State v. Morris

2023 Ohio 168

• Court: Ohio Court of Appeals
• Decided: January 20, 2023
• Docket: L-22-1025
• Status: Published

Opinion

[Cite as State v. Morris, 2023-Ohio-168.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-22-1025

Appellee Trial Court No. CR0201902771

v.

Lawrence Morris, Jr. DECISION AND JUDGMENT

Appellant Decided: January 20, 2023

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

Dennis C. Belli, for appellant.

PIETRYKOWSKI, J.

{¶ 1} Appellant, Lawrence Morris, Jr., appeals the judgment of the Lucas County

Court of Common Pleas, following a jury trial, convicting him of one count of possession

of cocaine. For the reasons that follow, we affirm. I. Facts and Procedural Background

{¶ 2} On October 9, 2019, the Lucas County Grand Jury returned a four-count

indictment against appellant, charging him with one count of trafficking in cocaine, one

count of possession of cocaine, one count of receiving stolen property, and one count of

misdemeanor endangering children. The charges arose following the July 12, 2019

execution of a search warrant that uncovered two bags of cocaine inside the residence

located at 2110 Airport Highway, Toledo, Ohio.

{¶ 3} Following an initial plea of not guilty, appellant moved to suppress the

evidence seized from the residence. Appellant argued that the affidavit supporting the

search warrant failed to establish probable cause to believe that evidence would be found

at the residence.

{¶ 4} Toledo Police Detective Ryan Klump submitted the affidavit, in which he

detailed appellant’s history of drug encounters, including a traffic stop that Klump

participated in on October 23, 2018. During that stop, the vehicle appellant was driving

was discovered to have approximately 44 grams of cocaine. The affidavit further detailed

information from three confidential sources who observed appellant make hand to hand

transactions, and meet with people for short amounts of time, which Klump stated was

consistent with drug trafficking. Klump stated in the affidavit that the sources have

assisted him in criminal investigations for between one and four years, have provided

information that has led to the seizure of contraband, have provided information that has

2. been verified as credible and accurate, and have assisted him in the arrest and conviction

of numerous narcotics traffickers. Notably, Klump used substantially identical language

to describe the credibility of each source.

{¶ 5} The sources identified appellant and his silver Dodge Ram truck, and

provided information that appellant resided at 2110 Airport Highway. The observations

from the confidential sources occurred between January and July 2019. Some of the

specific observations included source three informing Klump on June 11, 2019, that

appellant was observed trafficking cocaine; source one informing Klump on June 20,

2019, that appellant had just received 10 pounds of marijuana; and source three informing

Klump on July 5, 2019, that appellant had just sold two “zips” (ounces) of cocaine from

2110 Airport Highway. Klump also stated in his affidavit that during this time,

surveillance was conducted on 2110 Airport Highway, and appellant was observed

frequently entering and exiting the property, using his key to lock and unlock the

property, and parking his silver Dodge Ram truck in the garage.

{¶ 6} Following a hearing on the motion to suppress, the trial court denied

appellant’s motion, finding that there was “more than a substantial basis for a conclusion

of probable cause.”

{¶ 7} Thereafter, the matter proceeded to a three-day jury trial at which the state

called five witnesses. The first witness was Toledo Police Detective Robert Tyburski.

Tyburski assisted with the execution of the search warrant on July 12, 2019. Tyburski

3. testified that no one was home when they entered. Tyburski first searched the kitchen

and discovered a revolver in a kitchen cabinet. Tyburski next searched the living room

and found a bankcard and an expired Ohio driver’s license belonging to appellant.

{¶ 8} The next witness to testify was appellant’s probation officer, Dave Schultz.

Schultz authenticated records from the probation department in which appellant reported

his residence as 2110 Airport Highway on monthly forms from May 2019 through

February 2020.

{¶ 9} The third witness to testify was Chadwyck Douglas, who works at the

Toledo Police Crime Lab. Douglas testified as an expert witness in the field of drug

analysis. Douglas testified that he tested two substances. One he identified as marijuana,

weighing 11.91 grams. The other substance he identified as cocaine hydrochloride

weighing 37.14 grams.

{¶ 10} The fourth witness was Kaitlyn Porter, who works at the Toledo Police

Forensic Lab. Porter testified that she test-fired the revolver, as well as a rifle recovered

from the scene, and both weapons were found to be operable.

{¶ 11} The last witness to testify for the state was Detective Klump. Klump

testified that he conducted surveillance on 2110 Airport Highway over 20 times as part of

a narcotics and drug trafficking investigation. Klump often observed appellant arrive at

the location, park his silver Dodge Ram truck in the garage, walk to the front door, and

unlock the front door with a key. In addition to appellant, Klump observed 10 to 20 other

4. people coming and going from the residence, ranging in age from toddlers to pre-teens to

adults. Klump testified that the high amount of traffic is common for houses that are

used for drug trafficking.

{¶ 12} Klump also participated in a “trash pull” from the residence, and

discovered mail addressed to appellant at 2110 Airport Highway. Klump also discovered

a “ripped baggy,” which he testified was associated with drug trafficking.

{¶ 13} Klump then testified to the execution of the search warrant. Klump

testified that appellant was named in the warrant based upon Klump’s observation of him,

as well as the fact that Klump “received a lot of information that he was using 2110 to

traffic narcotics, and all my information was corroborated with my surveillance of the

location and Lawrence Morris throughout the City of Toledo.”

{¶ 14} When entry was made into the residence, no one was inside. Klump

testified that two large baggies of cocaine were found in the dining room, along with a

bowl containing cocaine residue, two scales, and some spoons for mixing drugs.

Specifically, the items were found in the center drawer of a built-in cabinet located under

a window. Klump identified the baggies of cocaine as the same cocaine that was tested

by Douglas. In the living room, in addition to appellant’s bank card and expired driver’s

license, the detectives found approximately $7,000 and a digital video recording system

used for surveillance. The $7,000 was found in a drawer below an armrest of the

sectional sofa, and was located next to a piece of mail addressed to L. Thomas, LLC, at

5. 2110 Airport Highway. Klump testified that through his investigation he learned that L.

Thomas, LLC, was owned by appellant. Upstairs, the detectives found a loaded AK-47

rifle leaning against the wall of a bedroom. Lastly, Klump testified that a prescription

bottle belonging to appellant was found at the residence. The prescription bottle listed

appellant’s address as being on Avondale Ave. in Toledo, Ohio, and allowed for one

refill until November 26, 2018.

{¶ 15} As the last part of his direct testimony, Klump testified regarding the

contents of the digital video recording system that was seized. The recording showed

appellant coming and going from the house on multiple occasions and at varying times

between May 26 and June 2, 2019. On a few occasions, appellant was carrying a

package, and on at least one occasion, appellant appeared to be carrying a firearm. In

addition to appellant’s coming and going, the recording showed several other adults, and

some children, entering and exiting the house.

{¶ 16} On cross-examination, Klump was asked about a shooting that occurred at

2110 Airport Highway on May 21, 2019, which Klump alluded to in his direct testimony.

The police report from that shooting listed appellant as a victim, but also listed Marcus

Matlock as a second victim and a resident of 2110 Airport Highway.

{¶ 17} Klump also testified on cross-examination that the digital video recording

showed another individual, not appellant, coming and going from the residence and using

a key to enter the house. In addition, the video showed at least one other individual

6. entering the house with some sort of bag. Klump also admitted that he did not

photograph or take other documents or pieces of mail, which he admitted were present in

the residence and belonged to someone else. Further, Klump agreed that the last time

appellant was observed at 2110 Airport Highway was June 21, 2019, but the search

warrant was not executed until July 12, 2019.

{¶ 18} On the subject of confidential informants, Klump confirmed that he used

confidential informants as part of his investigation, but testified that none of the

confidential informants ever participated in a controlled buy or purchased cocaine from

appellant, and none of them purchased cocaine from 2110 Airport Highway. Klump also

agreed that the search warrant affidavit does not state that any of the confidential

informants had ever been inside 2110 Airport Highway or witnessed appellant

conducting a drug transaction inside 2110 Airport Highway.

{¶ 19} On redirect examination, Klump was asked about his use of confidential

informants in the following exchange:

Q. And in relation to this case did you use one confidential

informant or multiple?

A. Multiple.

Q. And in general, do you recall what if any information they

provided you?

7. A. They provided me with observing Lawrence Morris making

drug deals and giving me information about when he received drugs or

cocaine from other drug dealers.

Q. Now, the information that you received from these

confidential informants, did you talk to them individually or together?

A. Individually.

Q. Did their information that one informant provide you match

or consistent with the information that another informant provided you?

A. Yes.

Q. And then that information that they provided you was that

consistent with the investigation that you conducted?

Q. And that would be both surveillance that you conducted as

well as surveillance by other officers?

Q. And the trash pull that was conducted on May 17th, 2019?

Q. You also indicated that you had reviewed previous histories

or previous contacts, correct?

8. Q. Was the information that the confidential informants provided

you consistent with prior contact, police contact with Mr. Morris?

***

Q. Now, [defense counsel] also asked you if there was any

information that a confidential informant had been inside of 2110 Airport

Highway included in your warrant, correct?

A. Correct.

Q. Phil, I’m going to hand you Defendant’s Exhibit B which

again is a copy of your search warrant. Detective, do you recall if prior to

executing the warrant on June -- I apologize, July 12th of 2020 -- 2019, did

you receive any information about what the contents inside of that home

would have been approximately around July 5th of 2019?

A. July 5th I received information from a CI about Lawrence

Morris receiving two zips or two ounces of cocaine.

Q. And was it receiving or does it say sold two zips?

A. I’m sorry, sold two zips or two ounces of cocaine out of 2110

Airport Highway.

At no time did appellant object to the above testimony.

9. {¶ 20} On re-cross examination, Klump clarified that his search warrant affidavit

did not say that the confidential informant actually witnessed appellant selling two zips of

cocaine out of 2110 Airport Highway.

{¶ 21} Following its presentation of evidence, the state of Ohio rested. Appellant

moved for an acquittal pursuant to Crim.R. 29. The trial court granted appellant’s motion

as it pertained to the counts of receiving stolen property and endangering children. The

trial court denied appellant’s motion as to the counts of trafficking in drugs and

possession of drugs, and the trial continued on those two counts.

{¶ 22} Appellant then called one witness in his defense. Marcus Matlock testified

that he is appellant’s brother, and that he lived with appellant at 2110 Airport Highway in

the spring and summer of 2019. Matlock testified that his cousin also lived with them

during that time. Matlock moved out of the house in July 2019, before the search warrant

was executed. Matlock testified that while he lived at 2110 Airport Highway, he received

mail there. Matlock also testified that he had an old Ohio driver’s license listing his

address as 2110 Airport Highway. Matlock testified that after he moved out, there were

still other individuals other than appellant that lived at the residence and that had keys for

the residence.

{¶ 23} Matlock testified that on May 21, 2019, two separate drive-by shootings

occurred at the residence. After the shootings, Matlock continued to reside at the

10. residence with appellant and their cousin, but they would not stay for long periods of time

because they did not know who had shot at them.

{¶ 24} Matlock lived at 2110 Airport Highway for approximately one year. While

he lived there, it was not uncommon for appellant to be gone for a few days or even for a

week at a time. Matlock testified that appellant would stay with a female friend.

Matlock testified that it was also not uncommon for other individuals to stay the night or

for a few days at the house.

{¶ 25} Matlock testified that other than marijuana, he never observed drugs inside

of the residence, never observed anyone drop off any quantity of drugs, and never

observed appellant sell any type of drugs.

{¶ 26} On cross-examination, Matlock testified that appellant owned the home at

2110 Airport Highway, and maintained that as his legal residence, although he lived there

“off and on.” Matlock testified that as of the trial, appellant continued to live at 2110

{¶ 27} Following Matlock’s testimony the defense rested. Appellant again moved

for an acquittal pursuant to Crim.R. 29 on the remaining counts, which the trial court

denied. The trial court then instructed the jury and the parties presented their closing

arguments. Relevant here, the state, in closing, referenced and relied upon “those

confidential informants [that] told [Klump] that Lawrence Morris was involved in drug

trafficking throughout the City of Toledo, both in a silver Dodge Ram as well as from the

11. residence of 2110 Airport Highway,” and that the information provided was consistent

amongst the confidential informants and was consistent with the results of his

investigation.

{¶ 28} Thereafter, the jury returned with a verdict of not guilty as to the count of

trafficking in drugs, and a verdict of guilty as to the count of possession of drugs in

violation of R.C. 2925.11(A) and (C)(4)(E), a felony of the first degree. At sentencing,

the trial court ordered appellant to serve an indefinite prison sentence of four to six years.

II. Assignments of Error

{¶ 29} Appellant has timely appealed his judgment of conviction, and now asserts

five assignments of error for our review:

1. The trial court erred when it denied defendant-appellant’s motion

for a judgment of acquittal as to the count of possession of cocaine at the

close of the state’s case.

2. Defendant-appellant’s conviction for possession of cocaine is not

supported by sufficient evidence to satisfy the requirements of the due

process clause of the Fourteenth Amendment to the United States

Constitution.

3. The trial court erred in denying defendant-appellant’s motion to

suppress cocaine that was seized by law enforcement officers pursuant to a

12. search warrant that was issued and executed in violation of his rights under

the Fourth and Fourteenth Amendments to the United States Constitution.

4. The prosecutor violated the Rules of Evidence and deprived

defendant-appellant of his rights under the due process and confrontation

clauses of the Sixth and Fourteenth Amendments to the United States

Constitution by eliciting testimonial statements of absent informants and

urging the jury to consider the content of the statements as substantive

proof of guilt.

5. Defendant-appellant was denied his right to the effective

assistance of counsel, as guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution, due to the combined

prejudicial impact of multiple instances of deficient performance.

III. Analysis

{¶ 30} For ease of discussion, we will address appellant’s assignments of error out

of order, beginning with his third assignment of error.

A. Motion to Suppress

{¶ 31} In his third assignment of error, appellant argues that the trial court erred

when it denied his motion to suppress the evidence seized pursuant to the search warrant.

{¶ 32} Appellate review of a trial court’s denial of a motion to suppress presents

mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

13. 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. “Consequently, 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.

{¶ 33} The Fourth Amendment to the United States Constitution, and Article I,

Section 14 of the Ohio Constitution, prohibit unreasonable searches and seizures, and

provide that “no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.” In this case, appellant argues that the search warrant affidavit was

insufficient to establish probable cause.

In determining the sufficiency of probable cause in an affidavit submitted

in support of a search warrant, “[t]he task of the issuing magistrate is

simply to make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before him, including the ‘veracity’

and ‘basis of knowledge’ of persons supplying hearsay information, there is

a fair probability that contraband or evidence of a crime will be found in a

particular place.”

14. State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the

syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d

527 (1983).

In reviewing the sufficiency of probable cause in an affidavit submitted in

support of a search warrant issued by a magistrate, neither a trial court nor

an appellate court should substitute its judgment for that of the magistrate

by conducting a de novo determination as to whether the affidavit contains

sufficient probable cause upon which that court would issue the search

warrant. Rather, the duty of a reviewing court is simply to ensure that the

magistrate had a substantial basis for concluding that probable cause

existed. In conducting any after-the-fact scrutiny of an affidavit submitted

in support of a search warrant, trial and appellate courts should accord great

deference to the magistrate’s determination of probable cause, and doubtful

or marginal cases in this area should be resolved in favor of upholding the

warrant.

Id. at paragraph two of the syllabus, following Illinois v. Gates.

{¶ 34} Appellant first argues that the search warrant affidavit focuses on

allegations that appellant is a drug dealer, but does not provide information establishing

that evidence of a crime would be found at 2110 Airport Highway. Appellant relies on

the principle that “[t]he critical element in a reasonable search is not that the owner of the

15. property is suspected of crime but that there is reasonable cause to believe that the

specific ‘things’ to be searched for and seized are located on the property to which entry

is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525

(1978). However, the affidavit does contain information that establishes a fair probability

that evidence of a crime would be found at 2110 Airport Highway. Specifically, in

addition to information implicating appellant as a drug dealer who resides at 2110 Airport

Highway, the affidavit stated that detectives found torn baggies, which are consistent

with drug trafficking, in garbage recovered from that address. Further, the affidavit

stated that appellant was observed coming and going from the residence numerous times

throughout the day, which the affiant explained was consistent with drug trafficking.

Finally, the affiant received information from source three that appellant had just sold

two ounces of cocaine out of 2110 Airport Highway. From this information, we hold that

the magistrate had a substantial basis for concluding that probable cause existed.

{¶ 35} Appellant next challenges the magistrate’s reliance on some of the

information in the affidavit, specifically the information from source three that appellant

had just sold two ounces of cocaine out of the residence. Citing State v. Williams, 173

Ohio App.3d 119, 2007-Ohio-4472, 877 N.E.2d 717 (6th Dist.), appellant argues that the

affidavit did not adequately set forth the basis for determining that source three was

reliable. In Williams, this court recognized that “Ohio courts have found probable cause

to issue a search warrant under a variety of circumstances, but only when they have found

16. the presence of some indicia of veracity of the informant or the reliability of the

information material to the probability of evidence of crime.” Id. at ¶ 18. In that case,

this court found insufficient the affiant’s statement that his investigation confirmed drug

activity, and that the sources have been proven reliable. Id. at ¶ 17. This court reasoned,

The affidavit contained no statements providing indicia of either the

veracity of the informants or the basis of their knowledge. We have no idea

how the officer confirmed the drug activity or why the sources have been

proven reliable. “Filtering the hearsay statement of an informant through a

law enforcement agency establishes neither the truth of the statement nor

the reliability of the informant.” State v. Dalpiaz, 151 Ohio App.3d 257,

270, 2002-Ohio-7346, 783 N.E.2d 976, ¶ 43 [(11th Dist.)]. The officer’s

conclusions, not the required indicia of veracity or reliability, were

presented to the magistrate.

Id.

{¶ 36} Notably, the Williams court distinguished several cases where the affiant’s

statement was sufficient. For example, in State v. Nicholson, 6th Dist. Erie No. E-99-

083, 2001 WL 575050, *2 (May 25, 2001), the affiant attested that “the informant had

proven to be ‘extremely reliable’ over the past two years and had provided information

that led to the successful execution of fifteen to twenty search warrants.” In that case, the

affiant also provided additional information supporting the veracity of the informant.

17. Likewise, in State v. Dukes, 6th Dist. Sandusky No. S-00-031, 2001 WL 227057, *1

(Mar. 9, 2001), the affidavit stated that the “informant ha[d] supplied [Detective] Swartz

with information that * * * resulted in the execution of several search warrants that led to

numerous arrests and eventual convictions * * * [and] supplied [Detective] Swartz with

other non drug related information in the past that proved to be true and accurate.”

{¶ 37} Here, similar to Nicholson and Dukes, the affidavit establishes source

three’s reliability by stating,

Source three has assisted this affiant in criminal investigations for over a

year. Source three has provided information that has lead (sic) to seizure of

narcotics, firearms, materials consistent with drug trafficking, and U.S.

currency derived from illegal drug sales. Source three has provided

information that has proven to be independently verified as creditable and

accurate by other confidential sources, other law enforcement officers, and

law enforcement and open source databases. Source three has assisted this

affiant in the arrest and conviction of numerous narcotics traffickers.

Source three fears for her/his safety and must remain silent and anonymous

for safety reasons.

{¶ 38} Appellant, however, contends that this statement in the affidavit should be

given little weight because it is boilerplate language that the affiant similarly uses for

source one and source two. While appellant is correct that the affiant uses the same

18. language for all three sources, that fact does not make the affiant’s statements untrue.

Alternatively, appellant contends that source three’s statement should be discounted

because it does not reveal the basis for the informant’s knowledge. But, a reasonable

inference from source three’s statement is that source three was present at the transaction

because source three knew appellant “just sold 2 ‘zips’ or ounces of cocaine out of 2110

Airport Hwy.” (Emphasis added). See State v. Long, 2020-Ohio-4090, 157 N.E.3d 362,

¶ 31 (6th Dist.) (“[P]robable cause for a search warrant can be based on reasonable

inferences drawn from information in the affidavit.”). Thus, we conclude that the

affidavit contains indicia of the veracity of source three and the reliability of the

information.

{¶ 39} In sum, taking a common sense approach, and affording deference to the

issuing magistrate, we hold that the affidavit contains a sufficient basis to conclude that

probable cause existed to believe that evidence of drug trafficking would be found at

2110 Airport Highway. Therefore, we hold that the trial court did not err in denying

appellant’s motion to suppress the evidence seized pursuant to the search warrant.

{¶ 40} Accordingly, appellant’s third assignment of error is not well-taken.

B. Sufficiency of the Evidence

{¶ 41} In his first assignment of error, appellant argues that the trial court erred in

denying his Crim.R. 29 motion for an acquittal following the state’s presentation of

evidence. In his second assignment of error, appellant argues that his conviction was

19. based upon insufficient evidence. Both assignments of error present the same standard of

review. See State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37

(“A motion for acquittal under Crim.R. 29(A) is governed by the same standard as the

one for determining whether a verdict is supported by sufficient evidence.”). “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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. For our purposes, appellant’s first and second

assignments of error differ only in that his first assignment of error considers just the

evidence produced by the state, whereas his second assignment of error considers the

state’s evidence as well as the evidence produced by the defense.

{¶ 42} Appellant was found guilty of possession of cocaine in violation of R.C.

2925.11(A), which provides that “No person shall knowingly obtain, possess, or use a

controlled substance or a controlled substance analog.” Specifically, appellant was

convicted of possessing cocaine in an amount exceeding twenty-seven grams, but less

than one hundred grams, which is a felony of the first degree. R.C. 2925.11(C)(4)(e).

{¶ 43} Appellant argues that the state failed to produce evidence showing that he

knowingly possessed the cocaine. “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

20. person is aware that such circumstances probably exist.” R.C. 2901.22(B). “‘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).

{¶ 44} Possession may be actual or constructive. “Actual possession occurs when

the defendant has the items within his immediate physical control, whereas constructive

possession occurs when the defendant is able to exercise dominion and control over an

item, even if the individual does not have the item within his immediate physical

possession.” State v. Shelby, 2019-Ohio-1564, 135 N.E.3d 508, ¶ 24 (6th Dist.), citing

State v. Fykes, 6th Dist. Wood No. WD-07-072, 2009-Ohio-2926, ¶ 36. Since the drugs

were found in appellant’s home while he was not present, this case involves a question of

constructive possession. “In order for constructive possession to exist, there must be

evidence demonstrating that the defendant was conscious of the presence of the object.”

Id. “A court must look at all of the attendant facts and circumstances in order to

determine if a defendant knowingly possessed a controlled substance.” Id.

{¶ 45} Beginning with appellant’s first assignment of error, appellant contends

that the state failed to produce any evidence of possession other than appellant’s mere

access to the cocaine through his ownership and occupation of the residence at 2110

Airport Highway. In so arguing, appellant relies on several cases.

21. {¶ 46} In State v. Haynes, 25 Ohio St.2d 264, 267 N.E.2d 787 (1971), the Ohio

Supreme Court reversed a conviction for possession of marijuana that was found in an

area ordinarily accessible to all tenants. The court reasoned that the evidence was

insufficient to establish possession where the only evidence produced at trial was that the

defendant was the lessee of the house, and the uncontroverted evidence showed that the

house was occupied by several persons and the defendant had not occupied the house for

a week prior to the search. Id. at 270-271. Notably, the Ohio Supreme Court recognized

that the trial did not contain any of the evidence alleged in the search warrant that a

named informant purchased marijuana from the defendant at the house. Id. at 270.

{¶ 47} In State v. Swalley, 11th Dist. Ashtabula No. 2010-A-0008, 2011-Ohio-

2092, the Eleventh District reversed a conviction for possession of chemicals for the

manufacture of drugs. In that case, various items used in the manufacturing of

methamphetamine were found in a laundry basket located behind a couch in the living

room. Additional items were found in the garage, and in a garbage can located on the

front porch of the four-unit apartment. The defendant, Swalley, had just moved into the

apartment only a day or two before the search was executed, and was sleeping on the

couch. The apartment was leased by a different individual, who often offered a place to

stay to his friends, like Swalley. Just before Swalley moved in, a third individual had

moved out. On appeal, the Eleventh District, in a 2-to-1 decision, held that the record did

not contain sufficient evidence as to the elements of possession of chemicals for the

22. manufacture of drugs. The court reasoned that Swalley did not have exclusive control

over or access to where the items were found. Id. at ¶ 73.

{¶ 48} Appellant also relies on State v. Pumpelly, 77 Ohio App.3d 470, 602

N.E.2d 714 (12th Dist.1991). In that case, Pumpelly challenged the admission of hearsay

testimony from her brother, in which her brother stated that Pumpelly lived in the

apartment, was a cocaine addict, and was absent from the apartment at the time of the

search because she was suffering from a cocaine overdose. Id. at 475. In determining

that the admission of the hearsay testimony constituted plain error, the Twelfth District

found that the only other evidence of Pumpelly’s possession of the small amount of

cocaine and drug paraphernalia in the apartment were rent receipts in Pumpelly’s name in

the room in which the cocaine was discovered; no evidence placed Pumpelly in the

apartment at or near the time the cocaine was found. Id. at 476.

{¶ 49} Each of these cases are distinguishable. In this case, appellant listed 2110

Airport Highway as his residence on his probation forms. In addition, on numerous

occasions appellant was observed parking his car in the garage, and using a key to enter

and exit the home. Appellant’s bank card and expired driver’s license were found in the

home, as well as legal documents and mail addressed to him at that address. Thus, the

evidence is sufficient to establish that appellant resided at 2110 Airport Highway.

Notably, unlike Haynes and Pumpelly, there was not uncontroverted evidence that

appellant had not been present at the residence for some amount of time before the search

23. was conducted. While Klump testified that he did not observe appellant entering or

exiting the home for the three weeks before the search warrant was executed, Klump did

not testify that he was conducting surveillance on the home during that time. To the

contrary, the pattern of behavior observed by Klump while he was surveilling the home,

and appellant’s behavior as recorded by the home security system, show that appellant

was frequently present. The present situation is also distinguishable from Swalley, in that

appellant was not a new occupant of the home, but rather he was a long-time resident.

{¶ 50} Further, the quantity of the drugs, the presence of scales, bowls, and

spoons, the torn baggies in the garbage, and the fact that the house contained easily

accessible loaded guns and large amounts of cash distinguish the present situation from

cases involving mere ownership or occupation of the premises. Although others were

observed frequently entering and exiting the residence, which Klump testified was

indicative of drug trafficking, it belies all common sense to conclude that appellant was

blissfully unaware that there was a loaded handgun in the kitchen cabinet, a loaded AK-

47 leaning against the wall in a bedroom, or $7,000 in cash hidden in the couch next to

his mail. Given these facts and circumstances, it is also not believable that appellant

would be unaware of $7,000 worth of drugs and drug trafficking paraphernalia hidden in

a cabinet in his dining room.

{¶ 51} This conclusion is even more evident when considering the information

from the confidential informants that appellant was involved in drug trafficking and had

24. recently sold cocaine from the residence, which again distinguishes this case from

Haynes. Appellant, however, argues that the information from the confidential

informants should not be considered in the sufficiency analysis because it is inadmissible

hearsay. Appellant’s argument is incorrect. “When evaluating an assignment of error

challenging the sufficiency of the evidence, a reviewing court must consider all evidence

admitted at trial, including the improperly admitted evidence that was the source of the

reversal for trial error.” State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, 176

N.E.3d 720, ¶ 29, citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903

N.E.2d 284, ¶ 24-26.

{¶ 52} Therefore, we hold that, when viewed in a light most favorable to the

prosecution, appellant’s established occupancy and frequent use of 2110 Airport

Highway, the discovery of torn baggies in the garbage, the accessibility of loaded guns,

the $7,000 in cash hidden in the couch next to his mail, the presence of appellant’s bank

card, expired driver’s license, and mail, and appellant’s involvement in drug trafficking,

was sufficient for a rational juror to have found that appellant knowingly possessed the

drugs beyond a reasonable doubt.

{¶ 53} Accordingly, appellant’s first assignment of error is not well-taken.

{¶ 54} Appellant’s second assignment of error seeks a different result based upon

the addition of the testimony of appellant’s brother, Matlock. Matlock sought to establish

that appellant shared the residence with others, and thus did not have exclusive

25. possession of the premises, thereby muddying the question of who owned the cocaine.

When viewed in a light most favorable to the state, Matlock’s additional testimony does

not alter any of the conclusions reached in appellant’s first assignment of error. Indeed,

Matlock’s testimony that appellant continued to reside at the residence following the

shooting and through the time of trial actually bolsters the conclusion that appellant

occupied and used the residence, and thus made it more likely that he knowingly

possessed the cocaine.

{¶ 55} Accordingly, appellant’s second assignment of error is not well-taken.

C. Hearsay, Confrontation Clause, and Prosecutorial Misconduct

{¶ 56} In his fourth assignment of error, appellant first argues that Klump’s

testimony regarding the information from confidential informants constituted hearsay and

violated appellant’s right to confront the witness against him.

{¶ 57} “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted in the statement.” Evid.R. 801(C). Here, there are two instances of potential

hearsay. The first is Klump’s testimony on direct examination that appellant’s name was

listed in the search warrant because Klump “received a lot of information that [appellant]

was using 2110 to traffic narcotics, and all my information was corroborated with my

surveillance of the location and Lawrence Morris throughout the City of Toledo.” The

second is Klump’s testimony on redirect that the informants “provided me with observing

26. Lawrence Morris making drug deals and giving me information about when he received

drugs or cocaine from other drug dealers,” and told him about appellant selling two

ounces of cocaine out of 2110 Airport Highway.

{¶ 58} Of the two instances, the second one is far more problematic. As to the

first instance, a reasonable argument could be made that it was not offered to prove the

truth of the matter asserted—i.e., that appellant was using 2110 Airport Highway to

traffic narcotics—but instead it was offered to demonstrate why Klump included

appellant’s name on the search warrant application.

Out-of-court statements to explain police conduct during the investigation

of a crime are not hearsay and are admissible if they satisfy three criteria:

(1) the conduct the officer is trying to explain is “relevant, equivocal, and

contemporaneous with the statements”; (2) the probative value of the

statements is not substantially outweighed by the danger of unfair

prejudice; and (3) “the statements cannot connect the accused with the

crime charged.”

State v. Kamer, 6th Dist. Wood No. WD-20-084, 2022-Ohio-2070, ¶ 176, quoting State v.

Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 27. While we think this

is a close case in that it is not particularly relevant for the jury to know why appellant’s

name was on the search warrant, and the statements do connect the accused with the

27. crime charged, for purposes of our analysis we will assume that Klump’s statement

constituted inadmissible hearsay.

{¶ 59} The second instance is not nearly as close. On redirect, Klump testified

that informants told him that appellant dealt drugs and received drugs from other drug

dealers. We know that this testimony was offered to prove the truth of the matter

asserted because the next line of questioning explored why the informants were reliable:

Klump talked to the informants individually; the information was consistent between

informants; the information was consistent with Klump’s surveillance and the results of

the trash pull; the information was consistent with Klump’s previous contacts with

appellant. After establishing the informants’ credibility, the prosecutor then elicited

Klump’s testimony that one of the informants told him that appellant just sold two ounces

of cocaine out of 2110 Airport Highway. This is a textbook example of hearsay.

Furthermore, it runs afoul of the Sixth Amendment to the United States Constitution,

which provides that “In all criminal prosecutions, the accused shall enjoy the right * * *

to be confronted with the witnesses against him.” The right to confrontation is violated

“when an out-of-court statement that is testimonial in nature is admitted into evidence

without the defendants having had the opportunity to cross-examine the declarant.” State

v. Ali, 2d Dist. Clark No. 2014 CA 59, 2015-Ohio-1472, ¶ 14, citing Crawford v.

Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

28. {¶ 60} However, appellant did not object to this testimony at trial. Thus, he has

waived all but plain error. State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63

N.E.3d 93, ¶ 72 (“We are limited to plain-error review as a result of Obermiller’s failure

to object when the alleged hearsay was introduced.”); State v. Tench, 156 Ohio St.3d 85,

2018-Ohio-5205, 123 N.E.3d 955, ¶ 217 (because defendant did not object at trial, “[h]e

cannot, therefore, prevail on [the Confrontation Clause] issue unless he establishes plain

error.”).

{¶ 61} Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.” Plain

error requires (1) “an error, i.e., a deviation from a legal rule,” (2) that is “plain” or “an

‘obvious’ defect in the trial proceedings,” and (3) that “must have affected ‘substantial

rights.’” State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). For an error to

have affected substantial rights, the error “must have affected the outcome of the trial.”

Id. “The accused is therefore required to demonstrate a reasonable probability that the

error resulted in prejudice—the same deferential standard for reviewing ineffective

assistance of counsel claims.” (Emphasis sic.) State v. Rogers, 143 Ohio St.3d 385,

2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. “But even if an accused shows that the trial court

committed plain error affecting the outcome of the proceeding, an appellate court is not

required to correct it.” Id. at ¶ 23. “Notice of plain error under Crim.R. 52(B) is to be

taken with the utmost caution, under exceptional circumstances and only to prevent a

29. manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804

(1978). Here, the record does not support a finding of plain error.

{¶ 62} Excluding the offending hearsay testimony, we find that the remaining

evidence is of sufficient quality that a reasonable probability does not exist that appellant

would have been acquitted. As described above, the evidence demonstrated that

appellant resided at 2110 Airport Highway both before and after the execution of the

search warrant. Appellant, and others, were observed frequently entering and exiting the

property at all times of day and night, which Klump testified was indicative of drug

trafficking. Appellant exercised particular dominion over the property by parking in the

garage and utilizing a key to lock and unlock the home. In addition, appellant’s bank

card and expired driver’s license, a prescription bottle with appellant’s name, and mail

and legal documents addressed to appellant were found in the house.

{¶ 63} The house also contained a loaded AK-47 leaned against the wall in an

upstairs bedroom, a loaded handgun sitting in a kitchen cupboard, and $7,000 in cash in a

drawer in the couch next to appellant’s mail. Common sense dictates that appellant was

aware of the presence of these items, which together are often associated with the drug

trade. Further, the presence of these items in the home convinces us that appellant was

also aware of the scales, bowl, mixing spoons, and 37 grams of cocaine hidden in a

cabinet in the dining room. We find the quantity of drugs to be particularly relevant. We

could believe that appellant would be unaware of a personal-use amount of drugs that one

30. of the occupants or guests may have had, but we cannot believe that appellant would be

unaware of approximately $7,000 worth of cocaine in his home.

{¶ 64} Given appellant’s occupation of the home, the use of the home in a pattern

that is indicative of drug trafficking, the presence of a number of appellant’s personal

items in the home, and the fact that the home contained unhidden or poorly-hidden guns,

money, and drugs, we are confident that appellant was able to exercise dominion and

control over the cocaine. Thus, we find it manifestly improbable that appellant did not

knowingly possess the cocaine, and we hold, therefore, that appellant’s substantial rights

were not affected when the trial court allowed the offending testimony from the

confidential informants through Klump. Consequently, appellant has not demonstrated

plain error.

{¶ 65} Alternatively, appellant argues in this assignment of error that the

prosecutor committed prosecutorial misconduct when she referred to the hearsay

testimony during closing arguments. “The test regarding prosecutorial misconduct in

closing arguments is whether the remarks were improper and, if so, whether they

prejudicially affected substantial rights of the defendant.” State v. Smith, 14 Ohio St.3d

13, 14, 470 N.E.2d 883 (1984). “It is a prosecutor’s duty in closing arguments to avoid

efforts to obtain a conviction by going beyond the evidence which is before the jury.” Id.

But, in this case, appellant did not object to the hearsay testimony of which he now

complains, and that evidence was before the jury. Therefore, it is not improper rising to

31. the level of prosecutorial misconduct for the prosecutor to rely on that evidence in her

closing argument.

{¶ 66} Accordingly, because appellant has not demonstrated plain error or

prosecutorial misconduct, his fourth assignment of error is not well-taken.

D. Ineffective Assistance of Counsel

{¶ 67} Finally, in his fifth assignment of error, appellant argues that he received

the ineffective assistance of trial counsel. To prove a claim of ineffective assistance,

appellant must demonstrate that counsel’s performance fell below an objective standard

of reasonableness, and a reasonable probability exists that, but for counsel’s error, the

result of the proceedings would have been different. Strickland v. Washington, 466 U.S.

668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The object of an

ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient prejudice * * * that course

should be followed.” Id. at 697.

{¶ 68} In support, appellant identifies five instances in which he argues his trial

counsel was ineffective: (1) trial counsel failed to object to the testimonial and hearsay

statements of absent informants, and to the prosecutor’s closing arguments; (2) trial

counsel cross-examined Klump on the search warrant affidavit; (3) trial counsel did not

object to Klump’s testimony that appellant owned the company listed on the piece of mail

located next to the $7,000 in cash; (4) trial counsel failed to object to the calling of

32. appellant’s probation officer as a witness; and (5) trial counsel failed to object when the

trial judge disclosed that she had an ex parte communication with the jury.

{¶ 69} The first four instances cited by appellant all concern trial counsel’s actions

as they pertain to the introduction of evidence, thus we will address them together.

Because we conclude that appellant has not demonstrated sufficient prejudice, we will

focus on that prong. In determining whether appellant has demonstrated prejudice, we

utilize the same test that we used in our plain error review: appellant must demonstrate a

reasonable probability that but for counsel’s error the result of the proceedings would

have been different. Id. at 694; State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38

N.E.3d 860, ¶ 22.

{¶ 70} Appellant’s first instance of ineffective assistance challenges trial counsel’s

failure to object to the out-of-court statements of the confidential informants. Appellant’s

second instance of ineffective assistance challenges trial counsel’s strategy of questioning

Klump about the search warrant, which led to the out-of-court statements of the

confidential informants. In our plain error analysis above, we considered the prejudice

resulting from these statements, and have concluded that there is not a reasonable

probability that the result of the proceedings would have been different if the hearsay

testimony from the informants had been excluded.

{¶ 71} Appellant’s third and fourth instances raise additional evidentiary issues

regarding the piece of mail that was found next to the $7,000 in cash, and the suggestion

33. that appellant was a criminal because his probation officer testified. These additional

instances do not impact our conclusion of no prejudice. Specifically, the piece of mail

next to the $7,000 in cash strongly ties the money to appellant, but that relationship is

thoroughly established by appellant’s occupancy and dominion over the residence, and

the presence of his bank card, expired driver’s license, and other mail in various places

throughout the home. As to the suggestion that appellant was a criminal, we note that no

evidence was elicited regarding why appellant was on probation, thereby lessening the

prejudice. Furthermore, in our plain error analysis above, we did not mention or rely on

appellant’s character as a criminal.

{¶ 72} Therefore, we hold that appellant has not demonstrated a reasonable

probability that the results of the proceeding would have been different but for trial

counsel’s errors pertaining to the introduction of evidence.

{¶ 73} In his fifth instance of ineffective assistance, appellant challenges trial

counsel’s failure to object to the trial court’s ex parte communication with the jury.

Following the reading of the verdict, the trial court informed the parties that it had

responded to a question from the jury regarding the verdict form. The jurors had

informed the court that they wrote the word “guilty” in the place that they should have

written either “did” or “did not.” The error resulted in the form stating, “We the Jury,

further find that the amount of cocaine possessed by the Defendant, Lawrence Morris Jr.

GUILTY equal or exceeded twenty-seven grams, but did not exceed one hundred grams

34. of cocaine.” The court responded to the jurors that it re-printed the jury form, and that

they should put an “X” through the incorrect form and return it with the others.

{¶ 74} Regardless of whether the trial court should have had the parties present

when it responded to the jury, there was no prejudice to appellant. At the time of the

communication, the jury had already reached its decision that appellant “did” possess

cocaine exceeding 27 grams, and their question only pertained to an error in recording

that verdict. Thus, appellant cannot demonstrate that the result of the proceedings would

have been different had he been present for the trial court’s communication with the jury.

{¶ 75} Accordingly, we hold that appellant’s claims of ineffective assistance must

fail, and his fifth assignment of error is not well-taken.

IV. Conclusion

{¶ 76} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Lucas County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

35. State of Ohio v. Lawrence Morris, Jr. L-22-1025

Mark L. Pietrykowski, J. ____________________________ JUDGE Thomas J. Osowik, J. ____________________________ Gene A. Zmuda, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

36.