[Cite as State v. Sweeney, 2026-Ohio-57.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : C.A. No. 2023-CA-58 Appellee : : Trial Court Case No. 22-CR-0813 v. : : (Criminal Appeal from Common Pleas TIMOTHY SWEENEY : Court) : Appellant : FINAL JUDGMENT ENTRY & : OPINION
...........
Pursuant to the opinion of this court rendered on January 9, 2026, the prior judgment
of this court issued on September 6, 2024, is vacated, the judgment of the trial court is
reversed, and the matter is remanded to the trial court for a new trial.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
ROBERT G. HANSEMAN, JUDGE
EPLEY, P.J, concurs.
HUFFMAN, J., dissents. OPINION CLARK C.A. No. 2023-CA-58
JENNIFER E. MARIETTA, Attorney for Appellant DANIEL P. DRISCOLL, Attorney for Appellee
HANSEMAN, J.
{¶ 1} This case is before the court on appellant Timothy Sweeney’s reopened appeal.
Sweeney’s appeal was reopened after he filed an App.R. 26(B) application for reopening
that presented legitimate grounds to support his claim that his appellate counsel provided
ineffective assistance during his direct appeal. In a reopened appeal, “the case proceeds
‘as on an initial appeal’” where the appellant “must establish not only that the direct appeal
was meritorious but also that the appeal failed because of the ineffective assistance of
appellate counsel.” State v. Clark, 2025-Ohio-4410, ¶ 18-19, quoting App.R. 26(B)(7). For
the reasons outlined below, we find that Sweeney has satisfied both of these requirements.
As a result, pursuant to App.R. 26(B)(9), the prior judgment of this court affirming Sweeney’s
conviction is vacated, Sweeney’s judgment of conviction is reversed, and the matter is
remanded to the trial court for a new trial.
Relevant Facts and Course of Proceedings
{¶ 2} Following a jury trial in the Clark County Common Pleas Court, Sweeney was
convicted of one count of aggravated possession of drugs (methamphetamine) in violation
of R.C. 2925.11(A). During Sweeney’s trial, Detective Nicholas Moody of the Clark County
Sheriff’s Office testified regarding the events that had led to Sweeney’s conviction. Moody
testified that on August 13, 2021, he approached Sweeney to arrest him for an outstanding
warrant and observed Sweeney briefly crouch down next to a maroon Cadillac. When Moody
went over to where Sweeney had crouched down, he found, among other items, two plastic
2 bags containing a white crystalline substance lying on the ground underneath the Cadillac.
Moody further testified that he had sent the plastic bags with the white crystalline substance
to the Ohio Bureau of Criminal Investigation (“BCI”) for laboratory testing, and that the test
results showed the substance was 4.82 grams of methamphetamine.
{¶ 3} Instead of presenting testimony from the BCI forensic scientist who tested the
methamphetamine, the State submitted a laboratory report that contained the forensic
scientist’s findings. The State presented the findings in the laboratory report through the
testimony of Moody. During trial, Sweeney objected to Moody testifying about the findings
in the laboratory report on grounds that such testimony was hearsay. The record indicates
that the trial court overruled the objection based on R.C. 2925.51—a statute that allows,
under certain circumstances, BCI laboratory reports to be used as prima facie evidence of
the content, identity, and weight of a controlled substance. When the State rested its case,
Sweeney did not object to the admission of the laboratory report or challenge the trial court’s
application of R.C. 2925.51.
{¶ 4} After Sweeney was convicted of aggravated possession of drugs, he appealed
from his conviction and raised three assignments of error for review. Sweeney’s
assignments of error argued that (1) his statutory and constitutional speedy-trial rights were
violated, (2) his case should have been dismissed due to discovery violations by the State,
and (3) his conviction was not supported by sufficient evidence.
{¶ 5} In support of his sufficiency claim, Sweeney’s appellate counsel did not dispute
that the substance found under the Cadillac was a controlled substance, i.e.,
methamphetamine. Instead, Sweeney’s appellate counsel argued that the State had failed
to present sufficient evidence establishing that Sweeney had been in possession of the
methamphetamine. Sweeney’s appellate counsel did not raise any argument challenging
3 the admission of the BCI laboratory report into evidence. After reviewing the record, this
court overruled Sweeney’s three assignments of error and affirmed his conviction for
aggravated possession of drugs. Sweeney thereafter filed an App.R. 26(B) application for
reopening.
{¶ 6} In his application for reopening, Sweeney argued that his appellate counsel
provided ineffective assistance by failing to raise assignments of error challenging the trial
court’s admission of the BCI laboratory report into evidence. Sweeney claimed that his
appellate counsel should have argued that the trial court improperly relied on R.C. 2925.51
when overruling his trial counsel’s hearsay objection to the BCI laboratory report.
{¶ 7} On January 28, 2025, this court granted Sweeney’s application for reopening.
In granting the reopening, we found that Sweeney had presented legitimate grounds to
support his claim that his appellate counsel was ineffective for failing to raise assignments
of error challenging the admission of the BCI laboratory report. After granting Sweeney’s
application for reopening, we appointed Sweeney new appellate counsel who filed a merit
brief on his behalf. The brief included three assignments of error that only pertained to the
merits of the direct appeal—it did not address whether Sweeney’s prior appellate counsel
had provided ineffective assistance. Guided by the Supreme Court of Ohio’s concurring
opinion in State v. Clark, 2025-Ohio-4410, we ordered Sweeney’s counsel to file a
supplemental brief addressing that issue. Sweeney’s counsel thereafter filed a supplemental
brief that raised the issue of ineffective assistance of appellate counsel. The State did not
file a response. The matter is now ripe for consideration.
{¶ 8} We first address Sweeney’s three assignments of error and then address his
ineffective-assistance-of-appellate-counsel claim.
4 First Assignment of Error
{¶ 9} Under his first assignment of error, Sweeney claims that the trial court
improperly relied on R.C. 2925.51 when it permitted the BCI laboratory to be admitted at
trial. Specifically, Sweeney claims that the BCI laboratory report and the associated
testimony given by Detective Moody should not have been admitted because the State did
not comply with all the requirements of R.C. 2925.51. We agree.
{¶ 10} “Under R.C. 2925.51(A), in any criminal prosecution for a violation of Chapters
2925 (‘Drug Offenses’) or 3719 (‘Controlled Substances’), a qualifying laboratory report
stating that the substance that is the basis of the alleged offense has been weighed and
analyzed and stating the findings as to the content, weight, and identity of the substance,
and that it contains any amount of a controlled substance and the number and description
of unit dosages, is admissible at trial as prima-facie evidence of the content, identity, and
weight or the existence and number of unit dosages of the substance so long as the
prosecuting attorney serves a copy of the report on the accused beforehand.” State v.
Bennett, 2024-Ohio-4557, ¶ 44 (4th Dist.).
{¶ 11} “The report shall not be prima-facie evidence of the contents, identity, and
weight or the existence and number of unit dosages of the substance if the accused or the
accused’s attorney demands the testimony of the person signing the report, by serving the
demand upon the prosecuting attorney within seven days from the accused or the accused’s
attorney’s receipt of the report.” R.C. 2925.51(C).
{¶ 12} “When the state has complied with its obligations under R.C. 2925.51, a
defendant’s failure to use the procedures of R.C. 2925.51(C) to demand that a laboratory
analyst testify constitutes a waiver of the opportunity to cross-examine the analyst at trial
5 and allows the analyst’s report to be admitted as prima facie evidence of the test results.”
(Emphasis added.) State v. Pasqualone, 2009-Ohio-315, paragraph two of the syllabus.
{¶ 13} One of the State’s obligations under R.C. 2925.51 is to serve the laboratory
report on the accused or the accused’s attorney prior to any proceeding in which the report
is to be used against the accused, with the exception of preliminary hearings and grand jury
proceedings. R.C. 2925.51(B). In addition, the State must ensure that the laboratory report
contains a “notice of the right of the accused to demand, and the manner in which the
accused shall demand, the testimony of the person signing the report.” R.C. 2925.51(D).
The State must also attach the following statements to the laboratory report:
[A] copy of a notarized statement by the signer of the report giving the name
of the signer and stating that the signer is an employee of the laboratory
issuing the report and that performing the analysis is a part of the signer’s
regular duties, and giving an outline of the signer’s education, training, and
experience for performing an analysis of materials included under this
section. The signer shall attest that scientifically accepted tests were
performed with due caution, and that the evidence was handled in
accordance with established and accepted procedures while in the custody
of the laboratory.
R.C. 2925.51(A).
{¶ 14} “It has generally been held that the state must strictly comply with R.C. 2925.51
in order to have lab reports admitted as prima facie evidence.” State v. Davis, 2007-Ohio-
7216, ¶ 55 (7th Dist.), citing State v. Smith, 2006-Ohio-1661, ¶ 20 (3d Dist.), and State v.
Bethel, 2002-Ohio-5437, ¶ 9 (5th Dist.) (“[f]ailure to include all information specified in the
statute renders the report inadmissible at trial for failure to comply with the statute”). See
6 also City of Kettering v. Maston, 2018-Ohio-1948, ¶ 34-35 (2d Dist.) (finding that the trial
court erred by allowing the State to use a laboratory report as prima facie evidence of the
content of alleged Xanax pills where “the State did not satisfy all the statutory prerequisites
for using the report at trial”).
{¶ 15} In this case, Sweeney claims that the BCI laboratory report that was admitted
into evidence during his trial did not meet the requirements of R.C. 2925.51 and therefore
should not have been admitted as prima facie evidence of the content, identity, and weight
of the controlled substance that he was convicted of possessing. We note that Sweeney’s
argument must be reviewed for plain error because Sweeney did not object to the admission
of the BCI laboratory report or the trial court’s application of R.C. 2925.51. Plain error occurs
when there is an obvious defect in the proceedings that affected the outcome of trial. State
v. Rodgers, 2015-Ohio-2459, ¶ 22.
{¶ 16} The record establishes that the BCI laboratory report at issue was provided to
Sweeney prior to trial as required by R.C. 2925.51(B) and that the report was prepared by a
forensic scientist named Megan M. Snyder. The BCI laboratory report, however, did not
include a notarized statement by Snyder that attested to her qualifications or the testing
process that she had used on the methamphetamine. It also did not include any notice of
Sweeney’s right to demand Snyder’s testimony. Therefore, the record indicates that the BCI
laboratory report did not satisfy the requirements of R.C. 2925.51(A) or (D). Because of this,
the trial court erred by allowing the BCI laboratory report to be admitted as prima facie
evidence of the content, identity, and weight of the methamphetamine. Either Snyder’s
testimony or a stipulation as to the laboratory report’s authenticity was required for the report
to be properly admitted as evidence. Because neither of those things happened, the
admission of the BCI laboratory report was an obvious defect in the proceedings.
7 {¶ 17} In proceeding with a plain error analysis, we must now determine whether the
aforementioned defect affected the outcome of Sweeney’s trial. Sweeney argues that the
improper admission of the BCI laboratory report impacted the outcome of his trial because,
without the lab report, there would have been insufficient evidence to convict him of
aggravated possession of drugs. Upon review, we agree with Sweeney.
{¶ 18} To establish that Sweeney was guilty of aggravated possession of drugs, the
State had to prove that Sweeney “knowingly obtain[ed], possess[ed], or us[ed] a controlled
substance or a controlled substance analog.” R.C. 2925.11(A). “‘Controlled substance’
means a drug, compound, mixture, preparation, or substance included in schedule I, II, III,
IV, or V.” R.C. 3719.01(C); R.C. 2925.01(A). “Failure to prove that the substance is a
‘controlled substance’ is fatal to the prosecution.” State v. Jack, 2012-Ohio-2131, ¶ 19
(3d Dist.).
{¶ 19} In this case, the BCI laboratory report was the only evidence that the State
presented at trial to establish that the white crystalline substance at issue was the controlled
substance methamphetamine, a schedule II drug. Although Detective Moody’s testimony
indicated that he had found and weighed the white crystalline substance, he never testified
to identifying or field testing the substance himself. Instead, Moody testified that he had sent
the suspected controlled substance to BCI’s laboratory for testing and that Sweeney’s case
was “a pending open investigation until the labs c[a]me back.” Trial Tr. 131. Therefore, had
the trial court not admitted the BCI laboratory report into evidence, there would have been
no evidence establishing that the white crystalline substance at issue was
methamphetamine, and Sweeney would have been entitled to a Crim.R. 29 acquittal for the
State’s failure to establish all elements of the charged offense. Because of this, the trial
8 court’s error in admitting the BCI laboratory report affected the outcome of Sweeney’s trial
and therefore amounts to plain error.
{¶ 20} Sweeney’s first assignment of error is sustained.
Second Assignment of Error
{¶ 21} Under his second assignment of error, Sweeney claims that his conviction for
aggravated possession of drugs was not supported by sufficient evidence because the BCI
laboratory report was inadmissible at trial.
{¶ 22} As a preliminary matter, we note that our finding that the trial court improperly
admitted the BCI laboratory report at Sweeney’s trial does not render Sweeney’s sufficiency-
of-the-evidence argument moot because “an assignment of error going to the sufficiency of
the evidence supporting a criminal count is always potentially dispositive of that count.” State
v. Gideon, 2020-Ohio-6961, ¶ 27. The Supreme Court of Ohio has held that when an
appellate court finds that the improper admission of evidence warrants the reversal of a
conviction, the appellate court errs if it thereafter refuses to address an assignment of error
challenging the sufficiency of the evidence on grounds that the sufficiency claim is moot.
State v. Brewer, 2009-Ohio-593, ¶ 7-8, citing State v. Brewer, 2007-Ohio-2079; Gideon at
¶ 28. “‘Because “the state is not entitled to retry a criminal defendant after reversal for trial
court error if the state failed in the first instance to present sufficient evidence . . . a
defendant’s assigned error that the conviction is based on insufficient evidence is not moot
under these circumstances.”’” Gideon at ¶ 27, quoting State v. Mathis, 2020-Ohio-3068, ¶ 78
(6th Dist.), quoting State v. Vanni, 2009-Ohio-2295, ¶ 15 (9th Dist.).
{¶ 23} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to the
jury or sustain the verdict as a matter of law.” State v. Wilson, 2009-Ohio-525, ¶ 10 (2d Dist.),
9 citing State v. Thompkins, 78 Ohio St.3d 380 (1997). “When reviewing a claim as to
sufficiency of evidence, the relevant inquiry is whether any rational factfinder viewing the
evidence in a light most favorable to the state could have found the essential elements of
the crime proven beyond a reasonable doubt.” State v. Dennis, 79 Ohio St.3d 421, 430
(1997). “The verdict will not be disturbed unless the appellate court finds that reasonable
minds could not reach the conclusion reached by the trier-of-fact.” Id.
{¶ 24} Although it is clear that without the improperly admitted BCI laboratory report
there would have been insufficient evidence to convict Sweeney of aggravated possession
of drugs, it is well established that “[w]hen evaluating an assignment of error challenging the
sufficiency of the evidence, a reviewing court must consider all evidence admitted at trial,
including the improperly admitted evidence that was the source of the reversal for trial error.”
(Emphasis added.) Gideon at ¶ 29, citing Brewer, 2009-Ohio-593 at ¶ 24-26. Therefore,
“appellate courts ‘must consider all of the evidence that was admitted by the trial court,
without consideration of whether any of that evidence should have been excluded.’” State v.
Bansobeza, 2025-Ohio-2704, ¶ 27 (2d Dist.), quoting State v. Blevins, 2011-Ohio-381, ¶ 7
(2d Dist.), citing Brewer.
{¶ 25} Because we must consider evidence that was improperly admitted when
reviewing a sufficiency-of-the-evidence claim, Sweeney’s sufficiency claim lacks merit given
that it is based solely on the improper admission of the BCI laboratory report. When
considering the BCI laboratory report and the trial testimony in a light most favorable to the
State, we find that reasonable minds could have concluded beyond a reasonable doubt that
Sweeney committed aggravated possession of drugs. Therefore, his conviction was
supported by sufficient evidence.
{¶ 26} Sweeney’s second assignment of error is overruled.
10 Third Assignment of Error
{¶ 27} Under his third assignment of error, Sweeney contends that his trial counsel
provided ineffective assistance by failing to object to the admission of the BCI laboratory
report. Unlike Sweeney’s sufficiency claim, our resolution of Sweeney’s first assignment
error renders his ineffective-assistance claim moot, as the claim is superfluous and has no
practical, legal significance given our finding that the trial court committed plain error by
admitting the BCI laboratory report into evidence. Therefore, pursuant to App.R. 12(A)(1)(c),
we need not address Sweeney’s ineffective-assistance claim.
{¶ 28} Sweeney’s third assignment of error is overruled as moot.
Ineffective Assistance of Appellate Counsel
{¶ 29} As previously discussed, Sweeney “must establish not only that [his] direct
appeal was meritorious but also that [his] appeal failed because of the ineffective assistance
of appellate counsel.” Clark, 2025-Ohio-4410 at ¶ 19. In his supplemental brief, Sweeney
claims that his prior appellate counsel provided ineffective assistance by failing to raise in
his direct appeal the three assignments of error discussed herein.
{¶ 30} A claim of ineffective assistance of appellate counsel is judged using the two-
part test in Strickland v. Washington, 466 U.S. 668 (1984). Id. at ¶ 19. “Under Strickland, an
applicant must show that (1) counsel’s performance was objectively unreasonable, . . . and
(2) there is ‘a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Id. at ¶ 20, quoting Strickland at 694.
{¶ 31} “Counsel’s performance is objectively unreasonable if ‘counsel unreasonably
failed to discover nonfrivolous issues and to file a merits brief raising them.’” State v.
Johnson, 2025-Ohio-3137, ¶ 26 (4th Dist.), quoting Smith v. Robbins , 528 U.S. 259, 285
(2000), and State v. Simpson, 2020-Ohio-6719, ¶ 22. “‘A reasonable probability’ that the
11 result would have been different but for the unprofessional errors ‘is a probability sufficient
to undermine confidence in the outcome.’” Clark at ¶ 20, quoting Strickland at 694. In other
words, counsel’s deficient performance must have prejudicially affected the outcome of the
appeal. Id.
{¶ 32} In this case, Sweeney’s prior appellate counsel failed to discover nonfrivolous
issues pertaining to the admissibility of the BCI laboratory report. As previously discussed,
the State did not comply with the requirements of R.C. 2925.51 and therefore should not
have been allowed to submit the BCI laboratory report as prima facie evidence of the
content, identity, and weight of the controlled substance that Sweeney was charged with
possessing. The inadmissible laboratory report was the only evidence that established the
substance at issue was a controlled substance—an essential element of the charged
offense. Had prior appellate counsel argued that the trial court committed plain error by
admitting the laboratory report, the outcome of Sweeney’s appeal would have been different.
His conviction for aggravated possession of drugs would have been reversed, and his case
would have been remanded for a new trial.
{¶ 33} For the foregoing reasons, we find that Sweeney has established that the
performance of his prior appellate counsel was objectively unreasonable and that the
performance prejudicially affected the outcome of his appeal. Sweeney, therefore, has
established ineffective assistance of appellate counsel as required by App.R. 26(B).
{¶ 34} Sweeney’s ineffective-assistance-of-appellate-counsel claim is sustained.
Conclusion
{¶ 35} Having sustained Sweeney’s first assignment of error and his ineffective-
assistance-of-appellate-counsel claim, and having overruled his second and third
assignments of error, pursuant to App.R. 26(B)(9), our prior judgment affirming Sweeney’s
12 conviction for aggravated possession of drugs is vacated, Sweeney’s judgment of conviction
is reversed, and the matter is remanded to the trial court for a new trial.
.............
EPLEY, P.J., concurs.
HUFFMAN, J., dissents:
{¶ 36} I respectfully dissent, as in a prior order the majority sua sponte violated one
of the basic tenants of appellate practice by inviting appellant to file a supplemental brief
arguing issues suggested by the majority. Thus, this court should have rendered a decision
on the original briefs. In ignoring the party presentation rule, the majority inappropriately
injected itself into the arguments and effectively became an advocate for a party, rather than
embracing the role of neutral arbiter that is assigned to courts.
{¶ 37} “‘In our adversary system, in both civil and criminal cases, in the first instance
and on appeal, we follow the principle of party presentation.’” Schindler v. Cornett, 2014-
Ohio-3352, ¶ 36 (2d Dist.), quoting Greenlaw v. U.S., 554 U.S. 237, 243-244 (2008). “Under
the principle of party presentation, ‘we rely on the parties to frame the issues for decision
and assign to courts the role of neutral arbiter of matters the parties present.’” Snyder v. Old
World Classics, L.L.C., 2025-Ohio-1875, ¶ 4, quoting Greenlaw at 243. In other words, our
justice system relies on the party presentation rule to maintain the clearly defined role of the
court. In my view, the majority, in ordering supplemental briefing, set an undesirable and
perhaps dangerous precedent that compromises the fairness and the integrity of the judicial
process contrary to the foundational principles of the separate and distinct roles of counsel
and the court.