[Cite as State v. Little, 2023-Ohio-4098.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
STATE OF OHIO, CASE NOS. 2023-P-0011 2023-P-0012 Plaintiff-Appellee, Criminal Appeals from the - vs - Court of Common Pleas
ANGEL LITTLE, Trial Court Nos. 2021 CR 00659 Defendant-Appellant. 2022 CR 00323 C
OPINION
Decided: November 13, 2023 Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Eric R. Fink, 11 River Street, Kent, OH 44240 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} In this consolidated appeal, defendant-appellant, Angel Little (“Mr. Little”),
appeals from his judgment of conviction in the Portage County Court of Common Pleas
following a jury trial in which he was found guilty of three counts of aggravating trafficking
in drugs and one count of aggravated possession of drugs.
{¶2} Mr. Little raises three assignments of error, contending (1) the trial court
erred in denying his pretrial motion to suppress; (2) his convictions were not supported
by sufficient evidence; and (3) the trial court erred in allowing joinder and failing to sever
his two indictments for trial. {¶3} After a careful review of the record and pertinent law, we find as follows:
{¶4} (1) The trial court did not err in denying Mr. Little’s motion to suppress. The
traffic stop of Mr. Little’s vehicle was constitutional because the police had a reasonable
and articulable suspicion that he had engaged in drug activity, as well as probable cause
that he had committed traffic violations. Mr. Little’s detention for a canine sniff was also
constitutional. The testimony from the suppression hearing does not indicate Mr. Little’s
detention was artificially prolonged. Even if it was, the delay was supported by
reasonable, articulable suspicion of Mr. Little’s drug activity.
{¶5} (2) The state presented sufficient evidence, if believed, to prove beyond a
reasonable doubt that Mr. Little committed three counts of aggravated trafficking in drugs
and one count of aggravated possession of drugs. The testimony of the police’s
confidential informant, if believed, was sufficient to establish Mr. Little either sold, offered
to sell, or was complicit in selling methamphetamine during three controlled drug buys.
In addition, when the circumstantial evidence presented at trial is viewed in a light most
favorable to the state, it was sufficient to establish Mr. Little constructively possessed the
large amount of methamphetamine found under the hood of the vehicle he was driving.
{¶6} (3) Mr. Little has not established plain error with respect to the trial court’s
failure to sever his indictments for trial. The record supports the conclusion that based
on application of the “joinder test,” the evidence presented for each charge was simple
and direct.
{¶7} Thus, Mr. Little’s assignments of error are without merit, and we affirm the
judgment of the Portage County Court of Common Pleas.
Case Nos. 2023-P-0011 and 2023-P-0012 Substantive and Procedural History
{¶8} This matter involves Mr. Little’s convictions on two felony indictments that
were joined for trial: case no. 2022 CR 00323 C (“the 2022 case”) and case no. 2021 CR
00659 (“the 2021 case”). We summarize the underlying facts chronologically.
The 2022 Case
{¶9} The 2022 case involves three controlled drug buys in which a confidential
informant (“C.I.”) for the Portage County Drug Task Force (“the Drug Task Force”)
purchased methamphetamine from Mr. Little. For each buy, the police equipped the C.I.
with a video/audio recording device and cash, transported the C.I. to the arranged
destination, and searched the C.I. before and after the transaction.
{¶10} The first buy occurred on February 26, 2021, at a mobile home park in
Ravenna, Ohio. The C.I. contacted Mr. Little, and he agreed to sell an “eight ball,” i.e., “a
couple grams of meth,” for $100. Upon arrival, a woman answered the door and led the
C.I. to a bedroom where Mr. Little was present. The C.I. engaged in a short conversation
with Mr. Little, exchanged money for drugs, and left. Sgt. Graham of the Streetsboro
Police Department watched the video recording and identified Mr. Little from a screen
capture that he compared to a photo from Mr. Little’s social media account. Subsequent
testing revealed the substance weighed 3.7 grams and contained methamphetamine.
{¶11} The second buy occurred on March 5, 2021, at an apartment complex in
Kent, Ohio. The C.I. contacted Mr. Little, and he agreed to sell another “eight ball” for
either $60 or $80. The C.I. had difficulty locating Mr. Little and called him on the phone.
Mr. Little told the C.I. to go to a back window. Upon arrival, an unidentified “skinny young
kid” completed the transaction through the window. The C.I. reported seeing Mr. Little
Case Nos. 2023-P-0011 and 2023-P-0012 inside the apartment standing next to the unknown person. Subsequent testing revealed
the substance weighed 1.68 grams and contained methamphetamine.
{¶12} The third buy occurred on March 23, 2021, near an elementary school in
Ravenna, Ohio. The C.I. contacted Mr. Little, and he agreed to sell methamphetamine.
They were unable to agree on a location, so the C.I. suggested the school. While walking
to the building, the C.I. was met by Hailey Haney (“Ms. Haney”). The C.I. asked Ms.
Haney if she was Mr. Little’s “people.” Ms. Haney responded in the affirmative and said
she was Mr. Little’s cousin. According to Ms. Haney, she was at a house with Mr. Little
and overheard his conversation with the C.I. She volunteered to complete the transaction
because she wanted to “get high.” While walking to the meeting place, Ms. Haney ate
some of the drugs. The C.I. and Ms. Haney completed the transaction. Subsequent
testing revealed the substance weighed 3.46 grams and contained methamphetamine.
{¶13} In March 2022, the Portage County Grand Jury indicted Mr. Little on three
counts of aggravated trafficking in drugs in violation of R.C. 2925.03: aggravated
trafficking in methamphetamine in an amount exceeding (but not exceeding five times)
the bulk amount in the vicinity of a school or juvenile, a second-degree felony (count 1);
aggravated trafficking in methamphetamine in an amount less than the bulk amount, a
fourth-degree felony (count 2); and aggravated trafficking in methamphetamine in an
amount exceeding (but not exceeding five times) the bulk amount, a third-degree felony
(count 3). Ms. Haney was charged as a co-defendant in count 1. Mr. Little pleaded not
guilty to the charges.
Case Nos. 2023-P-0011 and 2023-P-0012 The 2021 Case
{¶14} The 2021 case involves a traffic stop that occurred on June 23, 2021, in
which the police discovered a large amount of methamphetamine under the hood of the
vehicle Mr. Little was driving.
{¶15} The Drug Task Force was conducting an interdiction operation focused on
hotels in Brimfield, Ohio. Sgt. Graham was sitting in an unmarked vehicle in a hotel
parking lot. At approximately 7:15 p.m., he observed Mr. Little, whom he recognized from
the prior controlled buys, drive an SUV into the parking lot along with a passenger. Sgt.
Graham later learned the passenger was Jason Little (“Jason”), who is Mr. Little’s father
or stepfather and a known drug trafficker who had spent time in prison.
{¶16} Mr. Little drove towards the back of the hotel and parked. Two women came
out, walked to the driver’s side of the vehicle, and appeared to engage in a transaction.
After a brief period of time, the women walked away, and Mr. Little pulled out of the
parking lot.
{¶17} Sgt. Graham radioed the other officers in the area, informed them about
what he had observed, and requested the initiation of a traffic stop. He also informed the
officers that based on information he had received from another member of the Drug Task
Force, Mr. Little was known to keep methamphetamine under the hood of his vehicle.
{¶18} Det. Centa from the Portage County Sheriff’s Office observed Mr. Little’s
vehicle enter I-76 and begin traveling westbound at approximately 50 to 55 miles per
hour. Shortly thereafter, Mr. Little abruptly crossed over the fog line with all four tires,
exited the highway, and began traveling southbound on State Route 532. Det. Centa
informed the other officers of the traffic violations.
Case Nos. 2023-P-0011 and 2023-P-0012 {¶19} Officer Kennedy of the Brimfield Police Department eventually initiated a
traffic stop of Mr. Little’s vehicle. He radioed for backup because there was more than
one person in the vehicle, and Officer Rapp arrived. Both officers approached the vehicle,
and Officer Kennedy informed Mr. Little he was stopped for impeding traffic.
{¶20} Officer Kennedy asked Mr. Little for his information. Mr. Little produced
copies of a temporary permit and his identification card, and Jason produced his driver’s
license. Officer Kennedy walked back to his patrol car, radioed the parties’ information
to dispatch, and called for a canine unit.
{¶21} Officer Kennedy walked back to the vehicle and asked Mr. Little where he
was going. Mr. Little said he was driving to the gas station on Gilcrest Road because he
was running out of gas. According to Officer Kennedy, however, Mr. Little was driving in
the opposite direction, which raised his suspicion.
{¶22} Sgt. Knarr of the Brimfield Police Department intended to respond with his
canine partner but was delayed. Instead, Trooper English of the Ohio State Highway
Patrol arrived with his canine partner, Hunter. The officers had Mr. Little and Jason exit
the vehicle, patted them down for weapons, and placed them in separate patrol cars.
Hunter circled the outside of the vehicle and performed a free air sniff. He notified Trooper
English of a positive indication, and Officers Kennedy and Rapp began searching the
vehicle.
{¶23} Sgt. Knarr arrived and assisted with the search. According to both Officer
Kennedy and Sgt. Knarr, a member of the Drug Task Force drove by and told them to
make sure they checked under the vehicle’s hood. The officers opened the hood and
discovered a black sunglasses case on the upper portion of the passenger side. Upon
Case Nos. 2023-P-0011 and 2023-P-0012 opening the case, they discovered baggies of what appeared to be methamphetamine.
The officers read Miranda warnings to Mr. Little and Jason and placed them under arrest.
Mr. Little was not cited for any traffic violations. Subsequent testing indicated the
substance found under the hood weighed 55.22 grams and contained methamphetamine.
{¶24} Mr. Little did not own the vehicle. Sgt. Graham later contacted the
registered owner, Christina Brode (“Ms. Brode”). Ms. Brode indicated she was Mr. Little’s
friend and lent him the vehicle so he could practice driving with Jason in preparation for
his upcoming driver’s license test. She emphasized that the methamphetamine
discovered under the hood did not belong to her.
{¶25} In July 2021, the Portage County Grand Jury indicted Mr. Little on two felony
counts: aggravated trafficking in drugs in an amount exceeding five times (but not
exceeding 50 times) the bulk amount, a second-degree felony, in violation of R.C.
2925.03 (count 1), and aggravated possession of drugs in an amount exceeding five
times (but not exceeding 50 times) the bulk amount, a second-degree felony, in violation
of R.C. 2925.11 (count 2). Mr. Little pleaded not guilty to the charges.
{¶26} Mr. Little filed a motion to suppress, contending the traffic stop and his
detention were unconstitutional. The trial court held a suppression hearing, during which
the state presented testimony from Sgt. Graham, Det. Centa, Officer Kennedy, Trooper
English, and Sgt. Knarr. The trial court filed a judgment entry overruling Mr. Little’s motion
to suppress.
Trial Court Proceedings
{¶27} In May 2022, the state filed a motion for joinder of the two indictments
pursuant to Crim.R. 13, which Mr. Little opposed. The trial court filed a judgment entry
Case Nos. 2023-P-0011 and 2023-P-0012 granting the state’s motion for joinder. Mr. Little filed a motion to reconsider. The trial
court held a hearing and filed a judgment entry denying Mr. Little’s motion to reconsider.
{¶28} The matter was tried to a jury from January 10 through 12, 2023. The week
before trial, on January 5, 2023, Mr. Little filed a motion for severance and relief from
prejudicial joinder pursuant to Crim.R. 14. The trial court addressed this motion on the
first day of trial, stating, “I had already granted the State’s motion months ago to join the
cases. I didn’t know if you were aware of that, [defense counsel], because I think [prior
defense counsel] was on it then.” Defense counsel responded, “After I filed the motion, I
became aware that we’d already talked about this and then I’d already requested that you
reconsider as well. * * * So we understand that nothing has changed.” The trial court
stated it intended to deny the motion for severance “because it was already granted that
they be joined for various reasons.”
{¶29} The trial court also addressed the state’s request to amend the indictments.
For the 2021 case, the state indicated it was only proceeding on count 2, i.e., aggravated
possession of drugs. For the 2022 case, the state indicated it was dismissing the school
zone specification in count 1, which reduced the charge to a third-degree felony.
{¶30} The state presented testimony from Sgt. Graham, the C.I., Det. Centa, Ms.
Haney, Officer Kennedy, Trooper English, Sgt. Knarr, and two forensic scientists from
Ohio Bureau of Criminal Investigation (“Ohio BCI”). The state submitted exhibits
consisting of the methamphetamine, the video recordings of the controlled buys, the
screenshot of Mr. Little, body camera footage from the traffic stop, and reports from Ohio
BCI.
Case Nos. 2023-P-0011 and 2023-P-0012 {¶31} Following the state’s case-in-chief, the defense moved for acquittal
pursuant to Crim.R. 29, which the trial court denied. The defense rested without
presenting testimony or exhibits. The defense renewed its motion for acquittal, which the
trial court again denied.
{¶32} The jury returned its verdict finding Mr. Little guilty of all four of the offenses
presented to it. The trial court ordered a presentence investigation and set the matter for
sentencing.
{¶33} On January 27, 2023, Mr. Little filed a motion for a new trial on the grounds
of prejudicial joinder.
{¶34} On February 27, 2023, the trial court held a sentencing hearing. The trial
court addressed Mr. Little’s motion for a new trial. Defense counsel stated, “Now that
we’ve had the trial, it’s even more apparent that Mr. Little was prejudiced by the trying of
both unrelated cases together.” The trial court overruled Mr. Little’s motion for a new trial,
stating it did not believe it was an appropriate remedy. The trial court sentenced Mr. Little
to an aggregate prison term of five to six-and-a-half years and a mandatory fine of $7,500.
In March 2023, the trial court filed a judgment entry memorializing Mr. Little’s convictions.
{¶35} Mr. Little filed two notices of appeal, which we consolidated sua sponte. He
raises the following three assignments of error:
{¶36} “[1.] The trial court erred in denying Mr. Little’s Motion to Suppress
Evidence from the June 23, 2021 traffic stop in violation of his constitutional rights.
{¶37} “[2.] Mr. Little’s convictions for Aggravated Possession and Aggravated
Trafficking are not supported by sufficient evidence to sustain a conviction.
Case Nos. 2023-P-0011 and 2023-P-0012 {¶38} “[3.] The trial court erred in allowing joinder and failing to sever Mr. Little’s
two cases for purposes of trial.”
Motion to Suppress
{¶39} In his first assignment of error, Mr. Little contends the trial court erred in
denying his motion to suppress.
{¶40} “Appellate review of a motion to suppress presents a mixed question of law
and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
“When considering a motion to suppress, the trial court assumes the role of trier of fact
and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses.” Id. On appeal, “an appellate court must accept the trial court’s
findings of fact if they are supported by competent, credible evidence.” Id. “Accepting
these facts as true, the appellate court must then independently determine, without
deference to the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” Id.
Traffic Stop
{¶41} Mr. Little first contends the traffic stop was unconstitutional because it was
pretextual. “The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution guarantee the right to be free from unreasonable
searches and seizures.” State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d
1204, ¶ 7. Stopping an automobile and detaining its occupants constitutes a “seizure”
within the meaning of the Fourth and Fourteenth Amendments. Delaware v. Prouse, 440
U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
Case Nos. 2023-P-0011 and 2023-P-0012 {¶42} The police may constitutionally stop a motorist if the seizure is premised
upon either a reasonable suspicion or probable cause. State v. Eggleston, 2015-Ohio-
958, 29 N.E.3d 23, ¶ 20 (11th Dist.). Specifically, “[t]he United States Supreme Court has
stated that a traffic stop is constitutionally valid if an officer has a reasonable and
articulable suspicion that a motorist has committed, is committing, or is about to commit
a crime.” Mays at ¶ 7. “[I]f an officer’s decision to stop a motorist for a criminal violation,
including a traffic violation, is prompted by a reasonable and articulable suspicion
considering all the circumstances, then the stop is constitutionally valid.” Id. at ¶ 8. In
addition, “[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 to the United States Constitution even if the officer had some ulterior motive
for making the stop, such as a suspicion that the violator was engaging in more nefarious
criminal activity.” Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), syllabus.
{¶43} Here, the stop of Mr. Little’s vehicle was constitutional under either of the
foregoing bases. First, the police had a reasonable and articulable suspicion that Mr.
Little had engaged in drug activity. Sgt. Graham testified during the suppression hearing
that he directly observed a possible hand-to-hand drug transaction in the hotel parking lot
between Mr. Little and the two women. Second, the police had probable cause that Mr.
Little had committed traffic violations. Det. Centa testified that he directly observed Mr.
Little impede traffic with his slow rate of speed and cross over the fog line with all four
tires while exiting the highway. While it appears the officers were more interested in
investigating Mr. Little for potential drug activity rather than traffic offenses, this does not
render the stop unconstitutional.
Case Nos. 2023-P-0011 and 2023-P-0012 Detention
{¶44} Mr. Little next contends his detention was unconstitutional because it was
impermissibly prolonged. “‘When detaining a motorist for a traffic violation, an officer may
delay the motorist for a time period sufficient to issue a ticket or a warning. * * * This
measure includes the period of time sufficient to run a computer check on the driver’s
license, registration, and vehicle plates. * * * “In determining if an officer completed these
tasks within a reasonable length of time, the court must evaluate the duration of the stop
in light of the totality of the circumstances and consider whether the officer diligently
conducted the investigation.”’” State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204,
865 N.E.2d 1282, ¶ 12, quoting State v. Howard, 12th Dist. Preble Nos. CA2006-02-002
and CA2006-02-003, 2006-Ohio-5656, ¶ 15, quoting State v. Carlson, 102 Ohio App.3d
585, 598-599, 657 N.E.2d 591 (9th Dist.1995).
{¶45} In addition, “an exterior sniff by a trained narcotics dog to detect the
presence of contraband does not constitute a search under circumstances in which a
vehicle has been lawfully detained.” State v. Melone, 11th Dist. Lake No. 2009-L-047,
2009-Ohio-6710, ¶ 58; see Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160
L.Ed.2d 842 (2005). Thus, “[a] traffic stop is not unconstitutionally prolonged when
permissible background checks have been diligently undertaken and not yet completed
at the time a drug dog alerts on the vehicle.” Batchili at ¶ 14.
{¶46} Even if a detention is “actually prolonged by the request for a dog search,
‘the detention of a stopped driver may continue beyond [the normal] time frame when
additional facts are encountered that give rise to a reasonable, articulable suspicion of
criminal activity beyond that which prompted the initial stop.’” Id. at ¶ 15, quoting Howard
Case Nos. 2023-P-0011 and 2023-P-0012 at ¶ 16. “Once it is determined that a delay occurred for the sole purpose of conducting
a K-9 ‘sniff,’ the question is not whether the delay was undue, but whether the delay was
supported by a reasonable, articulable suspicion of drug activity.” Eggleston at ¶ 28.
{¶47} The testimony from the suppression hearing does not indicate Mr. Little’s
detention was “artificially prolonged,” as Mr. Little contends. At the suppression hearing,
Officer Kennedy testified that the canine unit arrived within ten minutes or less. Mr. Little’s
argument relies on body camera footage that was admitted during trial; however, it was
not before the trial court when it considered Mr. Little’s motion to suppress. “An appellate
court may consider only evidence that was presented during the suppression hearing and
may not consider evidence presented at trial.” State v. Monford, 190 Ohio App.3d 35,
2010-Ohio-4732, 940 N.E.2d 634, ¶ 45 (10th Dist.). Even if Mr. Little’s detention was
delayed to permit the canine unit’s arrival, any such delay was supported by reasonable,
articulable suspicion of drug activity, i.e., Sgt. Graham’s prior observation of a possible
hand-to-hand drug transaction in the hotel parking lot.
{¶48} In sum, the traffic stop and the detention were both constitutionally
permitted under existing precedent. Accordingly, the trial court did not err in overruling
Mr. Little’s motion to suppress.
{¶49} Mr. Little’s first assignment of error is without merit.
Sufficiency of the Evidence
{¶50} In his second assignment of error, Mr. Little contends his convictions were
not supported by sufficient evidence.
{¶51} “‘“Sufficiency” is a term of art meaning that legal standard which is applied
to determine whether the case may go to the jury or whether the evidence is legally
Case Nos. 2023-P-0011 and 2023-P-0012 sufficient to support the jury verdict as a matter of law.’” State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433 (6th
Ed.1990). “In essence, sufficiency is a test of adequacy.” Id. “An appellate court’s
function when reviewing the sufficiency of the evidence to support a criminal conviction
is to examine the evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a reasonable
doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. “The relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id. “This naturally entails a
review of the elements of the charged offense and a review of the state’s evidence.” State
v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13.
{¶52} “[W]hen conducting a sufficiency of the evidence analysis, this court is to
look at the actual evidence admitted at trial, both admissible and inadmissible.” State v.
Rose, 11th Dist. Lake No. 2014-L-086, 2015-Ohio-2607, ¶ 34. In addition, “the claim of
insufficient evidence invokes a question of due process, the resolution of which does not
allow for a weighing of the evidence.” Id. at ¶ 33.
Aggravated Trafficking
{¶53} Mr. Little contends the state presented insufficient evidence to convict him
of three counts of aggravated trafficking in drugs in violation of R.C. 2925.03, which
provides, in relevant part, “No person shall knowingly * * * [s]ell or offer to sell a controlled
substance or a controlled substance analog * * *.” R.C. 2925.03(A)(1).
Case Nos. 2023-P-0011 and 2023-P-0012 {¶54} For all three controlled buys, Mr. Little contends the state presented “no
evidence” of the alleged conversations between himself and the C.I. regarding possible
drug transactions. For the first buy, Mr. Little also contends Sgt. Graham did not witness
the transaction, and Mr. Little was not the only person present in the mobile home.
{¶55} The C.I.’s testimony implicated Mr. Little’s direct involvement, and the C.I.’s
testimony constituted “evidence.” Mr. Little cites no authority indicating the C.I.’s
testimony was required to be corroborated, and we have not located any such authority.
See State v. Some, 2d Dist. Montgomery No. 28106, 2019-Ohio-3399, ¶ 14. Whether the
C.I.’s testimony was believable involves the C.I.’s credibility and the weight of the
evidence, not sufficiency. “On review for sufficiency, courts are to assess not whether
the state’s evidence is to be believed, but whether, if believed, the evidence against a
defendant would support a conviction.” (Emphasis added.) Thompkins, supra, at 390
(Cook, J., concurring). In addition, Sgt. Graham testified he was able to identify Mr. Little
from a screen capture of the video recording for the first controlled buy.
{¶56} For the second buy, Mr. Little contends that even though the C.I. testified
regarding his presence, an unidentified person exchanged the drugs for money through
the apartment window. For the third buy, Mr. Little contends there was “absolutely no
evidence” of his involvement. Rather, Ms. Haney overheard Mr. Little’s conversation and
sold the drugs of her own volitation.
{¶57} The C.I.’s testimony, if believed, was sufficient to establish Mr. Little’s
convictions under two independent theories. First, the offense of aggravated trafficking
in drugs encompasses both selling and offering to sell a controlled substance. See R.C.
Case Nos. 2023-P-0011 and 2023-P-0012 2925.03(A)(1). Thus, the C.I.’s testimony, if believed, was sufficient to establish, at the
very least, Mr. Little offered to sell methamphetamine during the second and third buys.
{¶58} Second, the trial court instructed the jury on the law of complicity. Ohio’s
complicity statute, R.C. 2923.03, provides, in relevant part, “No person, acting with the
kind of culpability required for the commission of an offense, shall * * * (1) [s]olicit or
procure another to commit the offense; [or] (2) [a]id or abet another in committing the
offense * * *.” R.C. 2929.03(A)(1) and (2).1 “To support a conviction for complicity by
aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show 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 criminal intent
of the principal. Such intent may be inferred from the circumstances surrounding the
crime.” State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus.
{¶59} The C.I. testified that Mr. Little arranged the second and third buys. For the
second buy, Mr. Little told the C.I. exactly where to go at the apartment complex. For the
third buy, Ms. Haney confirmed she was Mr. Little’s “people.” Further, Ms. Haney testified
that she overheard Mr. Little making arrangements, and she volunteered to participate in
order to “get high.” This evidence, if believed, was sufficient to support an inference that
Mr. Little solicited, procured, aided, or abetted the unidentified person in the window and
Ms. Haney in selling methamphetamine during the second and third buys.
1. Although the indictment did not reference complicity, “[a] charge of complicity may be stated in terms of [R.C. 2903.03], or in terms of the principal offense.” R.C. 2903.03(F). 16
Case Nos. 2023-P-0011 and 2023-P-0012 Aggravated Possession
{¶60} Mr. Little next contends the state presented insufficient evidence to convict
him of aggravated possession of drugs in violation of R.C. 2925.11, which provides, in
relevant part, “No person shall knowingly obtain, possess, or use a controlled substance
or a controlled analog.” (Emphasis added.) R.C. 2925.11(A).
{¶61} “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.” R.C. 2901.22(B).
{¶62} “‘Possess’ or ‘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).
{¶63} Possession can be either actual or constructive. State v. Fogle, 11th Dist.
Portage No. 2008-P-0009, 2009-Ohio-1005, ¶ 28. “‘Constructive possession exists when
an individual is able to exercise dominion or control over an item, even if the individual
does not have the item within his immediate physical possession.’” State v. Hudson,
2018-Ohio-133, 104 N.E.3d 25, ¶ 47 (11th Dist.), quoting State v. Kingsland, 177 Ohio
App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶ 13 (4th Dist.). To prove constructive
Case Nos. 2023-P-0011 and 2023-P-0012 possession, “[i]t must also be shown that the person was conscious of the presence of
the object.” State v. Hankerson, 70 Ohio St.2d 87, 91, 434 N.E.2d 1362 (1982).
{¶64} Constructive possession may be supported solely by circumstantial
evidence. Fogle at ¶ 30. Circumstantial evidence is the proof of facts by direct evidence
from which a factfinder may reasonably infer the existence of other facts. State v. Pistillo,
11th Dist. Lake No. 2003-L-183, 2004-Ohio-6333, ¶ 20. “Circumstantial evidence and
direct evidence inherently possess the same probative value,” and “[i]n some instances
certain facts can only be established by circumstantial evidence.” Jenks, supra, at 502.
For instance, “[a]bsent an admission by a defendant or direct testimony by another with
knowledge, the defendant’s knowledge of the presence of illegal drugs where the crime
charged is possession of drugs often must be proven via circumstantial evidence * * *.”
Hudson at ¶ 48.
{¶65} Mr. Little contends the state presented “absolutely no evidence” that he
possessed the large amount methamphetamine discovered under the hood of the vehicle
he was driving. We disagree.
{¶66} The testimony indicates that the Drug Task Force was conducting an
interdiction operation focused on hotels, and Mr. Little arrived. Sgt. Graham witnessed
Mr. Little appear to engage in a transaction with two women from the hotel. A member of
the task force indicated Mr. Little was known to keep methamphetamine under the hood
of his vehicle. When the police subsequently searched the vehicle Mr. Little was driving,
they discovered methamphetamine under the hood. Although Mr. Little did not own the
vehicle, Ms. Brode had given him permission to drive it. As the driver, Mr. Little would
have had sole access to the vehicle’s hood release. When this circumstantial evidence
Case Nos. 2023-P-0011 and 2023-P-0012 is viewed in a light most favorable to the state, it was sufficient to establish Mr. Little
constructively possessed the methamphetamine.
{¶67} In sum, the state presented sufficient evidence, if believed, to prove beyond
a reasonable doubt that Mr. Little committed three counts of aggravated trafficking in
drugs and one count of aggravated possession of drugs.
{¶68} Mr. Little’s second assignment of error is without merit.
Joinder and Severance
{¶69} In his third and final assignment of error, Mr. Little contends the trial court
erred in allowing joinder and failing to sever his two indictments for trial.
Crim.R. 8(A) and 13
{¶70} “‘The law favors joining multiple criminal offenses in a single trial.’” State v.
Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 18, quoting State v.
Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991). “This is because joint trials
‘conserve state funds, diminish inconvenience to witnesses and public authorities, and
avoid delays in bringing those accused of crime to trial.’” Id., quoting Bruton v. United
States, 391 U.S. 123, 134, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Pursuant to Crim.R.
13, “[t]he court may order two or more indictments or informations or both to be tried
together, if the offenses * * * could have been joined in a single indictment or information.”
Crim.R. 8(A) provides the standards for determining whether separate offenses can be
charged in the same indictment:
{¶71} “Two or more offenses may be charged in the same indictment * * * if the
offenses charged, whether felonies or misdemeanors or both, are of the same or similar
character, or are based on the same act or transaction, or are based on two or more acts
Case Nos. 2023-P-0011 and 2023-P-0012 or transactions connected together or constituting parts of a common scheme or plan, or
are part of a course of criminal conduct.”
{¶72} Even if indictments are initially correctly joined under Crim.R. 8(A) and 13,
a trial court should order separate trials pursuant to Crim.R. 14 if it appears the defendant
is prejudiced by the joinder. Gordon at ¶ 20. Crim.R. 14 provides in relevant part:
{¶73} “If it appears that a defendant or the state is prejudiced by a joinder of
offenses * * * in an indictment, information, or complaint, or by such joinder for trial
together of indictments, informations or complaints, the court shall order an election or
separate trial of counts * * * or provide such other relief as justice requires.”
{¶74} Mr. Little has not set forth an argument based on Crim.R. 8(A) and 13
asserting that the trial court improperly joined his indictments. Therefore, we consider his
third assignment of error solely in relation to severance under Crim.R. 14.
Crim.R. 14
{¶75} This court generally reviews a trial court’s denial of a motion to sever under
an abuse of discretion standard. State v. Shannon, 11th Dist. Lake No. 2017-L-092,
2019-Ohio-421, ¶ 50. However, when a defendant fails to renew a motion to sever at the
conclusion of the presentation of all of the evidence at trial, it is waived, and the matter is
reviewed for plain error. State v. Jackson, 11th Dist. Lake No. 2017-L-140, 2018-Ohio-
3241, ¶ 22.
{¶76} Here, Mr. Little filed a motion for severance and relief from prejudicial
joinder pursuant to Crim.R. 14 a few days before trial. However, it appears defense
counsel abandoned that motion on the first day of trial. Specifically, the trial court stated
its belief that it had already considered the issue months ago by granting the state’s
Case Nos. 2023-P-0011 and 2023-P-0012 motion for joinder, and defense counsel agreed. Defense counsel also did not renew its
motion for severance at the conclusion of the presentation of all of the evidence. Rather,
defense counsel reasserted the issue of prejudice over two weeks later in a motion for a
new trial. Thus, Mr. Little has waived all but plain error.
{¶77} To establish plain error, a defendant must show an error that constitutes an
obvious defect in the trial proceedings and demonstrate that the error affected the
outcome of the trial. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
860, ¶ 22. “Notice of plain error * * * is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State
v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶78} “When a defendant claims that joinder is improper, he must affirmatively
show that his rights have been prejudiced.” State v. Quinones, 11th Dist. Lake No. 2003-
L-015, 2005-Ohio-6576, ¶ 38. “The accused must provide the trial court with sufficient
information demonstrating that he would be deprived of the right to a fair trial if joinder is
permitted.” Id. “The state may negate the defendant’s claim of prejudice by
demonstrating either of the following: (1) that the evidence to be introduced relative to
one offense would be admissible in the trial on the other, severed offense, pursuant to
Evid.R. 404(B); or (2) that, regardless of the admissibility of such evidence, the evidence
relating to each charge is simple and direct.” Id. at ¶ 39. “The former is generally referred
to as the ‘other acts test,’ while the latter is known as the ‘joinder test.’” Id., quoting State
v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990).
{¶79} Mr. Little contends that the “other acts test” is not met. However, since Mr.
Little did not properly assert his motion to sever, the trial court did not engage in any
Case Nos. 2023-P-0011 and 2023-P-0012 “other acts” analysis under Evid.R. 404(B). We decline to do so for the first time on appeal
because the record indicates the less stringent “joinder test” is met. Evidence is
considered simple and direct when “the jury is believed capable of segregating the proof
on each charge.” State v. Roberts, 62 Ohio St.2d 170, 175, 405 N.E.2d 247 (1980). Here,
each of Mr. Little’s charges involved different dates, locations, and actions. In addition,
Mr. Little’s alleged conduct in committing the aggravated trafficking offenses, i.e., selling
methamphetamine to the C.I. on three occasions, was separate and distinct from his
alleged conduct in committing the aggravated possession offense, i.e., concealing
methamphetamine under the hood of the vehicle he was driving. Accordingly, Mr. Little
has not established plain error with respect to the trial court’s failure to sever his
indictments for trial.
{¶80} Mr. Little’s third assignment of error is without merit.
{¶81} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas is affirmed.
EUGENE A. LUCCI, J.,
ROBERT J. PATTON, J.,
concur.
Case Nos. 2023-P-0011 and 2023-P-0012