[Cite as State v. Robison, 2026-Ohio-1223.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
STATE OF OHIO, : CASE NOS. 25CA12, 25CA13 & 25CA14 Plaintiff-Appellee, :
v. :
CARL D. ROBISON, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________ APPEARANCES:
Steven H. Eckstein, Washington Court House, Ohio, for appellant1.
Nicole Tipton Coil, Washington County Prosecuting Attorney, and Daniel W. Everson, Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.
________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:3-26-26 ABELE, J.
{¶1} This is an appeal from a Washington County Common
Pleas Court judgment of conviction and sentence. Carl Robison,
defendant below and appellant herein, raises two assignments of
error for review:
FIRST ASSIGNMENT OF ERROR:
“THE JURY’S FINDING THAT THE DEFENDANT- APPELLANT TRAFFICKED IN METHAMPHETAMINE IN COUNT 1 OF 23CR0377 IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
1 Different counsel represented appellant during the trial court proceedings. Washington 25CA12, 25CA13, and 25CA14 2
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT-APPELLANT TO IMPRISONMENT AND A COMMUNITY CONTROL SANCTION.”
Case No. 23CR377/25CA12
{¶2} In August 2023, a Washington County Grand Jury
returned an indictment that charged appellant with (1)
aggravated trafficking in drugs (methamphetamine) in violation
of R.C. 2925.03(A)(2)(in an amount exceeding the bulk amount but
less than 5 times the bulk amount and in the vicinity of a
juvenile), a second-degree felony, (2) aggravated possession of
drugs (methamphetamine)(in an amount exceeding the bulk amount
but less than 5 times the bulk amount) in violation of R.C.
2925.11(A), a third-degree felony, (3) aggravated possession of
drugs (a brown tablet containing methamphetamine) in violation
of R.C. 2925.11(A), a fifth-degree felony, (4) aggravated
possession of drugs (a green tablet containing methamphetamine)
in violation of R.C. 2925.11(A), a fifth-degree felony, (5)
aggravated possession of drugs (psilocyn) in violation of R.C.
2925.11(A), a fifth-degree felony, and (6) aggravated possession
of drugs (two blue tablets containing amphetamine) in violation
of R.C. 2925.11(A), a fifth-degree felony. Appellant entered
not guilty pleas. Washington 25CA12, 25CA13, and 25CA14 3
{¶3} On July 26, 2024, the trial court overruled
appellant’s motion to suppress evidence and a jury trial
commenced on July 31, 2024. Marietta Police Officer Justin
McElroy testified that on December 17, 2022, at approximately
10:00 p.m., he observed appellant leave a gas station in a white
Mercury SUV with no headlights. McElroy “knew . . . from
previous stops . . . that he does not have a valid driver’s
license,” and added that he stopped appellant two months before,
driving the same vehicle without a license. McElroy also
noticed the vehicle's expired registration sticker. When
McElroy conducted a traffic stop, he found appellant driving and
two juvenile females in the backseat. Before McElroy spoke to
appellant, appellant said, “Hey, McElroy, I still don’t have a
license.”
{¶4} Officer McElroy informed appellant that he stopped him
for the headlight and expired registration sticker violations.
McElroy also observed a camouflage fanny pack on the front
passenger seat and asked if appellant had anything illegal in
the vehicle. When appellant replied that he did not, McElroy
shone his flashlight directly on the fanny pack and said, “Are
you sure?” Appellant looked at the fanny pack, then back at
McElroy, and repeated that he did not have anything illegal in
the vehicle. Washington 25CA12, 25CA13, and 25CA14 4
{¶5} At that point, Officer McElroy called a K-9 to the
scene. About three to four minutes after McElroy initiated the
stop, Officer McClelland arrived with the K-9. McElroy
testified that as McClelland spoke to appellant, after “a pretty
short conversation,” appellant “handed out a bag of presumed
marijuana to Officer McClelland.” McClelland gave the marijuana
to McElroy, and McElroy and McClelland then decided to conduct a
probable cause search.
{¶6} After Officer McElroy asked appellant to exit the
vehicle, he also conducted a weapons pat-down search and
“immediately felt a foreign object” in appellant’s groin area.
Appellant stated, “Hey, that’s my nut.” When McElroy disagreed,
appellant said, “It’s personal use.” Appellant then told
McElroy, “he had a ball” (a gram of narcotics), retrieved the
drugs from his pants, and handed a “SpongeBob zipper case” to
McElroy:
Inside the container was a larger baggie of suspected . . . Methamphetamine. I believe it weighed upwards of ten grams, was my weight on it . . . There were also a few syringes that appeared to be used syringes, and a used glass smoking pipe. And I believe there was a handful of baggie-like little one-by-one baggies in there.
{¶7} Officer McElroy then informed appellant that he
planned to search the vehicle. When asked if he had “anything
else on him,” appellant informed McElroy that he “had something Washington 25CA12, 25CA13, and 25CA14 5
else inside of his underwear that he was going to retrieve for
me.” Appellant then retrieved “a one-by-one, it was a small
baggie, of suspected – what appeared to be Methamphetamine.”
Appellant then told McElroy, “I have another little baggie of
Meth on me... and he handed that to me as well.”
{¶8} Subsequently, Officer McElroy placed appellant in his
cruiser and searched appellant’s vehicle, where he found, inside
the fanny pack:
a set of digital scales, a small bag containing a certain type of mushroom, I think four or five grams of mushrooms. There were two - these were all separate, there was two pills I believe in a cellophane or some type of plastic wrap, which – what I suspected was Molly or MDMA, but they actually tested positive for Methamphetamine. And there were two other pills separate – they were either separate or in the same bag as the mushrooms, I’m not sure which. They tested positive for Amphetamine, Dextroamphetamine, or something – it was a schedule controlled substance, I believe, that they tested for.
{¶9} Officer McElroy testified that he observed the fanny
pack on the passenger’s seat, within appellant’s arm's reach.
Also in the vehicle, McElroy found another set of digital
scales, a “large quantity of those one-by-one clear baggies,”
and “a little over $200.” McElroy testified that these types of
baggies and digital scales are associated with drug trafficking,
and, in his experience, 10 grams is more than a personal-use
amount Washington 25CA12, 25CA13, and 25CA14 6
{¶10} Marietta Police Officer and K-9 handler Glen
McClelland testified that on December 17, 2022 dispatch sent him
to assist Officer McElroy. After speaking with McElroy,
McClelland approached the vehicle, identified himself to
appellant, and explained the canine sniff procedure. At that
time, appellant “said he had marijuana,” and handed McClelland a
bag which McClelland referred to as a “drop bag.” “Most people
will try to hand you something smaller than they’ve got, to keep
you away from finding the bigger stuff.” McClelland asked about
narcotics in the vehicle, and appellant said no. McClelland
gave the marijuana to McElroy and then observed McElroy pat
appellant down for weapons. McClelland heard McElroy ask
appellant “what was in his crotch,” and noted that McElroy found
more narcotics.
{¶11} Ohio Bureau of Criminal Investigation Forensic
Scientist Erin Miller is an expert in the analysis and
identification of controlled substances and works in BCI’s drug
chemistry section. Miller’s testing revealed (1) Item 1
constituted 9.94 grams of methamphetamine, (2) Item 3
constituted 2.41 grams of Psilocin, (3) Item 4.1 constituted a
tablet that contained Methamphetamine, (4) Item 4.2 constituted
a tablet that contained Methamphetamine, (5) Item 5 constituted
2 tablets that contained .23 grams and .05 grams of Amphetamine,
respectively. Washington 25CA12, 25CA13, and 25CA14 7
{¶12} At the close of appellee’s case, the trial court
overruled appellant’s Crim.R. 29 motion for judgment of
acquittal.
{¶13} After a two-day trial, a jury found appellant guilty
of all counts charged in the indictment. Due to other pending
cases, the trial court continued appellant’s sentencing to
resolve the other cases and ordered a combined sentence.
Case No. 23CR400/25CA13
{¶14} In Case No. 23CR400, while out on bond in Case No.
23CR377, in September 2023, a Washington County Grand Jury
returned an indictment that charged appellant with one count of
aggravated possession of drugs (methamphetamine in an amount
that equals or exceeds the bulk amount but is less than 5 times
the bulk amount) in violation of R.C. 2925.11(A), a third-degree
felony. Appellant entered a not guilty plea.
{¶15} At the August 28, 2024 plea hearing, the trial court
noted that (1) appellant would plead guilty as charged, (2) no
agreed disposition existed, (3) both parties would argue at
sentencing, and (4) appellee agreed not to prosecute Tiffany
Johnston (appellant’s wife) for aggravated possession of drugs.
Appellee recited the facts and stated that on December 30, 2022,
Marietta Police Officer Glen McClelland stopped appellant for a
traffic violation and observed appellant’s wife in the passenger
seat. McClelland walked his K-9 around appellant’s vehicle, the Washington 25CA12, 25CA13, and 25CA14 8
dog indicated, and McClelland found drug paraphernalia,
marijuana, and miscellaneous items in the vehicle. Officers
also found drugs in appellant’s wife’s work apron, but appellant
stated that he placed the drugs in the apron and the drugs
belonged to him. BCI identified the drugs as 8.84 grams of
methamphetamine.
{¶16} The trial court conducted a Crim.R. 11 colloquy and
advised appellant of his rights and the effects of his decision
to plead guilty. The court advised appellant of the
constitutional rights he waived with his plea, including (1) the
right to a jury trial, (2) the right to confront one's accusers,
(3) the right to compulsory process to obtain witnesses, (4) the
right to require appellee to prove guilt beyond a reasonable
doubt, and (5) the privilege against compulsory self-
incrimination. The court also advised appellant of the maximum
penalties and postrelease control.
{¶17} The trial court ultimately accepted appellant’s plea
of guilty to one count of aggravated possession of drugs in
violation of R.C. 2925.11(A), a third-degree felony. The court
continued the sentencing to hold a combined sentencing hearing.
Case No. 23CR483/25CA14
{¶18} In Case No. 23CR483, while out on bond in Case Nos.
23CR377 and 23CR400, in November 2023 a Washington County Grand
Jury returned an indictment that charged appellant with (1) one Washington 25CA12, 25CA13, and 25CA14 9
count of having weapons under disability (with a forfeiture
specification) in violation of R.C. 2923.13(A)(2), a third-
degree felony, (2) one count of improperly handling a firearm in
a motor vehicle (with a forfeiture specification) in violation
of R.C. 2923.16(B), a fourth-degree felony, (3) one count of
aggravated trafficking in drugs (methamphetamine) in violation
of R.C. 2925.03(A)(2), a second-degree felony (with a R.C.
2941.141(A) firearm specification, a R.C. 2941.1417(A)
forfeiture of a gun in a drug case specification, and a R.C.
2941.1417(A) forfeiture of money in a drug case specification),
(4) one count of aggravated possession of drugs
(methamphetamine) in violation of R.C. 2925.11(A), a second-
degree felony, with a R.C. 2941.141(A) firearm specification,
(5) one count of trafficking in a fentanyl-related compound in
violation of R.C. 2925.03(A)(2), a third-degree felony, with a
R.C. 2941.141(A) firearm specification, a R.C. 2941.1417(A)
2941.1417(A) forfeiture of money in a drug case specification,
and (6) one count of possession of a fentanyl-related compound
in violation of R.C. 2925.11(A),a third-degree felony, with a
R.C. 2941.141(A) firearm specification. Appellant entered not
guilty pleas.
{¶19} On September 10, 2024, the trial court held a change
of plea hearing. Appellee recited the facts and indicated that Washington 25CA12, 25CA13, and 25CA14 10
Washington County Deputy Matthew Eichhorn stopped appellant for
a traffic violation and asked him to exit his vehicle for a
weapons patdown. The officer found a .22-caliber handgun in
appellant’s right pocket. As a convicted felon, appellant is
not permitted to possess a firearm. In the vehicle, officers
also found “several one-by-one baggies, sandwich bags, as well
as a laundry list of drugs in this instance, along with little
containers to traffic drugs, along with scales and $250 in
money, U.S. currency.” The narcotics included methamphetamine
in 5 times but less than 50 times the bulk amount, and some
fentanyl.
{¶20} The trial court advised appellant of the
constitutional rights he waived by his plea, including the right
to a jury trial, the right to confront and cross-examine
witnesses, the right to compulsory process, the right to require
the state to prove his guilt beyond a reasonable doubt, and that
the state could not compel him to testify against himself. The
court advised him of the maximum possible penalties and
postrelease control. Appellant acknowledged that he understood
the nature of the charges, expressed his satisfaction with
counsel, and stated that counsel answered his questions, and he
understood the ramifications of his plea.
{¶21} At that juncture appellant entered a guilty plea to
one count of having weapons under disability with a weapon Washington 25CA12, 25CA13, and 25CA14 11
forfeiture specification (Count 1), and one count of aggravated
trafficking in drugs with a firearm specification and a money
forfeiture specification (Count 3). Appellee dismissed Counts
2, 4, 5, and 6.
Combined Sentencing
{¶22} At a March 5, 2025 sentencing hearing, appellee noted
that the second case occurred 13 days after appellant’s first
case, and the next shortly after that. Moreover, all combined,
in addition to other narcotics, appellant trafficked over 51.5
grams of methamphetamine. Appellee also referred to appellant’s
lengthy record, which includes a second-degree felony that
occurred in jail while awaiting sentencing, a 2012 underage
consumption and failure to appear, a 2018 second-degree burglary
probation violation, 2020, 2021, and 2022 theft convictions, and
a 2022 criminal trespass. Appellee pointed out that appellant
violated judicial release, had been sentenced to community
control, then to prison, and had shown no genuine remorse. In
addition, appellant’s incarceration record included several
“writeups,” including “showing his genitalia in the bathroom,” a
“hunger strike in the jail,” and “using someone else’s jail
phone.” In addition, an inmate stated that appellant and
another inmate “approached him and asked if he would like to
purchase Fentanyl.” Washington 25CA12, 25CA13, and 25CA14 12
{¶23} Counsel stated that appellant “has a drug problem. He
does use drugs.” Counsel also argued that the three cases did
not involve large drug quantities, and pointed to a purportedly
similar case in another court in which a court ordered an eight-
year prison term.
{¶24} The trial court stated that it had considered the oral
statements, facts of the offenses, appellant’s criminal record,
including his institutional record, the R.C. 2929.11(A)
principles and purposes of sentencing, and the R.C. 2929.12
recidivism factors, then further observed appellant’s lengthy
criminal history, prior violation of judicial release, refusal
of drug and alcohol treatment, failure to show genuine remorse,
and appellant’s determination to continue to sell narcotics.
After consideration, the trial court ordered an aggregate
sentence in all three cases, merged Counts 1 and 2 of Case No.
23CR377, and the appellee elected to proceed on Count 1. The
court then sentenced appellant to: (1) serve a minimum 8-year
prison term on Count 1 of Case No. 23CR377, concurrent to Counts
3, 4, 5, and 6, and consecutive to Case Nos. 23CR400 and
23CR483, (2) serve a definite 12-month prison term on Count 3 of
Case No. 23CR377, concurrent to Counts 1, 4, 5, and 6, and Case
Nos. 23CR400 and 23CR483, (3) serve a definite 12-month prison
term on Count 4 of Case No. 23CR377, concurrent to Counts 1, 3,
5, and 6 and Case Nos. 23CR400 and 23CR483, (4) serve a definite Washington 25CA12, 25CA13, and 25CA14 13
12-month prison term on Count 5 of Case No. 23CR377, concurrent
to Counts 1, 3, 4, and 6, and Case Nos. 23CR400 and 23CR483, and
(5) serve a definite 12-month prison term on Count 6 of Case No.
23CR377, concurrent to Counts 1, 3, 4, and 5, and Case Nos.
23CR400 and 23CR483. Thus, the court ordered appellant to serve
an aggregate minimum 8-year prison term to a maximum 12-year
prison term. Finally, in each sentencing entry, the court
added:
Drug Testing: The Defendant shall not ingest or be injected with a drug of abuse and shall submit to random drug testing and the results of the drug testing shall indicate that the defendant did not ingest or was not injected with a drug of abuse.
{¶25} This appeal followed.
I.
{¶26} In his first assignment of error, appellant asserts
that the manifest weight of the evidence does not support
appellant’s Count 1 trafficking in methamphetamine conviction in
Case No. 23CR0377/ 25CA12. Specifically, appellant contends
that “the only evidence of trafficking is the weight of the
drugs found. Yet, there were also syringes and a meth pipe in
the same container. Plus, the drugs were not packaged for sale
into one-by-one baggies. This indicates personal use.”
{¶27} Appellee, on the other hand, argues that this argument
is built on “the fallacy that if a person is a drug user, he
cannot also be a drug trafficker.” Washington 25CA12, 25CA13, and 25CA14 14
{¶28} A reviewing court may conclude that a judgment is
against the weight of the evidence. State v. Thompkins, 78 Ohio
St.3d 380, 387 (1997). “The question to be answered when a
manifest weight issue is raised is whether ‘there is substantial
evidence upon which a jury could reasonably conclude that all
the elements have been proved beyond a reasonable doubt.’ ”
State v. Leonard, 2004-Ohio-6235, ¶ 81, quoting State v. Getsy,
84 Ohio St.3d 180, 193–194 (1998), citing State v. Eley, 56 Ohio
St.2d 169 (1978), syllabus. A court that considers a manifest
weight challenge must “ ‘review the entire record, weigh the
evidence and all reasonable inferences, and consider the
credibility of witnesses.’ ” State v. Beasley, 2018-Ohio-493, ¶
208, quoting State v. McKelton, 2016-Ohio-5735, ¶ 328. However,
the reviewing court must bear in mind that credibility generally
is an issue for the trier of fact to resolve. State v. Issa, 93
Ohio St.3d 49, 67 (2001); State v. Murphy, 2008-Ohio-1744, ¶ 31
(4th Dist.). “ ‘Because the trier of fact sees and hears the
witnesses and is particularly competent to decide “whether, and
to what extent, to credit the testimony of particular
witnesses,” we must afford substantial deference to its
determinations of credibility.’ ” Barberton v. Jenney, 2010-
Ohio-2420, ¶ 20, quoting State v. Konya, 2006-Ohio-6312, ¶ 6 (2d
Dist.), quoting State v. Lawson, 1997 WL 476684 (2d Dist. Aug.
22, 1997). Washington 25CA12, 25CA13, and 25CA14 15
{¶29} Thus, an appellate court will generally defer to the
trier of fact on issues of evidence weight and credibility, as
long as a rational basis exists in the record for the fact-
finder's determination. State v. Picklesimer, 2012-Ohio-1282, ¶
24 (4th Dist.); accord State v. Howard, 2007-Ohio-6331, ¶ 6 (4th
Dist.) (“We will not intercede as long as the trier of fact has
some factual and rational basis for its determination of
credibility and weight.”). Accordingly, if the prosecution
presented substantial, credible evidence upon which the trier of
fact reasonably could conclude, beyond a reasonable doubt, that
the essential elements of the offense had been established, the
judgment of conviction is not against the manifest weight of the
evidence. Accord Eastley v. Volkman, 2012-Ohio-2179, ¶ 12,
quoting Thompkins, 78 Ohio St.3d at 387, quoting Black's Law
Dictionary 1594 (6th Ed.1990) (a judgment is not against the
manifest weight of the evidence when “ ‘ “the greater amount of
credible evidence” ’ ” supports it).
{¶30} Consequently, when an appellate court reviews a
manifest weight of the evidence claim, the court may reverse a
judgment of conviction only if it appears that the fact-finder,
when it resolved the conflicts in evidence, “ ‘clearly lost its
way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’ ”
Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Washington 25CA12, 25CA13, and 25CA14 16
Ohio App.3d 172, 175 (1st Dist. 1983); accord McKelton at ¶ 328.
Finally, a reviewing court should find a conviction against the
manifest weight of the evidence only in the “ ‘exceptional case
in which the evidence weighs heavily against the conviction.’ ”
Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d
at 175; accord State v. Clinton, 2017-Ohio-9423, ¶ 166; State v.
Lindsey, 87 Ohio St.3d 479, 483 (2000).
{¶31} In the case sub judice, appellant contends that his
aggravated trafficking in drugs conviction is against the
manifest weight of the evidence because: (1) the only evidence
to support trafficking is the weight of the drugs found, and (2)
the facts indicate personal drug use, not trafficking.
Appellee, however, argues that: (1) appellant possessed a bulk
amount of methamphetamine, and (2) other evidence, including
individual baggies and two sets of digital scales, provides
indicia of trafficking.
{¶32} R.C. 2925.03(A)(2) defines trafficking in
methamphetamine:
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a
controlled substance analog.
{¶33} Appellant asserts that the sole evidence of
trafficking in Case No. 23CR0377 is the amount of
methamphetamine retrieved, 9.94 grams, and the discovery of the Washington 25CA12, 25CA13, and 25CA14 17
SpongeBob SquarePants glasses case with syringes and a
methamphetamine pipe, combined with the fact that the
methamphetamine had not been bagged in individual bags for sale
indicates personal use, not trafficking. Appellant further
submits that the weight of the drugs, without more, cannot be
said to support a conclusion of trafficking.
{¶34} As appellee points out, however, circumstantial
evidence has long been used to successfully support drug
trafficking convictions. State v. Delaney, 2018-Ohio-727, ¶ 11
(9th Dist.). Moreover, the amount of methamphetamine is clearly
suggestive of trafficking, as possession of a large quantity of
narcotics is commonly recognized as significant circumstantial
evidence indicative of intent to distribute or traffic in
narcotics. 1 Wharton’s Criminal Evidence § 3:5 (15th ed.).
{¶35} Further, appellee notes that the fact that appellant
claimed that what he possessed constituted “personal use” is
evidence of trafficking. For example, in State v. Hill, 2018-
Ohio-67 (4th Dist.), Hill argued that the trial court erred when
it allowed the jury to consider urinalysis results that showed
Hill had ingested illicit drugs. However, we observed that the
record revealed that an officer testified that an accused's drug
use is a factor to consider when investigating drug trafficking.
Id. at ¶ 19. In Hill, we cited State v. Dixon, 2016-Ohio-1491
(4th Dist.) (overruled on other grounds by State v. Mozingo, Washington 25CA12, 25CA13, and 25CA14 18
2016-Ohio-8292) in which this court ultimately found that
Dixon's statement regarding his personal drug use “was
admissible for purposes of showing knowledge of the existence of
the drugs at issue, as well as motive for his involvement in the
transportation of drugs.” Id. at ¶ 41. Thus, we found Dixon's
personal drug use to be both relevant and admissible as an
exception to Evid.R. 404(B), as it demonstrated Dixon's motive
and knowledge in the context of drug trafficking. Hill at ¶ 19.
{¶36} In addition to the weight of the narcotics involved,
“the convergence of illegal drugs, drug paraphernalia (including
baggies), and large sums of cash permit a reasonable inference
that a person was preparing drugs for shipment.” Delaney,
supra, at ¶ 11. We note that in State v. Rutledge, 2013-Ohio-
1482, ¶ 15 (6th Dist.), the court observed that numerous courts
have determined that items such as plastic baggies, digital
scales, and large sums of money are often used in drug
trafficking and may constitute circumstantial evidence of
conduct proscribed by R.C. 2925.03(A)(2):
State v. Garrett, 12th Dist. No. CA2008–08–076, 2009– Ohio–2806, ¶ 23; State v. Harry, 12th Dist. No. CA2008– 01–0013, 2008–Ohio–6380, ¶ 50; State v. Floyd, 8th Dist. No. 90705, 2008–Ohio–5262, ¶ 16; State v. Malott, 12th Dist. Nos. CA2007–02–006, CA2007–02–007, CA2007–02–008, 2008–Ohio–2114, ¶ 20; State v. Smallwood, 9th Dist. No. 07CA0063, 2008–Ohio–2107, ¶ 23; State v. Kutsar, 8th Dist. No. 89310, 2007–Ohio–6990, ¶ 20; State v. Fain, 5th Dist. No. 06CAA120094, 2007–Ohio–4854, ¶ 38; State v. Fry, 9th Dist. No. 23211, 2007–Ohio–3240, ¶ 50; State Washington 25CA12, 25CA13, and 25CA14 19
v. Williams, 1st Dist. No. C–040747, 2005–Ohio–6772, ¶ 19.
Rutledge at ¶ 15.
{¶37} Moreover, similar to the case at bar, in State v.
Kent, 2022-Ohio-834 (8th Dist.), the court noted that an officer
testified about indicia of drug trafficking:
At trial, Det. Pollack provided extensive testimony regarding his training and experience as a member of the vice unit. Relevant to this case, Det. Pollack testified that there are differences between a person who merely possesses drugs and a person who is engaged in trafficking. He explained that a person who uses drugs usually carries just enough substance on their person for one or two uses, such as “a quarter of a gram to a gram” of crack or heroin, or “one or two pills.” (Tr. 512.) In contrast, a drug trafficker typically carries a large amount of cash and anywhere from 5 to 30 grams of drugs at a time. Det. Pollack further testified that while drug users typically possess small single-use packages, drug traffickers “typically carry large amounts [of drugs] in a sandwich baggy.” (Tr. 513.). If the trafficker has more than one drug, “they'll carry three or four different sandwich baggies of additional drugs to satisfy their multitude of customers.” (Tr. id.) Det. Pollack further testified that drug traffickers “typically have multiple cell phones — one personal phone and one drug phone.” (Tr. 514.)
Id. at ¶ 50.
{¶38} In addition, in State v. Birdson, 2024-Ohio-1744, ¶ 43
(11th Dist.), the Eleventh District further highlighted:
“[M]ere possession of drugs is insufficient to prove trafficking,” but constructive possession of drugs that have been packaged for sale along with possession of other paraphernalia associated with sale is sufficient evidence of trafficking. State v. Carlton, 9th Dist. Lorain No. 12CA010219, 2013-Ohio-2788, ¶ 10, citing State v. Mielke, 12th Dist. Warren No. CA2012-08-079, Washington 25CA12, 25CA13, and 25CA14 20
2013-Ohio-1612, ¶ 46. Possession of a large quantity of drugs, large amounts of cash, plastic baggies, and scales, among other indicia of trafficking, provide persuasive circumstantial evidence that tends to prove a violation of R.C. 2925.03(A)(2). See State v. Floyd, 7th Dist. Mahoning No. 18 MA 0106, 2019-Ohio-4878, ¶ 32 (plastic baggies, scales with cocaine residue, a large quantity of cash, and a firearm provide circumstantial evidence of trafficking); State v. Burton, 8th Dist. Cuyahoga No. 107054, 2019-Ohio-2431, ¶ 48 (in addition to a large quantity of drugs, plastic bags, and digital scales, the presence of “cut mixes,” which are often used to prepare drugs for sales, were located which provided sufficient, credible circumstantial evidence of trafficking); State v. Jackson, 9th Dist. Summit No. 28691, 2018-Ohio-1285, ¶ 39 (large quantities of drugs, $8,322.00 in cash, and various other evidence indicative of drug trafficking such as digital scales and plastic baggies established sufficient, circumstantial evidence of trafficking); State v. Fain, 5th Dist. Delaware No. 06CAA120094, 2007-Ohio-4854, ¶ 37-39 (Plastic sandwich bags and digital scales are circumstantial evidence for drug trafficking.); State v. Fry, 9th Dist. Summit No. 23211, 2007-Ohio-3240, ¶ 50 (presence of drugs and drug paraphernalia permit a reasonable inference that a person was preparing drugs for shipment).
Id. at ¶ 43.
{¶39} Appellee highlights State v. Kennard, 2024-Ohio-2205
(5th Dist.), in which an officer stopped and removed the
defendant from his vehicle. Upon searching the vehicle,
officers discovered a digital scale with white powder, along
with empty plastic baggies in the passenger compartment near the
driver's seat. In the backseat, officers found an open box of
sandwich bags and a bag of suspected methamphetamine under the
passenger seat. Id. ¶ 9. An officer testified that the
quantity, presence of the baggies, and presence of the digital Washington 25CA12, 25CA13, and 25CA14 21
scale led him to believe the appellant was dealing drugs. Id.
The Fifth District observed that “[p]lastic bags and the digital
scale are indicative of drug trafficking as they are used to
weigh and package drugs for sale.” Id. See also, State v.
Burton, 2019-Ohio-2431, ¶ 48 (8th Dist.)(plastic bags, digital
scales, and large sums of money, when found with a large amount
of drugs, are circumstantial evidence of drug trafficking); Fry,
2007-Ohio-3240, ¶ 50 (9th Dist.) (presence of drugs and drug
paraphernalia permit a reasonable inference that a person is
preparing drugs for shipment); State v. Hall, 2019-Ohio-4000, ¶
7 (11th Dist.)(large quantity of drugs and money is indicative
of drug sales and trafficking).
{¶40} In the case sub judice, although the drugs had not
yet been individually packaged for sale, the container in which
Officer McElroy found the drugs held narcotics, a number of
small baggies of the kind typically used for drug distribution,
and a set of digital scales. In addition, a search of the
vehicle revealed another set of digital scales, a large quantity
of baggies, and over $200 in cash. At trial, when asked the
significance of the “little one-by-one baggies,” Officer McElroy
testified, “That’s what people would use to, most commonly, in
my line of work, that’s what people would use to sell or you
know, sell drugs, transport drugs, things like that, in smaller
quantities.” “You’ve got little tiny bags, you just – you can Washington 25CA12, 25CA13, and 25CA14 22
put it all into little bags, and then you can sell the
individual smaller baggies.” McElroy continued that “the normal
that I find your everyday, what I would consider just your user,
would be typically a gram or under.” “It was three times what
the state would consider to be bulk.” Thus, we agree with
appellee that personal drug use and drug trafficking are not
mutually exclusive.
{¶41} After our review of the record we believe that
appellee adduced ample competent credible evidence to show (1)
methamphetamine in an amount exceeding the bulk amount, (2) two
sets of digital scales, (3) a large quantity of individual
baggies, (4) over $200 in cash, and (5) Officer McElroy’s
testimony that this evidence constitutes indicia of drug
trafficking. This evidence provided ample competent, credible
evidence to establish, beyond a reasonable doubt, that appellant
committed the offense of aggravated drug trafficking. Moreover,
we find no evidence that the jury lost its way and committed a
manifest miscarriage of justice that warrants reversal of the
conviction.
{¶42} Accordingly, we overrule appellant’s first assignment
of error.
II.
{¶43} In his second assignment of error, appellant asserts
that the trial court erred when it sentenced him to both a term Washington 25CA12, 25CA13, and 25CA14 23
of imprisonment and a community control sanction. Here, the
parties agree that the trial court erred when it sentenced
appellant to both a prison term and a community control sanction
when it added to each sentencing entry:
Drug Testing: The Defendant shall not ingest or be injected with a drug of abuse and shall submit to random drug testing and the results of the drug testing shall indicate that the defendant did not ingest or was not injected with a drug of abuse.
{¶44} “Judges have no inherent power to create sentences.
Rather, judges are duty-bound to apply sentencing laws as they
are written.” (Citations omitted.) State v. Anderson, 2015-
Ohio-2089, ¶ 10. All criminal offenses have been codified and
“the only sentence which a trial judge may impose is that
provided by statute.” Id. at ¶ 12. Current felony statutes
allow a trial court to impose either a prison term or a
community control sanction, but not both. Id. at ¶ 31 (“we hold
that as a general rule, when a prison term and community control
are possible sentences for a particular felony offense, absent
an express exception, the court must impose either a prison term
or a community-control sanction or sanctions”). Legal Analysis
{¶45} The prohibition against drug use is an example of a
community control sanction pursuant to R.C. 2929.15(A)(1).
Recently, in State v. Paul, 2025-Ohio-2088 (4th Dist.), the
trial court sentenced the defendant to serve a 30-day jail term
for misdemeanor theft and a 30-month prison term for attempted Washington 25CA12, 25CA13, and 25CA14 24
burglary, to be served concurrently, and applied the relevant
jail time credit. In addition, the trial court also ordered
Paul not to ingest or be injected with a drug of abuse and to
submit to random drug testing. Id. at ¶ 9. Because the trial
court improperly sentenced Paul to a prison term and a community
control sanction (i.e., the drug use/random testing order), we
remanded the case to vacate the drug use and testing order. Id.
at ¶23, citing State v. Nickell, 2025-Ohio-1232, ¶ 112-115 (4th
Dist.). Although the appellee requests that this court simply
vacate the community control sanction rather than remand it, in
keeping with Paul and Nickell, we remand this case to the trial
court to vacate the community control sanction.
{¶46} Therefore, for all the foregoing reasons, we conclude
that the trial court erred when it sentenced appellant to serve
both a prison sentence and a community control sentence.
Consequently, we sustain appellant’s second assignment of error
and affirm the trial court’s judgment in part, reverse in part
and remand for resentencing.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR RESENTENCING CONSISTENT WITH THIS OPINION. Washington 25CA12, 25CA13, and 25CA14 25
JUDGMENT ENTRY
It is ordered that the judgment be affirmed in part, reversed in part, and the cause remanded for re-sentencing consistent with this opinion. Appellee and appellant shall equally divide the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.