[Cite as State v. Mielke, 2013-Ohio-1612.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             WARREN COUNTY




STATE OF OHIO,                                     :
                                                         CASE NO. CA2012-08-079
        Plaintiff-Appellee,                        :
                                                                OPINION
                                                   :             4/22/2013
    - vs -
                                                   :

TIM MIELKE,                                        :

        Defendant-Appellant.                       :




      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 11CR27812


David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Jeffrey E. Richards, 147 Miami Street, P.O. Box 536, Waynesville, Ohio 45068, for
defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Tim Mielke, appeals his convictions and sentence in the

Warren County Common Pleas Court for trafficking in drugs and engaging in a pattern of

corrupt activity.

        {¶ 2} On October 31, 2011, appellant was indicted on one count of engaging in a

pattern of corrupt activity in violation of R.C. 2923.32(A)(1) and 31 counts of drug trafficking
                                                                              Warren CA2012-08-079

in violation of R.C. 2925.03(A)(2) with several counts carrying enhancement specifications for

exceeding the bulk amount of drugs and for transactions occurring in the vicinity of a school.

        {¶ 3} On May 3, 2012, a bench trial was held. Matthew Geraci was the first witness

to testify for the state. Geraci stated that he had used steroids personally since 2006 and

had engaged in the buying and selling of steroids on a small scale since 2009. In 2010,

Geraci began selling steroids more regularly out of his residence in Symmes Township,

Hamilton County, Ohio. At this time, Geraci had anywhere from 15 to 20 "customers,"

including appellant. Geraci explained that he would typically be contacted via text message

by a customer for steroids, would create an invoice and prepare the order of steroids, and

then distribute the steroids to the customer in one of two ways: (1) Geraci would either

engage in a hand-to-hand exchange with the customer, or (2) Geraci would place the

steroids in a grill on the back patio of his residence and the customer would take the steroids,

leaving money in the grill as payment.

        {¶ 4} This system continued until April 2011 when Geraci moved his steroid operation

to the CMC Office Center on Reed Hartman Highway in Blue Ash, Hamilton County, Ohio. At

the office center, Geraci established what he referred to as the "locker system." Within

"Room F" of the CMC Office Center, Geraci set up a series of lockers and assigned each

distributor his own locker. After a distributor contacted Geraci via text message with an

order, he would place the steroids and an invoice in the appropriate locker. The distributor

would then collect the steroids and leave money in the locker for Geraci to collect at a later

time. In total, 17 distributors participated in the locker system, including appellant. According
                                                            1
to Geraci, appellant was one of his top distributors.

        {¶ 5} Geraci then testified regarding the "meticulous" records he kept of what steroids


1. For more information on the locker system, see State v. Howard, 12th Dist. No. CA2012-04-034, 2013-Ohio-
1489.
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                                                                               Warren CA2012-08-079

he sold to each distributor, including Invoices 172, 173, 738, 862, and 914, which were

orders made by appellant. According to these invoices, on August 24, 2010, April 8, 2011,

May 18, 2011, and June 8, 2011, Geraci sold appellant large quantities of steroids including

30 pills of "Anadrol Tabs," four vials of "Sustanon 250," 180 vials of "Dbol 10," 16 vials of

"Test 450," and 30 pills of "Winny Tabs." Geraci explained that each vial of steroids sold

contained approximately 10 milliliters (mL) of steroids and were labeled with a "Synergy

Pharmaceutical" label. Geraci also stated that he had personally used 95% of the product he

sold to appellant and that, to the best of his knowledge, everything he sold to appellant was a
                                                                      2
steroid except HCG, Arimedex, Primo 50, and Clenbuterol.

        {¶ 6} Agent Jim Burk of the Bureau of Alcohol, Tobacco, Firearms, and Explosives

then testified regarding his involvement in Geraci's steroid operation as an undercover agent.

Agent Burk explained that he made several purchases of steroids from an individual named

Joshua Haberstroh. After the second "controlled buy" involving Haberstroh, Haberstroh was

arrested by Agent Burk and began participating with the Warren County Drug Task Force as

a confidential informant. Haberstroh introduced Agent Burk to Geraci and, from there, Agent

Burk made a series of controlled drug purchases from Geraci until search warrants were

executed on Geraci's residence and the CMC Office Center on June 21, 2011. Agent Burk

testified that the controlled buys between himself, Haberstroh, and Geraci occurred in

Warren County and each buy involved similar steroids to each other. Specifically, Agent

Burk mentioned that the steroids were sold in the same size vials and "were all labeled with

Synergy Pharmaceutical" labels. Agent Burk further testified that these vials were tested by
                                                                                                         3
the Miami Valley Crime Laboratory and contained different varieties of anabolic steroids.


2. Appellant was found not guilty of the counts in the indictment involving HCG, Arimedex, Primo 50, and
Clenbuterol.

3. Four vials purchased from Haberstroh did not contain any steroids, though they were labeled as containing
"Winstrol 100."
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                                                                                Warren CA2012-08-079

        {¶ 7} Based upon surveillance photographs taken of appellant entering and exiting

Room F of the CMC Office Center, Agent Burk and Detective Bill Couch of the Warren

County Drug Task Force interviewed appellant at his parents' home in Green Township on
                4
October 3, 2011. After being read his Miranda rights, appellant admitted to knowing Geraci,

having met him through a mutual friend in June 2010. During this initial June 2010 meeting,

the pair discussed steroids and Geraci offered to supply appellant with steroids. Appellant

then admitted to Agent Burk and Detective Couch that he purchased steroids from Geraci at

Geraci's residence and the CMC Office Center in Hamilton County and that the invoices

maintained by Geraci regarding appellant's steroid purchases were accurate. Appellant

further admitted that he sold approximately 75% of the steroids he purchased from Geraci to

10 customers while keeping 25% for personal use.

        {¶ 8} Detective Couch then testified that he learned about appellant's involvement in

Geraci's steroid operation through cooperating witnesses who had identified appellant as a

steroid trafficker. Detective Couch further provided that he was familiar with Geraci's locker

system and that a "day care slash also kindergarten" named "kindergarten (sic)" was located

approximately 250 feet away from Room F, as well as another room within the CMC Office
                                                                                5
Center where the majority of the steroids were stored prior to sale.

        {¶ 9} Appellant did not put on a defense and, at the close of the state's case, moved

for a Crim.R. 29 motion for judgment of acquittal. The trial court denied the motion and

ultimately found appellant guilty of 14 of the 32 counts, including 13 counts of drug trafficking

and one count of engaging in a pattern of corrupt activity. The trial court imposed a total

sentence of three years, nine months incarceration upon appellant.




4. This interview was recorded and admitted into evidence by the state during the bench trial.

5. The record reveals the actual name of the kindergarten/daycare to be the "Kinder Garden School."
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                                                                      Warren CA2012-08-079

       {¶ 10} From his convictions, appellant now appeals, raising seven assignments of

error. For ease of discussion, the assignments of error shall be addressed out of turn.

       {¶ 11} Assignment of Error No. 6:

       {¶ 12} THE [TRIAL] COURT ERRED IN FINDING THAT THE STATE HAD PROVED

(SIC) AN ESSENTIAL ELEMENT OF THE CRIME; TO WIT: VENUE.

       {¶ 13} In his sixth assignment of error, appellant argues the state failed to prove that

Warren County was the proper venue for at least some of the counts alleged in the

indictment and, therefore, his Crim.R. 29 motion for acquittal should have been granted.

Specifically, appellant alleges that those charges which occurred prior to April 2011, when

Geraci's steroid operation was still being run out of his home in Symmes Township, should

be dismissed, as venue would have only been proper in Hamilton County.

       {¶ 14} "Venue commonly refers to the appropriate place of trial for a criminal

prosecution within a state." State v. Stone, 12th Dist. No. CA2007-11-132, 2008-Ohio-5671,

¶ 16, citing State v. Meridy, 12th Dist. No. CA2003-11-091, 2005-Ohio-241, ¶ 12. "The

importance of venue is to give the defendant the right to be tried in the vicinity of his alleged

criminal activity." Id. at ¶ 16; Meridy at ¶ 12. The standard in establishing venue is whether

the defendant has a "significant nexus" with the county where the trial was held. Stone at ¶

16; Meridy at ¶ 22. "As a result, and pursuant to R.C. 2901.12(A), a criminal trial shall be

held in a court having jurisdiction over the subject matter and in a territory where the offense,

or any element of the offense, was committed. Stone at ¶ 16.

       {¶ 15} "Venue is not a material element of any offense charged." Id. at ¶ 17; Meridy at

¶ 12. However, the state "must prove beyond a reasonable doubt that the crime charged

was committed in the county where the indictment was returned and the trial held[.]" Stone

at ¶ 17; Meridy at ¶ 12. A defendant waives the right to challenge venue when the issue is

raised for the first time on appeal. Stone at ¶ 17; State v. Shedwick, 10th Dist. No. 11AP-
                                               -5-
                                                                                Warren CA2012-08-079

709, 2012-Ohio-2270, ¶ 36.

        {¶ 16} In this case, appellant's trial counsel made a Crim.R. 29 motion for acquittal at

the close of the state's case, arguing that the state failed to prove that appellant trafficked in
                       6
a controlled substance. However, appellant did not make any objection in the Crim.R. 29

motion, or at any other time during trial, regarding venue. Therefore, because appellant

raises the issue for the first time on appeal, he has waived any challenge to venue but for

plain error. Shedwick at ¶ 37-38; Stone at ¶ 18.

        {¶ 17} "A plain error is any error or defect 'affecting substantial rights [that] may be

noticed although they were not brought to the attention of the court.'" Stone at ¶ 19, quoting

Crim.R. 52(B). In other words, to constitute plain error, the error (1) must be a deviation from

the legal rule, (2) must be an obvious defect in the trial proceedings, and (3) must have

affected the defendant's substantial rights. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-

4642, ¶ 16. "Notice of plain error * * * is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice." Stone at ¶

19; State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. Accordingly,

plain error does not exist "unless the appellant can establish that the outcome of the trial

would have been different but for the trial court's allegedly improper action." Payne at ¶ 17;

Stone at ¶ 19.

        {¶ 18} Ohio's venue statute, R.C. 2901.12, provides that the "trial of a criminal case in

this state shall be held in a court having jurisdiction of the subject matter, and in the territory

of which the offense or any element of the offense was committed." R.C. 2901.12(A). R.C.

2901.12(H) addresses venue when an offender commits offenses in different jurisdictions as

part of a course of criminal conduct and states:


6. Though the trial judge requested defense counsel combine his Crim.R. 29 motion, any renewal of that motion,
and his closing argument, we nonetheless find that a Crim.R. 29 motion was made in this case.
                                                     -6-
                                                                      Warren CA2012-08-079

              When an offender, as part of a course of criminal conduct,
              commits offenses in different jurisdictions, the offender may be
              tried for all those offenses in any jurisdiction in which one of
              those offenses or any element of one of those offenses
              occurred. Without limitation on the evidence that may be used to
              establish the course of criminal conduct, any of the following is
              prima-facie evidence of a course of criminal conduct:

              ***

              (3) The offenses were committed as part of the same
              transaction or chain of events, or in furtherance of the same
              purpose or objective.

              ***

              (5)   The offenses involved the same or a similar modus
              operandi.

       {¶ 19} Appellant was charged with engaging in a pattern of corrupt activity in violation

of R.C. 2923.32(A)(1), which provides that "[n]o person employed by, or associated with, any

enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise

through a pattern of corrupt activity."

       {¶ 20} An "enterprise" includes a "partnership, * * * organization, association, or group

of persons associated in fact although not a legal entity." R.C. 2923.31(C); see State v.

Baker, 12th Dist. No. CA2011-08-088, 2012-Ohio-887, ¶ 10. R.C. 2923.31(E) defines a

"pattern of corrupt activity" as "two or more incidents of corrupt activity, whether or not there

had been a prior conviction, that are related to the affairs of the same enterprise, are not

isolated, and are not so closely related to each other and connected in time and place that

they constitute a single event." For purposes of this case, "corrupt activity" means "engaging

in, attempting to engage in, conspiring to engage in, or soliciting, coercing, or intimidating

another person to engage in" a violation of R.C. 2925.03 (drug trafficking).                R.C.

2923.31(I)(2)(c).

       {¶ 21} With the offense of engaging in a pattern of corrupt activity, the state was

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alleging that appellant worked with Geraci's enterprise with the purpose of selling steroids

and making money. As such, appellant associated with Geraci's steroid operation and, by

direct and indirect means, participated in the affairs of that enterprise through a pattern of

corrupt activity. The state presented evidence that Geraci ran a steroid operation out of his

home and office in Hamilton County.        Appellant was a distributor for that operation,

purchasing steroids from Geraci while in Hamilton County and selling 75% of those steroids

at unknown locations. Geraci, as well as other distributors involved in the steroid operation,

sold steroids while in Warren County.

       {¶ 22} Consequently, evidence was presented at trial that the steroid operation was, in

part, conducted in Warren County. Though the evidence demonstrated that appellant was

not directly involved in the Warren County sales, his association with the steroid enterprise

extended into those areas where the tentacles of the criminal enterprise touched, including

Warren County. State v. Yates, 5th Dist. No. 2009CA0059, 2009-Ohio-6622, ¶ 62.

       {¶ 23} Therefore, at least one element of the offense of engaging in a pattern of

corrupt activity took place in Warren County. As venue is proper "in any county in which a

portion of the corrupt activity occurred or in which an organization formed for the purpose of

engaging in corrupt activity is based," the trial court did not err in finding venue in Warren

County. State v. Giffin, 62 Ohio App.3d 396 (10th Dist.1991); Yates at ¶ 52.

       {¶ 24} In addition, evidence was presented that the engaging in a pattern of corrupt

activity and drug trafficking charges were committed as a course of conduct in that they

involved the same modus operandi, were committed by appellant and others in the same

capacity or relationship (the use of the locker system), and were committed in furtherance of

the same purpose or objective (to sell steroids and make money). R.C. 2901.12(H); see also

State v. Koval, 12th Dist. No. CA2005-06-083, 2006-Ohio-5377, ¶ 24-25; Giffin at 400-402;

Yates at ¶ 62.
                                             -8-
                                                                         Warren CA2012-08-079

       {¶ 25} Therefore, we find that venue in Warren County was appropriate on the

engaging in a pattern of corrupt activity charge as well as on all charges within appellant's

course of criminal conduct. Accordingly, appellant's sixth assignment of error is overruled.

       {¶ 26} Assignment of Error No. 5:

       {¶ 27} THE TRIAL COURT ERRED IN NOT DISMISSING COUNTS ONE THROUGH

THIRTY-ONE (1-31) OF THE INDICTMENT AS THE COUNTS WERE LEGALLY

INSUFFICIENT TO STATE A CRIME.

       {¶ 28} In his fifth assignment of error, appellant contends the trial court erred in not

dismissing Counts 1 through 31 of the indictment, as these counts did not sufficiently identify

the controlled substance allegedly trafficked. Specifically, appellant takes issue with the

state's use of "street names" rather than the term "anabolic steroids" to identify the controlled

substances in the indictment.

       {¶ 29} Appellant failed to timely object to this alleged defect in the indictment.

Therefore, appellant has waived all but plain error on appeal. State v. Horner, 126 Ohio

St.3d 466, 2010-Ohio-2830, paragraph three of the syllabus. As stated above, "an alleged

error is plain error only if the error is 'obvious' and 'but for the error, the outcome of the trial

clearly would have been otherwise.'" State v. Freeze, 12th Dist. No. CA2011-11-209, 2012-

Ohio-5840, ¶ 30; Payne, 2007-Ohio-4642 at ¶ 16.

       {¶ 30} "[T]he Ohio Constitution guarantees an accused that the essential facts

constituting the offense for which he is tried will be found in the indictment by the grand jury."

State v. Jackson, 134 Ohio St.3d 184, 2012-Ohio-5561, ¶ 12. "An indictment meets

constitutional requirements if it 'first, contains the elements of the offense charged and fairly

informs a defendant of the charge against which he must defend, and, second, enables him

to plead an acquittal or conviction in bar of future prosecutions for the same offense.'" Id. at

¶ 13, quoting State v. Childs, 88 Ohio St.3d 558, 565 (2000).
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                                                                                 Warren CA2012-08-079

        {¶ 31} In Jackson, the Ohio Supreme Court recently held that "for the purpose of

identifying the drug involved in a drug-trafficking offense under R.C. 2925.03(A), an

indictment is sufficient if it names the schedule in which the drug appears." Id. at paragraph

one of the syllabus. The court noted "that the schedule of the drug involved" sufficiently puts

the defendant "on notice of the severity of the offense, i.e., trafficking or aggravated

trafficking." (Emphases sic.) Id. at ¶ 20, citing State v. Headley, 6 Ohio St.3d 475, 479

(1983).

        {¶ 32} In this case, the indictment lists 31 counts of drug trafficking, each asserting

that appellant "did, knowingly, prepare for shipment, ship, transport, deliver, prepare for

distribution, or distribute * * * a Schedule III controlled substance[.]"                   The 31 counts

additionally provide a name for the controlled substance, such as "S Cut," "Testosterone
                     7
450," and "Sust 250." Though containing street names, the indictment specifically states

that the trafficking charges each involved a Schedule III controlled substance. Therefore, the

indictment satisfies Jackson and, consequently, the trial court did not commit plain error by

not dismissing Counts 1 through 31 of the indictment.                      Accordingly, appellant's fifth

assignment of error is overruled.

        {¶ 33} Assignment of Error No. 1:

        {¶ 34} THE EVIDENCE PRODUCED AT TRIAL WAS LEGALLY INSUFFICIENT TO

FIND APPELLANT GUILTY.

        {¶ 35} In his first assignment of error, appellant generally argues that his 31 drug

trafficking convictions should be overturned as unsupported by sufficient evidence.

Specifically, beyond the issue of venue, which has already been addressed above, appellant

contends that the state failed to show (1) that the steroids in question were controlled


7. Agent Burk testified at the bench trial that these names are what the anabolic steroids are commonly referred
to by users.
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                                                                       Warren CA2012-08-079

substances, i.e., anabolic steroids, (2) that appellant prepared for shipment, shipped,

transported, delivered, prepared for distribution, or otherwise distributed anabolic steroids,

and (3) that appellant knew or had reasonable cause to know that these steroids were

intended for sale or resale.

       {¶ 36} When reviewing the sufficiency of the evidence underlying a criminal conviction,

the function of an appellate court is "to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant's guilt

beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus. "The relevant inquiry is whether, after viewing the evidence in a light most favorable

to the prosecution, any rational trier of fact would have found the essential elements of the

crime proven beyond a reasonable doubt." Id.

       {¶ 37} A review of the sufficiency of the evidence does not require this court to

determine the witnesses' credibility. State v. Renner, 12th Dist. No. CA2002-08-033, 2003-

Ohio-6550, ¶ 16, citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the

syllabus. Rather, this court simply reviews the evidence submitted to determine whether, if

believed, it would support a finding of guilt. Id.

       {¶ 38} Appellant was found guilty of 13 counts of drug trafficking in violation of R.C.

2925.03(A)(2), which provides that no person shall knowingly "prepare for shipment, ship,

transport, deliver, prepare for distribution, or distribute a controlled substance * * * when the

offender knows or has reasonable cause to believe that the controlled substance * * * is

intended for sale or resale by the offender or another person."

                                   Controlled Substances

       {¶ 39} Appellant first argues that the state failed to prove that any steroids in this case

were controlled substances and, more specifically, anabolic steroids. Specifically, appellant

takes issue with the state's reliance on Geraci's testimony to prove that the steroids he sold
                                              - 11 -
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to appellant were actually anabolic steroids.

       {¶ 40} According to R.C. 3719.01(C), a "controlled substance" is "a drug, compound,

mixture, preparation, or substance included in schedule I, II, III, IV, or V." R.C. 3719.41(E)(1)

defines the term "anabolic steroids" as "any drug or hormonal substance that is chemically

and pharmacologically related to testosterone * * * and that promotes muscle growth" and

includes, but is not limited to, "testosterone." Anabolic steroids constitute a Schedule III

controlled substance. R.C. 3719.41.

       {¶ 41} "The state may rely upon circumstantial evidence in proving that a crime was

committed." Koval, 2006-Ohio-5377 at ¶ 61, citing State v. Maranda, 94 Ohio St. 364, 371

(1916). "A layperson can provide opinion testimony regarding the identity of controlled

substances provided the opinion is based upon a sufficient foundation of experience and

knowledge of the substance at issue." Id. at ¶ 62, citing State v. Foti, 11th Dist. No. 2001-L-

020, 2003-Ohio-796, ¶ 51.        Specifically, the Ohio Supreme Court has held that the

"experience and knowledge of a drug user lay witness can establish his or her competence to

express an opinion on the identity of a controlled substance if a foundation for this testimony

is first established." State v. McKee, 91 Ohio St.3d 292, 297, 2001-Ohio-41; Id. at ¶ 63;

State v. Miles, 3d Dist. No. 4-02-28, 2003-Ohio-1370; State v. Singleton, 11th Dist. No. 2002-

L077, 2004-Ohio-1517.       This is permissible, as scientific testing of purportedly illegal

substances is not always available, as "by their nature, [illegal drugs] are sold or consumed."

Koval at ¶ 64.

       {¶ 42} In this case, Geraci testified that he had been a steroid user since 2006 and a

distributor since 2009. In 2010, Geraci began exclusively selling steroids he received from

Herbort, which contained a Synergy Pharmaceutical label. Geraci stated that he used 95%

of the types of steroids he sold and had never had a complaint that the steroids were "bad" or

did not work. In fact, according to Geraci, appellant once stated that the steroids Geraci sold
                                              - 12 -
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were of "good quality."

       {¶ 43} In 2011, Geraci, and another of his distributors, Haberstroh, both sold steroids

to Agent Burk while he was working as an undercover agent. Those steroids also contained
                                                                    8
Synergy Pharmaceutical labels and were each sold in identical vials. The steroids Agent

Burk purchased from Geraci and Haberstroh were tested and were found to contain

Schedule III anabolic steroids.

       {¶ 44} Given the evidence presented regarding Geraci's extensive knowledge of

steroids, and after reviewing the record under the applicable standard for a sufficiency

challenge, we find that a rational trier of fact could have found that the state proved beyond a

reasonable doubt the controlled substances element of the offense of trafficking in drugs.

                                             Distribution

       {¶ 45} Appellant next contends that the state failed to prove with sufficient evidence

that appellant prepared for shipment, shipped, transported, delivered, prepared for

distribution, or distributed anabolic steroids knowing or having reasonable cause to believe

that the steroids were intended for sale or resale.

       {¶ 46} The offense of drug trafficking defined by R.C. 2925.03(A)(2) "requires proof of

more than the mere "possession" of a controlled substance." State v. Powell, 87 Ohio

App.3d 157, 170 (8th Dist.1993). Rather, "drug trafficking under this provision requires

demonstrating some form of the proscribed trafficking conduct incident to a drug sale." Id. In

order to sustain a conviction for drug trafficking, the state must produce direct or

circumstantial evidence that appellant did one of the following: (1) knowingly prepared the

steroids for shipment; (2) shipped, transported, or delivered the steroids; (3) prepared the

steroids for distribution; or (4) distributed the steroids. See State v. Anderson, 8th Dist. No.


8. Agent Burk testified that the only difference between the vials was that the "purported content varied
depending on what we ordered."
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69620, 1996 WL 684331, * 4 (Nov. 27, 1996).

       {¶ 47} In this case, appellant admitted to Agent Burk and Detective Couch that he

purchased steroids from Geraci at Geraci's residence and at the CMC Office Center.

Appellant would then transport the steroids and deliver approximately 75% of them to his 10

customers while on the "west side of town." Specifically, appellant stated that he would meet

these customers in a "lot somewhere" and sell the steroids.

       {¶ 48} Based upon our review of the record, sufficient evidence was presented that, if

believed, would allow a rational trier of fact to find that the state proved beyond a reasonable

doubt the shipment and distribution element of the offense of trafficking in drugs.

                                       Sale or Resale

       {¶ 49} Finally, appellant argues that the state failed to prove with sufficient evidence

that he transported a controlled substance while knowing or having reasonable cause to

believe that the steroids were intended for sale or resale by the offender or another person.

R.C. 2925.03(A)(2).

       {¶ 50} In this case, Agent Burk testified that appellant admitted to selling 75% of the

steroids that he purchased from Geraci. Specifically, Agent Burk stated:

              [Appellant] made reference to only three types of steroid (sic)
              would be essentially what he had purchased for himself.
              Anything else that was contained on our records were steroids
              that he was supplying to his ten customers. He said he placed
              approximately, each order he placed was approximately $600.00
              at a time and he also stated that he would add, he initially added
              $20.00 to the price of each bottle over his cost but then later said
              it was sometime [$10] sometimes at $20.00 he would mark the
              bottle up for resale, and he also indicated a mark up on the
              anabolic steroid tablets as well.

Furthermore, the trial court was presented with the tape of Agent Burk's interview with

appellant, where the trier of fact could actually hear appellant describing how he priced and

sold the steroids to his 10 customers.


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       {¶ 51} Thus, after reviewing the record under the applicable standard for a sufficiency

challenge, we find that a rational trier of fact could have found that the state proved beyond a

reasonable doubt all of the requisite elements of the offense of trafficking in drugs, including

the intent to sell element. Accordingly, appellant's first assignment of error is overruled.

       {¶ 52} Assignment of Error No. 2:

       {¶ 53} THE TRIAL COURT ERRED WHEN IT ADMITTED TESTIMONY OF MATT

GERACI AS TO WHAT WAS CONTAINED IN THE SUBSTANCES HE SOLD TO

APPELLANT.

       {¶ 54} In his second assignment of error, appellant asserts the trial court improperly

admitted hearsay evidence from Geraci which the state used to prove that the substances

appellant purchased from Geraci were, in fact, anabolic steroids. Specifically, appellant

alleges that Geraci's testimony that the steroids were actually controlled substances was

based solely upon what he was told by Herbort.

       {¶ 55} "It is well-established that the admission or exclusion of evidence rests within

the sound discretion of the trial court." In re Bays, 12th Dist. No. CA2003-02-026, 2004-

Ohio-915, ¶ 7, citing State v. Robb, 88 Ohio St.3d 59, 68 (2000). Absent an abuse of

discretion, an appellate court will not disturb a trial court's ruling as to the admissibility of

evidence. State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of discretion connotes more

than an error in law or judgment; it implies that the court's attitude is unreasonable, arbitrary,

or unconscionable. State v. Barnes, 94 Ohio St.3d 21, 23, 2002-Ohio-68.

       {¶ 56} In this case, the trial court permitted Geraci to testify that he sold steroids to

appellant and that appellant was one of his top distributors. Based upon Geraci's reported

experience in the handling, sale, and use of steroids, we cannot say that the trial court

abused its discretion in permitting the admission of that testimony to show that the drugs at

issue were, in fact, Schedule III anabolic steroids. Though Geraci received the vials of
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steroids and Synergy Pharmaceutical labels from Herbort, and was told by Herbort which vial

contained what type of steroid, Geraci still had an extensive knowledge of the different

varieties of steroids he sold and their various uses.

       {¶ 57} As Geraci independently testified that he had used these steroids, that the

steroids worked well, that he was familiar with steroids, and that he had never had a

complaint from his purchasers and distributors that the steroids were ineffective, we cannot

say that the trial court erred in admitting his testimony at trial. Accordingly, appellant's

second assignment of error is overruled.

       {¶ 58} Assignment of Error No. 3:

       {¶ 59} THE TRIAL COURT ERRED WHEN IT DETERMINED THAT ANY AMOUNTS

OF ILLEGAL DRUGS EXCEEDED OR EQUALED A "BULK AMOUNT."

       {¶ 60} In his third assignment of error, appellant alleges the state produced insufficient

evidence that appellant trafficked in an amount of drugs greater than the bulk amount ("bulk

enhancement"). Specifically, appellant contends that, for Counts 5, 17, and 23 of the

indictment, the state failed to present any evidence as to what appellant may have done with

the bulk amount of these steroids, including selling them.

       {¶ 61} As stated above, when reviewing the sufficiency of the evidence underlying a

criminal conviction, the function of an appellate court is "to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d at paragraph

two of the syllabus.

       {¶ 62} As noted above, appellant was found guilty of trafficking in drugs in violation of

R.C. 2925.03(A)(2), which provides that no person shall knowingly "prepare for shipment,

ship, transport, deliver, prepare for distribution, or distribute a controlled substance * * * when

the offender knows or has reasonable cause to believe that the controlled substance * * * is
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intended for sale or resale by the offender or another person." Generally, drug trafficking is a

felony of the fifth degree. R.C. 2925.03(C)(2). However, the felony level may be enhanced if

the amount of drugs involved equals or exceeds the bulk amount. Id. R.C. 2925.01(D)(5)

defines "bulk amount" as "[a]n amount equal to or exceeding two hundred solid dosage units,

sixteen grams, or sixteen milliliters of a compound, mixture, preparation, or substance that is

or contains any amount of a schedule III anabolic steroid."

                                           Count 5

       {¶ 63} In Count 5, the state alleged that, on August 24, 2010, appellant trafficked in

"testosterone enanthate 300" in an amount equal to or exceeding the bulk amount (16mL)

but less than five times the bulk amount (59mL).

       {¶ 64} Geraci testified at trial that Invoice 173 indicated that appellant purchased "Test

E 300" from Geraci.      Geraci explained that the term "Test E" refers to "testosterone

enanthate" and that he sold appellant three 10mL vials of the steroids. Geraci described

testosterone enanthate as a steroid used to increase a person's level of testosterone. In

addition, Agent Burk testified that appellant admitted to selling 75% of the steroids he

purchased from Geraci. Although appellant told Agent Burk that he purchased only three

types of steroids for his personal use, appellant did not identify these steroids.

       {¶ 65} Thus, the testimony at trial revealed that appellant was a distributor of steroids

and that he sold 75% of the steroids that he purchased. On August 24, 2010, appellant

purchased approximately 30mL of testosterone enanthate from Geraci. If appellant only had

the purpose of reselling 75% of the testosterone enanthate that he purchased, that would be

a sale of roughly 22.5mL of steroids. As the bulk amount is 16mL of liquid anabolic steroids,

and reviewing the record in a light most favorable to the prosecution, we conclude evidence

was presented which, if believed, is sufficient to support appellant's drug trafficking in

testosterone enanthate 300 with a bulk enhancement.
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                                          Count 17

       {¶ 66} In Count 17, the state alleged that, on May 18, 2011, appellant trafficked in

"Testosterone 450" in an amount equal to or exceeding the bulk amount (16mL) but less than

five times the bulk amount (59mL).

       {¶ 67} Geraci testified that, according to Invoice 862, on May 18, 2011 appellant

purchased six vials of "Test 450," which he identified as a mixture of testosterone such as

testosterone enanthate and testosterone propionate. Geraci further explained that Test 450

was a "special blend" of steroids that could only be purchased from Geraci or Geraci's boss,

Ron Herbort, who made Test 450. Geraci also testified at trial that each "vial" of steroids he

sold contained approximately 10mL and, thus, the six vials of Test 450 appellant purchased

contained roughly 60mL of steroids. Again, Agent Burk's testimony provided that appellant

admitted to selling 75% of all steroids he purchased.

       {¶ 68} Therefore, according to the testimony at trial, on May 18, 2011, appellant

purchased approximately 60mL of testosterone 450 from Geraci at the CMC Office Center

with the purpose of reselling 75%, or 45mL of steroids. Reviewing the record in a light most

favorable to the prosecution, we conclude evidence was presented which, if believed, is

sufficient to support appellant's drug trafficking in testosterone 450 with a bulk enhancement.

                                          Count 23

       {¶ 69} In Count 23, the state alleged that, on June 8, 2011, appellant trafficked in

"Testosterone 450" in an amount equal to or exceeding five times the bulk amount (60mL)

but less than 50 times the bulk amount (800mL).

       {¶ 70} Geraci testified that, according to Invoice 914, on June 8, 2011, appellant

purchased ten vials of Test 450. Geraci's testimony regarding Test 450 for Count 23 was the

same as his testimony for Count 17. Again, Agent Burk's testimony provided that appellant

admitted to selling 75% of all steroids he purchased.
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       {¶ 71} Thus, according to the testimony at trial, on June 8, 2011, appellant purchased

160mL of testosterone 450 from Geraci at the CMC Office Center with the purpose of

reselling approximately 75%, or 120mL of steroids. Reviewing the record in a light most

favorable to the prosecution, we conclude evidence was presented which, if believed, is

sufficient to support appellant's drug trafficking in testosterone 450 with a bulk enhancement.

       {¶ 72} Based upon the foregoing, we find that the state provided sufficient evidence to

support appellant's bulk enhancement specifications under Counts 5, 17, and 23.

Accordingly, appellant's third assignment of error is overruled.

       {¶ 73} Assignment of Error No. 4:

       {¶ 74} THE TRIAL COURT ERRED WHEN IT FOUND THAT ANY DRUG

TRANSACTIONS OCCURRED WITHIN THE VICINITY OF A SCHOOL.

       {¶ 75} In his fourth assignment of error, appellant challenges the enhancement placed

upon his convictions for drug trafficking while in the vicinity of a school and alleges that the

state failed to provide sufficient evidence that a school existed in the vicinity of the drug

transactions. Specifically, appellant contends that Detective Couch's testimony that a

"daycare slash also kindergarten" called "Kinder Garden" is located within 1,000 feet of the

CMC Office Center was insufficient proof that the Kinder Garden is an actual "school"

pursuant to R.C. 2925.01(Q).

       {¶ 76} This same issue was raised and addressed by this court in State v. Howard,

12th Dist. No. CA2012-04-034, 2013-Ohio-1489, ¶ 52-70. In Howard, we determined that

"circumstantial evidence may be used to prove that a building falls under the definition of

'school' required by R.C. 2925.01(Q)" and, furthermore, that Detective Couch's testimony was

sufficient "to support the school enhancement specification." Id. at ¶ 66. Thus, for these

reasons, and those more fully outlined in Howard, we find that sufficient evidence was



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produced at trial to support the school enhancement specifications placed upon appellant.9

Accordingly, appellant's fourth assignment of error is overruled.

        {¶ 77} Assignment of Error No. 7:

        {¶ 78} THE TRIAL COURT ERRED BY FINDING APPELLANT GUILTY OF

ENGAGING IN A PATTERN OF CORRUPT ACTIVITY.

        {¶ 79} In his seventh assignment of error, appellant argues the state failed to present

sufficient evidence to support appellant's conviction for engaging in a pattern of corrupt

activity. Specifically, appellant contends that, based upon the above arguments, appellant's

convictions for Counts 9, 12, 15, 16, 17, 19, 23, and 26 of the indictment must be overturned.

Without a conviction for at least one of these felonies of the first, second, or third degree,

appellant's conviction for engaging in a pattern of corrupt activity must, likewise, be

overturned.

        {¶ 80} As stated above, R.C. 2923.32(A)(1) provides that "[n]o person employed by, or

associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs

of the enterprise through a pattern of corrupt activity." R.C. 2923.31(E) requires "that at least

one of the instances of corrupt activity giving rise to a pattern of corrupt activity must

constitute a felony." State v. Royce, 12th Dist. Nos. CA92-09-023, CA92-09-024, CA92-09-

025, CA92-09-026, 1993 WL 534691, * 3 (Dec. 27, 1993). "[I]f at least one of the incidents of

corrupt activity is a felony of the first, second, or third degree, * * * engaging in a pattern of

corrupt activity is a felony of the first degree." R.C. 2923.32(B); State v. Bondurant, 4th Dist.

Nos. 11CA25, 11CA27, 2012-Ohio-4912, ¶ 44.

        {¶ 81} In this case, appellant was convicted of seven counts of drug trafficking,

felonies of the third degree, and one count of drug trafficking, a felony of the second degree.


9. It should be noted that the state and appellant stipulated to the existence of the Kinder Garden School and
stipulated that the Kinder Garden School "operates a kindergarten program pursuant to R.C. 3321.01" and is
                                                    - 20 -
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Contrary to appellant's contentions, these convictions were properly venued in Warren

County, were properly indicted, and were supported by sufficient evidence. As such,

appellant's argument that his engaging in a pattern of corrupt activity conviction must be

overturned due to a lack of a first, second, or third-degree underlying felony is unpersuasive.

Accordingly, appellant's seventh and final assignment of error is overruled.

        {¶ 82} Judgment affirmed.


        HENDRICKSON, P.J. and RINGLAND, J., concur.




"taught by a teacher who holds a valid certification/educator licensed by the Ohio Department of Education."
                                                    - 21 -
