[Cite as State v. Owens, 2019-Ohio-2206.]


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

STATE OF OHIO                                        C.A. No.       29098

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RAY OWENS                                            COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2017-07-2601-B

                                 DECISION AND JOURNAL ENTRY

Dated: June 5, 2019



        TEODOSIO, Presiding Judge.

        {¶1}    Appellant, Ray Owens, appeals from his convictions in the Summit County Court

of Common Pleas. This Court affirms in part, but reverses and remands in part.

                                                I.

        {¶2}    An Ohio State Highway Patrol trooper conducted a traffic stop of a vehicle

occupied by Mr. Owens and T.D. The vehicle was soon searched after a K-9 Unit alerted to the

presence of illegal drugs inside. The search revealed an abundance of illegal drugs, including

fifteen grams of marijuana, sixty oxycodone pills, 549 tablets of THC, and ten grams of heroin.

        {¶3}    Mr. Owens was indicted on three trafficking and three possession charges related

to methylenedioxymethamphetamine (“MDMA”), oxycodone, and marijuana. He successfully

motioned the trial court to represent himself and proceed without counsel in this matter, signing a

written waiver of counsel form in open court. The trial court ordered his attorney to remain

appointed as standby counsel. A supplemental indictment was then filed, charging Mr. Owens
                                                 2


with both trafficking in heroin and possession of heroin. No other waiver of counsel was

obtained.

       {¶4}    The State later dismissed the aggravated trafficking in drugs (MDMA),

aggravated possession of drugs (MDMA), and possession of marijuana charges. Mr. Owens’

case proceeded to a jury trial where he was found guilty of aggravated trafficking in drugs

(oxycodone), aggravated possession of drugs (oxycodone), trafficking in marijuana, trafficking

in heroin, and possession of heroin. The trial court ordered a presentence investigation report

and later sentenced him to a total aggregate prison term of eight years.

       {¶5}    Mr. Owens now appeals from his convictions and raises four assignments of error

for this Court’s review.

       {¶6}    For ease of analysis, we will reorganize and consolidate some of Mr. Owens’

assignments of error.

                                                II.

                               ASSIGNMENT OF ERROR ONE

            RAY WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL
            UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
            UNITED STATES CONSTITUTION WHEN THE TRIAL COURT DID
            NOT PROPERLY ADVISE RAY OF THE DANGER OF SELF-
            REPRESENTATION.   THUS, RAY DID NOT KNOWINGLY,
            INTELLIGENTLY, AND VOLUNTARILY WAIVE HIS RIGHT TO
            COUNSEL.

       {¶7}    In his first assignment of error, Mr. Owens argues that the trial court did not

properly advise him of the dangers of self-representation, and his waiver of counsel was

therefore not knowingly, intelligently, and voluntarily made. We agree.

       {¶8}    “The Sixth Amendment to the United States Constitution provides: ‘In all

criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his defence.’”
                                                 3


State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 22. Accord Article I, Section 10, Ohio

Constitution. The structure of the Sixth Amendment implicitly provides a constitutional right to

self-representation, as “[t]he right to defend is given directly to the accused; for it is he who

suffers the consequences if the defense fails.” Faretta v. California, 422 U.S. 806, 819-820

(1975). A defendant may proceed to defend himself without counsel when he voluntarily, and

knowingly, and intelligently elects to do so.        State v. Gibson, 45 Ohio St.2d 366 (1976),

paragraph one of the syllabus. For a waiver of counsel to be effective, however, the trial court

has to make a sufficient inquiry to determine whether the defendant fully understands and

relinquishes that right, which includes advising the defendant of the dangers and disadvantages

of self-representation. State v. Ott, 9th Dist. Summit No. 27953, 2017-Ohio-521, ¶ 5. In

determining the sufficiency of the trial court’s inquiry, we review the totality of the

circumstances. State v. Trikilis, 9th Dist. Medina Nos. 04CA0096-M and 04CA0097-M, 2005-

Ohio-4266, ¶ 13. “‘While no one factor is dispositive, the [] court should consider whether the

defendant was advised of the nature of the charges and the range of allowable punishments, and,

in addition, may consider whether the trial court advised the defendant of the possible defenses

to the charges and applicable mitigating circumstances.’” State v. Clark, 9th Dist. Medina No.

17CA0066-M, 2018-Ohio-3932, ¶ 9, quoting State v. Bloodworth, 9th Dist. Summit No. 26346,

2013-Ohio-248, ¶ 12. To avoid placing the trial court in the role of an adversary, the discussion

of possible defenses and mitigating circumstances need not be fact specific, but may be a broader

discussion of defenses and mitigating circumstances as applicable to the pending charges.

Trikilis at ¶ 13. Various other factors may be considered as well, including the defendant’s age,

education, and legal experience. Id. We review whether a defendant has made a knowing,

intelligent, and voluntary waiver of his right to counsel de novo. Ott at ¶ 5.
                                                 4


       {¶9}    Moreover, Crim.R. 44(C) provides that a “[w]aiver of counsel shall be in open

court and the advice and waiver shall be recorded as provided in Rule 22.” In “serious offense”

cases, e.g., felony cases, the waiver shall also be in writing. Crim.R. 44(C); Crim.R. 2(C).

Nevertheless, a written waiver of counsel is not a substitute for compliance with Crim.R. 44(C),

which requires an oral waiver in open court before the judge, recorded in accordance with

Crim.R. 22. See Cuyahoga Falls v. Simich, 5 Ohio App.3d 10, 12 (9th Dist.1982); State v. Haag,

49 Ohio App.2d 268, 270 (9th Dist.1976). See also State v. Engle, 2d Dist. Montgomery No.

22455, 2009-Ohio-1944, ¶ 63 (recognizing a fact-pattern in which several acknowledgments

made in the written waiver of counsel were belied by the actual transcript of the hearing, and

noting that the transcript of the hearing necessarily governs); State v. Tanner, 9th Dist. Summit

No. 24614, 2009-Ohio-3867, ¶ 9 (“Just because the written waiver said one thing does not mean

that the [] court did not tell him about other consequences orally.”)

       {¶10} Mr. Owens’ case presents us with a unique situation whereby a defendant

purportedly waived his right to counsel prior to being indicted on all of the charges he would

ultimately defend against at trial. At a status conference on January 9, 2018, Mr. Owens

successfully motioned the trial court to proceed without counsel. He then signed a written

waiver of counsel that specifically listed each of the six charges contained in his original

indictment. The trial court judge accepted the written waiver, signed it, and eventually filed it

with the clerk of courts on January 25, 2018. Meanwhile, the court filed a journal entry on

January 11, 2018, granting Mr. Owens’ motion to proceed without counsel and stating: “The

Defendant was advised of his right to counsel and signed a waiver of counsel form in open

court.” On January 18, 2018, a supplemental indictment containing two additional charges—

trafficking in heroin and possession of heroin—was filed in Mr. Owens’ case. No further waiver
                                                  5


of counsel was obtained. We note that the trial court judge assigned to the case presided over the

waiver of counsel proceedings and signed Mr. Owens’ written waiver of counsel, but a visiting

judge sitting on assignment later presided over the actual trial.

       {¶11} Mr. Owens makes several arguments challenging his waiver of counsel,

including: (1) He did not waive his right to counsel on the supplemental charges, as the written

waiver only applied to the original indictment; (2) The written waiver does not advise him that

post-release control on a felony of the first degree is a mandatory term of five years; (3) The trial

court did not advise him regarding the theory of complicity; (4) The trial court should have

inquired as to his “mental wellness”; and (5) The trial court was aware that he was “under the

influence,” as it required him to provide a urine sample after conviction.             Because our

forthcoming analysis of his first argument is dispositive, we need not address Mr. Owens’

additional arguments under this assignment of error.

       {¶12} In response to Mr. Owens’ first argument, the State offers little in opposition,

except to say that Mr. Owens cites to no authority requiring a new written waiver of counsel

form when supplemental charges are indicted.           However, when determining the knowing,

intelligent, and voluntary nature of a waiver of counsel, this Court should consider whether the

defendant was advised of the nature of the charges and the range of allowable punishment, and

we may further consider whether he was advised of possible defenses and applicable mitigating

circumstances. See Clark at ¶ 9; Bloodworth at ¶ 12.

       {¶13} The record is abundantly clear that Mr. Owens’ waiver of counsel occurred on

January 9, 2018, yet he was not indicted on the two supplemental heroin charges until January

18, 2018. Thus, although Mr. Owens may very well have waived his right to counsel as to the

six original charges, his trial encompassed those six charges as well as two additional heroin
                                                6


charges that were never contemplated when he waived his right to counsel. See State v. Smith,

9th Dist. Summit No. 23006, 2007-Ohio-51, ¶ 13 (refusing to presume an understanding of the

nature of all offenses, the range of allowable punishment, and possible defenses and mitigating

factors involved in a second trial, even though the defendant experienced a previous trial for

some similar charges). We fail to see how Mr. Owens could knowingly, intelligently, and

voluntarily waive his right to counsel in this case when, at the time of his waiver, both parties

and the court were only aware of some of the charges he would be defending against at trial. See

State v. Birinyi, 8th Dist. Cuyahoga Nos. 95680 and 95681, 2011-Ohio-6257, ¶ 28 (determining

a knowing, intelligent, and voluntary waiver of counsel in a first trial cannot be imputed to a

retrial that involves additional charges not contemplated during the initial waiver); State v.

Adams, 43 Ohio St.3d 67 (1989), syllabus (dealing instead with a waiver of the right to a speedy

trial, and holding that the waiver “is not applicable to additional charges arising from the same

set of circumstances that are brought subsequent to the execution of the waiver”). Furthermore,

Mr. Owens’ supplemental heroin charges were both second-degree felonies. Once the first-

degree felony MDMA and misdemeanor marijuana charges were dismissed, Mr. Owens’ waiver

of counsel only applied to two third-degree felonies (for oxycodone) and one fifth-degree felony

(for marijuana). Thus, although the supplemental heroin charges arose out of the same set of

circumstances, they were nonetheless distinct charges and clearly exposed Mr. Owens to a higher

level of punishment beyond what he faced for the remaining charges. It is also not beyond the

realm of possibility to surmise that the distinct, supplemental charges could require different,

overall strategies and defenses at trial not originally contemplated by Mr. Owens or the court.

       {¶14} The State also argues that we should affirm because Mr. Owens failed to ensure a

transcript of the January 9, 2018, status conference was included in the record on appeal.
                                                 7


Despite Mr. Owens’ duty to provide a complete record necessary for our review, however, the

contents of that particular transcript could not possibly cure the fact that he was never indicted on

two additional second-degree felonies until after he waived his right to counsel. The State does

not contest the fact that no waiver of counsel, either in open court or in writing, was obtained in

this case as to the two supplemental heroin charges. We are also highly cognizant of the fact that

courts should indulge every reasonable presumption against the waiver of fundamental,

constitutional rights. See State v. Perry, 9th Dist. Summit No. 25271, 2011-Ohio-2242, ¶ 11,

citing Brewer v. Williams, 430 U.S. 387, 404 (1977). We therefore cannot presume under the

facts of this particular case that Mr. Owens understood the nature of all charges he would be

required to defend against at trial, the range of allowable punishment, and any possible defenses

and applicable mitigating circumstances. See Smith at ¶ 13. Consequently, we must conclude

that his waiver of counsel was not knowingly, intelligently, and voluntarily made. See Ott at ¶ 5;

Gibson at paragraph one of the syllabus. Mr. Owens’ convictions and sentence must be vacated,

and the matter must be remanded back to the trial court for a new trial.

       {¶15} Mr. Owens’ first assignment of error is sustained.

                             ASSIGNMENT OF ERROR THREE

       RAY’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE

                              ASSIGNMENT OF ERROR FOUR

       THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT MERGING THE
       OFFENSES AGAINST RAY

       {¶16} In his third assignment of error, Mr. Owens argues that his convictions were

against the manifest weight of the evidence. In his fourth assignment of error, he argues that the
                                               8


trial court committed plain error by failing to merge allied offenses of similar import for

purposes of sentencing.

       {¶17} Our resolution of Mr. Owens’ first assignment of error is dispositive of this

appeal. Accordingly, we decline to address his third and fourth assignments of error as they have

been rendered moot. See App.R. 12(A)(1)(c); State v. Evans, 9th Dist. Summit No. 28924, 2019-

Ohio-603, ¶ 26.

                             ASSIGNMENT OF ERROR TWO

       RAY’S CONVICTIONS WERE NOT                     BASED      UPON      SUFFICIENT
       EVIDENCE AS A MATTER OF LAW

       {¶18} In his second assignment of error, Mr. Owens argues that his convictions were not

based on sufficient evidence. We disagree.

       {¶19} Although our resolution of Mr. Owens’ first assignment of error renders his third

and fourth assignments of error moot, we must still address his sufficiency challenge, as a

reversal on sufficiency grounds would bar retrial. See Evans at ¶ 17, citing Trikilis, 2005-Ohio-

4266, at ¶ 19.

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

which this Court reviews de novo.       State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

“Sufficiency concerns the burden of production and tests whether the prosecution presented

adequate evidence for the case to go to the jury.” State v. Bressi, 9th Dist. Summit No. 27575,

2016-Ohio-5211, ¶ 25, citing Thompkins at 386. “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.” Id., quoting State

v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, “we do not resolve
                                                9


evidentiary conflicts or assess the credibility of witnesses, because these functions belong to the

trier of fact.” State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.

       {¶21} Mr. Owens was convicted of aggravated trafficking in drugs under R.C.

2925.03(A)(2), which states: “No person shall knowingly * * * [p]repare for shipment, ship,

transport, deliver, prepare for distribution, or distribute [oxycodone], when the offender knows or

has reasonable cause to believe that the [oxycodone] is intended for sale or resale by the offender

or another person.” He was also convicted of aggravated possession of drugs under R.C.

2925.11(A), which states: “No person shall knowingly obtain, possess, or use [oxycodone].”

Because the oxycodone equaled or exceeded the bulk amount but was less than five times the

bulk amount, both offenses were enhanced to felonies of the third degree.                See R.C.

2925.03(C)(1)(c); R.C. 2925.11(C)(1)(b).

       {¶22} Mr. Owens was convicted of trafficking in marijuana under R.C. 2925.03(A)(2),

which states: “No person shall knowingly * * * [p]repare for shipment, ship, transport, deliver,

prepare for distribution, or distribute [marijuana], when the offender knows or has reasonable

cause to believe that the [marijuana] is intended for sale or resale by the offender or another

person.” See also R.C. 2925.03(C)(3)(a) (classifying the offense as a felony of the fifth degree).

       {¶23} Mr. Owens was convicted of trafficking in heroin under R.C. 2925.03(A)(2),

which states: “No person shall knowingly * * * [p]repare for shipment, ship, transport, deliver,

prepare for distribution, or distribute [heroin], when the offender knows or has reasonable cause

to believe that the [heroin] is intended for sale or resale by the offender or another person.” He

was also convicted of possession of heroin under R.C. 2925.11(A), which states: “No person

shall knowingly obtain, possess, or use [heroin].” Because the amount of heroin equaled or
                                                10


exceeds ten grams but was less than fifty grams, both offenses were enhanced to felonies of the

second degree. See R.C. 2925.03(C)(6)(e); R.C. 2925.11(C)(6)(d).

        {¶24} The trial court also instructed the jury on complicity. See R.C. 2923.03(A)(2)

(“No person, acting with the kind of culpability required for the commission of an offense, shall

* * * [a]id or abet another in committing the offense * * *.”). The Supreme Court of Ohio has

held:

        To support a conviction for complicity by aiding and abetting pursuant to R.C.
        2923.03(A)(2), the evidence must show that the defendant supported, assisted,
        encouraged, cooperated with, advised, or incited the principal in the commission
        of the crime, and that the defendant shared the criminal intent of the principal.
        Such intent may be inferred from the circumstances surrounding the crime.

State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. “‘[P]articipation in criminal intent may be

inferred from presence, companionship and conduct before and after the offense is committed.’”

Id. at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 34 (4th Dist.1971).

        {¶25} Mr. Owens argues that the State presented no evidence at trial that he knowingly

possessed the drugs found in his car. “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. A person has knowledge of circumstances when the person is aware that

such circumstances probably exist.” R.C. 2901.22(B). “Possess” or “possession” means having

control over an object, but may not be inferred solely from mere access to the object through

ownership or occupation of the premises upon which the object is found. R.C. 2925.01(K). He

also argues that the State presented no evidence that he shared the criminal intent of the principal

offender, and he therefore could not be complicit in the commission of these offenses.

        {¶26} Trooper Darryl Dowler testified at trial that he is a K-9 handler for the Ohio State

Highway Patrol (“OSHP”). The State also introduced Trooper Dowler’s dash cam video into
                                                11


evidence. Trooper Dowler testified that, on June 12, 2017, he was stationary on I-80 in Summit

County watching for traffic violations. He conducted a traffic stop after he observed a vehicle

speeding, possibly displaying both a temporary Ohio registration tag and a Pennsylvania license

plate, and following another vehicle too closely. Mr. Owens was the driver of the vehicle and

another man (“T.D.”) was the front seat passenger. According to Trooper Dowler, Mr. Owens

appeared “overly nervous,” was breathing hard, would only make limited eye contact, and his

hands were shaking. T.D. was also breathing hard and looking straight ahead without making

any eye contact. The trooper soon separated and secured the two men. When the trooper asked

Mr. Owens who the passenger was, Mr. Owens said it was his cousin whom he just met a few

days ago. He said his cousin’s first name is “King,” but he did not know his last name.

       {¶27} Trooper Dowler walked his K-9 partner around Mr. Owens’ vehicle, and the dog

indicated that narcotics were present in the vehicle. The trooper explained to Mr. Owens that the

dog hit on his vehicle and asked him if there was anything inside. On the dash cam video, Mr.

Owens tells the trooper there is nothing in the vehicle, but says, “We got, I got chips and stuff in

there.” During a search of the vehicle, the trooper observed marijuana “shake,” i.e., green leaves

and green stems, all over the front passenger compartment of the car. He found marijuana in the

glove compartment and other baggies of marijuana “shake” in the trunk. In the backseat, the

trooper smelled a “real strong odor of raw marijuana” and found two plastic, black bags. He

opened one bag and found some smaller, sealed, $1.00 bags of potato chips inside. He testified

that “the odor was so strong,” so he opened a chip bag and found another, smaller bag inside

containing fifteen grams of marijuana.      Other chip bags contained heroin, oxycodone, and

various other pills. The trooper testified that, based on his training and experience, the amounts
                                                 12


of each drug and their packaging inside of sealed chip bags were not consistent with personal

use. He testified that it was more consistent with distribution.

       {¶28} The State also introduced an audio CD of Mr. Owens’ interview with Trooper

Mandy Rodriguez who works for the OSHP as a criminal patrol investigator. At the beginning

of the interview, the trooper asks Mr. Owens about the other man in the car. Mr. Owens says the

man is “like a third cousin,” he just met him through another family member days ago, and they

“just kicked it,” but he “didn’t know he was bringing back f*****g pot in f*****g chips bags *

* *.” He then says the other man owns a barber shop and he is supposed to get a haircut, but

now he is “pissed” that will not happen. Mr. Owens continues: “Right now I’m just f*****g

mad as f*****g Hell, the more I’m thinking about what the f**k I just went up there and

f*****g did * * *.” Mr. Owens explains that they went to Detroit to meet another family

member, but when asked for the family member’s name, he replies, “I don’t know. I haven’t the

slightest f*****g clue.” When discussing the trip further, he explains: “I didn’t know anything

about, all I know is we had some chip bags, was the only thing new in my freaking car. I smoke

weed. I’m not gonna lie. I got, I got, I know I got some freaking weed, little freaking whatever

is, little dabs of f*****g weed in my f*****g car.” He then tells the trooper he is a mechanic

and an Uber driver. He explains that he is “business-oriented” and wants to “get on the road”

while “trying to do a business thing,” so he was “seeing new cars” up there and “seeing different

types of cars” in these areas. He then expresses concern that he is “’bout to get f****d up” and

his plan is “’bout to get freaking hold, held up.” Mr. Owens again speaks about their trip to

Detroit to see family members, including his own sister, and explains: “But, I mean, honestly,

chips. That’s why I said there’s a bag of f*****g chips and trash in my car. I, I told ’em that

from the, there’s a bag of f*****g chips, we just got some chips, and there’s some fucking s**t
                                                 13


in my car, trash on my, in, on, and other than that, there was nothing else in my freaking car.”

When asked if he took any previous trips to Detroit, Mr. Owens cannot quite recall any details,

except he knows he went there with his sister sometime last year. When asked about the travel

time and if he was the driver, he says, “Yeah, I always drive.” He says he was taking his cousin

to see his cousin’s mother in Detroit, but concedes that his cousin never saw his mother because

“she never came through.” He mentions the presence of his cousin’s friend and another female

in Detroit, but claims he did not talk to her because “there’s rules, I mean, I mean, I don’t even

know, you know what I’m saying? That’s, I don’t talk to women, especially in the family.” On

their way home from Detroit, he says they “went to the store, grabbed some chips, and ‘dipped.’”

When questioned about his cousin’s actions and whereabouts while in Detroit, Mr. Owens says,

“He didn’t do anything. All he did was, all I seen King do was put the chips in the car. That’s it.

That’s all I seen him do was put the chips in the car.” He then continues: “Look, I’m not gonna

fake anything about no bag of freaking chips. That’s why I said, ‘bag of chips.’”

       {¶29} Trooper Rodriguez testified at trial that all of the seized narcotics were laid out on

a table behind Mr. Owens, but catty-corner to where the interview was being conducted. She can

be heard on the audio CD telling him, “Go ahead and turn around,” and Mr. Owens can be heard

saying, “Holy f**k. What the Hell’s that? What the fu-, aw, Hell no.” Mr. Owens seemingly

becomes irate at the sight of the drugs, but when asked if he wants to talk about what was found

in his car, he replies, “No, I’m not a snitch * * * Look, listen, first of all, I don’t know anything

to snitch, but the fact is I’m pissed off that I ain’t know nothing about in my fu-, none of that

s**t. The f**k? Come on now.” The interview concludes with Mr. Owens asking for an

attorney and the trooper telling him that his story is not believable. Mr. Owens responds, “Why

is my story not believable?”
                                                 14


       {¶30} Trooper Rodriguez testified that Mr. Owens’ story did not make any sense. She

further testified that she did not believe his surprised and animated reaction when he turned

around and saw the seized drugs. According to the trooper, “He just wasn’t believable at all.”

She also testified that, in her experience, when someone says he is not going to be a snitch, it

means he has knowledge of criminal activity, but is not going to “rat” or tell on his friend.

       {¶31} After reviewing the evidence contained in the record in a light most favorable to

the prosecution, we conclude that the State satisfied its burden of production and presented

sufficient evidence, if believed, to establish that Mr. Owens knowingly committed the offenses

of aggravated trafficking in drugs (oxycodone), aggravated possession of drugs (oxycodone),

trafficking in marijuana, trafficking in heroin, and possession of heroin.         Trooper Dowler

observed several indicators of illegal activity from Mr. Owens during the traffic stop, including

being overly nervous, breathing hard, making limited eye contact, and shaking. When asked to

identify his passenger, Mr. Owens claimed T.D. was a cousin whom he just met and only knew

as “King.”    When the trooper told him the dog detected narcotics in his car, Mr. Owens

immediately told the trooper, “I got chips and stuff in there.” The trooper found marijuana

“shake” all over the front passenger compartment of the car, found marijuana in the glove

compartment, and smelled a strong odor of raw marijuana. The odor led him to two black bags,

which contained smaller, sealed, potato chip bags.         The trooper found marijuana, heroin,

oxycodone, and various other pills inside of the sealed chip bags. The amounts of each drug and

their packaging inside of sealed chip bags were consistent with trafficking, not personal use. In

his interview with Trooper Rodriguez, Mr. Owens said he was “pissed” thinking about what he

had done and he repeatedly mentioned chip bags without being asked about them. He admitted

to having “weed” in the car, but said he was not going to be a snitch. Therefore, we conclude
                                                15


that any rational trier of fact could have found, beyond a reasonable doubt, that Mr. Owens

knowingly possessed the drugs found in his vehicle or was at least complicit in the commission

of these offenses.

       {¶32} Mr. Owens’ second assignment of error is overruled.

                                                III.

       {¶33} Mr. Owens’ first assignment of error is sustained. The trial court’s judgment is

reversed in part, Mr. Owens’ convictions and sentences are hereby vacated, and the matter is

remanded to the trial court for a new trial.           We decline to address his third and fourth

assignments of error, as they have been rendered moot. Mr. Owens’ second assignment of error

is overruled. The judgment of the Summit County Court of Common Pleas is affirmed in part

and reversed in part. The cause is remanded back to the trial court for further proceedings

consistent with this opinion.

                                                                         Judgment affirmed in part,
                                                                     reversed and remanded in part.




       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
                                                16


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 equally to both parties.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



CARR, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

WESLEY C. BUCHANAN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE CORGAN, Assistant
Prosecuting Attorney, for Appellee.
