[Cite as State v. Jamison, 2016-Ohio-5122.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.       27664

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
LEROY JAMISON, JR.                                  COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 14 02 0557

                                 DECISION AND JOURNAL ENTRY

Dated: July 27, 2016



        HENSAL, Presiding Judge.

        {¶1}     Leroy Jamison appeals a judgment of the Summit County Court of Common Pleas

that convicted him of receiving stolen property, operating a vehicle under the influence of

alcohol or drugs, and possessing marijuana. For the reasons that follow, we affirm.

                                               I.

        {¶2}     Tonya VanHorn testified that she was on her way home one afternoon when she

noticed that the driver of a car in the left-turn lane appeared to be passed out. She, therefore,

stopped her car and called the police. Around the same time, Shelia Adams noticed that the

driver of the car seemed to be asleep, so she stopped to check on him. According to Ms. Adams,

she approached the car and tapped on it, trying to get the driver’s attention. The window of the

car was open, so when the driver did not respond, she tapped his shoulders. After the driver

came to, she reached inside the car to try to turn it off, but he slapped her hand away. When she

opened the door of the car to help the driver out, she saw that there was an open beer can in the
                                                2


center console and a bag with a green chopped-up substance in the driver-side door. She

eventually got the driver out of the car and walked him around to the passenger side. When

officers arrived, Ms. VanHorn and Ms. Adams continued on their way.

          {¶3}   Police officers Ben Hill and Nathan Samples responded to the intersection and

identified Mr. Jamison as the driver of the vehicle. Officer Samples conducted field sobriety

tests, during which Mr. Jamison gave several markers indicating that he was impaired. Before

conducting the tests, the officers performed a patdown search of Mr. Jamison, which led to the

discovery of two debit cards issued in the name of Candace Bussey. Ms. Bussey had reported

the cards stolen earlier that day. In her police report, Ms. Bussey stated that she believed the

father of one of her children was a likely suspect because he was the only person with access to

her residence at the time of the cards’ theft. When asked about the debit cards during the

booking process, Mr. Jamison said that he received the cards from a person who resembled the

man Ms. Bussey described.

          {¶4}   The Grand Jury indicted Mr. Jamison for one count of receiving stolen property,

one count of possession of marijuana, and four counts of operating a vehicle under the influence

(OVI). The State dismissed three of the OVI counts before trial. A jury found Mr. Jamison

guilty of the receiving stolen property count and the remaining OVI count. The trial court found

him guilty of the possession of marijuana count, and it sentenced him to a total of one year in

prison.    Mr. Jamison has appealed, assigning ten errors.      We will address some of the

assignments of error together.

                                  ASSIGNMENT OF ERROR I

          THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
          WHEN IT DENIED MR. JAMISON’S MOTION FOR A BILL OF
          PARTICULARS.
                                                 3


       {¶5}    In his first assignment of error, Mr. Jamison argues that the trial court committed

reversible error when it denied his motion for a bill of particulars. He notes that Criminal Rule

7(E) provides that, if a defendant makes a written request for a bill of particulars, the prosecuting

attorney “shall furnish” one “setting up specifically the nature of the offense charge and of the

conduct of the defendant alleged to constitute the offense.” See also R.C. 2941.07.

       {¶6}    The State argues that, despite Mr. Jamison’s written request, it did not have to

provide him with a bill of particulars because it has open-file discovery. This Court has written

that, notwithstanding Rule 7(E), if “the prosecutor permitted a full examination of his file by

defense counsel, a bill of particulars is not required.” State v. Sarnescky, 9th Dist. Summit No.

12257, 1986 WL 2228, *1 (Feb. 12, 1986). The Ohio Supreme Court has explained that,

although “the denial of a timely request for a bill of particulars should never occur,” the more

important question is whether the defendant suffered “prejudice as a consequence of the

denial[.]” State v. Chinn, 85 Ohio St.3d 548, 569 (1999).

       {¶7}    Mr. Jamison argues that the State’s failure to provide him with a bill of particulars

undermined his ability to defend himself. He notes that the indictment accused him of having

two stolen debit cards in his possession. At trial he argued that a debit card does not qualify as a

credit card under Revised Code Section 2913.01(U), but the court held that debit cards are a form

of credit card for purposes of the statute.       Because Mr. Jamison’s defense turned on an

interpretation of the law and not the nature of the offense, we conclude that he has not

established how the lack of a bill of particulars harmed him.

       {¶8}    Mr. Jamison also notes that the State only introduced photographs of the front of

the debit cards at trial. Upon learning that the State did not have a picture of the back of the

cards, Mr. Jamison requested a continuance to find out what was on the backs and to validate the
                                                   4


cards. Mr. Jamison’s argument does not show how a bill of particulars would have aided his

defense. “A bill of particulars is not designed to provide the accused with specifications of

evidence or to serve as a substitute for discovery.” State v. Sellards, 17 Ohio St.3d 169, 171

(1985). Any surprise to Mr. Jamison about the debit cards appears to be attributable to his

failure to review the State’s discovery file before trial, not its failure to provide him with a bill of

particulars. Upon review of the record, we conclude that Mr. Jamison has not demonstrated that

he suffered prejudice because of the denial of his motion for a bill of particulars. Mr. Jamison’s

first assignment of error is overruled.

                                   ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
       ALLOWING THE INTRODUCTION OF EVIDENCE AND THE TESTIMONY
       OF A WITNESS IN VIOLATION OF THE RULES OF DISCOVERY UNDER
       CRIM.R. 16.

       {¶9}    In his second assignment of error, Mr. Jamison argues that the trial court erred

when it allowed Ms. Bussey to testify because the State did not include her on its list of

witnesses.    Mr. Jamison also argues that the court incorrectly allowed the State to offer

photocopies of Ms. Bussey’s debit cards into evidence because it did not provide him with the

photocopies before the first day of trial.

       {¶10} Regarding Ms. Bussey’s testimony, Criminal Rule 16(I) provides that “[e]ach

party shall provide to opposing counsel a written witness list, including names and addresses of

any witness it intends to call [at trial] * * *.” Mr. Jamison, however, did not object to Ms.

Bussey’s testimony on the basis that the State did not disclose her as a witness. Although he at

one point referred to Ms. Bussey as a “surprise witness,” the substance of his objection was that

the State did not provide him with a copy of her criminal history. This Court has held that,

except for a claim of plain error, an appellant may not raise an argument for the first time on
                                                 5


appeal. State v. Stembridge, 9th Dist. Summit No. 23812, 2008-Ohio-1054, ¶ 12. In light of Mr.

Jamison’s failure to request the exclusion of Ms. Bussey’s testimony at trial under Rule 16(I), we

decline to address his argument on appeal. We also note that Mr. Jamison has failed to develop a

plain error argument, and we decline to create one for him. State v. Thomas, 9th Dist. Summit

No. 27266, 2015-Ohio-2935, ¶ 15.

       {¶11} Regarding the photocopies of Ms. Bussey’s debit cards, Criminal Rule 16(B)(3)

provides, in part, that, upon written demand, the prosecution shall provide the defendant with

copies of all “books, papers, documents, photographs, [and] tangible objects” that it intends to

use as evidence at trial. If the prosecutor does not comply with the 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[.]” Crim.R. 16(L). The court “must inquire into the circumstances

surrounding a discovery rule violation and, when deciding whether to impose a sanction, must

impose the least severe sanction that is consistent with the purpose of the rules of discovery.”

Lakewood v. Papdelis, 32 Ohio St.3d 1 (1987), paragraph two of the syllabus.

       {¶12} Mr. Jamison argues that the trial court abused its discretion because it did not

provide him with any relief under Rule 16(L), even though the State did not provide him with its

photocopies of the debit cards until the day of trial. Mr. Jamison argued to the trial court that, in

light of the State’s delay in providing him with the photographs, it should not be allowed to use

them during the trial. The court, instead, offered Mr. Jamison a “short continuance.” When Mr.

Jamison’s counsel indicated that he would need six weeks, the court rejected his request as

“excessive.” It ended up imposing no sanction for the State’s delay. Mr. Jamison argues that the

court’s inaction deprived him of a fair trial.
                                                 6


       {¶13} Mr. Jamison argued that he needed time to subpoena Ms. Bussey’s account

records so that he could determine what type of account it was. He also wanted to determine

whether the language on the back of her cards was significant. The court determined, however,

that, in light of the expansive nature of the statutory definition of “credit card[,]” knowing the

specific type of account that Ms. Bussey had would not make any difference. It also agreed with

the State that any language on the back of the card would likely have been merely generic

information about the issuing bank.

       {¶14} Upon review of the record, we conclude that the trial court did not abuse its

discretion under Criminal Rule 16(L). The court offered Mr. Jamison a “short” continuance to

obtain more information about the bank cards, but he rejected it, claiming to need six weeks.

The following day the State noted that it had arranged a standby witness from one of the banks,

who could testify about Ms. Bussey’s account, in less than 24 hours. It explained that Mr.

Jamison’s lawyer could have accomplished the same thing by issuing a subpoena. In light of Mr.

Jamison’s refusal to accept the Rule 16(L) relief that the trial court thought was the “least severe

sanction that is consistent with the purpose of the rules of discovery,” we cannot say that the

court deprived Mr. Jamison of a fair trial. Papdelis, 32 Ohio St.3d, at paragraph two of the

syllabus. Mr. Jamison’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
       WHEN IT ADMITTED INTO EVIDENCE EXHIBITS THAT VIOLATED THE
       BEST EVIDENCE RULE.

       {¶15} In his third assignment of error, Mr. Jamison argues that the trial court violated

the best evidence rule when it admitted photographs of Ms. Bussey’s debit cards. The best

evidence rule provides that “[t]o prove the content of a writing, recording, or photograph, the
                                                7


original writing, recording, or photograph is required, except as otherwise provided in these rules

or by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of

Ohio.” Evid.R. 1002. We review the trial court’s ruling under the best evidence rule for an

abuse of discretion. State v. Moultry, 9th Dist. Summit No. 25065, 2010-Ohio-3010, ¶ 13.

       {¶16} Evidence Rule 1004 creates several exceptions to the Rule 1002. Scaffidi v.

Scaffidi, 9th Dist. Medina No. 04CA0068-M, 2005-Ohio-4546, ¶ 19. In part, it provides that

“[t]he original is not required, and other evidence of the contents of a writing, recording, or

photograph is admissible if * * * [a]ll originals are lost or have been destroyed, unless the

proponent lost or destroyed them in bad faith[.]” Evid.R. 1004(1). At trial, Ms. Bussey testified

that her debit cards were returned to her shortly after they were recovered from Mr. Jamison.

She cancelled the cards and destroyed one of them for security purposes. There is no indication

that Ms. Bussey destroyed the card in bad faith. Due to the good faith destruction of one of the

original debit cards, we conclude that the trial court correctly determined that the State could

present other evidence to prove the contents of the cards. See Bank One, N.A. v. Bettinger, 9th

Dist. Summit No. 21371, 2003-Ohio-3311, ¶ 9 (stating that secondary evidence of previously

destroyed written assignment should have been admitted to prove the contents of the written

assignment).

       {¶17} To provide this other evidence, the State offered a photograph of the debit cards

and the testimony of Ms. Bussey, who authenticated the photograph. See Evid.R. 901(A) (“The

requirement of authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter in question is what its

proponent claims.”). Nothing in her testimony indicates that the photograph was an inaccurate

reproduction of the debit card. Indeed, Mr. Jamison’s trial counsel did not elicit any testimony
                                                 8


on cross-examination that called into question the authenticity of either the original debit card or

the accuracy of the photograph.

          {¶18} Regarding the other debit card, Evidence Rule 1003 provides that “[a] duplicate is

admissible to the same extent as an original unless (1) a genuine question is raised as to the

authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in

lieu of the original.” Mr. Jamison argues that the photograph of the card does not qualify as a

duplicate because it does not show the back of the card. For the same reason, he argues that it

was unfair to admit the photograph. He further argues that it was unfair to admit the photograph

of the card because the State knew for months that it had only photographed the front of the card,

but failed to inform defense counsel.

          {¶19} Upon review of the record, we conclude that Mr. Jamison was not prejudiced by

the fact that the State did not photograph the back of the card. The information on the back of

the card was not offered by the State to prove its theory of the case and Ms. Bussey’s only

testimony about the backs of the debit cards was that they listed contact information for the

issuing banks.     We also note that the photograph of the card was not the only evidence

establishing that Mr. Jamison possessed the card. Officer Samples testified that he performed a

patdown search during which he found two bank cards issued to Ms. Bussey on Mr. Jamison’s

person. See State v. Turner, 9th Dist. Summit No. 26591, 2013-Ohio-2433, ¶ 25 (finding that

even if improperly authenticated exhibits were admitted into evidence, any error would be

harmless since witness’s testimony addressed the same facts that the exhibits were offered to

prove).

          {¶20} Because Mr. Jamison has not demonstrated that he was unfairly prejudiced by the

fact that there was no photograph of the back of the debit card, we cannot find that the trial court
                                                   9


abused its discretion when it admitted a photograph of the card. Mr. Jamison’s third assignment

of error is overruled.

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
       WHEN IT FOUND MR. JAMISON GUILTY OF RECEIVING STOLEN
       PROPERTY BECAUSE THE EVIDENCE WAS INSUFFICIENT TO
       SUPPORT SUCH FINDINGS.

                                 ASSIGNMENT OF ERROR V

       MR. JAMISON’S CONVICTION FOR RECEIVING STOLEN PROPERTY IS
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

                                ASSIGNMENT OF ERROR VI

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
       WHEN IT FOUND MR. JAMISON GUILTY OF OPERATING UNDER THE
       INFLUENCE OF ALCOHOL OR DRUGS BECAUSE THE EVIDENCE WAS
       INSUFFICIENT SO SUPPORT SUCH FINDINGS.

                                ASSIGNMENT OF ERROR VII

       MR. JAMISON’S CONVICTION FOR OPERATING UNDER THE
       INFLUENCE OF ALCOHOL OR DRUGS IS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

                                ASSIGNMENT OF ERROR VIII

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
       WHEN IT FOUND MR. JAMISON GUILTY OF POSSESSION OF
       MARIJUANA BECAUSE THE EVIDENCE WAS INSUFFICIENT TO
       SUPPORT SUCH FINDINGS.

                                ASSIGNMENT OF ERROR IX

       MR. JAMISON’S CONVICTION FOR POSSESSION OF MARIJUANA IS AGAINST
       THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶21} In his fourth through ninth assignments of error, Mr. Jamison challenges the

sufficiency of the evidence for each of his three convictions. He also argues that his convictions

are against the manifest weight of the evidence.
                                                10


                           Sufficiency and Manifest Weight Standards

       {¶22} Whether a conviction is supported by sufficient evidence is a question of law,

which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this

determination, we must view the evidence in the light most favorable to the prosecution:

       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 (1991), paragraph two of the syllabus.

       {¶23} If, on the other hand, a defendant asserts that a 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 and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d, at 387. An appellate court should only exercise its power to reverse a

judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson,

9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

                                   Receiving Stolen Property

       {¶24} Mr. Jamison argues that the State presented insufficient evidence to prove that

Ms. Bussey’s debit cards satisfied the definition of “[c]redit card” under Revised Code Section

2913.01(U). We limit our analysis to this element of Mr. Jamison’s receiving stolen property

conviction because it is the only one he has addressed on appeal.
                                                11


       {¶25} Section 2913.51(A) provides that “[n]o person shall receive, retain, or dispose of

property of another knowing or having reasonable cause to believe that the property has been

obtained through commission of a theft offense.” Receiving stolen property is a felony of the

fifth degree “if the property involved is any of the property listed in section 2913.71 of the

Revised Code[.]” R.C. 2913.51(C). Section 2913.71(A) provides in part that “[r]egardless of the

value of the property involved * * *, a violation of section * * * 2913.51 of the Revised Code is

a felony of the fifth degree if the property involved is * * * a credit card.” Credit card is

statutorily defined for the purposes of Chapter 2913 as

       includ[ing], but [ ] not limited to, a card, code, device, or other means of access to
       a customer’s account for the purpose of obtaining money, property, labor, or
       services on credit, or for initiating an electronic fund transfer at a point-of-sale
       terminal, an automated teller machine, or a cash dispensing machine.

R.C. 2913.01(U).

       {¶26} When interpreting provisions of the Revised Code, we are required to read words

and phrases in context and construe them “according to the rules of grammar and common

usage.” R.C. 1.42. In addition, we must “give effect to the words used” and abstain from

“insert[ing] words not used.” State ex rel. Cassels v. Dayton City Sch. Dist. Bd. of Edn., 69 Ohio

St.3d 217, 220 (1994). If we apply these interpretive requirements and conclude that the “statute

is plain and unambiguous and conveys a clear and definite meaning,” we need not apply other

rules of statutory interpretation. State v. Taylor, 114 Ohio App.3d 416, 422 (2d Dist.1996).

       {¶27} The parties disagree about whether Section 2913.01(U)’s definition of credit card

includes debit cards. The Ohio Supreme Court has not addressed this issue, and it is one of first

impression in this district. Accordingly, we will look to the other district courts of appeals for

guidance. Mattia v. Hall, 9th Dist. Summit No. 23778, 2008-Ohio-180, ¶ 11.
                                                 12


       {¶28} In reviewing our sister districts’ resolution of this issue, we find particularly

compelling guidance from the Third District’s opinion in State v. Baumle, 3d Dist. Paulding No.

11-14-06, 2015-Ohio-220. In Baumle, the court addressed this issue and concluded that Section

2913.01(U)’s definition of credit card includes debit cards. Id. at ¶ 42.         In reaching this

conclusion, the court emphasized the second half of the definition contained in Section

2913.01(U), which refers to “a card, code, device, or other means of access to a customer’s

account for the purpose of * * * initiating an electronic fund transfer at a point-of-sale terminal,

an automated teller machine, or a cash dispensing machine.” (Emphasis omitted.) Id. at ¶ 41.

Like the Third District, we conclude that this language plainly contemplates debit cards. This

renders debit cards subject to the purview of Section 2913.01(U)’s definition and places those

who receive stolen debit cards under the ambit of Section 2913.51(A), (C)’s fifth degree felony

prohibition against receiving stolen property. Id. at ¶ 42.

       {¶29} We note that every district court of appeals that has examined whether debit cards

fall under Section 2913.01(U) has concluded that they do. See id. at ¶ 42 (collecting cases). Mr.

Jamison has not directed us to any contrary authority.        Accordingly, both the weight and

persuasiveness of the authority concluding that debit cards satisfy the definition of “[c]redit

card” in Section 2913.01(U) convinces us to adopt the same position.

       {¶30} Ms. Bussey testified that the two cards found on Mr. Jamison’s person belonged

to her, that they were “debit card[s],” and that they were tied to her accounts with Chase Bank

and Ohio Savings Bank. The Chase account was funded from her paychecks while her income

tax refunds were deposited into the Ohio Savings Bank account. She used the cards to make

purchases, which caused the deduction of the value of the purchases from her accounts. Ms.

Bussey also indicated that after she reported the cards missing, three unauthorized purchases
                                                13


were made on her cards at a Circle K convenience store, which caused the deduction of

approximately $125 from her account. Considered in a light most favorable to the State, her

testimony supports the jury’s finding that Mr. Jamison received a stolen “[c]redit card” as that

term is defined in Section 2913.01(U).       We, therefore, conclude that there was sufficient

evidence to support Jamison’s fifth degree felony conviction for receiving stolen property. Id. at

¶ 42 (rejecting sufficiency challenge to fifth degree felony conviction for receiving stolen

property where evidence showed that the defendant received a debit card).

       {¶31} Mr. Jamison’s manifest weight argument regarding his receiving stolen property

conviction is essentially a restatement of his sufficiency argument.         Having rejected his

sufficiency argument, we likewise reject his manifest weight argument.

                                         OVI Conviction

       {¶32} Mr. Jamison next argues that there was insufficient evidence to support his OVI

conviction, noting that Officers Hill and Samples did not directly observe him operating the

vehicle. We limit our analysis to the operation element of Mr. Jamison’s conviction since it is

the only one raised on appeal.

       {¶33} The jury found Mr. Jamison guilty of violating Section 4511.19(A)(1)(a), which

provides that “[n]o person shall operate any vehicle * * * if, at the time of the operation, * * *

[t]he person is under the influence of alcohol, a drug of abuse, or a combination of them.” For

the purposes of that section, operate “means to cause or have caused movement of a vehicle,

streetcar, or trackless trolley.” R.C. 4511.01(HHH). We have previously recognized that this

definition of operate is satisfied where the defendant was “in the driver’s position in the front

seat of the vehicle with the key in the ignition and the engine running[.]” State v. Robertson, 9th

Dist. Lorain No. 13CA010395, 2014-Ohio-5389, ¶ 10.
                                                 14


       {¶34} Both Ms. VanHorn and Ms. Adams testified that they observed Jamison slumped

over and sleeping in the driver’s seat of his vehicle. Ms. Adams further testified that the left turn

signal of Jamison’s vehicle was activated when she approached to make contact with Jamison,

that the key was in the ignition with the engine running, and that the vehicle was “in gear[.]”

Viewed in a light most favorable to the State, we conclude that her testimony provided sufficent

evidence to support the jury’s finding that Mr. Jamison operated the vehicle. See id. at ¶ 4, 10

(affirming trial court’s finding that the defendant “operated” the vehicle where witness observed

that the defendant was the sole occupant of the vehicle, its engine was running, and the key was

in its ignition). Because Mr. Jamison’s manifest weight argument essentially just restates his

sufficiency argument, we likewise reject it.

                               Possession of Marijuana Conviction

       {¶35} Mr. Jamison also argues that there was insufficient evidence to support his

possession of marijuana conviction. In particular, he argues that Officer Samples failed to

establish his qualifications to identify the substance in the bag found in Mr. Jackson’s vehicle as

marijuana.

       {¶36} Revised Code Section 2925.11(A) proscribes individuals from “knowingly

obtain[ing], possess[ing], or us[ing] a controlled substance or a controlled substance analog.”

Section 2925.11(C)(3) further states that “[i]f the drug involved in the violation is marihuana or a

compound, mixture, preparation, or substance containing marihuana other than hashish, whoever

violates division (A) of this section is guilty of possession of marihuana.”          Possession of

marijuana constitutes a minor misdemeanor if the amount of marijuana possessed is less than 100

grams. R.C. 2925.11(C)(3)(a).
                                                15


       {¶37} “Courts have held that the government may establish the identity of a drug

through cumulative circumstantial evidence.” (Alteration omitted.) State v. Montoya, 12th Dist.

Clermont No. CA2012-02-015, 2013-Ohio-3312, ¶ 43. As a result, lay witnesses can “express

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

established.”   State v. McKee, 91 Ohio St.3d 292 (2001), syllabus.          Thus, to provide the

necessary foundational basis, the proponent of the lay testimony must satisfy the requirements

for opinion testimony outlined in Evidence Rule 701, which provides as follows:

       If the witness is not testifying as an expert, [his] testimony in the form of opinions
       or inferences is limited to those opinions or inferences which are (1) rationally
       based on the perception of the witness and (2) helpful to a clear understanding of
       [his] testimony or the determination of fact in issue.

Courts have consistently recognized that police officers may offer opinion testimony as to

whether a recovered substance was an illegal drug. See, e.g., State v. Gonzales, 6th Dist. Wood

No. WD-13-086, 2015-Ohio-461, ¶ 24 (finding that police officers could offer drug identification

testimony); Montoya at ¶ 44 (“[A] police officer’s lay opinion regarding the identity of a

substance is admissible based on his or her experience and training.”); State v. Dillard, 173 Ohio

App.3d 373, 2007-Ohio-5651, ¶ 93 (2d Dist.) (finding that police officer could offer lay

testimony as to heroin found in hydraulic press).

       {¶38} The State offered the testimony of Officer Samples to prove that the substance in

the bag recovered from Mr. Jamison’s vehicle was marijuana. Officer Samples testified that he

has been a police officer for nine years. As to his specific experience with marijuana, the

following exchange occurred during Officer Samples’ testimony:

       Q:       And have you had occasion to stop people with marijuana before?

       A:       Absolutely.

       Q:       Would you say that it has a very specific odor?
                                                 16


       A:      Yes, sir.

       ***

       Q:      And describe an odor of marijuana. What is it that it smells like?

       A:      I had an older brother and he used to do it – it’s kind of – once you smell it, you

       know what it is.

       ***

       Q:      What do you see as far as appearance goes?

       A:      It is a green, leafy, vegetable-like material.

This exchange shows that Officer Samples had professional experience with traffic stops that

result in the discovery of marijuana. He also had personal experience observing marijuana.

Furthermore, Officer Samples was able to describe the distinct smell and appearance of

marijuana. We conclude that this was sufficient to establish Officer Samples’ ability to offer a

lay opinion as to whether the recovered substance was marijuana.

       {¶39} Officer Samples said that he discovered a bag in Mr. Jamison’s vehicle that

contained a substance matching the description of marijuana.         He further testified that the

substance was indeed marijuana. In light of his testimony, we conclude that there was sufficent

evidence in the record to support the trial court’s finding that Mr. Jamison possessed marijuana.

Because Mr. Jamison’s manifest weight argument merely restates his sufficiency argument, we

also reject it. The jury did not lose its way when it found Mr. Jamison guilty of the offenses.

Mr. Jamison’s fourth, fifth, sixth, seventh, eighth, and ninth assignments of error are overruled.

                                  ASSIGNMENT OF ERROR X

       THE CUMULATIVE EFFECT OF THE TRIAL COURT’S ERRORS DENIED
       MR. JAMISON A FAIR TRIAL.
                                                17


       {¶40} Mr. Jamison’s final assignment of error is that the cumulative effect of the trial

court’s errors necessitates the reversal of his convictions. “Under the cumulative error doctrine,

a conviction may be reversed when the cumulative effect of errors deprives a defendant of the

constitutional right to a fair trial even though none of the errors, in isolation, was prejudicial.”

State v. Boone, 9th Dist. Summit No. 26104, 2013-Ohio-2664, ¶ 38, citing State v. DeMarco, 31

Ohio St.3d 191 (1987), paragraph two of the syllabus.          If there were not multiple errors,

however, the cumulative error doctrine does not apply. State v. Hunter, 131 Ohio St.3d 67,

2011-Ohio-6524, ¶ 132.      Because this Court did not find multiple instances of error, the

cumulative error doctrine does not apply. State v. Brooks, 9th Dist. Summit No. 23237, 2007-

Ohio-1424, ¶ 40. Mr. Jamison’s tenth assignment of error is overruled.

                                                III.

       {¶41} Mr. Jamison’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                 18


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      JENNIFER HENSAL
                                                      FOR THE COURT



CARR, J.
CONCURS.

SCHAFER, J.
CONCURRING IN JUDGMENT ONLY.

       {¶42} I concur fully with the majority’s resolution of the second through tenth

assignments of error. I also agree with the majority’s resolution of the first assignment of error

on the basis that the trial court’s denial of the motion for a bill of particulars did not prejudice

Jamison’s defense. However, I write separately to address this Court’s precedent on the issuance

of bills of particulars, which I believe is contrary to the express terms of R.C. 2941.07 and

Crim.R. 7(E) as well as the guidance handed down by the Supreme Court of Ohio.

       {¶43} R.C. 2941.07 states that “[u]pon written request of the defendant not made later

than five days prior to the date set for trial, * * * the prosecuting attorney shall furnish a bill of

particulars setting up specifically the nature of the offense charged and the conduct of the

defendant which is alleged to constitute the offense.”           Crim.R. 7(E) contains a similar

requirement for a bill of particulars upon the defendant’s written request. This language is

unambiguous, straightforward, and easy to apply. Its import is that whenever a defendant makes

a timely request for an original bill of particulars, the trial court must grant his request. The
                                                19


statutory language leaves no discretion; it mandated that the trial court grant Jamison’s motion in

this matter.

        {¶44} I disagree with the State’s argument that a trial court need not order the prosecutor

to provide an original bill of particulars whenever the State provides open-file discovery. This

argument fails to account for the mandatory language of R.C. 2941.07 and Crim.R. 7(E). These

provisions do not provide, “Upon written request of the defendant, the prosecuting attorney shall

furnish a bill of particulars, unless the prosecuting attorney provides open-file discovery.”

Instead, they simply require the prosecutor to furnish the bill of particulars whenever the

defendant timely requests it. To adopt the State’s argument, I would have to read a new clause

into R.C. 2941.07 and Crim.R. 7(E) and carve out an exception that the legislative drafters did

not include. See Coleman v. Portage Cty. Engineer, 133 Ohio St.3d 28, 2012-Ohio-3881, ¶ 23

(“Courts must abstain from inserting words into a statute that were not placed there by the

General Assembly.”) (Emphasis added.).         Consequently, I reject the State’s invitation to

judicially legislate and I support the application of R.C. 2941.07 and Crim.R. 7(E) as they are

written, not as the State wants them to be written. See State ex rel. Carna v. Teays Valley Local

School Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio-1484, ¶ 24 (“We have previously

cautioned against ‘judicial legislation’ [that occurs from the addition of words to statutes].”);

Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 558, 2000-Ohio-470 (“We defer to

the policy decision by the legislature and construe the language that it enacted accordingly.”).

        {¶45} There is precedent from this Court that supports the State’s position, but I believe

that this precedent was wrongly decided and should be overturned. See Westfield Ins. Co. v.

Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, paragraph one of the syllabus (stating that prior

decisions may be overruled if “the decision was wrongly decided at that time”). The first
                                                 20


instance of this Court adopting the State’s position was State v. Eskridge, 9th Dist. Summit No.

9664 (Aug. 27, 1980). There, the Court found no error in the trial court’s denial of a motion for

an original bill of particulars and reasoned as follows:

        Counsel for Eskridge did not get a written bill of particulars. All the information
        was contained in the indictment. In addition, the prosecutor permitted a full
        examination of his file by defense counsel, thus counsel should know as much
        about the case as the state. Under State v. Halleck, 24 Ohio App.2d 74 ([4th
        Dist.] 1970), a bill of particulars is not required here. There is no error to this
        second portion of assignment of error I.

Id. at 4.

        {¶46} Eskridge was wrongly decided for two reasons. First, the Court completely failed

to account for the language of R.C. 2941.07 and Crim.R. 7(E). Indeed, the Court did not even

refer to those provisions when reaching its decision. And, second, the Court’s reliance on

Halleck was improper since that case implicated the defendant’s request for an amended bill of

particulars. See Halleck at 75 (listing the defendant’s assignment of error as “[t]he court erred in

refusing to grant motion of defendant for an amended or supplemental bill of particulars”). A

request for an amended bill of particulars is not subject to the mandatory provisions of R.C.

2941.07 and Crim.R. 7(E), but is rather governed by Crim.R. 7(D), which is discretionary and

states that the “[t]he court may at any time * * * amend the * * * bill of particulars[.]”

(Emphasis added.) Halleck, as a result, could not control, or even offer persuasive guidance, to

the resolution of the issue implicated in Eskridge.

        {¶47} These deficiencies in Eskridge are not the only reasons that we should cast it

aside.1 In my view, the Supreme Court of Ohio has given this Court clear guidance that



        1
          In State v. Brown, 90 Ohio App.3d 674 (11th Dist.1993), the Eleventh District Court of
Appeals rejected the argument that a bill of particulars need not be provided when there is open-
file discovery since it “did not agree that such a policy would be sufficient to provide appellant
                                                21


forecloses the application of Eskridge and its progeny. As aptly noted in the majority opinion,

see Majority Opinion at ¶ 6, the Court has previously explained that “the denial of a timely

request for a bill of particulars should never occur.” (Emphasis added.) State v. Chinn, 85 Ohio

St.3d 548, 569 (1999). Like the language of R.C. 2941.07 and Crim.R. 7(E), the Supreme

Court’s guidance leaves this Court no room to insert an exception for cases where the State

provides open-file discovery.    See also State v. Peterson, 46 Ohio St.2d 425, 432 (1976)

(“Pursuant to [Crim.R. 7(E)], a bill of particulars must be furnished by the prosecutor upon

timely request.”); State v. Petro, 148 Ohio St. 473 (1947), paragraph two of the syllabus (finding

that R.C. 2941.07’s forerunner was “a mandatory provision and the overruling of defendant’s

motion seasonably made to order the prosecuting attorney to furnish such bill of particulars

constitutes error”). In light of this guidance, this Court should withdraw its fidelity to any

precedent that countenances the trial court’s erroneous denial of a timely motion for an original

bill of particulars because the defendant was provided open-file discovery. See State v. Dickens,

9th Dist. Lorain No. 07CA009218, 2008-Ohio-4404, ¶ 25 (“An appellate court has no authority

to overrule decisions of the Ohio Supreme Court but it is bound to follow them.”).

       {¶48} Finally, I note that I agree with the majority that is unnecessary to explicitly

address this Court’s precedent in order to resolve Jamison’s first assignment of error.

Nevertheless, I do believe that the majority’s opinion gives a helpful, and necessary, hint to the

trial courts of this district that have previously applied the progeny of Eskridge: start applying

Chinn and stop denying timely motions for original bills of particulars merely because the

prosecutor gives open-file discovery. While it is difficult to imagine a scenario in which the




with notice of the state’s actual theory of the case.” Id. at 682. In reaching this conclusion, the
court decided against applying Eskridge.
                                                22


denial of such a motion will result in reversible error, the plain import of Chinn, R.C. 2941.07,

and Crim.R. 7(E) is that such a denial is improper.


APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
