State v. Jordan

Opinion

[Cite as State v. Jordan, 2026-Ohio-2625.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

State of Ohio, : : Plaintiff-Appellee, : Case No. 24CA4070 : v. : : DECISION AND Adrienne L. Jordan, : JUDGMENT ENTRY : Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Adam J. Banks, Amlin, Ohio, for appellant.

Shane A. Tieman, Scioto County Prosecuting Attorney, and Matthew F. Loesch, Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee. _____________________________________________________________

Smith, P.J.

{¶1} Appellant, Adrienne L. Jordan, appeals the judgment of the Scioto

County Court of Common Pleas convicting her of one count of possession of

cocaine, a first-degree felony in violation of R.C. 2925.11(A) and (C)(4)(f), as

well as one count of possessing criminal tools, a fifth-degree felony in violation of

R.C. 2923.24(A) and (C). On appeal, appellant contends 1) the trial court erred in

denying her motion to suppress evidence; and 2) that she was denied her right to a

fair trial in violation of the U.S. and Ohio Constitutions. However, because we Scioto App. No. 24CA4070 2

find no merit to the arguments raised under either of appellant’s assignments of

error, they are overruled and the judgment of the trial court is affirmed.

FACTS

{¶2} On June 29, 2020, Appellant was indicted, along with her co-defendant

Sashia Johnson, for the following offenses:

Count One: Trafficking in Cocaine, a first-degree felony in violation of R.C. 2925.03(A)(2) and (C)(4)(g);

Count Two: Possession of Cocaine, a first-degree felony in violation of R.C. 2925.11(A) and (C)(4)(f); and

Count Three: Possessing Criminal Tools, a fifth-degree felony in violation of R.C. 2923.24(A) and (C).

{¶3} Count One included two specifications. The first specification stated

that appellant had possessed, sold, or had offered to sell approximately 170 grams

of cocaine and that, as a result, she was a major drug offender. The second

specification stated that appellant was the owner or possessor of a Cadillac

Escalade which was contraband and/or property derived from or through the

commission or facilitation of the offense, and/or was an instrumentality the

offender used or intended to use in the commission of the offense and was subject

to forfeiture pursuant to R.C. 2941.1417(A), R.C. 2981.02, and R.C. 2981.04. Scioto App. No. 24CA4070 3

Count Two contained identical specifications. Count Three referenced the same

Cadillac being used criminally in the commission of a felony.

{¶4} The charges stemmed from a traffic stop that occurred on the night of

June 9, 2020, while appellant was a passenger in the Cadillac at issue, which was

being driven by Sashia Johnson. Trooper Nick Lewis with the Ohio State

Highway Patrol initially began to follow the Cadillac after an anonymous tip had

been related to him by dispatch stating that a black Cadillac SUV would be

travelling south on U.S. Route 23, driven by appellant and Johnson, and that the

two women were carrying narcotics. Lewis observed the Cadillac heading south

on U.S. Route 23 while he was sitting stationery in the median talking to Trooper

Kuehne, who was located in a different vehicle. Lewis pulled out and followed the

Cadillac for three to four miles during which time he paced the vehicle traveling 65

m.p.h. in a 60-m.p.h. zone and then observed the vehicle enter into a construction

zone at 55 m.p.h. despite being marked a 35-m.p.h. zone.

{¶5} Trooper Lewis initiated a stop of the vehicle, initially approaching the

passenger side of the vehicle to ask for identification. Trooper Kuehne arrived at

that time and commented to Trooper Lewis when he approached that he could

smell marijuana. Trooper Lewis then moved to the driver’s side of the vehicle and

briefly spoke to the driver before opening her vehicle door and ordering her to step

out. When the door was opened, Lewis observed marijuana residue on a sock that Scioto App. No. 24CA4070 4

was stuck inside the door. After appellant got out of the vehicle upon Trooper

Kuehne’s request, she informed him that she had marijuana and asked him if she

could get back in the vehicle to get it. Trooper Kuehne did not permit her to do

that. Both women were patted down, placed in the back of the cruiser, and a

search of the vehicle followed.

{¶6} The search ultimately yielded approximately 170 grams of cocaine

which was found in the center front seat console of the vehicle, located between

the driver and front passenger seats. A cell phone charging cord was plugged into

the console where the bag of cocaine was found. Marijuana was also recovered

from appellant’s purse. Appellant and Johnson, her co-defendant, were both

placed under arrest and read their Miranda rights. Prior to being taken to jail,

appellant’s mother, who was the registered owner of the vehicle, arrived at the

scene. Appellant told her mother she was sorry through the window of the cruiser.

While the two women were in jail, they each made several calls to their mothers

attempting to locate money for a bond, a bondsperson, and an attorney who would

represent both of them.

{¶7} Appellant pled not guilty to the charges and the matter proceeded

through discovery. It appears from the record that appellant and her co-defendant

initially and intentionally hired the same attorney. The State filed a motion on

August 3, 2020, on “Conflicting Representation,” claiming there was an indication Scioto App. No. 24CA4070 5

there could be a conflict of interest with respect to the two defendants having the

same counsel and suggesting the trial court had a duty to inquire into the matter.

Appellant filed a memorandum in opposition to the State’s motion on August 21,

2020, denying there was a conflict and attaching Conflict Waivers signed by

herself and her co-defendant. Appellant argued that she and her co-defendant

claimed innocence and wished to present a unified defense. She further claimed

that neither had a desire to present a defense strategy in opposition to the other and

that they were “in harmony” with one another.

{¶8} While the conflict issue was still pending, appellant filed a motion to

suppress evidence on October 2, 2020. In her motion, she challenged the initial

stop as well as the search of the vehicle and sought suppression of the results of the

search. The motion also sought suppression of statements made by appellant.

Thereafter, on November 9, 2020, the trial court issued a decision finding a

“serious potential for a conflict of interest in dual representation of both

defendants” and removed counsel from representing either appellant or her co-

defendant. Appellant appealed that decision to this Court, but the appeal was

unsuccessful, as evidenced by this Court’s decision issued on April 28, 2022.

Appellant then appealed our decision to the Supreme Court of Ohio, which

ultimately declined to accept jurisdiction on August 3, 2023. Scioto App. No. 24CA4070 6

{¶9} The trial court held a pretrial conference on August 25, 2023, and

thereafter filed a judgment entry on September 5, 2023, stating that it had been

informed appellant wished to retain counsel and that it was continuing an

upcoming pretrial conference as a result. The transcript from that hearing indicates

that appellant informed the court she had a bad experience with appointed counsel

(Aaron Triplett) in the past and that she wanted to speak to her family about

coming up with funds to hire a new attorney. Thereafter, on September 15, 2023,

an entry was filed stating appellant tested positive for marijuana, that appellant was

being held in contempt, and ordering appellant be remanded to jail. Appellant filed

an affidavit of indigency on September 19, 2023, and it appears by that time the

trial court had already appointed Aaron Triplett to represent her. Hearings were

held on September 15, 2023, and October 2, 2023, and appellant made no

complaint about Attorney Triplett.

{¶10} A suppression hearing was held on November 29, 2023. Trooper

Nick Lewis testified on behalf of the State, explaining the speed violations he

observed which led to the initial stop as well as the detection of an odor of

marijuana which expanded the stop and led to the detention of both women. He

testified regarding appellant’s statement to Trooper Kuehne indicating she had

marijuana in the vehicle, as well as the discovery of marijuana in appellant’s purse.

He also testified regarding the search of the vehicle and the eventual discovery of Scioto App. No. 24CA4070 7

cocaine in the console. Trooper Lewis’ cruiser cam video was played and admitted

into evidence along with several photographs, one of which demonstrated what the

trooper described as marijuana residue on top of a sock that was stuck in the

drivers’ side vehicle door. After the suppression hearing was conducted, appellant

retained counsel on December 5, 2023, as evidenced by a notice of appearance

filed the same date. The trial court issued a decision on December 19, 2023,

denying appellant’s motion to suppress.

{¶11} The matter thereafter proceeded to a jury trial. Appellant and her co-

defendant were jointly tried, albeit with separate counsel. The State introduced

four witnesses including Trooper Lewis, Lauren Ditto, Sergeant Drew Kuehne, and

Captain Ron Davis. Trooper Lewis and Sergeant Kuehne both testified regarding

their involvement in the initial stop, detention, search, discovery of drugs, and later

review of the cruiser cam video. Portions of the cruiser cam videos were played

for the jury, and a listening aid was provided to assist the jurors in listening to the

video. The troopers’ testimony will be further discussed below. Lauren Ditto, a

forensic scientist with the Ohio Bureau of Criminal Investigation, testified

regarding her analysis of the substances sent for testing. She testified that the

“white rock-like substance” was found to be cocaine with an approximate gram

weight of 168.9770. Scioto App. No. 24CA4070 8

{¶12} Captain Ron Davis is the Administrative Captain of the Scioto County

Sheriff’s Office. He testified regarding the telephone system that is used to record

inmate phone calls placed from the jail. During his testimony, he identified two

different calls placed from appellant to her mother as well as two different calls

placed by appellant’s co-defendant to her own mother. Excerpts from all four calls

were played for the jury, over the objection of defense counsel. Although the trial

court denied the objection, it provided a limiting instruction regarding the

consideration of jail calls as part of its general jury instructions that were provided

at the close of the case. The contents of those calls will be discussed in detail

below.

{¶13} The State rested its case, at which time appellant moved the court for

an acquittal pursuant to Crim.R. 29(A). The trial court denied the motion and the

defense rested without presenting any evidence. After the matter was submitted to

the jury for deliberation, the jury sent a question back asking to be able to view the

cruiser cam video again. The jury was brought back in and allowed to watch the

video. It was permitted once again to use the listening aid that it used during trial,

however, it was not permitted to take the video or the listening aid back to the jury

room with it.

{¶14} The jury ultimately acquitted appellant on the drug trafficking charge

and found her guilty of possession of cocaine and criminal tools. However, the Scioto App. No. 24CA4070 9

verdict form for possession of cocaine specified that the amount of cocaine

possessed was less than 100 grams, which did not support the major drug offender

specification as charged in the indictment. The trial court sentenced appellant to

serve a mandatory minimum sentence of seven years to an indefinite maximum

prison term of up to ten years and six months for the possession of cocaine charge.

It sentenced her to a prison term of six months on the possession of criminal tools

charge and ordered the two prison terms to be served concurrently to one another

but consecutive to a sentence appellant was already serving. The court further

ordered the Cadillac at issue be forfeited to the State of Ohio and it imposed a fine

of $20,000.

{¶15} Appellant thereafter filed her timely appeal, setting forth two

assignments of error for our review.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT JORDAN’S MOTION TO SUPPRESS EVIDENCE.

II. DEFENDANT-APPELLANT JORDAN WAS DENIED HER RIGHT TO A FAIR TRIAL IN VIOLATION OF THE U.S. AND OHIO CONSTITUTIONS. Scioto App. No. 24CA4070 10

ASSIGNMENT OF ERROR I

{¶16} In her first assignment of error, appellant contends that the trial court

erred in denying her motion to suppress. Appellant’s brief contains two “Issues

presented for review” under this assignment of error, which are as follows:

1. Whether the evidence obtained during the search and seizure of the defendant was in violation of her United States and Ohio constitutional rights?

2. Whether the duration of the stop extended beyond the normal time frame for the purpose of the original stop such to render the search an illegal seizure?

The State’s responses to each issue will be discussed in more detail below,

however, it generally contends there is no merit to any of the arguments raised

under this assignment of error.

Standard of Review and Guiding Legal Principles

{¶17} Appellate review of a motion to suppress presents a mixed question of

law and fact. State v. Williams, 2024-Ohio-2146, ¶ 16 (4th Dist.), citing State v.

Burnside, 2003-Ohio-5372, ¶ 8. The trial court acts as the trier of fact at a

suppression hearing and is in the best position to resolve factual questions and

evaluate witness credibility. State v. Sheets, 2023-Ohio-2591, ¶ 45 (4th Dist.),

citing State v. Leonard, 2017-Ohio-1541, ¶ 15 (4th Dist.), citing Burnside at ¶ 8.

This is because the trial court is able to “ ‘gauge the witnesses’ demeanor, gestures,

and voice inflections, and to use these observations to weigh their credibility.’ ” Scioto App. No. 24CA4070 11

State v. Meadows, 2022-Ohio-287, ¶ 18 (4th Dist.), quoting State v. Hammond,

2019-Ohio-4253 ¶ 56 (4th Dist.).

{¶18} However, as noted in Meadows, “ ‘[t]he trier of fact is free to believe

all, part, or none of the testimony of any witness[.]’ ” Id. As a result, appellate

courts defer to the trial court's findings of fact if they are supported by competent,

credible evidence. Sheets at ¶ 45, citing State v. Gurley, 2015-Ohio-5361, ¶ 16

(4th Dist.). Accepting the trial court's findings of fact as true, appellate courts then

“independently determine whether the trial court reached the correct legal

conclusion in analyzing the facts of the case.” Sheets at ¶ 45, citing Gurley at ¶ 16,

in turn citing State v. Roberts, 2006-Ohio-3665, ¶ 100.

{¶19} The Fourth Amendment to the United States Constitution and Article

I, Section 14 of the Ohio Constitution provide that persons have a right to be free

from unreasonable searches and seizures and that probable cause is necessary for

searches. The exclusionary rule protects this constitutional guarantee and

mandates the exclusion of evidence obtained from an unreasonable search and

seizure. State v. Shrewsbury, 2014-Ohio-716, ¶ 14 (4th Dist.), citing State v.

Emerson, 2012-Ohio-5047, ¶ 15. The same protection is provided by Article I,

Section 14 of the Ohio Constitution. Scioto App. No. 24CA4070 12

Legal Analysis

Initial Stop

{¶20} Appellant first argues that the initial stop of the vehicle was invalid

because it stemmed from an anonymous tip. She also contends there was no

cruiser video to confirm a speed violation, suggesting that Trooper Lewis “utilized

these alleged traffic violations to stop and search the vehicle and interrogate the

occupants.” The State responds by arguing that Ohio law does not require that

police have probable cause before following a vehicle. The State further argues

that the trooper possessed reasonable suspicion to stop the vehicle based upon his

observation of a speeding violation.

{¶21} A traffic stop is a type of seizure and constitutionally valid only if an

officer has reasonable and articulable suspicion that a motorist has committed, is

committing, or is about to commit a crime. State v. Williams, supra, at ¶ 17, citing

State v. Mays, 2008-Ohio-4539, ¶ 7 and Delaware v. Prouse, 440 U.S. 648, 663

(1979). Probable cause “is a stricter standard than reasonable and articulable

suspicion” and “is a complete justification for a traffic stop[.]” Mays at ¶ 23, citing

State v. Evans, 67 Ohio St.3d 405, 411 (1993). The Supreme Court of the United

States has held that probable cause is “defined in terms of facts and circumstances

‘sufficient to warrant a prudent man in believing that the (suspect) had committed

or was committing an offense.’ ” Gerstein v. Pugh, 420 U.S. 103, 111-112 (1975), Scioto App. No. 24CA4070 13

quoting Beck v. Ohio, 379 U.S. 89, 91 (1964). See also State v. Jordan, 2021-

Ohio-3922, ¶ 19.

{¶22} “ ‘A police officer may stop the driver of a vehicle after observing a

de minimis violation of traffic laws.’ ” Williams, supra, at ¶ 19, quoting State v.

Guseman, 2009-Ohio-952, ¶ 20 (4th Dist.). One such traffic law is the requirement

that a motorist drive within the posted speed limit, including within a construction

zone. See R.C. 4511.21. “ ‘Moreover, the Supreme Court of Ohio has held,

“[w]here a police officer stops a vehicle based on probable cause that a traffic

violation has occurred or was occurring, the stop is not unreasonable under the

Fourth Amendment ... even if the officer had some ulterior motive for making the

stop[.]” ’ ” State v. Smith, 2025-Ohio-5752, ¶ 46 (4th Dist.), quoting State v.

Andrews, 2025-Ohio-2803, ¶ 22 (4th Dist.), in turn quoting Dayton v. Erickson, 76

Ohio St.3d 3 (1996), paragraph one of the syllabus.

{¶23} Trooper Lewis testified during the suppression hearing that upon

following the vehicle, he paced it going 65 m.p.h. in a 60-m.p.h. zone. He then

observed the vehicle enter a construction zone with a posted speed limit of 35

m.p.h. while traveling 55 m.p.h. These observations by Trooper Lewis were

sufficient to establish probable cause to justify a traffic stop, aside from the

anonymous tip that was received. Stated another way, even if the trooper initially

began following appellant based upon an ulterior motive stemming from the Scioto App. No. 24CA4070 14

anonymous tip, the subsequent observation of the traffic violations legitimized the

stop and removed any requirement that the tip be determined to be reliable before

acting upon it.

{¶24} With respect to appellant’s argument that there was no cruiser video

demonstrating that a speed violation occurred, Trooper Lewis testified at length

regarding his observation of two speeding violations and the trial court obviously

found his testimony to be credible. We must be mindful that “ ‘observing and

evaluating the credibility of witnesses is the province of the trial court and we

defer to the trial court’s judgment here.’ ” Williams at ¶ 23, quoting State v.

Harris, 2012-Ohio-4237, ¶ 22. Moreover, as this Court stated in Williams, “there

is no requirement for an officer’s observation of a traffic violation [to] be recorded

on video.” Williams at ¶ 23, citing State v. Lemaster, 2012-Ohio-971, ¶ 12 (4th

Dist.) (“Competent, credible evidence in the form of the trooper’s testimony from

the suppression hearing supports this finding despite the fact that the violation was

not caught on the video.”). Thus, based upon the foregoing, we conclude Trooper

Lewis had probable cause to stop appellant’s vehicle.

Detention and Search

{¶25} Appellant next argues that Trooper Lewis’ act of opening the driver’s

vehicle door constituted an illegal search. She further argues that she and her co-

defendant were unlawfully detained. The State responds by arguing that because Scioto App. No. 24CA4070 15

the troopers encountered an odor of raw marijuana upon approaching the vehicle,

they immediately acquired probable cause to search the vehicle. The State further

argues that the order for both women to get out of the vehicle was reasonable and

permissible. Finally, the State argues that because the troopers detected an odor of

raw marijuana and then plainly saw evidence of marijuana being illegally

transported in the vehicle, any extension of the length of the stop at that point was

lawful and appropriate in order to conduct a search for illegal controlled substances

and contraband.

{¶26} We have already determined that the initial stop of the vehicle

appellant was traveling in was valid. Aside from the fact that law enforcement had

received an anonymous tip that a vehicle fitting the description of the vehicle at

issue would be passing through and the occupants were carrying a large amount of

narcotics, because Trooper Lewis observed two speeding violations, he had

probable cause to stop the vehicle based upon the traffic violations alone.

Furthermore, “[o]nce a driver has been lawfully stopped, an officer may order the

driver to get out of the vehicle without any additional justification.” State v.

Burkhart, 2016-Ohio-7534, ¶ 11 (4th Dist.), citing State v. Kilbarger, 2012-Ohio-

1521, ¶ 16 (4th Dist.), in turn citing State v. Huffman, 2011-Ohio-4668, ¶ 8 (2d

Dist.); State v. Jackson, 2022-Ohio-4365, ¶ 13 (4th Dist.) (officer may order driver

out of car and needs no justification beyond that necessary for the initial stop). See Scioto App. No. 24CA4070 16

also Pennsylvania v. Mimms, 434 U.S. 106, 111, fn. 6 (1977) and State v.

Alexander-Lindsey, 2016-Ohio-3033, ¶ 14 (4th Dist.) (“Officers can order a driver

and a passenger to exit the vehicle, even absent any additional suspicion of a

criminal violation.”).

{¶27} Even though Trooper Lewis had a valid reason to stop the vehicle,

“[i]t is well-established that the scope and duration of a routine traffic stop ‘must

be carefully tailored to its underlying justification * * * and last no longer than is

necessary to effectuate the purpose of the stop.’ ” State v. Jones, 2022-Ohio-561, ¶

21 (4th Dist.), quoting Florida v. Royer, 460 U.S. 491, 500 (1983). Therefore, “

‘[w]hen a law enforcement officer stops a vehicle for a traffic violation, the officer

may detain the motorist for a period of time sufficient to issue the motorist a

citation and to perform routine procedures such as a computer check on the

motorist's driver's license, registration and vehicle plates.’ ” Jones at ¶ 22, quoting

State v. Aguirre, 2003-Ohio-4909, ¶ 36 (4th Dist.).

{¶28} However, “ ‘[a]n officer may expand the scope of the stop and may

continue to detain the vehicle and its occupants without running afoul of the Fourth

Amendment if the officer discovers further facts which give rise to a reasonable

suspicion that additional criminal activity is afoot.’ ” Jones at ¶ 23, quoting State

v. Rose, 2006-Ohio-5292, ¶ 17 (4th Dist.), in turn citing State v. Robinette, 80 Ohio

St. 3d 234, 240 (1997). See also State v. Dunbar, 2024-Ohio-1460, ¶ 29 (4th Scioto App. No. 24CA4070 17

Dist.). A reviewing court looks to the totality of the circumstances to determine

whether reasonable articulable suspicion exists when a traffic stop is extended.

State v. Batchili, 2007-Ohio-2204, ¶ 17, citing United States v. Arvizu, 534 U.S.

266, 274 (2002).

{¶29} Trooper Lewis clearly had reasonable suspicion to detain the vehicle

and both occupants once he and Sergeant Kuehne immediately detected an odor of

raw marijuana when they approached the vehicle. These observations also

provided the troopers with probable cause to search the vehicle. “Probable cause

exists when there is a ‘fair probability that contraband or evidence of a crime will

be found in a particular place.’ ” State v. Boykins, 2024-Ohio-5898, ¶ 15, (4th

Dist.), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). “ ‘When a law

enforcement officer has probable cause to believe that a vehicle contains

contraband, the officer may search a validly stopped motor vehicle based upon the

well-established automobile exception to the warrant requirement.’ ” Boykins at ¶

15, quoting State v. Malone, 2022-Ohio-1409, ¶ 30 (4th Dist.), citing State v.

Moore, 90 Ohio St.3d 47, 51 (2000). Additionally, and importantly, Boykins

explains that “ ‘Ohio courts have held that the production of drugs by an occupant

of the vehicle independently provides an officer with additional probable cause to

believe that the vehicle contains evidence of contraband.’ ” Boykins at ¶ 15,

quoting State v. Donaldson, 2019-Ohio-232, ¶ 29 (6th Dist.). Scioto App. No. 24CA4070 18

{¶30} In fact, despite appellant’s argument to the contrary, this Court has

recently reaffirmed and acknowledged that “ ‘ “[t]he smell of marijuana, alone, by

a person qualified to recognize this odor, is sufficient to establish probable cause to

conduct a search.” ’ ” State v. Smith, supra, at ¶ 55 (4th Dist.), quoting State v.

Jones, supra, at ¶ 29, in turn quoting State v. Moore, 90 Ohio St.3d 47 (2000),

syllabus.1 We further explained as follows in Smith:

[“ ‘]Any odor of marijuana emanating from a legally stopped vehicle creates probable cause to believe that a violation of the law has occurred.[’ ” State v. Jones, supra, at ¶ 29, quoting] State v. Brown, 2017-Ohio-2880, ¶ 9, 90 N.E.3d 384 (2d Dist.). [“ ‘W]hen a police officer has probable cause to believe a vehicle contains evidence of a crime, the officer may conduct a warrantless search of every part of the vehicle and its contents, including all movable containers and packages, that could logically conceal the objects of the search.[’ ”] State v. Farrow, 2023-Ohio-682, ¶ 18, 209 N.E.3d 830 (4th Dist.), quoting State v. Maddox, 2021-Ohio-586, ¶ 20, 168 N.E.3d 613 (10th Dist.), citing United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

Smith at ¶ 55.

{¶31} Just as in Smith, here the State demonstrated that Trooper Lewis had

probable cause to search the vehicle. The State established that Lewis was familiar

1 In her reply brief, appellant cites State v. Oliver, 2023-Ohio-1550 (10th Dist.), claiming that court held “that the smell of raw marijuana alone is no longer sufficient to establish probable cause because since legal and illegal marijuana coexist, it is impossible to discern legality based solely on odor.” However, this Court has reviewed Oliver and we find that the holding in that case is nothing close to what appellant represents. In fact, in Oliver, the search of the vehicle based upon an odor of raw marijuana was not challenged. Id. at ¶ 75. The Oliver court actually held that “[a]n officer's detection of the odor of marijuana in a car does not, alone, establish probable cause sufficient to search an occupant of that car without a warrant.” Id. at ¶ 80. The search of a person, as opposed to a vehicle, is not at issue in this case and, thus, Oliver has no applicability. Scioto App. No. 24CA4070 19

with the odor of raw marijuana through both training and experience. The State

also introduced testimony from Trooper Lewis that when Sergeant Kuehne arrived

and approached the passenger side of the vehicle, he commented to Lewis that he

detected an odor of marijuana. Trooper Lewis explained that he had detected the

same odor upon his initial approach. The State also introduced evidence in the

form of testimony from Trooper Lewis as well as photographs demonstrating that

marijuana residue was observed on a sock located inside the driver’s side door

when Trooper Lewis opened the door for appellant to step out of the vehicle.

{¶32} Further, we find no merit to appellant’s argument that Trooper Lewis’

act of opening the driver’s door of the vehicle for appellant’s co-defendant to exit

in accordance with a lawful order constituted a search. In State v. Jackson, supra,

the Supreme Court of Ohio rejected an argument that an officer’s opening of a car

door constituted a search. Jackson at ¶ 14. The Court held that Jackson’s

argument was an attempt to circumvent Mimms, stating that arguing the act of an

officer opening the car door, rather than the driver, constitutes not just a seizure,

but a search, “miscomprehends” what constitutes a search. Id. The Court

explained that “[t]he lead officer’s opening the door was not a search because he

did not act with the purpose of finding out what was inside the car,” but instead the

officer’s intent was to secure the driver. Id. at ¶ 16. Scioto App. No. 24CA4070 20

{¶33} The Jackson Court essentially held that if the initial stop is lawful,

then the order to get out of the car is constitutionally permissible and the issue of

who opened the door is irrelevant. Id. at ¶ 20, citing State v. Ferrise, 269 N.W.2d

888, 890 (Minn. 1978) (“there is little practical difference [under Mimms] between

ordering a driver to open his door and get out of his car, on the one hand, and

opening the door for the driver and telling him to get out”). Moreover, in the

present case the troopers’ detection of an odor of raw marijuana upon approaching

the vehicle had already provided sufficient probable cause to justify a search of the

vehicle. Trooper Lewis’ observation of marijuana residue on a sock located in the

drivers’ side door when the door was opened did not provide the only probable

cause to search the vehicle.

{¶34} Moreover, we find appellant’s argument that the trooper opened the

vehicle because he intended to search it, rather than to control the driver, is not

supported by the record. Trooper Lewis testified as follows during the suppression

hearing:

Q: How often would you say you ask a driver out of the vehicle, even if you’re not – even if you’re not going to conduct a search?

A: Typically, if I’m working interdiction, the vast majority of the time –

Q: Okay.

A: -- I ask them to step out. Scioto App. No. 24CA4070 21

Q: Why is that?

A: Basically, I – I like to have them out with me. I can see their body language. I can see if they have any weapons on them. I bring them back to my cruiser, talk to them, while I’m checking out their information. It basically expedites the process. So, instead of me going back and forth if I have questions, I don’t have to keep going back and forth. I have them back with me. I also feel it’s safer. Because if there is something inside the vehicle, I have them out with me, so I kind of eliminate that second approach to the car.

Q: Okay. And based on your training through the highway patrol, is there statistical increase of harm on reapproach to a motor vehicle?

A: Yes.

Thus, Trooper Lewis’ testimony was consistent with attempting to secure and

control and the driver, rather than an attempt to obtain grounds to conduct a search.

This is true especially in light of the fact that the trooper already had probable

cause to search the entire vehicle based upon the odor of raw marijuana alone. The

additional observation of marijuana residue inside the vehicle door was simply

incidental to lawfully removing the driver from the vehicle.

{¶35} In light of our determinations that the initial stop was based upon

probable cause, that the detention was lawful, and that the vehicle search was

based upon probable cause and was lawfully conducted, appellant was not entitled

to have the results of the search suppressed. Thus, we find no error in the trial

court’s denial of appellant’s motion to suppress. Accordingly, having found no Scioto App. No. 24CA4070 22

merit in any of the arguments raised under appellant’s first assignment of error, it

is overruled.

ASSIGNMENT OF ERROR II

{¶36} In her second assignment of error, appellant contends that she was

denied her right to a fair trial. Appellant presents six issues for review under this

assignment of error, as follows:

1. Whether the trial court abused its discretion in removing defendant’s counsel of choice on the court’s perceived conflict of interest and then appointing as her counsel a former attorney with whom she had expressed her dissatisfaction?

2. Whether defendant’s Fifth Amendment right to remain silent was abrogated by the admission of evidence as to her silence after receipt of Miranda warnings and the State’s repeated references to infer guilt by her silence?

3. Whether the admission of jail calls of the defendants below violates appellant’s due process rights and denies her a fair trial, especially inasmuch as neither defendant presented evidence or testified at trial?

4. Whether the trial court’s failure to give limiting instructions as to the jail calls at the time of the admission of the calls or testimony regarding same, coupled with his repeated assurances that he would do so, but reserving such limiting instruction to the end of trial deprived appellant of a fair trial?

5. Whether the denial of defendant’s Rule 29(A) motion at the close of the State’s case deprived her of a fair trial based upon the properly admitted evidence at trial? Scioto App. No. 24CA4070 23

6. Whether the cumulative effect of the errors below resulted in the defendant being denied a fair trial, such to require reversal of her convictions?

The State’s response to each of these arguments will be discussed in more detail

below, however, the State ultimately contends there is no merit to any of the

arguments raised by appellant and that they should be overruled.

Issue 1: Counsel of Choice/Appointed Counsel

{¶37} Under her first issue presented, appellant essentially argues that the

trial court abused its discretion in removing defendant’s counsel of choice on the

court’s perceived conflict of interest and then appointing as her counsel a former

attorney with whom she had expressed her dissatisfaction. As set forth above,

appellant and her co-defendant initially retained the same counsel. The trial court

agreed with the State that the dual representation presented the potential for a

conflict of interest and removed retained counsel. Appellant appealed the decision

to this Court, which upheld the trial court’s decision, and the Supreme Court of

Ohio refused to consider the case. In her brief, appellant now states “without

intent to revisit the rulings on the issue,” that “the Trial Court lacked impartiality in

denying her the counsel of her choice.” Appellant further complains that the trial

court thereafter appointed an attorney to represent her in whom she had expressed

dissatisfaction in prior dealings. Scioto App. No. 24CA4070 24

{¶38} The State responds by arguing that this Court’s prior holding

regarding the removal of appellant’s retained counsel in State v. Jordan, 2022-

Ohio-1480 (4th Dist.), which determined there was no abuse of discretion by the

trial court in removing appellant’s counsel of choice, is controlling and that this

present challenge is barred by the doctrine of res judicata. For the following

reasons, we agree with the State. We further find no abuse of discretion with

respect to the trial court’s appointment of counsel for appellant once it appeared

she was indigent and could not hire new counsel.

{¶39} The doctrine of res judicata generally states that “a final judgment of

conviction bars a convicted defendant who was represented by counsel from

raising and litigating in any proceeding except an appeal from that judgment, any

defense or any claimed lack of due process that was raised or could have been

raised by the defendant at the trial, which resulted in that judgment of conviction,

or on an appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175, 176, 226

N.E.2d 104 (1967), paragraph nine of the syllabus. Consequently, “the doctrine

serves to preclude a defendant who has had his day in court from seeking a second

on that same issue.” State v. Saxon, 2006-Ohio-1245, ¶ 18. “In so doing, res

judicata promotes the principles of finality and judicial economy by preventing

endless relitigation of an issue on which a defendant has already received a full and

fair opportunity to be heard.” Id. Scioto App. No. 24CA4070 25

{¶40} Despite appellant’s claim that she does not intend to revisit the prior

rulings related to the removal of her hired counsel, her argument that the trial court

demonstrated impartiality in denying her the counsel of her choice is an attempt to

do just that. However, the doctrine of res judicata bars her from seeking to

endlessly relitigate the issue of the fairness and correctness in removing her

retained counsel of choice. See Smith v. Buchanan, 2014-Ohio-459, ¶ 20 (noting

that defendant “has had ample opportunity to litigate this claim, and res judicata

now bars his latest attempt”). Appellant already received a full and fair

opportunity to be heard on this issue and it is now barred from relitigation.

{¶41} Furthermore, with respect to the trial court’s appointment of counsel

in whose services appellant had been dissatisfied with on a prior occasion, it is well

settled that:

The right of an accused to select his own counsel is inherent only in those cases wherein such accused is employing the counsel himself. The right to have counsel assigned by the court does not impose a duty on the court to allow the accused to choose his own counsel; the selection is within the discretion of the court.

Thurston v. Maxwell, 3 Ohio St.2d 92, 93 (1965), citing 23 C.J.S. Criminal Law §

982(5), p. 962.

{¶42} An abuse of discretion implies that a court's attitude was

unreasonable, arbitrary, or unconscionable. State v. Beasley, 2018-Ohio-16, ¶ 12,

citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “ ‘A decision is Scioto App. No. 24CA4070 26

unreasonable if there is no sound reasoning process that would support that

decision.’ ” State v. Ford, 2019-Ohio-4539, ¶ 106, quoting AAAA Ents., Inc. v.

River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161

(1990). “[A]n ‘arbitrary’ decision is one made ‘without consideration of or regard

for facts [or] circumstances.’ ” State v. Beasley, supra, at ¶ 12, quoting Black's

Law Dictionary (10th Ed.2014). See also Dayton ex rel. Scandrick v. McGee, 67

Ohio St.2d 356, 359 (1981), quoting Black's (5th Ed.1979) (“arbitrary” means “

‘without adequate determining principle; ... not governed by any fixed rules or

standard’ ”). An unconscionable decision is one “showing no regard for

conscience” or “affronting the sense of justice, decency, or reasonableness.”

Black's (11th Ed. 2019). An unconscionable decision also may be characterized as

“[s]hockingly unjust or unfair.” Id. Moreover, when reviewing for an abuse of

discretion, appellate courts must not substitute their judgment for that of the trial

court. E.g., State v. Grate, 2020-Ohio-5584, ¶ 187; In re Jane Doe 1, 57 Ohio

St.3d 135, 137-138 (1991).

{¶43} A review of the record indicates that once the Supreme Court of Ohio

refused to accept appellant’s appeal for review, appellant’s hired counsel was no

longer on the case and appellant was without counsel. The trial court held a

pretrial hearing on August 25, 2023. Appellant informed the court that she wished

to retain counsel and that she did not want appointed counsel, explaining in Scioto App. No. 24CA4070 27

particular that she previously had Aaron Triplett as appointed counsel and that she

was not satisfied with his services. As a result, the trial court continued the matter

for appellant to have time to retain counsel.

{¶44} Thereafter, on September 15, 2023, appellant was arrested due to a

positive drug screen. It appears that the trial court appointed Aaron Triplett to

represent her at that time.2 Hearings were held on September 15, 2023, and

October 2, 2023. Appellant made no complaints regarding Attorney Triplett’s

representation. Further, the hearing on the motion to suppress was held on

November 29, 2023. Appellant made no complaints regarding Attorney Triplett’s

representation at that time either.

{¶45} Based upon the record before us, we find no abuse of discretion on

the part of the trial court in the appointment of counsel in this case. As set forth

above, although an indigent defendant has a right to counsel, he has no right to

choose appointed counsel. Instead, the appointment of counsel is within the sound

discretion of the trial court. We cannot conclude that the trial court’s appointment

of counsel whom appellant had expressed dissatisfaction with on a matter that

occurred several years prior constitutes an abuse of discretion. This is especially

true where, once counsel was appointed, appellant made no further complaint and

has pointed to no prejudice occurring in connection with counsel’s performance.

2 Appellant filed an affidavit of indigency requesting appointed counsel on September 19, 2023. Scioto App. No. 24CA4070 28

Moreover, the appointment was only for a short period of less than three months on

a matter that took four years to reach trial. Thus, we find no merit to the first issue

presented under appellant’s second assignment of error.

Issue 2: State’s References to Appellant’s Post-Arrest Silence

{¶46} In her merit brief, appellant complains of “[t]he State’s repeated

introduction of evidence and comments as to the silence of Ms. Jordan in order to

infer knowledge of her guilt constitutes violation [sic] of her Fifth Amendment

right to remain silent.” In her reply brief, appellant argues that “the prosecutions

[sic] statements at closing argument to the effect that Appellant did not deny her

guilt or ask about drugs or otherwise speak after she received her Miranda

warnings was improper.” Despite these general descriptions of allegedly

impermissible statements made by the prosecution, appellant never actually sets

forth in the argument portion of her brief the exact statements made by the State

that she claims violated her Fifth Amendment right to remain silent. However,

after searching the record, a task this Court is not required to do, we can glean that

appellant’s argument focuses on the time period when appellant was in the back of

the cruiser with her co-defendant after she was Mirandized, coupled with a

comment that the State made during its rebuttal closing argument.

{¶47} A review of the cruiser cam video demonstrates that although

appellant answered questions of law enforcement and volunteered information to Scioto App. No. 24CA4070 29

law enforcement before she was Mirandized, once placed under arrest and

provided her Miranda rights, she said essentially nothing either to law enforcement

or to her co-defendant, who was seated and handcuffed in the cruiser beside her.

She can be heard on camera, however, speaking through the window of the cruiser

and telling her mother she was sorry when her mother arrived on scene.

{¶48} A review of the trial transcript reveals that during cross-examination

of Trooper Lewis, defense counsel was attempting to establish that his client did

not make any admissions or confessions in an attempt to contradict the trooper’s

testimony that in his opinion and based upon his assessment of the video, appellant

and her co-defendant had knowledge that cocaine was in the console. As part of

this effort, he questioned Trooper Lewis as follows:

Q: Okay. And nothing that you learn, whether its from the phones, you know, the peripheral matters of this investigation, the phone extractions, what you did or did not see, nothing suggested to you, in fact, who put it in the console, when it was put in the console and at what time, right?

A: No. Only that they both knew it was in the console.

Q: Well, that – that’s your opinion or assessment, right?

A: My assessment based on the video.

Q: Yeah. That’s your opinion; right?

A: Assessment, opinion. Scioto App. No. 24CA4070 30

Q: Yeah. But – but – but there was no admissions by Ms. Johnson, right? She didn’t say, yeah, I knew that cocaine was in there, I put it there?

A: Yeah. No admissions, and no questions about what we found, why they were being placed under arrest.

Q: Yeah.

A: Why’s someone have to come get their car.

Thus, it was the defense rather than the State that initially elicited testimony from

the trooper that could be construed to equate appellant’s post-arrest silence with

guilt. Further, it is clear that the trooper’s testimony was provided in response to

defense counsel’s suggestion that appellant’s failure to confess to the crime while in

the back of the cruiser tended to indicate she had no knowledge of the fact that

cocaine had just been discovered in the car.

{¶49} Later on, presumably in response to this line of questioning, the

prosecutor stated as follows in the rebuttal closing argument regarding appellant’s

silence in the cruiser, as well as a hand gesture made towards appellant by her co-

defendant in order to silence her:

Why else when two people get in the back of a cruiser do you shut somebody up if you have nothing to hide? If there’s nothing you’re going to say that’s going to incriminate you, why – why do you shut somebody up? I submit to you it’s because you’re trafficking in drugs and if you both keep quiet, you can do exactly what they’re doing in here. We don’t know nothing. We didn’t see nothing. Scioto App. No. 24CA4070 31

Defense counsel objected, arguing that the prosecutor’s statements essentially

amounted to an improper comment upon appellant’s failure to testify at trial. The

trial court disagreed with the arguments of defense counsel, stating that it was a

fair comment upon the evidence, based upon appellant’s “nontypical” response in

the back of the cruiser as well in response “to the Defenses [sic] arguments in this

matter about knowledge.”

{¶50} Arguments by counsel ensued with the prosecution arguing it was

permitted to comment upon the failure of the defense to offer evidence in support

of its case. The defense ultimately made a motion for a mistrial, which was denied

by the trial court. The defense alternatively requested a curative instruction. The

trial court agreed to instruct the jury that any reference in closing argument

regarding the defendant’s right not to testify should be disregarded. In the final

instructions, the trial court instructed the jury as follows:

It is not necessary that either Defendant take the witness stand in her own defense. Each has a constitutional right not to testify. The fact that either Defendant did not testify must not be considered for any purpose.

{¶51} The State argued below and now also argues on appeal that a

comment by the prosecution regarding uncontroverted evidence does not equate to

a comment upon the accused’s failure to testify at trial. The State contends that the

comment by the prosecutor was directed toward the strength of the State’s

evidence and not the accused’s failure to testify and that the State is not prohibited Scioto App. No. 24CA4070 32

from commenting upon a defendant’s failure to offer evidence in support of its

case.

{¶52} The record reveals that the State’s reference to appellant’s co-

defendant silencing her while in the back of the cruiser occurred pre-arrest.

Appellant makes no arguments on appeal regarding references by the State to her

pre-arrest silence. Rather, appellant seems to limit her argument to the State’s

reference to appellant’s silence post-arrest. Despite appellant’s argument to the

contrary, this reference was not repeated but instead was an isolated reference that

occurred during the rebuttal closing argument.

Legal Principles

{¶53} The Fifth Amendment to the United States Constitution, which is

applicable to the states through the Fourteenth Amendment, provides that no

person “shall be compelled in any criminal case to be a witness against himself.”

See also State v. Leach, 2004-Ohio-2147, ¶ 11. The Fifth Amendment guarantees

a criminal defendant's right against self-incrimination, which includes the right to

silence during police interrogation. Miranda v. Arizona, 384 U.S. 436, 474 (1966).

“Once a person invokes his or her Fifth Amendment right to remain silent, the

State cannot use the person's silence [either in pre-arrest or post-arrest

circumstances] as substantive evidence of guilt in its case-in-chief.” State v.

Bennett, 2014-Ohio-160, ¶ 63 (9th Dist.), citing Wainwright v. Greenfield, 474 Scioto App. No. 24CA4070 33

U.S. 284, 298-299 (1986) (post-arrest silence) and State v. Leach, supra, at ¶ 30

(pre-arrest silence). See also Doyle v. Ohio, 426 U.S. 610, 619 (1976) (“[T]he use

for impeachment purposes of [a defendant's] silence, at the time of arrest and after

receiving Miranda warnings, violated the Due Process Clause of the Fourteenth

Amendment.”).

{¶54} There is no question that suggesting that appellant’s post-arrest

silence constituted evidence of guilt was improper. Importantly, we must note that

the comments at issue were not made during the State’s case-in-chief, but rather

during the rebuttal portion of closing argument. Nonetheless, we admit that we

find the State’s comments to be a close call.

{¶55} However, even assuming arguendo that the comments were improper,

our analysis does not end here because “violations of a defendant's constitutional

right against self-incrimination are subject to a harmless error review.” State v.

Castle, 2017-Ohio-942, ¶ 22 (7th Dist.). Error is harmless under Crim.R. 52(A) if

it does not affect substantial rights. In most cases, in order to be viewed as

affecting substantial rights, the error must have been prejudicial. State v. Harris,

2015-Ohio-166, ¶ 36.

{¶56} An error will be deemed prejudicial if there is a reasonable probability

that it affected the outcome of the judicial proceedings. State v. Taylor, 2017- Scioto App. No. 24CA4070 34

Ohio-4395, ¶ 15 (4th Dist.). In determining whether prejudice has resulted from

the State's comment about a defendant's assertion of her right to silence, courts

consider factors such as “the extent of the comments, whether an inference of guilt

from silence was stressed to the jury, and the extent of other evidence suggesting

the defendant's guilt.” State v. Contreras, 2008-Ohio-1413, ¶ 34 (8th Dist.).

{¶57} Here, the objection made by defense counsel during trial seemed to be

focused on an argument that the State’s comment infringed upon appellant’s right

not to testify at trial, rather than her right to remain silent post-arrest. The

arguments by counsel were primarily centered upon appellant’s decision not to

testify at trial not being construed as evidence of guilt as a result of the comments

made by the State. In an attempt to address that concern, although the trial court

denied appellant’s motion for a mistrial, it did agree to very clearly instruct the jury

on a defendant’s right not to testify at trial and that the failure to testify cannot be

considered for any purpose. As soon as the trial resumed, the court instructed the

jury as follows:

Before I read the final charge, I do want to address one issue with the jury. If during closing arguments there was any suggestion of inference that you should consider the Defendant’s not testifying in this matter, you should disregard that. If – if – if that – if that inference or that thought entered your heads. The Defendants both have a constitutional right not to testify. You should not consider that for any purpose. And I’ll instruct you on that again here in just a moment as I read the final charge. Scioto App. No. 24CA4070 35

The court also instructed the jury that opening statements and closing arguments of

counsel are not evidence.

{¶58} Looking at the record as a whole in this case we cannot say that these

comments prejudiced appellant, especially considering the trial court’s curative

instruction which was provided immediately after the comments were made.

Again, these comments were made during the State’s rebuttal, not its case-in-chief,

and in fairness they appear to have been made in response to defense counsel’s

suggestion that because neither appellant nor her co-defendant made any

admissions or confessions upon arrest, that they had no knowledge that cocaine

was in the console. Further, we agree with the State’s argument that the

comments lean more towards a comment upon appellant’s lack of evidence to

contradict the State’s theory, as opposed to a comment equating appellant’s silence

with guilt. Again, although these statements were arguably improper, in order to

find prejudice, we must find that the evidence supporting appellant's convictions

was lacking in some regard. However, based upon our analysis below which

concludes appellant’s convictions were supported by sufficient evidence, this

record does not support such a contention. Accordingly, we find no merit to Issue

2 set forth under appellant’s second assignment of error. Scioto App. No. 24CA4070 36

Issues 3 and 4: Admission of Jail Calls and Limiting Instruction

{¶59} Appellant’s third issue contends that the trial court’s admission of jail

calls made by herself and also her co-defendant violated her right to due process

and denied her right to a fair trial, especially because neither of them testified at

trial. She further contends under her fourth issue presented for review that the trial

court’s provision of a limiting instruction related to the jail calls at the close of

trial, rather than at the time the jail calls were admitted into evidence, also deprived

her of a fair trial. The State responds by arguing that the jail calls at issue were

admissible under Evid.R. 801(D)(2)(a) as statements of a party opponent and did

not constitute inadmissible hearsay.

Standard of Review

{¶60} “ ‘The admission or exclusion of relevant evidence rests within the

sound discretion of the trial court.’ ” State v. Dean, 2015-Ohio-4347, ¶ 91, quoting

State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. The

specific application of this standard of review is the same as set forth above under

our analysis of appellant’s first assignment of error.

{¶61} When faced with an argument that jailhouse phone calls were

improperly admitted at trial, this Court has previously reasoned that Evid.R.

801(D)(2)(a) explicitly allows statements offered against a party provided that the Scioto App. No. 24CA4070 37

statement is “ ‘the party’s own statement, in either an individual or a representative

capacity.” State v. Smith, 2022-Ohio-371, ¶ 42 (4th Dist.). Finding that Smith

made the statements at issue, we found the jailhouse phone calls were properly

admitted. Id.

{¶62} Likewise, in State v. Tyler, 2011-Ohio-3937 (4th Dist.), this Court

stated as follows at ¶ 36 regarding an argument that jailhouse phone calls were

improperly admitted as evidence:

Under Evid.R. 801(D)(2)(a), statements of a party opponent are admissible as substantive evidence if offered against that party. Thus, Tyler's statements in the recording are admissions and are, by definition, not hearsay. Admissions by a party-opponent also include “the statements or questions to which [he] responds” if the failure to deny or correct the statement or question could be considered an adoption. State v. Spires, Noble App. No. 04 NO 317, 2005-Ohio- 4471, 2005 WL 2065122, at ¶ 38, citing State v. Twitty, Montgomery App. No. 18749, 2002-Ohio-5595, 2002 WL 31341561. “A party may adopt the statement of a third person by failing to deny or correct under circumstances in which it would be natural to deny or correct the truth of the statement.” Giannelli, Evidence (3d Ed.2010) 161, Section 801.24; see also Evid.R. 801(D)(2)(b).

{¶63} The jail calls at issue involving appellant were placed from appellant to her

mother. During the calls, appellant and mother discuss trying to get the charges thrown

out and trying to obtain joint counsel for both appellant and her co-defendant. At one

point, appellant tells her mother that she is “kicking herself in the ass,” in reference to the

situation. The State essentially argued that the attempts to obtain joint counsel

demonstrated complicity between the two defendants and that the statement about

kicking herself in the ass was an acknowledgment of guilt, all admissible as statements of Scioto App. No. 24CA4070 38

a party opponent under Evid.R. 801(D)(2)(a). After reviewing Evid.R. 801(D)(2)(a) and

applying the reasoning of both Smith and Tyler, supra, we find these statements were

relevant and constituted statements of a party opponent being offered against appellant.

{¶64} However, we must separately consider the admission of the jail phone calls

between appellant’s co-defendant and her own mother. Here, the jail phone calls

between appellant’s co-defendant and her mother mostly consisted of the co-defendant

providing her mother with various phone numbers in an effort to find a bondsperson to

get her out of jail. The co-defendant’s mother states at one point on one of the calls that

she has been talking to “Yvette,” which is the name of appellant’s mother. The State

argues the fact that appellant and her co-defendant continued to work together in securing

bond demonstrated complicity as well as a conspiracy to work together even after their

arrest. The State’s theory at trial was one of complicity and the jury was instructed on

both complicity and conspiracy.

{¶65} Additionally, those phone calls demonstrated the co-defendant attempting

to direct her mother where to find cash to use for bond. After the co-defendant tells her

mother to look in her top drawer under some shirts, her mother asks how much is in these

“bands,” to which appellant replies “thousand.” Her mother then appears to start

counting the bands, stating “one, two, three, four” before appellant can be heard shushing

her and asking her why she had to say that on a jail call. The State argued having bands

of $1000.00 ready to go to make bond was relevant in that it was indicative of

involvement in drug activity. Importantly, however, both appellant and her co-defendant

were acquitted on the drug trafficking charges. Scioto App. No. 24CA4070 39

{¶66} On appeal, the State contends that the statements made in these calls also

constitute admissions by a party opponent. The trial court allowed the jail phone calls of

the co-defendant to be admitted as admissions of a party opponent reasoning, in part, that

“there might be other explanations that for the nature of these calls, one of which might

be an ongoing conspiracy or relationship.” Appellant contends the jail phone calls made

by her co-defendant should not have been admitted at trial and that even if the statements

can be characterized as statements by a co-conspirator, any alleged conspiracy ended

when the crimes were completed “and attempts to obtain funds for release on bond are

not in furtherance of any conspiracy.” After reviewing Evid.R. 801(D)(2)(a) and

applying the reasoning of both Smith and Tyler, supra, we also find these statements were

relevant and constituted statements of a party opponent being offered against appellant’s

co-defendant, which were admissible directly against the co-defendant during the joint

trial. Thus, we find no error or abuse of discretion in the trial court’s admission of the jail

phone calls between appellant’s co-defendant and her mother.

{¶67} Importantly, it is crucial to consider that appellant and her co-defendant

were jointly tried. Thus, the co-defendant’s jail phone calls were admissible against the

co-defendant under the same rationale that appellant’s jail phone calls were admissible

against her. There was no need to establish that the co-defendant’s statements were

admissible under the co-conspirator exception as to appellant when the statements were

directly admissible as statements of a party opponent as against the co-defendant in the

joint trial. Scioto App. No. 24CA4070 40

{¶68} It appears from a review of the record that not only did neither defendant

file a motion to sever their trials below, they initially retained the same counsel and

argued vigorously to be able to keep the same counsel, appealing the trial court’s order

that they were not permitted to have the same counsel to this Court and then the Supreme

Court of Ohio. In arguing to have the same trial counsel, appellant and her co-defendant

waived any and all conflicts of interests, represented that they had no desire to blame

each other, and contended that they desired to present a unified defense to the charges.

Although they ultimately proceeded to trial with different counsel, they failed to file a

motion to sever the trials and their defense at all times remained unified. Thus, we find

appellant’s argument that her co-defendant’s statements were inadmissible against her at

trial to be disingenuous and without merit. Under these facts, we find no abuse of

discretion in the trial court’s decision to permit the jail phone calls to be admitted as

evidence against appellant.

{¶69} Finally, we find no merit to appellant’s argument that the limiting

instruction as to the jail calls at the close of trial was insufficient to cure the improper

admission of the jail calls during trial. First, we have found that the admission of the jail

calls was not improper. Second, although defense counsel objected to the admission of

the jail calls prior to their admission and again after their admission, he did not request

that an immediate instruction be given. At the close of trial, the trial court instructed the

jury, in pertinent part, as follows:

During the trial you heard a recording of jail phone calls. During the playing of that recording, you heard statements from other individuals. The statements of other individuals was played only for Scioto App. No. 24CA4070 41

the limited purpose of providing context to the reactions and responses of Sashia Johnson, in her phone calls and to provide context to the reactions and responses of Adrienne Jordan in her phone calls. You may not consider the statements of other individuals on these phone calls for any other purpose.

{¶70} This jury instruction was a correct statement of the law and was provided

along with all of the other jury instructions at the close of trial. Again, having found the

jail phone calls were properly admitted, we find no error in the trial court’s failure to

provide some sort of immediate limiting instruction after the State played the calls for the

jury. Accordingly, we find no merit to the arguments raised in the third and fourth

issues presented under her first assignment of error.

Issue 5: Denial of Crim.R. 29(A) Motion for Acquittal

{¶71} In her fifth issue presented, appellant contends that the trial court’s

denial of her Crim.R. 29(A) motion at the close of the State’s case deprived her of

a fair trial based upon the properly admitted evidence at trial. The State responds

by arguing that the trial court did not err in denying the motion for acquittal and

that the convictions were supported by sufficient evidence.

{¶72} A Crim.R. 29(A) motion may be sustained “ ‘if the evidence is

insufficient to sustain a conviction of such offense[.]’ ” State v. Johnson, 2016-

Ohio-867, ¶ 9 (4th Dist.), quoting Crim.R. 29(A). “By its terms, the rule employs

the same standard of review as used in a sufficiency of the evidence argument.”

Id., citing State v. Miley, 114 Ohio App.3d 738, 742 (4th Dist. 1996); State v. Fox, Scioto App. No. 24CA4070 42

2015-Ohio-3892, ¶ 29 (4th Dist.). “In reviewing the trial court's decision on a

Crim.R. 29(A) motion, we conduct a de novo review and will not reverse unless

clearly contrary to law.” Johnson at ¶ 10, citing State v. Umphries, 2003-Ohio-

599, ¶ 6 (4th Dist.) and State v. Allen, 2002-Ohio-2155 (4th Dist.). As explained

below, when considering a sufficiency of the evidence argument, we afford no

deference to the trial court under this standard and instead conduct our own

independent review of the evidence.

{¶73} A claim of insufficient evidence invokes a due process concern and

raises a question of whether the evidence is legally sufficient to support the verdict

as a matter of law. See State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

“Whether the evidence is legally sufficient to sustain a verdict is a question of

law.” Id. Therefore, our review is de novo. See State v. Groce, 2020-Ohio-6671,

¶ 7, citing In re J.V., 2012-Ohio-4961, ¶ 3.

{¶74} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if

believed, reasonably could support a finding of guilt beyond a reasonable doubt.

Thompkins 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 the offense proven beyond a reasonable doubt. See Jackson Scioto App. No. 24CA4070 43

v. Virginia, 443 U.S. 307, 319 (1979); State v. Jenks, 61 Ohio St.3d 259, 273

(1991). Furthermore, a reviewing court is not to assess “whether the state's

evidence is to be believed, but whether, if believed, the evidence against a

defendant would support a conviction.” Thompkins at 390 (Cook, J., concurring).

{¶75} Thus, when reviewing a sufficiency-of-the-evidence claim, an

appellate court must construe the evidence in a light most favorable to the

prosecution. See 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 that 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).

{¶76} R.C. 2925.11(A) sets forth the essential elements of the offense of

possession of drugs. The statute provides: “No person shall knowingly obtain,

possess, or use a controlled substance or a controlled substance analog.” R.C.

2901.22(B) defines when a person acts knowingly and states as follows:

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 a 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 Scioto App. No. 24CA4070 44

probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

{¶77} Whether a defendant knowingly possessed a controlled substance “is

to be determined from all the attendant facts and circumstances available.” State v.

Teamer, 82 Ohio St.3d 490, 492 (1998); accord State v. Corson, 2015-Ohio-5332,

¶ 13 (4th Dist.). To establish knowing possession of a controlled substance under

R.C. 2925.11(A), the State is not required to prove that “a defendant knew the

specific characteristics of the item possessed that made it” a controlled substance.

State v. Jordan, 89 Ohio St.3d 488, 494 (2000); accord State v. Williams, 2005-

Ohio-1597, ¶ 34 (2d Dist.).

{¶78} “Possession of drugs can be either actual or constructive.” State v.

Bustamante, 2013-Ohio-4975, ¶ 25 (3d Dist.), citing State v. Cooper, 2007-Ohio-

4937, ¶ 25 (3d Dist.), in turn citing State v. Wolery, 46 Ohio St.2d 316, 329 (1976).

“ ‘Actual possession exists when the circumstances indicate that an individual has

or had an item within his immediate physical possession.’ ” State v. Kingsland,

2008-Ohio-4148, ¶ 13 (4th Dist.), quoting State v. Fry, 2004-Ohio-5747, ¶ 39 (4th

Dist.). “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. Hankerson, 70 Ohio St.2d 87, (1982),

syllabus; State v. Brown, 2009-Ohio-5390, ¶ 19 (4th Dist.). For constructive

possession to exist, the State must show that the defendant was conscious of the Scioto App. No. 24CA4070 45

object's presence. Hankerson at 91; Kingsland at ¶ 13; accord State v.

Huckleberry, 2008-Ohio-1007, ¶ 34 (4th Dist.); State v. Harrington, 2006-Ohio-

4388, ¶ 15 (4th Dist.); Criss v. City of Kent, 867 F.2d 259, 263 (6th Cir. 1988)

(“Ohio law is clear that a suspect can be in ‘constructive possession’ of * * *

property without having actual physical possession of the property if it is located

within premises under the suspect's control and he was conscious of its presence.”).

{¶79} Both dominion and control, and whether a person was conscious of

the object's presence, may be established through circumstantial evidence alone.

See State v. Brown, 2009-Ohio-5390, ¶ 19; State v. Jenks, 61 Ohio St.3d 259

(1991), paragraph one of the syllabus (“[c]ircumstantial evidence and direct

evidence inherently possess the same probative value”); State v. Davis, 2018-Ohio-

4268, ¶ 50 (3d Dist.) (prosecution may establish constructive possession by

circumstantial evidence alone). “Circumstantial evidence is defined as

‘[t]estimony not based on actual personal knowledge or observation of the facts in

controversy, but of other facts from which deductions are drawn, showing

indirectly the facts sought to be proved ...’ ” State v. Nicely, 39 Ohio St.3d 147,

150 (1988), quoting Black's Law Dictionary 221 (5th Ed.1979).

{¶80} Furthermore, to establish constructive possession, the State need not

show that the defendant had “[e]xclusive control” over the contraband. State v.

Tyler, 2013-Ohio-5242, ¶ 24 (8th Dist.), citing State v. Howard, 2005-Ohio-4007, Scioto App. No. 24CA4070 46

¶ 15 (8th Dist.), in turn citing In re Farr, 10th Dist. Franklin No. 93AP-201, 1993

WL 464632, *6 (10th Dist. Nov. 9, 1993) (nothing in R.C. 2925.11 or 2925.01

states that illegal drugs must be in sole or exclusive possession of accused at time

of offense). Instead, “ ‘[a]ll that is required for constructive possession is some

measure of dominion or control over the drugs in question, beyond mere access to

them.’ ” Howard at ¶ 15, quoting Farr at *6. Two or more people can have

constructive possession of the same object. State v. Reed, 2018-Ohio-4451, ¶ 20

(6th Dist.).

{¶81} In other words, the fact that a fellow passenger might also have had

something to do with the drugs does not preclude a finding that appellant

constructively possessed them. See State v. Armstrong, 2025-Ohio-771, ¶ 41 (6th

Dist.). Thus, simply because others may have access to the contraband, in addition

to the defendant, does not mean that the defendant “could not exercise dominion or

control over the drugs.” Tyler at ¶ 24; accord State v. Walker, 2016-Ohio-3185, ¶

75 (10th Dist.); State v. Philpott, 2020-Ohio-5267, ¶ 67 (8th Dist.); Wolery, supra,

at 329 (“[p]ossession * * * may be individual or joint” and “control or dominion

may be achieved through the instrumentality of another”); State v. Russell, 2022-

Ohio-1746, ¶ 43 (4th Dist.).

Although a defendant's mere proximity is in itself insufficient to establish constructive possession, proximity to the object may constitute some evidence of constructive possession. Fry at ¶ 40. Thus, presence in the vicinity of contraband, coupled with Scioto App. No. 24CA4070 47

another factor or factors probative of dominion or control over the contraband, may establish constructive possession.

Kingsland, supra, at ¶ 13.

{¶82} Appellant argues under her fifth issue presented for review that the

knowingly element of the offense of possession of cocaine was impermissibly

based upon her post-arrest silence as well as the statements made by herself and

her co-defendant when making jail calls. She argues that the jail calls should not

have been admitted and any reliance upon their contents to establish the

sufficiency of the evidence was improper. Appellant essentially argues that

considering only the “properly admitted” evidence at trial, her Crim.R. 29(A)

Motion for Acquittal should have been granted.

{¶83} The State argues that appellant’s convictions were not improperly

based upon her silence and that the jail calls were properly admitted as evidence

that appellant and her co-defendant were involved in drug activity and further

demonstrated complicity. The State additionally points to evidence in the record

that although appellant was not the driver of the vehicle, the vehicle was registered

in appellant’s mother’s name and appellant referred to the vehicle as being her

vehicle more than once. Additionally, the State references the fact that the drugs

were immediately accessible to appellant and appellant had a visible reaction to the

discovery of the bag containing the cocaine. Scioto App. No. 24CA4070 48

{¶84} We have already determined that any reference by the State to

appellant’s silence, even if improper, was harmless beyond a reasonable doubt.

Further, we have found no error with respect to the admission of the jail calls made

by both appellant and her co-defendant. The evidence presented by the State

included the fact that appellant and her co-defendant were traveling in a car owned

by the appellant’s mother. Appellant was sitting in the front passenger seat of the

vehicle, and the bag of cocaine was located in the console between the driver and

front passenger seats. A cell phone charging cord that was visible from outside the

console was plugged into an outlet located inside the console where the cocaine

was found.

{¶85} Further, although law enforcement officers pulled multiple grocery

items out of the back of the vehicle while conducting their search, it was not until

they pulled a grocery bag out of the front driver’s side area that both appellant and

her co-defendant had a visible reaction on the video while they were in the

backseat of the cruiser. When the bag was located, both appellant and her co-

defendant immediately looked stricken with worry, at times putting their heads

down, covering their mouths with their hands, and exchanging glances with one

another. At other times it looked like the women were wiping tears from their

eyes. Scioto App. No. 24CA4070 49

{¶86} Additionally, when the bag was first pulled from the vehicle and held

up for the women to see, appellant’s co-defendant reached over and placed her

hand upon her appellant’s leg. Moreover, when appellant’s mother arrived to pick

up her vehicle, appellant told her mother that she was sorry. In addition to this

evidence, as discussed above, jail calls played for the jury at trial revealed a

discussion between appellant and her mother where appellant states that she is

kicking herself “in the ass” for this situation. “Numerous Ohio courts have

determined that a defendant's demeanor, conduct, and statements that surround a

criminal act are relevant to show a defendant's consciousness of guilt.” State v.

Smith, 2022-Ohio-371, ¶ 43 (4th Dist.), citing State v. Johnson, 2015-Ohio-4903, ¶

72 (a defendant's statements, “like other conduct following the completion of a

crime, may be relevant evidence of consciousness of guilt”).

{¶87} We find, based upon these facts, that it was reasonable for the jury to

conclude that appellant constructively possessed the cocaine at issue. See State v.

Davis, 2018-Ohio-4368 (3d Dist.) (constructive possession requires ability to

exercise dominion and control over item, even without immediate physical

possession; readily usable drugs in close proximity to accused can constitute

sufficient circumstantial evidence to support constructive possession); State v.

Fulton, 2024-Ohio-671 (7th Dist.) (readily usable drugs found in close proximity

to defendant can be sufficient circumstantial evidence for constructive possession; Scioto App. No. 24CA4070 50

defendant did not own vehicle, but drugs where within reach). Aside from the fact

that appellant’s mother owned the vehicle and appellant referred to the vehicle as

being her own vehicle, the drugs were within her reach, she had the ability to

exercise dominion and control over them, and her facial expressions and body

language while in the backseat of the cruiser spoke volumes with respect to

appellant’s knowledge of what was located in the bag.

{¶88} Thus, after viewing the evidence in a light most favorable to the State,

we conclude this evidence, although circumstantial, sufficiently supported

appellant’s conviction for possession of cocaine. Accordingly, we find no merit to

the arguments raised in the fifth issue presented under appellant’s second

assignment of error.

Issue 6: Cumulative Error

{¶89} In her sixth and final issue presented under her second assignment of

error, appellant contends that she was denied a fair trial due to the cumulative

effect of the errors below such that her convictions should be reversed. In

response, the State points out that appellant’s brief “interspliced” multiple issues

presented for review that should have been argued under separate assignments of

error. It contends, nevertheless, that there being no merit to any of the preceding

arguments raised by appellant, her allegation of cumulative error fails. Scioto App. No. 24CA4070 51

{¶90} Under the cumulative error doctrine, “a conviction will be reversed

where the cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of numerous instances of trial

court error does not individually constitute cause for reversal.” State v. Garner, 74

Ohio St.3d 49, 64 (1995), citing State v. DeMarco, 31 Ohio St.3d 191 (1987),

paragraph two of the syllabus; State v. Ruble, 2017-Ohio-7259, ¶ 75 (4th Dist.).

“Before we consider whether ‘cumulative errors’ are present, we must first find

that the trial court committed multiple errors.” State v. Smith, 2016-Ohio-5062, ¶

106 (4th Dist.), citing State v. Harrington, 2006-Ohio-4388, ¶ 57 (4th Dist.). The

cumulative error doctrine does not apply where the defendant “cannot point to

‘multiple instances of harmless error.’ ” State v. Mammone, 2014-Ohio-1942, ¶

148 (“And to the extent that Mammone more broadly invokes the doctrine of

cumulative error, that doctrine does not apply because he cannot point to ‘multiple

instances of harmless error.’ ”), quoting State v. Garner, supra, at 64; State v.

Colonel, 2023-Ohio-3945, ¶ 64-66 (4th Dist.); State v. Fannon, 2018-Ohio-5242, ¶

124-125 (4th Dist.).

{¶91} In addition to generally arguing cumulative error, appellant raises a

new argument under her sixth issue presented for review. While this new Scioto App. No. 24CA4070 52

argument as well as the general cumulative error argument should have been

separately assigned and argued as stand-alone assignments of error, we will

address them in the interests of justice. In addition to generally alleging

cumulative error, appellant argues that the trial court erred in allowing the jury to

utilize listening aids during its deliberations even though the aids had not been

introduced as evidence.

{¶92} With respect to appellant’s argument that the trial court erred in

allowing the jury to utilize a listening aid during its deliberations, we note that the

trial transcript indicates that all parties agreed that the jury be allowed to utilize a

listening aid during the playing of the cruiser video in the State’s case in chief. In

reaching this agreement, defense counsel agreed there were no material differences

between the cruiser video and the listening aid. When the jury posed a question

during deliberations asking to view the video again, the court brought the jury back

into the courtroom to view the video and, over the objection of the defense

counsel, it once again permitted the jury to utilize the listening aid.

{¶93} Before doing so, the trial court inquired of defense counsel as to the

basis for the objection and specifically whether or not there would be any prejudice

to his client in allowing the jury to once again utilize the listening aid they had

already used. Counsel could point to no prejudice but maintained his objection.

The trial court proceeded with allowing the jury to utilize the listening aid but Scioto App. No. 24CA4070 53

reminded the jury of its prior admonitions regarding the use of the aid. The court’s

prior instruction regarding the listening aid was as follows:

In this case, you will hear testimony concerning a recording. You will also hear the audio portion of that DVD and have a listening aid of that recording offered by the State. You’re instructed that the listening aid in this case is merely an aid to facilitate listening. The evidence consists of the recording itself. The listening aid is provided to you only for the purpose of helping you understand the recording, if you find they do help you. If you find that there is a discrepancy between the listening aid and the recording, you are to rely only on the recording. Again, if you find any difference between the recording and the listening aid you should disregard the listening aid and use your own judgment as to what was said.

{¶94} In light of the foregoing, the record is clear that although the jury was

permitted to utilize the listening aid during its deliberations, it was only permitted

access to the aid for a short amount of time and only while it was brought back into

the courtroom to review the dashcam video. The jury was not permitted to take the

aid back into the jury room while it continued its deliberations. We find no error in

permitting the jury access to the aid in this controlled environment, especially

considering it had already viewed the aid previously and the trial court instructed

the jury at length regarding its use of the aid. Accordingly, we find no merit to

appellant’s argument that this alleged error contributed to cumulative error below.

{¶95} Moreover, with the exception of one arguable error which we

determined to be harmless beyond a reasonable doubt, we have found no merit to

appellant’s preceding assignments of error or the many other “Issues presented for Scioto App. No. 24CA4070 54

review” contained within each assignment of error. Thus, because appellant has

not pointed to “multiple instances of harmless error,” we cannot conclude that

cumulative errors violated her constitutional right to a fair trial. Therefore, we

find no merit to the arguments raised under appellant’s sixth and final issue

presented under her second assignment of error. Accordingly, appellant’s second

assignment of error is overruled.

{¶96} Furthermore, having found no merit to any of appellant’s assignments

of error, the judgment of the trial court is affirmed.

JUDGMENT AFFIRMED. Scioto App. No. 24CA4070 55

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that 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 Hess, J., concur in Judgment and Opinion.

For the Court, _____________________________ Jason P. 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.