[Cite as State v. Fitzpatrick, 2026-Ohio-2523.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
STATE OF OHIO, : : Case No. 24CA4103 Plaintiff-Appellee, : : v. : : DECISION AND JUDGMENT JOHNNY D. FITZPATRICK, : ENTRY : Defendant-Appellant. : :
APPEARANCES:
Karyn Justice, Portsmouth, Ohio, for appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Assistant Scioto County Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Smith, P.J.
{¶1} Appellant, Johnny D. Fitzpatrick, appeals the judgment of the Scioto
County Court of Common Pleas convicting him of two counts of aggravated
trafficking in drugs, tampering with evidence, trafficking in cocaine, and
trafficking in a fentanyl-related compound. On appeal, appellant contends 1) that
his convictions were not supported by sufficient evidence and are against the
manifest weight of the evidence and 2) that the trial court erred when it ordered Scioto App. No. 24CA4103 2
him to serve consecutive sentences. However, because we find no merit to his
assignments of error, the judgment of the trial court is affirmed.
FACTS
{¶2} On September 13, 2023 law enforcement used a confidential informant
to successfully conduct a controlled buy at a Campbell Avenue residence in
Portsmouth. The next day, in addition to conducting surveillance on the Campbell
Avenue residence, law enforcement executed a search warrant during which a large
amount of suspected drugs, drug trafficking material, and drug paraphernalia were
located throughout the residence. Present at the time of the execution of the
warrant were the residents (appellant and Brandi Bevins) and Michael Lewis and
Tony Walker, who resided in Dayton.
{¶3} On October 3, 2023, appellant, Bevins, Lewis, and Walker were
indicted on nine counts, with counts one and two occurring on September 13,
2023, and counts three-nine occurring on September 14, 2023:
Count 1: aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1) and R.C. 2925.03(C)(1)(d), a second-degree felony;
Count 2: aggravated possession of drugs in violation of R.C. 29525.11(A) and R.C. 2911(C)(1)(c), a second-degree felony;
Count 3: aggravated trafficking of drugs in violation of R.C. 2925.03(A)(2) and R.C. 2925.03(C)(1)(d), a second-degree felony;
Count 4: aggravated possession of drugs in violation of R.C. 2925.11(A) and R.C. 2925.11(C)(1)(c), a second-degree felony; Scioto App. No. 24CA4103 3
Count 5: tampering with evidence in violation of R.C. 2921.12(A)(1) and R.C. 2921.12(B), a third-degree felony;
Count 6: trafficking in cocaine in violation R.C. 2925.03(A)(2) and R.C. 2925.03(C)(4)(f), a first-degree felony;
Count 7: possession of cocaine in violation of R.C. 2925.11(A) and R.C. 2925.11(C)(4)(e), a first-degree felony;
Count 8: trafficking in a fentanyl-related compound in violation of R.C. 2925.03(A)(2) and R.C. 2925.03(C)(9)(f), a first-degree felony; and
Count 9: possession of a fentanyl-related compound in violation of R.C. 2925.11(A) and R.C. 2925.11(C)(11)(e), a first-degree felony.
The indictment also contained a forfeiture specification in counts three, six, seven,
eight, and nine for $2,355 in cash. Prior to trial, counts six and seven were
amended to second-degree felonies.
{¶4} Appellant entered a not guilty plea and was tried before a jury along
with co-defendant Bevins on September 16, 2024. At the trial, the State adduced
evidence that the Southern Ohio Drug Task Force (“SODTF”) conducted a
controlled buy from Lewis at the Campbell Avenue residence using a confidential
informant. This confidential informant had purchased drugs at the same Campbell
Avenue residence three or four times before. On September 13, 2023, the
confidential informant entered the Campbell Avenue residence with buy money
and a recording device provided by the SODTF and purchased what later tested as
29.23 grams of methamphetamine. Scioto App. No. 24CA4103 4
{¶5} The SODTF had received information that there were large amounts of
drugs being sold at the Campbell Avenue residence, and also that people were seen
coming and going from the residence. As the SODTF members and other
witnesses described, the Campbell Avenue residence had the markings of a “trap
house.” A “trap house” is a place where the residents have allowed various people
to enter a residence for some benefit and the house then becomes a place for
selling, using, and stashing drugs – a sort of “convenience store” for drug activity.
The confidential informant, who testified, also characterized the Campbell Avenue
residence as a “trap house.”
{¶6} The SODTF obtained a search warrant for the Campbell Avenue
residence, a shotgun-style, single-family dwelling. On September 14, 2023,
members of the SODTF began surveilling the residence about 7:00 a.m. and they
executed the search warrant at 10:30 a.m. When entering the residence, SODTF
realized from the design of the home, someone in the rear bedroom could see what
was going on in the front room, and vice versa. The house had debris and trash
throughout. In the kitchen, the SODTF saw Lewis. From the kitchen, they could
also see appellant seated on a chair in the living room. The SODTF found large
amounts of a crystal-like substance (methamphetamine or its byproduct), scattered
all over the floor in the living room. In fact, the drugs on the floor were so
apparent that members of the SODTF did not have to get on their hands and knees Scioto App. No. 24CA4103 5
to see them. The methamphetamine in the living room was spread around
appellant and on his person.
{¶7} The SODTF found Walker and Bevins in the front room of the
residence. They also found methamphetamine on the floor around where Bevins
was located, but not on her person. The SODTF found syringes and a spoon near
Bevins.
{¶8} In addition to the drugs seen out in the open in several rooms of the
house, law enforcement saw drug paraphernalia including syringes, bindles (papers
used to package drugs), digital scales, a razorblade and credit card used for cutting
and packaging drugs, cell phones, a bag full of numerous empty clear plastic
capsules used for drug trafficking, baggies, and a large amount of lottery tickets
folded into bindles. Law enforcement found a large amount of the bindles in both
the living room and front room located near appellant and Bevins. Law
enforcement also found a torn plastic baggie in the room where appellant was. In
addition, law enforcement found a large amount of cash in excess of $2,300 on
Lewis, including marked money from the controlled buy the day before.
{¶9} During the search, appellant said he resided there at the Campbell
Avenue house. The State also introduced evidence of documents that were signed
by appellant showing his address as the Campbell Avenue residence. Scioto App. No. 24CA4103 6
{¶10} In an interview with law enforcement, Bevins said she had been living
at the Campbell Avenue residence for approximately five months prior to the date
of the search, that she had been dating appellant for about three months prior to the
search, and that both had resided at the Campbell Avenue residence. Bevins
claimed that Lewis had initially pushed his way in the house at Campbell Avenue
to sell drugs. However, testimony revealed that law enforcement received no calls
that drug dealers pushed their way into appellant’s home. Later, Bevins admitted
that she had agreed to let Lewis stay there if he would pay the water bill. She
claimed that she had received no money from Lewis because he had only arrived
two days prior to the execution of the search warrant.
{¶11} Bevins also said that when Lewis arrived, he initially had three
softball-sized bags of drugs, which the SODTF explained was a large amount of
drugs. Bevins said that a week prior to the search warrant Lewis sent his sister and
a male named “DJ” to the Campbell Avenue residence to trap and sell drugs for a
few days. Bevins said that when Lewis arrived, he sent text messages out to
multiple individuals offering up free “testers” of drugs. Those free “testers” were
in small, folded lottery tickets containing the tenth of a gram of drugs. The
SODTF explained that this was Lewis’ attempt to build a client base. Bevins said
that Walker was Lewis’ “assistant.” During the search, the SODTF members
observed Bevins, Lewis, and Walker speaking to one another, back and forth. Scioto App. No. 24CA4103 7
{¶12} At trial, Detective Metzler of the SODTF explained the course and
scope of drug trafficking that the task force investigates. In particular, Metzler
described a source city where the drug originates (like Dayton, where Lewis and
Taylor were from) being shipped to the destination city (like Portsmouth) where it
is sold and used. Metzler described the need for the task force to use confidential
informants to stop distribution and sale. In addition, Metzler described the street
terminology for various drugs and their appearance. Finally, Metzler explained
that the “user amounts” of drugs are those in the range of a gram or two. However,
due to the expense of the drugs, the task force sees the amounts of quarter pounds
to pounds of the drug in the possession of those who are trafficking drugs.
{¶13} In addition to testimony from the confidential informant and members
of the SODTF, the State also called to testify a male drug purchaser whose drugs
of choice were cocaine and fentanyl. This drug purchaser testified he had
purchased drugs from Lewis at the Campbell Avenue residence before (“a half-
dozen times”), which the drug purchaser would describe as a “trap house.” This
drug purchaser testified that Lewis gave out “free testers.”
{¶14} The day of the search warrant, the drug purchaser received a text from
Lewis to come get a “test product” of cocaine and fentanyl at the residence. This
drug purchaser went to get the product that day and testified that the people who
lived in the Campbell Avenue residence were there when he smoked crack cocaine Scioto App. No. 24CA4103 8
and injected fentanyl in the house, although he did not get the drugs off the
residents. Another black male was also there. This drug purchaser said that
fentanyl and cocaine were out in the open and being sold there. The SODTF came
while the drug purchaser was there.
{¶15} Further, the SODTF members testified that a female drug purchaser
showed up during the search warrant with $10 on her person. This amount is
enough to purchase a bindle of meth, which is the going rate for a tenth of a gram.
{¶16} The State presented testimony from the BCI Crime Lab forensic
scientist regarding the identity and amounts of the following substances seized the
day of the search: xylazine and fentanyl - less than .1 gram; methamphetamine -
9.09 grams; methamphetamine - 20.11 grams; cocaine - 7.77 grams; cocaine -
13.18 grams; methamphetamine - 7.85 grams; xylazine and fentanyl - 1.48 grams;
xylazine and fentanyl - 1.78 grams; xylazine and fentanyl - 2.44 grams; xylazine
and fentanyl - 14.22 grams; xylazine and fentanyl - .41 grams; methamphetamine -
1.23 grams; and methamphetamine - 5.8 grams. Some of these items were in
separate paper folded lottery tickets (bindles) as if packaged for individual sale.
{¶17} At the close of evidence in the State’s case, appellant and Bevins
moved for Crim.R. 29 acquittal. Bevins made a general argument, but appellant’s
counsel argued that the State had only shown that Lewis was trafficking, but that
appellant was not complicit in the activities of Lewis. The trial court overruled the Scioto App. No. 24CA4103 9
motions. During closing arguments, the State suggested that appellant and Bevins
were guilty of trafficking under a complicity theory.
{¶18} Appellant testified in his own defense. Appellant testified that he did
not reside at the Campbell Avenue residence at the time of the search warrant or
before, but only moved to the residence after the indictment. Though his testimony
conflicted, he did admit that he stayed there at times. He said that Bevins must
have been lying when she said that he had been living there the months before the
search. Appellant denied he was in the Campbell Avenue residence when the buy
took place on September 13. The day of the search, he claims that drugs were all
over the place because Lewis threw them all over the place. He claimed that the
drugs got on his person when the SWAT team ordered everyone to “get on the
ground,” and he was put on the floor in the process of trying to arrest him.
However, members of the task force claimed he was seated in a chair when they
entered the residence. Appellant also claimed that he did not start seeing Bevins
until after the offense, and that Bevins lied when she said he had been living there
for the months leading up to the search. At trial, he said, “we didn’t let nobody in
the house. Evidently, they went in without permission.” Appellant previously
served more than seven years in federal prison for a carjacking conviction and also
had a conviction for possession of drugs in Scioto County. Scioto App. No. 24CA4103 10
{¶19} The jury found appellant guilty of all counts of the indictment. The
trial court merged certain counts, and the State made election of offenses for
sentencing. Ultimately, appellant was convicted of counts one, three, five, six, and
eight. For these offenses, appellant was sentenced to 3 years on count one; 6 years
on count three; 3 years on count five; 6 years on count six, and 10 to 15 years on
count eight. The trial court ordered the sentences for counts one, three, six and
eight to be served consecutively, and count five to be served concurrently to count
one. Appellant’s total prison term consisted of 25-30 years. Appellant submitted a
timely notice of appeal and raises two assignments of error.
ASSIGNMENTS OF ERROR
I. MR. FITZPATRICK’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
II. THE COURT ERRED WHEN IT ORDERED MR. FITZPATRICK TO SERVE CONSECUTIVE SENTENCES.
ASSIGNMENT OF ERROR I {¶20} In his first assignment of error, appellant contends that his convictions
were not supported by sufficient evidence and were against the manifest weight of
the evidence. Although the appellant was convicted of tampering with evidence,
his trial counsel and counsel on appeal couch their arguments in terms of whether
appellant is guilty of the trafficking counts. On appeal, appellant does not develop
an argument regarding the tampering with evidence conviction. The State counters Scioto App. No. 24CA4103 11
that the jury did not believe appellant’s testimony. The State argues that
appellant’s participation in trafficking went beyond mere presence in the Campbell
Avenue residence; rather, the State claims it was clear that appellant also resided
there and knew about the trafficking. The State asserts that not only was crystal
methamphetamine all over the house but other items were present that showed
trafficking was occurring there.
Standard of Review
{¶21} Because appellant challenges both the sufficiency of the evidence and
the manifest weight of the evidence, we initially set forth both standards of review.
{¶22} A claim of insufficient evidence invokes a due process concern and
raises the question of whether the evidence is legally sufficient to support the
verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997),
syllabus; State v. Blevins, 2019-Ohio-2744, ¶ 18 (4th Dist.). When reviewing the
sufficiency of the evidence, an appellate court's inquiry focuses primarily on the
adequacy of the evidence; that is, whether the evidence, if believed, could
reasonably support a finding of guilt beyond a reasonable doubt. Id. at syllabus.
The standard of review is whether, after viewing the probative evidence and
inferences reasonably drawn therefrom in the light most favorable to the
prosecution, any rational trier of fact could have found all the essential elements of Scioto App. No. 24CA4103 12
the offense beyond a reasonable doubt. E.g., Jackson v. Virginia, 443 U.S. 307,
319 (1979); State v. Jenks, 61 Ohio St.3d 259, 273 (1991).
{¶23} Furthermore, under the sufficiency of the evidence standard, a
reviewing court does not assess “whether the state's evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction.”
Thompkins, supra, at 390 (Cook, J., concurring). Therefore, when reviewing a
sufficiency of the evidence claim, an appellate court must construe the evidence in
a light most favorable to the prosecution. See, e.g., State v. Hill, 75 Ohio St.3d
195, 205 (1996); State v. Grant, 67 Ohio St.3d 465, 477 (1993). A reviewing court
will not overturn a conviction on a sufficiency of the evidence claim unless
reasonable minds could not reach the conclusion the trier of fact did. State v.
Tibbetts, 92 Ohio St.3d 146, 162 (2001); State v. Treesh, 90 Ohio St.3d 460, 484
(2001).
{¶24} “Although a court of appeals may determine that a judgment of a trial
court is sustained by sufficient evidence, that court may nevertheless conclude that
the judgment is against the weight of the evidence.” Thompkins, supra, at 387.
“The question to be answered when a manifest weight issue is raised is whether
‘there is substantial evidence upon which a jury could reasonably conclude that all
the elements have been proved beyond a reasonable doubt.’ ” State v. Leonard,
2004-Ohio-6235, ¶ 81, quoting State v. Getsy, 84 Ohio St.3d 180, 193-194 (1998), Scioto App. No. 24CA4103 13
citing State v. Eley, 56 Ohio St.2d 169 (1978), syllabus. A court that considers a
manifest weight challenge must “ ‘review the entire record, weigh the evidence and
all reasonable inferences, and consider the credibility of witnesses.’ ” State v.
Beasley, 2018-Ohio-493, ¶ 208, quoting State v. McKelton, 2016-Ohio-5735, ¶
328. However, the reviewing court must bear in mind that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67 (2001);
State v. Murphy, 2008-Ohio-1744, ¶ 31 (4th Dist.). “ ‘Because the trier of fact sees
and hears the witnesses and is particularly competent to decide “whether, and to
what extent, to credit the testimony of particular witnesses,” we must afford
substantial deference to its determinations of credibility.’ ” Barberton v. Jenney,
2010-Ohio-2420, ¶ 20, quoting State v. Konya, 2006-Ohio-6312, ¶ 6 (2d Dist.), in
turn quoting State v. Lawson, 1997 WL 476684 (2d Dist. Aug. 22, 1997).
{¶25} Thus, an appellate court will generally defer to the trier of fact on
evidence weight and credibility issues, as long as a rational basis exists in the
record for the fact-finder's determination. State v. Picklesimer, 2012-Ohio-1282, ¶
24 (4th Dist.); accord State v. Howard, 2007-Ohio-6331, ¶ 6 (4th Dist.) (“We will
not intercede as long as the trier of fact has some factual and rational basis for its
determination of credibility and weight.”). Accordingly, if the prosecution
presented substantial credible evidence upon which the trier of fact reasonably
could conclude, beyond a reasonable doubt, that the essential elements of the Scioto App. No. 24CA4103 14
offense had been established, the judgment of conviction is not against the
manifest weight of the evidence. Accord Eastley v. Volkman, 2012-Ohio-2179, ¶
12, quoting Thompkins, supra, at 387, quoting Black's Law Dictionary 1594 (6th
Ed.1990) (a judgment is not against the manifest weight of the evidence when
“ ‘ “the greater amount of credible evidence” ’ ” supports it).
{¶26} Consequently, when a court reviews a manifest weight of the evidence
claim, a court may reverse a judgment of conviction only if it appears that the fact-
finder, when it resolved the conflicts in evidence, “ ‘clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.’ ” Thompkins, supra, at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist. 1983); accord McKelton at ¶ 328. Finally, a reviewing
court should find a conviction against the manifest weight of the evidence only in
the “ ‘exceptional case in which the evidence weighs heavily against the
conviction.’ ” Thompkins, supra, at 387, quoting Martin, supra, at 175; accord
State v. Clinton, 2017-Ohio-9423, ¶ 166; State v. Lindsey, 87 Ohio St.3d 479, 483
(2000).
Legal Analysis
{¶27} At the outset, we acknowledge that for each drug offense count of the
indictment the State was required to prove the identity and amount of drugs
recovered. However, appellant does not take issue with these elements. Scioto App. No. 24CA4103 15
Appellant’s arguments focus solely on whether he was complicit in the trafficking
of the drugs themselves, as the State alleged at trial. We therefore limit our
discussion accordingly.
September 13, 2023 - Count One
{¶28} Count one of the indictment alleges that appellant committed
aggravated trafficking in drugs, pursuant to R.C. 2925.03(A)(1) and (C)(1)(d).
Relevant to our discussion, R.C. 2925.03(A)(1) provides: “[n]o person shall
knowingly * * * sell or offer to sell a controlled substance or a controlled
substance analog.” R.C. 2901.22(B) defines the culpable state of “knowingly”:
A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
{¶29} R.C. 2923.03(A)(2) states that “[n]o person, acting with the kind of
culpability required for the commission of an offense, shall * * * [a]id or abet
another in committing the offense.” “ ‘A conviction for aiding and abetting under
R.C. 2923.03(A)(2) requires the state to prove, beyond a reasonable doubt, “that
the defendant supported, assisted, encouraged, cooperated with, advised, or incited
the principal in the commission of the crime, and that the defendant shared the Scioto App. No. 24CA4103 16
criminal intent of the principal.” ’ ” State v. Crumpton, 2024-Ohio-5064, ¶ 30 (4th
Dist.), quoting State v. Smith, 2022-Ohio-371, ¶ 53 (4th Dist.), quoting State v.
Johnson, 93 Ohio St.3d 240 (2001), syllabus. “ ‘ “Participation in criminal intent
may be inferred from presence, companionship and conduct before and after the
offense is committed.” ’ ” Id., quoting Johnson at 245, quoting State v. Pruett, 28
Ohio App.2d 29, 34 (4th Dist. 1971). Yet, “ ‘ “the mere presence of an accused at
the scene of a crime is not sufficient to prove, in and of itself, that the accused was
an aider and abettor.” ’ ” Id., quoting Johnson at 243, quoting State v. Widner, 69
Ohio St.2d 267, 269 (1982). “ ‘This rule is to protect innocent bystanders who
have no connection to the crime other than simply being present at the time of its
commission.’ ” Id.
{¶30} Further, “[a] person's mere association with a principal offender is not
enough to sustain a conviction based on aiding and abetting; there must be some
level of active participation by way of providing assistance or encouragement.”
State v. Anderson, 2009-Ohio-2521, ¶ 25 (12th Dist.), citing State v. Mootispaw,
110 Ohio App.3d 566, 570 (4th Dist. 1996). “Criminal intent, however, can be
inferred from the presence, companionship and conduct of a criminal defendant
both before and after the offense is committed and may be proven by either direct
or circumstantial evidence.” Id.; citing Mootispaw at 570, citing State v.
McKnight, 2002-Ohio-1971, ¶ 23 (4th Dist.). Scioto App. No. 24CA4103 17
{¶31} “ ‘We further observe that the complicity statute does not require the
state to charge the defendant with complicity.’ ” Crumpton, 2024-Ohio-5064, ¶ 31
(4th Dist.), quoting Smith at ¶ 54. “ ‘Instead, R.C. 2923.03(F) allows the state to
charge the defendant as a principal offender: “[a] charge of complicity may be
stated in terms of [the complicity statute], or in terms of the principal offense.” ’ ”
(Bracketed material in original.) Id., quoting R.C. 2923.03(F).
{¶32} The State presented testimony that this offense occurred on September
13, 2023 at 408 Campbell Avenue, when Lewis sold approximately 29 grams
(roughly an ounce) of methamphetamine. Appellant’s residence was 408 Campell
Avenue and a trap house, where large amounts of drugs were being sold and
people were coming and going at different times. It was the base of operation for
the drugs sales, or a “convenience store” for drugs where a large amount of drugs
were found and stored. The confidential informant and the officers described the
buy at trial, and video evidence supported their testimony. While it is true that
appellant is not seen on the buy video, nor did the confidential informant testify to
appellant’s presence during that specific buy, it is also clear that appellant knew
full well that Lewis was selling drugs from his residence. His girlfriend and
accomplice cooperated and encouraged Lewis by entering an agreement with
Lewis for which she received a benefit (him agreeing to pay the water bill).
Circumstantial evidence obtained during the execution of the search warrant also Scioto App. No. 24CA4103 18
supports the jury’s finding of guilt regarding the controlled buy because the bulk of
the drugs were actually found in the room where the task force found appellant,
and drugs were found on his person. He also attempted to hide or conceal, and was
convicted of the tampering charge, which shows that he had knowledge of the
criminal nature of the enterprise. Circumstantial evidence also showed that
appellant received a benefit of drugs as part of the payment for allowing Lewis to
sell out of the home, because the State presented evidence that he was attempting
to purchase a drug which assists with drug withdrawals (suboxone) when he was in
the county jail awaiting trial.
{¶33} Appellant claimed that he did not aid or abet the principal offenders
because he was supposedly staying at a motel in Wheelersburg. However, rather
than mere association with Lewis, appellant clearly had the culpability of the
principal of the count one trafficking offense. The jury apparently did not believe
appellant’s testimony. Bevins told law enforcement that when Lewis arrived at her
home, he had three softball-size bags of drugs, and that Lewis had sold drugs at her
house within at least the past week. Bevins also said she knew he sent out “testers”
or samples out to drug users. Evidence at the trial showed that both before and
during the execution of the search warrant, at least two other people in addition to
the confidential informant either purchased or attempted to purchase drugs from
that location when appellant was present. In fact, a purchase was made by a user Scioto App. No. 24CA4103 19
who injected fentanyl and smoked crack cocaine in the residence while the
residents were there. Thus, the State presented concrete evidence of three persons
who had purchased or attempted to purchase drugs at the Campbell Avenue
residence, and also that at least some of the persons were at the residence multiple
times to purchase drugs.
{¶34} The State established that the principal actor involving count one was
Lewis, who was from the Dayton area, which is a source city. The task force
members also explained the course of trafficking where members from a source
city seek out persons of a destination city (Portsmouth) to sell drugs. Appellant
and Bevins clearly provided a place in Portsmouth, described as a type of
“convenience store,” where Lewis could sell the drugs. In addition to providing
the place to sell drugs, it is clear the drugs were kept in the residence where
appellant resided with Bevins. Bevins admitted she had agreed to allow the sale of
drugs from her residence in exchange for Lewis’ promise to pay the water bill.
Bevins admitted that she knew about Lewis selling from the home “a couple days
before” and others selling drugs a week prior. Additionally, while the controlled
buy occurred on September 13, the evidence obtained during the search warrant,
and the testimony from the confidential informant and drug purchaser, constitute
significant circumstantial evidence that appellant knew about and provided a safe
haven/locale for the drug business during the controlled buy of September 13. Scioto App. No. 24CA4103 20
{¶35} Appellate courts have held that the providing of a place to sell and
store drugs is sufficient involvement for a drug trafficking conviction. See, e.g.,
State v. Reid, 2012-Oho-5124, ¶ 41-42 (11th Dist.) (defendant guilty of drug
trafficking when he rented the house where drug sale took place and police later
recovered the drugs packaged for sale); State v. Kidd, 2007-Ohio-4113, ¶ 54 (11th
Dist.) (where court held complicity instruction was proper because “[i]f for the
sake of argument, [defendant’s] role in these activities were nothing more than
allowing them to occur in the apartment, she could be found guilty of complicity”);
State v. Scott, 2007-Ohio-303, ¶ 36-42 (5th Dist.) (complicity convictions
supported by sufficient evidence where drug buys occurred at [the defendant’s]
residence and drugs, paraphernalia, and firearms were found in her bedroom).
Thus, even though the confidential informant did not see the appellant on the day
he purchased the drugs, the manifest weight of the evidence supports the jury’s
finding that appellant was complicit in the September 13 controlled buy.
September 14, 2023 - Counts Three, Six and Eight
{¶36} Similarly, there is also substantial evidence that appellant is guilty of
counts three, six, and eight, under a complicity theory. He also claims he had no
control over the residence or drugs and did not participate in the activity in any
way. Appellant’s convictions related to these counts involve drug trafficking
under R.C. 2925.03(A)(2). The definition of drug trafficking under R.C. Scioto App. No. 24CA4103 21
2925.03(A)(2). R.C. 2925.03(A)(2) states: “[n]o person shall knowingly * * *
[p]repare for shipment, ship, transport, deliver, prepare for distribution, or
distribute a controlled substance or a controlled substance analog, when the
offender knows or has reasonable cause to believe that the controlled substance or
a controlled substance analog is intended for sale or resale by the offender or
another person.”
{¶37} Ohio courts have held that a drug trafficking conviction under a
complicity theory does not require that the accomplice offender possess the drugs,
as long as the State proves the principal offender possessed the drugs incident to
the trafficking. See, e.g., State v. McGowan, 2005-Ohio-1335 ¶ 18-22 (7th Dist.)
(conviction upheld where the defendant provided transportation to facilitate a drug
sale, even though he never possessed the drugs); State v. Wilcoxen, 2003-Ohio-
6061, ¶ 13 (2d Dist.) (evidence sufficient for drug trafficking under a complicity
theory where defendant permitted the principal offender to carry on the drug sales
from her home and shared in the proceeds of the sale); State v. Peavy, 2002-Ohio-
5067, ¶ 11, 27 (8th Dist.) (where court upheld a conviction for trafficking when
defendant acted as a look out and was complicit to the drug trafficking even though
he himself did not possess the drugs).
{¶38} However, in the instant case, there is ample evidence that appellant
both constructively possessed and had actual possession over some of the drugs, as Scioto App. No. 24CA4103 22
they were found on his person. Ample evidence shows appellant was an
accomplice to Lewis in the drug trafficking offenses related to the September 14,
2023 search warrant. Not only was he present during the sale to the male drug
purchaser that day as well as when the female potential buyer showed up, he
worked with Bevins to provide the trap house residence for the transaction.
{¶39} “ ‘To sustain an R.C. 2925.03(A)(2) trafficking conviction as a
principal offender, the state must prove that a defendant had control over, i.e.,
possessed, the illegal substance.’ ” State v. Crumpton, 2024-Ohio-5064, ¶ 32 (4th
Dist.) (Emphasis added.), quoting State v. Smith, 2022-Ohio-371, ¶ 59 (4th Dist.),
citing State v. Cabrales, 2008-Ohio-1625, ¶ 30. In the instant case, the State
presented a large amount of evidence that Lewis, the principal, possessed the
drugs. In contrast, the State presented evidence that appellant was an accomplice,
and not the principle of the drug trafficking offenses.
{¶40} Possession “means 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.” R.C. 2925.01(K). “ ‘Constructive possession exists when an individual
knowingly exercises dominion and control over an object, even though that object
may not be within his immediate physical possession.’ ” State v. Carr, 2025-Ohio-
2583, ¶ 27 (4th Dist.), quoting State v. Hankerson, 70 Ohio St.2d 87, (1982), Scioto App. No. 24CA4103 23
syllabus. “For constructive possession to exist, the state must show that the
defendant was conscious of the object's presence.” Id., citing Hankerson, 70 Ohio
St.2d at 91; State v. Kingsland, 2008-Ohio-4148, ¶ 13 (4th Dist.). “Both dominion
and control, and whether a person was conscious of the object's presence, may be
established through circumstantial evidence.” Carr at ¶ 28, citing State v. Foster,
2023-Ohio-746, ¶ 27 (4th Dist.) and State v. Brown, 2009-Ohio-5390, ¶ 19 (4th
Dist.).
{¶41} “ ‘Furthermore, to establish constructive possession the state need not
show that the defendant had “[e]xclusive control” over the contraband.’ ” Carr at
¶ 29, quoting State v. Whitehead, 2020-Ohio-479, ¶ 91 (4th Dist.), quoting State v.
Tyler, 2013-Ohio-5242, ¶ 24 (8th Dist.). Additionally, “[m]ultiple persons may
have joint constructive possession of an object.” Id., citing State v. Philpott, 2020-
Ohio-5267, ¶ 67 (8th Dist.); State v. Wolery, 46 Ohio St.2d 316, 332-329
(“[p]ossession * * * may be individual or joint” and “control or dominion may be
achieved through the instrumentality of another”). Further, “[a]lthough a
defendant's mere proximity is in itself insufficient to establish constructive
possession, proximity to the object may constitute some evidence of constructive
possession.” State v. Price-Tuggle, 2026-Ohio-1027,¶ 43 (4th Dist.), citing State v.
Fry, 2004-Ohio-5747, ¶ 40 (4th Dist.). Thus, “ ‘presence in the vicinity of
contraband, coupled with another factor or factors probative of dominion or control Scioto App. No. 24CA4103 24
over the contraband, may establish constructive possession.’ ” Id., quoting
Kingsland, 2008-Ohio-4148, ¶ 13 (4th Dist.).
{¶42} Here, drugs were actually found on appellant, and surrounding him on
the floor was a torn baggie and crystal meth to where it appeared he attempted to
destroy or render unusable at least some of the evidence when the SWAT team
entered the residence. Further, the State introduced evidence that appellant
constructively possessed the drugs because a large quantity of the drugs were
actually found in the room where he was located, and the circumstantial evidence
showed appellant knew they were there. Not only were large quantities of various
drugs found throughout the home where appellant resided in amounts that
exceeded personal use amounts, but a good quantity were wrapped for individual
sale. In addition, these drugs were found in the common areas of the small
residence sitting out in plain view. The testimony showed that one could see the
drugs and actions of others in the home from one end of the residence to another.
Appellant’s actions of trying to conceal or alter the evidence taken with the large
amount of drugs throughout and found on his person shows his knowledge of the
drugs and the activities going on in that house. In fact, there is circumstantial
evidence from the large amount of bindles found in the small room where he was
located that he may personally have been packaging or assisting with the inventory
of the drugs themselves. The exhibit that shows the empty capsules used for drug Scioto App. No. 24CA4103 25
packaging in the bathroom of the home and their location seems to link their
presence more with the residents of the home, than with Lewis or Taylor. Thus, it
is clear that appellant possessed and prepared the drugs for sale, along with Lewis.
{¶43} Further, the amounts of the drugs found is circumstantial evidence of
drug trafficking, because “possession of a large quantity of narcotics is commonly
recognized as significant circumstantial evidence of intent to distribute in
narcotics.” State v. Robison, 2026-Ohio-1223, ¶ 34 (4th Dist.), citing 1 Wharton’s
Criminal Evidence § 3:5 (15th ed.). “Possession of a large quantity of drugs, large
amounts of cash, plastic baggies, and scales, among other indicia of trafficking,
provide persuasive circumstantial evidence that tends to prove a violation of R.C.
2925.03(A)(2).” State v. Birdsong, 2024-Ohio-1744, ¶ 43 (11th Dist.), citing State
v. Floyd, 2019-Ohio-4878, ¶ 32 (7th Dist.). In addition to the drug paraphernalia,
individually packaged drugs, and drugs on the floor of the front room, in other
areas of the house there were two scales, cell phones, credit cards and a razorblade
for cutting drugs, lotto tickets used to bindle the drugs for individual sale, and a
large amount of money found on Lewis in the kitchen. The bulk of the drugs,
including those packaged for individual sale, was found in the room where
appellant was located. “It has long been established that otherwise innocuous
objects such as bags, money, or cell phones can be used as criminal tools in drug
trafficking and these items may constitute circumstantial evidence for drug Scioto App. No. 24CA4103 26
trafficking.” State v. Cobb, 2024-Ohio-458, ¶ 17 (8th Dist.), citing State v.
Hawthorne, 2016-Ohio-203, ¶ 21 (8th Dist.), citing State v. Bowling, 2010-Ohio-
3595, ¶ 60 (8th Dist.). Accordingly, while some of these items could be typical
household items, in this instance, they were not.
{¶44} Moreover, the State adduced testimony that at least three individuals
had attempted or had bought drugs at the residence (conclusively twice when
appellant was there), as well as testimony from witnesses that the residence was a
“trap house.” During trial the confidential informant said he had been to the house
to purchase drugs three or four times, the male drug user said he had been there a
half dozen times, and then another female drug purchaser showed up the day of the
search. Additionally, what can be gleaned from Bevins’ statement is that more
than one person was selling drugs from the Campbell Avenue residence. Task
force members also explained to the jury the drug trafficking trade and such things
as what would constitute personal use amounts for drugs, versus amounts found in
trafficking operations.
{¶45} In sum, our review of the record shows that the State adduced ample
credible evidence to sustain the convictions. We do not believe that the evidence
weighs heavily against appellant’s convictions, under a theory of complicity for
count one and clearly under a theory of complicity for counts three, six, and eight.
We therefore overrule appellant’s first assignment of error. Scioto App. No. 24CA4103 27
ASSIGNMENT OF ERROR II
{¶46} In his second assignment of error, appellant contends that the trial
court erred when it imposed consecutive sentences. Appellant argues that his
conduct does not warrant the sentence he received. Further, appellant claims that
Lewis was the principal offender. He also asserts that the harm caused by the
multiple offenses was not so great or unusual to justify consecutive sentences. The
State submits that appellant’s lengthy history of prior felony convictions and the
multiple controlled substances found in the Campbell Avenue residence render the
trial court’s sentences appropriate. As such, the State emphasized that the
consecutive sentences were necessary to protect the public from controlled
substances being brought into and trafficked within Scioto County.
{¶47} When reviewing felony sentences, appellate courts apply the standard
set forth in R.C. 2953.08(G)(2). State v. Spencer, 2024-Ohio-59, ¶ 13 (4th Dist.).
See e.g., State v. Nelson, 2023-Ohio-3566, ¶ 63 (4th Dist.). R.C. 2953.08(G)(2)(a)
provides that “[t]he appellate court's standard for review is not whether the
sentencing court abused its discretion.” Instead, the statute authorizes appellate
courts to “increase, reduce, or otherwise modify a sentence” “if it clearly and
convincingly finds either of the following:”
(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division Scioto App. No. 24CA4103 28
(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;
(b) That the sentence is otherwise contrary to law.
{¶48} The Supreme Court of Ohio has recognized that R.C. 2953.08(G)(2)
means that appellate courts ordinarily “ ‘defer to trial courts’ broad discretion in
making sentencing decisions.’ ” State v. Gwynne, 2023-Ohio-3851, ¶ 11, quoting
State v. Rahab, 2017-Ohio-1401, ¶ 10; see also State v. Marcum, 2016-Ohio-1002,
¶ 23 (appellate court's review of whether sentence is clearly and convincingly
contrary to law under R.C. 2953.08(G) is deferential to sentencing court); State v.
Collins, 2024-Ohio-2891, ¶ 22 (4th Dist.). Thus, R.C. 2953.08(G)(2) provides that
an appellate court may increase, reduce, or otherwise modify consecutive
sentences only if the record does not “clearly and convincingly” support the trial
court's R.C. 2929.14(C)(4) consecutive-sentence findings. The clear-and-
convincing standard for appellate review in R.C. 2953.08(G)(2) is written in the
negative. Gwynne, supra, at ¶ 13. Moreover, “clear and convincing evidence” is
“that measure or degree of proof which is more than a mere ‘preponderance of the
evidence,’ but not to the extent of such certainty as is required ‘beyond a
reasonable doubt’ in criminal cases, and which will produce in the mind of the trier
of facts a firm belief or conviction as to the facts sought to be established.” Cross
v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. Scioto App. No. 24CA4103 29
{¶49} In general, a statutory presumption exists in favor of concurrent
sentences pursuant to R.C. 2929.41(A) and R.C. 2929.14(C)(4) governs the
imposition of consecutive terms of imprisonment. Collins, supra, at ¶ 23. To
justify the imposition of consecutive terms of imprisonment, “a trial court must
make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate its findings into its sentencing entry, but the court has no obligation to
state reasons to support its findings.” State v. Blair, 2019-Ohio-2768 ¶ 52 (4th
Dist.), citing State v. Bonnell, 2014-Ohio-3177, syllabus. This Court has explained
the findings required to support the imposition of consecutive sentences as follows:
Under the tripartite procedure set forth in R.C. 2929.14(C)(4), prior to imposing consecutive sentences a trial court must find that: (1) consecutive sentences are 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 (3) that one of three circumstances specified in the statute applies.
(Emphasis added.) Cottrill at ¶ 14, and Collins at ¶ 24, quoting R.C.
2929.14(C)(4)(a)-(c).
{¶50} Further, as we outlined in Cottrill, and more recently in Collins, the
three circumstances are:
(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. Scioto App. No. 24CA4103 30
(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.
(Emphasis added.) Cottrill at ¶ 14, and Collins at ¶ 24, quoting R.C.
Legal Analysis.
{¶51} Appellant does not argue that the trial court did not make the necessary
findings at the sentencing hearing or in the sentencing entry. Instead, he claims
that his conduct did not warrant the imposition of consecutive sentences totaling 25
to 30 years in prison. He claims his role was limited, and his conduct was not so
great or unusual as to justify consecutive sentences.
{¶52} Appellant argues that the evidence demonstrates that other individuals,
and not appellant, were distributing drugs from the home. The record supports the
trial court’s sentence, however, because the task force members testified that the
drug trade occurs in some instances where dealers from a source city seek out a
target in a destination city to sell drugs. The fact that appellant opened up his
residence resulted in a large amount of drugs being introduced into the region. Scioto App. No. 24CA4103 31
Further, as the State argued at sentencing, more than one individual was using the
residence for distribution (not just Lewis) and a substantial amount of narcotics
were being trafficked there. Witnesses described the residence as a “trap house,”
or “convenience store” for drug sales. We also observed that the amount of
packaging material and drugs were not just found throughout the home but were
directly tied to appellant.
{¶53} While appellant cites the fact he at the most aided and abetted and was
not the principal offender, these offenses were committed as part of a course of
conduct, since numerous drug buys occurred at this residence. The record reflects
that multiple types of drugs were being sold from the residence. Although most of
the drugs were found at the same time, there was abundant evidence that
transactions at the residence occurred on multiple days with multiple users and in
the space of a few hours in the morning two drug users had already stopped by to
purchase drugs. For example, in Bevins’ statement, she indicated that Lewis was
giving out “testers” or samples of the product to build clientele in the Scioto
County area. The trial court could glean from this fact that appellant’s actions
resulted in significant harm to the community and appellant’s culpability was more
serious than someone who merely assisted one or two isolated buys of lesser
amounts of drugs. Scioto App. No. 24CA4103 32
{¶54} In addition, other factors in appellant’s case are present in the record to
warrant his lengthy prison term. For instance, pending trial, appellant picked up
three separate felony indictments including first and second-degree felonies of a
violent nature. He had a felony conviction record dating back to 1998, including
but not limited to trafficking in marijuana, aggravated robbery, carjacking (for
which he received an 87-month prison sentence), and felony drug possession.
Further, appellant showed no remorse for his conduct.
{¶55} Based on the foregoing, we cannot find that the trial court's sentence is
clearly and convincingly unsupported by the record. Furthermore, we cannot find
that the record clearly and convincingly shows that appellant's sentence is contrary
to law. Accordingly, we overrule the second assignment of error.
{¶56} Having found no merit to either of appellant’s assignments of error, the
judgment of the trial court is affirmed.
JUDGMENT AFFIRMED. Scioto App. No. 24CA4103 33
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Scioto 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 60 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 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period set forth in the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 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.
Abele, J. and Wilkin, J. concur in Judgment and opinion.
For the Court,
__________________ Jason A. Smith Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.