[Cite as State v. Carter, 2018-Ohio-4503.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
STATE OF OHIO, : : Case No. 18CA1 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY ANTHONY D. CARTER, : : Defendant-Appellant. : Released: 11/02/18 _____________________________________________________________ APPEARANCES:
Jerry L. McHenry, Pickerington, Ohio, for Appellant.
Judy C. Wolford, Pickaway County Prosecutor, and Jayme Hartley Fountain, Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee. _____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Pickaway County Court of Common
Pleas judgment entry convicting Appellant, Anthony Carter, of ten felony
drug offenses, which included one count of engaging in a pattern of corrupt
activity, seven counts of trafficking in cocaine, two counts of trafficking in
heroin, and sentencing him to an aggregate prison term of thirty-one years.
On appeal, Appellant contends that 1) trial counsel rendered ineffective
assistance by failing to object to the testimony of Anthony Schwalbauch
when he gave opinion testimony as to weights and measures of drugs and Pickaway App. No. 18CA1 2
amounts, as well as opinions as to what the wiretap recorded speakers meant
by their conversations, and that he was denied his rights to a fair trial,
confrontation of witnesses, representation of counsel and due process as a
result; and 2) the trial court erred by failing to provide a meaningful
sentencing hearing for Appellant, as required by Ohio's sentencing statutes,
and that trial counsel further rendered ineffective assistance of counsel by
failing to participate in the sentencing hearing.
{¶2} Because we find the trial court properly admitted the lay witness
testimony of Anthony Schwalbauch under Evid.R. 701, we cannot conclude
Appellant's trial counsel's failure to object constituted deficient performance
or that Appellant was prejudiced by the failure to object. Consequently,
Appellant's first assignment of error is overruled. With respect to
Appellant's second assignment of error, because we conclude the
consecutive sentences imposed by the trial court were not contrary to law,
we reject Appellant's assertion that he was not provided with a meaningful
sentencing hearing, as well as his argument that his trial counsel's failure to
participate in the sentencing hearing constituted ineffective assistance of
counsel. Therefore, Appellant's second assignment of error is also
overruled. Accordingly, having overruled both of Appellant's assignments
of error, the judgment of the trial court is affirmed. Pickaway App. No. 18CA1 3
FACTS
{¶3} Appellant, Anthony Carter, was indicted on multiple felony
counts as part of a multi-count indictment naming eleven defendants. While
the indictment included seventy-seven counts, only counts one through six,
eleven through thirteen, twenty, twenty-two, twenty-three, thirty-five, thirty-
six, forty-three, forty-four, forty-eight, forty-nine, sixty-four and sixty-five
pertained to Appellant. Prior to trial, the State moved to dismiss, and the
trial court dismissed counts two through six, thirteen, twenty-two, twenty-
three, forty-three and forty-four. Appellant was subsequently found guilty
by a jury of the remaining counts, identified as counts one, eleven, twelve,
twenty, thirty-five, thirty-six, forty-eight, forty-nine, sixty-four and sixty-
five.
{¶4} The counts in which Appellant was convicted included one
count of engaging in a pattern of corrupt activity, seven counts of
trafficking in cocaine, and two counts of trafficking in heroin, all of which
ranged from first-degree felonies to third-degree felonies. The trial court
imposed an aggregate prison term of thirty-one years, ordering the prison
terms for counts one, eleven, twelve, twenty, thirty-five, thirty-six, forty-
eight and forty-nine to be served consecutively for a total of thirty years.
The trial court determined that counts sixty-four and sixty-five merged for Pickaway App. No. 18CA1 4
purposes of sentencing and imposed a three-year prison term to be served
concurrently with the other prison terms. The trial court further imposed an
additional one-year prison term, to be served consecutively to the other
prison terms, due to the fact that Appellant violated his post-release control
in committing the offenses at issue. The trial court also imposed a five-year
mandatory period of post-release control.
{¶5} Appellant’s indictment was the result of an investigation into
what both parties refer to as either the “Crosby Drug Trafficking Operation”
or the “Leslie Alan Crosby drug trafficking operation” located in Circleville,
Ohio in 2016. Although Appellant was not the original focus of the
investigation, law enforcement became aware of his affiliation and
involvement with the drug trafficking operation through the course of their
investigation, when they recognized Appellant was a supplier to the
operation. The investigation involved law enforcement’s receipt of an
“intercept warrant” which permitted a wiretap of Crosby’s phone, and which
ultimately provided law enforcement with recordings of conversations
between Appellant, Crosby and others as they set up drug transactions. The
investigation further included observation of drug transactions by officers
while conducting covert surveillance. No drugs were recovered as part of
the investigation. Pickaway App. No. 18CA1 5
{¶6} At trial, the State’s witnesses included two law enforcement
officers involved in the investigation, Special Agent Shawn Rowley from the
Ohio Bureau of Criminal Identification and Investigation and Detective John
Strawser from the Pickaway County Sheriff’s Office. The State also
introduced the testimony of Anthony Schwalbauch, Crosby’s son-in-law and
Appellant’s co-defendant. Both law enforcement officers provided
testimony regarding what they had heard on the recorded telephone
conversations, as well as what they witnessed while performing surveillance.
Schwalbauch, who had already entered into a plea agreement in exchange
for his cooperation in testifying against Appellant, identified the voices of
the speakers on the telephone recordings and explained for the jury what the
speakers meant when they used certain code words. He also testified
regarding the amount of drugs being referenced during the recorded
conversations and the significance of the prices that were being discussed in
regards to the identification of the drugs. The recordings from the wiretap
were played for the jury at trial. The jury was also shown photographs and
surveillance videos from the investigation.
{¶7} As set forth above, Appellant was ultimately convicted on all
ten counts that were presented to the jury and was sentenced to an aggregate
prison term of thirty-one years. It is from the trial court’s entry of sentence Pickaway App. No. 18CA1 6
that Appellant now files his timely appeal, setting forth two assignments of
error for our review.
ASSIGNMENTS OF ERROR
"I. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL TO APPELLANT, BY FAILING TO OBJECT TO THE TESTIMONY OF ANTHONY SCHWALLBACH [SIC] WHEN HE GAVE OPINION TESTIMONY AS TO WEIGHTS AND MEASURES OF DRUGS AND AMOUNTS, AS WELL AS OPINIONS AS TO WHAT THE WIRETAP RECORDED SPEAKERS MEANT BY THEIR CONVERSATIONS. THIS CONSTITUTED A DENIAL OF APPELLANT'S RIGHTS TO A FAIR TRIAL, CONFRONTATION OF WITNESSES, REPRESENTATION OF COUNSEL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT ERRED BY FAILING TO PROVIDE A MEANINGFUL SENTENCING HEARING FOR APPELLANT, AS REQUIRED BY OHIO'S SENTENCING STATUTE. TRIAL COUNSEL FURTHER RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO PARTICIPATE IN THIS SENTENCING HEARING."
ASSIGNMENT OF ERROR I
{¶8} In his first assignment of error, Appellant contends he was
denied the effective assistance of counsel, which resulted in a denial of his
right to a fair trial, confrontation of witnesses, and due process of law.
Appellant argues that his counsel's failure to object to his co-defendant's
opinion testimony regarding weights, measures and amounts of drugs as Pickaway App. No. 18CA1 7
referenced on various wiretap recordings, and interpretation of what the
speakers meant when they used different code, or slang, words on the
recordings, constituted deficient performance. Appellant questions whether
his co-defendant should have been qualified as an expert witness, based
upon his own drug use, before being permitted to testify as to these matters.
{¶9} The State responds by noting that many courts in Ohio have
allowed lay witnesses to testify, under Evid.R. 701, about the identity of a
drug when a proper foundation has been laid regarding the lay witness's
personal knowledge and experience. The State argues Appellant's co-
defendant, Anthony Schwalbauch, clearly possessed sufficient personal
knowledge and understanding of the drug trade to testify about common
code words and measures as they relate to illicit substances. The State
further argues that these particular matters fall outside the specialized,
technical expertise contemplated under Evid.R. 702 for expert testimony,
that Schwalbauch did not need to be qualified as an expert, and that he did
not testify as an expert, but rather as a lay witness, whose testimony was
properly admitted under the trial court's broad discretion and in full
compliance with Evid.R. 701.
{¶10} The Sixth Amendment to the United States Constitution and
Article I, Section 10 of the Ohio Constitution provide that defendants in all Pickaway App. No. 18CA1 8
criminal proceedings shall have the assistance of counsel for their defense.
The United States Supreme Court has generally interpreted this provision to
mean a criminal defendant is entitled to the “reasonably effective assistance”
of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); accord Hinton v. Alabama, 571U.S. 263, 134 S.Ct.
1081, 1087–1088 (2014) (explaining that the Sixth Amendment right to
counsel means “that defendants are entitled to be represented by an attorney
who meets at least a minimal standard of competence”).
{¶11} To establish constitutionally ineffective assistance of counsel, a
defendant must show (1) that his counsel's performance was deficient and
(2) that the deficient performance prejudiced the defense and deprived the
defendant of a fair trial. Strickland at 687; State v. Obermiller, 147 Ohio
St.3d 175, 2016–Ohio–1594, 63 N.E.3d 93, ¶ 83; State v. Powell, 132 Ohio
St.3d 233, 2012–Ohio–2577, 971 N.E.2d 865, ¶ 85. “Failure to establish
either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No.
06CA3116, 2008–Ohio–968, ¶ 14. Therefore, if one element is dispositive,
a court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389,
721 N.E .2d 52 (2000) (stating that a defendant's failure to satisfy one of the
elements “negates a court's need to consider the other”). Pickaway App. No. 18CA1 9
{¶12} The deficient performance part of an ineffectiveness claim “is
necessarily linked to the practice and expectations of the legal community:
‘The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.’ ” Padilla v. Kentucky,
559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); quoting
Strickland at 688; accord Hinton at 1088. “Prevailing professional norms
dictate that with regard to decisions pertaining to legal proceedings, ‘a
lawyer must have “full authority to manage the conduct of the trial.” ’ ”
Obermiller at ¶ 85; quoting State v. Pasqualone, 121 Ohio St.3d 186, 2009–
Ohio–315, 903 N.E.2d 270, ¶ 24; quoting Taylor v. Illinois, 484 U.S. 400,
418, 108 S.Ct. 646 (1988). Furthermore, “ ‘[i]n any case presenting an
ineffectiveness claim, “the performance inquiry must be whether counsel's
assistance was reasonable considering all the circumstances.” ’ ” Hinton at
1088; quoting Strickland at 688. Accordingly, “[i]n order to show deficient
performance, the defendant must prove that counsel's performance fell
below an objective level of reasonable representation.” State v. Conway, 109
Ohio St.3d 412, 2006–Ohio–2815, 848 N.E.2d 810, ¶ 95 (citations omitted);
accord Hinton at 1088; citing Padilla at 366; State v. Wesson, 137 Ohio
St.3d 309, 2013–Ohio–4575, 999 N.E.2d 557, ¶ 81. Pickaway App. No. 18CA1 10
{¶13} Moreover, when considering whether trial counsel's
representation amounts to deficient performance, “a court must indulge a
strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.” Strickland at 689. Thus, “the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id.
Additionally, “[a] properly licensed attorney is presumed to execute his
duties in an ethical and competent manner.” State v. Taylor, 4th Dist.
Washington No. 07CA11, 2008–Ohio–482, ¶ 10; citing State v. Smith, 17
Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, a defendant bears
the burden to show ineffectiveness by demonstrating that counsel's errors
were “so serious” that counsel failed to function “as the ‘counsel’ guaranteed
* * * by the Sixth Amendment.” Strickland at 687; e.g., Obermiller at ¶ 84;
State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶
62; State v. Hamblin, 37 Ohio St.3d 153, 156, 524 N.E.2d 476 (1988).
{¶14} To establish prejudice, a defendant must demonstrate that a
reasonable probability exists that “ ‘but for counsel's errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine the outcome.’ ” Hinton at 1089; quoting
Strickland at 694; e.g., State v. Short, 129 Ohio St.3d 360, 2011–Ohio–3641, Pickaway App. No. 18CA1 11
952 N.E.2d 1121, ¶ 113; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373, paragraph three of the syllabus (1989). “ ‘[T]he question is whether
there is a reasonable probability that, absent the errors, the factfinder would
have had a reasonable doubt respecting guilt.’ ” Hinton at 1089; quoting
Strickland at 695. Furthermore, courts may not simply assume the existence
of prejudice, but must require the defendant to affirmatively establish
prejudice. State v. Clark, 4th Dist. Pike No. 02CA684, 2003–Ohio–1707,
¶ 22; State v. Tucker, 4th Dist. Ross No. 01CA2592, 2002-Ohio-1597. As
we have repeatedly recognized, speculation is insufficient to demonstrate the
prejudice component of an ineffective assistance of counsel claim. E.g.,
State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014–Ohio–3123, ¶ 22;
State v. Simmons, 4th Dist. Highland No. 13CA4, 2013–Ohio–2890, ¶ 25;
State v. Halley, 4th Dist. Gallia No. 10CA13, 2012–Ohio–1625, ¶ 25; State
v. Leonard, 4th Dist. Athens No. 08CA24, 2009–Ohio–6191, ¶ 68; accord
State v. Powell, 132 Ohio St.3d 233, 2012–Ohio–2577, 971 N.E.2d 865, ¶ 86
(stating that an argument that is purely speculative cannot serve as the basis
for an ineffectiveness claim).
{¶15} Initially, we observe that “ ‘[t]he failure to object to error,
alone, is not enough to sustain a claim of ineffective assistance of counsel.’ ”
State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d 136 (1999); quoting Pickaway App. No. 18CA1 12
State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988). A
defendant must also show that he was materially prejudiced by the failure to
object. Holloway at 244. Accord State v. Hale, 119 Ohio St.3d 118, 2008–
Ohio–3426, 892 N.E.2d 864, ¶ 233. Additionally, tactical decisions, such as
whether and when to object, ordinarily do not give rise to a claim for
ineffective assistance. State v. Johnson, 112 Ohio St.3d 210, 2006–Ohio–
6404, 858 N.E.2d 1144, ¶ 139–140.
{¶16} As the court explained in Johnson at ¶ 139–140:
“[F]ailure to object to error, alone, is not enough to sustain a
claim of ineffective assistance of counsel. To prevail on such a
claim, a defendant must first show that there was a substantial
violation of any of defense counsel's essential duties to his
client and, second, that he was materially prejudiced by
counsel's ineffectiveness. State v. Holloway (1988), 38 Ohio
St.3d 239, 244, 527 N.E.2d 831. * * *
[E]xperienced trial counsel learn that objections to each
potentially objectionable event could actually act to their party's
detriment. * * * In light of this, any single failure to object
usually cannot be said to have been error unless the evidence
sought is so prejudicial * * * that failure to object essentially Pickaway App. No. 18CA1 13
defaults the case to the state. Otherwise, defense counsel must
so consistently fail to use objections, despite numerous and
clear reasons for doing so, that counsel's failure cannot
reasonably have been said to have been part of a trial strategy or
tactical choice. Lundgren v. Mitchell (C.A.6, 2006), 440 F.3d
754, 774. Accord State v. Campbell, 69 Ohio St.3d 38, 52–53,
1994–Ohio–492, 630 N .E.2d 339.”
{¶17} Here, Appellant contends his counsel was ineffective for
failing to object to the following trial testimony from his co-defendant,
Anthony Schwalbauch:
1. Testimony that "brown girl" meant heroin;
2. Testimony that "...one and a half, maybe two" actually meant two ounces, not grams, and was in reference to crack cocaine;
3. Testimony that a "mule" was a female who was used to transport drugs "shoved up inside her, and concealed so it would not be detected[;]"
4. Testimony which provided an estimate of how much an ounce and a half of crack cocaine would cost Alan Crosby, either $1,800.00 or $1,900.00;
5. Testimony regarding a prior deal for two ounces for $2,400.00 and that it took a day and a half to get rid of an ounce of crack;
6. Testimony which interpreted a telephone conversation between Crosby and Tommy Barker in which Barker asks if Crosby has any "boy" and explained that "boy" really means heroin;
7. Testimony which interpreted a telephone conversation between Crosby and another person in which the caller referenced a "...car that was half a Pickaway App. No. 18CA1 14
gram" and explained that it denoted heroin; and
8. Testimony on cross-examination and re-cross that "girl" or "hard" meant crack cocaine.
{¶18} Appellant also argues Schwalbauch was improperly permitted
to testify about what other people, such as Crosby's wife Rhonda and
Crosby's family in general, knew. Appellant cites to a call between Crosby
and his wife, noted as number 8619 in the trial transcript, in which Crosby's
wife is complaining about Crosby sitting in a car and waiting for over three
hours to purchase crack cocaine. When asked whether Crosby's wife knew
that Crosby was there to purchase crack cocaine, Schwalbauch testified she
did, and that the whole family knew.
{¶19} Finally, Appellant argues Schwalbauch should not have been
permitted to testify regarding what the phrase "talking a lot" meant when it
was used during a recorded telephone conversation between Appellant and
Crosby. The trial transcript indicates the following recorded conversation
between Alan Crosby and Appellant was played for the jury:
"Anthony Carter: Hey, that's cool!
Leslie Crosby: Cause that's the price you asked, right? A half, point six. You know, that's $2,600 for two, $1,300 and $1,325 is $2,650, I'm giving you $1,950 so that's one and a half, right?
Anthony Carter: Yeah!
Leslie Crosby: Is that right? Pickaway App. No. 18CA1 15
Anthony Carter: Sounds like I aunt' even doing the math.
Leslie Crosby: Well, do it Bubba! I'm not cheating you. I'm giving you $1,325 an ounce, that's one and a half at $1,950.
Anthony Carter: Yeah, you're talking a lot. You hear me.
Leslie Crosby: Okay. Okay. You're right. I'm sorry. I'll see you when you get there bro! Bye!"
Anthony Schwalbauch then testified as follows in order to interpret the call:
"Q: Okay. Then they said something, Carter says you're talking a lot, you hear me, and Leslie apologizes. Do you remember that?
A: Yes.
Q: Why would he have said something like that?
A: Sometimes because you think you're being recorded, to use code words instead.
Q: Was that a concern that Alan had then?
A: Always.
Q: Was that just a general concern in the drug world?
Q: Did you do that on your personal phone?
A: Yeah.
Q: Did you ever talk in ounces and grams about heroin or crack cocaine?
A: No. Pickaway App. No. 18CA1 16
Q: You always use what?
A: Code words."
{¶20} Thus, in summary, Appellant argues his trial counsel should
have objected to various statements made by his co-defendant which
interpreted code words or slang words used in the drug trade, and which
explained the significance of references made by Appellant and Crosby to
the price being paid for requested amounts, to the extent the testimony
served to identify the drug at issue and the weight or amount of the drug,
based upon the language used in the recorded telephone conversations.
Appellant also argues Schwalbauch should not have been permitted to testify
regarding what Crosby's wife and family "knew" regarding the activities of
Crosby or the drug operation in general. Appellant contends his co-
defendant should have been qualified as an expert pursuant to Evid.R. 702
before being permitted to testify on these matters and that his counsel's
failure to object to the testimony constituted deficient performance.
Appellant suggests the failure to object to Schwalbauch's testimony was
especially prejudicial, in light of the fact that no drugs were recovered from
any of the transactions.
{¶21} Evid.R. 701 governs opinion testimony by lay witnesses and
provides as follows: Pickaway App. No. 18CA1 17
If the witness is not testifying as an expert, the witness'
testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (1) rationally based on
the perception of the witness and (2) helpful to a clear
understanding of the witness' testimony or the determination of
a fact in issue.
Conversely, Evid.R. 702 governs testimony by experts and provides as
follows:
"A witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding
the subject matter of the testimony;
(C) The witness' testimony is based on reliable scientific,
technical, or other specialized information. To the extent that
the testimony reports the result of a procedure, test, or
experiment, the testimony is reliable only if all of the following
apply: Pickaway App. No. 18CA1 18
(1) The theory upon which the procedure, test, or experiment is
based is objectively verifiable or is validly derived from widely
accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably
implements the theory;
(3) The particular procedure, test, or experiment was conducted
in a way that will yield an accurate result."
{¶22} Contrary to Appellant's argument, and as correctly noted by the
State, since the adoption of the Rules of Evidence, both at the state and
federal levels, many courts have used an Evid.R. 701 analysis and have
allowed lay witnesses to testify about the identity of a drug. State v.
Johnson, 4th Dist. Gallia No. 13CA16, 2014-Ohio-4032, ¶ 38; citing State v.
McKee, 91 Ohio St.3d 292, 2001–Ohio–41, 744 N.E.2d 737. As this Court
noted in Johnson:
“[C]ourts have permitted lay witnesses to express their opinions
in areas in which it would ordinarily be expected that an expert
must be qualified under Evid.R. 702.... Although these cases are
of a technical nature in that they allow lay opinion testimony on
a subject outside the realm of common knowledge, they will
fall within the ambit of the rules requirement that a lay witness's Pickaway App. No. 18CA1 19
opinion be rationally based on firsthand observations and
helpful in determining a fact in issue. These cases are not based
on specialized knowledge within the scope of Evid. R. 702, but
rather are based upon a layperson's personal knowledge and
experience.” Johnson at ¶ 38.
The Supreme Court of Ohio held, in McKee, that the “experience and
knowledge of a drug user lay witness can establish his or her competence to
express an opinion on the identity of a controlled substance if a foundation
for this testimony is first established.” McKee at 297; see also State v.
Johnson at ¶ 39 (allowing lay testimony of the defendant as opinion
testimony to identify a hydrocodone pill based upon the fact that the
defendant had had a prior prescription for hydrocodone and recognized the
pill from her previous experience.); State v. Jewett, 4th Dist. Scioto No.
15CA3714, 2017-Ohio-2891, ¶ 34.
{¶23} Further, although lay witness testimony regarding the identity
of a drug was permitted based upon the witnesses' visual identification of the
drug in Johnson, lay witness testimony has also been permitted in order to
interpret code, or slang, terms used in the drug trade, which serve to provide
identification of drugs by name, amount and price, as heard on recorded
telephone conversations. See State v. Davis, 2017-Ohio-495, 85 N.E.3d 136, Pickaway App. No. 18CA1 20
¶ 30-31 (12th Dist.) (lay witness testified that slang or jargon was usually
used to set up drug deals and that saying "I need a three or a four" means
$30 or $40 in reference to crack cocaine, and that one would not actually
refer to crack cocaine in case law enforcement had the phone tapped.) In
Davis, a proper foundation was laid through testimony that the lay witness at
issue had been purchasing crack cocaine, directly or indirectly, from Davis
for approximately eight years and was a daily user of crack cocaine. Id.
Additionally, the Davis court permitted the State to present evidence through
a lay witness that the phrase "checking on ole girl" reflected a slang term for
cocaine. Id. at ¶ 39 (also permitting lay witness testimony that recorded
conversations indicating Davis stated "one of 'em" in response to being
quoted a price of "12, 5" referred to the fact that $1,250 was the standard
price for the purchase of one ounce of cocaine, which amounts to 28 grams
of cocaine.). Moreover, much like the case presently before us, the State did
not introduce the drugs into evidence in Davis, but rather proved its case
through circumstantial evidence in the form of voluminous records of calls
between Davis and his associates. Id. at ¶ 35.
{¶24} Further, and importantly, this Court has previously noted that:
"* * * in offenses where the state fails to recover and weigh the
drugs, the offender may be convicted of the offense and the Pickaway App. No. 18CA1 21
penalty enhancement associated with the weight of the drug
involved based on the testimony of lay witnesses, even in the
absence of expert testimony, as long as a proper foundation is
made." Jewett, supra, at ¶ 35; citing Garr v. Warden, Madison
Corr. Inst., 126 Ohio St.3d 334, 2010-Ohio-2449, 933 N.E.2d
1063, ¶ 28 (conviction for trafficking in cocaine with major-
drug-offender specification can be supported by lay testimony
where no drug is recovered and no testing is performed).
Similarly, in State v. Rardon, 2018-Ohio-1935, -- N.E.3d -- (5th Dist.), the
trial court permitted lay witness testimony from the defendant's business
associate, based upon his experience using steroids in the past. Id. at ¶ 5.
The witness provided testimony that the term "gear" was "just a short-term
for steroids where if you're talking in public, you don't want people to, . . .
understand what you're talking about with steroids, so you say gear." Id. at
¶ 58. This testimony was important as the term gear was used in text
messages taken from the defendant's phone. Id. at ¶ 58.
{¶25} The record indicates that Anthony Schwalbauch was
Appellant's co-defendant and the son-in-law of Leslie Alan Crosby, the
apparent ring-leader of the drug operation. The investigation of Crosby led
authorities to Appellant as a suspected supplier to Crosby. Schwalbauch Pickaway App. No. 18CA1 22
served as a runner and "drug tester" of the operation. He tested the drugs
supplied to the operation by using the substance being purchased to be sure
it was of good quality, and was what it purported to be. For instance, the
jury heard testimony about a meeting between Appellant, Crosby and
Schwalbauch at the Buffalo Wild Wings restaurant in Circleville, Ohio, and
also saw photographic evidence indicating Schwalbauch purchased crack
cocaine from Appellant and tested it for quality, as part of his role in the
drug operation.
{¶26} Schwalbauch testified regarding his experience using drugs
and the difference between the high resulting from heroin use versus cocaine
use. Thus, it appears Schwalbauch was intimately involved in the drug
operation and had the experience necessary to establish a foundation for his
testimony. As such, having laid a proper foundation, the State was permitted
to introduce further testimony from Schwalbauch as a lay witness to the
extent that his testimony dealt with issues outside the realm of common
knowledge, was rationally based on firsthand observations and helpful in
determining a fact in issue. His testimony aided the jury in interpreting the
voluminous recordings of telephone conversations involving Appellant,
Crosby and others that all occurred as part of the drug operation. Pickaway App. No. 18CA1 23
{¶27} After our review of the record and consideration of the
applicable rules of evidence and above-cited case law, we do not believe that
Appellant has shown that trial counsel's failure to object to the eight
examples of Schwalbauch's testimony listed above substantially violated any
of counsel's essential duties to Appellant or that counsel's failure to object
materially prejudiced Appellant's case. Further, and importantly, a review of
the trial transcript reveals that Special Agent Shawn Rowley provided
testimony on many of the same issues as Schwalbauch. For instance,
Rowley testified regarding code words for quantities of drugs and what
"boy" and "girl" referenced in terms of drugs, and also what the term "mule"
meant. He also identified the voices of Crosby and Appellant on the
recorded calls that were played for the jury. Appellant made no objection
below and raises no argument on appeal regarding Rowley's testimony
admitted at trial.
{¶28} With regard to Appellant's argument his trial counsel should
have objected to Schwalbauch's testimony regarding what Crosby's wife and
family "knew" about his activities, assuming arguendo it was error for the
trial court to permit Schwalbauch to testify regarding someone else's
knowledge or understanding and that counsel should have lodged an
objection, we find any error to be harmless in light of the Schwalbauch's Pickaway App. No. 18CA1 24
other testimony we have found permissible. Finally, with regard to
Appellant's argument that there should have been an objection made to
Schwalbauch's testimony regarding what Appellant meant when he told
Crosby he "was talking a lot," this testimony is very similar to testimony
allowed in both State v. Davis and State v. Rardon, supra. Davis at ¶ 30
(permitting lay testimony explaining that slang terms and jargon was
typically used when setting up drug deals and also permitting lay witness
testimony to interpret jargon used in reference to weight and price for crack
cocaine); Rardon at ¶ 58. As such, we find it permissible here, and not in
violation of Evid.R. 701.
{¶29} As a result, because we cannot conclude that trial counsel's
failure to object constituted deficient performance, we find no merit to
Appellant's first assignment of error. Accordingly, Appellant's first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶30} In his second assignment of error, Appellant contends the trial
court erred by failing to provide a meaningful sentencing hearing for him, as
required by Ohio's sentencing statutes. Appellant contends trial counsel
further rendered ineffective assistance by failing to participate in his
sentencing hearing. The State responds by arguing that Appellant's trial Pickaway App. No. 18CA1 25
counsel noted, at the sentencing hearing, that he did not respond to the
State's sentencing memorandum because it accurately stated the law with
respect to the merger doctrine and “things of [that] nature.” The State points
out that Appellant's trial counsel asked the trial court “to temper the
Appellants' rejection of a generous plea offer by emphasizing Appellant's
young age and ‘rough upbringing.’ ” The State further argues the trial court
considered all of the appropriate factors and made all the necessary findings
in imposing consecutive sentences.
{¶31} When reviewing felony sentences, appellate courts must apply
the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146
Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 22-23. Under R.C.
2953.08(G)(2), “[t]he appellate court's standard for review is not whether the
sentencing court abused its discretion.” Instead, R.C. 2953.08(G)(2)
provides that an appellate court may increase, reduce, modify, or vacate and
remand a challenged felony sentence if the court clearly and convincingly
finds either:
"(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant; Pickaway App. No. 18CA1 26
(b) That the sentence is otherwise contrary to law."
{¶32} Here, Appellant does not expressly contend his sentences were
contrary to law, or that the record does not support his sentences. The only
sentencing arguments he seems to make is that his sentence was not
proportionate to the sentence imposed on Leslie Alan Crosby, and that the
trial court did not "meaningfully explain why a series of consecutive
sentences were appropriate or how they were necessary to protect the public
from future crimes or to punish the Appellant by imposing a minimum
sanction." In making this argument, however, Appellant concedes the trial
court noted several factors in imposing sentence, including that Appellant
had a number of juvenile adjudications and commitments to the Department
of Youth Services (DYS), had been convicted of attempted felonious assault
and carrying a concealed weapon as an adult, and was on community control
at the time of the present offenses. Appellant concedes the trial court also
considered the pre-sentence investigation report that was provided, which
indicated he had thirty-three rule violations while in prison and was a
member of a gang.
{¶33} We first address Appellant's argument that his sentence was
disproportionate to the sentence or sentences imposed upon Leslie Alan Pickaway App. No. 18CA1 27
Crosby. The Third District Court of Appeals has reasoned as follows with
respect to disproportionality in sentencing arguments:
“ ‘ “A defendant alleging disproportionality in felony
sentencing has the burden of producing evidence to 'indicate
that his sentence is directly disproportionate to sentences given
to other offenders with similar records who have committed
these offenses * * *.” ’ ” State v. Norman, 3rd Dist. Seneca No.
13-13-50, 2014-Ohio-3010, ¶ 17, quoting State v. Ewert, 5th
Dist. Muskingum No. CT2012-0002, 2012-Ohio-2671, ¶ 31,
quoting State v. Breeden, 8th Dist. Cuyahoga No. 84663, 2005-
Ohio-510, ¶ 81. 'If a defendant fails to argue to the trial court
that his sentence is not consistent with or proportionate to
sentences imposed for similar crimes committed by similar
offenders, then the defendant waives that issue for appeal.' Id.,
citing Ewert at ¶ 31, citing State v. Santiago, 8th Dist.
Cuyahoga No. 95516, 2011-Ohio-3058, ¶ 42 and State v.
Lycans, 8th Dist. Cuyahoga No. 93480, 2010-Ohio-2780, ¶ 5."
State v. VanMeter, 3d Dist. Allen No. 1-18-18, 2018-Ohio-
3528, ¶ 16. Pickaway App. No. 18CA1 28
Here, we note that Appellant has provided this Court with no information
related to the disposition or sentencing of Crosby, other than a representation
that Crosby was sentenced to twelve years in prison.1 Appellant makes no
argument regarding whether Crosby entered into a plea agreement or what
offenses he was ultimately convicted of. Thus, we cannot determine that
Appellant's sentence was disproportionate or that his trial counsel was
deficient in failing to argue for a lesser sentence based upon this theory.
{¶34} Further, the information in the record before supports the trial
court's imposition of consecutive sentences. Under R.C. 2929.14(C)(4), a
trial court must engage in a three-step analysis and make certain findings
before imposing consecutive sentences. State v. Bever, 4th Dist. Washington
No. 13CA21, 2014–Ohio–600, ¶ 16; State v. Clay, 4th Dist. Lawrence No.
11CA23, 2013–Ohio–4649, ¶ 64; State v. Howze, 10th Dist. Franklin Nos.
13AP–386, 13AP–387, 2013–Ohio–4800, ¶ 18. Specifically, the trial court
must find that (1) “the consecutive service is necessary to protect the public
from future crime or to punish the offender”; (2) “consecutive sentences are
not disproportionate to the seriousness of the offender's conduct and to the
danger the offender poses to the public” and one of the following:
1 The State mentioned Crosby's sentence at the sentencing hearing, noting that Alan Crosby had received twelve years, mandatory, "with additional time over his head." Pickaway App. No. 18CA1 29
"(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender."
{¶35} The trial court “is required to make the findings mandated by
R.C. 2929.14(C)(4) at the sentencing hearing and [to] incorporate its
findings into the sentencing entry, but it has no obligation to state reasons to
support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–
3177, 16 N.E.3d 659, syllabus. Furthermore, the trial court is not required to
recite “a word-for-word recitation of the language of the statute * * *.” Id. at Pickaway App. No. 18CA1 30
¶ 29. “[A]s long as the reviewing court can discern that the trial court
engaged in the correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be upheld.”
Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a
consecutive sentence contrary to law. Id. at ¶ 37; Bever at ¶ 17; State v. Nia,
8th Dist. Cuyahoga No. 99387, 2013–Ohio–5424, ¶ 22. The findings
required by the statute must be separate and distinct findings; in addition to
any findings relating to the purposes and goals of criminal sentencing. Bever
at ¶ 17; Nia at ¶ 22.
{¶36} Here, the trial court made all of the necessary findings before
imposing consecutive sentences. Further, and importantly, the trial court
stated during the sentencing hearing that the pre-sentence investigation
report was very damaging and revealed extensive criminal conduct,
including juvenile felony offenses, commitments to DYS and adult
convictions for attempted felonious assault and carrying a concealed
weapon. The trial court further noted that Appellant was on post-release
control at the time the current offenses were committed and that Appellant
was in a gang.
{¶37} In light of the foregoing, we cannot conclude that Appellant
failed to receive a meaningful sentencing hearing. Further, with regard to Pickaway App. No. 18CA1 31
Appellant's argument that his trial counsel provided ineffective assistance by
failing to participate in his sentencing hearing, we note his counsel did
participate in the hearing. He explained that he did not file a sentencing
memorandum as the State's memorandum contained accurate information as
to the contents of the pre-sentence investigation that was performed and as
to the merger doctrine. He further asked the court for leniency in light of
Appellant's young age and "rough upbringing." However, accepting
Appellant's argument that counsel did not participate in the sentencing
hearing to the degree expected by Appellant, we still find no prejudice
resulted in light of the fact that the trial court made all of the necessary
findings before imposing consecutive sentences, and those findings were
supported by the record. As such, even if counsel's performance could be
considered deficient, Appellant was not prejudiced by the deficiency.
{¶38} Thus, having found no merit in Appellant's second assignment
of error, it is overruled. Accordingly, the judgment of the trial court is
affirmed.
JUDGMENT AFFIRMED. Pickaway App. No. 18CA1 32
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________ Matthew W. McFarland, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.