[Cite as State v. Ball, 2022-Ohio-1549.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-21-16
v.
JAISHAUN M. BALL, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CR2019 0135
Judgment Affirmed
Date of Decision: May 9, 2022
APPEARANCES:
Dennis C. Belli for Appellant
Jana E. Emerick for Appellee Case No. 1-21-16
SHAW, J.
{¶1} Defendant-Appellant, Jaishaun M. Ball (“Ball”), brings this appeal
from the April 29, 2021 judgment of the Allen County Common Pleas Court
sentencing Ball after he was found guilty in a jury trial of multiple drug convictions,
a firearm specification, and having a weapon under disability.
Facts and Procedural History
{¶2} In May 2019, Ball was indicted in a six-count indictment of: one count
of possession of cocaine in violation of R.C. 2925.11(A)/(C)(4)(a), a felony of the
fifth degree (Count 1); three counts of trafficking in cocaine in the vicinity of a
school in violation of R.C. 2925.03(A)(1)/(C)(4)(a) and (b), felonies of the fourth
degree (Counts 2-4); one count of possession of cocaine in violation of R.C.
2925.11(A)/(C)(4)(f), a major drug offender felony of the first degree (Count 5);
and one count of having weapons while under disability in violation of R.C.
2923.13(A)(2)/(B), a felony of the third degree (Count 6). Count 5 also contained
a firearm specification pursuant to R.C. 2941.141(A), along with forfeiture
specifications relating to a firearm and to $2,394.00 in U.S. currency. Ball pled not
guilty to the charges.
{¶3} Ball’s case proceeded to a jury trial. After a three-day trial, the jury
found Ball guilty on all counts. The trial court ordered a presentence investigation
and set the matter for a sentencing hearing on April 29, 2021. The trial court
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sentenced Ball as follows: six months in prison on Count 1; eighteen months in
prison on each of Counts 2 through 4; a mandatory minimum eleven-year prison
term up to a maximum sixteen and one-half year prison term for Count 5, as well as
the major drug offender specification; and twenty-four months in prison on Count
6. Counts 5 and 6 are to be served consecutively to each other and consecutive to
the one-year firearm specification, while all other terms are to be served
concurrently, except for Count 6 to be served consecutively, resulting in an
aggregate minimum sentence of fifteen and one-half years to an aggregate
maximum of twenty-one years in prison. The trial court also imposed a five-year
term of post release control. The trial court also ordered the forfeiture of a firearm
and $2,394.00 to the West Central Ohio Crime Task Force.
{¶4} It is from this judgment that Ball appeals, asserting the following
assignments of error for our review.
ASSIGNMENT OF ERROR NO. 1
DEFENDANT-APPELLANT’S CONVICTIONS FOR POSSESSION OF COCAINE IN AN AMOUNT EQUAL TO OR EXCEEDING 100 GRAMS AND A MAJOR DRUG OFFENDER SPECIFICATION, AND FOR POSSESSION OF COCAINE IN AN AMOUNT LESS THAN FIVE GRAMS, ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE TO SATISFY THE REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
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ASSIGNMENT OF ERROR NO. 2
DEFENDANT-APPELLANT’S CONVICTIONS FOR HAVING A WEAPON UNDER DISABILITY AND A FIREARM SPECIFICATION ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE TO SATISFY THE REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT’S DENIAL OF A DEFENSE MOTION FOR A MISTRIAL OR, IN THE ALTERNATIVE, REQUEST FOR A CURATIVE INSTRUCTION AS A REMEDY FOR THE STATE’S DISCOVERY VIOLATION DEPRIVED DEFENDANT-APPELLANT OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AND A RELIABLE JURY VERDICT.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT’S REFUSAL TO GIVE THE INFORMANT CREDIBILITY INSTRUCTION REQUESTED BY DEFENSE COUNSEL WAS ERROR THAT DEPRIVED DEFENDANT-APPELLANT OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AND A RELIABLE JURY VERDICT.
ASSIGNMENT OF ERROR NO. 5
DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, DUE TO THE COMBINED PREJUDICIAL IMPACT OF MULTIPLE INSTANCES OF DEFICIENT PERFORMANCE.
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ASSIGNMENT OF ERROR NO. 6
THE IMPOSITION OF AN INDEFINITE TERM OF IMPRISONMENT ON COUNT 5 PURSUANT TO THE MANDATES OF THE REAGAN TOKES ACT VIOLATED THE SEPARATION OF POWERS DOCTRINE AND DEFENDANT-APPELLANT’S RIGHT TO DUE PROCESS AND JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 5 AND 10 OF THE OHIO CONSTITUTION, AND ROSE TO THE LEVEL OF PLAIN ERROR.
{¶5} For ease of discussion, Ball’s first and second assignments of error will
be addressed together.
First and Second Assignments of Error
{¶6} Ball argues in the first assignment of error that there was insufficient
evidence presented at trial to support his possession of cocaine convictions. In the
second assignment of error, Ball argues that the evidence was insufficient to support
the firearm specification and his weapons under disability conviction.
Standard of Review
{¶7} Whether there is legally sufficient evidence to sustain a verdict is a
question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. When
an appellate court reviews a record upon a sufficiency challenge, “ ‘[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.ʼ ” State v. Leonard, 104 Ohio St.3d 54,
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2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus.
Relevant Statutes
{¶8} Ball was convicted of possession of cocaine in violation of R.C.
2925.11(A)/(C)(4)(a) which occurred on March 12, 2018. Ball was also convicted
of possession of cocaine as a major drug offender in violation of R.C.
2925.11(A)/(C)(4)(f) which occurred on April 1, 2019. R.C. 2925.11(A) reads, “No
person shall knowingly obtain, possess, or use a controlled substance or a controlled
substance analog.”
{¶9} R.C. 2925.11(C)(4) provides:
If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine. The penalty for the offense shall be determined as follows: (a) Except as otherwise provided in division (C)(4)(b), (c), (d), (e), or (f) of this section, possession of cocaine is a felony of the fifth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.
***
(f) If the amount of the drug involved equals or exceeds one hundred grams of cocaine, possession of cocaine is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term a maximum first degree felony mandatory prison term.
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{¶10} A firearm specification was attached to the second possession offense
pursuant to R.C. 2941.141(A). It requires that “the offender had a firearm on or
about the offender’s person or under the offender’s control while committing the
offense.” R.C. 2941.141(A).
{¶11} Ball was also convicted of having a weapon while under disability in
violation of R.C. 2923.13(A)(2), which reads “* * * [N]o person shall knowingly
acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he person
is under indictment for or has been convicted of any felony offense of violence[.]”
Evidence Presented
a. Testimony Regarding March 12, 2018
{¶12} Patrolman Mark Link (“Patrolman Link”) of the Lima Police
Department testified that he was working third-shift patrol on March 12, 2018, when
he was contacted by an employee of Ray’s Place, a local bar, about an unwanted
person trespassing on the premises. Patrolman Link was told that the person was
sitting in a grey Chevy Impala in the parking lot and he also was given the license
plate number.
{¶13} Upon arrival at the bar, Patrolman Link then observed the Impala
parked towards the back of the bar’s parking lot, with a person sitting in the
passenger seat and the car door open. This person, subsequently identified as Ball,
was the only person in the vehicle. Patrolman Link got out of his cruiser, and as he -7- Case No. 1-21-16
approached the passenger’s side of the Impala, seemingly unnoticed by Ball, he saw
that Ball was leaning out of the vehicle. As Patrolman Link watched, Ball reached
down to the ground and picked up a clear tied-off plastic baggie that Patrolman Link
believed, based on his experience, probably contained narcotics. Patrolman Link
stepped up to the passenger’s side door and when he said, “Give me what you got
in your hand,” Ball made a tight fist with his right hand around the baggie, and then
shoved it up under his right leg. (Trial Tr., Vol. 1, p. 213). Patrolman Link asked
Ball what he had, and he said “nothing” and then “leaned back” in the vehicle. Id.
Patrolman Link stepped closer to the vehicle, grabbed Ball’s jacket and ordered Ball
to give him the baggie, to which Ball said, “No.” Id. at 214. As Patrolman Link
began trying to force Ball’s arm out in order to seize the suspected narcotics, Ball
leaned back even further and he then threw his arm back in the direction of the
backseat. Another patrolman arrived to assist Patrolman Link and they both
struggled with Ball to get him out of the vehicle. Ball continued to resist the
officers’ attempts to handcuff and detain him. Additional officers arrived on the
scene and once Ball was detained, Patrolman Link went back to check the Impala.
In the location right where Ball had put his hand into the backseat, Patrolman Link
found the clear plastic baggie that he had observed earlier, which contained an off-
white substance that Patrolman Link believed to be crack cocaine. Subsequent
analysis of the baggie’s contents by the Ohio Bureau of Criminal Investigation
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(“BCI”) established that the substance weighed approximately 1.76 grams and
contained cocaine.
b. Testimony Regarding April 1, 2019
{¶14} At approximately 7:25 a.m. on April 1, 2019, investigators with the
West Central Ohio Crime Task Force and the Allen County Sheriff’s Office Swat
Team executed a search warrant at 953 Rice Avenue, Lima. Sergeant Brandon
Hemker (“Sergeant Hemker”) of the Allen County Sheriff’s Office was assigned to
the task force and he also obtained the search warrant after three controlled buys
took place at that address involving a confidential informant, S.B. (CI).
{¶15} Sergeant Hemker testified as a State’s witness about the search
warrant executed at 953 Rice Avenue. Two persons were located in the residence—
Ball and his four or five-year old son. Ball was found in the southwest bedroom on
the second floor where he apparently had been sleeping. In the bedroom Ball
described as “his bedroom” to Sergeant Hemker, two cell phones were found on top
of the bed, as well as Ball’s driver’s license. (Trial Tr., Vol. 2, p. 493). At Ball’s
request, Sergeant Hemker used one of those phones to call Ball’s grandmother so
that she could come pick up Ball’s young son. Ball’s social security card, his birth
certificate, and Ball’s son’s birth certificate were also located in the dresser of Ball’s
bedroom. Some pieces of mail and a utility bill in the name of Ball’s brother were
also found in the house.
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{¶16} After being advised of his Miranda rights, Ball spoke briefly with
Sergeant Hemker and when he was asked whose residence the house was, he told
him he lived there with his son. Ball said that he was the only one living there, and
that he paid all the utilities in lieu of rent. Ball advised that he worked for a
construction company when the weather permitted but that he was not working at
that time.
{¶17} Pursuant to the search, multiple digital scales with white powdery
residue on them were found in the kitchen, and suspected crack cocaine was found
in the same area. Subsequent analysis of that substance by BCI established that the
substance weighed approximately 1.78 grams and contained cocaine. A bag of
unknown substance was also found in an oven mitt in the kitchen. Subsequent
analysis by BCI of that substance revealed that the substance weighed
approximately 37.42 grams and contained cocaine.
{¶18} On the roof over the back patio, in a fenced-in area only accessible
from the house, investigators found a large quantity of cocaine in a Crown Royal
bag. Subsequent analysis by BCI of the substance found in the Crown Royal bag
established that the substance weighed approximately 113.54 grams and contained
cocaine. The street value of the cocaine in the Crown Royal bag was $7,000.00 to
$10,000.00. Additionally, $25.00 in cash was found in Ball’s bedroom dresser
drawer; $12.00 in cash was found in a shirt in Ball’s bedroom; $195.00 in cash was
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found in a pair of pants on the floor of Ball’s bedroom; $2,000.00 in cash was found
in a pair of jeans in Ball’s bedroom closet; $122.00 in cash was found in the living
room; and $40.00 in cash was found in the mailbox. Mixed in with the $2,000.00
in cash found in Ball’s bedroom closet were several bills used in the controlled drug
buy that had occurred on March 22, 2019.
{¶19} In addition, one of the investigators found a firearm (a Sig Sauer
P250), a magazine fitting that firearm, and bullets in a linen closet located right next
to the door to the bedroom where Ball was found.
Sufficiency of the Evidence
{¶20} Ball argues on appeal that the evidence was insufficient to prove he
was in constructive possession of the cocaine found on the roof. Specifically, Ball
argues that there was insufficient circumstantial evidence to support the conviction,
because the evidence failed to show that Ball was “conscious of the presence of the
major drug offender quantity of cocaine.” (Appellant’s Brief at 8). Ball also argues
that there was not sufficient evidence of actual possession of the baggie of cocaine
seized from the vehicle as he had momentary control of the baggie.
{¶21} R.C. 2925.01(K) defines “possession” as “having control over a thing
or substance, but may not be inferred solely from mere access to the thing or
substance through ownership or occupation of the premises upon which the thing or
substance is found.” Whether a person charged with drug possession knowingly
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possessed a controlled substance “is to be determined from all the attendant facts
and circumstances available.” State v. Teamer, 82 Ohio St.3d 490, 492, 1998-Ohio-
193 (1998); accord State v. Davis, 3d Dist. Allen Nos. 1-17-44 and 1-17-45, 2018-
Ohio-4368, ¶ 48.
{¶22} “ ‘ “Possession of drugs can be either actual or constructive.” ʼ ˮ Davis
at ¶ 49, quoting State v. Frye, 3d Dist. Allen No. 1-17-30, 2018-Ohio-894, at 51,
quoting State v. Bustamante, 3d Dist. Seneca Nos. 13-12-26 and 13-13-04, 2013-
Ohio-4975, ¶ 25. Actual possession exists when the circumstances indicate that a
person has or had an item “ ‘ “within his immediate physical possession.ˮ ’ ˮ Id.
quoting State v. Watts, 3d Dist. Hancock No. 5-12-34, 2016-Ohio-257, ¶ 11, quoting
State v. Williams, 4th Dist. Ross No. 03CA2736, 2004-Ohio-1130, ¶ 23.
Constructive possession exists when a person was able to exercise dominion and
control over an item, even though that item may not be within his immediate
physical control. Id. Both dominion and control, and whether a person was
conscious of the item’s presence, may be established through circumstantial
evidence. E.g., State v. Myles, 3d Dist. Marion No. 9-19-74, 2020-Ohio-3323; ¶ 25;
see also State v. Hankerson, 70 Ohio St.2d 87, 91 (1982).
{¶23} Thus, the State may establish constructive possession by
circumstantial evidence alone. Id. at ¶ 50. “ ‘Absent a defendant’s admission, the
surrounding facts and circumstances, including the defendant’s actions, are
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evidence that the trier of fact can consider in determining whether the defendant had
constructive possession.’ ˮ Id. quoting State v. Voll, 3d Dist. Union No. 14-12-04,
2012-Ohio-3900, ¶ 19.
{¶24} Here, reviewing the evidence in the light most favorable to the State,
we conclude the jury could have rationally inferred beyond a reasonable doubt
Ball’s constructive possession of the bag of cocaine found on the roof. Throughout
the house, multiple quantities of cocaine were found, and Ball was not only present
in the house when police executed the search warrant, but acknowledged living
there, with he and his young son being the only two occupants. The cocaine was
found in readily accessible locations in and about Ball’s residence, all locations over
which Ball had admitted sole dominion and control. Ball exercised constructive
possession over the large quantity of cocaine discovered on the patio roof because,
in part, it was in a location that could only be accessed by coming through the house
and out the back door, so the roof appeared only accessible to those who lived there.
Further, the jury could infer Ball’s knowledge of the presence of the cocaine being
stored there based upon the fact that the cocaine found on the low-hanging roof was
valued at $7,000.00 to $10,000.00, as it would have been unreasonable to believe
that someone not living in the house could somehow access the roof and would then
also leave behind something of such value. The fact that even though Ball said that
he was unemployed at the time of the search warrant but yet was found in possession
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of over $2,000.00 in cash and the fact that there were digital scales with powdery
residue located in Ball’s kitchen also supported a reasonable inference that Ball
possessed the large quantities of cocaine.
{¶25} There was also sufficient evidence to support the jury’s finding that
Ball knowingly possessed the baggie of cocaine discovered in the vehicle. The facts
established in the record show that Ball was caught by police picking up a baggie
of cocaine from the ground next to his open vehicle door. The evidence reflecting
that Ball first attempted to hide the cocaine in his closed fist under his leg supports
a finding that Ball knew the plastic baggie contained cocaine. Possession was also
established by evidence that Ball then reached his arm back and dropped the cocaine
into the backseat while simultaneously refusing to get out of the vehicle.
{¶26} As to the firearm specification and the weapon under disability
offense, there is no evidence of actual possession, so the State must establish Ball
had constructive possession of the firearm. The evidence established that Ball
possessed the cocaine at 953 Rice Avenue while also having an operable firearm
under his constructive control, as the gun, its magazine and the ammunition for that
gun were located ready at hand in the linen closet located right next to Ball's
bedroom, being the same bedroom where Ball himself was located when officers
entered the home pursuant to the search warrant. Viewing those facts along with all
other evidence adduced at trial in a light most favorable to the prosecution, a rational
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juror could have found Ball guilty of “having” the firearm within the meaning of
the weapon under disability and firearm specification statutes, beyond a reasonable
doubt.
Third Assignment of Error
{¶27} In his third assignment of error, Ball argues that the trial court erred in
denying his motion for a mistrial based on a purported discovery violation
committed by the State. Ball argues that the State failed to disclose the existence of
a second search warrant for the Rice Avenue address during the pretrial discovery
process and that Ball was prejudiced by it. Ball also argues that the trial court erred
in denying his alternative request for a curative instruction to remedy what he asserts
as the State’s discovery violation.
{¶28} A trial court’s grant or denial of a motion for mistrial rests within the
sound discretion of the trial court. State v. Carter, 3d Dist. Allen No. 1-15-62, 2017-
Ohio-1233, ¶ 61, citing State v. Garner, 74 Ohio St.3d 49, 59, 1995-Ohio-168. For
that reason, we review the denial of a mistrial for an abuse of discretion. Id.
Regarding the alleged discovery violation, we will also review the trial court’s
decision under an abuse of discretion standard. See id. at ¶ 93.
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Criminal Rule 16(B)(3)
{¶29} In this assignment of error, Ball contends that the State violated
Crim.R. 16(B)(3).
{¶30} Crim.R. 16(B), Discovery: Right to Copy or Photograph, states:
Upon receipt of a written demand for discovery by the defendant, * * * the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state, subject to the provisions of this rule:
(3) Subject to divisions (D)(4) and (E) of this rule, all laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings, or places[.] (Emphasis added.)
The Alleged Discovery Violation, Mistrial Motion, and Ruling by the Trial Court
{¶31} During defense counsel’s cross-examination of Sergeant Hemker,
defense counsel asked whether, following the April 1st search, the task force had
returned to 953 Rice Avenue on a subsequent date with another search warrant, after
Ball had bonded out of jail. Sergeant Hemker confirmed that another search warrant
was obtained for that address, a week or two following Ball’s release from jail.
Defense counsel asked if anything was seized during that search and if anyone had
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been present in the home at that time. Sergeant Hemker answered both questions in
the negative. Counsel then asked for a sidebar.
{¶32} With the jury excused, defense counsel stated that the information
relating to the subsequent search warrant had not been disclosed by the State in
discovery, but further stated that the prosecutors on the case apparently had no
knowledge about this subsequent warrant. At that point, the trial court inquired as
to whether it was in relation to the investigation in this case. Sergeant Hemker
explained that the subsequent search warrant had also focused on Ball as a suspect,
based on probable cause to believe Ball had committed an additional illegal drug
transaction after bonding out of jail following an investigation using a different
confidential informant to purchase narcotics from Ball at 953 Rice Avenue. The
trial court then took a recess in order to obtain a copy of the subsequent search
warrant and affidavit for review (which included a DVD recording of Sergeant
Hemker’s testimony before the judge issuing the warrant). Back on the record,
defense counsel asked for a recess until the following morning in order to review
the items and formulate the defense position on the issue. The trial court paused
defense counsel’s cross-examination of Sergeant Hemker, and the trial then
proceeded on testimony by another witness.
{¶33} The next morning, defense counsel moved for a mistrial for a
discovery violation because the information relating to the subsequent search
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warrant had never been disclosed to the defense. The State responded that that
information was not relevant to the trial charges. The trial court determined the
information was not discoverable as it related to alleged subsequent conduct of Ball
and the execution of a search warrant that was not germane to the charges in this
case. The trial court found no discovery violation and, consequently, that a mistrial
was not warranted.
Ball’s Argument on Appeal and Analysis
{¶34} On appeal, Ball’s mistrial argument focuses on the nondisclosure of
the information relating to the subsequent search warrant as being “material to the
preparation of Ball’s defense” under Crim.R. 16(B)(3). (Appellant’s Brief at 16).
{¶35} In our review of the trial court’s decision on this matter, we find the
trial court reasonably determined that the information was not relevant to the instant
case, and that the information about that search would not have been exculpatory or
otherwise discoverable. Moreover, as the record reflects that defense counsel
indicated he had first heard of the subsequent search warrant from Ball, Ball cannot
legitimately complain that his defense has been prejudiced by the State’s failure to
disclose information about which Ball already had knowledge. Accordingly, we
cannot find that the trial court abused its discretion in finding no discovery violation
and in denying a mistrial.
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{¶36} Ball’s second argument is that the discovery violation required “a
curative instruction.” His argument relies on an underlying premise—that a
discovery violation occurred. We note that the trial court specifically ruled that a
discovery violation did not occur; therefore, no remedy was needed.
{¶37} For these reasons, Ball’s third assignment of error is overruled.
Fourth Assignment of Error
{¶38} In Ball’s fourth assignment of error, he contends that the trial court
erred by refusing his request for a special jury instruction on informant credibility.
The informant credibility instruction requested by Ball, which is based on the Ohio
State Bar Association jury instruction titled “State’s Use of Informers,” states:
The state of Ohio introduced in this case the testimony of (an informer, informers).
There is nothing improper in the prosecution’s use of informers. The fact that a witness has received benefits or promises from the state of Ohio does not mean that (his, her) testimony is not worthy of belief for that reason alone.
On the other hand, when an informer testifies, such testimony must be examined with greater caution than the testimony of an ordinary witness. You should consider whether the (informer, informers) received any benefits or promises from the state of Ohio, which would motivate (him, her, them) to testify falsely against the defendant. For example, the (informer, informers) may believe that (he, she, they) will continue to receive these benefits only if the (informer, informers) (produce, produces) evidence of criminal conduct against (defendant’s name)’s interests. You should consider these factors, along with all other factors bearing on the credibility of the witness, in determining whether to believe the testimony.
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If you decide to accept the (informer’s, informers’) testimony, after considering it in the light of all the evidence in this case, then you may give it whatever weight, if any, you find it deserves. (Doc. No. 164).
Relevant Authority
{¶39} “ ‘[I]t is prejudicial error in a criminal case to refuse to administer a
requested charge which is pertinent to the case, states the law correctly, and is not
covered by the general charge.’ ˮ State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-
8025, ¶ 134, quoting State v. Scott, 26 Ohio St.3d 92, 101 (1986). “ ‘However, the
trial court need not give the defendant’s requested instructions verbatim but may
use its own language to communicate the same legal principles to the jury.’ ˮ Id.
quoting State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, ¶ 108.
{¶40} In addition to the foregoing, in State v. Scott, 26 Ohio St.3d 92 (1986),
the Ohio Supreme Court addressed the issue of special jury instructions concerning
the credibility of addict-informers.
In Scott, the Court reiterated its precedent that Ohio trial judges are “forbidden ‘***[t]o single out one witness, or a number of witnesses, for either the prosecution or the defense, and to discuss their credibility ***.’ Curtis v. State (1925), 113 Ohio St. 187, 209-210. Such a practice is considered as placing undue influence upon the jury.” Scott, 26 Ohio St.3d at 100-101. Subsequently, the Ohio Supreme Court followed this precedent in refusing to require special jury instructions concerning the credibility of police witnesses. State v. Group, 98 Ohio St.3d 248, 265-266, 2002-Ohio-7247.
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Where the trial court adequately covers witness credibility in its general charge to the jury, there is no need for special comment or instruction. Id. “[A] trial judge may not single out a particular witness or group of witnesses to discuss their credibility, since such discussion exerts an undue influence on the jury.” Id. at 266.
State v. Trapp, 8th Dist. Cuyahoga No. 85446, 2005-Ohio-4829, ¶ 10-11.
Analysis
{¶41} Although the trial court ruled that the proposed instruction would not
be given, it did instruct the jury in detail on “witness credibility,” including how the
same should be evaluated. The jury was instructed that they were the sole judges of
the credibility of witnesses. The jury was also instructed that in making their
assessment of witness credibility, they should apply the tests of truthfulness which
they apply in their daily lives, including the appearance of each witness upon the
stand; their manner of testifying; the reasonableness of the testimony; the
opportunity the witness had to see, hear and know the things concerning the
testimony; the accuracy of the witness’ memory; frankness or the lack of it;
intelligence; interest and bias, if any, together with all the facts and circumstances
surrounding the testimony. The jury was further instructed that, upon applying
those tests, they should assign to the testimony of any witness the weight deemed
proper. Finally, the jury was instructed that they were not required to believe the
testimony of any witness simply because the witness was under oath and that the
jury was free to believe or disbelieve all or any part of the testimony of any witness.
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{¶42} As set forth above, the trial court comprehensively addressed the issue
of witness credibility in the general charge. Consequently, at trial, the testimony
concerned itself with the fact that the CI received a benefit for her testimony and
that she might be motivated to testify falsely against Ball. Sergeant Hemker, as the
lead task force investigator, testified extensively about the circumstances
surrounding the CI working for the task force in exchange for “case consideration”
on her own potential fifth degree felonies of three drug trafficking and two drug
possession charges. The CI testified at trial she was an active heroin user and
acknowledged she was “working off” those potential charges as a confidential
informant.
{¶43} In light of the general witness credibility instruction given by the trial
court, and in light of the holding in State v. Scott, we conclude the trial court did not
err by denying Ball’s request to include the proposed instruction concerning the
credibility of the CI’s testimony.
Fifth Assignment of Error
{¶44} In his assignment of error, Ball contends he was deprived of his
constitutional right to effective assistance of counsel because of several alleged
errors in trial counsel’s representation during the course of the trial and sentencing.
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Legal Standard
{¶45} “In order to prove an ineffective assistance of counsel claim, the
appellant must carry the burden of establishing (1) that his or her counsel’s
performance was deficient and (2) that this deficient performance prejudiced the
defendant.” State v. McWay, 3d Dist. Allen No. 1-17-42, 2018-Ohio-3618, ¶ 24,
citing Strickland v. Washington, 466 U.S. 668, 687 (1984). Although the issue of
ineffective assistance of counsel is a two-pronged analysis, the appellate court does
not need to consider the facts of the case under both prongs if the appellant makes
an insufficient showing on one. State v. Crawford, 3d Dist. Henry No. 7-20-05,
2021-Ohio-547, ¶ 18, citing State v. Baker, 3d Dist. Allen No. 1-17-61, 2018-Ohio-
3431, ¶ 19, citing State v. Walker, 2016-Ohio-3499, ¶ 20 (3d Dist.).
{¶46} To establish deficient performance, Ball must show that his trial
counsel's performance fell below an objective standard of reasonable representation.
State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 133. A claim of deficient
performance must overcome the “ ‘ “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” ʼ ˮ State v. Davis, 3d
Dist. Allen Nos. 1-17-44 and 1-17-45, 2018-Ohio-4368, at ¶ 76, quoting State v.
Bradley, 42 Ohio St.3d 136, 142 (1989), quoting Strickland at 687-88.
{¶47} To establish prejudice due to the alleged deficient performance, “
‘[t]he defendant must show that there is a reasonable probability that, but for
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counsel’s unprofessional errors, the result of the proceeding would have been
different.’ ” State v. Sanders, 94 Ohio St.3d 150, 151, 2002-Ohio-350, quoting
Strickland at 694. See also State v. Bradley at paragraphs two and three of the
syllabus. “ ‘A reasonable probability is a probability sufficient to undermine the
confidence in the outcome.’ ˮ State v. Montgomery, 148 Ohio St.3d 347, 2016-
Ohio-5487, ¶ 82, quoting Strickland at 694.
{¶48} Ball first contends his trial counsel performed below an objective
standard of reasonableness by failing to move to exclude or otherwise object to
testimony about the presence of his young son during the controlled cocaine buys
and testimony that his son was present in the residence when the search warrant was
executed. Ball argues the testimony was not needed to prove an element of the
charges crimes and he was unfairly prejudiced.
{¶49} Here, the record shows any trial testimony relating to the presence of
Ball’s son during the crimes at issue was very brief, relevant within the context of
the facts of this case, and not unfairly prejudicial to Ball. Accordingly, we find that
Ball has not shown trial counsel’s performance fell below an objective standard of
reasonable representation.
{¶50} Ball next contends that trial counsel’s performance was deficient by
failing to object to testimony from Sergeant Hemker, the lead task force
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investigator, about the methods used to conduct drug investigations to lead them to
a bigger fish. Ball contends such background testimony had no relevant value and
the obvious intent of the questioning was to portray Ball as a major drug dealer.
However, we note that an attorney’s failure to make objections is not alone enough
to sustain a claim of ineffective assistance of counsel. State v. Conway, 109 Ohio
St.3d 412, 2006-Ohio-2815, ¶ 103. And a review of the contested testimony reflects
that this testimony was explanatory information about the investigative method used
in developing the confidential informant to lead police to someone who had sold her
drugs, or the bigger fish.
{¶51} Ball also contends that trial counsel was deficient when questioning
Sergeant Hemker during cross-examination about the use of informants. Ball
specifically refers to testimony elicited with regard why Sergeant Hemker uses the
gender-neutral pronoun “they” in his reports rather than he or she when referring to
the confidential informant. As the State counters, however, the question posed by
trial counsel “served to clarify for counsel that the pronoun ‘they’ was used in a
gender-neutral sense but in the singular, as opposed to being used by Hemker in the
plural sense, which would have indicated that there was more than one confidential
informant involved here.” (Appellee’s Brief at 19). This questioning followed
Sergeant Hemker’s testimony on direct examination that there were two confidential
informants—one who had told him Ball lived at the same residence that the CI in
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this case told him they could buy from. Additional questions on re-direct
examination concerning this matter did not suggest that Ball posed any specific risk
of harm to the informant here but, rather, the witness explained that the task force
generally uses “they” in reports when referring to a confidential informant in order
to protect the identity of the informant. Under these circumstances, it appears trial
counsel made a strategic decision to ask the complained-of question in an attempt
to clarify and ascertain if there had been another undisclosed confidential informant
and therefore another potential eye-witness to the controlled buys. When
considering these circumstances, Ball’s trial counsel did not provide ineffective
assistance of counsel.
{¶52} Next, Ball asserts that trial counsel performed deficiently by asking
Sergeant Hemker if a second search warrant had been served at the same residence
following Ball’s release from jail. At the very least, because such an inquiry could
have served to potentially uncover both a discovery violation and/or exculpatory
evidence, although it did not as ultimately addressed in Ball’s third assignment of
error, trial counsel cannot be deemed to have been ineffective in asking such a
question. Further, our review of the record indicates that Ball has failed to show
how he suffered material prejudice from the jury hearing that a second search
warrant had been subsequently served at Ball’s residence, with no one present in the
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house, nothing seized during the search, and the “house looked exactly the same
way” as they left it on April 1st. (Trial Tr., Vol. 2, p. 505-506).
{¶53} Ball’s final assertion is that the cumulative effect of the foregoing
alleged errors made by his counsel at trial prejudiced him and denied him a fair trial.
However, from the foregoing analysis of each of Ball’s allegations, this argument is
necessarily unpersuasive. Accordingly, inasmuch as Ball is unable to establish his
specific allegations of ineffective assistance of counsel, he is unable to show a
cumulative effect of errors.
{¶54} Ball’s fifth assignment of error is overruled.
Sixth Assignment of Error
{¶55} Ball contends the trial court committed plain error because the Regan
Tokes Act under which it imposed an indefinite maximum prison term of sixteen
and one-half years in prison on Count 5 is unconstitutional.
{¶56} Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
Crim.R. 52(B). An error qualifies as “plain error” only if it is obvious and but for
the error, the outcome of the proceeding clearly would have been otherwise. State
v. Barnhart, 3d Dist. Putnam No. 12-20-08, 2021-Ohio-2874, ¶ 8, citing State v.
Yarbrough, 95 Ohio St.3d 227, 245, 2002-Ohio-2126, ¶ 32.
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{¶57} Ball did not challenge the constitutionality of the Reagan Tokes Law
before the trial court. For this reason, we apply the plain error standard in this case.
Accord Barnhart at ¶ 8.
{¶58} Ball raises three constitutional arguments to the Reagan Tokes Act.
Relying on the 8th District Court of Appeals’ decision in State v. Delvallie, 8th Dist.
Cuyahoga No. 109315, 2021-Ohio-1809, Ball specifically argues that the Act
violates his constitutional right to a trial by jury, separation of powers doctrine, and
due process.
{¶59} Ball’s challenges do not present a matter of first impression in this
Court. Since the indefinite sentencing provisions of the Reagan Tokes Law went
into effect in March 2019, we have repeatedly been asked to address the
constitutionality of these provisions. We have invariably concluded that the
indefinite sentencing provisions of the Reagan Tokes Law do not facially violate
the separation-of-powers doctrine or infringe on defendants’ due process rights.
E.g., State v. Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-547, ¶ 10-11; State
v. Hacker, 3d Dist. Logan No. 8-20-01, 2020-Ohio-5048, ¶ 22; State v. Wolfe, 3d
Dist. Union No. 14-21-16, 2022-Ohio-96, ¶ 21.
{¶60} In this case, Ball asks us to reconsider our earlier decisions. In recent
months, a number of defendants have requested the same of us—requests that we
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have uniformly rejected. E.g., State v. Abston, 3d Dist. Henry No. 7-21-04, 2022-
Ohio-884, ¶ 33; Wolfe at ¶ 22; Barnhart at ¶ 12-15; State v. Mitchell, 3d Dist. Allen
No. 1-21-02, 2021-Ohio-2802, ¶ 17; State v. Rodriguez, 3d Dist. Seneca No. 13-20-
07, 2021-Ohio-2295, ¶ 15. As Ball has not presented us with any compelling reason
to depart from our earlier precedent on facial challenges to Reagan Tokes, we once
again decline to do so.
{¶61} Ball also challenges Reagan Tokes as applied to him, contending that
Reagan Tokes violates his constitutional right to a trial by jury. In the past, we have
held that certain as applied challenges to Reagan Tokes were not ripe for review.
See, e.g., State v. Kepling, 3d Dist. Hancock No. 5-20-23, 2020-Ohio-6888, ¶ 11.
However, the Supreme Court of Ohio recently released State v. Maddox, --- Ohio
St.3d ---, 2022-Ohio-764, and determined that constitutional challenges to Reagan
Tokes are ripe for review. Based on the holding in Maddox, we will address the
constitutional issues under Reagan Tokes related to a jury trial.
{¶62} In reviewing the matter, we emphasize that statutes are presumed
constitutional, and it is Ball’s burden to demonstrate that the statute at issue is
unconstitutional. State v. Thompkins, 75 Ohio St.3d 558, 1996-Ohio-264. Ball has
presented no compelling authority undermining the constitutionality of Reagan
Tokes.
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{¶63} Notwithstanding this point, numerous Ohio Appellate Courts have
already rejected challenges similar to Ball’s. State v. Rogers, 12th Dist. Butler No.
CA2021-02-010, 2021-Ohio-3282, ¶ 18; State v. Thompson, 2d Dist. Clark No.
2020-CA-60, 2021-Ohio-4027, ¶ 25; State v. Delvallie, 8th Dist. Cuyahoga No.
109315, 2022-Ohio-470, ¶ 46 (en banc). We agree with the reasoning expressed by
the other Ohio Appellate Courts cited herein and determine that Ball’s “as applied”
challenge in this case is unavailing.
{¶64} Accordingly, for all of these reasons, Ball has not established plain
error. Thus, his sixth assignment of error is overruled.
{¶65} Based on the foregoing, the judgment of the Allen County Common
Pleas Court is affirmed.
ZIMMERMAN, P.J. and MILLER, J., concur.
/jlr
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