[Cite as State v. King, 2020-Ohio-3065.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


State of Ohio                                        Court of Appeals No. WD-19-013

        Appellee                                     Trial Court No. 2018CR0149

v.

Kyren Tavior King                                    DECISION AND JUDGMENT

        Appellant                                    Decided: May 22, 2020

                                              *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                              *****

        ZMUDA, P.J.

                                           I. Introduction

        {¶ 1} Appellant, Kyren King, appeals the judgment of the Wood County Court of

Common Pleas, sentencing him to five years in prison following his conviction for two

counts of trafficking in drugs and one count of trafficking in marijuana.
                         A. Facts and Procedural Background

       {¶ 2} On June 7, 2018, appellant was indicted on one count of trafficking in

marijuana in violation of R.C. 2925.03(A)(2) and (C)(3)(c), a felony of the first degree,

one count of trafficking in drugs in violation of R.C. 2925.03(A)(2) and (C)(2)(c), a

felony of the fourth degree, one count of possession of marijuana in violation of R.C.

2925.11(A) and (C)(3)(c), a felony of the fifth degree, one count of possession of cocaine

in violation of R.C. 2925.11(A) and (C)(4)(e), a felony of the first degree, one count of

possession of drugs in violation of R.C. 2925.11(A) and (C)(2)(b), a felony of the fourth

degree, and one count of trafficking in cocaine in violation of R.C. 2925.03(A)(2) and

(C)(4)(f). The indictment stemmed from an incident that occurred on March 17, 2018, in

which appellant was found with drugs in his possession during the course of an OVI

checkpoint.

       {¶ 3} Appellant entered a plea of not guilty, and the matter proceeded through

pretrial discovery and motion practice. On July 26, 2018, appellant filed a motion to

suppress, arguing that the OVI checkpoint at which he was apprehended was not

conducted lawfully. Specifically, appellant asserted that the “issue is whether the trooper

properly conducted the OVI checkpoint and whether the trooper improperly used

individual discretion in selecting the Defendant’s vehicle, which contained four African

American males, for a search.”

       {¶ 4} On September 21, 2018, a hearing on appellant’s motion to suppress was

held. At the hearing, Trooper Codi Williams of the Ohio State Highway Patrol testified.




2.
After reciting his credentials, Williams testified regarding the Highway Patrol’s policy

and procedures regarding OVI checkpoints. According to Williams, the Highway

Patrol’s manual contains a section on OVI checkpoints that articulates the time and

location at which such checkpoints are to be conducted. As to the selection of time and

place, the Highway Patrol considers the statistical history of OVI crashes, and selects

locations within a three-mile radius of high-crash areas. Additionally, Williams testified

that the policy requires three media releases announcing the OVI checkpoint to the public

before the checkpoint is conducted. Williams indicated that the three required media

releases were issued in this case prior to the OVI checkpoint, and said releases were

submitted at the suppression hearing as state’s exhibit No. 4.

       {¶ 5} As to the manner in which OVI checkpoints are conducted, Williams

testified: “We check every vehicle that comes through unless the line commander tells us

otherwise, such as if traffic is heavily backing up to the point of where it’s going to be a

safety concern for the people that are driving through – such as getting stuck in an

intersection and whatnot.” Williams confirmed that every OVI checkpoint conducted by

the Highway Patrol follows the foregoing policies and procedures.

       {¶ 6} Williams was a participant in the OVI checkpoint that was conducted in this

case on March 17, 2018. With respect to this particular OVI checkpoint, Williams

indicated that the date was selected because it was St. Patrick’s Day, a day which,

according to Williams’ past experience, is commonly associated with drinking and

driving. The checkpoint occurred at a predetermined area near the campus of Bowling




3.
Green State University, at the intersection of South College Avenue and East Wooster

Street. This location was selected based upon prior “fatal injury and property crashes,”

and was described by Williams as the location in Bowling Green with “the majority of

bars.” According to state’s exhibit No. 3, a report from the Ohio State Highway Patrol

Office of Planning & Finance – Statistical Analysis Unit, there were 93 OVI-related

crashes within the three-mile radius surrounding the site of the OVI checkpoint.

       {¶ 7} When asked to describe how this particular checkpoint was conducted,

Williams indicated that there were approximately 12 “line checkers” for vehicles

traveling eastbound and westbound on East Wooster Street. If a line checker detected

any criminal activity, including the odor of alcohol or marijuana, during the initial stop,

that vehicle would then be directed to a “divergent area.”

       {¶ 8} During its direct examination of Williams, the state introduced a “Sobriety

Checkpoint Checklist” as state’s exhibit No. 2. According to the checklist, all vehicles

were to be stopped and checked by officers, unless a deviation from that rule was

approved by the line commander. The checklist required documentation of the time and

reason for said deviation. According to Williams, the OVI checkpoint in this case was

conducted in a manner consistent with the procedures set forth on the Highway Patrol’s

checklist.

       {¶ 9} During the course of the OVI checkpoint, Williams encountered appellant.

At the time, appellant was a rear passenger in a vehicle that drove through the OVI

checkpoint and was stopped. As Williams approached the vehicle, the driver rolled the




4.
window down, and Williams testified that he “smelled an odor of raw marijuana coming

from the passenger compartment of the vehicle.” Williams asked the driver about the

odor, and the driver responded that “he had nothing in the vehicle that he was aware of.”

Due to the odor of marijuana, Williams “asked each of the individuals to get out of the

vehicle and [another officer] got inside the vehicle and drove it to the divergent area for

[Williams] so [the officers] could get out of the roadway.”

       {¶ 10} On cross-examination, Williams was asked how the officers conducting the

checkpoint determined which cars to stop, to which he responded: “We stop each vehicle

that comes through unless * * * other reasons such as – a lot of vehicles clogging up the

road to where it’s getting backed up into an intersection or all of the way down the road.

Obviously, it’s just going to be a safety hazard.” Williams went on to reiterate that every

vehicle is stopped unless he is told otherwise by his lieutenant. He explained: “[a]t one

point, I know there [were] a lot of commercial vehicles coming through to where it was

clogging up the road quite a bit. Lieutenant Burgos let us know, “Let’s go ahead and

allow traffic to flow through a little bit so it’s not * * * so backed up and then we can

continue on checking each car.”

       {¶ 11} At the conclusion of Williams’ testimony, the state rested. Appellant did

not call any witnesses, so the matter proceeded to closing statements. Following closing

statements, the trial court took the matter under advisement.

       {¶ 12} On October 17, 2018, the trial court issued its decision on appellant’s

motion to suppress. In its decision, the trial court found that Williams exercised no




5.
individual discretion in stopping the vehicle in which appellant was a passenger during

the course of the OVI checkpoint. Relying upon Williams’ testimony, the court found

that Williams only stopped the vehicle because it was the next vehicle in line, and that all

vehicles were stopped unless they were allowed to pass through for safety concerns. The

court concluded that the Highway Patrol followed “established policies and procedures

and no part was left to the discretion of the line checkers who were manning the

checkpoint.” As such, the trial court denied appellant’s motion to suppress.

       {¶ 13} On December 12, 2018, the matter proceeded to a two-day jury trial.

Following jury selection and opening statements, the state called Kyler Famble as its first

witness. Famble, appellant’s schoolmate and friend, was the driver of the vehicle that

was stopped at the OVI checkpoint on March 17, 2018. According to Famble, he picked

up three friends earlier in the day from Cincinnati; appellant, George Daniels, and Jerel

Horton. Appellant and another friend, George Daniels, were each carrying a bag when

they approached Famble’s vehicle prior to the OVI checkpoint. Daniels had a denim blue

teal backpack, and appellant had a blue Northwest cheerleading book bag bearing the

name of appellant’s girlfriend, Kayleigh. Famble identified state’s exhibit No. 3 as

appellant’s bag. Famble stated that he opened the trunk and appellant and Daniels placed

the bags inside. Famble did not detect any odor emanating from the bags at the time.

Famble acknowledged that he, too, had a black Nike book bag that he used for school.

       {¶ 14} After picking up his friends, Famble drove to Toledo to a residence of

another friend, Tyler King. Upon arrival, Famble and Horton removed their luggage




6.
from Famble’s trunk. Sometime later, the group of men left King’s residence to go to the

mall. While at the mall, Famble observed appellant carrying a “bundle of cash with

him.” After completing their shopping, the group returned to King’s residence and

prepared to go out to a “social function” in Bowling Green later that evening.

       {¶ 15} After leaving King’s residence, the group drove to Bowling Green, where

they were ultimately stopped at the OVI checkpoint at the intersection of South College

Avenue and East Wooster Street, leading to the discovery of marijuana, cocaine, and

Alprazolam pills in the trunk of Famble’s vehicle. Famble testified that he did not smell

any marijuana coming from appellant’s bag prior to the stop. Famble later testified that

the narcotics discovered in his trunk belonged to appellant, a conclusion he drew from his

observation of police removing the narcotics from appellant’s bag during the OVI

checkpoint.

       {¶ 16} On cross-examination, Famble stated that he was certain that he did not

confuse appellant’s bag with Daniel’s bag, despite the fact that they were both blue.

When questioned about the charges that were filed against him following this incident,

Famble indicated that the charges were dismissed because the prosecutor believed

Famble to be innocent of any wrongdoing.

       {¶ 17} As its second witness, the state called Horton to the stand. Like Famble,

Horton and appellant have been friends since they attended middle school together.

Horton corroborated Famble’s testimony that he and Famble took their bags into King’s

residence upon arrival. Horton also testified that he was not paying attention to any other




7.
bags, but denied having brought the bag that Famble identified as appellant’s bag, and

further denied bringing any narcotics with him on the trip.

       {¶ 18} Following Horton’s testimony, the state called King as its third witness.

King and appellant have known each other since they were in eighth grade. Upon the

group’s arrival to King’s residence, King observed that each man “brought their own

personal belongings.” King was able to confirm that state’s exhibit No. 3 was the bag

that appellant brought with him to King’s residence. According to King, appellant

attempted to bring his bag into the residence, but King directed him to return it to

Famble’s vehicle because he did not like the “strong marijuana smell” that was

emanating from the bag.

       {¶ 19} On cross-examination, defense counsel questioned King as to whether he

received a dismissal of charges in exchange for cooperation in the present case. King

replied in the negative, insisting that “I just told the truth. I came in and told the truth of

what happened. That was it. * * * I didn’t make no agreement. I just gave them my

knowledge – told the truth.”

       {¶ 20} As its fourth witness, the state called Highway Patrol criminalist, Emily

Bocook, to the stand. As a criminalist, Bocook “analyze[s] evidence for the absence or

presence of controlled substances, write[s] reports on [her] findings, and [testifies] to

those findings.” As it relates to this case, Bocook analyzed the materials police seized

from appellant’s bag and prepared a report, which was admitted into evidence as state’s

exhibit No. 10. Pursuant to her analysis, Bocook determined that the materials seized by




8.
police included 25.949 grams of Alprazolam, a schedule IV substance, an unspecified

weight of Tetrahydrocannabinol (THC), a schedule I substance, an aggregate total of

316.461 grams of marijuana, a schedule I substance, and 33.987 grams of cocaine

hydrochloride, a schedule II substance.

      {¶ 21} As its fifth and final witness, the state called trooper Williams to the stand.

Williams explained that he was the officer who stopped Famble’s vehicle at the OVI

checkpoint on March 17, 2018. Williams testified that Famble, Daniels, King, Horton,

and appellant were in the vehicle at the time of the stop. As Famble approached

Williams in his vehicle, he lowered his window “just a tiny bit” and Williams stated that

he smelled an odor of raw marijuana coming from the passenger compartment of the

vehicle. Williams ordered Famble to drive to the divergent area that the officers had

setup for the OVI checkpoint.

      {¶ 22} Once Williams secured the vehicle in the divergent area, he asked all of the

passengers to exit the vehicle and searched the vehicle. Upon looking in the trunk of the

vehicle, Williams “located the bag that contained all the contraband.” Williams

confirmed that the bag containing the contraband was the bag that had previously been

marked state’s exhibit No. 3. When Williams looked inside the bag, he found

      a large amount of marijuana in a plastic bag. [There were] two different

      bags containing Alprazolam pills, one was whole pills, the other was

      crushed up fragments that appeared to be the same pill. There was a bag of




9.
       cocaine, a tiny piece of paper with white residue inside, a digital scale, and

       two marijuana edibles packages – THC edibles.

       {¶ 23} Based upon his prior experience as a drug interdiction officer, Williams

was able to identify the presence of marijuana from the odor emanating from the bag.

Williams testified that the large amount of narcotics present inside the bag, coupled with

the digital scale that was recovered, was not indicative of personal use, but instead

suggested narcotics trafficking. Moreover, Williams searched appellant after finding the

narcotics in his bag, and discovered a “thick wad of cash in his pocket” comprised of bills

of different amounts, which Williams testified was typically associated with drug

trafficking in his experience.

       {¶ 24} At the conclusion of Williams’ testimony, the state rested. Appellant then

moved for acquittal under Crim.R. 29, arguing only that the evidence that was presented

should have been suppressed as requested in his previously-denied motion to suppress

and, absent such evidence, the state introduced insufficient evidence to support the

charges contained in the indictment. Upon consideration, the trial court denied

appellant’s Crim.R. 29 motion, finding that the state’s evidence, consisting of testimony

from several of appellant’s friends, established that the narcotics discovered in the trunk

of Famble’s vehicle belonged to appellant.

       {¶ 25} Once the trial court denied appellant’s Crim.R. 29 motion, the defense

rested. The court instructed the jury, and the parties provided closing arguments.




10.
Following deliberations, the jury found appellant guilty of all charges contained in the

indictment. Thereafter, the court set the matter for sentencing.

       {¶ 26} At sentencing, the trial court discussed its consideration of the seriousness

and recidivism factors under R.C. 2929.12 with the state and appellant’s defense counsel.

Thereafter, the court heard statements in mitigation, and discussed issues regarding

merger of certain offenses. Ultimately, the parties agreed that the possession and

trafficking charges merged with one another, and the state elected to proceed on the three

trafficking counts.

       {¶ 27} Upon consideration, the trial court voiced its concern over appellant’s lack

of remorse at sentencing, noting appellant’s insistence that he did not commit the crimes

with which he was charged. Thereafter, the trial court imposed prison terms of five years

for trafficking in drugs (cocaine), 17 months for trafficking in marijuana, and 17 months

for trafficking in drugs (Alprazolam). The court ordered the sentences served

concurrently for a total prison term of five years. In its sentencing entry, the trial court

stated that “the purposes and principles of sentencing as well as the seriousness and

recidivism factors were carefully reviewed.”

       {¶ 28} Thereafter, appellant filed a timely notice of appeal.

                                 B. Assignments of Error

       {¶ 29} On appeal, appellant asserts the following assignments of error for our

review:




11.
                   1. The trial court erred when it determined that the sobriety

               checkpoint used to stop appellant was constitutional under the

               Fourth and Fourteenth Amendments of the United States

               Constitution and Article I, Section 14 of the Ohio Constitution.

                   2. The jury’s verdict was against the manifest weight of the

               evidence presented at trial.

                   3. The trial court committed error to the prejudice of appellant

               by imposing the costs of prosecution without consideration of

               appellant’s present or future ability to pay.

                                         II. Analysis

                                   A. Motion to Suppress

        {¶ 30} In his first assignment of error, appellant argues that the trial court erred

when it denied his motion to suppress after finding that the OVI checkpoint conducted in

this case was constitutional. Appellant only challenges the execution of the OVI

checkpoint; he does not independently challenge the reasonable suspicion garnered from

Williams’ detection of an odor of marijuana or Williams’ subsequent search of Famble’s

vehicle.

        {¶ 31} Concerning appellate review of a trial court’s decision on a motion to

suppress, which involves mixed questions of law and fact, the Supreme Court of Ohio has

held:




12.
              When considering a motion to suppress, the trial court assumes the

       role of trier of fact and is therefore in the best position to resolve factual

       questions and evaluate the credibility of witnesses. Consequently, an

       appellate court must accept the trial court’s findings of fact if they are

       supported by competent, credible evidence. Accepting these facts as true,

       the appellate court must then independently determine, without deference to

       the conclusion of the trial court, whether the facts satisfy the applicable

       legal standard.

(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8.

       {¶ 32} In Michigan v. Sitz, 496 U.S. 444, 453, 110 S.Ct. 2481, 110 L.Ed.2d 412

(1990), the United States Supreme Court applied a three-part balancing analysis that was

derived from its decision in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357

(1979) to the state’s use of a highway sobriety checkpoint. In applying the test, we are to

balance “the State’s interest in preventing drunken driving, the extent to which this

system can reasonably be said to advance that interest, and the degree of intrusion upon

individual motorists who are briefly stopped.” Sitz at 455. In applying the foregoing test,

the court in Sitz held that the sobriety checkpoint at issue was constitutional.

       {¶ 33} In reaching its decision, the court noted the magnitude of the drunken

driving problem and the state’s interest in eradicating it. Id. at 451. Further, the court

found that the intrusion to motorists who are stopped at OVI checkpoints “is slight.” Id.




13.
Finally, the court concluded that the particular sobriety checkpoint at issue in Sitz could

be reasonably said to advance the state’s interest in preventing drunken driving. Id. at

455. On the question of the checkpoint’s effectiveness at preventing drunken driving, the

court distinguished between checkpoints at which vehicles are stopped randomly from

those, like the one at issue in the present case, in which all vehicles are stopped, finding

the latter to be permissible. Id.

       {¶ 34} Since the United States Supreme Court issued its decision in Sitz, “a

majority of state courts have followed the balancing analysis and have concluded that

roadblocks may survive constitutional scrutiny if they are operated under guidelines

which minimize intrusiveness and limit officers’ discretion.” State v. Hall, 5th Dist.

Ashland No. 03-COA-064, 2004-Ohio-3302, ¶ 15, citing State v. Downey, 945 S.W.2d

102, 108, n. 6 (Tenn.Sup.Ct.1997). Ohio is among the majority of jurisdictions who have

upheld the constitutionality of OVI checkpoints. Id. at ¶ 17, citing State v. Eggleston,

109 Ohio App.3d 217, 671 N.E.2d 1325 (2d Dist.1996) and State v. Bauer, 99 Ohio

App.3d 505, 651 N.E.2d 46 (10th Dist.1994).

       {¶ 35} Here, appellant does not challenge the constitutionality of the OVI

checkpoint under the three-part test set forth in Sitz. Instead, appellant asserts that the

checkpoint was unconstitutional under the following guidelines that were originally set

forth by the Iowa Supreme Court and later referenced by the Second District:

       “* * * Where there is no consent, probable cause, or Terry-type reasonable

       and articulable suspicion, a vehicle stop may be made only where there




14.
       minimally exists (1) a checkpoint or roadblock location selected for its

       safety and visibility to oncoming motorists; (2) adequate advance warning

       signs, illuminated at night, timely informing approaching motorists of the

       nature of the impending intrusion; (3) uniformed officers and official

       vehicles in sufficient quantity and visibility to ‘show * * * the police power

       of the community;’ and (4) a predetermination by policy-making

       administrative officers of the roadblock location, time, and procedures to be

       employed, pursuant to carefully formulated standards and neutral criteria.”

State v. Goines, 16 Ohio App.3d 168, 170-171, 474 N.E.2d 1219 (2d Dist.1984), quoting

State v. Hilleshiem, 291 N.W.2d 314, 318 (Iowa 1980).

       {¶ 36} The state asserts that the Ohio Supreme Court has not adopted the

guidelines referenced in Goines, and therefore argues that these guidelines are not

controlling in this case. We need not reach this issue, however, because our conclusion

in this case remains the same even if we apply the guidelines articulated in Goines.

       {¶ 37} Appellant acknowledges the state’s compliance with the first three

guidelines in Goines, but argues under the fourth guideline that the Highway Patrol’s

procedures relating to the OVI checkpoint in this case were “arbitrary in that not every

vehicle that passes through the sobriety checkpoint is stopped.” Appellant’s contention

in this regard is premised upon “the fact that not every vehicle that [entered] the [OVI]

checkpoint [was] stopped.”




15.
       {¶ 38} In its decision, the trial court expressly rejected appellant’s argument that

the OVI checkpoint in this case was conducted in an arbitrary fashion. The court found

that the OVI checkpoint was carried out with “military-like precision.” Having reviewed

the transcript of the suppression hearing, we agree.

       {¶ 39} During his testimony at the hearing on appellant’s motion to suppress,

Williams articulated in detail the Highway Patrol’s policy and procedures regarding OVI

checkpoints. Taken together, these policies and procedures (media notification, selection

of time and place, manner in which the checkpoints are to be conducted, etc.) are

obviously designed to render the OVI checkpoints conducted by the Highway Patrol

neutral and impartial. Indeed, Williams indicated that officers conducting OVI

checkpoints under these policies and procedures check every vehicle that comes through

unless the line commander instructs the officers to allow traffic to flow through the

checkpoint for safety reasons, at which point every vehicle is allowed to pass through

uninspected until the safety issue is resolved.

       {¶ 40} Contrary to appellant’s contention that the OVI checkpoint in this case was

conducted in an arbitrary fashion, Williams stated that every vehicle was stopped unless

he was told otherwise by his lieutenant, which happened in this case when “a lot of

commercial vehicles [were] coming through [the OVI checkpoint] to where it was

clogging up the road quite a bit.” This procedure, known as “flushing,” has previously

been reviewed and upheld by Ohio courts. See Hall, supra, 5th Dist. Ashland No.




16.
03-COA-064, 2004-Ohio-3302, at ¶ 24; see also Eggleston, supra, 109 Ohio App.3d at

225-226, 671 N.E.2d 1325 and Bauer, supra, 99 Ohio App.3d at 511, 651 N.E.2d 46.

Notably, the record is devoid of any indication as to when Famble’s vehicle was stopped

in relation to the flushing that occurred during this OVI checkpoint, and appellant does

not contend that his vehicle should have been passed through during the flushing.

         {¶ 41} In sum, the testimony provided by Williams demonstrates that he had no

individual discretion to determine whether to stop the vehicle in which appellant was a

passenger. The officers conducting the stop were not given individual decision-making

authority over which vehicles would be required to stop and which vehicles would be

allowed to pass through. Rather, all vehicles were stopped unless safety concerns arose,

at which point all vehicles were allowed to pass through.

         {¶ 42} On the facts found by the trial court, which we are required to accept since

they are supported by competent, credible evidence, we conclude that the OVI checkpoint

here was conducted according to carefully formulated standards and neutral criteria.

Therefore, applying, for the sake of argument, the guidelines set forth in Goines, we find

no merit to appellant’s contention that the OVI checkpoint in this case was carried out in

an arbitrary fashion such that it ran afoul of the constitutional protections guaranteed by

the Fourth Amendment. Accordingly, appellant’s first assignment of error is not well-

taken.




17.
                                   B. Manifest Weight

       {¶ 43} In his second assignment of error, appellant argues that the jury’s verdict

was against the manifest weight of the evidence.

       {¶ 44} When reviewing a manifest weight of the evidence claim, the appellate

court reviews “the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the jury 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. Lang, 129 Ohio

St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220. A new trial should only be granted

in the “exceptional case in which the evidence weighs heavily against the conviction.”

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983), citing Tibbs v.

Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

       {¶ 45} In the present case, appellant was convicted of one count of trafficking in

marijuana in violation of R.C. 2925.03(A)(2) and (C)(3)(c), one count of trafficking in

drugs in violation of R.C. 2925.03(A)(2) and (C)(2)(c), one count of trafficking in

cocaine in violation of R.C. 2925.03(A)(2) and (C)(4)(f), one count of possession of

marijuana in violation of R.C. 2925.11(A) and (C)(3)(c), one count of possession of

cocaine in violation of R.C. 2925.11(A) and (C)(4)(e), and one count of possession of

drugs in violation of R.C. 2925.11(A) and (C)(2)(b). Ohio’s trafficking statute, R.C.

2925.03, provides, in relevant part:




18.
             (A) No person shall knowingly do any of the following:

             ***

             (2) Prepare for shipment, ship, transport, deliver, prepare for

      distribution, or distribute a controlled substance or a controlled substance

      analog, when the offender knows or has reasonable cause to believe that the

      controlled substance or a controlled substance analog is intended for sale or

      resale by the offender or another person.

             ***

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

      the following:

             ***

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

      preparation, or substance included in schedule III, IV, or V, whoever

      violates division (A) of this section is guilty of trafficking in drugs. The

      penalty for the offense shall be determined as follows:

             ***

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

      the drug involved equals or exceeds the bulk amount but is less than five

      times the bulk amount, trafficking in drugs is a felony of the fourth degree,

      and division (B) of section 2929.13 of the Revised Code applies in

      determining whether to impose a prison term for the offense. If the amount




19.
      of the drug involved is within that range and if the offense was committed

      in the vicinity of a school or in the vicinity of a juvenile, trafficking in

      drugs is a felony of the third degree, and there is a presumption for a prison

      term for the offense.

             ***

             (3) If 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 trafficking in

      marihuana. The penalty for the offense shall be determined as follows:

             ***

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

      the drug involved equals or exceeds two hundred grams but is less than one

      thousand grams, trafficking in marihuana is a felony of the fourth degree,

      and division (B) of section 2929.13 of the Revised Code applies in

      determining whether to impose a prison term on the offender. If the

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

      committed in the vicinity of a school or in the vicinity of a juvenile,

      trafficking in marihuana is a felony of the third degree, and division (C) of

      section 2929.13 of the Revised Code applies in determining whether to

      impose a prison term on the offender.

             ***




20.
             (4) If the drug involved in the violation is cocaine or a compound,

      mixture, preparation, or substance containing cocaine, whoever violates

      division (A) of this section is guilty of trafficking in cocaine. The penalty

      for the offense shall be determined as follows:

             ***

             (f) If the amount of the drug involved equals or exceeds twenty-

      seven grams but is less than one hundred grams of cocaine and regardless

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

      vicinity of a juvenile, trafficking in cocaine is a felony of the first degree,

      and the court shall impose as a mandatory prison term a first degree felony

      mandatory prison term.

      {¶ 46} Ohio’s possession statute, R.C. 2925.11, provides, in relevant part:

             (A) No person shall knowingly obtain, possess, or use a controlled

      substance or a controlled substance analog.

             ***

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

      the following:

             ***

             (2) If the drug involved in the violation is a compound, mixture,

      preparation, or substance included in schedule III, IV, or V, whoever




21.
      violates division (A) of this section is guilty of possession of drugs. The

      penalty for the offense shall be determined as follows:

             ***

             (b) If the amount of the drug involved equals or exceeds the bulk

      amount but is less than five times the bulk amount, possession of drugs is a

      felony of the fourth degree, and division (C) of section 2929.13 of the

      Revised Code applies in determining whether to impose a prison term on

      the offender.

             ***

             (3) If 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. The penalty for the offense shall be determined as follows:

             ***

             (c) If the amount of the drug involved equals or exceeds two

      hundred grams but is less than one thousand grams, possession of

      marihuana is a felony of the fifth degree, and division (B) of section

      2929.13 of the Revised Code applies in determining whether to impose a

      prison term on the offender.

             ***




22.
              (4) If the drug involved in the violation is cocaine or a compound,

       mixture, preparation, or substance containing cocaine, whoever violates

       division (A) of this section is guilty of possession of cocaine. The penalty

       for the offense shall be determined as follows:

              ***

              (e) If the amount of the drug involved equals or exceeds twenty-

       seven grams but is less than one hundred grams of cocaine, possession of

       cocaine is a felony of the first degree, and the court shall impose as a

       mandatory prison term a first degree felony mandatory prison term.

       {¶ 47} At trial, the state introduced evidence to establish all of the elements of the

trafficking and possession statutes recited above. As to appellant’s possession of

marijuana, cocaine, and drugs under R.C. 2925.11(A), the state introduced unrefuted

evidence from several of appellant’s friends establishing that appellant was the owner of

the cheerleading bag containing marijuana, cocaine, and Alprazolam pills. The testimony

further establishes that appellant was the only individual who exercised dominion or

control over the bag during the relevant period.

       {¶ 48} Additionally, under R.C. 2925.03(A)(2), appellant’s transport of the drugs

was obvious given the fact that the drugs were found stowed in a bag in the trunk of

Famble’s car after the group of men arrived in Bowling Green from Cincinnati by way of

Toledo, a drive of approximately three hours.




23.
       {¶ 49} Appellant’s intent to sell the drugs under R.C. 2925.03(A)(2) was also

established by the state’s evidence. According to Williams’ testimony, the amount of

drugs present inside appellant’s bag indicated that the drugs were not being used for

individual personal use. Coupled with the digital scale that was recovered from the bag,

the large quantity of drugs found in the bag was indicative of narcotics trafficking.

Additionally, Williams testified that his search of appellant revealed a “thick wad of cash

in his pocket” comprised of bills of different amounts, which is typically associated with

drug trafficking in Williams’ experience.

       {¶ 50} The drugs that were recovered from appellant’s bag were subsequently

analyzed by Bocook and found to contain 25.949 grams of Alprazolam, a schedule IV

substance, 316.461 grams of marijuana, a schedule I substance, and 33.987 grams of

cocaine hydrochloride, a schedule II substance. These amounts are sufficient to satisfy

R.C. 2925.03(C)(2)(c) and 2925.11(C)(2)(b) with respect to the Alprazolam, R.C.

2925.03(C)(3)(c) and 2925.11(C)(3)(c) with respect to the marijuana, and R.C.

2925.03(C)(4)(f) and 2925.11(C)(4)(e) with respect to the cocaine.

       {¶ 51} Taken together, the foregoing evidence supports the jury’s verdict in this

case. Appellant does not contest this notion. Rather, appellant argues that “the jury’s

verdict was based upon the nature of the charges against him and the generally shared

societal view of dangerous and illegal drugs.” However, appellant offers no evidence to

support his argument, and points to nothing in the record to demonstrate that the state

attempted to elicit convictions in this case based merely upon such a “generally shared




24.
societal view.” On the contrary, our review of the record reveals that the state’s evidence

clearly and unequivocally established appellant’s guilt of the crimes with which he was

charged.

       {¶ 52} Appellant also argues that the testimony provided by Famble, Horton, and

King was “suspect because they all testified that their criminal charges had been

dismissed.” In so arguing, appellant acknowledges that each of these witnesses explained

that their charges were dismissed only after it was determined that the cheerleading bag

containing the drugs belonged to appellant. According to these witnesses, none of the

dismissals were conditioned upon cooperation with law enforcement in this case.

Nonetheless, appellant invites us to “assume that the dismissal of all of their charges was

conditioned upon their cooperation in testifying against appellant.” Such an assumption

is baseless given the testimony in this case, and it runs afoul of the standard of review

that this court is required to apply to the state’s uncontroverted testimony.

       {¶ 53} Upon our careful review of the entire record in this case, we find that there

is competent, credible evidence supporting the jury’s verdict. Accordingly, we cannot

say that a manifest injustice occurred with appellant’s conviction requiring us to reverse

such conviction. This is not the exceptional case in which the evidence weighs heavily

against appellant’s conviction, nor is this a case in which the jury has clearly lost its way.

Thus, we conclude that appellant’s convictions are not against the manifest weight of the

evidence, and we find appellant’s second assignment of error not well-taken.




25.
                                             C. Costs

          {¶ 54} In his third assignment of error, appellant argues that the trial court erred in

imposing costs of prosecution without consideration of appellant’s ability to pay such

costs.

          {¶ 55} On review by this court, we must determine whether the trial court’s

imposition of costs was contrary to law. R.C. 2953.08(A)(4) and (G)(2)(b); State v.

Farless, 6th Dist. Lucas Nos. L-15-1060 and L-15-1061, 2016-Ohio-1571, ¶ 4, citing

State v. Collins, 12th Dist. Warren No. CA2014-11-135, 2015-Ohio-3710, 41 N.E.3d

899, ¶ 30 (“An appellate court may not modify a financial sanction unless it finds by

clear and convincing evidence that it is not supported by the record or is contrary to

law.”).

          {¶ 56} In its sentencing entry, the trial court ordered that appellant is “ordered to

pay the costs of this prosecution, including the jury trial.” Appellant acknowledges that

costs of prosecution are mandatory under R.C. 2947.23(A)(1)(a), which provides: “In all

criminal cases, including violations of ordinances, the judge or magistrate shall include in

the sentence the costs of prosecution, including any costs under section 2947.231 of the

Revised Code, and render a judgment against the defendant for such costs.”

          {¶ 57} In his brief, appellant challenges the trial court’s imposition of non-

mandatory costs, including the costs of confinement and assigned counsel. In order to

impose these costs, the trial court must first affirmatively find that appellant has, or




26.
reasonably may be expected to have, the ability to pay such costs. State v. Gray, 6th Dist.

Lucas No. L-15-1072, 2015-Ohio-5021, ¶ 21; State v. Wymer, 6th Dist. Lucas No.

       {¶ 58} L-18-1108, 2019-Ohio-1563, ¶ 14.

       {¶ 59} Notably, the trial court’s sentencing entry does not mention any non-

mandatory costs. Rather, the only costs referenced by the trial court in its entry, and

therefore the only costs imposed in this matter, were the costs of prosecution, which are

mandatory as set forth above. Since costs of prosecution must be imposed regardless of

appellant’s present or future ability to pay them, we find that the trial court’s imposition

of costs in this matter was not contrary to law.

       {¶ 60} Accordingly, appellant’s third assignment of error is not well-taken.

                                      III. Conclusion

       {¶ 61} In light of the foregoing, the judgment of the Wood County Court of

Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




27.
                                                              State v. King
                                                              C.A. No. WD-19-013




Thomas J. Osowik, J.                          _______________________________
                                                          JUDGE
Christine E. Mayle, J.
                                              _______________________________
Gene A. Zmuda, P.J.                                       JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




28.
