[Cite as State v. Butcher, 2022-Ohio-928.]
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
DAVID M. BUTCHER,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY Case No. 21 CO 0013
Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2020 CR 363
BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.
JUDGMENT: Reversed. Conviction Vacated.
Atty. Vito Abruzzino, Columbiana County Prosecutor, Atty. Alec A. Beech and Atty. Danielle Menning, Assistant Prosecuting Attorneys, 105 South Market Street, Lisbon, Ohio 44432, for Plaintiff-Appellee –2–
Atty. Ronald Yarwood, DeGenova & Yarwood, Ltd., 42 North Phelps St., Youngstown, Ohio 44503, for Defendant-Appellant.
Dated: March 21, 2022
WAITE, J.
{¶1} Appellant David M. Butcher appeals a May 26, 2021 Columbiana County
Common Pleas judgment entry convicting him of one count of aggravated possession of
drugs. Appellant argues that his trial counsel was ineffective for failing to introduce
evidence that a codefendant admitted to ownership of a pipe used to smoke
methamphetamine that served as the basis for his conviction. In addition, Appellant
argues that his counsel was ineffective for failing to object to testimony from law
enforcement that they saw him dump suspected drugs from a plastic baggie where
chemical testing revealed that the substance was not a drug. For the reasons provided,
Appellant’s arguments have merit. The judgment of the trial court is reversed and
Appellant’s conviction is vacated.
Factual and Procedural History
{¶2} On October 27, 2019, Sgt. Brandon Smith of the Salem Police Department
observed a vehicle with a burnt out rear break light. (Trial Tr., p. 127.) Sgt. Smith testified
that he followed the vehicle in his cruiser until he observed it turn right without the use of
a turn signal. He initiated a stop of the vehicle, which was owned and driven by
Appellant’s codefendant. Appellant was the sole passenger, and sat in the front
passenger seat.
{¶3} The codefendant informed Sgt. Smith that her window controls did not work
and she would have to open her door to speak to him. When the door opened, Sgt. Smith
Case No. 21 CO 0013 –3–
testified that he observed a strong chemical smell. When asked about the smell, she
explained that she had recently used rubbing alcohol on her skin. Around this time,
Officer Michael Garber arrived and walked towards the vehicle.
{¶4} As Officer Garber approached the vehicle, he saw Appellant reach behind
him and appear to throw an object. (Trial Tr., p. 162.) Concerned that it could be a
weapon, Officer Garber focused his attention on Appellant’s hands. He saw Appellant
reach behind him again and empty the contents of a plastic baggie onto the backseat
floor. Concerned about the destruction of evidence, Officer Garber ordered Appellant to
stop. Appellant shook the baggie again but it had already been emptied. Officer Garber
ordered Appellant to exit the vehicle and Sgt. Smith assisted in handcuffing him. Officer
Garber retrieved the empty baggie and scraped off a white crystal substance, which he
presumed to be methamphetamine, from the backseat floor.
{¶5} Sgt. Smith then searched the codefendant’s person and found a pill bottle
which she admitted contained methamphetamine. The officers also searched Appellant’s
person but found no contraband. The officers then searched the vehicle and found a
cellphone, a pack of cigarettes, and a glass pipe containing a residue of suspected
methamphetamine lying on a jacket in the backseat. Despite her ownership of the vehicle,
the codefendant denied possession of all items found in the backseat. Appellant told the
officers the phone and cigarettes belonged to him, but the officers did not ask him about
the jacket. Both parties denied ownership of the pipe.
{¶6} Appellant and the codefendant were both charged with possession of drug
paraphernalia related to the pipe in municipal court. The codefendant pleaded no contest
to possession charges. The identical charges against Appellant were dismissed without
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prejudice. The dates of the dismissal of Appellant’s charges and of the codefendant’s
plea are unknown. However, it appears that the instant felony charge was pending at the
time. A secret indictment was filed on September 16, 2020 and included one count of
aggravated possession of methamphetamine, a felony of the fifth degree in violation of
R.C. 2925.11(A).
{¶7} On May 19, 2021, the state filed a motion in limine seeking to prevent the
defense from introducing evidence of the codefendant’s plea and the dismissal of
Appellant’s municipal court charges. The court did not rule on the motion. However, at
the close of trial, defense counsel informed the court that Appellant requested he present
this evidence. Defense counsel told the court that despite Appellant’s wishes, counsel
did not believe the evidence was relevant and would not seek its admission. The trial
court appeared to agree with defense counsel but did not officially enter a ruling,
apparently because counsel did not move to admit the evidence. Instead, this appears
to be counsel’s attempt to merely make a record of Appellant’s concerns.
{¶8} The following witnesses testified at trial: Sgt. Smith, Officer Garber, and
Ohio Bureau of Criminal Investigations (“BCI”) forensic scientist Erin Miller. All witnesses
were called by the state. The state introduced, and the trial court admitted into evidence,
the following items: the plastic baggie, the substance found on the backseat floor, the
methamphetamine found in the codefendant’s pill bottle, and the glass pipe. While they
were admitted as evidence against Appellant, the only testimony was that the
methamphetamine in the pill bottle was attributed to the codefendant and the substance
found on the floor was not a controlled substance. The jury convicted Appellant on the
sole offense as charged within the indictment, aggravated possession of drugs.
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{¶9} On May 26, 2021, the trial court sentenced Appellant to a five-year
community control term. The court reserved the right to impose the maximum one-year
term of incarceration in the event that Appellant violated the terms of his probation. The
court required Appellant to serve 120 days of his sentence in the Columbiana County Jail
and awarded Appellant credit for two days served. The court additionally referred
Appellant for evaluation at the Eastern Ohio Correctional Center. It is from this entry that
Appellant timely appeals.
{¶10} On June 8, 2021, we granted Appellant’s motion for a stay of sentence
pending appeal. The stay was conditioned on Appellant’s adherence to the terms of his
probation set out by the trial court. On September 23, 2021, the state filed a motion to
revoke Appellant’s bond based on his failure to report to probation. On November 12,
2021, we granted the state’s motion and revoked Appellant’s bond. We acknowledged a
reference within one of the attached affidavits that appeared to request a bench warrant.
While we retained jurisdiction for purposes of this appeal, we issued a limited remand to
allow the trial court to address the bench warrant if it was, in fact, filed. No proceedings
have occurred at the trial court as of this time. While Appellant’s status is unknown to this
Court, it is irrelevant to this appeal and does not affect its resolution. For ease of
understanding, Appellant’s three assignments of error will be jointly addressed within a
single analysis.
Law
{¶11} The majority of Appellant’s arguments are based on claims of ineffective
assistance of counsel. The test for an ineffective assistance of counsel claim is two-part:
whether trial counsel's performance was deficient and, if so, whether the deficiency
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resulted in prejudice. State v. White, 7th Dist. Jefferson No. 13 JE 33, 2014-Ohio-4153,
¶ 18, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107. In
order to prove prejudice, “[t]he defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” State v. Lyons, 7th Dist. Belmont No. 14 BE 28, 2015-Ohio-3325, ¶ 11,
citing Strickland at 694. The appellant must affirmatively prove the alleged prejudice
occurred. Id. at 693.
{¶12} As both are necessary, if one prong of the Strickland test is not met, an
appellate court need not address the remaining prong. Id. at 697. The appellant bears
the burden of proof on the issue of counsel's effectiveness, and in Ohio, a licensed
attorney is presumed competent. State v. Carter, 7th Dist. Columbiana No. 2000-CO-32,
2001 WL 741571 (June 29, 2001), citing State v. Calhoun, 86 Ohio St.3d 279, 289, 714
N.E.2d 905 (1999).
{¶13} The remainder of Appellant’s argument involves the sufficiency of the
evidence and manifest weight of the evidence. “Sufficiency of the evidence is a legal
question dealing with adequacy.” State v. Pepin-McCaffrey, 186 Ohio App.3d 548, 2010-
Ohio-617, 929 N.E.2d 476, ¶ 49 (7th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997). “Sufficiency is a term of art meaning that legal standard
which is applied to determine whether a case may go to the jury or whether evidence is
legally sufficient to support the jury verdict as a matter of law.” State v. Draper, 7th Dist.
Jefferson No. 07 JE 45, 2009-Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St.
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486, 124 N.E.2d 148 (1955). When reviewing a conviction for sufficiency of the evidence,
a reviewing court does not determine “whether the state's evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction.” State
v. Rucci, 7th Dist. Mahoning No. 13 MA 34, 2015-Ohio-1882, ¶ 14, citing State v. Merritt,
7th Dist. Jefferson No. 09-JE-26, 2011-Ohio-1468, ¶ 34.
{¶14} In reviewing a sufficiency of the evidence argument, the evidence and all
rational inferences are evaluated in the light most favorable to the prosecution. State v.
Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed
on the grounds of sufficiency unless the reviewing court determines no rational juror could
have found the elements of the offense proven beyond a reasonable doubt. Id.
{¶15} Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.”
(Emphasis deleted.) Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. It is not a
question of mathematics, but depends on the effect of the evidence in inducing belief. Id.
Weight of the evidence involves the state's burden of persuasion. Id. at 390, 678 N.E.2d
541 (Cook, J. concurring). The appellate court reviews the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses, and
determines whether, in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed. State
v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, citing Thompkins,
at 387, 678 N.E.3d 541, 678 N.E.2d 541. This discretionary power of the appellate court
to reverse a conviction is to be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction. Id.
Case No. 21 CO 0013 –8–
{¶16} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-
6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. The trier of fact is in the best position to weigh
the evidence and judge the witnesses' credibility by observing their gestures, voice
inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1984). The jurors are free to believe some, all, or none of each witness'
testimony and they may separate the credible parts of the testimony from the incredible
parts. State v. Barnhart, 7th Dist. Jefferson No. 09 JE 15, 2010-Ohio-3282, ¶ 42, citing
State v. Mastel, 26 Ohio St.2d 170, 176, 270 N.E.2d 650 (1971). When there are two
fairly reasonable views of the evidence or two conflicting versions of events, neither of
which is unbelievable, we will not choose which one is more credible. State v. Gore, 131
Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).
ASSIGNMENT OF ERROR NO. 1
Appellant was denied the effective assistance of counsel, depriving him of
a fair trial pursuant to both the United States and Ohio constitutions.
ASSIGNMENT OF ERROR NO. 2
The verdict was based on insufficient evidence as the state failed to prove
either actual or constructive possession.
ASSIGNMENT OF ERROR NO. 3
The verdict was against the manifest weight of the evidence.
Case No. 21 CO 0013 –9–
{¶17} Appellant asserts that his trial counsel knew of his codefendant’s no-contest
plea to possession charges related to the drugs and drug paraphernalia found in the car
and that similar charges against him were dismissed after her plea was accepted.
Appellant argues the failure to present this evidence at his trial cannot be seen as
reasonable trial strategy and resulted in ineffective assistance of counsel.
{¶18} Appellant also argues that his counsel was ineffective for failing to object to
statements made during Sgt. Smith and Officer Garber’s testimony. Officer Garber
testified that the codefendant claimed Appellant owned all of the items found on the
backseat, which would include the pipe. Second, Appellant argues his counsel was
ineffective for failing to object to Officer Garber and Sgt. Smith’s testimony that he dumped
drugs out of a plastic baggie. Because the BCI testing showed that the powder was not
an illegal substance, Appellant believes the testimony misled the jury.
{¶19} In response, the state argues that evidence of the codefendant’s plea would
only have served to confuse the jury, as the state would have had to explain concepts
such as plea negotiations, litigation, no contest pleas, docket management, efficiency,
and judicial economy. Even so, the state contends that a no contest plea is not an
admission of guilt, thus the fact that the codefendant pleaded guilty to ownership of the
contraband does not affect Appellant’s guilt. As to the officers’ testimony, the state
responds by arguing that neither officer testified that he dumped methamphetamine.
Instead, the officers testified that he dumped a substance that they believed was a drug.
Even so, the state urges that the record clearly indicates that the powder was not a
controlled substance.
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{¶20} Where possession is at issue, “[o]wnership does not need to be proven and
circumstantial evidence can be relied upon to establish constructive possession.” State
v. Floyd, 7th Dist. Mahoning No. 18 MA 0106, 2019-Ohio-4878, ¶ 16, citing State v.
Sykes, 7th Dist. Mahoning No. 16 MA 0162, 2018-Ohio-983, ¶ 17, citing State v. Treesh,
90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). As we recently noted, an object can be
individually or jointly possessed. State v. Bunn, 7th Dist. Mahoning No. 20 MA 0094,
2021-Ohio-2413, ¶ 33. Further, an individual may actually or constructively possess an
object. Id.
{¶21} While multiple people can jointly possess an item, such as a pipe, the issues
in this case extend beyond this principle. At issue in this case is whether counsel’s
performance amounted to reasonable trial strategy, particularly whether defense counsel
effectively responded to the joint possession argument. In every case, defense counsel
is charged with creating reasonable doubt in the jury wherever possible. There is no
question that defense counsel was aware of the codefendant’s plea. After a review of the
entire record in this matter, it is difficult to imagine a scenario where counsel’s failure to
raise, or even attempt to raise, evidence of that plea is reasonable trial strategy. Even
the state had difficulty creating such a scenario at oral argument, and is presumably why
the state filed a motion in limine seeking to exclude evidence of that plea at trial.
{¶22} The evidence of the codefendant’s plea is significant, as officers found
methamphetamine on the codefendant’s person and found no contraband during a search
of Appellant. Importantly, the codefendant owned and operated the vehicle where the
pipe was found. A legitimate argument existed that Appellant was a mere passenger and
was not associated with the drug activity. Whether this argument would be accepted by
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a jury is irrelevant, as the focus, here, is on the reasonableness of the trial strategy
employed by defense counsel. The fact that defense counsel had knowledge of evidence
that could create reasonable doubt but did not even attempt to introduce such evidence
cannot be seen as reasonable trial strategy.
{¶23} Evidence of the codefendant’s plea is relevant to show that the individual
who owned and operated the car and had drugs on her person is the person who owned
and possessed the pipe, not the mere passenger who had no other evidentiary ties to any
drug activity. If this were the only deficiency, it may not have had a truly prejudicial impact.
However, this error becomes more glaring when considering Appellant’s remaining
arguments, which include a series of comments that were made during Sgt. Smith and
Officer Garber’s testimony.
{¶24} While Appellant objects to several aspects of the officers’ testimony, the
critical testimony involved the officers’ description of Appellant’s actions as they
approached the vehicle. Officer Garber first testified that chemical testing revealed that
the substance he scraped from the backseat floor was not a controlled substance,
particularly methamphetamine. However, without objection he followed this admission
with his belief that the testing did not reveal the presence of a controlled substance
because Appellant “did a good job of destroying the evidence. Based off the time of the
year, I could have been collecting rock salt off the floorboard from someone’s shoes.”
(Trial Tr., p. 179.) Officer Garber continued to press the issue in his testimony, at one
point stating that because Appellant “had successfully tampered and destroyed with
whatever was inside there that there wasn’t enough to test.” (Trial Tr., p. 175.)
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{¶25} Despite the fact that Appellant had not been charged with tampering with
evidence, the prosecutor built on Officer Garber’s theory at closing, where he stated:
And when I asked Patrolman Garber if he was surprised that whatever he
had gotten off of the floorboard didn’t test positive for drugs, he said he
wasn’t surprised at all, and that he didn’t know what he was getting at that
point. It could have been salt, because it was October and it was cold out,
and he did his best to get what he could, but wasn’t surprised about what
was -- what that substance tested for.
So [Appellant] was able to get rid of whatever that was, likely
methamphetamine.
(Trial Tr., p. 211)
{¶26} Officer Garber’s testimony and the prosecutor’s closing argument, in a
vacuum, are problematic. In addition, the state introduced evidence unrelated to the
charges in the indictment that could only be described as irrelevant and prejudicial.
Although it was clear that the charges against Appellant were limited to alleged
possession of the pipe, the state presented to the jury and the court admitted into
evidence: the unknown substance Officer Garber scraped from the backseat floor (state’s
exhibit 2), a paper fold that contained methamphetamine which was found inside the pill
bottle seized from the codefendant (state’s exhibit 3), and the plastic baggie containing
an unknown residue (state’s exhibit 4). See Trial Tr., pp. 174-175; 201-202.
{¶27} The methamphetamine found on the codefendant is completely irrelevant
to any charges pertaining to Appellant and there is no evidence in this record that
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Appellant even knew about these drugs. The fact that the drugs seized from the
codefendant were not only presented at trial, but admitted into evidence, could only serve
to confuse and inflame the jury. There was absolutely no connection between this
evidence and Appellant. Defense counsel did object to this evidence, but the trial court
overruled that objection. There is no reasonable explanation for this evidence to have
been admitted at Appellant’s trial. It was error to have admitted this evidence, and this
error compounded the objectionable testimony of Officer Garber and counsel’s failure to
raise the issue of the codefendant’s plea.
{¶28} Additionally, the plastic baggie, which apparently had a small crystalline-like
substance lodged in the corners, was not subjected to chemical testing but was admitted
into evidence. The state’s decision to offer this evidence can only be seen as an attempt
to support the theory that the substance dumped from the baggie was, in fact,
methamphetamine even though the substance removed from the floor tested negative for
a controlled substance. In addition, Appellant was not charged with possession of
methamphetamine related to the baggie or the contents of the material scraped from the
floor. Again, this evidence could only serve to confuse and mislead the jury. It was both
irrelevant and prejudicial, and thus, inadmissible.
{¶29} Absent the objectionable testimony and the irrelevant evidence, the state
would be left to proceed with a relatively weak case against Appellant. Again, his charge
was based on possession of the pipe. Had the jury not heard the testimony or been aware
of the evidence that was erroneously admitted, and had they been made aware that the
codefendant pleaded guilty to possession of that same pipe, we cannot say that
Appellant’s outcome would not have been different. It appears from this record that the
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cumulative effect of those errors prejudiced Appellant to such an extent that reversal of
his conviction is warranted, here.
Conclusion
{¶30} Appellant argues that his trial counsel was ineffective for failing to introduce
evidence that a codefendant admitted to ownership of drug paraphernalia and drugs that
served as the basis for his conviction and for failing to object to testimony from law
enforcement. Standing alone, counsel’s failure to introduce the codefendant’s plea, while
questionable, may not have amounted to prejudice. However, failure to object to police
testimony where the officers continued to insist that Appellant possessed a controlled
substance even though the substance had tested negative, coupled with the admission
of irrelevant and highly prejudicial evidence clearly shows that Appellant was denied a
fair trial in this matter. Appellant argues that his conviction must be reversed based on
the cumulative effect of these errors. For the reasons provided, Appellant’s arguments
have merit and the judgment of the trial court is reversed and Appellant’s conviction is
vacated.
Robb, J., concurs.
D’Apolito, J., concurs.
Case No. 21 CO 0013 – 15 –
For the reasons stated in the Opinion rendered herein, the assignments of error
are sustained and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Columbiana County, Ohio, is reversed. Appellant’s conviction
is hereby vacated. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 CO 0013