State v. Peabody

2024 Ohio 185

• Court: Ohio Court of Appeals
• Decided: January 19, 2024
• Docket: E-22-042
• Status: Published

Opinion

[Cite as State v. Peabody, 2024-Ohio-185.]

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

State of Ohio Court of Appeals No. E-22-042

Appellee Trial Court No. 2017CR0487

v.

William J. Peabody DECISION AND JUDGMENT

Appellant Decided: January 19, 2024

*****

Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.

Brian A. Smith, for appellant.

MAYLE, J.

{¶ 1} Defendant-appellant, William J. Peabody, appeals the September 6, 2022

judgment of the Erie County Court of Common Pleas, convicting him of several drug

possession and trafficking offenses and sentencing him to an aggregate prison term of 95

months. For the following reasons, we affirm, in part, and reverse, in part. I. Background

{¶ 2} William Peabody was charged with drug possession and trafficking offenses

arising out of two incidents. The first incident occurred on January 27, 2017. Peabody

was charged with possession of cocaine, a violation of R.C. 2925.11(A) and (C)(4)(a), a

fifth-degree felony (Count 1); and two counts of aggravated possession of drugs,

violations of R.C. 2925.11(A) and (C)(1)(a), fifth-degree felonies (Counts 2 and 3). The

second incident occurred on February 27, 2017. Peabody was charged with possession of

cocaine, a violation of R.C. 2925.11(A) and (C)(4)(a), a fifth-degree felony (Count 4);

complicity in the commission of possession of heroin, a violation of R.C. 2923.03(A) and

(F), a second-degree felony (Count 5); complicity in the commission of trafficking of

heroin, a violation of R.C. 2923.03(A)(2) and (F), a second-degree felony (Count 6);

complicity in the commission of possession of cocaine, a violation of R.C. 2923.03(A)(2)

and (F), a fifth-degree felony (Count 7); and complicity in the commission of trafficking

of cocaine, a violation of R.C. 2923.03(A)(2) and (F), a fifth-degree felony (Count 8).

{¶ 3} The matter proceeded to a jury trial beginning on June 27, 2022. The state

presented testimony from Sergeant Troy Dillinger, Detective Ron Brotherton, and

Lieutenant Danny Lewis of the Sandusky Police Department; Deputy Chad Henderson of

the Erie County Sheriff’s Department; Detective Joseph Rotuno of the Perkins Township

Police Department; Sara Tipton, Samuel Fortener, and Kelsey Degen, forensic scientists

2. with the Ohio Bureau of Criminal Investigations; and Kyohn Green-Burton and Misty

Schultz, two of Peabody’s co-defendants.

A. The January 27, 2017 Incident

{¶ 4} According to the evidence presented at trial, on January 27, 2017, Sergeant

Dillinger was patrolling the area near the Value Inn in Sandusky, a location known to law

enforcement for illegal drug transactions and use. He was dressed in uniform and driving

a marked police cruiser. A vehicle caught his attention; the driver rolled down the

window as if he was going to say something to Sergeant Dillinger, but he didn’t.

{¶ 5} Sergeant Dillinger drove a little further down the street, but continued to

monitor the Value Inn at a distance. The vehicle he had noticed before pulled out.

Sergeant Dillinger observed that the vehicle had an excessively loud exhaust, so he

initiated a traffic stop. He made contact with the driver, who identified himself as

William Peabody. He was alone in the vehicle.

{¶ 6} Peabody told Sergeant Dillinger that he was aware that his exhaust was loud,

and he also told him that his driver’s license was expired. He said that he had had two

passengers in his vehicle, but they exited his vehicle quickly because they had recently

been released from prison and may have had outstanding warrants. Sergeant Dillinger

recognized the name of one of the men and knew him to use illegal drugs. Sergeant

Dillinger also knew that Peabody was associated with drugs.

3. {¶ 7} Sergeant Dillinger asked Peabody for consent to search the vehicle, which

belonged to Peabody’s father. He declined, insisting that there was nothing illegal in the

vehicle. Sergeant Dillinger called for the K-9 unit to do a free air sniff. The dog alerted

to the odor of narcotics.

{¶ 8} Sergeant Dillinger instructed Peabody to exit the vehicle. As he did, a

syringe fell off his lap. Peabody agreed to allow Sergeant Dillinger to search his person;

no contraband was found during that search. A search of his vehicle did, however, lead

to the recovery of drug-related items, including: (1) a metal spoon with white, filmy

residue on it, retrieved from the center console; (2) two metal spoons with residue and

burns, retrieved from the back seat; (3) a crack pipe stuffed with wire mesh, retrieved

from the back seat; and (4) a metal tube with residue and a crack pipe with residue

stashed in the ventilation system. Sergeant Dillinger conceded that the crack pipes were

located in the vent such that they would not be visible from the driver’s seat. They could

not be removed immediately because the officers did not have the tools to remove them

there; they were removed after the vehicle was towed. Lieutenant Danny Lewis removed

the items using a coat hanger. Syringes and prescriptions belonging to Peabody’s father,

a diabetic, were also found in the vehicle, but were not confiscated. The spoon from the

console and one of the spoons from the backseat were from a matching set.

{¶ 9} Sergeant Dillinger decided not to arrest Peabody, but rather to test the items

first. The items were brought to the station, tagged and bagged, and secured for testing

4. by BCI. Sergeant Dillinger acknowledged that he did not see anything illegal just by

looking into the car. He did not attempt to gather fingerprints from any of the items and

did not administer blood, urine, or field sobriety tests.

{¶ 10} Peabody’s father retrieved the car. He said the syringes were in the car

because he was diabetic. Peabody’s father is now deceased.

{¶ 11} Another officer, Sergeant Lillo, told Sergeant Dillinger that he saw two

passengers in the vehicle earlier. Sergeant Dillinger did not know if those passengers

were both in the backseat. The passengers quickly distanced themselves from the vehicle

when they saw Sergeant Lillo drive through the parking lot.

{¶ 12} Testing later revealed that the spoon found in the center console had trace

amounts of cocaine, fentanyl, and 3-methylfentanyl. A metal tube had trace amounts of

cocaine. Testing of those items was performed by Sara Tipton, a forensic scientist in the

drug chemistry section of the BCI. The two metal spoons from the backseat, one of the

metal tubes, and the glass tube were not tested. Sergeant Dillinger explained that it is his

practice to charge the person who is in immediate possession of the contraband.

B. The February 27, 2017 Incident

{¶ 13} The Sandusky Police Department received information from a female

informant that Peabody was in possession of $10,000 worth of illegal drugs that he and

another man transported from Lansing, Michigan. The informant (“CI”) stated that

Peabody was staying at a hotel and that she could buy heroin from him. Detective Ron

5. Brotherton contacted the Perkins County Police Department. Together, Detective

Brotherton, Lieutenant Danny Lewis, Detective Joseph Rotuno, and Detective Roesch,

also of the Perkins Township Police Department, established a joint investigation.

Lieutenant Lewis was the lead investigator.

1. Testimony from Law Enforcement and BCI

{¶ 14} On February 27, 2017, law enforcement arranged for the CI to make a

controlled buy of narcotics from Peabody using marked bills. Detective Brotherton and

Lieutenant Lewis set up surveillance at Walmart, next to the hotel where they believed

Peabody was staying. Detectives Rotuno and Roesch set up surveillance at the hotel.

The officers searched the CI and her vehicle to ensure that she was not carrying other

drugs or money. She was given $310 in marked money, which police had photocopied

before giving to her. Officers wrote down the phone number she used to call Peabody.

{¶ 15} The CI picked up Peabody outside Walmart. They had a short

conversation, then Peabody gave her 1.6 grams of what was determined by BCI to be

heroin and fentanyl in exchange for $310. She dropped him off at the hotel. Afterwards,

the CI gave the drugs to the officers and they again searched her and her vehicle.

Although the officers did not see the hand-to-hand exchange of drugs for money, the CI

gave them a report of what happened during the transaction.

{¶ 16} Peabody was followed after completing the transaction. He went to the

second floor of the Super 8 hotel, room 213. An hour later, Peabody and Misty Schultz

6. left the hotel in a rental car and headed to a gas station near the hotel. Detective

Brotherton had a warrant to serve on Peabody, so he and Detective Roesch followed him.

Lieutenant Lewis and Detective Rotuno stayed at the hotel and continued to surveil the

room.

{¶ 17} Detectives Brotherton and Roesch arrested Peabody at the gas station.

Peabody was in the driver’s seat and Schultz was seated in the front seat of the vehicle.

The officers searched Peabody and found that he was carrying a bindle of drugs, drug

paraphernalia, and $10 of the marked money. Miniature balloons were also found in the

vehicle. It was common in 2017 for traffickers to transport illegal narcotics in balloons.

{¶ 18} Schultz revealed that she had rented the hotel room, which gave her control

over the room. Schultz agreed to cooperate with officers. She was escorted back to the

hotel, where she consented to a search of the room. They retrieved a key from the front

desk. Schultz denied that anyone else was in the room, but when Detective Rotuno and

Lieutenant Lewis opened the door, they saw two people. Schultz was ordered to the

ground.

{¶ 19} The two occupants of the room were identified as Kyohn Green-Burton and

Natasia Coles-Phillippi. Detective Rotuno immediately saw a large bag of what appeared

to be crack cocaine on the nightstand between the two beds. He saw syringes and bindles

of packaged drugs next to the bag of crack cocaine. They recovered a large bag of heroin

and fentanyl from the room. There was $715 in cash found in the room, $300 of which

7. was the marked money that the CI used to make the purchase from Peabody. The

officers recovered additional items from the room, including cellophane with crack

cocaine in it; a digital scale like those commonly used in drug trafficking to weigh

product to be sold on the streets; two paper bindles made from pages of a phone book,

similar to the bindle Peabody was carrying; a large bag of syringes, commonly used to

inject illegal drugs; a bottle of gabapentin with the label scratched off; alcohol wipes; a

piece of paper wrapped with chore boy; a crack cocaine pipe; marijuana; a Crown Royal

bag; Q-tips wrapped around a visa card; and a packet of kool-aid. (There was some

suggestion that Coles-Phillippi had mixed kool-aid with heroin before cooking and

injecting it.) A number of cell phones were confiscated, but none were examined because

it was deemed unnecessary.

{¶ 20} Some of the confiscated items were sent to BCI for analysis. Because BCI

has limits on the number of items per incident that it will test, the investigators assigned

certain items to Peabody, and other items to Schultz, Green-Burton, and Coles-Phillippi,

so that BCI would test as many items as possible. All of these individuals were charged

with possession of the drugs because they were all involved and associated with the items

found. It was believed that Green-Burton had supplied the drugs and Peabody was

selling them. Schultz was complicit because she was in the room and rented it in her

name, and Phillippi was believed to have been there “for the ride and for the dope.”

8. {¶ 21} Samuel Fortener, a forensic scientist with BCI, tested the contents of a

plastic bag, which contained an unknown tan substance. This was the bag that Peabody

gave to the CI. Fortener determined that the bag contained approximately 1.69 grams of

heroin and fentanyl. Kelsey Degen, a forensic scientist with BCI, tested several plastic

bags containing an unknown off-white substance. One contained approximately 4.96

grams of cocaine (submitted under Schultz’s name); one contained approximately .18

grams of a combination of cocaine, heroin, and fentanyl (submitted under Schultz’s

name); one contained approximately .31 grams of cocaine (submitted under Peabody’s

name); and one contained approximately 19.13 grams of heroin and fentanyl (submitted

under Green-Burton’s name). Degen also tested a metal spoon with residue retrieved

from the hotel room (submitted under Coles-Phillippi’s name), which she determined

contained trace amounts of cocaine, heroin, and fentanyl.

{¶ 22} Pertinent to Peabody’s assignments of error on appeal, Deputy Chad

Henderson of the Erie County Sherriff’s Department testified that Judge McGookey

signed a bench warrant for Peabody’s arrest, file stamped June 14, 2019. Peabody was

eventually found two years later in Yuma, Arizona, where he was incarcerated for a new

drug offense. Deputy Henderson executed the warrant on June 25, 2021.

2. Testimony of Co-Defendants

{¶ 23} The state secured the cooperation of two of Peabody’s co-defendants,

Green-Burton and Schultz. Both testified at trial.

9. a. Kyohn Green-Burton

{¶ 24} Green-Burton testified that he is from Detroit. He and Peabody met in

Lansing, Michigan toward the end of February of 2017, and agreed that Green-Burton

would obtain drugs, including crack cocaine and heroin, for Peabody to sell in Ohio.

They would split the profits, but not necessarily evenly. Green-Burton had not been to

Erie County before this time.

{¶ 25} Peabody’s father rented a car, and he, Peabody, and Green-Burton drove

from Lansing to Erie County. As agreed, Green-Burton obtained the drugs; Peabody

carried them because Green-Burton did not like to travel with drugs on him. Although he

did not remember the exact quantities, he estimated that he had 28 grams of crack cocaine

and 20 grams of heroin.

{¶ 26} When they got to Erie County, they dropped Peabody’s father off and

picked up Schultz, who Green-Burton had not met before. The plan was for Green-

Burton to stay at the house of a woman Peabody knew. They gave her drugs as an

incentive, but the woman would not let him in. Schultz agreed to rent a hotel room for

him in her name. Green-Burton’s friend from West Virginia, Coles-Phillippi, met them

there. Green-Burton and Coles-Phillippi slept in the hotel room; Peabody and Schultz did

not. Both Green-Burton and Coles-Phillippi had been involved in the sale of narcotics;

he began selling some time in 2016.

10. {¶ 27} Green-Burton and Peabody decided that Peabody would work on

establishing a phone line of people to buy the drugs since Green-Burton did not know

anyone in Erie County. Peabody made calls from his own phone, but he did not make or

take calls from the room. Green-Burton would give the drugs to Peabody, Peabody

would leave, then he would return and say they had been sold. Peabody left four or more

times. They got arrested three or four days after they arrived.

{¶ 28} At the time of the arrest, Green-Burton was found in possession of 19

grams of heroin and five grams of cocaine, which was less than the amount he had when

he arrived. The remainder had been used or sold. Green-Burton used only marijuana—

not heroin or crack cocaine. He does not believe that Schultz used any heroin. The drugs

were stored in a Crown Royal bag. He did not remember how much money was

confiscated from the room.

{¶ 29} Green-Burton was charged as a co-defendant. He entered a plea of guilty

to the charges arising from the February 2017 arrest. He was sentenced to 41 months in

prison, to run concurrently with a one-year sentence he’s required to serve in Michigan.

After he was sentenced, he was approached by the state to discuss his willingness to

testify at trial. The state agreed that in exchange for his testimony, it would not oppose

Green-Burton serving six months in a locked treatment facility in Ohio after he served his

sentence in Michigan. The court will ultimately decide whether to grant him judicial

release and allow him to serve the reduced time in a treatment facility, and it will

11. consider his prison performance record in making that decision. Green-Burton explained

that he would be in danger in the prison yard for having testified against Peabody.

{¶ 30} Green-Burton has not spoken to Schultz since the arrest. He confirmed that

the plan to sell drugs in Ohio occurred between he and Peabody, not with Schultz or

Coles-Phillippi.

{¶ 31} Pertinent to Peabody’s assignments of error, Green-Burton testified

concerning his criminal history. He claimed that he had been convicted of a first-degree

home invasion in Michigan for removing his brother’s bike from someone’s garage. He

was also charged in West Virginia with possession of crack cocaine and heroin. He

insisted that he has no other felony convictions on his record.

b. Misty Schultz

{¶ 32} Schultz testified that she and Peabody went to school together and were in

a romantic relationship. She described herself as an alcoholic and closet drug user. She

said that weed was her drug of choice, but at the time of the arrest, she was also using

crack cocaine. She estimated that she had used heroin three times.

{¶ 33} Peabody sent Schultz a picture from Michigan of a large amount of crack

cocaine that he found. Schultz told him to give it back and not to “mess with the dope

boys.” He told her he was coming back to sell drugs that he obtained from Green-Burton.

12. {¶ 34} Peabody and Green-Burton traveled to Schultz’s home from Michigan on

February 25, 2017. It was the first time she met Green-Burton. She bought $30 worth of

crack, which she and Peabody smoked in her driveway.

{¶ 35} The original plan was that Green-Burton and Coles-Phillippi would stay at

the home of L.G. and use it as a trap house from which drugs would be sold. L.G. had

known drug contacts and people often consumed drugs at her home. But L.G. wanted too

much money to rent them her place, so they decided to get a room at the Super 8 hotel.

Schultz has a license, so she rented the room with her identification. Green-Burton gave

her cash to pay for the room. They were assigned room 213.

{¶ 36} Schultz explained that she had gone to the hotel for sex, drugs, and

partying. She watched TV, smoked, and did drugs with Peabody and Coles-Phillippi.

Schultz testified that she and Coles-Phillippi smoked crack while at the hotel, not heroin.

Green-Burton did not use the drugs.

{¶ 37} Peabody sold crack cocaine and heroin out of the hotel room. He was

making calls and getting texts back and forth trying to move product. The drugs were

packaged in sandwich baggies that either Peabody or Green-Burton assembled. Schultz

did not know the quantities that had been brought there from Michigan. She admitted

that she owns a scale, but denied that the scale found in the hotel room belonged to her.

Schultz estimated that Peabody arranged 30 drug transactions within a three-day period.

He was constantly on his cell phone.

13. {¶ 38} Peabody went out to sell drugs in the Walmart parking lot. Schultz

remained in the hotel room when he left for Walmart. He returned, and about an hour or

so later, she and Peabody left to go get gas in a car that Peabody’s father had rented.

While at the gas station, she and Peabody got arrested. She was not aware of anything

illegal in the car and she had no drugs on her other than some char that had fallen into her

purse. Schultz explained that she had smoked any crack she had had.

{¶ 39} When the car was searched, police found a dirty spoon in the glove

compartment. Schultz was seated in the passenger seat. Detective Brotherton told her

that she could be charged for possession of the spoon if nobody admitted it was theirs.

Schultz asked Peabody to “take his charge” because the spoon was his, but he turned his

back to her. Because Peabody refused to admit the spoon was his, Schultz decided to

consent to a search of the hotel room. Schultz believes she confirmed for police that

there were others in the hotel room. She was ordered to lie face down on the floor

outside the room while law enforcement raided it. Green-Burton and Coles-Phillippi

were arrested. Schultz testified that the arrests occurred on February 27, 2017, Peabody’s

birthday.

{¶ 40} Schultz was charged with two second-degree felonies. As part of a plea

agreement, she entered a plea to complicity to possess cocaine, a fifth-degree felony, and

was granted probation. She violated probation and served 182 days in jail. As part of her

agreement with the state, she was expected to testify against Peabody, Green-Burton, and

14. Coles-Phillippi. She has not talked to Green-Burton since the arrest; she has talked to

Coles-Phillippi once since then.

C. The Verdict

{¶ 41} The jury found Peabody guilty of all counts. The trial court determined

that Counts 2 and 3, 5 and 6, and 7 and 8 merged for purposes of sentencing. It sentenced

Peabody to a prison term of 11 months on Count 1; 11 months on Count 2; 11 months on

Count 4; seven years on Count 6; and 11 months on Count 7. It ordered that Counts 1, 2,

and 7 be served concurrently with each other and consecutively with Count 6, for a total

prison term of 95 months. Peabody appealed. He assigns the following errors for our

review:

I. Appellant’s convictions were against the manifest weight of the

evidence.

II. The trial court erred in denying Appellant’s Motion to Dismiss

on speedy trial grounds, in violation of Appellant’s right to a speedy trial

under the Sixth and Fourteenth Amendments to the United States

Constitution and Article I, Section 10 of the Ohio Constitution.

III. The failure of Appellant’s trial counsel to cross-examine the

State’s witness, Kyohn Green-Burton, as to his prior criminal history

constituted ineffective assistance of counsel, in violation of Appellant’s

15. right to counsel under the Sixth and Fourteenth Amendments to the United

States Constitution and Article I, Section 10 of the Ohio Constitution.

IV. The trial court’s decision to give a jury instruction on

consciousness of guilt was an abuse of discretion.

V. The trial court’s imposition of consecutive sentences on

Appellant was contrary to law for failing to make the requisite findings,

under R.C. 2929.14(C)(4), at both Appellant’s sentencing hearing and in its

sentencing entry.

II. Law and Analysis

{¶ 42} In his first assignment of error, Peabody argues that his convictions are

against the manifest weight of the evidence. In his second assignment of error, he argues

that his right to a speedy trial was violated. In his third assignment of error, he argues

that counsel was ineffective for failing to cross-examine Green-Burton about his criminal

history. In his fourth assignment of error, he argues that the trial court erred when it

instructed the jury on consciousness of guilt. And in his fifth assignment of error, he

argues that the trial court failed to make the requisite findings before imposing

consecutive sentences.

{¶ 43} We consider each of Peabody’s assignments in turn.

16. A. Manifest Weight

{¶ 44} In his first assignment of error, Peabody argues that his convictions are

against the manifest weight of the evidence. First, he maintains that he was not in the

hotel room when officers entered, therefore, he could not have possessed the items found

in the room. Second, he insists that testimony from Green-Burton and Schultz that he

“constructively” possessed the items in the room should have been disregarded because

those witnesses testified in exchange for deals with the state. Third, he complains that

the state did not take fingerprints from the digital scale found in the room, did not

investigate phones seized from the room, and did not examine GPS data as part of its

investigation, and he emphasizes that spoons containing drug residue were not located on

his person. Finally, he argues that the state failed to prove that he “knowingly” possessed

items found in the vehicle he was driving on January 27, 2017, because it was his father’s

vehicle, and the items were found in compartments that could not easily be accessed.

{¶ 45} The state responds that Peabody’s convictions were premised on theories of

constructive possession and complicity. It argues that its plea agreements with Green-

Burton and Schultz were disclosed to the jury, and it was up to the jury to make

credibility determinations. The state maintains that fingerprint evidence, GPS data, and

cell phone extractions were not necessary and would have merely bolstered the testimony

of Peabody’s co-defendants. And it insists that the jury did not lose its way in

determining that Peabody knowingly possessed the items found in his father’s car

17. because he was in control of the vehicle when the items were found and he constructively

possessed the items that were not found on his person.

{¶ 46} When reviewing a claim that a verdict is against the manifest weight of the

evidence, the appellate court must weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine whether the jury clearly lost its way

in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We do not view the evidence in a light

most favorable to the state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the

factfinder’s resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas

No. L–10–1369, 2012–Ohio–6068, ¶ 15, citing Thompkins at 388. Reversal on manifest

weight grounds is reserved for “the exceptional case in which the evidence weighs

heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 47} Although under a manifest-weight standard we consider the credibility of

witnesses, we must nonetheless extend special deference to the jury’s credibility

determinations given that it is the jury who has the benefit of seeing the witnesses testify,

observing their facial expressions and body language, hearing their voice inflections, and

discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.

Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14.

18. {¶ 48} Peabody first argues that because he was not present in the hotel room

when the officers entered the room, he could not have possessed the items found there.

Under R.C. 2925.11(A), “[n]o person shall knowingly obtain, possess, or use a controlled

substance or a controlled substance analog.” Possession may be actual or constructive.

State v. Williams, 6th Dist. Lucas No. L-14-1056, 2016-Ohio-439, ¶ 16. Under R.C.

2923.03(A)(2), “[n]o person, acting with the kind of culpability required for the

commission of an offense, shall * * * [a]id or abet another in committing the offense.” A

jury could find Peabody guilty if it concluded that Peabody actively or constructively

possessed the drugs or if he aided or abetted in the possession of the drugs. Importantly,

Peabody was convicted of complicity in the commission of possession of heroin and

cocaine.

{¶ 49} With respect to the drugs in the hotel room, the state’s theory was that

Peabody constructively possessed the drugs or aided or abetted his co-defendants in

possessing the drugs. “‘Constructive possession exists when an individual exercises

dominion and control over an object, even though that object may not be within his [or

her] immediate physical possession.’” State v. Weemes, 6th Dist. Lucas No. L-18-1243,

2020-Ohio-140, ¶ 44, quoting State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351

(1976). Proof of constructive possession requires “evidence demonstrating that the

defendant was conscious of the presence of the object.” Weemes at ¶ 44.

19. {¶ 50} A person has aided or abetted an offense “if he has supported, assisted,

encouraged, cooperated with, advised, or incited another person to commit the offense.”

State v. Scott, 5th Dist. Morgan No. 2006-CA-002, 2006-Ohio-6390, ¶ 39, citing State v.

Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus. “Participation in criminal

intent may be inferred from presence, companionship and conduct before and after the

offense is committed.” (Internal quotations and citations omitted.) State v. McFarland,

162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶ 29.

{¶ 51} Here, the state presented evidence that Peabody and Green-Burton devised

a plan to transport drugs from Lansing to Erie County to sell to Peabody’s contacts in

Erie County. Peabody personally carried the drugs on the car ride because Green-Burton

did not like to travel with drugs. Peabody took Green-Burton (and the drugs, which were

in the car) to L.G.’s house in the hope that they could use L.G.’s house as a trap house,

and gave L.G. drugs to entice her to allow them to use her home. Peabody introduced

Green-Burton to Schultz, who ultimately rented the hotel room where they would store

the drugs while Peabody shored up customers. Peabody was seen coming and going

from the hotel room where the officers found the drugs. He carried drugs from the hotel

to sell to the CI. He arranged and carried out numerous additional sales of those drugs.

And when he we was arrested, he was carrying a bindle of drugs, packaged in paper torn

from a phone book. All these facts evidence his knowledge that the drugs were stored in

the room, that he exercised dominion or control over the drugs, and that he “supported,

20. assisted, encouraged, cooperated with, advised, or incited” his co-defendants in the

possession of the drugs. See State v. Lane, 2022-Ohio-3775, 202 N.E.3d 45, ¶ 66 (3d

Dist.), appeal not allowed, 169 Ohio St.3d 1443, 2023-Ohio-554, 203 N.E.3d 737,

reconsideration denied, 170 Ohio St.3d 1421, 2023-Ohio-1507, 208 N.E.3d 857

(detailing evidence of complicity to possess drugs, including evidence indicating that

defendant had knowledge that father of her child was selling drugs out of her home and

that she helped to further his actions by providing a location from which he could sell

drugs, selling the drugs in his absence, and soliciting the help of her friends to further his

actions).

{¶ 52} Peabody next argues that testimony from Green-Burton and Schultz that he

“constructively” possessed the items in the room should have been disregarded because

those witnesses testified in exchange for deals with the state. He insists that jurors should

have viewed their testimony with grave suspicion, given the testimony reduced weight,

and found the testimony not credible.

{¶ 53} The trial judge properly instructed the jury that accomplice testimony

“should be viewed with grave suspicion and weighed with great caution.” “A jury is

presumed to follow the instructions given to it by the trial judge.” State v. Clinton, 153

Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 52, citing State v. Garner, 74 Ohio

St.3d 49, 59, 656 N.E.2d 623 (1995). We, therefore, presume that the jury, in fact,

viewed Green-Burton and Schultz’s testimony with grave suspicion and weighed it with

21. great caution. Ultimately, however, it was the jury’s role to make credibility

determinations and to assign the weight to be given to these witnesses’ testimony. It was

informed of the agreements that Green-Burton and Schultz made with the state and those

witnesses were cross-examined by defense counsel. The fact that the jury found Green-

Burton and Schultz to be credible does not render Peabody’s convictions against the

manifest weight of the evidence. See State v. Flow, 2022-Ohio-4416, 203 N.E.3d 201, ¶

92 (6th Dist.).

{¶ 54} Peabody next complains that the state did not take fingerprints from the

digital scale found in the room and did not investigate phones seized from the room. He

criticizes the state for failing to examine GPS data as part of its investigation and to use

GPS data to corroborate Green-Burton’s testimony that he and Peabody had driven a

rental car from Lansing, Michigan to Erie County. Peabody insists that the state’s failure

to present this type of evidence should have weighed heavily against it.

{¶ 55} The state was not required to produce fingerprint evidence linking Peabody

to the crimes. See State v. Cook, 12th Dist. Butler No. CA2022-02-016, 2023-Ohio-256,

¶ 31. Nor was it required to present evidence of the contents of the cell phones it seized

or GPS data confirming his whereabouts. See, e.g., State v. Terry, 8th Dist. Cuyahoga

No. 91290, 2009-Ohio-1878, ¶ 10 (concluding that convictions were not against the

sufficiency or weight of the evidence despite cell phone evidence not having been

22. offered). Peabody’s challenges do not render his convictions against the manifest weight

of the evidence.

{¶ 56} Finally, Peabody argues that the state failed to prove that he “knowingly”

possessed items found in the vehicle he was driving because it was his father’s vehicle,

and the items were found in compartments that could not easily be accessed. The state

counters that Peabody was the sole occupant and driver of the vehicle, thus he was

exercising dominion and control over the items found in the vehicle regardless of the fact

that it belonged to his father.

{¶ 57} First, the state was not required to show that Peabody owned the vehicle.

Because he was driving the vehicle and was able to exercise dominion and control over

the vehicle and its contents, he could be charged with possession for illegal items found

in the vehicle. See, e.g., State v. Graziani, 3d Dist. Defiance No. 4-10-01, 2010-Ohio-

3550, ¶ 17 (recognizing that ownership of vehicle was not necessary to show that

defendant had possession, use, and control of the vehicle and constructive possession of

the drug paraphernalia found in the vehicle); State v. Reed, 6th Dist. Erie No. E-17-038,

2018-Ohio-4451, ¶ 18. As for the spoon with residue found in the console of the vehicle,

this court has held that a driver may be convicted for possession of drugs or paraphernalia

found in a center console, regardless of the fact that he or she did not own the vehicle.

See Reed at ¶ 9-20. Finally, as to the items found in the air vent, the court in State v.

Paige, 8th Dist. Cuyahoga No. 97939, 2012-Ohio-5727, ¶ 16-18, affirmed the

23. defendant’s conviction for possession of drugs found in the air vent of a vehicle even

though the vehicle belonged to his uncle and his uncle allegedly allowed others to drive

the vehicle. While there was evidence in this case that officers had to use a wire hanger

to remove the items from the air vent, the jury could reasonably have concluded that the

items belonged to Peabody and not his father.

{¶ 58} In short, it was the role of the jury to judge credibility and weigh the

evidence here. We cannot say that the jury lost its way in resolving the facts in favor of

the state. This is not the exceptional case in which the evidence weighs heavily against

the conviction. We find Peabody’s first assignment of error not well-taken.

B. Speedy Trial

{¶ 59} In his second assignment of error, Peabody argues that the trial court erred

when it denied his motion to dismiss for violation of his right to a speedy trial as

guaranteed by the Sixth Amendment to the U.S. Constitution and Article I, Section 10 of

the Ohio Constitution. The state responds that Peabody was not being held solely on the

charges in this case, thus triple-count provisions of R.C. 2945.71(E) did not apply, and it

emphasizes that most delays were not chargeable to the state due to tolling events.

{¶ 60} The Sixth Amendment to the U.S. Constitution and Article I, Section 10 of

the Ohio Constitution grant an accused the right to a speedy trial. State v. Martin, 156

Ohio St.3d 503, 2019-Ohio-2010, 129 N.E.3d 437. This right is also codified in R.C.

2945.71, et seq. Id. Under R.C. 2945.71(C)(2), “[a] person against whom a charge of

24. felony is pending * * * shall be brought to trial within two hundred seventy days after the

person’s arrest.” Under R.C. 2945.71(E), for purposes of computing such time, “each

day during which the accused is held in jail in lieu of bail on the pending charge shall be

counted as three days.” R.C. 2945.72 sets forth circumstances in which the period for

bringing an accused to trial may be extended. They include:

(A) Any period during which the accused is unavailable for hearing

or trial, by reason of other criminal proceedings against the accused, within

or outside the state, by reason of confinement in another state, or by reason

of the pendency of extradition proceedings, provided that the prosecution

exercises reasonable diligence to secure availability of the accused;

***

(C) Any period of delay necessitated by the accused’s lack of

counsel, provided that such delay is not occasioned by any lack of diligence

in providing counsel to an indigent accused upon the accused’s request as

required by law;

(D) Any period of delay occasioned by the neglect or improper act

of the accused;

(E) Any period of delay necessitated by reason of a plea in bar or

abatement, motion, proceeding, or action made or instituted by the accused;

25. (G) Any period during which trial is stayed pursuant to an express

statutory requirement, or pursuant to an order of another court competent to

issue such order;

(H) The period of any continuance granted on the accused’s own

motion, and the period of any reasonable continuance granted other than

upon the accused’s own motion[.]

{¶ 61} When reviewing a speedy trial issue, we must “count the days of delay

chargeable to either side and determine whether the case was tried within the time limits

pursuant to R.C. 2945.71.” State v. Hopkins, 7th Dist. Mahoning No. 11 MA 107, 2012-

Ohio-3003, ¶ 12, citing State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853

N.E.2d 283, ¶ 8. A trial court’s decision denying a motion to dismiss based upon a

violation of the speedy trial provisions presents a mixed question of law and fact. State v.

Beal, 2021-Ohio-3812, 179 N.E.3d 754, ¶ 20 (5th Dist.). We accept as true any facts

found by the trial court so long as they are supported by competent, credible evidence,

but we review legal issues de novo. Id.

{¶ 62} Rather than recite the parties’ arguments, we will construct our own

timeline and consider the parties’ pertinent arguments in determining whether Peabody’s

right to a speedy-trial was violated. That timeline is as follows:

26. Date Event Tolling? # Triple Total Days Count? Days 11/8/17 Indictment is filed 11/13/17 Judgment entry from court directs sheriff to transport Peabody from Mansfield Correctional Institution 11/17/17 Arrest warrant is served SPEEDY TRIAL at Mansfield TIME BEGINS TO Correctional Institution RUN 11/21/17 Peabody is arraigned 4 no; 4 incarcerated on another matter 11/22/17 Notice to the court 1 no; 1 indicating that Peabody incarcerated is presently serving on another prison sentence matter 12/12/17 Judgment entry from 20 no; 20 the court directs sheriff incarcerated to transport Peabody on another from Mansfield matter Correctional Institution for 1/9/18 PT 1/2/18 Peabody released from 21 no; 21 Mansfield Correctional incarcerated Institution and taken to on another Erie County jail matter 1/9/18 Defense counsel failed Yes, time tolled until 7 Yes; 21 to appear for 1/9/18 PT 2/13/18 court date completed other sentence 1/2/18 1/17/18 Peabody is released Yes (see above) 0 0 from jail

27. 2/13/18 Defendant’s motion for Yes, time tolled until 0 0 continuance and waiver 4/3/18 court date of speedy trial till next (R.C. 2945.72(H)) court date 4/2/18 Scheduling conflict of Yes, time tolled until 0 0 court 4/10/18 (R.C. 2945.72(H)) 4/10/18 Defendant’s motion for Yes, time tolled until 0 0 continuance and waiver 4/24/18 court date of speedy trial till next (R.C. 2945.72(H)) court date 4/24/18 Pretrial; bond revoked Yes; improper 0 0 for failure to appear conduct of defendant (R.C. 2945.72(D)) 4/26/18 Bench warrant Yes; improper 0 0 conduct of defendant (R.C. 2945.72(D)) 10/19/18 Peabody is arrested Yes; improper 0 0 conduct of defendant (R.C. 2945.72(D)) 10/23/2018 Defendant’s motion for Yes, time tolled until 0 0 continuance 11/20/18 court date (R.C. 2945.72(H)) 11/20/18 Defendant’s motion for Yes, time tolled until 0 0 continuance and waiver 1/8/19 court date of speedy trial till next (R.C. 2945.72(H)) court date 1/8/19 Defendant’s motion for Yes, time tolled until 0 0 continuance and waiver 2/26/19 court date of speedy trial till next (R.C. 2945.72(H)) court date 2/26/19 Defendant’s motion for Yes, time tolled until 0 0 continuance and waiver 3/19/19 court date of speedy trial (R.C. 2945.72(H)) 3/6/19 Peabody is released Yes (see above) 0 0 from jail 3/19/19 Defendant’s motion for Yes, time tolled until 0 0 continuance and waiver 5/7/19 court date of speedy trial till next (R.C. 2945.72(H)) court date

28. 5/7/19 Defendant’s motion for Yes, time tolled until 0 0 continuance 7/8/19 jury trial (R.C. 2945.72(H)) 6/13/19 Defense counsel’s Yes (see above) 0 0 motion to withdraw 6/14/19 Bench warrant issued Yes (see above); 0 0 also improper conduct of defendant (R.C. 2945.72(D)) 6/25/21 Arrested in Arizona; Yes. On 5/7/19, 0 0 held on Erie County Peabody waived case Nos. 2017-CR- speedy trial until 0487; 2018-CR-0042; 7/8/19 jury trial, but 2018-CR-0477 left jurisdiction in the meantime. Next post-arrest court date scheduled for 7/27/21. 7/26/2021 Defendant’s motion for Yes, time tolled until 0 0 continuance 9/7/21 court date (R.C. 2945.72(H)) 9/8/21 Defendant’s motion for Yes, time tolled until 0 0 continuance 11/2/21 court date (R.C. 2945.72(H)) 11/2/21 Defendant’s motion for Yes, time tolled until 0 0 continuance and speedy 1/4/22 court date trial waiver until next (R.C. 2945.72(H)) court date Covid outbreak at Erie Yes, time tolled until 0 0 County Jail necessitates 1/18/22 (R.C. continuance of 1/4/22 2945.72(H)) PT Illness of judge Yes, time tolled until 0 0 necessitates 1/25/22 (R.C. continuance of 1/18/22 2945.72(H)) PT 1/25/22 Defendant’s motion for Yes, time tolled until 0 0 continuance 2/22/22 (R.C. 2945.72(H))

29. 2/22/22 Defendant’s motion for Yes, time tolled until 0 0 continuance 6/27/22 (R.C. 2945.72(H)) 6/27/22 Jury Trial 0 0 TOTAL 67 DAYS

{¶ 63} R.C. 2945.72(H) provides that the period for bringing an accused to trial

may be extended for a “period of any continuance granted on the accused’s own motion,

and the period of any reasonable continuance granted other than upon the accused’s own

motion.” Most of the continuances described above resulted from defense motions.

There were three short continuances necessitated by other circumstances: (1) a

scheduling conflict of the trial court required an eight-day continuance; (2) a Covid

outbreak at the jail required a two-week continuance; and (3) the trial judge’s illness

required a one-week continuance.

{¶ 64} “‘[A] trial court may continue a trial date without violating a defendant’s

right to a speedy trial if the purpose and length of the continuance are reasonable.’” State

v. Stoddard, 2020-Ohio-893, 152 N.E.3d 990, ¶ 14 (9th Dist.), quoting State v. Brewer,

9th Dist. Lorain No. 14CA010608, 2016-Ohio-5366, ¶ 10. A sua sponte continuance

must be accompanied by a journal entry explaining the reason for the continuance. Id.

{¶ 65} Ohio courts have recognized that a scheduling conflict may be a reasonable

purpose for a continuance. Id.; State v. Glass, 3d Dist. Auglaize No. 2-04-01, 2004-

Ohio-4402, ¶ 11. Additionally, the Ohio Supreme Court has recognized that trial courts

may continue trials for defendants on a case-by-case basis as needed to prevent the spread

30. of the coronavirus. In re Disqualification of Fleegle, 161 Ohio St.3d 1263, 2020-Ohio-

5636, 163 N.E.3d 609, citing 2020 Ohio Atty.Gen.Ops. No. 2020-002.

{¶ 66} Here, the journal entries reflect the reasons for the continuances. The trial

court granted short continuances due to illness, a scheduling conflict, and a Covid

outbreak at the jail. The purpose and length of the continuances were reasonable.

{¶ 67} R.C. 2945.72(D) also provides that the period for bringing an accused to

trial may be extended for a “[a]ny period of delay occasioned by the neglect or improper

act of the accused.” Here, additional continuances were necessitated by Peabody’s own

failure to appear and his departure from the jurisdiction. These circumstances tolled the

speedy-trial clock. See State v. Bauer, 61 Ohio St.2d 83, 84, 399 N.E.2d 555, 556 (1980)

(“[A] defendant who fails to appear at a scheduled trial, and whose trial must therefore be

rescheduled for a later date, waives his right to assert the provisions of R.C. 2945.71

through 2945.73 for that period of time which elapses from his initial arrest to the date he

is subsequently rearrested.).

{¶ 68} As for application of the triple-count provision of R.C. 2945.71(E), this

provision “applies only to those defendants who are held in jail in lieu of bail solely on

the pending charge.” (Emphasis in original.) State v. Burrows, 8th Dist. Cuyahoga No.

54153, 1988 WL 12981, *3 (Feb. 11, 1988). See also State v. Harris, 6th Dist. Huron

No. H-99-010, 2000 WL 731374, *7 (Jun. 9, 2000). The record demonstrates that

Peabody was incarcerated on another matter for the period of his arrest on November 17,

31. 2017, through January 2, 2018, therefore, he is not entitled to the benefit of the three-for-

one provision for those days. The only period for which the triple-count provision

applies was January 2, 2018, to January 9, 2018. All other time that Peabody spent in jail

solely on this charge has been charged to him under R.C. 2945.72(D) and (H).

{¶ 69} The trial court did not err in denying Peabody’s motion to dismiss for

violation of his right to a speedy trial. We find Peabody’s second assignment of error not

well-taken.

C. Ineffective Assistance of Counsel

{¶ 70} In his third assignment of error, Peabody argues that although Green-

Burton testified that he had a 2017 felony conviction in Michigan for a home invasion, a

felony conviction in West Virginia for possession of crack cocaine and heroin, and a

conviction related to the present case, Green-Burton had numerous additional convictions

about which trial counsel failed to cross-examine him. Peabody maintains that trial

counsel was ineffective for failing to do so, and he insists that if he had done so, it would

have emphasized Green-Burton’s incentive to cooperate with the state, it would have

made clear that Green-Burton specifically lied at trial when he said that the Michigan,

West Virginia, and present case were his only prior felony convictions, and the jury

would have found Green-Burton’s testimony less credible. Peabody urges that Green-

Burton’s testimony was crucial to the state’s case because it was the only evidence that

Green-Burton had an arrangement to sell drugs to Peabody, the testimony linked Peabody

32. to the contents of the hotel room, and there had been little other testimony that Peabody

had been present in the hotel room where the drugs and other items had been found.

{¶ 71} The state responds that Peabody offers no evidence that Green-Burton had

criminal offenses beyond what he admitted at trial. Although trial counsel made a

reference to Green-Burton’s “extensive criminal history,” the record contains nothing

more on the topic. Additionally, the state emphasizes that it was clear to the jury that

Green-Burton is not a law-abiding citizen and that he had made a deal with the state to

testify against Peabody. It insists that Peabody has not demonstrated that there was a

reasonable probability of a different outcome had trial counsel cross-examined Green-

Burton about additional prior convictions.

{¶ 72} In order to prevail on a claim of ineffective assistance of counsel, an

appellant must show that counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial court cannot be relied on as having produced a just

result. State v. Shuttlesworth, 104 Ohio App.3d 281, 287, 661 N.E.2d 817 (7th

Dist.1995). To establish ineffective assistance of counsel, an appellant must show “(1)

deficient performance of counsel, i.e., performance falling below an objective standard of

reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for

counsel’s errors, the proceeding’s result would have been different.” State v. Hale, 119

Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland v.

Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A

33. reasonable probability is a probability sufficient to undermine confidence in the

outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).

{¶ 73} Properly licensed Ohio lawyers are presumed competent. State v. Banks,

9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. To establish ineffective

assistance of counsel, the defendant must show that counsel’s performance fell below an

objective standard of reasonableness and that the deficient performance prejudiced the

defendant so as to deprive him of a fair trial. Strickland at 688-692. As recognized in

Strickland, there are “countless ways to provide effective assistance in any given case.”

Id. at 689. “Judicial scrutiny of counsel’s performance must be highly deferential.” State

v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 689.

{¶ 74} Moreover, in matters involving trial strategy, “courts will generally defer to

the judgment of trial counsel, even where ‘another and better strategy’ might have been

available.” State v. Newsome, 11th Dist. Ashtabula No. 2003-A-0076, 2005-Ohio-3775,

¶ 8, quoting State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). “A court

will only consider reversing on these grounds where the choice of trial strategy so

deviates from the standard of reasonableness ‘that ordinary trial counsel would scoff at

hearing of it.’” Id., quoting State v. Burgins, 44 Ohio App.3d 158, 160, 542 N.E.2d 707

(1988).

{¶ 75} After Green-Burton testified, defense counsel indicated his desire to recall

him to the stand to reexamine him because “it turns out he has a fairly extensive criminal

34. history.” The court asked the state for its response, and the attorney for the state said that

she had given the defense a copy of Green-Burton’s computerized criminal history

(“CCH”) and the only things on it were the convictions about which he testified. The

court then asked defense counsel if he had the CCH that morning, during Green-Burton’s

testimony. Defense counsel said yes, but explained that he “did not have access to get a

certified copy.” Because defense counsel had the document at the time Green-Burton

testified, the court denied his request to recall the witness.

{¶ 76} In State v. Anderson, 4th Dist. Lawrence No. 17CA6, 2018-Ohio-2013, ¶

34, appellant argued that his attorney was ineffective for failing to cross-examine a

witness more thoroughly about her criminal history. The court rejected this argument,

reasoning that it could not conclude that “more specific details regarding [the witness’s]

criminal history would have led the jury to wholly discredit [her] testimony such that the

outcome of appellant’s trial would have been different.” Id. It noted that the defendant

had not suggested what further probing of the witness’s criminal past would have

revealed and emphasized that appellant could only speculate that additional evidence

regarding the witness’s criminal past would have led the jury to acquit him. The court

also recognized that “[t]he jury was well-aware that [the witness] had not been a law-

abiding citizen;” she had been cross-examined about “her criminal history, her drug use,

and her motivation to become a confidential informant;” she admitted that she had prior

criminal charges involving dishonesty, that she had abused drugs, that she had overdosed,

35. and that after her overdose, she became a CI; and counsel had elicited evidence implying

that she had implicated the defendant because of a romantic tiff.

{¶ 77} Like Anderson, the jury here was well aware that Green-Burton had felony

convictions and had been selling drugs for at least a year before his arrest in this case. It

also understood that Green-Burton’s cooperation had been rewarded greatly by a likely

reduction of his 41-month prison term to a six-month stay in a treatment facility. And

like Anderson, there is nothing in the record specifying what other criminal convictions

existed and whether additional purported convictions—or his failure to disclose such

convictions on direct examination—would have discredited him any more seriously than

the convictions that he did disclose. As such, we cannot say that there was a reasonable

probability that the outcome of the trial would have been different had defense counsel

cross-examined Green-Burton more thoroughly about his criminal history.

{¶ 78} Peabody attempts to distinguish Anderson by arguing that counsel in

Anderson failed to obtain details of the witness’s criminal history before trial, whereas

defense counsel here had a copy of the criminal history at the time Green-Burton

testified. He emphasizes that counsel sought to subpoena Green-Burton as a rebuttal

witness, but the court would not allow it. While this may have some bearing in

evaluating the advisability of counsel’s trial strategy (if we were inclined to evaluate

counsel’s trial strategy), we fail to see how this distinction impacts our conclusion

concerning the reasonable probability of a different outcome.

36. {¶ 79} Finally, Peabody insists that “[r]evealing Green-Burton’s full criminal

history would have led to Peabody’s acquittal” because “[t]he jury would have had much

more rationale to discredit his testimony, which was critical to the State’s case.” This is

purely speculative. Green-Burton’s testimony was consistent with Schultz’s testimony.

Schultz testified that Peabody told her that Green-Burton would be providing drugs and

that he would be selling it. Schultz knew that Peabody and Green-Burton originally

planned to sell drugs out of L.G.’s house and that they were forced to settle on the hotel

room. She testified about Peabody’s efforts—his calls and texts—to sell the product that

Green-Burton had admittedly provided. Given that Schultz and Green-Burton’s

testimony was entirely consistent, it is unlikely that a jury would have found Green-

Burton less credible if it had known that he had a longer or more serious criminal history,

or if it had been advised that Green-Burton underrepresented the extent of his criminal

history.

{¶ 80} We find Peabody’s third assignment of error not well-taken.

D. Jury Instruction

{¶ 81} In his fourth assignment of error, Peabody argues that the trial court abused

its discretion when it included a jury instruction on consciousness of guilt. He urges that

he had been living with his father-in-law in Arizona “in plain sight,” and there was no

evidence that he took steps to conceal himself or his identity or evade capture while in

37. Arizona. He also maintains that there was no evidence as to how or why he went to

Arizona or that he went to Arizona to flee authorities.

{¶ 82} The state responds that the jury instruction was a correct statement of the

law and was appropriate under the facts of the case. Specifically, it highlights the

testimony of Deputy Henderson, who testified that on June 14, 2019, the trial court issued

a warrant because Peabody violated bond. At that time, a jury trial had been scheduled

for July 8, 2019. The bench warrant was not executed until June 25, 2021, at which time

it was discovered that Peabody was incarcerated in Yuma, Arizona, for a new drug

offense. The state insists that reasonable minds could conclude that Peabody’s leaving

the state before his scheduled trial date was an attempt to evade justice and was indicative

of consciousness of guilt. Finally, the state maintains that the evidence of guilt was

overwhelming, therefore, even if the trial court erred in giving the instruction, any such

error was harmless.

{¶ 83} Trial courts are charged with giving juries correct and comprehensive

instructions that adequately reflect the argued issues in the given case before them. State

v. Sneed, 63 Ohio St.3d 3, 9, 584 N.E.2d 1160 (1992). “Requested jury instructions

should ordinarily be given if they are correct statements of law that are applicable to the

facts in the case, and reasonable minds might reach the conclusion sought by the

instruction.” Miller v. Defiance Regional Med. Ctr., 6th Dist. Lucas No. L-06-1111,

2007-Ohio-7101, ¶ 40, citing Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591,

38. 575 N.E.2d 828 (1991). We review the trial court’s instructions to the jury for an abuse

of discretion. State v. White, 2013-Ohio-51, 988 N.E.2d 595, ¶ 97 (6th Dist.), citing State

v. Lillo, 6th Dist. Huron No. H-10-001, 2010-Ohio-6221, ¶ 15. In doing so, we review

the instructions as a whole to determine whether or not the jury was likely misled in a

matter materially affecting the substantial rights of the party who claims error. Miller at ¶

40, citing Becker v. Lake Cty. Mem. Hosp. West, 53 Ohio St.3d 202, 208, 560 N.E.2d 165

(1990).

{¶ 84} Evidence of flight is admissible as evidence of consciousness of guilt.

State v. Williams, 79 Ohio St.3d 1, 11, 679 N.E.2d 646 (1997). “Flight means some

escape or affirmative attempt to avoid apprehension.” (Internal quotations omitted.)

State v. Herrell, 6th Dist. Lucas No. L-16-1173, 2017-Ohio-7109, ¶ 24, quoting State v.

Wesley, 8th Dist. Cuyahoga No. 80684, 2002-Ohio-4429, ¶ 19, citing United States v.

Felix–Gutierrez, 940 F.2d 1200, 1207 (9th Cir.1991). To constitute “flight,” the

defendant must “appreciate that he has been identified as a person of interest in a criminal

offense and is taking active measures to avoid being found.” State v. Sanchez-Sanchez,

2022-Ohio-4080, 201 N.E.3d 323, ¶ 177 (8th Dist.), appeal not allowed, 169 Ohio St.3d

1458, 2023-Ohio-758, 204 N.E.3d 569. Flight need not be immediate. State v. White,

2015-Ohio-3512, 37 N.E.3d 1271, ¶ 48 (2d Dist.). “The instruction may be appropriate

when the defendant, a long-time resident of the area in which the crime occurred, was

arrested months later in another state or another part of this state.” Id.

39. {¶ 85} The trial court instructed the jury as follows:

Testimony has been admitted indicating that the Defendant fled from

the jurisdiction of the Court. You are instructed that the Defendant fleeing

from the jurisdiction alone does not raise a presumption of guilt, but it may

tend to indicate the Defendant’s consciousness or awareness of guilt. If

you find that the facts do not support that the Defendant fled the

jurisdiction, or if you find that some other motive prompted the

Defendant’s conduct, or if you are unable to decide what the Defendant’s

motivation was, then you should not consider this evidence for any

purpose. However, if you find that the facts support that the Defendant

engaged in such conduct, and if you decide that the Defendant was

motivated by a consciousness or awareness of guilt, you may, but are not

required to, consider the evidence in deciding whether the Defendant is

guilty of the crimes charged. You alone will determine what weight, if any,

to give this evidence.

{¶ 86} Here, Peabody was arrested on February 27, 2017. He was indicted on

November 8, 2017, and appeared for arraignment on November 21, 2017. Discovery was

proceeding, pretrials were scheduled, and motions were filed. An April 26, 2018 bench

warrant was issued, and he was arrested on that warrant six months later. A jury trial was

set for July 8, 2019. But the court was forced to issue another bench warrant on June 14,

40. 2019, and deputies did not succeed in arresting Peabody until June 25, 2021, at which

time it was discovered that Peabody was in Arizona, incarcerated on another case.

Peabody offered no evidence suggesting an alternative motivation for his departure from

the jurisdiction. It could properly be inferred that Peabody’s travel to Arizona—when he

knew he had been indicted, prosecution was active, and a jury trial had been set—was an

attempt to flee from justice. The trial court did not err in instructing the jury on

consciousness of guilt.

{¶ 87} We find Peabody’s fourth assignment of error not well-taken.

E. Consecutive Sentences

{¶ 88} The trial court ordered that Peabody serve the sentences imposed for

Counts 1, 2, and 7 concurrently with each other, but consecutively with the sentence

imposed for Count 6. In his fifth assignment of error, Peabody argues that the trial court

imposed consecutive sentences without making sufficient findings required under R.C.

2919.14(C)(4). In particular, he maintains that at the sentencing hearing, the trial court

failed to find that consecutive sentences were not disproportionate to the seriousness of

the offender’s conduct and to the danger the offender poses to the public. Moreover, he

insists that none of the requisite findings are set forth in the sentencing entry, therefore,

the matter must be remanded for resentencing.

{¶ 89} The state agrees with Peabody that the court failed to make the finding that

consecutive sentences were not disproportionate to the seriousness of the offender’s

41. conduct and to the danger the offender poses to the public, and that it failed to

incorporate the R.C. 2919.14(C)(4) findings into its sentencing entry. It argues that the

matter should be remanded to the trial court for a new sentencing hearing.

{¶ 90} Under R.C. 2929.14(C)(4), where a trial court imposes multiple prison

terms for convictions of multiple offenses, it may require the offender to serve the prison

terms consecutively if it finds that “consecutive service is necessary to protect the public

from future crime or to punish the offender and that consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public,” and if it also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct.

42. (c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶ 91} “[T]he trial court must make the requisite findings both at the sentencing

hearing and in the sentencing entry.” (Emphasis in original.) State v. Beasley, 158 Ohio

St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 253, citing State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. While “a word-for-word recitation of

the language of the statute is not required,” a reviewing court must be able to discern that

the trial court engaged in the correct analysis and the record must contain evidence to

support the trial court’s findings. Bonnell at ¶ 29.

{¶ 92} At the sentencing hearing, the trial court provided the following rationale

for imposing consecutive sentences:

The Court finds consecutive service is necessary because the crimes

were committed while awaiting sentencing, trial, under sanction, under post

release control. The harm is so great or unusual that a single term does not

adequately reflect the seriousness of the conduct, but, more importantly

offender’s criminal history shows that consecutive terms are needed to

protect the public.

{¶ 93} The parties are correct that the trial court failed to find that

consecutive service is necessary to protect the public from future crime or to punish the

43. offender and that consecutive sentences are not disproportionate to the seriousness of the

offender’s conduct and to the danger the offender poses to the public. The parties are

also correct that the findings the trial court made were not incorporated into its judgment

entry. We, therefore, agree that this matter must be remanded so that the trial court can

make the necessary findings and issue a judgment entry incorporating its findings.

{¶ 94} We find Peabody’s fifth assignment of error well-taken.

III. Conclusion

{¶ 95} Peabody’s convictions were not against the manifest weight of the

evidence. Peabody was convicted under theories of complicity or constructive

possession, therefore, it was not necessary that he be in actual possession of the crack

cocaine and heroin that was found in the hotel room. The fact that the jury found Green-

Burton and Schultz to be credible does not render the convictions against the manifest

weight of the evidence. The state was not required to produce fingerprint evidence, the

content of cell phones, or GPS data. And Peabody could be found to have possessed the

items found in his father’s vehicle—even the items found in the air vent—because he was

driving the vehicle and exercised dominion and control over the vehicle and its contents.

It was the role of the jury to weigh the evidence and make credibility determinations.

This is not the exceptional case where the evidence weighs heavily against conviction.

We find Peabody’s first assignment of error not well-taken.

44. {¶ 96} Peabody’s right to a speedy trial was not violated. Most of the delays that

occurred in this case were chargeable to Peabody because he sought continuances or

engaged in improper conduct, such as failing to appear at trial or leaving the jurisdiction

despite a scheduled jury trial. Triple-count provisions did not apply while he was

incarcerated on other matters. We find Peabody’s second assignment of error not well-

taken.

{¶ 97} Trial counsel was not ineffective for failing to cross-examine Green-Burton

more thoroughly as to his criminal record. The jury was already aware that Green-Burton

was a convicted felon who had been selling drugs for at least a year before his arrest in

this case and had been rewarded for cooperating with the state. We cannot say that there

was a reasonable probability that the outcome of the trial would have been different had

defense counsel cross-examined Green-Burton more thoroughly about his criminal

history, especially given that there was nothing in the record specifying what criminal

convictions existed. We find Peabody’s third assignment of error not well-taken.

{¶ 98} The trial court did not abuse its discretion when it instructed the jury on

consciousness of guilt. There was evidence in the record that Peabody went to Arizona

after he was indicted and after the court had scheduled a jury trial and that the court

issued a bench warrant for his arrest. Reasonable minds could conclude that Peabody’s

leaving the state before his scheduled trial date was an attempt to evade justice and was

45. indicative of consciousness of guilt. We find his fourth assignment of error not well-

{¶ 99} The parties agree that at the sentencing hearing, the trial court failed to

make all findings necessary under R.C. 2929.14(C)(4) before imposing

consecutive sentences and that it failed to incorporate its R.C. 2929.14(C)(4) findings

into the sentencing entry. We find Peabody’s fifth assignment of error well-taken. We

remand this matter to the trial court so that it can consider whether consecutive sentences

should be imposed under R.C. 2929.14(C)(4) and for it to incorporate any such findings

into its sentencing entry.

{¶ 100} We affirm, in part, and reverse, in part, the September 6, 2022 judgment

of the Erie County Court of Common Pleas. The parties are ordered to share the costs of

this appeal under App.R. 24.

Judgment affirmed, in part, and reversed, in part.

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

46. State of Ohio v. William J. Peabody E-22-042

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, 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/.

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