         [Cite as State v. Johnson, 2019-Ohio-3877.]




                       IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :    APPEAL NO. C-170354
                                                       TRIAL NO. B-1602422
        Plaintiff-Appellee,                       :

  vs.                                             :       O P I N I O N.

KEVIN JOHNSON,                                    :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 25, 2019



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Bryan Perkins, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Presiding Judge.

       {¶1}   Kevin Johnson appeals his convictions, after a jury trial, for trafficking

in and possession of cocaine, both felonies of the first degree, with major-drug-

offender specifications. Johnson contends that the police unlawfully searched his

car, the testimony of the state’s fingerprint expert should have been excluded, the

testimony of several police officers was inadmissible opinion testimony, the evidence

was insufficient to sustain the convictions, the convictions were contrary to the

manifest weight of the evidence, the prosecutor committed misconduct by failing to

provide an expert report, the police unlawfully searched his brother’s home, he was

denied the right to the effective assistance of counsel, and the cumulative effect of the

errors violated his rights. Finding his assignments of error without merit, we affirm

the trial court’s judgment.

       {¶2}   The following facts are taken from the evidence presented at the

motion to suppress and the trial.

                   The Freeman House Drug Investigation

       {¶3}   Cincinnati Police Officer Eric Schiable, assigned to the Gang

Enforcement Unit, received a complaint about drug activity at a home located at

1804 Freeman Avenue.          In response, Schiable and his partner, Officer Phillip

Hermann, conducted surveillance on the house. Schiable observed a Buick Lacrosse

pull to the curb in front of the house. A man, later identified as Odell Neal, exited

from the car carrying a brown satchel. When Neal exited from the car, he appeared

very nervous. He looked around the area as he quickly walked toward the door.

       {¶4}   Neal entered the home and exited in a very short amount of time.

Again, he appeared extremely nervous as he scanned the area while quickly walking

to his car and rapidly pulling away from the curb. Schiable noticed that Neal was


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now carrying the brown satchel tucked tightly under his arm. Schiable called for a

uniformed officer to pull him over.

        {¶5}   Schiable met the officer at the car, and a K-9 drug-detection dog

alerted on the car. They searched the vehicle and discovered a large amount of

cocaine in the satchel. Neal was arrested and transported to the Colerain Township

Police Department. During Schiable’s interview, Neal admitted that he had obtained

the drugs at the Freeman home from a man nicknamed “Weefie,” who was later

determined to be Keith Johnson (“Keith”). Keith is Johnson’s twin brother. Neal

also informed Schiable that he had previously seen drugs in the house, and that

drugs were currently being stored in the house. Neal agreed to show Schiable the

home where the drugs were located, and he identified the home at 1804 Freeman

Avenue.

        {¶6}   Based on this information, Schiable returned to Cincinnati Police

District 1 to draft an affidavit to obtain a search warrant for the home. While

drafting the affidavit, he discovered the home was owned by Keith, who had a prior

conviction for drug trafficking. Schiable was concerned that any contraband in the

home could be removed or destroyed while he was seeking a warrant, so he contacted

Officer Mark Bode to watch the home and monitor any activity. Bode was instructed

to stop any individual who entered or exited the home to determine the reason for

the visit.

        {¶7}   Bode, who is also assigned to the Gang Enforcement Unit, drove to the

home with his partner Officer Weigand. Both were dressed in plainclothes and were

driving an unmarked car. Within moments of their arrival, they observed a dark

colored Honda sedan park in front of the home. The sole occupant of the car exited




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from the vehicle, approached the front door, unlocked the door, and entered the

home. The man left within five to ten minutes. He was talking on his cell phone and

had the keys in his other hand. He locked the door, walked to the Honda, and drove

north on Freeman Avenue.

                                The Traffic Stop

       {¶8}    Bode followed the Honda and contacted Officer Deon Mack, another

member of the Gang Enforcement Unit, and asked him to conduct a traffic stop on

the Honda. Mack was in a marked cruiser and was assigned to the unit to provide

traffic enforcement support if a traffic stop were necessary. After the Honda passed

him on Bank Street approaching Linn Street, Mack pulled out of a parking lot and

began to follow it. He observed the Honda make two left turns, onto Linn Street and

Central Parkway, without using a turn signal. Before Mack could catch up to the

Honda and pull it over, it made a right turn onto Ravine Street, again without using a

turn signal.

       {¶9}    Mack finally caught up to the Honda on McMillan Street approaching

Ohio Avenue. Mack pulled behind the car and initiated the stop. Bode and Weigand

exited from their car, and Mack approached the driver and requested his license. As

the driver opened his wallet, Mack watched him begin to pull out a driver’s license

then return it to the wallet and pull out a state identification card. Mack testified

that it was highly unusual for one person to have both a driver’s license and an

identification card.

       {¶10} The driver, now identified as Johnson, explained that his driver’s

license was suspended due to a failure to pay child support. Mack asked him to step

out of the car, and he exited with his keys in his hand. Mack instructed him, “Can




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you leave your key, can you drop your key in there?” Johnson reached into the car.

Believing he may be retrieving a weapon, Mack immediately grabbed his belt and

pulled him out of the car. Concerned that he may have a weapon, Mack patted him

down. Mack testified that he handcuffed Johnson because he refused to comply with

a simple request.    Mack conducted a more thorough search and removed over

$2,300 from Johnson’s pocket. Mack escorted him to the police cruiser, and one of

the officers summoned a K-9 unit.

       {¶11} Johnson was read his Miranda rights and questioned by Mack.

Repeatedly, Mack asked him where he was coming from, and Johnson provided

several different answers. Johnson did not mention that he had been at the house on

Freeman. When asked about the car, Johnson explained that the car was registered

to his mother, but she had given it to his brother. After approximately 30 minutes,

Delhi Police Officer Jeff Miller arrived with his drug-sniffing dog Levi. Miller walked

his dog around the Honda, and Levi alerted at the open driver’s window.

       {¶12} The officers searched the car, and Mack discovered a baggie of cocaine

in the map pocket behind the passenger seat, and a Menard’s bag under the driver’s

seat. The Menard’s bag contained a Walmart bag, and a vacuum sealed bag with a

large quantity of cocaine was in the Walmart bag.

       {¶13} Johnson was arrested and charged with one count of trafficking in

cocaine, in violation of R.C. 2925.03(A)(2), a first-degree felony, with a major-drug-

offender specification and one count of possession of cocaine, in violation of R.C.

2925.11(A), a first-degree felony, with a major-drug-offender specification.

                      The Search of the Freeman Home

       {¶14} After Johnson’s arrest, Schiable and his partner Herrman searched the




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house on Freeman. Schiable searched the first floor and found a kilo press, 64 grams

of cocaine and a digital scale hidden in a microwave in the kitchen, personal

paperwork belonging to Keith and Johnson on the tables, and various campaign

materials from Johnson’s previous campaign for city council. Hermann found 20

grams of cocaine and a digital scale hidden in a hamper in an upstairs bedroom

closet. In the corner of the closet, he found a blender and two bags containing

Inositol, a substance commonly used as a cutting agent for drugs, in a black shoebox.

        {¶15} Based on the cocaine found in the home, both Keith and Johnson were

charged with one count of trafficking in cocaine, in violation of R.C. 2925.03(A)(2), a

first-degree felony, and one count of possession of cocaine, in violation of R.C.

2925.11(A), a first-degree felony.

                    The Motion to Suppress and Jury Trial

        {¶16} Johnson entered pleas of not guilty to all of the charges. He filed a

motion to suppress the evidence found in the home, alleging that the search of the

home was unconstitutional because the affidavit contained insufficient facts to

support probable cause. Johnson also sought to suppress the drugs found in the car,

arguing that the prolonged detention by Mack to await the drug-sniffing dog violated

his constitutional rights.

        {¶17} After reviewing the affidavit, the trial court found that the facts were
sufficient to support the issuing judge’s probable-cause determination. The officers’

observations of Neal, their pursuit that resulted in the discovery of the drugs, and

Neal’s statements that he acquired the drugs from a person in the house and that

more drugs were present supported the probability that drugs would be found in the

home.

        {¶18} Schiable, Bode, and Mack testified about their respective roles in the


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original investigation of the Freeman home and the traffic stop. The video from

Mack’s body camera and Schiable’s affidavit for the search warrant were admitted as

exhibits. The court concluded that the duration of the stop was not unreasonable,

and that Mack had reasonable suspicion, based on the facts and circumstances, to

justify the search of the car. The trial court did not issue any factual findings, and

Johnson did not request any.

       {¶19} The case proceeded immediately to a jury trial. Hermann testified that
he had been conducting drug investigations for 15 years and had extensive training

and experience in drug investigations, including stash houses.          Most of his

investigations involved the use of stash houses. In his experience, when an arrest is

made after someone leaves a stash house, another individual may attempt to remove

any remaining contraband from the house. He further testified that when a scale is

found next to narcotics, drug residue will usually be found on the scale. Based on his

experience and observations, he believed that the Freeman house was a stash house

because it had no electricity, no bedroom furniture for sleeping, and the home was

vacant. Bode and Mack also briefly explained the use of stash houses based on their

experience in drug interdiction.

       {¶20} Officer Kimberly Horning, a criminalist at the Cincinnati Police
Department, testified on behalf of the state as a fingerprint expert. Prior to her

testimony, Johnson objected to her testifying as an expert because he had not

received an expert report, she was not disclosed as an expert witness, and her CV was

not timely provided. The state claimed that it had provided an expert report that

consisted of the evidence examination worksheet that contained the results of the

fingerprint analysis.    The trial court concluded an expert report was filed, and

conducted a hearing, outside of the presence of the jury, to determine whether

Horning was qualified to testify as an expert.

       {¶21} Horning, who had obtained a bachelor’s degree in political science

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with a minor in criminal justice, had been a police officer for six years before

applying to become a criminalist.      As a patrol officer, she acquired her own

fingerprint kit and started conducting her own fingerprinting. After becoming a

criminalist in 2013, she took a 40-hour fingerprint-analysis course, a 24-hour course

on palm-print comparison, and several four-hour courses at the national conference

of the International Association for Identification.     In 2014, Horning became

certified as an evidence technician, but she had not obtained her certification in

fingerprint analysis. As a criminalist, she had testified in court approximately six

times about fingerprints and the processing to develop a fingerprint, but not in depth

about fingerprint analysis. Based on her experience and qualifications, the court

allowed her to provide expert testimony.

       {¶22} Horning testified that she found a latent fingerprint on the Menard’s

bag that contained the Walmart bag and the cocaine found underneath the driver’s

seat of the Honda. Horning further explained her methodology to recover, preserve,

and analyze a latent print, and how she used this methodology to preserve, compare,

and analyze the latent print from the bag.

       {¶23} Horning entered the fingerprint into the Automated Fingerprint
Identification System, picked the points and ridge event details that made the print

unique, and ran it through the system. The system returned 20 possible candidates

with Johnson at the top of the list. After she conducted a side-by-side comparison

with Johnson’s fingerprint card, she determined the print was from Johnson’s left

thumb and sent her results to another examiner who verified the match. She also

found two prints from Darryl Jones, and an unidentified partial palm print.

       {¶24} After the state rested, Johnson called his brother Keith to testify.
Keith admitted that he had had a prior conviction for drug trafficking. He also

testified that he owned the Freeman home, and that he shared the Honda with his



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brother. Keith testified that the drugs found in the Freeman home were his, and that

he had sold drugs to Neal. He had pled guilty to the charges related to the drugs

found in the Freeman home. He further testified that Johnson had no knowledge of

the drugs in the Freeman home. When asked if the drugs found in the Honda

belonged to him or if he had put the drugs in the Honda, Keith asserted his Fifth

Amendment privilege against self-incrimination.

       {¶25} Finally, Johnson testified on his own behalf. He testified that he was
renovating the home on Freeman and a home on Findlay. At approximately noon

that afternoon, his brother had picked him up, and they arrived at the Freeman

house to meet a contractor at 12:30 p.m. After walking through the Freeman house,

Johnson and the contractor walked to the Findlay home, while Keith stayed at

Freeman. When Johnson returned, his brother and he left to run errands. Later that

afternoon Keith drove to his home, and Johnson took the Honda.

       {¶26} Johnson returned to Freeman to meet with a neighbor who was
interested in buying the home. She called to reschedule the appointment, so he

locked the back door of the home and left. Johnson was pulled over shortly after

leaving the Freeman home.       Johnson testified that he was nervous and scared

because he did not know why the officer asked him to get out of the car for a traffic

violation. When Mack asked him to drop the keys, Johnson reached into the car to

put the keys in the ignition.

       {¶27} When asked about the large amount of cash in his pocket, Johnson
explained that he had collected $750 in rent from a tenant, he had withdrawn $300

from his credit union, and the rest was from a Huntington account and a BB&T

account. He further explained that, as part of his rehabbing business, he purchases

all of the material for the contractors in cash and gives the receipt to the contractor.

That way, if the contractor has to return any items, the contractor can return it. If he

were to pay for the materials with a credit or debit card, Johnson would have to be


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                      OHIO FIRST DISTRICT COURT OF APPEALS



present with the card for any returns.

         {¶28} Johnson further testified that he did not see the drugs that were under
the driver’s seat and in the back passenger map pocket, he did not place the drugs in

the car, and he did not that know the drugs were in the car.

         {¶29} After deliberations, the jury found Johnson guilty of the possession

and trafficking charges related to the cocaine found in the Honda, and not guilty of

the charges related to the cocaine in the Freeman house. Johnson timely appealed.

            The Searches of the Honda and the Freeman House
         {¶30} For ease of discussion, we address the assignments of error out of
order.

         {¶31} In his first and seventh assignments of error, Johnson contends that
the trial court erred in overruling his motion to suppress because the officer

unlawfully searched his car and the search warrant for the Freeman house was

invalid.

         {¶32} Appellate review of a motion to suppress presents a mixed question of
law and fact.     Ordinarily, we accept the trial court’s findings of fact as true if

competent, credible evidence supports them, and we independently determine

whether the facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. However, when the trial court makes

no factual findings, we review the record to determine whether the evidence was

sufficient to support the denial of the motion. See State v. Pate, 1st Dist. Hamilton

Nos. C-130490 and C-130492, 2014-Ohio-2029, ¶ 11.

         {¶33} Johnson first contends that the search of the car was the result of his
unconstitutional arrest for driving under suspension. Although Mack admitted that

he arrested Johnson based on his erroneous belief that driving under suspension was

a misdemeanor of the first degree, the search was the result of the alert by the drug



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dog, and not the arrest.

       {¶34} Johnson next argues that the search of the car was unconstitutional
because Mack unreasonably prolonged the traffic stop to await the drug-sniffing dog

and to conduct the drug sniff. Johnson does not challenge the legality of the traffic

stop for the failure to use his turn signals. Rather, he contends that Mack did not

have a reasonable suspicion to prolong his detention.

       {¶35} “When detaining a motorist for a traffic violation, an officer may delay
a motorist for a time sufficient to issue a ticket or a warning.” State v. Batchili, 113

Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 12, quoting State v. Keathley

55 Ohio App.3d 130, 131, 562 N.E.2d 932 (2d Dist.1988). However, “the detention of

a stopped driver may continue beyond [the normal] time frame when additional facts

are encountered that give rise to a reasonable, articulable suspicion of criminal

activity beyond that which prompted the initial stop.” (Citations omitted.) Batchili

at ¶ 15. “An officer may expand the scope of the stop and may continue to detain the

vehicle without running afoul of the Fourth Amendment if the officer discovers

further facts which give rise to a reasonable suspicion that additional criminal

activity is afoot.” State v. Rose, 4th Dist. Highland No. 06CA5, 2006-Ohio-5292, ¶

17, citing State v. Robinette, 80 Ohio St.3d 234, 240, 685 N.E.2d 762 (1997). “[I]f a

law enforcement officer, during a valid investigative stop, ascertains ‘reasonably

articulable facts giving rise to a suspicion of criminal activity, the officer may then

further detain and implement a more in-depth investigation of the individual.’ ”

Rose at ¶ 17. The “reasonable and articulable” standard must be evaluated in light of

the totality of circumstances. Id. at ¶ 17, citing United States v. Arvizu, 534 U.S. 266,

274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).

       {¶36} Our review of the record leads us to conclude that the detention was
independently supported by reasonable, articulable suspicion to await the drug-

sniffing dog. Johnson had just left a house that the police were securing a warrant to


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search because it had been the site of drug trafficking earlier that afternoon.

Johnson, who had a key to the front door, had just accessed the home. When

questioned by Mack, Johnson did not disclose that he had just come from the

Freeman home and provided several different answers to Mack’s questions. After

the initial stop, Johnson reached into the car, and he was nervous throughout the

stop. Finally, Johnson had a large amount of cash in his pocket. These additional

specific and articulable facts provided the officer with reasonable suspicion of

criminal activity to justify detaining Johnson beyond the initial traffic violation. See

Batchili at ¶ 15.

       {¶37} With respect to the search warrant for the Freeman home, we find that
that assignment of error is moot because Johnson was found not guilty of the charges

related to the search of the Freeman home.

       {¶38} Accordingly, we overrule the first and seventh assignments of error.

                    The Testimony of the Fingerprint Expert
       {¶39} In the second and sixth assignments of error, Johnson argues that the
trial court erred in admitting Horning’s testimony, and the prosecutor committed

misconduct by presenting her testimony. Johnson first contends that the trial court

erred in permitting the expert testimony of Horning because the state failed to

provide an expert report, and she was not qualified to testify as an expert. Johnson

further argues that he was prejudiced by the testimony because the fingerprint was

the only evidence that connected him to the drugs found in the car.

       {¶40} Crim.R. 16(K) requires the disclosure of a written expert report at least
21 days before trial, and the report must summarize “the expert witness’s testimony,

findings, analysis, conclusions, or opinion, and shall include a summary of the

expert’s qualifications.”   “Crim.R. 16(K) mandates exclusion of expert testimony

where a written report has not been disclosed in accordance with the rule.” State v.

Walls, 2018-Ohio-329, 104 N.E.3d 280, ¶ 31 (6th Dist.).


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       {¶41} Here, the state argued that it provided Johnson with an expert report
in the form of an evidence examination worksheet that contained the results of the

fingerprint analysis. Our record reflects that the state filed a discovery response on

August 9, 2016, indicating that the prosecutor had provided Johnson with the

fingerprint lifts, reports, and all documents and charts pertaining to the fingerprint.

At trial, Horning testified that the evidence examination sheet was filled out by police

officers and contained basic details of the investigation, such as date and time of the

offense, the investigating officer, and possible suspects.

       {¶42} However, the evidence examination worksheet was not entered as an
exhibit or otherwise placed in the record to preserve the issue for appellate review.

Because the document is not included in the record, Johnson cannot establish that

the evidence examination worksheet did not constitute an expert report. See State v.

Darrah, 12th Dist. Warren No. CA2006-09-109, 2007-Ohio-7080, ¶ 29.

       {¶43} Next, Johnson argues that the trial court abused its discretion in
qualifying Horning as an expert in fingerprint analysis and comparisons. However,

Johnson offers no reason to support his claim that Horning was not properly

qualified under Evid.R. 702. Horning testified that she completed numerous courses

on fingerprint analysis and verification, palm-print comparisons, fingerprint

development, and fingerprint distortions. In the three-and-a-half years that she was

a certified criminalist, she had recovered thousands of prints and analyzed hundreds.

Finally, Horning testified that she is a member of the International Association for

Identification and reviews their monthly publications to keep abreast of the latest

developments.

       {¶44} Based on her training and qualifications, the trial court did not abuse
its discretion by concluding that Horning had “specialized knowledge, skill,

experience, training, or education” regarding fingerprint evidence as required by

Evid.R. 702(B). See State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d


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319, ¶ 121. We overrule the second assignment of error.

       {¶45} Johnson further asserts, in the sixth assignment of error, that the
prosecuting attorney committed misconduct by presenting Horning’s testimony

without providing a report.      Because we have concluded that Johnson did not

establish that the state failed to provide an expert report, we overrule the sixth

assignment of error.

          Admission of Officers Testimony about Stash Houses
       {¶46} In the third assignment of error, Johnson contends that the trial court
abused its discretion in allowing three police officers to testify as to their lay opinions

about stash houses. A police office may offer lay opinion testimony under Evid.R.

701 if it is based on the officer’s perceptions through experience and training. See

State v. Martin, 1st Dist. Hamilton No. C-150054, 2016-Ohio-802, ¶ 16. A review of

the record confirms that the officers’ testimony was confined to their perceptions

based on their extensive experience and training. We find no abuse of discretion in

admitting the testimony, and overrule the third assignment of error.

                        Sufficiency and Manifest Weight
       {¶47} In the fourth and fifth assignments of error, Johnson claims his
convictions were not supported by sufficient evidence and were against the manifest

weight of the evidence.

       {¶48} In a challenge to the sufficiency of the evidence, the question is
whether, after viewing the evidence in the light most favorable to the state, any

rational trier of fact could have found all the essential elements of the crime proved

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. When considering a challenge to the weight of

the evidence, the court must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and


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created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 485

N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus.

       {¶49} Johnson contends that the evidence was insufficient because no
evidence was presented that he touched or handled the drugs. However, in order to

prove possession, the state need only show that Johnson constructively possessed

the drugs by exercising control and dominion over them, even if the drugs were not

in his immediate physical possession. See State v. Jackson, 1st Dist. Hamilton No.

C-110570, 2012-Ohio-2727, ¶ 14, citing State v. Wolery, 46 Ohio St.2d 316, 329, 348

N.E.2d 351 (1976). Control and dominion may be proven by circumstantial evidence.

See State v. Taylor, 78 Ohio St.3d 15, 676 N.E.2d 82 (1997). Evidence that the

defendant was in close proximity to where drugs are found constitutes some evidence

of constructive possession. See State v. Brown, 1st Dist. Hamilton No. C-120327,

2013-Ohio-2720, ¶ 43. “Thus, when one is the driver of a car in which drugs are

within easy access of the driver, constructive possession may be established.” State

v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747, ¶ 41.

       {¶50} At trial, the state presented evidence that Johnson was driving the car
where cocaine was found underneath the driver’s seat.          Additionally, Johnson’s

fingerprint was found on the bag containing the cocaine. Thus, the record contains

sufficient evidence for the jury to conclude that the state had proven possession

beyond a reasonable doubt. See Jenks at paragraph two of the syllabus.

       {¶51} Johnson further argues that his testimony that he was unaware of the
drugs found in the Honda was credible, and that Keith had access to the car and

“pled the fifth” when asked about the drugs in the car. In essence, Johnson is

arguing that the jury should have believed his testimony and concluded that the

drugs in the car belonged to his brother.

       {¶52}   However, it is well settled law that matters as to the credibility of


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witnesses are for the trier of fact to resolve. See State v. Railey, 2012-Ohio-4233, 977

N.E.2d 703, ¶ 14 (1st Dist.). “Because the trier of fact sees and hears the witnesses at

trial, we must defer to the factfinder’s decisions whether, and to what extent, to

credit the testimony of particular witnesses.” (Citations omitted.) State v. Hill, 1st

Dist. Hamilton No. C-170507, 2018-Ohio-3130, ¶ 33.

         {¶53} Here, the jury was free to discount Johnson’s testimony that he was
unaware of the drugs in the car. Based on our review of the record, we cannot say

that the jury clearly lost its way and created such a manifest miscarriage of justice

that we must reverse Johnson’s convictions and order a new trial.

         {¶54} Accordingly, we overrule Johnson’s fourth and fifth assignments of
error.

                       Ineffective Assistance of Counsel
         {¶55} In his eighth assignment of error, Johnson argues that his counsel was
ineffective for failing to preserve all issues for appeal and failing to make all

reasonable objections at trial.    To prevail on an ineffective-assistance-of-counsel

claim, Johnson must demonstrate that counsel’s performance fell below an objective

standard of reasonableness, and he was prejudiced as a result. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

         {¶56} However, Johnson has not cited to the record or presented any specific
instances where his counsel was ineffective. To be considered on appeal, errors must

be identified by citation to the record. App.R. 16(A); State v. Rucker, 1st Dist.

Hamilton No. C-110082, 2012-Ohio-185, ¶ 32.           Accordingly, we disregard the

assignment of error. See App.R. 12 (A)(2).

                                  Cumulative Error
         {¶57} In his ninth assignment of error, Johnson alleges that the cumulative
effect of all of the errors denied him his right to a fair trial.     The doctrine of

cumulative error allows a conviction to be reversed if the cumulative effect of errors,


                                              16
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deemed separately harmless, deprived the defendant of his right to a fair trial. See

State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the

syllabus. “The doctrine of cumulative error is inapplicable where there are not

multiple instances of harmless error.” State v. Leach, 150 Ohio App.3d 567, 2002-

Ohio-6654, 782 N.E.2d 631, ¶ 57 (1st Dist.).

       {¶58} After reviewing the record and finding no error in Johnson’s
assignments of error, we cannot find cumulative error. Accordingly, we overrule the

ninth assignment of error.

                                     Conclusion
       {¶59} Having considered and overruled all of Johnson’s assignments of
error, we affirm the judgment of the trial court.

                                                                Judgment affirmed.
CROUSE and WINKLER, JJ., concur.


Please note:
       The court has recorded its own entry this date.




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