[Cite as State v. Tumblin, 2023-Ohio-4099.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 2023CA0013 BRAYDEN J. TUMBLIN : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Case No. 2022CR0044
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 14, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KATELYNN R. DAVID RICHARD D. HIXON Assistant Prosecutor 3808 James Court 318 Chestnut Street Suite 2 Coshocton, OH 43812 Zanesville, OH 43701 Coshocton County, Case No. 2023CA0013 2
Gwin, P.J.
{¶1} Defendant-appellant Brayden J. Tumblin [“Tumblin”] appeals his conviction
and sentence after a jury trial in the Coshocton County Court of Common Pleas.
Facts and Procedural History
{¶2} On March 21, 2022, Tumblin was indicted with one count of Aggravated
Trafficking in Drugs, methamphetamine, within the vicinity of a juvenile in an amount
equal to or greater than the bulk amount but less than five times the bulk amount in
violation of R.C. 2925.03(A)(2), a felony of the second degree.
{¶3} On April 8, 2022, Tumblin filed a Motion to Suppress. On May 10, 2022,
an oral hearing was held on Tumblin’s Motion to Suppress. By Judgment Entry filed
May 13, 2022, the trial judge overruled the motion.
{¶4} A change of plea hearing was held on June 13, 2022. Tumblin was
present with counsel. The state informed the trial judge Tumblin was going to plead
guilty to the single count as it is contained in the indictment. In exchange, the state
would not oppose a pre-sentence investigation and would take no position on
sentencing.
{¶5} Tumblin pled guilty to aggravated trafficking in drugs as alleged in the
Indictment. A pre-sentence investigation was ordered and the sentencing hearing
was deferred until completion of the report. A sentencing hearing was scheduled for
July 12, 2022; however, that hearing was rescheduled for July 25, 2022.
{¶6} On July 22, 2022, Tumblin filed a motion to withdraw his guilty plea prior
to sentencing. [Docket Entry No. 52]. By Judgement Entry filed August 12, 2022, the Coshocton County, Case No. 2023CA0013 3
trial judge granted Tumblin’s motion to withdraw his plea of guilty. [Docket Entry No.
56].
{¶7} Tumblin filed a Motion in Limine on February 15, 2023. On March 2,
2023, the trial judge filed a Judgment Entry granting the motion. The judge ordered
that the state exclude and/or redact references to Tumblin’s prior convictions for theft
offenses and his social security number.
{¶8} On March 7, 2022, Tumblin filed a second Motion in Limine to exclude
references to journal entries related to his criminal conviction in Florida and any
reference to the criminal history of Tumblin’s mother or grandmother. On March 28,
2023, preceding the start of Tumblin’s jury trial, the trial judge granted the second
motion in limine.
The jury trial
{¶9} Former Coshocton County Sheriff’s Detective Matt Woitel testified that
around 10:00 P.M. on March 2, 2022, Coshocton County law enforcement executed
multiple arrest warrants for Tumblin at the residence where he lived with his mother,
grandmother, his thirteen-year-old stepsister and his ten-year-old brother. 1T. at 110-
111.1 Woitel testified that Tumblin was the target in a drug investigation. Id. at 105.
He stated that the specific method used to target Tumblin was a new program called
“END.” Id. at 108;109. This method is designed to target those with outstanding arrest
warrants. Id. at 109. Woitel confirmed that on March 2, 2022, Tumblin had an active
arrest warrant. A search warrant was also obtained for the residence. Id. at 109.
1 For clarity, the jury trial transcript will be referred to as, “__T.__,” signifying the volume and the
page number. Coshocton County, Case No. 2023CA0013 4
{¶10} When the arrest warrants were executed, Tumblin was found upstairs in his
bedroom. Id. at 110. When Woitel entered the bedroom, he observed a substance that
was later confirmed to be methamphetamine on the bed. Id. at 112. After seeing drugs in
plain view, detectives stopped and secured the residence. Id. at 112. Woitel then obtained
a second search warrant. Id at 1122.
{¶11} Woitel further testified that Tumblin had a computer monitor at the foot of
the bed displaying video from surveillance cameras around the outside of the residence.
Id. at 115; State’s Exhibit 4. Due to his training, education, and experience, Woitel
believed this to be significant. Id. at 115. He testified that drug dealers usually have
surveillance systems where they can monitor anyone approaching the location at all
times. Id at 115. This allows them to know who is coming and going, if someone may be
coming to rob them, and if cops are raiding them. Id at 115. No additional monitors, other
than the one in Tumblin’s bedroom, were found inside the home.
{¶12} In addition to the surveillance equipment, a substance confirmed to be
methamphetamine was found on the bed. Id. at 116. There was a smoking device found
under a pillow and a chunk of methamphetamine was found on the floor behind the bed.
Id at 116; State’s Exhibit 6; State’s Exhibit 17. Three digital scales of differing size were
also taken as evidence. 1T. at 121; State’s Exhibits 8, 9 and 10. State’s Exhibit 11 was
identified as five scale calibration weights each weighing 100 grams. Id. at 123-124.
State’s Exhibit 12 was identified as two clear plastic baggies, one of which contained a
white residue. Id. at 124. State’s Exhibit 13 was identified as a small, black, plastic baggie.
2 The first search warrant was to look for Tumblin at the residence for the arrest warrants. T., Motion
to Suppress, May 10, 2022 at 11. It was found invalid as it had the incorrect name and address. Id. at 11. The second search warrant was for drugs and drug related items. 1T. at 113. Coshocton County, Case No. 2023CA0013 5
Id. at 125. State’s Exhibit 14 was identified as a plastic container with an orange lid that
says "cookies" with a white residue inside. Id. at 125.
{¶13} On March 8, 2022, Woitel interviewed Tumblin at the Coshocton County
Sheriff’s office. Id. at 130. State's Exhibit 18 was a video of the interview that was played
for the jury. Tumblin told the detective that the drugs found were for his personal use. 1T.
at 135. Tumblin told the detective that he “smoked a lot.” Id. at 151. Tumblin said he had
not sold drugs recently, but he had sold to a couple of friends a month or two ago. 1T. at
136; 143. He only ever sold to two people. 1T. at 153. Tumblin said he had the scales
and calibration weights because people try to rip you off when you purchase
methamphetamines. Id. at 142; 144. Further, the security cameras were for protection
from people vandalizing cars. 1T. at 146. Tumblin said he got the money to buy the drugs
found in his room from his tax refund and landscaping work. Id. at 154-156. Tumblin was
found with forty dollars in cash. Id. at 179. Tumblin discussed with law enforcement his
“CashApp” transactions and Facebook Messenger communications, which showed no
evidence that he was selling drugs, only buying them. Id. at 179-189.
{¶14} Ashley Nutter is a forensic scientist at the Central Ohio Regional Crime Lab.
2T. at 230. She is the primary drug chemist for the lab. Id. at 230. Ms. Nutter’s confirmed
that States Exhibit 7 was the substance that she tested and confirmed to be
methamphetamine. Id. at 238, 239. She identified States Exhibit 20 as the lab report for
this matter. Id. at 240. Ms. Nutter’s then testified that methamphetamine is a Schedule II
controlled substance. Id at 242. She further testified that the "bulk amount" for
methamphetamine is 3 grams and that the drugs found in Tumblin’s bedroom weighed
10.9 grams. Id. at 242-243. Coshocton County, Case No. 2023CA0013 6
{¶15} At the close of the evidence, defense counsel informed the trial judge that
“he did not intend to make a motion for judgment of acquittal pursuant to Criminal Rule
29.” 2T. at 245. Counsel explained that the case turns on circumstantial evidence and the
case “needs to be submitted to the jury because we are dealing with circumstantial
evidence and not necessarily a missing element of an offense.” Id. at 245-246.
{¶16} After being instructed by the trial judge, the jury found Tumblin guilty of
aggravated trafficking in an amount equal to or exceeding bulk amount but less than five
times bulk amount, and that Tumblin committed the offence in the vicinity of a juvenile, in
violation of R.C. 2925.03(A)(2) and (C)(1)(c), a felony of the second degree as set forth
in Count 1 of the indictment. Id. at 290. The court sentenced Tumblin to an indefinite
sentence with a mandatory minimum term of eight years and a maximum term of twelve
years.
{¶17} On April 4, 2023, Tumblin filed a Motion for Judgement of Acquittal Pursuant
to Crim.R. 29(C). The trial judge denied the motion on April 20, 2023.
Assignments of Error
{¶18} Tumblin raises three Assignments of Error,
{¶19} “I. THE JURY AND TRIAL COURT ERRED, RESPECTIVELY, BY
RETURNING A VERDICT OF GUILTY AND DENYING APPELLANT'S CRIM. R. 29
MOTION, AS INSUFFICIENT EVIDENCE WAS PRESENTED TO SUSTAIN A
CONVICTION FOR AGGRAVATED TRAFFICKING IN DRUGS UNDER R.C.
2925.03(A)(2)/(C)(1).
{¶20} “II. DEFENDANT/APPELLANT’S MOTION TO SUPPRESS WAS
IMPROPERLY DENIED, AS THE EVIDENCE PRESENTED SHOWED THAT THE Coshocton County, Case No. 2023CA0013 7
ARRESTING OFFICER(S) FAILED TO ABIDE BY THE REQUIREMENTS OF R.C.
2935.12 GOVERNING NONCONSENSUAL ENTRY WHEN EXECUTING THE ARREST
WARRANT.
{¶21} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT DENIED DEFENDANT/APPELLANT’S CHALLENGE FOR CAUSE AS TO A JUROR
WHO EXPRESSLY STATED THEIR ACTUAL BIAS TO THE COURT, RESULTING IN
THE EMPANELING OF A BIASED JUROR, TO THE PREJUDICE OF
DEFENDANT/APPELLANT AND IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF
LAW.”
I.
{¶22} In his First Assignment of Error, Tumblin argues the evidence was
insufficient to prove beyond a reasonable doubt that he engaged in aggravated trafficking
in drugs.
Standard of Appellate Review– Sufficiency of the Evidence.
{¶23} The Sixth Amendment provides, “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 577 U.S. 92,
136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence
involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio
St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30; State v. Jordan, Slip Op. No. 2023-
Ohio-3800, ¶13. “This naturally entails a review of the elements of the charged offense Coshocton County, Case No. 2023CA0013 8
and a review of the state's evidence.” State v. Richardson, 150 Ohio St.3d 554, 2016-
Ohio-8448, 84 N.E.3d 993, ¶13.
{¶24} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997); Walker, 150 Ohio St.3d at ¶30. “The relevant inquiry is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond a reasonable
doubt.” Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474,
2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not
second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed,
[the evidence] would convince the average mind of the defendant's guilt beyond a
reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001),
quoting Jenks at paragraph two of the syllabus; Walker 150 Ohio St.3d at ¶31. We will
not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could
not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d
70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421,
430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-
5487, 71 N.E.3d 180, ¶74.
Issue for Appellate Review: Whether, after viewing the evidence in the light
most favorable to the prosecution, the evidence, if believed, would convince the Coshocton County, Case No. 2023CA0013 9
average mind that Tumblin was guilty beyond a reasonable doubt of Aggravated
Trafficking in Drugs in violation of R.C. 2925.03(A)(2)/ (C)(1)(c)
{¶25} Tumblin does not challenge either the identity of the drugs as
methamphetamines, a Schedule II drug, or the weight of drugs found as bulk amount but
less than five times bulk amount. Further, Tumblin does not challenge the jury’s finding
that the offense was committed in the vicinity of a juvenile, i.e. his ten-year-old brother
and thirteen-year-old step-sister. Rather, Tumblin contends, “Without evidence of any
sort of overt act taken to ship, prepare for shipment, transport, deliver, prepare for
distribution, or distribute the drugs, there is insufficient evidence to sustain a conviction
for drug trafficking, even if the amount possessed is large.” [Appellant’s brief at 11].
{¶26} Tumblin was convicted of Aggravated trafficking in drugs. R.C.
2925.03(A)(2) provides in relevant part,
(A) No person shall knowingly do any of the following:
***
(2) Prepare for shipment, ship, transport, deliver, prepare for
distribution, or distribute a controlled substance or a controlled substance
analog, when the offender knows or has reasonable cause to believe that
the controlled substance or a controlled substance analog is intended for
sale or resale by the offender or another person.
{¶27} R.C. 2901.22 defines “knowingly” as follows:
(B) A person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or will probably Coshocton County, Case No. 2023CA0013 10
be of a certain nature. A person has knowledge of circumstances when he
is aware that such circumstances probably exist.
{¶28} Whether a person acts knowingly can only be determined, absent a
defendant’s admission, from all the surrounding facts and circumstances, including the
doing of the act itself.” State v. Johnson, 56 Ohio St.3d 35, 38,381 N.E.2d 637(1978)
citing State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313(1936): State v. Rojas, 64 Ohio
St.3d 131, 139, 592 N.E.2d 1376(1992); State v. Huff, 145 Ohio App.3d 555, 563, 763
N.E.2d 695(1st Dist. 2001). (Footnote omitted.) Thus, “[t]he tests for whether a defendant
acted knowingly is a subjective one, but it is decided on objective criteria.” Id. citing State
v. Adams, 4th Dist. Ross No. 94 CA 2041, 1995 WL 360247(June 8, 1995) and State v.
Paidousis, 10th Dist. Franklin No. 00AP–118, 2001 WL 436079 (May 1, 2001). See also,
State v. Butler, 5th Dist. Holmes No. 2012–CA–7, 2012–Ohio–5030, ¶ 25.
{¶29} Circumstantial evidence is that which can be “inferred from reasonably and
justifiably connected facts.” State v. Fairbanks, 32 Ohio St.2d 34, 289 N.E.2d 352 (1972),
paragraph five of the syllabus. Circumstantial evidence inherently possesses the same
probative value as direct evidence. State v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d 293
(1990); see also State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001);
Hinerman v. Grill on Twenty First, L.L.C., 5th Dist. Licking No. 2020 CA 00054, 2021-
Ohio-859, 2021 WL 1045729, ¶ 88. Moreover, “[a] conviction can be sustained based on
circumstantial evidence alone.” State v. Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1
(1991).
{¶30} Lay witness testimony of a police officer is admissible under Evid.R 701
where the officer based his opinion on his police training and experience. Further, his Coshocton County, Case No. 2023CA0013 11
opinion can be helpful to the trier-of-fact in determining whether the drugs were for sale
or personal use. State v. McClain, 6th Dist. Lucas No. L-10-1088, 2012-Ohio 5264, ¶13;
State v. Walker, 11th Dist. Lake Nos. 2022-L-077, 2022-L-078, 2023-Ohio-1949, ¶39;
Law-enforcement officers are “routinely allowed to testify that circumstances are
consistent with [the] distribution of drugs rather than personal use.” United States v.
Swafford, 385 F.3d 1026, 1030 (6th Cir. 2004) (collecting cases).
{¶31} Former Detective Woitel testified that based upon his training and
experience surveillance cameras and monitors are used by individuals who sell drugs, as
opposed to individuals who merely use drugs. 1T. at 115-116. He further testified that he
found in the bedroom not one, but three digital scales of differing sizes. Id. at 121-122;
State’s Exhibits 8, 9 and 10. Woitel testified that drug dealers used such scales to weigh
the product before selling it because it is more accurate than merely “eyeballing the
amount.” Id. In that way, the seller will not lose money by selling too much. Id. The former
detective found Ziplock bags with weights to calibrate the scales. 1T. at 123-124. Two
plastic bags with white residue were also recovered. Id. at 124; State’s Exhibit 12. The
former detective testified that such bags can be used to put drugs in for resale. Id. at 125.
The former detective further testified that based upon his training and experience a user
generally buys around 3.5 grams of methamphetamine at an average cost of $40.00. 2T.
at 192-193. Tumblin had close to 11 grams in his possession. Id. at 193. He noted that
sellers will take that amount and try to sell off some of it to make money. Id. at 198.
{¶32} In summary, based upon his training and experience, Woitel testified that
the amount of drugs recovered, the scales the baggies and other containers would
indicate drug trafficking as opposed to possession. Id. at 128-129. Coshocton County, Case No. 2023CA0013 12
{¶33} Plastic baggies, digital scales, and video surveillance are often used in drug
trafficking which could constitute circumstantial evidence that Tumblin was using these
items to commit that crime. See, State v. Cutlip, 7th Dist. Belmont No. 21 BE 0032, 2022-
Ohio-3524, ¶101; State v. Kent, 8th Dist. Cuyahoga No. 109118, 2022-Ohio-834, ¶49;
State v. Malott, 12th Dist. Nos. CA2007-02-006, CA2007-02-007, CA2007-02-008, 2008-
Ohio-2114, ¶20; State v. Fain, 5th Dist. Delaware No. 06 CAA 20094, 2007-Ohio-4854,
¶38. The state presented evidence that in his interview with Woitel, Tumblin admitted to
selling methamphetamines to friends around two months ago. 1T. at 143.
{¶34} Viewing this evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Tumblin was guilty of aggravated trafficking in drugs in the vicinity of a juvenile, in an
amount equaling or exceeding bulk amount but less than five times the bulk amount. We
hold, therefore, that the state met its burden of production regarding each element of the
crime and, accordingly, there was sufficient evidence to support Tumblin’s conviction.
{¶35} When reviewing a challenge to the sufficiency of the evidence, we do not
weigh the credibility of the evidence. State v. Jordan, Slip Op. No. 2023-Ohio-3800, ¶18.
Because the trier of fact “is best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of
proffered testimony,” a jury may rely on circumstantial evidence to reasonably infer an
offender’s knowledge. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1984); see generally Rehaif v. United States, 588 U.S. ––––, ––––, 139
S.Ct. 2191, 2198, 204 L.Ed.2d 594 (2019); State v. Jordan, Slip Op. No. 2023-Ohio-3800,
¶26. Coshocton County, Case No. 2023CA0013 13
{¶36} Tumblin’s First Assignment of Error is overruled.
II.
{¶37} In his Second Assignment of Error, Tumblin argues the trial court erred in
overruling his motion to suppress. Specifically, Tumblin contends that the officers failed
to abide by R.C. 2935.12 when attempting to serve the arrest warrants and entered his
home without consent and forcefully against warrant requirements.
Standard of Appellate Review
{¶38} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;
State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing
court must defer to the trial court's factual findings if competent, credible evidence exists
to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio
App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142,
675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as
true, it must independently determine as a matter of law whether the trial court met the
applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio
App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534
U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,
116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial
court's findings of fact is subject to a de novo standard of review Ornelas, supra. Coshocton County, Case No. 2023CA0013 14
Moreover, due weight should be given “to inferences drawn from those facts by resident
judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.
Issue for Appellate Review: Whether the judge correctly found the entry in this
case was not a forceable entry
{¶39} The only witness to testify during the May 10, 2022 hearing on Tumblin’s
motion to suppress was Detective Mat Woitel. Detective Woitel testified that on March 2,
2022 he had three active arrest warrants from the Coshocton Municipal Court for Tumblin.
T. May 10, 2022 Suppression Hearing at 6. Detectives went to the front door of the
residence where Tumblin lived with his mother, grandmother, thirteen-year-old step-sister
and ten-year-old brother. Id. at 6; 13. The detectives knocked and announced “sheriff’s
office.” Id at 13. The door was ajar and swung open, so the detectives stepped inside. Id.
They again announced, “sheriff’s office.” Id. The detectives were met by Tumblin’s mother
and grandmother. Id. Tumblin’s grandmother told the detectives that Tumblin was not
home; however, Tumblin’s mother stated that Tumblin was upstairs. Id. at 16-17. No
evidence was presented that either Tumblin’s mother or grandmother refused the
detectives admittance or ask them to leave the home.
{¶40} R.C. 2935.12 Forcible entry in making arrest; execution of search warrant
provides,
(A) When making an arrest or executing an arrest warrant or
summons in lieu of an arrest warrant, or when executing a search warrant,
the peace officer, law enforcement officer, or other authorized individual
making the arrest or executing the warrant or summons may break down
an outer or inner door or window of a dwelling house or other building, if, Coshocton County, Case No. 2023CA0013 15
after notice of his intention to make the arrest or to execute the warrant or
summons, he is refused admittance, but the law enforcement officer or other
authorized individual executing a search warrant shall not enter a house or
building not described in the warrant.
{¶41} R.C. 2935.12 applies only if law enforcement officials break down a door to
enter. State v. Baker, 87 Ohio App.3d 186, 193, 621 N.E.2d 1347(1st Dist. 1993). The
statute involves violent, forcible entry. State v. Applebury, 34 Ohio App.3d 376, 378, 518
N.E.2d 977 (1st Dist. 1987). Accord, State v. Campana, 112 Ohio App.3d 297, 302, 678
N.E.2d 626(11th Dist. 1996) (“In this case, the officers knocked and then walked into the
workshop through an unlocked door that was ajar. In that they did not have to break down
the door or break a window to effectuate the arrest, R.C. 2935.12 is inapplicable to this
case.”); State v. Gibson, 164 Ohio App.3d 558, 2005-Ohio-6380, 843 N.E.2d 224(4th
Dist.), ¶14(“In light of the foregoing, we find that the trial court did not err in finding that
R.C. 2935.12 is inapplicable to the present set of facts, where the deputies entered the
home through an open door without the use of force.”).
{¶42} Tumblin did not challenge the validity of the arrest warrants or the fact that
he lived at the residence in the trial court or in this Court. “[F]or Fourth Amendment
purposes, an arrest warrant founded on probable cause implicitly carries with it the limited
authority to enter a dwelling in which the suspect lives when there is reason to believe the
suspect is within.” Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d
639 (1980); State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶78;
State v. Justice, 5th Dist. Fairfield No. 10 CA 41, 2011-Ohio-4004, ¶26. Coshocton County, Case No. 2023CA0013 16
{¶43} In the case at bar, the uncontroverted evidence established that Tumblin
lived at the residence, the officers had three active warrants to arrest Tumblin and no
force was used to enter the home. Accordingly, the trial court correctly overruled
Thumblin’s motion to suppress.
{¶44} Tumblin’s Second Assignment of Error is overruled.
III.
{¶45} In his Third Assignment of Error, Tumblin argues that the trial Court
"abused its discretion" by empaneling a biased juror. Specifically, Tumblin argues that
Juror Number 8, L.C., expressed bias toward law enforcement and the State of Ohio.
{¶46} “If the trial court erroneously overrules a challenge for cause, the error is
prejudicial only if the accused eliminates the challenged venireman with a peremptory
challenge and exhausts his peremptory challenges before the full jury is seated. State v.
Eaton (1969), 19 Ohio St.2d 145, 48 O.O.2d 188, 249 N.E.2d 897, paragraph one of the
syllabus, death penalty vacated (1972), 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750.”
State v. Tyler, 50 Ohio St.3d 24, 31, 553 N.E.2d 576(1990), superseded by constitutional
amendment as stated in State v. Smith, Ohio, 80 Ohio St.3d 89, 103, 684 N.E.2d 668, n.
4.
{¶47} A trial court’s ruling on a challenge for cause will not be disturbed on appeal
unless it is manifestly arbitrary and unsupported by substantial testimony, so as to
constitute an abuse of discretion. State v. Wilson, 29 Ohio St.2d 203, 211, 280 N.E.2d
915, 920(1972); State v. Prez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104,
¶140; State v. Tyler, 50 Ohio St.3d 24, 31. Coshocton County, Case No. 2023CA0013 17
Issue for Appellate Review: Whether the trial court abused its discretion by
overruling Tumblin’s challenge for cause of Juror No. 8.
{¶48} Thumblin’s assignment of error centers upon the following exchange that
occurred during voir dire,
MR. CROSS: Ms. Colvin, I saw you nodding your head. So, you have
a relative in law enforcement.
[Juror No. 8]: I just have my one son is a private investigator, but he
lives in New Mexico.
MR. CROSS: Okay.
[Juror No. 8]: And then my one son lives in South Carolina, and he
is a paramedic for the SWAT team.
MR. CROSS: Private investigator in New Mexico?
[Juror No. 8]: Um-huh.
MR. CROSS: Probably a lot of cartel stuff?
MR. CROSS: Methamphetamines?
MR. CROSS: Make sure you answer just because we are doing a
recording.
[Juror No. 8]: Okay. Yes.
MR. CROSS: Make sure you answer "yes" or "no".
[Juror No. 8]: Yes. Coshocton County, Case No. 2023CA0013 18
MR. CROSS: Does that cause you some issues with this case, some
bias issues potentially?
[Juror No. 8]: Yes.
MR. CROSS: Okay. Do you believe you could be fair and impartial?
[Juror No. 8]: I can try. I mean, like she [referring to Juror No. 7]
said, back the blue.
MR. CROSS: You back the blue?
[Juror No. 8]: Yes. 100 percent.
MR. CROSS: So, if two witnesses were at odds, law enforcement
and an ordinary citizen, would you believe law enforcement over the
ordinary citizen.
1T. at 46-47. Tumblin’s challenge for cause was overruled. Id. at 54-56. The trial judge
reasoned,
I don’t believe that she expressed a bias that would keep her from
viewing the evidence objectively. And nobody ever defined what “back the
blue” means, to be quite frank. It might mean that they are happy to have
them respond to a call for service. They might feel differently when they look
in their rear-view mirror and see a cruiser right behind them while they’re
driving and have to check their speed limit. I’m not sure exactly what “back
the blue” means at this point.
1T. at 55-56. Tumblin excused Juror Number 8 with a preemptory challenge. Id. at 60.
Tumblin exhausted all four of his preemptory challenges. 1T. at 60; 61; 65; and 66. Coshocton County, Case No. 2023CA0013 19
{¶49} It is well settled that the Sixth and Fourteenth Amendments guarantee a
defendant on trial the right to an impartial jury. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct.
844, 83 L.Ed.2d 841 (1985); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6
L.Ed.2d 751 (1961); Ross v. Oklahoma, 487 U.S. 81, 85, 108 S.Ct. 2273; 101 L.Ed.2d
80(1988). Case authority generally addresses the issue of a denial of the defendant’s
challenge for cause of a prospective juror at two levels, commencing with potential
constitutional violations involving the sixth and fourteenth amendments, and concluding
with an examination of whether the trial court otherwise abused its discretion pursuant to
state standards. State v. Bell, 3rd Dist. Marion No. 9-90-79, 1991 WL 71926(1991).
{¶50} In State v. Broom, 40 Ohio St.3d 277, 533 N.E.2d 682(1988), the Ohio
Supreme Court in following the decisions of the United States Supreme Court in Gray v.
Mississippi, 481 U.S. 648, 665, 107 S.Ct. 2045, 95 L.Ed.2d 622(1987) and Ross v.
Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) stated:
The relevant inquiry in this situation is ‘whether the composition of
the jury panel as a whole could possibly have been affected by the trial
court’s error.’ [Emphasis included.] [Citations omitted.]
* * * any claim that the jury was not impartial is not focused on the
juror excused by the exercise of the peremptory challenge, but rather is
focused on the jurors who ultimately sat. Therefore, in order to state a
constitutional violation in this situation, the defendant must use all of his
peremptory challenges and demonstrate that one of the jurors seated was
not impartial. Unless a juror is challenged for cause, he is presumed to be
impartial. Even if the court erred in denying the appellant’s motion, appellant Coshocton County, Case No. 2023CA0013 20
has not been denied a right to an impartial jury, nor has he been deprived
of his right to due process in this context by being ‘forced’ to use a
peremptory challenge.” (Emphasis added.)
State v. Broom, 40 Ohio St.3d at 287-288; State v. Bell, 3rd Dist. Marion No. 9-90-79,
1991 WL 71926(1991).
{¶51} We note that Tumblin used a peremptory challenge to excuse Juror Number
8. 1T. at 60. Tumblin’s challenge for cause of Juror J.M.R. was likewise overruled3. 1T.
at 56-57. Tumblin used a preemptory challenge to remove Juror J.M.R. 1T. at 61. We
further note that Juror Number 7, K.C., was excused upon a “stipulated challenge for
cause.” 1T. at 54. No further challenges for caused were raised. None of the prospective
jurors Tumblin challenged for cause were ultimately seated on the jury. Thus, while
Tumblin did use all of his peremptory challenges, he is unable to demonstrate that any
one of the jurors seated was less than impartial. He has therefore failed to state a
constitutional violation. State v. Broom, 40 Ohio St.3d 277, 288, 533 N.E.2d 682, 695
(1988); State v. Tyler, 50 Ohio St.3d 24, 31, 553 N.E.2d 576(1990), superseded by
constitutional amendment as stated in State v. Smith, Ohio, 80 Ohio St.3d 89, 103, 684
N.E.2d 668, n. 4. That said, we turn to his state-law claims.
{¶52} Crim.R. 24 states, in relevant part,
(C) Challenge for Cause. A person called as a juror may be
challenged for the following causes:
(9) That the juror is possessed of a state of mind evincing enmity or
3 Tumblin does not challenge the trial judge’s denial of his challenge for case with respect to Juror
J.M.R. in this appeal. Coshocton County, Case No. 2023CA0013 21
bias toward the defendant or the state; but no person summoned as a juror
shall be disqualified by reason of a previously formed or expressed opinion
with reference to the guilt or innocence of the accused, if the court is
satisfied, from the examination of the juror or from other evidence, that the
juror will render an impartial verdict according to the law and the evidence
submitted to the jury at the trial.
(14) That the juror is otherwise unsuitable for any other cause to
serve as a juror.
See also, R.C. 2945.25; 2945.26.
{¶53} “A holding of implied bias to disqualify jurors because of their relationship
with the Government is no longer permissible.... Preservation of the opportunity to prove
actual bias is a guarantee of a defendant’s right to an impartial jury.” Dennis v. United
States, 339 U.S. 162, 171-172; 70 S.Ct. 519, 94 L.Ed. 734 (1950). See also Smith v.
Phillips, 455 U.S. 209, 216, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) citing Frazier v. United
States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187 (1948) and United States v. Wood, 299
U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78 (1936). To show prejudice, Tumblin “must show that
the juror was actually biased against him.” State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-
4836, 873 N.E.2d 828, ¶ 67 (emphasis in original). “Actual bias is ‘bias in fact’ – the
existence of a state of mind that leads to an inference that the person will not act with
entire impartiality.” State v. Bates, 159 Ohio St.3d 156, 2020-Ohio-634, 149 N.E.3d 475,
¶ 25, quoting United States v. Torres, 128 F.3d 38, 43 (2nd Cir. 1997). Thus, an appellant
“must prove that at least one of the jurors at his trial, because of the juror's partiality or Coshocton County, Case No. 2023CA0013 22
biases, was not ‘capable and willing to decide the case solely on the evidence’ before
that juror.” Bates at ¶ 25, quoting Smith v. Phillips, 455 U.S. 207, 217, 102 S.Ct. 940, 71
L.Ed.3d 78 (1982); State v. Knight, 6th Dist. Erie No. E-21-017, 2022-Ohio-1787, ¶ 21.
{¶54} The primary case upon which Tumblin relies is Hughes v. United States,
258 F.3d 453 (6th Cir. 2001). In Hughes, a prospective juror in a federal theft and illegal
firearm possession case told the district court during voir dire that she had a relative and
a couple of acquaintances who worked in law enforcement, and that she did not think she
could be a fair juror. The juror did not make any response to several subsequent questions
by the district court to the jury pool as a whole regarding their ability to be impartial and
fair. Neither the district court nor defense counsel further questioned the juror individually,
and defense counsel did not move to strike her, despite a request from the defendant that
he do so.
{¶55} On appeal of denial of habeas corpus after conviction, the Sixth Circuit held
that defense counsel's failure to strike the juror constituted ineffective assistance of
counsel. The court acknowledged, “A juror's express doubt as to her own impartiality on
voir dire does not necessarily entail a finding of actual bias.” Hughes, 258 F.3d at 458.
However, the court found that there was a “conspicuous lack of response, by both counsel
and the trial judge, to [the juror's] clear declaration that she did not think she could be a
fair juror.” Id. Because “key elements of juror rehabilitation and juror assurances of
impartiality” were absent in the case, the court found the juror to have been actually
biased based on her statements to the district court. Id. at 459–60. Moreover, the court
held that the district court's collective questions to the jury pool, to which the juror failed
to respond, was insufficient to rehabilitate the juror or to provide sufficient evidence of her Coshocton County, Case No. 2023CA0013 23
impartiality. Id. at 461. Finally, the court held that there can be no possible “strategic”
reason for allowing an actually-biased juror to be seated and such an error is necessarily
prejudicial, and so concluded that the defendant had received ineffective assistance of
trial counsel. Id. at 463.
{¶56} Tumblin also cites the Ohio Supreme Court case of State v. Bates, 159 Ohio
St.3d 156, 2020-Ohio-634, 149 N.E.3d 475. In Bates, the Court held that the failure to
strike a juror who admitted bias constitutes ineffective assistance of counsel. That case,
however, is readily distinguishable. The defendant in that case was black, and a
Caucasian juror revealed a blatant racial bias against black people in her jury
questionnaire. Bates at ¶ 27. Neither the court nor the parties ever questioned the juror
concerning her admitted racial bias, but she was nonetheless empaneled. Id. at ¶ 29. The
court held that defense counsel's failure to question the juror about her questionnaire was
objectively unreasonable attorney performance under Strickland and the juror's
statements demonstrated actual bias and thus prejudice. Id. at ¶ 32, 37.
{¶57} The Ohio Supreme Court has indicated that the fact that the trial court had
the opportunity to observe the demeanor of the prospective juror and evaluate firsthand
the sincerity of the responses to questions is of considerable significance in the appellate
review of these decisions. See Berk v. Matthews, 53 Ohio St.3d 161, 169, 599 N.E.2d
1301(1990); State v. Bell, 3rd Dist. Marion No. 9-90-79, 1991 WL 71926(1991); State v.
Williams, 6 Ohio St.3d 281, 288, 452 N.E.2d 1323 (1983) (Trial courts have discretion in
determining a juror’s ability to be impartial.); Wainwright v. Witt, 469 U.S. 412, 426, 105
S.Ct. 844, 83 L.Ed.2d 841(1985) (“Deference must be paid to the trial judge who sees
and hears the juror”). This court is not free to substitute its judgment for that of the trial Coshocton County, Case No. 2023CA0013 24
court. Id.
{¶58} In the case at bar, it would have been preferable if, after expressing
reservations about her ability to be fair and impartial, Juror Number 8 had been
individually asked by the trial court or counsel if the juror could nevertheless follow the
court's instructions and render a fair verdict based solely on the evidence. Although Juror
Number 8 expressed some reservations about her ability to serve impartially, Juror
Number 8 never unequivocally expressed that she could not be fair and impartial. Unlike
the juror in Hughes, Juror Number 8 was excused by Tumblin’s use of a preemptory
challenge.
{¶59} The record does not demonstrate that Juror Number 8 was unable to be
impartial, and Tumblin has not established that Juror Number 8 was actually biased
against him. Accordingly, the trial judge did not abuse his discretion in denying Tumblin’s
challenge for cause of Juror No. 8.
{¶60} Tumblin’s Third Assignment of Error is overruled. Coshocton County, Case No. 2023CA0013 25
{¶61} The judgment of the Coshocton County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Baldwin, J., concur