State v. Russell

2022 Ohio 1746

Opinion

[Cite as State v. Russell, 2022-Ohio-1746.]

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

STATE OF OHIO, :

Plaintiff-Appellee, : Case No. 21CA3750

v. :

ANTONIO M. RUSSELL, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Dennis C. Belli, Columbus, Ohio, for appellant.1

Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:5-19-22 ABELE, J.

{¶1} This is an appeal from a Ross County Common Pleas

Court judgment of conviction and sentence. Antonio M. Russell,

defendant below and appellant herein, assigns the following

errors for review:

FIRST ASSIGNMENT OF ERROR:

1 Different counsel represented appellant during the trial court proceedings. ROSS, 21CA3750

“DEFENDANT-APPELLANT’S CONVICTION FOR POSSESSION OF HEROIN IS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO SATISFY THE REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT VIOLATED R.C. 2941.75 AND DEPRIVED DEFENDANT-APPELLANT OF HIS RIGHTS UNDER THE DUE PROCESS AND JURY TRIAL GUARANTEES OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN IT ENTERED A JUDGMENT OF CONVICTION FOR A SECOND DEGREE FELONY THAT WAS NOT SUPPORTED BY A JURY VERDICT STATING THE DEGREE OF OFFENSE OR A FINDING OF THE DRUG AMOUNT CORRESPONDING TO A SECOND DEGREE FELONY.”

THIRD ASSIGNMENT OF ERROR:

“THE ADMISSION OF EVIDENCE INTENDED BY THE PROSECUTION TO PORTRAY DEFENDANT-APPELLANT AS A DRUG TRAFFICKER VIOLATED THE MANDATORY EXCLUSION PROVISIONS OF EVID.R. 403(A) AND THE HEARSAY EXCLUSIONARY RULE OF EVID.R. 802, AND DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS AND THE RIGHT OF CONFRONTATION UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.”

FOURTH ASSIGNMENT OF ERROR:

“DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION EXPLAINING THE TEMPORAL REQUIREMENT TO PROVE VOLUNTARY POSSESSION UNDER R.C. 2901.21(F)(1) OR TO OBJECT TO ITS OMISSION DEPRIVED DEFENDANT-APPELLANT OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.” [Cite as State v. Russell, 2022-Ohio-1746.]

{¶2} On June 5, 2018, law enforcement officers executed a

search warrant upon room number 84 at America’s Best Value Inn

in Chillicothe. Upon entering the motel room, officers found

appellant, a female, and three children. On the floor where

appellant had been laying, officers discovered a plastic bag

that contained a white powdery substance. Inside the night

stand drawer, they found a “chunky ball” that appeared to be

narcotics and a digital scale. The substance found on the floor

subsequently tested positive for heroin, and the “chunky ball”

tested positive for cocaine.

{¶3} On April 26, 2019, a Ross County Grand Jury returned

an indictment that charged appellant with one count of second-

degree-felony heroin possession and one count of fourth-degree-

felony cocaine possession, both in violation of R.C. 2925.11.

Appellant entered not-guilty pleas.

{¶4} On April 13 and 14, 2021, the trial court held a jury

trial. At trial, Ohio Bureau of Criminal Investigation forensic

scientist Pamela Farley testified that she tested the two

substances discovered inside the motel room. The item recovered

from the floor contained 20.81 grams of heroin and fentanyl.

The other substance contained 7.81 grams of cocaine.

{¶5} On cross-examination, appellant’s counsel asked Farley

whether she tested the entire contents of the substances or 4 ROSS, 21CA3750

whether she tested “a small sample.” Farley stated that she

tested a sample. She explained she did her “best to take a

composite sample to make sure things are homogenous and that

we’re not–we don’t have two different colors of things present

in something.” Farley additionally stated that she separates

items when possible so that “the sample is reflective of the

entire exhibit.”

{¶6} Chillicothe Police Detective Chester Lytle testified

that after SWAT officers secured the motel room, Lytle helped

search the room. Lytle indicated that he first searched the

night stand and inside a drawer he found a digital scale and

what appeared to be “chunky narcotics” wrapped in plastic.

{¶7} Chillicothe Police Officer Christopher King testified

that he searched appellant and found “a large sum of U.S.

currency.” Appellant objected to Officer King’s testimony and

asserted he does not “know what relevance any amount of money

found on his person has” to the drug possession charges. The

court overruled the objection and explained that “it is just a

general question about what was found on his person.”

{¶8} On cross-examination, appellant asked Officer King

whether he found any other items on appellant other than “the

sum of currency.” King stated that he did not discover any

other items on appellant’s person. 5 ROSS, 21CA3750

{¶9} Chillicothe Police Sergeant Jeremy Tuttle testified

that he placed the evidence recovered from the motel room into

the evidence room at the law enforcement complex. He described

exhibit 21 as a “set of digital scales.”

{¶10} Chillicothe Police Detective Derek Wallace testified

that he is a detective in the Special Investigations Unit (SIU).

He explained that he primarily investigates drug and

prostitution activity. When the prosecutor asked Wallace to

discuss the investigatory methods he uses when investigating

drug activity, appellant objected on the basis of relevance.

The prosecutor argued that this testimony would help the jury to

understand why officers searched the motel room. The trial

court found that the testimony would help the jury understand

the detective’s experience and overruled appellant’s objection.

{¶11} The detective then explained the types of

investigative methods that he generally uses:

We have obviously Southern Ohio Crime Stoppers in Chillicothe that provides information on different drug activity people, inside the City of Chillicothe. We also rely on information from our patrol officers to gather information for us when they’re out doing traffic stops or in neighbors talking to people that provide us the information on drug activity. We also use our confidential informants. They provide us a lot of information as to kind of who, what, when, where, why. 6 ROSS, 21CA3750

{¶12} Detective Wallace stated that he undertook “similar

investigatory acts” when he investigated the activity that

allegedly occurred at appellant’s motel room.

{¶13} The prosecutor next asked the detective whether he

used “similar investigatory actions” to obtain a warrant to

search the motel room. The detective responded affirmatively,

and appellant objected. Appellant asserted that the prosecutor

was “getting real close to making this look like a trafficking

investigation, because there’s controlled vital [sic]

information in the search warrant.” The prosecutor indicated

that she did not intend to ask the detective to discuss any

specific information contained in the search warrant. The court

stated that it would not allow any testimony “other than they

obtained a search warrant.”

{¶14} Detective Wallace continued to explain that he and his

team obtained a warrant to search the motel room. When they

arrived to execute the warrant, the SWAT team opened the door

with a battering ram then secured the scene. After the SWAT

team gave officers the all-clear, Wallace entered the room.

When he entered the room, he observed appellant “laying behind

the doorway,” and a female with three small children on one of

the beds. When he and other officers removed appellant from the

floor, Wallace found a plastic bag of white powder on the floor. 7 ROSS, 21CA3750

{¶15} When the prosecutor asked Detective Wallace to place a

green X on a motel room diagram to indicate where he found the

plastic bag of heroin, Wallace explained that he placed the X

“behind the door, just on the door side of where the

refrigerator would’ve been. Obviously, it’s not to scale, but

it was on just this side where the little white refrigerator was

by the entertainment center.” Wallace also drew a stick figure

to depict appellant’s position when the detective initially

entered the room. The detective explained that appellant’s head

had been facing into the room and that his feet “behind where

the door would swing against the outermost wall.”

{¶16} During Detective Wallace’s testimony, the state asked

the detective to describe the photographs that officers had

taken during the search-warrant execution. One photograph

depicted “the floor, just behind the door,” and Wallace stated

that this photograph showed “the floor,” “a vent, smashed

trashcan, piece of paper, and a bag of white powder.”

{¶17} After Detective Wallace’s testimony, the state rested.

Appellant then moved for a judgment of acquittal and the trial

court overruled the motion as it related to the heroin-

possession offense, but granted a judgment of acquittal

regarding the cocaine-possession offense. 8 ROSS, 21CA3750

{¶18} On April 16, 2021, the jury found appellant guilty of

heroin possession “as he stands charged in Count One of the

indictment.” The trial court subsequently sentenced appellant

to serve six years in prison. This appeal followed.

I

{¶19} In his first assignment of error, appellant asserts

that the state failed to present sufficient evidence to support

his heroin possession conviction. In particular, appellant

contends that (1) the state did not present sufficient evidence

to establish that appellant knew the plastic bag contained a

controlled substance; (2) the physical evidence refutes the

state’s assertion that officers found appellant behind the door

laying on top of the bag of heroin; (3) the evidence fails to

show that appellant voluntarily possessed the heroin; and (4)

the state failed to present sufficient evidence that appellant

possessed more than 10, but less than 50, grams of heroin.

A

{¶20} A claim of insufficient evidence invokes a due process

concern and raises the question whether the evidence is legally

sufficient to support the verdict as a matter of law. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When

reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether 9 ROSS, 21CA3750

the evidence, if believed, reasonably could support a finding of

guilt beyond a reasonable doubt. Id. at syllabus. The standard

of review is whether, after viewing the probative evidence and

inferences reasonably drawn therefrom in the light most

favorable to the prosecution, any rational trier of fact could

have found all the essential elements of the offense beyond a

reasonable doubt. E.g., Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio

St.3d 259, 273, 574 N.E.2d 492 (1991). Furthermore, a reviewing

court is not to assess “whether the state’s evidence is to be

believed, but whether, if believed, the evidence against a

defendant would support a conviction.” Thompkins, 78 Ohio St.3d

at 390 (Cook, J., concurring).

{¶21} Thus, when reviewing a sufficiency-of-the-evidence

claim, an appellate court must construe the evidence in a light

most favorable to the prosecution. E.g., State v. Hill, 75 Ohio

St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio

St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will

not overturn a conviction on a sufficiency-of-the-evidence claim

unless reasonable minds could not reach the conclusion that the

trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162,

749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484,

739 N.E.2d 749 (2001). 10 ROSS, 21CA3750

B

{¶22} R.C. 2925.11(A) contains the essential elements of the

offense at issue, possession of drugs. The statute states: “No

person shall knowingly obtain, possess, or use a controlled

substance * * *.” Appellant first argues that the state failed

to present sufficient evidence to establish that he knowingly

possessed heroin. Appellant claims that the evidence adduced at

trial fails to show that he knew that the plastic bag contained

heroin.

{¶23} R.C. 2901.22(B) defines when a person acts knowingly:

A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when a person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

{¶24} We observe that “‘[t]he intent of an accused person

dwells in his mind’” and that intent “‘can never be proved by

the direct testimony of a third person.’” State v. Johnson, 56

Ohio St.2d 35, 38, 381 N.E.2d 637 (1978), quoting State v.

Huffman, 131 Ohio St. 27, 1 N.E.2d 313 (1936), paragraph four of

the syllabus. Rather, intent “‘must be gathered from the

surrounding facts and circumstances under proper instructions 11 ROSS, 21CA3750

from the court.’” Id., quoting Huffman, paragraph four of the

syllabus; e.g., State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-

791, 842 N.E.2d 996, ¶ 143; State v. Garner, 74 Ohio St.3d 49,

60, 656 N.E.2d 623 (1995). We further observe that “[i]ntention

is a question of fact, and not one of law.” Koenig v. State,

121 Ohio St. 147, 151, 167 N.E. 385 (1929); State v. Wamsley,

6th Dist. Butler No. CA2002-05-109, 2003-Ohio-1872, ¶ 18.

{¶25} Whether a defendant knowingly possessed a controlled

substance “is to be determined from all the attendant facts and

circumstances available.” State v. Teamer, 82 Ohio St.3d 490,

492, 696 N.E.2d 1049 (1998); accord State v. Corson, 4th Dist.

Pickaway No. 15CA4, 2015–Ohio–5332, ¶ 13. Additionally, “‘[t]he

state may rely solely on circumstantial evidence in proving that

the defendant had knowledge of the character of the material.’”

State v. Sanders, 2nd Dist. Clark No. 2019-CA-86, 2021-Ohio-

2431, ¶ 12, quoting State v. Kraft, 1st Dist. Hamilton No. C-

060238, 2007-Ohio-2247, ¶ 87, citing State v. Burgin, 56 Ohio

St.2d 354, 364, 384 N.E.2d 255 (1978).

{¶26} To establish knowing possession of a controlled

substance under R.C. 2925.11(A), the state is not required to

prove that “a defendant knew the specific characteristics of the

item possessed that made it” a controlled substance. State v.

Jordan, 89 Ohio St.3d 488, 494, 733 N.E.2d 601 (2000); accord 12 ROSS, 21CA3750

State v. Williams, 2nd Dist. Montgomery No. 20271, 2005-Ohio-

1597, ¶ 34 (“the State is not required to prove that Defendant

‘knew’ the specific characteristics of the items he possessed

which made them controlled substances”). Instead, the state

need only demonstrate that the defendant knew or was probably

aware that the item was a controlled substance. See Jordan, 89

Ohio St.3d at 495 (discussing meaning of “knowledge” as defined

in R.C. 2901.22(B) and evaluating state’s evidence regarding

defendant’s knowledge in context of possession-of-dangerous-

ordnance statute).

{¶27} Additionally, the state may rely upon “permissible

inferences of knowledge, based at least in part upon fact,” to

show that a defendant had knowledge that the item possessed was

a controlled substance. Id. Consequently, even “if the accused

did not know for certain that the item in his possession was [a

controlled substance], the state can still show culpability by

objective demonstrations of the defendant’s mental state.” Id.

We further observe that “[e]ntirely innocent conduct should not

be punishable.” Id. Thus, when “a defendant, in good faith,

has no way of determining that the item in his possession is [a

controlled substance], he or she should not be subject to

prosecution.” Id. 13 ROSS, 21CA3750

{¶28} In the case sub judice, appellant asserts that the

state failed to present direct evidence that appellant knew the

plastic bag contained heroin and that the circumstantial

evidence fails to support a finding that he knew that the bag

contained heroin. Appellant recognizes that Detective Wallace

described the contents of the bag as a white powder, but

contends that appellant’s knowledge that the bag contained

heroin cannot be inferred from the substance’s mere physical

appearance. Appellant also argues that he did not engage in any

conduct indicative of guilty knowledge. He states that he

complied with the officers’ orders and did not attempt to

conceal or hide evidence.

{¶29} The state argues that it presented sufficient evidence

to show that appellant knew that the bag contained heroin. The

state points out that it presented evidence that officers found

appellant laying on top of the plastic bag in a small motel

room. The state also asserts that the illegal nature of the

substance contained in the plastic bag was readily apparent.

The state further notes that the jury had the opportunity to

view the substance contained in the plastic bag and to reach its

own conclusion whether the substance’s illegal nature was

readily apparent such that appellant knew, or probably was

aware, that the substance is a controlled substance. 14 ROSS, 21CA3750

{¶30} In the case at bar, we believe that the state

presented sufficient evidence to establish that appellant knew,

or probably was aware, that the substance inside the plastic bag

is a controlled substance. As the state notes, officers found

appellant laying on top of the plastic bag that contained a

white powdery substance. The state introduced into evidence the

plastic bag that contained the substance, as well as photographs

of the plastic bag. The jury viewed both the photographs and

the physical evidence, i.e., the substance contained in the

plastic bag. The jury thus had the opportunity to consider

whether the nature of the substance would have led one in

possession of the bag to know, or to probably be aware, that the

item inside the bag is a controlled substance. Obviously, the

jury determined that the illegal nature of the substance is

readily apparent. Consequently, under these circumstances, we

believe that the state presented sufficient evidence to show

that appellant knew that the plastic bag contained a controlled

substance.

{¶31} Additionally, we do not agree with appellant that any

lack of evidence regarding his attempts to conceal the evidence,

or to act evasively, means that the state failed to present

sufficient evidence that appellant knew that the plastic bag

contained a controlled substance. Instead, the evidence adduced 15 ROSS, 21CA3750

at trial constitutes sufficient evidence of appellant’s

knowledge. Any arguable lack of evidence concerning appellant’s

conduct would go to the weight, not the sufficiency, of the

evidence. See State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-

1562, 114 N.E.3d 1092, ¶ 166 (“the state need only have had

sufficient evidence, not the best possible evidence, to survive

a challenge on insufficiency grounds”); State v. Turner, 9th

Dist. Summit No. 28775, 2018-Ohio-3898, ¶ 24 (“fact that the

State did not present a particular type of evidence does not

negate the sufficiency of the * * * evidence that the State did

present”).

{¶32} Appellant next argues that the state did not present

sufficient, credible evidence that he possessed the bag of

heroin. Specifically, appellant claims that Detective Wallace’s

testimony that officers found appellant laying on the floor

behind the motel room’s door violates the “physical facts rule,”

and thus, completely lacking such credibility.

{¶33} The Ohio Supreme Court discussed the “physical facts

rule” in McDonald v. Ford Motor Co., 42 Ohio St.2d 8, 12, 326

N.E.2d 252 (1975). In general, the rule provides that when a

witness’s testimony “‘is opposed to the laws of nature,’” or

“‘is clearly in conflict with principles established by the laws 16 ROSS, 21CA3750

of science,’” then the testimony “‘is of no probative value and

a jury is not permitted to rest its verdict thereon.’” Id.,

quoting Connor v. Jones, 115 Ind.App. 660, 670, 59 N.E.2d 577

(1945). In other words, “‘[t]he testimony of a witness which is

positively contradicted by the physical facts cannot be given

probative value by the court.’” Id., quoting Lovas v. General

Motors Corp., 212 F.2d 805, 808 (6 Cir. 1954). “[T]he issue is

generally whether circumstantial evidence of physical facts is

so conclusive as to wholly rebut oral testimony presenting a

different version.” Id. at 13–14.

For example:

Where a witness testifies that he looked and listened at a railroad crossing, but neither saw nor heard a train approaching, and the only reasonable conclusion upon the evidence is that there is no doubt that had he looked he must have seen the train, the witness’s testimony cannot be considered credible.

Id., citing Detroit, Toledo & Ironton Rd. Co. v. Rohrs, 114 Ohio

St. 493, 151 N.E. 714 (1926).

{¶34} Under the physical facts rule, a trial court need not

“take a case from the jury” unless “‘[t]he palpable

untruthfulness’” of the witness’s testimony is

“(1) inherent in the rejected testimony, so that it contradicts itself or (2) irreconcilable with facts of which, under recognized rules, the court takes judicial knowledge or (3) is obviously inconsistent with, contradicted by, undisputed physical facts.” 17 ROSS, 21CA3750

Id. at 12-13, quoting Duling v. Burnett, 22 Tenn.App. 522, 124

S.W.2d 294 (1938).

The intent of the rule is to

strike[] a balance between, on the one hand, the common sense notion that physical facts and evidence can be so conclusive and demonstrative that no reasonable person could accept the truth of contrary testimony, and, on the other hand, the need for courts to be wary of treating a party’s theory of a case as “fact,” when a different theory is also possible in the case.

Id. at 13.

{¶35} In the case sub judice, we do not agree with appellant

that Detective Wallace’s testimony should be viewed as so

palpably untrue as to have required the trial court to remove

the case from the jury. Here, the physical facts do not

positively contradict Wallace’s testimony that appellant was

laying on the floor behind the motel room’s door when the

detective entered the room. Wallace stated that he entered the

motel room after SWAT officers secured the scene. He explained

that, after SWAT officers entered the room, they would have

ordered everyone in the room to get on the floor. When Wallace

entered the room, appellant was laying with his feet behind the

door and his head pointing into the motel room. The detective

did not testify that appellant’s entire body was crammed between

the door and the wall. Therefore, we do not believe that the

detective’s testimony positively contradicts the physical facts. 18 ROSS, 21CA3750

{¶36} Furthermore, we do not agree with appellant that SWAT

officers’ use of a battering ram to open the door necessarily

results in the conclusion that Detective Wallace could not have

found appellant laying behind the door. Appellant suggests

that, if he had been behind the door when SWAT officers used a

battering ram, the force of the door would have propelled his

body into the room, not behind the door. He also implies that,

had appellant been behind the door when the SWAT officers used a

battering ram to open the door, officers would have observed

bruising on appellant’s body, but did not.

{¶37} After our review, we believe that appellant fails to

recognize that the trial testimony does not conclusively

establish that appellant was, in fact, behind the door when SWAT

officers used a battering ram to open the door. Appellant’s

precise location in the motel room when officers opened the door

is unknown. What is known is that, once SWAT officers ordered

the individuals in the room to get on the floor, appellant

placed himself on the floor and Detective Wallace found

appellant with his feet behind the door and his head pointed

into the room. We find nothing in the record to indicate that

the physical evidence positively contradicts Wallace’s

testimony.

C 19 ROSS, 21CA3750

Voluntary Possession

{¶38} Appellant next contends that the state failed to

present sufficient evidence to show that he voluntarily

possessed the heroin. Appellant asserts that the evidence fails

to show that he possessed the heroin “for a sufficient time to

have ended possession.”

{¶39} A cardinal rule in criminal law is that a person is

not guilty of an offense unless both of the following apply:

(1) The person’s liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing; (2) The person has the requisite degree of culpability for each element as to which a culpable mental state is specified by the language defining the offense.

R.C. 2901.21(A).

{¶40} “Possession is a voluntary act if the possessor

knowingly procured or received the thing possessed, or was aware

of the possessor’s control of the thing possessed for a

sufficient time to have ended possession.” R.C. 2901.21(F)(1).

“The language in R.C. 2901.21(D)(1) after the comma specifically

applies to a situation in which a person becomes aware he is in

possession of a particular item, but does not have time to

dispose of the item before being caught with it.” State v.

Copeland, 2nd Dist. Montgomery No. 23718, 2010-Ohio-4916, ¶ 26. [Cite as State v. Russell, 2022-Ohio-1746.]

“Possession” is generally defined as “having control over a

thing or substance, but may not be inferred solely from mere

access to the thing or substance through ownership or occupation

of the premises upon which the thing or substance is found.”

R.C. 2925.01(K). “Possession * * * may be individual or joint,

actual or constructive.” State v. Wolery, 46 Ohio St.2d 316,

332, 348 N.E.2d 351 (1976); State v. Fry, 4th Dist. Jackson No.

03CA26, 2004-Ohio-5747, ¶ 39.

{¶41} “‘Actual possession exists when the circumstances

indicate that an individual has or had an item within his

immediate physical possession.’” State v. Kingsland, 177 Ohio

App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶ 13 (4th Dist.),

quoting Fry at ¶ 39. “Constructive possession exists when an

individual knowingly exercises dominion and control over an

object, even though that object may not be within his immediate

physical possession.” State v. Hankerson, 70 Ohio St.2d 87, 434

N.E.2d 1362 (1982), syllabus; State v. Brown, 4th Dist. Athens

No. 09CA3, 2009-Ohio-5390, ¶ 19. For constructive possession to

exist, the state must show that the defendant was conscious of

the object’s presence. Hankerson, 70 Ohio St.2d at 91;

Kingsland at ¶ 13; accord State v. Huckleberry, 4th Dist. Scioto

No. 07CA3142, 2008-Ohio-1007, ¶ 34; State v. Harrington, 4th

Dist. Scioto No. 05CA3038, 2006-Ohio-4388, ¶ 15; Criss v. City [Cite as State v. Russell, 2022-Ohio-1746.]

of Kent, 867 F.2d 259, 263 (6th Cir. 1988) (“Ohio law is clear

that a suspect can be in ‘constructive possession’ of * * *

property without having actual physical possession of the

property if it is located within premises under the suspect’s

control and he was conscious of its presence.”).

{¶42} Both dominion and control, and whether a person was

conscious of the object’s presence, may be established through

circumstantial evidence. E.g., Brown at ¶ 19; see, e.g., State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph

one of the syllabus (“[c]ircumstantial evidence and direct

evidence inherently possess the same probative value”).

“Circumstantial evidence is defined as ‘[t]estimony not based on

actual personal knowledge or observation of the facts in

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

showing indirectly the facts sought to be proved. * * * ’”

State v. Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988),

quoting Black’s Law Dictionary 221 (5 Ed.1979).

{¶43} Furthermore, to establish constructive possession, the

state need not show that the defendant had “[e]xclusive control”

over the contraband. State v. Tyler, 8th Dist. Cuyahoga No.

99402, 2013-Ohio-5242, ¶ 24, citing State v. Howard, 8th Dist.

Cuyahoga No. 85034, 2005-Ohio-4007, ¶ 15, citing In re Farr,

10th Dist. Franklin No. 93AP-201, 1993 WL 464632, *6 (Nov. 9, [Cite as State v. Russell, 2022-Ohio-1746.]

1993) (nothing in R.C. 2925.11 or 2925.01 “states that illegal

drugs must be in the sole or exclusive possession of the accused

at the time of the offense”). Instead, “‘[a]ll that is required

for constructive possession is some measure of dominion or

control over the drugs in question, beyond mere access to

them.’” Howard at ¶ 15, quoting Farr at *6. Thus, simply

because others may have access to the contraband, in addition to

the defendant, does not mean that the defendant “could not

exercise dominion or control over the drugs.” Tyler at ¶ 24;

accord State v. Walker, 10th Dist. Franklin No. 14AP-905, 2016-

Ohio-3185, ¶ 75. We further note that multiple persons may have

joint constructive possession of an object. State v. Philpott,

8th Dist. Cuyahoga Nos. 109173, 109174, and 109175, 2020-Ohio-

5267, ¶ 67; Wolery, 46 Ohio St.2d at 332, 329 (“[p]ossession * *

* may be individual or joint” and “control or dominion may be

achieved through the instrumentality of another”).

{¶44} In the case sub judice, appellant argues that the

state failed to present sufficient evidence that appellant was

aware of his control of the heroin for a sufficient period of

time. Appellant suggests that the evidence indicates that he

had only momentary or transitory possession of the heroin. To

support this argument, appellant refers to State v. Murphy, 8th

Dist. Cuyahoga No. 93093, 2010-Ohio-1422. [Cite as State v. Russell, 2022-Ohio-1746.]

{¶45} In Murphy, the court determined that the defendant had

only “momentary involuntary possession” of the item at issue–

cocaine. Id. at ¶ 9. In that case, a police officer spotted a

vehicle without a front license plate and recognized the driver

as an individual the officer previously arrested for crack

cocaine possession. After the officer activated his lights and

sirens to signal to the driver to stop, the officer noticed “a

lot of movement from the driver” and Murphy, the front-seat

passenger. Id. at ¶ 2. The officer indicated that the driver

appeared to pass an item to Murphy.

{¶46} Once the vehicle stopped, Murphy moved to the right

side of the vehicle and exited the vehicle. The officer,

however, ordered Murphy to return to the vehicle. When the

officer asked Murphy to step out of the vehicle, the officer

noticed two bags that contained an off-white substance located

between the door frame and the passenger seat. Murphy told the

officer that the substance was crack cocaine and the driver

passed the drugs to Murphy. Murphy stated that the driver had

advised Murphy that he (the driver) could not be caught with

crack cocaine. Subsequently, Murphy was charged with drug

trafficking and drug possession and convicted of drug

possession. [Cite as State v. Russell, 2022-Ohio-1746.]

{¶47} Murphy appealed and claimed that the state failed to

present sufficient evidence to support his conviction. The

appellate court agreed:

The evidence was unrebutted that at the time of the stop, the driver of the vehicle attempted to pass the drugs off on Murphy, and that Murphy attempted to pass the drugs back to the driver. When he got out of the car, he told the arresting officer, “That m-----f----- put that on me.” The drugs were found on the floor in the area between Murphy’s seat and the door. The issue is simply whether Murphy’s momentary involuntary possession when the drugs were forced on him by the driver was sufficient possession to constitute a violation of R.C. 2925.11(A). In State v. Johnson (Jan. 30, 1989), Clinton App. No. 88-02-002, the Twelfth District held in a per curiam opinion that evidence the defendant’s possession of a firearm was “unwitting” or “involuntary” constituted a complete defense to a charge that the defendant “knowingly” possessed firearms. Likewise here, all of the evidence, including the testimony of the police officer, indicates that Murphy’s possession was involuntary.

Id. at ¶ 9.

{¶48} After our review, we do not believe that the facts in

Murphy bear similarity to the facts in the case at sub judice.

In the case before us, no evidence exists that another

individual forced heroin upon appellant or that appellant

attempted to immediately dispossess himself of the heroin.

Instead, the evidence shows that officers found appellant laying

on top of the bag of heroin and that he was the only individual

within the heroin’s immediate vicinity. The evidence permits an

inference that, if appellant was found laying on top of the bag [Cite as State v. Russell, 2022-Ohio-1746.]

of heroin after Detective Wallace entered the motel room, then

immediately before SWAT officers entered the room appellant had

either actual or constructive possession of the heroin. See

State v. Lundy, 8th Dist. Cuyahoga No. 71849, 1998 WL 338077, *6

(June 25, 1998), reversed on other grounds, 84 Ohio St.3d 279,

703 N.E.2d 773 (1999) (sufficient evidence defendant

constructively possessed drugs when drugs “within arms length of

[defendant] at the time the search warrant was executed”).

{¶49} Appellant’s suggestion that either the female, who

also was present in the motel room, or one of the individuals

who officers observed entering and exiting the motel room

possessed the heroin may arguably be a plausible interpretation

of the evidence. It is not, however, the only interpretation of

the evidence. Moreover, appellant’s theory does not negate the

fact that the state presented sufficient evidence to show that

appellant voluntarily possessed the heroin.

{¶50} Appellant further asserts that Detective Wallace’s

testimony does not “exclude the hypothesis that the bag of

heroin was already on the floor before [appellant] complied with

the SWAT officer’s command, or that he lacked sufficient time to

dispossess himself of the baggy.” We first observe that

appellant did not cite any authority that the state must exclude

appellant’s hypothesis that the plastic bag already was on the [Cite as State v. Russell, 2022-Ohio-1746.]

floor before appellant complied with SWAT officers’ command.

Moreover, appellant’s claim that the bag of heroin already was

on the floor before he complied with the SWAT officers’ command

is purely speculative. The evidence adduced at trial shows that

appellant was one of two adults present in the motel room at the

time Wallace found the bag of heroin underneath appellant’s

body. Appellant’s proximity to the heroin supports an inference

that he constructively possessed the heroin for a sufficient

length of time to have possession. Thus, the evidence supports

a finding that appellant voluntarily possessed the heroin. See

State v. Holloman, 8th Dist. Cuyahoga No. 95896, 2011-Ohio-4236,

¶ 22 (evidence supported finding that defendant voluntarily

possessed drugs found “underneath defendant’s leg on the

passenger seat where he was sitting”). Moreover, any argument

that appellant landed on top of the bag of heroin by

happenstance would go to the weight of the evidence, not

sufficiency.

{¶51} Appellant also claims that the state needed to present

testimony from SWAT officers in the motel room before Detective

Wallace entered the room, or produce fingerprint or DNA evidence

to link appellant to the plastic bag to prove possession for a

sufficient time. Appellant, however, did not cite any authority

to require the state to present fingerprint or DNA evidence in [Cite as State v. Russell, 2022-Ohio-1746.]

order to prove voluntary possession. Furthermore, the lack of

such evidence goes to evidence weight rather than evidence

{¶52} Appellant also did not cite any authority to require

the state to present testimony from a specific witness at the

scene, like a SWAT officer, in order to prove voluntary

possession. We therefore reject this argument.

{¶53} Consequently, based upon the foregoing reasons, we

that appellant voluntarily possessed the heroin.2

2 In State v. Ireland, 155 Ohio St.3d 287, 2018-Ohio-4494, 121 N.E.3d 285, ¶ 31, the Ohio Supreme Court stated:

Voluntariness is not an essential element of the offense such that it must be charged in the indictment or addressed in the trial court’s jury instructions, even if the need for the act to be voluntarily committed is stated in the statutory scheme; rather, a challenge to voluntariness is a defense.

Id. at ¶ 33. The court further explained:

[T]he state must prove that the defendant acted voluntarily when committing a criminal act, but proof of the actus reus and mens rea is necessarily also evidence that the defendant acted voluntarily. Thus, the requirement that the state prove that the defendant acted voluntarily is not an additional element or burden on the state.

Id. [Cite as State v. Russell, 2022-Ohio-1746.]

D

{¶54} Appellant also argues that the state failed to present

sufficient evidence to show that he possessed at least ten, but

less than 50, grams of heroin. Appellant contends that the lab

analyst’s conclusion that the plastic bag contained 20.81 grams

of heroin is faulty because she did not test multiple samples

from the plastic bag, but instead, tested only one sample from

the bag. Appellant thus asserts that the lab analyst’s

testimony supports, at most, a fifth-degree-felony heroin

possession offense.

{¶55} R.C. 2925.11(C)(6) sets forth the penalties for heroin

possession. The severity of the offense depends upon the amount

of heroin possessed. The relevant parts of the statute provide:

(a) Except as otherwise provided in division (C)(6)(b), (c), (d), (e), or (f) of this section, possession of heroin is a felony of the fifth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender. * * * * (d) If the amount of the drug involved equals or exceeds one hundred unit doses but is less than five hundred unit doses or equals or exceeds ten grams but is less than fifty grams, possession of heroin is a felony of the second degree, and the court shall impose as a

We recognize, however, that a majority of the court did not concur in the principal opinion. One justice concurred, three justices concurred in judgment only, and two justices dissented. The precedential value of these statements, therefore, appears to be questionable. [Cite as State v. Russell, 2022-Ohio-1746.]

mandatory prison term a second degree felony mandatory prison term. * * * *

{¶56} To support his argument about the lab analyst’s faulty

testing method, appellant cites State v. Carroll, 2016-Ohio-374,

47 N.E.3d 198 (4th Dist.). In Carroll, we noted that other

state courts have concluded that “‘“random testing is

permissible when the seized samples are sufficiently homogenous

so that one may infer beyond a reasonable doubt that the

untested samples contain the same substance as those that are

conclusively tested.”’” Id., quoting State v. Garnett, 9th

Dist. Medina No. 12CA0088–M, 2013-Ohio-4971, ¶ 13 (Belfance, J.

concurring), quoting People v. Jones, 174 Ill.2d 427, 429, 221

Ill.Dec. 192, 675 N.E.2d 99 (1996); see also Annotation,

Sufficiency of Random Sampling of Drug or Contraband to

Establish Jurisdictional Amount Required for Conviction, 45

A.L.R.5th 1, Section 2[a] (1997) (“As a general rule, courts

agree that random sampling of a homogenous substance is

sufficient to establish the jurisdictional amount required by

conviction”).

{¶57} Appellant, however, contends that our statement in

Carroll means that more than one sample must be tested when a

single plastic bag contains a homogenous substance. We do not

agree. In Carroll, officers discovered a pill bottle that [Cite as State v. Russell, 2022-Ohio-1746.]

contained 56 plastic bags of cocaine that weighed approximately

21 grams. The state’s expert testified that he used “the

statistical method of hypergeometric sampling to determine how

many units to test from the multi-unit sample.” Id. at ¶ 12.

The expert explained that based on this method, he tested the

substance contained in 21 of the 56 plastic bags and all tested

positive for cocaine. The expert stated that, based upon the

hypergeometric sampling method, “he had a 95% confidence level

that at least 90% of the units in the 56–unit sample were

cocaine was sufficient to establish that the 21.31 grams of off-

white substance in the baggies was cocaine.” Id. at

¶ 34. After his conviction, the defendant appealed.

{¶58} On appeal, the defendant asserted, in part, that the

state failed to present sufficient evidence that he possessed an

amount of cocaine needed to support a second-degree-felony

conviction. The defendant claimed that the expert’s

hypergeometric sampling method did not adequately demonstrate

that he possessed approximately 21 grams of cocaine and argued

that “the state must test every unit in every drug case to

render an appropriate conclusion regarding the weight of the

controlled substance.” Id. at ¶ 31.

{¶59} We did not agree with the defendant’s argument: [Cite as State v. Russell, 2022-Ohio-1746.]

Appellate courts that have addressed this issue have accepted the hypergeometric or random sampling method of testing and determined that evidence of this method is sufficient as a matter of law to support a determination that the entire substance recovered together and similarly packaged is the same controlled substance as that tested.

Id. at ¶ 32, citing State v. Gartrell, 2014-Ohio-5203, 24 N.E.3d

680, ¶ 96 (3rd Dist.); State v. Edwards, 10th Dist. Franklin No.

12AP–992, 2013-Ohio-4342, ¶ 40; State v. Mitchell, 8th Dist.

Cuyahoga No. 93076, 2010-Ohio-520, ¶ 12.

{¶60} We further noted that the defendant “did not present

the testimony of any expert witness to attack the testimony or

methods used by the state’s expert whose qualifications he had

stipulated.” Id. at ¶ 34. We therefore concluded that the

expert’s testimony constituted sufficient evidence to support a

finding that the defendant possessed approximately 21 grams of

{¶61} In the case at bar, we do not believe that Carroll

supports appellant’s position that the lab analyst’s testimony

that she tested only one sample from the bag that contained a

homogenous substance is insufficient to establish that appellant

possessed an amount of heroin that equaled or exceeded ten grams

and less than 50 grams. Instead, as other Ohio appellate courts

have recognized, “the random-sampling method of testing creates

a reasonable inference that all similar contraband contains the [Cite as State v. Russell, 2022-Ohio-1746.]

same controlled substance as that tested, at least when the

contraband is recovered together and similarly packaged.” State

v. Samatar, 152 Ohio App.3d 311, 2003-Ohio-1639, 787 N.E.2d 691,

¶ 81 (10th Dist.). “Accordingly, evidence of the random-

sampling method is sufficient as a matter of law to support a

determination that the entire substance recovered together and

similarly packaged is the same controlled substance as that

tested.” Id. (citations omitted); accord State v. Mitchell, 8th

Dist. Cuyahoga No. 93076, 2010-Ohio-520, ¶ 11-12 (testing one

rock sufficient to establish entire substance is crack cocaine

when similar in appearance and packaged together in one bag);

State v. Smith, 10th Dist. Franklin No. 97APA05-660, *2 (Dec.

23, 1997) (rejecting defendant’s argument that testing small

portion of substance in bag insufficient to establish that

entire contents of bag contained cocaine).

{¶62} Moreover, courts have refused to “set requirements on

the percentage of a substance that must be analyzed to support

such an inference, as it depends on the facts and circumstances

of each case.” State v. Garnett, 9th Dist. Medina No. 12CA0088-

M, 2013-Ohio-4971, ¶ 7. Furthermore, judges are generally

“‘woefully ignorant of sampling techniques.’” Id., quoting

State v. Reynolds, 4th Dist. Ross No. 1185, 1985 WL 8354, *2

(Sept. 26, 1985) (Grey, J., concurring). Thus, “if [an] [Cite as State v. Russell, 2022-Ohio-1746.]

appellant wishes to object to the evidence on the grounds that

it is not random or representative, it is incumbent upon him to

introduce by expert witness or otherwise sufficient evidence to

show the unreliability of the testing.” Reynolds at *2 (Grey,

J., concurring).

{¶63} For similar reasons, we reject appellant’s contention

that the lab analyst’s testimony in the case sub judice is not

sufficient to establish that he possessed at least 10, and not

more than 50, grams of heroin. The analyst stated that she

tested one sample from a single plastic bag that contained a

homogenous substance and this sample tested positive for heroin.

Her testimony thus constitutes sufficient evidence that the

entire substance, recovered together in the same plastic bag, is

the same controlled substance as that tested. We additionally

note that appellant did not present any evidence to attempt to

show that the lab analyst’s testing methodology was unreliable.

{¶64} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II

{¶65} In his second assignment of error, appellant asserts

that the trial court violated his due process rights by failing

to ensure that the verdict form specified the degree of the [Cite as State v. Russell, 2022-Ohio-1746.]

offense, or the amount of heroin necessary, to elevate the

offense to a second-degree felony. Appellant thus alleges that

the guilty verdict constitutes a finding of guilty of the least

degree of the offense, i.e., a fifth-degree felony.

{¶66} We first note that appellant did not argue during the

trial court proceedings that the verdict form failed to comply

with R.C. 2945.75(A)(2). This court previously has indicated,

however, that reviewing courts may recognize “‘error, even in

the absence of an objection at trial, when a verdict form fails

to comply with R.C. 2945.72(A)(2).’” State v. Robinson, 2019-

Ohio-2155, 137 N.E.3d 501, ¶ 18 (4th Dist.), quoting Portsmouth

v. Wrage, 4th Dist. Scioto No. 08CA3237, 2009-Ohio-3390, ¶ 42,

citing State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860

N.E.2d 735; accord State v. McDonald, 137 Ohio St.3d 517, 2013-

Ohio-5042, 1 N.E.3d 374, ¶ 17 (“[t]he express requirement of

[R.C. 2945.75(A)(2)] cannot be fulfilled * * * by showing that

the defendant failed to raise the issue of the inadequacy of the

verdict form”).

{¶67} R.C. 2945.75(A)(2) provides:

When the presence of one or more additional elements makes an offense one of more serious degree: * * * * A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. [Cite as State v. Russell, 2022-Ohio-1746.]

Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.

{¶68} Accordingly, “[p]ursuant to the clear language of R.C.

2945.75, a verdict form signed by a jury must include either the

degree of the offense of which the defendant is convicted or a

statement that an aggravating element has been found to justify

convicting a defendant of a greater degree of a criminal

offense.” Pelfrey at syllabus; accord McDonald at ¶ 13.

“Pelfrey makes clear that in cases involving offenses for which

the addition of an element or elements can elevate the offense

to a more serious degree, the verdict form itself is the only

relevant thing to consider in determining whether the dictates

of R.C. 2945.75 have been followed.” McDonald at ¶ 17.

{¶69} In the case before us, appellant asserts the verdict

form fails to include either the degree of the offense or the

elements necessary to elevate heroin possession to a second-

degree felony. Although appellant recognizes the caption of the

verdict form lists the degree of the offense as a second-degree

felony, he argues that listing the degree of the offense in the

verdict-form caption does not satisfy the R.C. 2945.75(A)(2)

requirement that a guilty verdict state “the degree of the

offense of which the offender is found guilty.” Appellant

suggests that because the caption of a verdict form is not the [Cite as State v. Russell, 2022-Ohio-1746.]

same as “[a] guilty verdict,” he contends that the verdict form

supports only a conviction for a fifth-degree-felony heroin

possession.

{¶70} To support his argument, appellant relies upon State

v. Breaston, 83 Ohio App.3d 410, 413, 614 N.E.2d 1156 (10th

Dist.1993). In Breaston, “the verdict portion of the verdict

form signed by the jury” did not include either “the degree of

the offense” or any elements necessary to elevate the offense to

a greater degree. Id. The caption of the verdict form,

however, contained an abbreviation that read “(F-3).” Id. The

Breaston court concluded, without explanation, that this

abbreviation did not comply with the requirement in R.C.

2945.75(A)(2) that the guilty verdict state the degree of the

offense.

{¶71} The state counters that listing the degree of the

offense in the caption of the verdict form complies with R.C.

2945.75(A)(2) as construed in McDonald and Pelfrey. The state

points out that in both cases, the Ohio Supreme Court indicated

that courts are to consider the “verdict form” and did not limit

a court’s review to the language used in the jury’s recitation

of the verdict. The state further asserts that Breaston is

distinguishable from the case at bar because the Breaston [Cite as State v. Russell, 2022-Ohio-1746.]

verdict form did not contain any explanation to indicate to the

jury that “(F-3)” was the degree of the offense at issue.

{¶72} After our review, we agree with the state’s position.

McDonald and Pelfrey provide that courts must consider the

“verdict form,” not simply the “guilty verdict,” when reviewing

whether a guilty verdict complies with R.C. 2945.75(A)(2).3

Here, the verdict form lists the degree of the offense within

the caption. Therefore, in accordance with McDonald and

Pelfrey, we believe that the verdict form complies with R.C.

2945.75(A)(2).

{¶73} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

III

{¶74} In his third assignment of error, appellant asserts

that the trial court erred by allowing the state to introduce

certain evidence. Appellant first contends that the trial court

erred by allowing the state to introduce evidence that officers

discovered a large amount of cash on appellant’s person and that

3 It is unclear whether McDonald and Pelfrey intended to deviate from the precise language used in R.C. 2945.75(A)(2), i.e., “guilty verdict.” Nevertheless, both cases clearly state that courts are to review the “verdict form” and not merely the “guilty verdict.” [Cite as State v. Russell, 2022-Ohio-1746.]

they found scales in the motel room. Appellant asserts that

this evidence violated Evid.R. 403(A) by permitting the state to

paint appellant as drug dealer.

{¶75} Next, appellant claims that the trial court erred by

allowing the state to question Detective Wallace about the basis

for obtaining a warrant to search the motel room. Appellant

alleges that this evidence violated the Confrontation Clause and

the hearsay rule.

{¶76} In general, “‘[t]he admission or exclusion of relevant

evidence rests within the sound discretion of the trial court.’”

State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80,

¶ 91, quoting State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343

(1987), paragraph two of the syllabus. Consequently, “a

reviewing court should not disturb evidentiary decisions in the

absence of an abuse of discretion that created material

prejudice.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-

2407, 972 N.E.2d 528, ¶ 14, quoting State v. Diar, 120 Ohio

St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 66; accord State v.

Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 198,

citing State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343

(1987). “An abuse of discretion is more than a mere error of

law or judgment.” State v. Thompson, 141 Ohio St.3d 254, 2014- [Cite as State v. Russell, 2022-Ohio-1746.]

Ohio-4751, 23 N.E.3d 1096, ¶ 91; accord State v. Johnson, 144

Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 75. Instead,

“‘[a] trial court abuses its discretion when it makes a decision

that is unreasonable, unconscionable, or arbitrary.’” State v.

Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7,

quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986

N.E.2d 971, ¶ 34. An abuse of discretion includes a situation

in which a trial court did not engage in a “‘sound reasoning

process.’” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407,

972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990). Moreover, “[a]buse of discretion review is

deferential and does not permit an appellate court to simply

substitute its judgment for that of the trial court.” Darmond

at ¶ 34.

{¶77} As a general rule, all relevant evidence is

admissible. Evid.R. 402. Evid.R. 401 defines relevant evidence

as “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence.” Evid.R. 401 and Evid.R. 402. A trial court must,

however, exclude relevant evidence “if its probative value is [Cite as State v. Russell, 2022-Ohio-1746.]

substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.” Evid.R.

403. A trial court has broad discretion to determine whether to

exclude evidence under Evid.R. 403(A), and “‘an appellate court

should not interfere absent a clear abuse of that discretion.’”

State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767

N.E.2d 216, ¶ 40.

{¶78} Evid.R. 403(A) “manifests a definite bias in favor of

the admission of relevant evidence, as the dangers associated

with the potentially inflammatory nature of the evidence must

substantially outweigh its probative value before the court

should reject its admission.” State v. White, 4th Dist. Scioto

No. 03CA2926, 2004-Ohio-6005, ¶ 50. Thus, “[w]hen determining

whether the relevance of evidence is outweighed by its

prejudicial effects, the evidence is viewed in a light most

favorable to the proponent, maximizing its probative value and

minimizing any prejudicial effect to the party opposing

admission.” State v. Lakes, 2nd Dist. Montgomery No. 21490,

2007-Ohio-325, ¶ 22.

{¶79} We also recognize that, to some degree, all relevant

evidence may be prejudicial in the sense that it “tends to

disprove a party’s rendition of the facts” and, thus,

“necessarily harms that party’s case.” State v. Crotts, 104 [Cite as State v. Russell, 2022-Ohio-1746.]

Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23. Evid.R.

403(A) does not, however, “attempt to bar all prejudicial

evidence.” Id. Instead, the rules provide that only unfairly

prejudicial evidence is excludable. Id. “‘Evid.R. 403(A)

speaks in terms of unfair prejudice. Logically, all evidence

presented by a prosecutor is prejudicial, but not all evidence

unfairly prejudices a defendant. It is only the latter that

Evid.R. 403 prohibits.’” State v. Skatzes, 104 Ohio St.3d 195,

2004-Ohio-6391, 819 N.E.2d 215, ¶ 107, quoting State v. Wright,

48 Ohio St.3d 5, 8, 548 N.E.2d 923 (1990).

{¶80} “‘Unfair prejudice’ does “not mean the damage to a

defendant’s case that results from the legitimate probative

force of the evidence; rather it refers to evidence which tends

to suggest decision on an improper basis.”’” State v. Lang, 129

Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 89, quoting

United States v. Bonds, 12 F.3d 540 (6th Cir. 1993). Unfairly

prejudicial evidence is evidence that “might result in an

improper basis for a jury decision.” Oberlin v. Akron Gen. Med.

Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001), quoting

Weissenberger’s Ohio Evidence (2000) 85–87, Section 403.3. It

is evidence that arouses the jury’s emotions, that “‘evokes a

sense of horror,’” or that “‘appeals to an instinct to punish.’”

Id. “‘Usually, although not always, unfairly prejudicial [Cite as State v. Russell, 2022-Ohio-1746.]

evidence appeals to the jury’s emotions rather than intellect.’”

Id. Thus, “[u]nfavorable evidence is not equivalent to unfairly

prejudicial evidence.” State v. Bowman, 144 Ohio App.3d 179,

185, 759 N.E.2d 856 (12th Dist.2001).

{¶81} In the case sub judice, appellant argues that the

state’s testimony that officers found a large sum of money on

appellant’s person unfairly prejudiced appellant. He also

contends that the admission of the digital scales into evidence

was unfairly prejudicial. Appellant claims that this evidence

allowed the state to create an improper impression that

appellant is a drug dealer.

{¶82} To support his argument, appellant cites State v.

Pollard, 11th Dist. Ashtabula No. 99-A-0072, 2001 WL 369684

(Apr. 13, 2001). In Pollard, a jury convicted the defendant of

cocaine possession. The defendant appealed and asserted that

the trial court erred by permitting the state to introduce into

evidence $66 in cash and a pager. The defendant argued that the

state used the evidence in an “attempt[] to create an improper

bias in the minds of the jurors that he was a drug dealer

despite the fact that he was only charged with possession of a

controlled substance.” Id. at *2. The defendant thus claimed

that the evidence “was substantially and unfairly prejudicial, [Cite as State v. Russell, 2022-Ohio-1746.]

confusing and misleading, such that it was subject to the

mandatory exclusion pursuant to Evid.R. 403(A).” Id.

{¶83} The appellate court agreed with the defendant and

explained:

[The defendant] was not charged with drug trafficking. If he had been, then the possession of currency in small denominations and a pager would be admissible to show that it was more probable than not that appellant was a drug trafficker. Here, the state attempted to use these items to create an obvious inference that if appellant was a drug dealer equipped to do business, then it was probable he had possession of the drugs.

Id. at *3.

The court additionally noted that, during closing arguments, the

state used the evidence “in a highly improper manner.” Id. at

*5. Specifically, during closing arguments the state “implied

that [the defendant] was really an uncharged drug dealer because

he had a pager and currency; ergo, it was more likely than not

that he was the one who dropped, tossed, or possessed the

drugs.” Id. The appellate court concluded that admitting the

evidence and permitting the state to use the evidence in an

improper manner during closing arguments constituted prejudicial

error. Consequently, the court reversed the defendant’s

conviction.

{¶84} We, however, do not believe that the Pollard court’s

reasoning applies to the facts in the case at bar. In the case [Cite as State v. Russell, 2022-Ohio-1746.]

before us, the state did not argue during closing arguments that

appellant is an uncharged drug dealer because he possessed a

large amount of money and digital scales. Furthermore, the

state did not ask Officer King what he found on appellant’s

person in an attempt to create an improper inference that

appellant is a drug trafficker and he was, therefore, more

likely to possess drugs. Instead, the state asked Officer King

what he found on appellant’s person to show the only item found

on appellant’s person was a large amount of cash. As the state

asserts in its brief, Officer King’s testimony “was relevant and

not prejudicial in the context of what was not found in the room

or on the person – a motel key, wallet, or identification.” The

state contends that the lack of items found on appellant’s

person helped to show that appellant may have attempted to

conceal his identity and implies guilty knowledge.

{¶85} We also note that several courts have indicated that

“the presence of large amounts of cash on [a defendant’s]

person” helps to establish that a defendant knowingly possessed

drugs. State v. Jones, 6th Dist. Erie No. E-19-065, 2021-Ohio-

2621, ¶ 81; State v. Watts, 3rd Dist. Hancock No. 5-12-34, 2016-

Ohio-257, ¶ 49 (“Another factor indicating constructive

possession of drugs includes large amounts of cash found on a

person.”); State v. Howard, 5th Dist. Richland No. 13CA24, 2013- [Cite as State v. Russell, 2022-Ohio-1746.]

Ohio-5691, ¶ 38 (“a large amount of cash” discovered on

defendant’s person relevant to establish constructive

possession); State v. Brooks, 3rd Dist. Hancock No. 5-11-11,

2012-Ohio-5235, ¶ 50 (“pictures of [defendant] holding large

amounts of cash” helped establish constructive possession);

State v. New, 4th Dist. Gallia No. 08CA9, 2009-Ohio-2632, ¶ 19

(photographs of defendant and boyfriend holding large sums of

cash relevant to establish constructive possession of drugs);

State v. Campbell, 5th Dist. Stark No. 2004CA00176, 2005-Ohio-

795, ¶ 29 (possession of a digital scale and large amount of

cash relevant to establish constructive possession of a weapon);

State v. Riley, 9th Dist. Summit No. 21852, 2004-Ohio-4880, ¶ 19

(“possession of a large amount of cash” circumstantial evidence

of constructive possession); State v. Gibson, 8th Dist. Cuyahoga

No. 82087, 2003-Ohio-5839, ¶ 13 (same).

{¶86} Moreover, we do not believe that the state introduced

the digital scales into evidence in an attempt to paint

appellant as a drug trafficker. We first observe that appellant

did not object when the state’s witnesses testified that

officers discovered the digital scales in the motel room’s night

stand drawer. Instead, appellant objected when the state sought

to introduce the scales into evidence at the close of the

state’s case. Therefore, we question whether appellant properly [Cite as State v. Russell, 2022-Ohio-1746.]

preserved the issue for appellate review, or whether introducing

the scales into evidence was cumulative to the testimony already

given during the state’s case-in-chief.

{¶87} Nevertheless, we do not believe that introducing the

scales into evidence was unfairly prejudicial to appellant. The

digital scales helped to establish that appellant constructively

possessed the heroin discovered in the motel room. See

generally State v. Hall, 8th Dist. Cuyahoga No. 91786, 2009-

Ohio-3287, ¶ 22 (digital scales relevant to establish

constructive possession of drugs located in residence). Thus,

even if the evidence was prejudicial, we do not believe that it

was unfairly prejudicial such that the trial court should have

prevented the state from introducing it into evidence.

C

{¶88} Appellant next argues that Detective Wallace’s

testimony regarding the investigatory methods he used to procure

the warrant to search the motel room violated his right to

confront witnesses against him and the rule against hearsay.

Appellant contends that the testimony implied that unidentified

third parties had informed law enforcement officers that

appellant had been selling drugs from the motel room. [Cite as State v. Russell, 2022-Ohio-1746.]

{¶89} Appellate courts review alleged violations of a

criminal defendant’s confrontation rights under a de novo

standard. State v. Hedges, 4th Dist. Hocking No. 15CA21, 2016-

Ohio-5038, ¶ 12; State v. Thompson, 4th Dist. Washington No.

13CA41, 2014–Ohio–4665, ¶ 11, citing State v. Smith, 162 Ohio

App.3d 208, 2005–Ohio–3579, 832 N.E.2d 1286 (8th Dist.), and

United States v. Robinson, (C.A.6, 2004), 389 F.3d 582, 592. In

the case at bar, however, appellant did not raise a

Confrontation Clause objection during the trial court

proceeding. Appellant thus raises the Confrontation Clause

issue for the first time on appeal.

{¶90} Generally, a defendant who fails to raise a

Confrontation Clause issue during the trial court proceedings

forfeits the right to present it for the first time on appeal.

State v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d

153, ¶ 65; State v. Louis, 2016-Ohio-7596, 73 N.E.3d 917 (4th

Dist.), ¶ 46; State v. Smith, 2016-Ohio-5062, 70 N.E.3d 150 (4th

Dist.), ¶ 74; see State v. Anderson, 151 Ohio St.3d 212, 2017-

Ohio-5656, 87 N.E.3d 1203, ¶ 44. Additionally, an “‘[o]bjection

on one ground does not preserve other, unmentioned grounds.’”

State v. Hairston, 2016-Ohio-8495, 79 N.E.3d 1193, ¶ 34 (10th

Dist.), quoting State v. Wallace, 10th Dist. Franklin No. 08AP–

2, 2008-Ohio-5260, ¶ 25. Thus, objecting to testimony on the [Cite as State v. Russell, 2022-Ohio-1746.]

basis of hearsay or relevancy generally does not preserve a

Confrontation Clause issue. State v. Sibole, 2nd Dist. Clark

No. 2017-CA-68, 2018-Ohio-3203, ¶ 9; Hairston at ¶ 34; State v.

Harris, 1st Dist. Hamilton No. C-130442, 2014-Ohio-4237, ¶ 14.

Consequently, because here appellant did not specifically object

at trial to the alleged hearsay statements on the basis that

they constituted hearsay and violated his rights under the

Confrontation Clause, it can be argued that we may review the

claimed violation only for plain error. State v. Parsons, 9th

Dist. Lorain No. 18CA011328, 2019-Ohio-5021, ¶ 6 (defendant

forfeited all but plain error with respect to Confrontation

Clause issue when defendant “objected to a portion of [the]

testimony on the basis that it called for a legal conclusion

from the witness,” but “he did not object to any of it on

hearsay grounds”).

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

affecting substantial rights may be noticed although they were

not brought to the attention of the court.” Crim.R. 52(B) thus

permits a court to recognize plain error if the party claiming

error establishes (1) that “‘an error, i.e., a deviation from a

legal rule’” occurred, (2) that the error is a plain or “‘an

“obvious” defect in the trial proceedings,’” and (3) that this

obvious error affected substantial rights, i.e., the error [Cite as State v. Russell, 2022-Ohio-1746.]

“‘must have affected the outcome of the trial.’” State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22,

quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240

(2002); accord United States v. Dominguez Benitez, 542 U.S. 74,

76, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (under plain-

error review, defendant typically must establish “‘reasonable

probability that, but for the error,’ the outcome of the

proceeding would have been different”). For an error to be

“plain” or “obvious,” the error must be plain “under current

law” “at the time of appellate consideration.” Johnson v.

United States, 520 U.S. 461, 467, 468, 117 S.Ct. 1544, 137

L.Ed.2d 718 (1997); accord Henderson v. United States, 568 U.S.

266, 279, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013); Barnes, 94 Ohio

St.3d at 27, citing United States v. Olano, 507 U.S. 725, 734,

113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (for error to be plain,

it must be obvious error under current law); State v. G.C., 10th

Dist. Franklin No. 15AP-536, 2016-Ohio-717, ¶ 14. However, even

when a defendant demonstrates that a plain error or defect

affected his substantial rights, the Ohio Supreme Court has

“‘admonish[ed] courts to notice plain error “with the utmost

caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.”’” Rogers at ¶ 23, quoting

Barnes, 94 Ohio St.3d at 27, quoting State v. Long, 53 Ohio [Cite as State v. Russell, 2022-Ohio-1746.]

St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the

syllabus.

{¶92} In the case sub judice, as we explain below, we do not

believe that the trial court erred by allowing the detective to

explain his investigatory methods. The plain error doctrine,

therefore, does not apply.

{¶93} The Sixth Amendment to the United States Constitution

provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right * * * to be confronted with the witnesses

against him.” In Crawford v. Washington, 541 U.S. 36, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court

held that the Confrontation Clause guarantees a defendant’s

right to confront those “who ‘bear testimony’” against him. Id.

at 51. A testimonial out-of-court statement of a witness who

does not appear at trial thus is inadmissible unless the witness

is unavailable and the defendant had a prior opportunity for

cross-examination. Melendez–Diaz v. Massachusetts, 557 U.S.

305, 309, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), citing

Crawford, 541 U.S. at 54. However, “[t]he Clause * * * does not

bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.” Crawford, 541

U.S. at 59, fn.9, citing Tennessee v. Street, 471 U.S. 409, 414, [Cite as State v. Russell, 2022-Ohio-1746.]

105 S.Ct. 2078, 85 L.Ed.2d 425 (1985). Therefore, “[i]f

testimony qualifies as nonhearsay, it does not implicate the

Confrontation Clause.” State v. McKelton, 148 Ohio St.3d 261,

2016-Ohio-5735, 70 N.E.3d 508, ¶ 186. Consequently, a necessary

question when evaluating an alleged Confrontation Clause

violation is whether the out-of-court statement constitutes

hearsay or nonhearsay.

{¶94} In the case sub judice, we must initially determine

whether the challenged testimony contains any out-of-court

statements that are hearsay. If the challenged testimony

contains nonhearsay, then we need not consider whether they also

are testimonial and, thus, barred under the Confrontation

Clause.

{¶95} Under Evid.R. 801(C), hearsay is “a statement, other

than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted.” “A ‘statement’ is (1) an oral or written assertion

or (2) nonverbal conduct of a person, if it is intended by the

person as an assertion.” Evid.R. 801(A). If a statement is

offered for a purpose other than proving the truth of the matter

asserted, it is not hearsay and is admissible. State v. Osie,

140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 118. [Cite as State v. Russell, 2022-Ohio-1746.]

{¶96} Out-of-court statements that explain law enforcement

officers’ next investigatory steps are not generally hearsay.

State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d

493, ¶ 172. Thus, “[l]aw-enforcement officers may testify to

out-of-court statements for the nonhearsay purpose of explaining

the next investigatory step.” Id., citing McKelton at ¶ 186.

Admissibility of investigatory-step statements is limited,

however, due to “‘the great potential for abuse and potential

confusion to the trial of fact.’” State v. Ricks, 136 Ohio

St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 24, quoting State

v. Humphrey, 10th Dist. Franklin No. 07AP-837, 2008-Ohio-6302, ¶

11. In order to prevent abuse and limit potential confusion,

“[t]estimony offered to explain police conduct is admissible as

nonhearsay only if it satisfies three criteria: (1) ‘the conduct

to be explained [is] relevant, equivocal, and contemporaneous

with the statements,’ (2) the probative value of the statements

is not substantially outweighed by the danger of unfair

prejudice, and (3) ‘the statements do not connect the accused

with the crime charged.’” McKelton at ¶ 186, quoting Ricks at ¶

27. Consequently, an investigatory-step statement “is not

permitted if the statement in question ‘connect[s] the accused

with the crime charged.’” State v. Clinton, 153 Ohio St.3d 422,

2017-Ohio-9423, 108 N.E.3d 1, ¶ 136, quoting Ricks at ¶ 27. [Cite as State v. Russell, 2022-Ohio-1746.]

{¶97} In the case at bar, we do not agree with appellant

that Detective Wallace’s testimony explaining his investigatory

methods contained inadmissible hearsay. None of the detective’s

testimony contained out-of-court statements that related what

another individual had stated. Moreover, none of the statements

were offered in evidence to prove the truth of the matter

asserted. Instead, Wallace described his investigatory methods

to explain what led officers to search the motel room. Thus,

the trial court did not err by allowing the testimony.

{¶98} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error.

IV

{¶99} In his fourth assignment of error, appellant contends

that trial counsel rendered ineffective assistance of counsel by

failing to request a jury instruction regarding “the temporal

requirement to prove voluntary possession” or to object to its

omission.

{¶100} The Sixth Amendment to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution, provide that

defendants in all criminal proceedings shall have the assistance

of counsel for their defense. The United States Supreme Court

has generally interpreted this provision to mean a criminal [Cite as State v. Russell, 2022-Ohio-1746.]

defendant is entitled to the “reasonably effective assistance”

of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); accord Hinton v. Alabama, 571 U.S.

263, 272, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (Sixth Amendment

right to counsel means “that defendants are entitled to be

represented by an attorney who meets at least a minimal standard

of competence”).

{¶101} To establish constitutionally ineffective assistance

of counsel, a defendant must show that (1) his counsel’s

performance was deficient, and (2) the deficient performance

prejudiced the defense and deprived the defendant of a fair

trial. E.g., Strickland, 466 U.S. at 687; State v. Myers, 154

Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v.

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶

85. “Failure to establish either element is fatal to the claim.”

State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶

14. Therefore, if one element is dispositive, a court need not

analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721

N.E.2d 52 (2000) (a defendant’s failure to satisfy one of the

ineffective assistance of counsel elements “negates a court’s

need to consider the other”).

{¶102} The deficient performance part of an ineffectiveness

claim “is necessarily linked to the practice and expectations of [Cite as State v. Russell, 2022-Ohio-1746.]

the legal community: ‘The proper measure of attorney performance

remains simply reasonableness under prevailing professional

norms.’” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct.

1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466 U.S. at

688; accord Hinton, 571 U.S. at 273. Prevailing professional

norms dictate that “a lawyer must have ‘full authority to manage

the conduct of the trial.’” State v. Pasqualone, 121 Ohio St.3d

186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 24, quoting Taylor v.

Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798

(1988).

{¶103} Furthermore, “‘[i]n any case presenting an

ineffectiveness claim, “the performance inquiry must be whether

counsel’s assistance was reasonable considering all the

circumstances.”’” Hinton, 571 U.S. at 273, quoting Strickland,

466 U.S. at 688. Accordingly, “[i]n order to show deficient

performance, the defendant must prove that counsel’s performance

fell below an objective level of reasonable representation.”

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d

810, ¶ 95 (citations omitted).

{¶104} Moreover, when considering whether trial counsel’s

representation amounts to deficient performance, “a court must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” [Cite as State v. Russell, 2022-Ohio-1746.]

Strickland, 466 U.S. at 689. Thus, “the defendant must overcome

the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id.

Additionally, “[a] properly licensed attorney is presumed to

execute his duties in an ethical and competent manner.” State

v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10,

citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128

(1985). Therefore, a defendant bears the burden to show

ineffectiveness by demonstrating that counsel’s errors were “so

serious” that counsel failed to function “as the ‘counsel’

guaranteed * * * by the Sixth Amendment.” Strickland, 466 U.S.

at 687; e.g., State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153,

156, 524 N.E.2d 476 (1988).

{¶105} To establish prejudice, a defendant must demonstrate

that a reasonable probability exists that “‘but for counsel’s

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to

undermine the outcome.’” Hinton, 571 U.S. at 275, quoting

Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio

St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph

three of the syllabus; accord State v. Spaulding, 151 Ohio St.3d [Cite as State v. Russell, 2022-Ohio-1746.]

378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 91 (prejudice component

requires a “but for” analysis). “‘[T]he question is whether

there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.’”

Hinton, 571 U.S. at 275, quoting Strickland, 466 U.S. at 695.

{¶106} Furthermore, courts ordinarily may not simply presume

the existence of prejudice but, instead, must require the

defendant to affirmatively establish prejudice. State v. Clark,

4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v.

Tucker, 4th Dist. Ross No. 01CA2592 (Apr. 2, 2002. As we have

repeatedly recognized, speculation is insufficient to establish

the prejudice component of an ineffective assistance of counsel

claim. E.g., State v. Tabor, 4th Dist. Jackson No. 16CA9, 2017-

Ohio-8656, ¶ 34; State v. Jenkins, 4th Dist. Ross No. 13CA3413,

2014-Ohio-3123, ¶ 22; State v. Simmons, 4th Dist. Highland No.

13CA4, 2013-Ohio-2890, ¶ 25; State v. Halley, 4th Dist. Gallia

No. 10CA13, 2012-Ohio-1625, ¶ 25; State v. Leonard, 4th Dist.

Athens No. 08CA24, 2009-Ohio-6191, ¶ 68; accord State v. Powell,

132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (a

purely speculative argument cannot serve as the basis for an

ineffectiveness claim).

{¶107} Courts have held that “‘[a]n attorney’s decision not

to request a particular jury instruction is a matter of trial [Cite as State v. Russell, 2022-Ohio-1746.]

strategy and does not establish ineffective assistance of

counsel.’” State v. Harrison, 3d Dist. Logan No. 8-14-16, 2015-

Ohio-1419, ¶ 89, quoting State v. Morris, 9th Dist. Summit No.

22089, 2005-Ohio-1136, ¶ 100, citing State v. Fisk, 9th Dist.

Summit No. 21196, 2003-Ohio-3149, ¶ 9, citing State v. Hill, 73

Ohio St.3d 433, 443 (1995), and citing State v. Oates, 3d Dist.

Hardin No. 6-12-19, 2013-Ohio-2609, ¶ 9. Nevertheless, “[a]

trial court’s instructions to a jury must correctly, clearly,

and completely state the law applicable to the case.” State v.

Orians, 179 Ohio App.3d 701, 2008-Ohio-6185, ¶ 10 (3d Dist.).

Further, “a defendant is entitled to have the jury instructed on

all elements that must be proved to establish the crime with

which he is charged.” State v. Gardner, 118 Ohio St.3d 420,

2008-Ohio-2787, ¶ 37, quoting State v. Adams, 62 Ohio St.2d 151,

153 (1980).

{¶108} In the case at bar, even if we assume for purposes of

argument that appellant’s trial counsel performed deficiently by

failing to ask the trial court to give the jury a voluntary-

possession instruction, we do not believe that appellant has

demonstrated that a reasonable probability exists that the jury

would have had reasonable doubt regarding appellant’s guilt if

the court had given the voluntary-possession instruction. As we

noted earlier in this decision, the evidence shows that officers [Cite as State v. Russell, 2022-Ohio-1746.]

found appellant in a small motel room laying on top of a bag of

heroin. None of the evidence shows that appellant momentarily

possessed the heroin. The evidence adduced at trial allowed the

jury to reasonably infer that, if appellant was found laying on

top of the bag when Detective Wallace lifted appellant from the

floor, then appellant was in proximity to the heroin for a

sufficient length of time to have possession. Thus, trial

counsel did not render ineffective assistance of counsel by

failing to ask the court to give the jury a voluntary-possession

instruction.

{¶109} We reiterate that in Ireland, supra, the Ohio Supreme

Court stated: “Voluntariness is not an essential element of the

offense such that it must be charged in the indictment or

addressed in the trial court’s jury instructions, even if the

need for the act to be voluntarily committed is stated in the

statutory scheme; rather, a challenge to voluntariness is a

defense.” Id. at ¶ 33. We recognize, however, that a majority

of the court did not concur in the principal opinion. We

nevertheless find the court’s analysis instructive as it relates

to trial counsel’s decision in the case at bar not to request a

voluntary-possession jury instruction. [Cite as State v. Russell, 2022-Ohio-1746.]

{¶110} Consequently, we do not agree with appellant that

trial counsel provided ineffective assistance of counsel by

failing to request a voluntary-possession jury instruction.

{¶111} Accordingly, based upon the foregoing reasons, we

overrule appellant’s fourth assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED. [Cite as State v. Russell, 2022-Ohio-1746.]

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee recover of appellant 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 Ross 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, it is continued for a period of 60 days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the 60 day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the 45 day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said 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. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.