under Evidence Rule 401, evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Evid.R. 401. Relevant evidence is generally
admissible. Evid.R. 402. “The trial court has broad discretion in the admission of evidence, and
unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby,
an appellate court should not disturb the decision of the trial court.” State v. Issa, 93 Ohio St.3d
49, 64 (2001). See also Evid.R. 103(A) (“Error may not be predicated upon a ruling which * * *
excludes evidence unless a substantial right of the party is affected * * *.”).
{¶35} The trial court did not prohibit Mr. Anderson from questioning the analyst about
the purity of the substance. Instead, Mr. Anderson asked the analyst to clarify that her duties were
confined to the presence or absence of a controlled substance. Over the State’s objection, the trial
court permitted the analyst to clarify that “BCI does not test for the purity of a substance. It is only 13
a qualitative analysis, whether a substance is present [or] not.” Without excluding any testimony,
the trial court instructed the jury as follows:
The unambiguous law in the State of Ohio is that the weight of the substance – the weight of the substance for the purposes of this case – includes the entire compound, mixture, preparation, or substance including any fillers that are part of the usable drug. Okay? So we don’t have a purity test in the State of Ohio with regard to this matter.
The trial court did not limit Mr. Anderson’s own testimony about his belief that the purity of the
substance was compromised. Consequently, the record does not demonstrate that the trial court
excluded any testimony on this point, whether it was relevant or not. Mr. Anderson’s fifth
assignment of error is overruled.
III.
{¶36} Mr. Anderson’s assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to 14
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL FOR THE COURT
STEVENSON, J. CONCURS.
FLAGG LANZINGER, J. DISSENTS.
APPEARANCES:
YU MI KIM-REYNOLDS, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.