[Cite as State v. Shelby, 2016-Ohio-5721.]


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

STATE OF OHIO,                  :
                                :   Case No. 15CA20
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
CHARLES L. SHELBY,              :
                                :
     Defendant-Appellant.       :   Released: 08/31/16
_____________________________________________________________
                          APPEARANCES:

Gene Meadows, Portsmouth, Ohio, for Appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Robert
C. Anderson, Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶ 1} Charles Shelby appeals his felony convictions entered by the

Lawrence County Court of Common Pleas, after he was found guilty by a

jury of aggravated trafficking in drugs and tampering with evidence. On

appeal, Appellant contends that 1) the evidence presented at trial is

insufficient to support his conviction and also that his conviction is against

the manifest weight of the evidence; 2) the State of Ohio failed to bring him

to trial within the time required by R.C. 2945.71 and therefore he is entitled

to a dismissal of all counts of the indictment; 3) the trial court erred to his
Lawrence App. No. 15CA20                                                        2

prejudice when it allowed Appellant’s statement to be used against him, due

to the fact that the statement was not voluntarily given; and 4) the trial court

erred to his prejudice and abused its discretion when the trial court allowed

the State of Ohio to introduce rebuttal evidence without properly disclosing

the rebuttal evidence in accordance with Crim.R. 16, thereby depriving

Appellant of his constitutional right to a fair trial.

       {¶ 2} Having found no merit to the assignments of error raised by

Appellant and specifically finding that he was brought to trial within speedy

trial limits and that his convictions were supported by sufficient evidence

and were not against the manifest weight of the evidence, his assignments of

error are overruled. Accordingly, the judgment of the trial court is affirmed.

                                     FACTS

       {¶ 3} Appellant was arrested on March 20, 2015 and was

subsequently indicted for one count of aggravated trafficking in drugs, a first

degree felony in violation of R.C. 2925.03(A)(2)(C)(1)(d), and one count of

tampering with evidence, a third degree felony in violation of R.C.

2921.12(A)(1). The indictment stemmed from an incident that occurred on

March 20, 2015 at the Holiday Inn Express located in Ironton, Ohio.

Appellant and his girlfriend, Ronita Butler, were staying at the hotel, which

was located within 1000 feet of a school. The couple got into an argument
Lawrence App. No. 15CA20                                                       3

which escalated and resulted in her leaving the room and reporting to hotel

staff that she had been assaulted and that Appellant had narcotics in the

room.

        {¶ 4} Law enforcement responded to the incident and went to

Appellant’s hotel room accompanied by hotel staff. Officers Wilson and

Lawson knocked on Appellant’s door. Appellant answered the door, denied

that he had drugs in the room and granted the officers permission to search

the room. During the search, Captain Bowman arrived on the scene. When

officers located marijuana in Appellant’s coat pocket, Bowman gave

Appellant a verbal Miranda warning. The search continued and officers

found several small jeweler’s bags, four cell phones, approximately

$2,650.00 in cash, and a marijuana blunt in Appellant’s luggage. Also,

during the search, the hotel manager informed Captain Bowman that a

maintenance man had discovered a bag with what appeared to be drugs in

the trash can outside the hotel and that Ashley Miller, a hotel employee,

reported she saw Appellant go down the stairs and exit the hotel briefly and

then return right after Appellant’s argument with his girlfriend and just

before law enforcement arrived.

        {¶ 5} Captain Bowman retrieved the drugs from the trash can, which

consisted of 159 pills. Upon being confronted, Appellant initially denied
Lawrence App. No. 15CA20                                                       4

that the pills were his, but then later admitted the pills belonged to him after

Captain Bowman told him that he had watched him on video putting the pills

in the trash can. At that point, Appellant was transported by law

enforcement to a private location, or “staging area,” where he provided a

recorded statement in connection with an interview conducted by Detective

Aaron Bollinger. Prior to starting the interview, Detective Bollinger again

provided a Miranda warning to Appellant and obtained a written waiver of

Appellant’s Miranda rights.

      {¶ 6} In his recorded statement, Appellant stated that he was from

Keego Harbor, Michigan, which is about a forty minute drive from Detroit.

He admitted that he had received approximately 400 oxycodone pills from

his girlfriend’s mother, Bonita Butler, the previous Monday, that he had

distributed about 200 of them and had about 200 of them left. He stated that

the pills were in quantities of 15 mg. and 30 mg. He stated that he had most

recently delivered a portion of the pills to the Thibodaux’s, who lived “in the

projects.” He explained that he would typically drop pills off to Bonita’s

customers and then later pick up money to take to Bonita. He also explained

that if he made sales to other individuals he was paid more money. He

stated that in exchange for doing this, Bonita took care of him and his

girlfriend and provided them with two oxycodone pills per day. He further
Lawrence App. No. 15CA20                                                       5

stated that the drugs came from three different suppliers in Detroit and

Atlanta.

      {¶ 7} Appellant was arrested and was held in jail on these charges

from the date of his arrest on March 20, 2015 until he was brought to trial on

August 6, 2015. During this time, Appellant filed several pleadings,

including a request for discovery, a request for a bill of particulars, a motion

to suppress, and also a motion to dismiss based upon speedy trial grounds.

Appellant’s motion to suppress alleged that he was intoxicated or under the

influence of a controlled substance at the time he provided statements to law

enforcement and that as a result, the statements were involuntary and

inadmissible at trial. Detective Aaron Bollinger, the officer who obtained

Appellant’s recorded statement as well Appellant’s written waiver of his

Miranda rights, testified at the suppression hearing. The trial court

ultimately denied Appellant’s motion to suppress as well as his pretrial

motion to dismiss and the matter proceeded to trial.

      {¶ 8} At trial, the State introduced several witnesses, including:

Ironton Police Officer and Lawrence County Drug Task Force member,

Steven Wilson; Ironton Police Captain and Lawrence County Drug Task

Force member, Chris Bowman; Holiday Inn Express employee, Ashley

Miller; Lawrence County Engineer, Paul Rubado; Ironton Catholic Schools,
Lawrence App. No. 15CA20                                                         6

St. Lawrence and St. Joseph assistant principal, Chris Monty; and Ohio

Bureau of Criminal Identification and Investigation (“BCI”) forensic

scientist, Megan Snyder. Appellant testified in his own defense but

presented no other witnesses. In response to Appellant’s testimony, the

State called Perry Adkins, employed with the Lawrence County Drug and

Major Crimes Task Force, as a rebuttal witness.

      {¶ 9} Officer Wilson and Captain Bowman testified regarding their

involvement in the search of Appellant’s hotel room and obtaining

Appellant’s recorded statement. Ashley Miller testified that she saw

Appellant exit the hotel and then return right after the argument with his

girlfriend, and just before law enforcement arrived. Paul Rubado and Chris

Monty collectively testified that the Holiday Inn Express and specifically the

room of the hotel in which Appellant was staying was located within 1000

feet of St. Lawrence/St. Joseph Catholic School, which is an accredited

community school established under Chapter 3314 of the Ohio Revised

Code. Megan Snyder testified regarding the testing she performed on the

159 pills submitted to BCI, stating that all of the pills were confirmed to be

either 15 or 30 mg. pills of oxycodone. Additionally, Appellant’s recorded

statement was played for the jury as part of the State’s case.
Lawrence App. No. 15CA20                                                         7

      {¶ 10} Appellant testified in his own defense. He testified that he

was intoxicated and had used crack cocaine at 3:00 a.m. the night before

providing a statement. He further essentially testified that the pills were not

his, but that he cooperated with Captain Bowman to come up with a story

that would convince Detective Bollinger that he could provide intelligence

that would allow him to be used as confidential informant. He testified that

the information contained in his recorded statement did not reflect the truth,

that he did not place anything in the trash at the hotel, that he had never sold

drugs and did not intend to sell drugs, and that he did not understand the

Miranda waiver that he signed. On cross examination, Appellant denied

having placed calls from the jail to Bonita Butler and Ashley Thibodaux. As

a result, the State then presented Perry Adkins as a rebuttal witness. As part

of Adkins’ testimony, recorded jail calls between Appellant, Butler and

Thibodaux were played for the jury. The calls with Thibodaux, while

somewhat vague, included references to getting “that money” and asking

what to do with it. Appellant also states in both calls that he will be going

away for a long time.

      {¶ 11} After hearing the evidence and the testimony presented at trial,

the jury found Appellant guilty of both counts as contained in the

indictment. Appellant was convicted and sentenced by the trial court to a
Lawrence App. No. 15CA20                                                     8

ten-year prison term on count one and a two-year prison term on count two,

to be served concurrently. It is from the trial court’s final order that

Appellant now brings his timely appeal, setting forth four assignments of

error for our review.

                        ASSIGNMENTS OF ERROR

“I.    THE EVIDENCE PRESENTED AT TRIAL IS INSUFFICIENT TO
       SUPPORT DEFENDANT’S CONVIDITON [SIC], WHICH
       CONVICTION IS MANIFESTLY AGAINST THE WEIGHT OF
       THE EVIDENCE AND MUST BE REVERSED.

II.    THE STATE OF OHIO FAILED TO BERING [SIC] THE
       DEFENDANT-APPELLANT TO TRIAL WITHIN THE TIME
       REQUIRED BY RC 2945.71 [SIC] AND THEREFORE THE
       DEFENDANT IS ENTITLED TO A DISMISSAL OF ALL COUTNS
       [SIC] OF THE INDICTMENT

III.   THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
       DEFENDANT WHEN THE TRIAL COURT ALLOWED THE
       STATEMENT MADE BY THE DEFENDANT-APPELLANT TO
       BE USED AGAINST THE DEFENDANT-APPELLANT DUE TO
       THE FACT THAT SAID STATEMENT WAS NOT
       VOLUNTARILY GIVEN BY THE DEFENDANT-APPELLANT.

IV.    THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
       DEFENDANT AND ABUSED THE TRIAL COURT’S
       DISCRETION WHEN THE TRIAL COURT ALLOWED THE
       STATE OF OHIO TO INTRODUCE REBUTTAL EVEIDENCE
       [SIC] IN ACCORDANCE WITH CRIMINAL RULE 16 THEREBY
       DEPRIVING THE DEFENDANT TO HIS CONSTITUTIONAL
       RIGHT TO A FAIR TRIAL.”
Lawrence App. No. 15CA20                                                           9

                        ASSIGNMENT OF ERROR III

      {¶ 12} For ease of analysis, we address Appellant’s assignments of

error out of order. In his third assignment of error, Appellant contends that

the trial court erred to his prejudice when it allowed Appellant’s statement to

be used against him, arguing that the statement was not voluntarily given.

This particular argument was the subject of a pre-trial motion to suppress,

which was denied by the trial court. Thus, Appellant essentially challenges

the trial court’s denial of his motion to suppress his statement.

      {¶ 13} “Appellate review of a motion to suppress presents a mixed

question of law and fact. When considering a motion to suppress, the trial

court assumes the role of trier of fact and is therefore in the best position to

resolve factual questions and evaluate the credibility of witnesses.” State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; citing

State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992).

“Consequently, an appellate court must accept the trial court's findings of

fact if they are supported by competent, credible evidence.” Id., citing State

v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). “Accepting these facts

as true, the appellate court must then independently determine, without

deference to the conclusion of the trial court, whether the facts satisfy the

applicable legal standard.” Burnside at ¶ 8; citing State v. McNamara, 124
Lawrence App. No. 15CA20                                                      10

Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997). See also State v. Roberts,

110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. Preliminarily,

“[w]here factual issues are involved in determining a motion, the court shall

state its essential findings on the record.” Crim.R. 12(F).

      {¶ 14} Prior to initiating a custodial interrogation, law enforcement

must “inform an accused ‘that he has the right to remain silent, that anything

he says can be used against him in a court of law, that he has the right to the

presence of an attorney, and that if he cannot afford an attorney one will be

appointed for him prior to any questioning if he so desires.’ ” State v. Ulery,

4th Dist. Athens No. 07CA28, 2008-Ohio-2452, ¶ 7; quoting Miranda v.

Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602 (1966). Neither party in this case

argues that Appellant was not subject to a custodial interrogation or that

Miranda warnings were not provided to him. Thus, no further analysis is

required on this issue.

      {¶ 15} To use a statement made by the accused during a custodial

interrogation, the prosecution must show: “(1) the accused, prior to any

interrogation, was given the Miranda warnings; (2) at the receipt of the

warnings, or thereafter, the accused made ‘an express statement’ that he

desired to waive his Miranda constitutional rights; (3) the accused effected a

voluntary, knowing, and intelligent waiver of those rights.” State v.
Lawrence App. No. 15CA20                                                     11

Edwards, 49 Ohio St.2d 31, 38, 358 N.E.2d 1051 (1976) (overruled on other

grounds); citing Miranda. However, contrary to the second prong in

Edwards, the Supreme Court recently held that the prosecution “does not

need to show that a waiver of Miranda rights was express. An ‘implicit

waiver’ of the ‘right to remain silent’ is sufficient to admit a suspect's

statement into evidence.” Berghuis v. Thompkins, 560 U.S. 2250, 130 S.Ct.

2250, 2261 (2010) (Citation omitted). “Where the prosecution shows that a

Miranda warning was given and that it was understood by the accused, an

accused's uncoerced statement establishes an implied waiver of the right to

remain silent.” Id. at 2262. That is because “the law can presume that an

individual who, with a full understanding of his or her rights, acts in a

manner inconsistent with their exercise has made a deliberate choice to

relinquish the protection those rights afford.” Id.

      {¶ 16} In the case presently before us, Appellant challenges the

voluntariness of his statement, which was essentially a confession.

Voluntariness of a confession and compliance with Miranda are analytically

two separate inquires. Dickerson v. United States, 530 U.S. 428, 120 S.Ct.

2326, (2000). “[E]ven when Miranda warnings are not required, a

confession may be involuntary if on the totality of the circumstances the
Lawrence App. No. 15CA20                                                      12

“ ‘defendant’s will was overborne’ by the circumstances surrounding the

giving of a confession.” State v. Petitjean, 140 Ohio App.3d 517, 526, 748

N.E.2d 133 (2nd Dist.2000); quoting Dickerson, supra, at 434.

      {¶ 17} Here, the record reflects that Appellant was provided Miranda

warnings not once, but twice. He was verbally advised in his hotel room by

Captain Chris Bowman during the initial search and was again advised

orally and in writing by Sergeant Aaron Bollinger while he was being

questioned in the police cruiser. Again, Appellant does not argue on appeal

that he was not properly Mirandized. Instead, Appellant's motion to

suppress was based upon his contention that he was intoxicated or under the

influence of a controlled substance at the time he made his statements, thus

rendering his statements involuntary.

      {¶ 18} A review of the record reflects that the State presented

testimony by Sergeant Bollinger at the suppression hearing. Sergeant

Bollinger testified regarding the "Miranda form" that he completed and

advised Appellant of before giving his statement and the signed form was

admitted into evidence. When asked if Appellant appeared to be intoxicated

at the time he gave his statement, Sergeant Bollinger testified "No sir.

Absolutely not." He testified that he did not ask him if he was intoxicated
Lawrence App. No. 15CA20                                                          13

because there was no smell on or about his person and he did not appear to

be intoxicated or under the influence of anything.

      {¶ 19} The record before us further reflects that the trial court

listened to Appellant's recorded statement prior to issuing its decision on the

suppression motion. In its decision, the trial court stated that it listened to

the recorded statement "for the purpose of listening to the Defendant's voice,

diction, and any other evidence of being under the influence of a controlled

substance at the time the statement was being recorded." Ultimately, the

trial court detected no evidence that would have interfered with Appellant's

voluntary, knowing and intelligent waiver of his Miranda Rights and

agreement to give a statement, and denied Appellant's motion.

      {¶ 20} Based upon the record before us, and based upon the totality

of the circumstances, we cannot conclude that the trial court erred in denying

Appellant's motion to suppress. As this Court has previously noted, "a trial

court must consider drug influence when assessing voluntariness." State v.

Fox, 4th Dist. Washington No. 03CA63, 2004-Ohio-6972, ¶ 18. However,

Appellant's argument is based upon factual issues presented to the trial court

and the trial court clearly resolved this factual question in favor of the State.

Id. We find no error in that determination.
Lawrence App. No. 15CA20                                                       14

      {¶ 21} We further note Appellant argues, for the first time on appeal,

that his statements were not voluntary because he decided to speak to law

enforcement as a result of promises of leniency, or a promise to be used as a

confidential informant. First, we note that Appellant's motion to suppress

claimed only that his statement was involuntary due to his intoxication or

being under the influence. The argument that he had been promised

leniency was not included in his motion. Second, when the State introduced

Appellant's statement at trial, Appellant objected on the same grounds set

forth in his motion to suppress. The trial court noted it had already ruled on

those specific grounds, denied Appellant's motion, and then granted

Appellant a continuing objection. Thus, Appellant did not move to suppress

his statement on these grounds and did not object to the use of his statement

on these grounds at trial.

      {¶ 22} Having failed to raise the issue in the trial court, Appellant has

forfeited the right to raise it on appeal. State v. Merryman, 4th Dist. Athens

No. 12CA28, 2013-Ohio-4810, ¶ 43; citing State v. Marcinko, 4th Dist.

Washington No. 06CA51, 2007-Ohio-1166, ¶ 23; see also State v. Shindler,

70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994) (“By requiring the defendant

to state with particularity the legal and factual issues to be resolved, the

prosecutor and court are placed on notice of those issues to be heard and
Lawrence App. No. 15CA20                                                       15

decided by the court and, by omission, those issues which are otherwise

being waived.”); State v. VanHoose, 4th Dist. Pike No. 07CA765, 2008-

Ohio-1122, ¶ 18; State v. Jacobson, 4th Dist. Adams No. 01CA730, 2003-

Ohio-1201; State v. Wilson, 9th Dist. Medina No. 02CA0013-M, 2003-Ohio-

540, ¶ 16. Further, "[t]his well-settled waiver rule applies to arguments not

asserted either in a written motion to suppress or at the suppression hearing."

Columbus v. Ridley, 2015-Ohio-4968, -- N.E.2d --, ¶ 28; citing State v.

Johnson, 10th Dist. Franklin No. 13AP-637, 2014-Ohio-671, ¶ 14; State v.

Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 9; State

v. Perkins, 9th Dist. Summit No. 21322, 2003-Ohio-3156, ¶ 13; State v.

Molk, 11th Dist. Lake No. 2001-L-146, 2002-Ohio-6926. Thus, because

Appellant did not properly preserve this issue for argument on appeal, we

decline to address it.

      {¶ 23} Accordingly, because we find no error with regard to the trial

court's denial of Appellant's motion to suppress his statement, Appellant's

third assignment of error is overruled.

                         ASSIGNMENT OF ERROR II

      {¶ 24} In his second assignment of error, Appellant contends that the

trial court erred in denying his motion to dismiss based upon speedy trial

grounds. Appellant argues that the State failed to bring him to trial within
Lawrence App. No. 15CA20                                                       16

the time required by R.C. 2945.71, Ohio’s speedy trial statute. The State,

however, counters by arguing that tolling events attributable to Appellant

tolled the time in which he had to be brought to trial and that he was, in fact,

brought to trial within the time provided for in R.C. 2945.71.

      {¶ 25} Appellate review of a trial court's decision on a motion to

dismiss for a speedy-trial violation involves a mixed question of law and

fact. State v. Sinkovitz, 2014-Ohio-4492, 20 N.E.3d 1206, ¶ 6 (4th Dist.).

We defer to the trial court's factual findings if some competent, credible

evidence supports them, but we review de novo the court's application of the

law to those facts. Id. R.C. 2945.71(C)(2) provides that a person against

whom a felony charge is pending shall be brought to trial within 270 days

after arrest. If an accused is in jail in lieu of bail solely on the pending

charge, each day counts as three days for purposes of the speedy-trial

calculation. R.C. 2945.71(E).

      {¶ 26} R.C. 2945.72(H) provides that the speedy trial time may be

tolled by “[t]he period of any continuance granted on the accused's own

motion, and the period of any reasonable continuance granted other than

upon the accused's own motion.” Further, “ ‘[a]s long as the trial court's

disposition occurs within a reasonable time, a defendant's motion to suppress

tolls the speedy trial clock from the time the defendant files the motion until
Lawrence App. No. 15CA20                                                        17

the trial court disposes of the motion.’ ” State v. Gartrell, 2014-Ohio-5203,

24 N.E.3d 680, ¶ 107 (3rd Dist.); quoting State v. Curtis, 3rd Dist. Marion

No. 9-02-11, 2002-Ohio-5409, ¶ 12; State v. Waldron, 4th Dist. Ross No. 93

CA 1978, 1994 WL 510046, *2.

      {¶ 27} Here, it appears that Appellant remained incarcerated on the

underlying charges from the time of his arrest on March 20, 2015, until he

was brought to trial on August 6, 2015. Thus, the triple count provision

contained in R.C. 2945.71(E) applies and the State had 90 calendar days to

bring Appellant to trial. Based upon the dates in the record before us, and

not counting the day of his arrest, it appears 139 calendar days elapsed

between Appellant's arrest and trial. Accordingly, Appellant has presented a

prima facie speedy trial violation. However, as argued by the State, several

tolling events occurred.

      {¶ 28} Specifically, Appellant filed a request for discovery and

request for bill of particulars on April 7, 2015. While the State responded to

the request for discovery the very next day, on April 8, 2015, it did not

respond to Appellant's request for a bill of particulars until July 30, 2015.

Under R.C. 2945.72(E) and (H) respectively, the time within which an

accused must be brought to trial is extended by “[a]ny period of delay

necessitated by reason of a * * * motion, proceeding, or action made or
Lawrence App. No. 15CA20                                                                                  18

instituted by the accused” and “the period of any reasonable continuance

granted other than upon the accused's own motion.” The Supreme Court of

Ohio has also stated that “[a] demand for discovery or a bill of particulars is

a tolling event pursuant to R.C. 2945.72(E).” State v. Radabaugh, 4th Dist.

Jackson No. 06CA2, 2007-Ohio-153, ¶ 11; quoting State v. Brown, 98 Ohio

St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, paragraph one of the syllabus.

         {¶ 29} Based upon the foregoing, time was tolled against Appellant

from the date he filed his request for a bill of particulars until the State filed

the bill on July 30, 2015, resulting in 114 days of the 139 days being tolled.1

Finally, we are mindful that a defendant's motion to dismiss also tolls the

running of the speedy trial statute. State v. Radabaugh at ¶ 13; citing State v.

DePue, 96 Ohio App.3d 513, 645 N.E.2d 745 (1994) (stating “the Supreme

Court held that the speedy trial time period is tolled upon a defendant's

motion to dismiss on double jeopardy grounds); citing State v. Broughton,

62 Ohio St.3d 253, 581 N.E.2d 541 (1991); see also R.C. 2945.72(E).

Because Appellant filed a motion to dismiss based upon speedy trial grounds

on August 4, 2015, additional time was tolled before trial began on August

6, 2015.


1
  The State primarily focuses on the time tolled by the filing of Appellant's motion to suppress, as well as
the continuance of the trial date as a result of the filing of the motion to suppress. However, we find that
the time tolled by the filing of the motion to suppress is subsumed within the time tolled between the filing
of the request for the bill of particulars and the State's response thereto.
Lawrence App. No. 15CA20                                                       19

       {¶ 30} Based upon these facts, Appellant was brought to trial within

the time required by R.C. 2945.71(C)(2). As such, we cannot conclude that

the trial court erred in denying Appellant's motion to dismiss based upon

speedy trial grounds. Accordingly, Appellant's second assignment of error is

overruled.

                         ASSIGNMENT OF ERROR IV

       {¶ 31} In his fourth assignment of error, Appellant contends that the

trial court erred to his prejudice and abused its discretion when it allowed the

State to introduce rebuttal evidence without properly disclosing the evidence

in accordance with Crim.R. 16, thereby depriving him of his constitutional

right to a fair trial.

       {¶ 32} Crim.R. 16 governs discovery and provides in section (A) that

“all parties have a continuing duty to supplement their disclosures.” Under

Crim.R. 16(L)(1), “[i]f at any time during the course of the proceedings it is

brought to the attention of the court that a party has failed to comply with

this rule or with an order issued pursuant to this rule, the court may order

such party to permit the discovery or inspection, grant a continuance, or

prohibit the party from introducing in evidence the material not disclosed, or

it may make such other order as it deems just under the circumstances.” A

trial court has broad discretion in determining a sanction for a discovery
Lawrence App. No. 15CA20                                                        20

violation, and a trial court's decision will not be reversed absent an abuse of

that discretion. See State ex rel. Duncan v. Middlefield, 120 Ohio St.3d 313,

2008-Ohio-6200, 898 N.E.2d 952, ¶ 27. “A trial court abuses its discretion

when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971,

¶ 34.

        {¶ 33} Here, the State represents that it did not become aware of the

jail calls until the night before the first day of trial. As such and because

they did not intend to use the calls in their case-in-chief, the State provided

the calls to the defense at the conclusion of the first day of trial, and before

Appellant testified the next day. Thus, the record indicates that these calls

were newly discovered and Appellant presented no evidence to the contrary.

Based upon this record, there is no indication that the State willfully

withheld these telephone recordings.

        {¶ 34} Further, when previously reviewing a similar scenario, this

Court reasoned that because the appellant was the one who made the calls,

he knew that the evidence existed and could be used against him. State v.

Payton, 4th Dist. Scioto No. 14CA3628, 2015-Ohio-1796, ¶ 11; citing State

v. Lewis, 1st Dist. Hamilton Nos. C-840596, C-840607, 1985 WL 8865, *3

(“defendant should have moved for disclosure of the ‘statement;’ he knew of
Lawrence App. No. 15CA20                                                       21

its existence. [ ] His failure to do so was fatal to his claim of error”).

Additionally, in Payton this Court also reasoned that "statements contained

in jail phone calls are not statements within the meaning of Crim.R. 16(B)

and therefore need not be disclosed as part of discovery." Payton at ¶ 11;

citing State v. Lanier, 180 Ohio App.3d 376, 2008-Ohio-6906, 905 N.E.2d

687, ¶ 8-9 (vacated in part on other grounds); citing State v. Lewis, supra, at

*2.]

       {¶ 35} This Court's prior reasoning in State v. Payton applies herein

and leads us to conclude that the trial court did not err or abuse its discretion

in allowing the recorded jail calls to be used as evidence against Appellant.

Appellant knew he had placed these calls when he denied having placed

them on cross-examination during trial. Even if the State had not produced

them at all, Appellant was on notice that they existed. Accordingly,

Appellant's fourth assignment of error is overruled.

                         ASSIGNMENT OF ERROR I

       {¶ 36} In his first assignment of error, Appellant contends that the

evidence presented at trial was insufficient to support his convictions, and

that his convictions were against the manifest weight of the evidence.

“When a court reviews a record for sufficiency, ‘[t]he relevant inquiry is

whether, after viewing the evidence in a light most favorable to the
Lawrence App. No. 15CA20                                                       22

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

of the crime proven beyond a reasonable doubt.’ ” State v. Maxwell, 139

Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146; quoting State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus

(1991); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). “The court

must defer to the trier of fact on questions of credibility and the weight

assigned to the evidence.” State v. Dillard, 4th Dist. Meigs No. 13CA9,

2014-Ohio-4974, ¶ 27; citing State v. Kirkland, 140 Ohio St.3d 73, 2014-

Ohio-1966, 15 N.E.3d 818, ¶ 132.

      {¶ 37} In determining whether a criminal conviction is against the

manifest weight of the evidence, an appellate court must review the entire

record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine whether, in resolving conflicts in the

evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed. State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter,

131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. “Although a

court of appeals may determine that a judgment is sustained by sufficient

evidence, that court may nevertheless conclude that the judgment is against

the weight of the evidence.” Thompkins at 387, 678 N.E.2d 541. But the
Lawrence App. No. 15CA20                                                        23

weight and credibility of evidence are to be determined by the trier of fact.

State v. Kirkland, supra, at ¶ 132. The trier of fact is free to believe all, part,

or none of the testimony of any witness, and we defer to the trier of fact on

evidentiary weight and credibility issues because it is in the best position to

gauge the witnesses' demeanor, gestures, and voice inflections, and to use

these observations to weigh their credibility. Dillard at ¶ 28; citing State v.

West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23.

      {¶ 38} Appellant was indicted and found guilty by a jury of

aggravated trafficking in drugs and tampering with evidence. R.C. 2925.03

governs trafficking offenses and provides, in pertinent part, as follows:

      "(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.

      ***
Lawrence App. No. 15CA20                                                   24

     (C) Whoever violates division (A) of this section is guilty of

     one of the following:

     (1) If the drug involved in the violation is any compound,

     mixture, preparation, or substance included in schedule I or

     schedule II, with the exception of marihuana, cocaine, L.S.D.,

     heroin, hashish, and controlled substance analogs, whoever

     violates division (A) of this section is guilty of aggravated

     trafficking in drugs. The penalty for the offense shall be

     determined as follows:

     ***

     (d) Except as otherwise provided in this division, if the amount

     of the drug involved equals or exceeds five times the bulk

     amount but is less than fifty times the bulk amount, aggravated

     trafficking in drugs is a felony of the second degree, and the

     court shall impose as a mandatory prison term one of the prison

     terms prescribed for a felony of the second degree. If the

     amount of the drug involved is within that range and if the

     offense was committed in the vicinity of a school or in the

     vicinity of a juvenile, aggravated trafficking in drugs is a felony

     of the first degree, and the court shall impose as a mandatory
Lawrence App. No. 15CA20                                                                                 25

         prison term one of the prison terms prescribed for a felony of

         the first degree."2

         {¶ 39} Thus, for the trafficking charge, the State had to prove that

Appellant knowingly prepared for shipment, shipped, transported, delivered,

prepared for distribution, or distributed a controlled substance or a controlled

substance analog, in this case oxycodone, in an amount equaling or

exceeding five times the bulk amount but less than fifty times the bulk

amount, knowing or having reasonable cause to believe that the oxycodone

was intended for sale or resale by himself or another person. The State also

alleged and therefore had to prove that Appellant's acts in drug trafficking

were committed in the vicinity of a school.

         {¶ 40} Appellant was also convicted of tampering with evidence.

R.C. 2921.12(A)(1) governs tampering with evidence and provides, in

pertinent part, as follows:

         "(A) No person, knowing that an official proceeding or

         investigation is in progress, or is about to be or likely to be

         instituted, shall do any of the following:




2
  Although Appellant's indictment charged a violation of R.C. 2925.03(A)(2)(C)(1)(d) and that is what the
jury convicted Appellant of, the trial court's judgment entry erroneously states Appellant was convicted of a
violation of R.C. 2925.03(A)(1)(C)(1)(d).
Lawrence App. No. 15CA20                                                        26

      (1) Alter, destroy, conceal, or remove any record, document, or

      thing, with purpose to impair its value or availability as

      evidence in such proceeding or investigation[.]"

As the Supreme Court of Ohio recently held, “[t]here are three elements of

this offense: (1) knowledge of an official proceeding or investigation in

progress or likely to be instituted, (2) the alteration, destruction,

concealment, or removal of the potential evidence, (3) the purpose of

impairing the potential evidence's availability or value in such proceeding or

investigation.” State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11

N.E.2d 1175, ¶ 11.

      {¶ 41} With regard to both of the crimes for which Appellant was

charged, we note that “[a] person acts knowingly, regardless of purpose,

when the person is aware that the person's conduct will probably cause a

certain result or will probably be of a certain nature.” Further, “[a] person

has knowledge of circumstances when the person is aware that such

circumstances probably exist.” R.C. 2901.22(B). Both aggravated

trafficking in drugs and tampering with evidence contain the element of

knowledge. “[P]ossession” is defined as “having control over a thing or

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

substance through ownership or occupation of the premises upon which the
Lawrence App. No. 15CA20                                                       27

thing or substance is found.” R.C. 2925.01(K). “Possession may be actual or

constructive.” State v. Moon, 4th Dist. Adams No. 08CA875, 2009-Ohio-

4830, ¶ 19; citing State v. Butler, 42 Ohio St.3d 174, 175, 538 N.E.2d 98

(1989) (“[t]o constitute possession, it is sufficient that the defendant has

constructive possession”).

      {¶ 42} “ ‘Actual possession exists when the circumstances indicate

that an individual has or had an item within his immediate physical

possession.’ ” State v. Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148,

895 N.E.2d 633, ¶ 13 (4th Dist.); quoting State v. Fry, 4th Dist. Jackson No.

03CA26, 2004-Ohio-5747, ¶ 39. “Constructive possession exists when an

individual knowingly exercises dominion and control over an object, even

though that object may not be within his immediate physical possession.”

State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362, syllabus (1982);

State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19. For

constructive possession to exist, the State must show that the defendant was

conscious of the object's presence. Hankerson at 91, 434 N.E.2d 1362;

Kingsland at ¶ 13. Both dominion and control, and whether a person was

conscious of the object's presence may be established through circumstantial

evidence. Brown at ¶ 19.
Lawrence App. No. 15CA20                                                        28

      {¶ 43} “Although a defendant's mere proximity is in itself insufficient

to establish constructive possession, proximity to the object may constitute

some evidence of constructive possession. * * * Thus, presence in the

vicinity of contraband, coupled with another factor or factors probative of

dominion or control over the contraband, may establish constructive

possession.” Kingsland at ¶ 13; State v. Criswell, 4th Dist. Scioto No.

13CA3588, 2014-Ohio-3941, ¶ 11.

      {¶ 44} The record presently before us indicates that law enforcement

was called to the hotel in Lawrence County, Ohio, in which Appellant was a

guest, after his girlfriend left the room they occupied and reported to hotel

staff that she had been assaulted and that Appellant had drugs in the room.

When Officers Wilson and Lawson initially arrived they went to Appellant's

room whereupon Appellant granted them permission to search the room.

Appellant initially denied having any narcotics in the room. While the

search was being conducted by those officers, Sergeant Bowman arrived on

the scene. At this point the officers performing the search located a small

baggie of marijuana and Appellant received a verbal Miranda warning from

Sergeant Bowman. Officers proceeded to locate several small jewelers’

bags, which they later testified are used to re-package narcotics for sale, four
Lawrence App. No. 15CA20                                                     29

cell phones, and approximately $2,650.00 in cash for which Appellant had

no legitimate explanation.

      {¶ 45} Further, during the search of the hotel room, Sergeant

Bowman testified that the hotel manager motioned him into the hallway and

told him that a worker had reported that she saw Appellant exit the hotel

down a back staircase just prior to police arriving and that the maintenance

man had found narcotics in the outside trash can where Appellant had exited.

Sergeant Bowman left the room and retrieved a baggie of pills from the trash

can. When Bowman confronted Appellant about finding the pills in the

trash Appellant initially denied they were his. Bowman then told Appellant

that he watched Appellant on video as he put the pills in the trash, at which

point Appellant admitted the pills were his. Appellant told Bowman that he

thought the police would be coming after his girlfriend yelled out in the

hallway and he wanted to get rid of the pills, so he "stashed" them in the

trash can. The pills were later tested by BCI and determined to consist of

159 oxycodone pills in amounts of 30 mg. and 15 mg., totaling

approximately 3,825 mg., which is more than five times the bulk amount and

have a street value of approximately $7,000.00.

      {¶ 46} Sergeant Bowman testified that in an attempt to gain

intelligence from Appellant, Officer Wilson transported Appellant to another
Lawrence App. No. 15CA20                                                         30

location where they could interview him privately and take a recorded

statement. Sergeant Bollinger and Detective Newman were present during

the interview, which took place in the parking lot behind a Buffalo Wild

Wings restaurant. Sergeant Bollinger again Mirandized Appellant and

obtained a signed waiver of Appellant's Miranda rights. During his recorded

interview, Appellant told the officers that he and girlfriend Ronita Butler got

into an argument which escalated in the hotel room, at which point she went

into the hallway and told a hotel worker that Appellant had "dope" in the

room and then she left. Appellant stated that he then went outside and

"stashed" the drugs in a trash can. He told the officers that the pills came

from three different sources in Detroit and Atlanta and that he had gotten

400 pills from his girlfriend's mother, Bonita Butler, the previous Monday.

He told the officers he believed he had about 200 pills left at that time. He

further told the officers that he dropped pills off to various individuals and

later picked the money up for Bonita. He stated that he had most recently

dropped pills off to individuals named Thibodauxs in Ironton, Ohio.

      {¶ 47} We have already determined above that Appellant's statement

or confession given to law enforcement on the day of his arrest was

voluntary and admissible as evidence against him. We further determined

that subsequent calls made from the jail by Appellant to both Bonita Butler
Lawrence App. No. 15CA20                                                       31

and Ashley Thibodaux were admissible as evidence against Appellant.

Based upon this evidence as well as the evidence found in the hotel room

during the search we cannot conclude that Appellant's convictions are

against the manifest weight of the evidence.

      {¶ 48} Appellant argues, with respect to the drug trafficking charge,

"[t]he evidence below simply does not support any conviction for trafficking

or possession of drugs[,]" and therefore, "the State of Ohio must prove

constructive possession in order for the Defendant-Appellant to traffic in

drugs." We disagree. Initially, we note that Appellant was not charged or

convicted of possession of drugs. However, understanding that possession is

implicit in trafficking, we acknowledge Appellant's argument. Appellant

seems to base this argument on the premise that his confession was

involuntary and inadmissible. Because we have already determined that

Appellant's recorded statement, which was essentially a confession, was

voluntary and admissible, we reject Appellant's argument. By Appellant's

own account he received 400 pills to distribute for sale, he had distributed

approximately 200 of them and still had in his possession approximately 200

of them. He also admitted that the pills found in the trash were his. Thus,

there is evidence that Appellant had actual possession of the drugs at issue.
Lawrence App. No. 15CA20                                                     32

      {¶ 49} Appellant further argues, with respect to the tampering with

evidence charge, that "[t]here is no way the Defendant-Appellant could have

known a law enforcement investigation could have been in progress at the

time of the alleged tampering with evidence." Again, Appellant seems to

base this argument on the premise that his confession was involuntary and

inadmissible. Because we have already determined that Appellant's

recorded statement was voluntary and admissible, we reject Appellant's

argument. By his own account Appellant thought that an investigation was

likely to occur and therefore he "stashed" the drugs in the trash. We believe

this conduct certainly constitutes tampering with evidence.

      {¶ 50} After reviewing the record, weighing the evidence and all

reasonable inferences, and considering the credibility of witnesses, we find

that the jury did not clearly lose its way and create such a manifest

miscarriage of justice that we must reverse Appellant’s convictions.

Moreover, “ ‘[w]hen an appellate court concludes that the weight of the

evidence supports a defendant's conviction, this conclusion necessarily also

includes a finding that sufficient evidence supports the conviction.’ ” State v.

Crocker, 2015-Ohio-2528, 38 N.E.3d 369 N.E.3d 369, ¶ 29 (4th Dist.);

citing State v. Adkins, 4th Dist. Lawrence No. 13CA17, 2014-Ohio-3389,
Lawrence App. No. 15CA20                                                     33

¶ 27. Having already determined that Appellant’s aggravated trafficking in

drugs and tampering with evidence convictions are not against the manifest

weight of the evidence, we necessarily reject Appellant’s additional claim

that his convictions are not supported by sufficient evidence. Thus,

Appellant’s first assignment of error is overruled. Accordingly, the

judgment of the trial court is affirmed.

                                               JUDGMENT AFFIRMED.
Lawrence App. No. 15CA20                                                        34

Harsha, J., concurring in part and dissenting in part:

       {¶ 51} I concur in judgment only in the majority’s opinion on

Shelby’s second and fourth assignments of error, concur in judgment and

opinion on the Shelby’s first and third assignments of error, and dissent from

the failure to require the trial court to correct the clerical error in its

sentencing entry.

       {¶ 52} Shelby’s second assignment of error asserts that the state

failed to bring him to trial within the time required by R.C. 2945.71. As the

majority concludes, 139 days elapsed from Shelby’s arrest until his trial so

he has presented a prima facie speedy-trial violation, i.e., more than the 90

days specified in R.C 2945.71(C)(2) and (E). But the majority opinion

neglects to mention the result of Shelby’s proof of a prima facie speedy-trial

violation: the burden then shifted to the state to show that the speedy-trial

limit had not expired because R.C. 2945.72 extended it. See State v. Hucks,

4th Dist. Ross No. 15CA3488, 2016-Ohio-323, ¶ 20, citing State v. Davis,

4th Dist. Scioto No. 12CA3506, 2013-Ohio-5311, ¶ 19.

       {¶ 53} The majority concludes that the state’s 114-day delay in

responding to Shelby’s request for a bill of particulars tolled the speedy-trial

clock. This ignores the requirement that any delay in responding to the

defendant’s request be a reasonable time, which is often interpreted to mean
Lawrence App. No. 15CA20                                                        35

30 days. See Hucks at ¶ 24, and cases cited there noting that it has been

widely held that 30 days is a reasonable time to respond to a defendant’s

demand for discovery; see also State v. Johnson, 12th Dist. Butler No.

CA2011-09-169, 2013-Ohio-856, ¶ 34 (motions for discovery and bill of

particulars toll the speedy-trial time for a reasonable time—in that case the

state complied with both requests 13 days later). There is simply nothing in

the record indicating that the state’s 114-day time to respond to the request

for a bill of particulars was reasonable, especially considering it took the

state only one day to respond to Shelby’s demand for discovery. This case

involved only two charges. Consequently, the majority errs in concluding

that this entire 114-day period was tolled.

      {¶ 54} Nevertheless, I agree with the state’s alternate contention that

Shelby’s motion to suppress tolled the speedy-trial because it necessitated

the continuance of the original trial date so that when combined with a

reasonable 30-day period to respond to the request for a bill of particulars,

Shelby was tried within the 90-day speedy-trial period. Therefore, I concur

in overruling Shelby’s second assignment of error, albeit for different

reasons than that expressed in the majority opinion.

      {¶ 55} In his fourth assignment of error Shelby contends that the trial

court erred when it allowed the state to introduce rebuttal evidence in
Lawrence App. No. 15CA20                                                       36

violation of Crim.R. 16 and his constitutional right to a fair trial. As the

majority notes, Shelby himself made the statements in question—jail calls—

so he knew they existed and he received the transcripts of the statements

before he testified. Consequently, Shelby cannot show that earlier

disclosure of these statements would have benefitted the preparation of his

defense or that he suffered unfair prejudice.

      {¶ 56} I would go no further in the analysis of Shelby’s fourth

assignment of error, i.e., I would not address the additional question of

whether the statements are discoverable under Crim.R. 16(B)(1). The

majority’s conclusion that we held in Payton, 2015-Ohio-1796, at ¶ 11 that

“statements contained in jail phone calls are not statements within the

meaning of Crim.R. 16(B) and therefore need not be disclosed as part of

discovery” is questionable. That quote was preceded in Payton by this

language: “at least one court has held that”, which merely indicates

recognition rather than adoption of that nonbinding precedent. Thus that

discussion is best viewed as obiter dictum. Not addressing this issue here

advances the core legal principle of judicial restraint. See State ex rel. Asti v.

Ohio Dept. of Youth Servs., 107 Ohio St.3d 262, 2005-Ohio-6432, 838

N.E.2d 658, ¶ 34, quoting PDK Laboratories, Inc. v. United States Drug

Enforcement Administration (D.C.Cir.2004), 362 F.3d 786, 799 (Roberts, J.,
Lawrence App. No. 15CA20                                                        37

concurring in part and in the judgment) (“ ‘This is a sufficient ground for

deciding this case, and the cardinal principle of judicial restraint—if it is not

necessary to decide more, it is necessary not to decide more—counsels us to

go no further’ ”); see also State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317,

¶ 31 (4th Dist.).

      {¶ 57} Finally, as the majority opinion notes in footnote 2, the trial

court erred by stating that Shelby was convicted of trafficking in drugs in

violation of R.C. 2925.02(A)(1)(C)(1)(d) because he was actually convicted

of trafficking in drugs in violation of R.C. 2925.03(A)(2)(C)(1)(d). Under

App.R. 9(E), “[i]f anything material to either party * * * is misstated, * * *

the court of appeals, on proper suggestion or of its own initiative, may direct

that * * * misstatement be corrected * * *.” As we have in comparable

circumstances, I would exercise that discretion here to remand the cause to

the trial court to correct the clerical error in its sentencing entry. See State v.

Frye, 4th Dist. Scioto No. 14CA3604, 2014-Ohio-5016, ¶ 20.
Lawrence App. No. 15CA20                                                       38

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Lawrence County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Part and Dissents in Part with Opinion.

                                        For the Court,

                                 BY: ______________________________
                                     Matthew W. McFarland, Judge


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