[Cite as State v. Bell, 2012-Ohio-2624.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA




                               JOURNAL ENTRY AND OPINION
                                       No. 97123



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                           ROY BELL
                                                    DEFENDANT-APPELLANT



                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-546560

        BEFORE: E. Gallagher, J., Boyle, P.J., and Kilbane, J.
        RELEASED AND JOURNALIZED: June 14, 2012
ATTORNEYS FOR APPELLANT

S. Michael Lear
Richard L. Fenbert
Brian A. Murray
Zukerman, Daiker & Lear Co., LPA
3912 Prospect Ave., East
Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Margaret A. Troia
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Defendant-appellant, Roy Bell, appeals convictions entered in the

Cuyahoga County Court of Common Pleas. Appellant argues that the trial court erred in

providing incorrect jury instructions, improperly admitting prejudicial tax records, failing

to merge allied offenses, denying appellant’s motion for acquittal, and imposing

disproportionate sentences.    Appellant further argues that he was denied effective

assistance of counsel and his convictions were against the manifest weight of the

evidence. For the following reasons, we reverse and remand.

       {¶2} Appellant, Glenroy Gordon, Derrick Williams and Reginald Cromity were

charged in an eight-count indictment. On July 14, 2011, the case proceeded to a jury

trial against appellant and codefendant Gordon only. In Count 1, appellant was charged

with trafficking (marijuana) in violation of R.C. 2925.03(A)(1), with a schoolyard

specification. In Count 2, appellant was charged with trafficking (marijuana) in violation

of R.C. 2925.03(A)(2), with a schoolyard specification. In Count 3, appellant was

charged with drug possession (marijuana). In Count 4, appellant was charged with

trafficking (marijuana) in violation of R.C. 2925.03(A)(1). In Count 5, appellant was

charged with trafficking (marijuana) in violation of R.C. 2925.03(A)(2). In Count 6,

appellant was charged with drug possession (marijuana). In Count 7, appellant was

charged with possessing criminal tools, with a specification that the property was used in
 commission of a felony.           Each of Counts 1 through 7 included nine forfeiture

 specifications, but each did not reference appellant.1 In Count 8, appellant was charged

 with falsification.

           {¶3} It was the state’s evidence at trial that on November 8, 2010, a confidential

 informant, Christopher Thomas, told Cleveland Police Detective Michael Alexander that

 he could purchase marijuana from Reginald Cromity. Thomas described Cromity as a

 middleman, and expected Cromity to contact his supplier as a part of the purchase.

           {¶4} On November 9, 2010, Detective Alexander arranged a “buy/bust” with

 Thomas, wherein an arrest would occur as soon as the drug transaction took place.

 Under surveillance, Thomas traveled to Cromity’s residence. However, after waiting

 several hours, the supplier did not appear and the buy/bust did not occur on that day.

           {¶5} On November 10, 2010, Alexander contacted Thomas in the morning to set

 up another purchase of marijuana from Cromity. Upon arrival at Cromity’s residence,

 Thomas waited inside Cromity’s house for about an hour before he received a text

 message from Alexander to “wrap it up.” Thomas left the house and went to a meeting

 point, where he asked the detectives to wait 10 or 15 more minutes. During that time,

 Cromity again called Thomas and Thomas returned to Cromity’s house.

           {¶6} Upon his return, Thomas parked his car on the street, and waited with


          The forfeiture specifications against appellant included: a digital scale, eight cell phones,
       1


$325.00 in U.S. currency, $12,110.00 in U.S. currency, a 1999 Ford Expedition, a 2001 GMC Van,
and other property (personal papers, packaging materials, computer system and hard drives, money
counter, friend badge, two GPS devices, credit cards and/or clothing).
Cromity in Cromity’s car for fifteen to thirty minutes when a Ford Expedition2 arrived

and parked behind Thomas’s car. Cromity and Thomas then went to Thomas’s car,

because that is where Thomas had left the buy money. Cromity took the buy money

from Thomas and entered the back seat of the Expedition. Cromity returned to Thomas’s

car less than five minutes later with a shopping bag that contained five pounds of

marijuana.     On delivery, Thomas ordered an additional three pounds of marijuana.

Cromity returned to the Expedition and leaned into the vehicle at the rear passenger side.

 After about a minute, Cromity again returned to Thomas’s car, and Thomas was

informed that he would receive the additional three pounds within an hour.            The

Expedition was then driven, under surveillance, to a clothing store named “Klymaxx”

that was also under police surveillance as part of the operation and where appellant was

observed exiting the passenger side of the vehicle.

          {¶7} The state presented the testimony of Derrick Williams, the driver of the

Expedition, and Cromity each of whom were originally indicted as codefendants but who

had entered into plea deals with the state of Ohio prior to appellant’s trial.

          {¶8} Williams testified that on November 9, 2010, appellant contacted him

stating “he got some marijuana if I know somebody that wants some.”              Williams

indicated that he knew someone interested in purchasing the marijuana. Williams

traveled to the clothing store where appellant took marijuana out of a GMC van and


          Thomas described the vehicle as a Ford Explorer.
      2
placed it in Williams’s Expedition. Williams then took the marijuana he received from

appellant to a Save-A-Lot store but the intended purchaser, “Bruce,” did not show up.

Williams testified that appellant called him and stated if he did not use the marijuana,

appellant needed it back. Williams then met with appellant who entered Williams’s

vehicle and the two men drove to Cromity’s residence. Upon arrival, appellant exited

the Expedition and spoke with someone on the porch, but no sale of marijuana occurred.

 Williams returned appellant to his car and returned the five pounds of marijuana to

appellant.

       {¶9} On the morning of November 10, 2010, Williams testified that “Bruce”

contacted him seeking eight pounds of marijuana. Williams went to Klymaxx to pick up

eight pounds of marijuana from appellant. After “Bruce” failed to appear, appellant

returned home with the marijuana at which appellant contacted him and instructed him to

bring five pounds of marijuana to him. On arrival at Klymaxx, appellant entered the

passenger seat of an Expedition and asked Williams to drive back to Cromity’s residence

where Williams parked behind Thomas’s car.

       {¶10} Both Cromity and Williams testified that Cromity entered the Expedition’s

back seat, and appellant handed a shopping bag containing five pounds of marijuana to

Cromity. Both Cromity and Williams testified that Cromity took the bag to Thomas’s

vehicle, where Thomas accepted the marijuana, gave money to Cromity and requested an

additional three pounds of marijuana for him. Cromity returned to the Expedition where

he handed appellant the buy money and asked for an additional three pounds. Appellant
agreed to return with that marijuana in thirty to thirty-five minutes. Williams and

appellant drove to Klymaxx where appellant instructed Williams to retrieve the

additional three pounds of marijuana from Williams’s home. Appellant left the buy

money with Williams and planned on retrieving the money from Williams’s home later

that evening. After dropping the buy money off at his home, Williams returned to

Klymaxx with the three pounds of marijuana.         Appellant told Williams to go to

Cromity’s residence to deliver the three pounds of marijuana and call him after the fact.

On his way to Cromity’s residence, Williams was pulled over by law enforcement

officers who found three pounds of marijuana in the back seat of the Expedition as well

as $250 of the buy money that had been previously photocopied by the officers for

identification purposes.

       {¶11} After Williams and the Expedition had been detained, officers converged

on Klymaxx and secured it while waiting for a search warrant. At the store, officers

recovered $12,000 in U.S. currency found in a hidden compartment wrapped in foil and

paper towels, an additional $311 from appellant, three cell phones found in a pair of

jeans located near appellant, a small amount of marijuana in appellant’s possession,

$3,200 from Glenroy Gordon ($250 of which was photocopy-identified buy money),

personal papers and other property.       The police also stopped a vehicle leaving

Williams’s residence and driven by Williams’s wife, which contained a digital scale, a

cell phone and $4,500 in photocopy-identified buy money. A total of $5,000 of the

$6,000 buy money was recovered. All eight pounds of marijuana that was recovered
were individually contained in one-pound bags.

         {¶12} The jury found appellant guilty as charged but for Count 8 that had been

dismissed by the state. Furthermore, under Counts 1 through 7, the jury found that

appellant must forfeit the 2001 GMC Van, 1999 Ford Expedition and a cell phone.

Appellant was found not guilty of the six other forfeiture specifications.

         {¶13} The guilty verdicts are reflected in the trial court’s journal entry but it is of

grave concern to this court that the verdict forms are not part of the record before this

court.

         {¶14} At the sentencing hearing on July 25, 2011, the trial court merged as allied

offenses Counts 3 and 6 into Counts 2 and 5, respectively. Appellant was sentenced to a

prison term of seven years on each of Counts 1 and 2, five years on each of Counts 4 and

5, and one year on Count 7, to be served consecutively. Appellant appeals, raising the

eight assignments of error contained in the appendix to this opinion.

         {¶15} Appellant’s first assignment of error states:

         The trial court erred to the prejudice of Appellant by instructing the jury on
         the definition of preponderance of the evidence without specifying that
         preponderance of the evidence applied solely to the forfeiture
         specifications, thus creating confusion and the possibility of burden
         shifting, in violation of Appellant’s state and federal constitutional rights
         to due process of law, as guaranteed by the Fourteenth Amendment to the
         United States Constitution and Article I, Section 16 of the Constitution of
         the State of Ohio.

         {¶16} The record reflects that the trial court properly defined the reasonable doubt

standard and instructed the jury that the appellant must be acquitted unless the state
produced evidence that convinced the jury beyond a reasonable doubt of every essential

element of the offense(s) charged.

       {¶17} The trial court also explained that if the jury returned a guilty verdict on

Count 1 they must further “decide the 10 additional factual questions, that is, the

schoolyard specification and the nine forfeiture specifications” in Count 1. Specifically,

the trial court stated:

       The forfeiture specifications, ladies and gentlemen, there are numerous
       forfeiture specifications. The state claims that defendant’s right, title and
       interest in the scale or scales used to weigh the drugs are subject to
       forfeiture to the state of Ohio. You will return a verdict of forfeiture if
       you find by the greater weight of the evidence that the scale used to weigh
       the drugs constituted and/or was contraband involved in the offense and/or
       property derived from or through the commission or facilitation of the
       offense and/or is an instrumentality the offender used or intended to use in
       the commission of the felony offense and the use or intended use was
       sufficient to warrant forfeiture.

       ***

       The preponderance of the evidence is the greater weight of the evidence,
       ladies and gentlemen. That is, evidence that you believe because it
       outweighs or overbalances in your minds the evidence opposed to it.

       A preponderance means evidence that is more probable, more persuasive
       or of greater probative value. It is the quality of the evidence that must be
       weighed, ladies and gentlemen. Quality may or may not be identical with
       quantity or the greater number of witnesses.

       ***

       If the weight of the evidence is equally balanced or if you’re unable to
       determine which side of an issue has the preponderance, then the defendant
       has not established such issue.” (Emphasis added.)
       {¶18}    The trial court instructed the jury regarding each of the individual

forfeiture specifications and then instructed on Counts 2 through 7, in each instance

explaining that in order to convict, the jury must find defendant guilty beyond a

reasonable doubt of the individual crimes.

       {¶19}     Appellant argues that the trial court’s instruction regarding the

preponderance of the evidence standard was confusing because the court did not explain

that the preponderance of the evidence standard applied only to the forfeiture

specifications and not the schoolyard specification or the other counts in the indictment.

       {¶20} As an initial matter we note that the trial court misstated that the burden of

proof in regard to the forfeiture specifications was upon the appellant as opposed to the

state. R.C. 2981.04(B) requires the state to prove by a preponderance of the evidence

that the subject property is in whole or part subject to forfeiture under R.C. 2981.02.

See also State v. Parra, 8th Dist. No. 95619, 2011-Ohio-3977, ¶ 61.

       {¶21}   The record reflects that appellant objected at trial to the trial court’s

instruction. The trial court overruled the objection referencing Ohio Jury Instructions.

O.J.I. 417.29 is the only portion of the criminal jury instructions that defines

preponderance of the evidence and it is included in a section on affirmative defenses.

However, that particular recitation of the preponderance of the evidence standard places

the burden on the defendant in relation to the establishment of affirmative defenses and

was inappropriate in the present instance.
       {¶22} Appellant argues that the trial court’s misstatement of the preponderance of

the evidence standard contaminated the instructions for the schoolyard specifications as

well as the instructions relating to each separate count in the indictment.

       {¶23}   This court must review jury instructions in the context of the entire

charge. State v. Hardy, 28 Ohio St.2d 89, 92, 276 N.E.2d 247 (1971). In Hardy, the

Ohio Supreme Court held:

       In determining the question of prejudicial error in instructions to the jury,
       the charge must be taken as a whole, and the portion that is claimed to be
       erroneous or incomplete must be considered in its relation to, and as it
       affects and is affected by the other parts of the charge. If from the entire
       charge it appears that a correct statement of the law was given in such a
       manner that the jury could not have been misled, no prejudicial error
       results. Id.

       {¶24} While unquestionably confusing, taken as a whole and in context, this

court cannot find the trial court’s instructions amounted to error as to all of the counts

for which appellant was found guilty because for each separate count the trial court

reiterated that the applicable burden of proof was beyond a reasonable doubt.

       {¶25} We do find, however, that the trial court’s preponderance of the evidence

instruction resulted in prejudicial error to the appellant in regards to both the forfeiture

specifications for which the instruction was clearly erroneous and the schoolyard

specifications in Counts 1 and 2. Schoolyard specifications must be proven by the state

beyond a reasonable doubt. State v. Curiale, 8th Dist. No. 94290, 2010-Ohio-6018, at ¶

13. The trial court failed to include this point in the jury instructions and instead stated

that if the jury’s verdict was guilty it then must, “decide the 10 additional factual
questions, that is, the schoolyard specification and the nine forfeiture specifications.”

The only burden of proof the trial court provided in regards to the schoolyard

specifications and the forfeiture specifications was the erroneous preponderance of the

evidence instruction.

           {¶26} Furthermore, we note that the trial court erroneously failed to differentiate

between the forfeiture specifications that applied to only appellant and the forfeiture

specifications that applied only to appellant’s codefendant, Glenroy Gordon.

Specifically, the trial court’s instructions regarding the forfeiture of money recovered

from the defendants failed to note that the $3,200 forfeiture specification applied only to

defendant Gordon and the $325 and $12,110 forfeiture specifications applied only to

appellant; the jury returned verdicts in appellant’s case as to each specification, whether

he was named in them by virtue of the indictment or not.

           {¶27} Appellant’s first assignment of error is sustained, in part.3

           {¶28} Appellant’s second assignment of error states:

           The trial court erred to the prejudice of Appellant by instructing the jury
           that Derrick Williams and Reginald Cromity were accomplices and by
           failing to instruct the jury in conformity with ORC 2923.03(D), in violation
           of Appellant’s state and federal constitutional rights to due process of law,
           as guaranteed by the Fourteenth Amendment to the United States
           Constitution and Article I, Section 16 of the Constitution of the State of

         Appellant further argues that the trial court erred in instructing that the jury “must decide
       3


separately the question of the guilt or innocence of each of the two defendants.” Appellant’s
argument is without merit on this point as this court has previously held such an instruction to be
proper where the jury must separately consider the evidence applicable to each defendant as though he
were being tried separately. State v. Fannin, 8th Dist. No. 80014, 2002-Ohio-4180, at ¶ 42.
       Ohio.

       {¶29}    The record reflects that appellant failed to object to the trial court’s

accomplice instruction.

       {¶30} Crim.R. 30(A) provides in pertinent part:

       On appeal, a party may not assign as error the giving or the failure to give
       any instructions unless the party objects before the jury retires to consider
       its verdict, stating specifically the matter objected to and the grounds of the
       objection.

       {¶31} Pursuant to this rule, the failure to object to a jury instruction in a timely

manner generally constitutes a waiver of any claimed error relative to the instructions.

State v. Majid, 8th Dist. No. 96855, 2012-Ohio-1192, at ¶ 72, citing State v. Underwood,

3 Ohio St.3d 12, 444 N.E.2d 1332 (1st Dist.1983), syllabus.

       {¶32} Under Crim.R. 52(B), however, this court has the power to recognize plain

error or defects involving substantial rights even if they are not brought to the attention

of the trial court. State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990).

       {¶33}    Notice of plain error is to be taken with the utmost caution, under

exceptional circumstances, and only to prevent a manifest miscarriage of justice. State

v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). An error does not rise to the level of

plain error unless, but for the error, the outcome of the trial would have been different.

Long at paragraph two of the syllabus.

       {¶34} Appellant complains that the following instruction constituted plain error

that compromised his right to a fair trial:
      You have heard the testimony from Derrick Williams and Reginald
      Cromity as well as the confidential informant, Mr. Thomas. These are
      other people who have pleaded guilty to or accused of the same crime
      charged in this case and are said to be accomplices, although Mr. Thomas
      had a separate case, which I know you are familiar with. An accomplice
      is one who purposely and/or knowingly assists or joins another in the
      commission of a crime. Whether Derrick Williams and Reginald Cromity
      were accomplices and the weight to give their testimony are matters for
      you to determine.

      The Testimony of a witness who you find to be an accomplice should be
      viewed with grave suspicion and weighed with great caution.

      {¶35} Appellant argues that the trial court’s accomplice instruction essentially

instructed the jury that Williams and Cromity were in complicity with appellant and that

the instruction did not comport with R.C. 2923.03(D).

      {¶36} R.C. 2923.03(D) provides:

      (D) If an alleged accomplice of the defendant testifies against the
      defendant in a case in which the defendant is charged with complicity in
      the commission of or an attempt to commit an offense, an attempt to
      commit an offense, or an offense, the court, when it charges the jury, shall
      state substantially the following:

      The testimony of an accomplice does not become inadmissible because of
      his complicity, moral turpitude, or self-interest, but the admitted or claimed
      complicity of a witness may affect his credibility and make his testimony
      subject to grave suspicion, and require that it be weighed with great
      caution.

      It is for you, as jurors, in the light of all the facts presented to you from the
      witness stand, to evaluate such testimony and to determine its quality and
      worth or its lack of quality and worth.

      {¶37} The trial court’s instruction employed a standard jury instruction for the

testimony of an accomplice from the Ohio Jury Instructions. See 2 CR Ohio Jury
Instructions, Section 409.17, alternative number one. The particular instruction as used

by the trial court in this case informed the jury that the testimony of an accomplice

should be viewed with suspicion and weighed with caution. Such an instruction has

been held to substantially comply with R.C. 2923.03(D). State v. Adams, 9th Dist. No.

2621, 1992 WL 36156 (Feb. 26, 1992).

       {¶38} Appellant’s second assignment of error is overruled.

       {¶39} Appellant’s third assignment of error states:

       The Preparation and Performance of Appellant’s Trial Counsel was
       deficient and prejudiced Appellant in such a way as to violate the
       Appellant’s state and federal constitutional rights to effective assistance of
       counsel, as guaranteed by the Sixth and Fourteenth Amendments to the
       United States Constitution and Article 1, Section 10 of the Ohio
       Constitution.

       {¶40} In order to prevail on a claim for ineffective assistance of counsel, the

defendant must show (1) that counsel’s performance was deficient and (2) that the

deficient performance prejudiced the defense so as to deprive the defendant of a fair

trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Counsel’s performance may

be found to be deficient if counsel “made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Strickland at 687. To establish prejudice, “the defendant must prove that there exists a

reasonable probability that, were it not for counsel’s errors, the result of the trial would

have been different.” Bradley at 143.
       {¶41} In determining whether counsel’s performance fell below an objective

standard of reasonableness, “[j]udicial scrutiny of counsel’s performance must be highly

deferential.”   Strickland at 689. Because of the difficulties inherent in determining

whether counsel rendered effective assistance in any given case, a strong presumption

exists that counsel’s conduct fell within the wide range of reasonable, professional

assistance. Id.

       {¶42} In considering a claim of ineffective assistance of counsel, an appellate

court need not examine counsel’s performance if the defendant fails to prove the second

prong of prejudicial effect. Bradley at 143. “The object of an ineffectiveness claim is not

to grade counsel’s performance.” Id.

       {¶43} Appellant argues that his counsel was ineffective for failing to file a

motion to reveal any deals entered into between the state and the state’s witnesses

against him. Appellant further asserts that his counsel was ineffective for failing to

question the state’s witnesses regarding the number of years such deals reduced the

witnesses’ potential prison terms as opposed to the reduction in felony degree levels

upon which appellant’s counsel did question the witnesses.

       {¶44} In the present instance appellant has failed to demonstrate any prejudice.

Appellant’s counsel questioned the state’s witnesses regarding their plea agreements,

including the lesser charges they pled guilty to and their agreements to testify against

appellant. This court has previously stated:

       While we agree that a plea bargain may provide a motive to misrepresent
       the facts, and therefore is a proper subject of cross-examination. Compare
       Evid.R. 616(A), the specific extent of the benefit the plea bargain provided
       to the witness is not relevant to this purpose. The fact that the witnesses
       agreed to plead guilty to lesser charges and to testify against appellant is
       sufficient to demonstrate the witness’ potential motive to misrepresent the
       facts. A comparison of the potential penalties under the plea agreement
       versus the original charges does not add to this demonstration. State v.
       Gresham, 8th Dist. No. 81250, 2003-Ohio-744, at ¶ 9.

       {¶45} Appellant’s argument is without merit and his third assignment of error is

overruled.

       {¶46} For ease of discussion we address fifth and sixth assignments of error out

of order.

       {¶47} Appellant’s fifth assignment of error states:

       The trial court erred as a matter of law and to the prejudice of Appellant by
       denying Appellant’s motions for judgment of acquittal, as to Count Four of
       the indictment, pursuant to Crim. R. 29(A), in violation of Appellant’s
       right to due process of law, as guaranteed by the Fourteenth Amendment to
       the United States Constitution and Article 1, Section 16 of the Ohio
       Constitution.

       {¶48} Appellant argues that his motion for judgment of acquittal, as to Count 4

of the indictment, made pursuant to Crim.R. 29(A), was improperly denied by the trial

court because the state of Ohio failed to offer sufficient evidence to sustain a conviction.

       {¶49} Pursuant to Crim.R. 29(A), a court “shall order the entry of a judgment of

acquittal of one or more offenses * * * if the evidence is insufficient to sustain a

conviction of such offense or offenses.”

       {¶50}     An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction 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. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime proven beyond a reasonable

doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus, (superseded by statute and constitutional amendment on other grounds). A

reviewing court is not to assess “whether the state’s evidence is to be believed, but

whether, if believed, the evidence against a defendant would support a conviction.”

State v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541 (Cook, J.,

concurring).

      {¶51} The elements of the trafficking offense for which appellant was convicted

under Count 4 are set forth in statute. R.C. 2925.03(A)(1) provides:

      (A) No person shall knowingly do any of the following:

      (1) Sell or offer to sell a controlled substance.

      {¶52} Appellant argues that the evidence offered by the state was insufficient as a

matter of law to establish that appellant offered to sell an additional three pounds of

marijuana because the state only offered the testimony of Williams and Cromity.

Contrary to appellant’s argument, both circumstantial and direct testimony was

introduced at trial that appellant knowingly offered to sell an additional three pounds of

marijuana. Both Cromity and Thomas testified that Thomas ordered three additional
pounds of marijuana after the first transaction.     Cromity testified that he informed

appellant of the order and appellant agreed to return with the additional marijuana in 30

to 35 minutes. Williams testified that Cromity asked appellant for three additional

pounds, and appellant instructed Williams to retrieve the additional marijuana and to

deliver it to Cromity.

       {¶53} When viewing the evidence in a light most favorable to the state, there

was sufficient evidence to prove every element of Count 4 beyond a reasonable doubt.

       {¶54} Appellant’s fifth assignment of error is overruled.

       {¶55} Appellant’s sixth assignment of error states:

       The trial court erred to the prejudice of Appellant by admitting, over
       Appellant’s objection, tax records establishing that Appellant did not
       disclose any income for the tax years 2005-2009.

       {¶56} Appellant argues that the trial court erred in admitting state’s Exhibit 53, a

certification of absence of records from the Ohio Department of Taxation that revealed

that appellant had no income tax returns on file for the years 2005 through 2009.

Appellant reiterates the argument he presented at trial that this record constituted

impermissible other acts evidence and allowed the jury to draw from the record an

inference that appellant is a drug dealer. The state argues that the record supported its

case in regards to the forfeiture specifications and allowed the inference that the money

recovered from appellant’s person and from inside Klymaxx constituted drug proceeds

rather than legitimate income.
       {¶57} The decision to admit or exclude relevant evidence is within the sound

discretion of the trial court. State v. Bey, 85 Ohio St.3d 487, 490, 709 N.E.2d 484

(1999). Pursuant to Evid.R. 403(A), relevant evidence “is not admissible if its probative

value is substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury.” Furthermore, Evid.R. 404(B) states that “[e]vidence

of other crimes, wrongs, or acts is not admissible to prove the character of a person in

order to show action in conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” See also R.C. 2945.59.

       “The rule lists purposes for which evidence of prior [acts] may be
       presented, but the list is illustrative rather than exhaustive because the rule
       forbids only the use of prior-[acts] evidence to show that since the
       defendant committed crimes in the past, probably he committed the crime
       of which he is now accused * * *.” State v. Yancy, 8th Dist Nos. 96527
       and 96528, 2011-Ohio-6274, at ¶ 9, quoting U.S. v. Edwards (C.A.7,
       2009), 581 F.3d 604, 608. Despite this exception, even when other-acts
       evidence is otherwise admissible, it is limited by relevancy or unfair
       prejudice considerations. Id., citing Evid.R. 402, 403.

       {¶58} In this case the trial court abused its discretion in admitting the state’s

record reflecting appellant’s lack of tax filings for the years 2005 through 2009. The

danger of unfair prejudice to appellant, by way of the implication that his vacant tax

record reflected his career path as a drug dealer, substantially outweighed any probative

value that the records provided in regards to the forfeiture specifications.         This is

particularly the case where as here, the tax records introduced traced back as far as five

years prior to the alleged criminal conduct.
       {¶59} This does not, however, end our inquiry. Id., citing State v. Knuckles, 8th

Dist. No. 96078, 2011-Ohio-4242, ¶ 14. Appellant objected to the admission of the

evidence at trial, and therefore harmless-error analysis is appropriate. State v. Dixon,

Scioto App. No. 09CA3312, 2010-Ohio-5032, ¶ 42. Pursuant to Crim.R. 52(A) any

error, defect, irregularity, or variance that does not affect a substantial right will be

disregarded. “We apply non-constitutional harmless-error analysis to evidentiary errors

such as this. A non-constitutional error is harmless when there is substantial other

evidence to support the guilty verdict.” (Internal quotations omitted.) Id.

       {¶60} The state presented substantial evidence to support the guilty verdict

beyond the other-acts evidence. For this reason, appellant’s sixth assignment of error is

overruled because the trial court’s error in admitting the other-acts evidence was

harmless.

       {¶61} However, pursuant to the doctrine of cumulative error, a conviction will

be reversed where the cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of numerous instances of trial court

error does not individually constitute cause for reversal. State v. Baker, 8th Dist. No.

95300, 2011-Ohio-2784, at ¶ 59, citing State v. Garner, 74 Ohio St.3d 49, 656 N.E.2d

623 (1995).

       {¶62}    In order to find “cumulative error” present, we first must find that

multiple errors were committed at trial. We then must find a reasonable probability that

the outcome of the trial would have been different but for the combination of the
separately harmless errors. (Citations omitted.) State v. Djuric, 8th Dist. No. 87745,

2007-Ohio-413, at ¶ 52.      To affirm in spite of multiple errors, we would have to

determine that the cumulative effect of the errors is harmless beyond a reasonable doubt.

 State v. Williams, 8th Dist. No. 94261, 2011-Ohio-591, at ¶ 25, citing State v. DeMarco,

31 Ohio St.3d 191, 195, 509 N.E.2d 1256 (1987) (stating that the errors can be

considered harmless if there is overwhelming evidence of guilt or other indicia that the

errors did not contribute to the conviction).

       {¶63}    In the present case, we cannot say that the cumulative effect of the above

errors was harmless beyond a reasonable doubt. The trial court’s improper admission of

the state’s tax records exhibit demonstrating appellant’s lack of past tax filings dating

back five years was other acts evidence that opened the door to the prejudicial inference

that appellant was a career drug dealer. The trial court’s erroneous jury instructions, at

the very least, invalidated appellant’s convictions of the schoolyard specifications and

forfeiture specifications and, at worst, introduced a confusing element to the jury

regarding the applicable burden of proof for appellant’s crimes. Considering that the

record does not contain overwhelming evidence of appellant’s guilt in that appellant’s

role in the alleged crimes was established entirely by testimony of codefendants in

exchange for plea consideration, we find that the accumulation of these errors was

unfairly prejudicial. There is a reasonable probability that, but for the above errors, the

result of the proceeding would have been different. Therefore, we cannot say that the

cumulative effect of the errors was harmless beyond a reasonable doubt.
       {¶64}     Appellant’s first and sixth assignments of error are sustained.

Appellant’s remaining assignments of error are moot. See App.R. 12(A)(1)(c).

       {¶65} Accordingly, the judgment of the lower court is reversed and this matter is

remanded for a new trial.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

lower court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR

                                         Appendix


Assignment of Error No. 1:

       The trial court erred to the prejudice of Appellant by instructing the jury on the
       definition of preponderance of the evidence without specifying that
       preponderance of the evidence applied solely to the forfeiture specifications, thus
       creating confusion and the possibility of burden shifting, in violation of
       Appellant’s state and federal constitutional rights to due process of law, as
       guaranteed by the Fourteenth Amendment to the United States Constitution and
       Article I, Section 16 of the Constitution of the State of Ohio.
Assignment of Error No. 2:

      The trial court erred to the prejudice of Appellant by instructing the jury that
      Derrick Williams and Reginald Cromity were accomplices and by failing to
      instruct the jury in conformity with ORC 2923.03(D), in violation of Appellant’s
      state and federal constitutional rights to due process of law, as guaranteed by the
      Fourteenth Amendment to the United States Constitution and Article I, Section 16
      of the Constitution of the State of Ohio.

Assignment of Error No. 3:

      The Preparation and Performance of Appellant’s Trial Counsel was deficient and
      prejudiced Appellant in such a way as to violate the Appellant’s state and federal
      constitutional rights to effective assistance of counsel, as guaranteed by the Sixth
      and Fourteenth Amendments to the United States Constitution and Article 1,
      Section 10 of the Ohio Constitution.

Assignment of Error No. 4:

      The trial court committed prejudicial error by failing to merge Counts One and
      Two and Counts Four and Five prior to sentencing and by sentencing Appellant
      on allied offenses of similar import, in violation of Appellant’s state and federal
      constitutional rights to be free from double jeopardy.
Assignment of Error No. 5:

      The trial court erred as a matter of law and to the prejudice of Appellant by
      denying Appellant’s motions for judgment of acquittal, as to Count Four of the
      indictment, pursuant to Crim. R. 29(A), in violation of Appellant’s right to due
      process of law, as guaranteed by the Fourteenth Amendment to the United States
      Constitution and Article 1, Section 16 of the Ohio Constitution.

Assignment of Error No. 6:

      The trial court erred to the prejudice of Appellant by admitting, over Appellant’s
      objection, tax records establishing that Appellant did not disclose any income for
      the tax years 2005-2009.

Assignment of Error No. 7:

      The judgments of conviction as to all counts are against the manifest weight of
      the evidence, in violation of appellant’s right to due process of law, as guaranteed
      by the fourteenth amendment to the United States Constitution and Article I,
      Section 16 of the Ohio Constitution.

Assignment of Error No. 8:

      The trial court abused its discretion in imposing a sentence of seven (7) years of
      imprisonment on Counts 1 and 2, five (5) years on Counts 4 and 5, to run
      concurrent, as such a sentence is disproportionate to the sentences imposed by the
      other co-defendants in the within matter and does not satisfy or comply with the
      principles and purposes of felony sentencing and/or ORC 2929.11 and 2929.12.
