[Cite as State v. Dilo, 2018-Ohio-2316.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                      No. 16AP-324
v.                                               :                 (C.P.C. No. 14CR-6218)

Michael Dilo,                                    :            (REGULAR CALENDAR)

                 Defendant-Appellant.            :



                                           D E C I S I O N

                                       Rendered on June 14, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
                 Gilbert, for appellee. Argued: Seth L. Gilbert.

                 On brief: Jeremy A. Roth, for appellant. Argued: Jeremy A.
                 Roth.

                   APPEAL from the Franklin County Court of Common Pleas

HORTON, J.
        {¶ 1} Defendant-appellant, Michael Dilo, appeals from the judgment of the
Franklin County Court of Common Pleas entered after a jury found him guilty of aggravated
possession of drugs, in violation of R.C. 2925.11, and aggravated trafficking in drugs, in
violation of R.C. 2925.03. For the reasons set forth below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
        {¶ 2} On November 21, 2014, Dilo was indicted on one count of aggravated
possession of drugs under R.C. 2925.11 and one count of aggravated trafficking in drugs
under R.C. 2925.03 for an offense that occurred on or about April 4, 2014. The indictment
also alleged that Dilo had committed one additional count each of aggravated possession
and aggravated trafficking for an offense that occurred on April 22, 2014. All counts alleged
that the drug involved was methamphetamine and that the amount in question exceeded
No. 16AP-324                                                                                 2

one hundred times the bulk amount, as defined under R.C. 2925.01. (Nov. 21, 2014
Indictment.)
         {¶ 3} On March 17, 2016, Dilo was indicted in a separate case on one count each of
aggravated possession and aggravated trafficking in methamphetamine, in an amount
alleged to equal or exceed five times but less than fifty times the bulk amount, for an offense
alleged to have occurred on or around May 3, 2014. The indictment also alleged two
additional     counts,   for   aggravated    possession   and    aggravated    trafficking   of
methamphetamine in an amount that exceeded one hundred times the bulk amount, for an
offense that occurred on May 4, 2014. (Mar. 17, 2016 Indictment in Franklin C.P. No. 16CR-
1499.)
         {¶ 4} The cases were consolidated for trial and the prosecution dismissed the first
two counts of the November 21, 2014 indictment. The remaining counts were tried before
a jury beginning on April 4, 2016. (Apr. 14, 2016 Jgmt.)
         {¶ 5} At trial, Shawn Wade of the Delaware County Sheriff's Office testified first for
the prosecution. Deputy Wade was assigned to the Delaware County Drug Task Force and
had participated in a two-year investigation into the activities of the DeJarnette drug
trafficking organization. The investigation involved utilizing informants to purchase drugs,
surveillance, traffic stops, and wiretaps to identify the organization's supply lines and
distribution channels. Eventually, the investigation led to Columbus and to Dilo, who
appeared on the wiretaps. (Apr. 5, 2016 Tr. at 25-28, 39.)
         {¶ 6} Donald S. Junk of the Columbus Division of Police also testified for the
prosecution. Officer Junk was assigned to an investigating narcotics unit and was
conducting surveillance of Dilo on the night of April 21, 2016, after receiving information
that Dilo was going to be involved in a drug transaction at a residential house in Columbus,
Ohio. Based on a picture of Dilo that Junk had received as part of the investigation, he
identified Dilo driving a gray Pontiac Grand Am. Dilo drove from a gas station to the house
in question, then left and drove to another gas station in Gallipolis, Ohio. There, Dilo met
with a white male in his late 20s or early 30s with dark hair in front of the gas station. The
man got into Dilo's car and they drove back to the residential house in Columbus, followed
by a woman driving a Silver Hyundai. After spending some time there, Dilo and the woman
left in the Pontiac and the man left in the Hyundai. They first drove to a BP station on South
High Street near I-270 and then proceeded to another gas station one mile away. They then
No. 16AP-324                                                                                  3

continued south for another eight or ten miles to a Speedway gas station. (Apr. 6, 2016 Tr.
at 129-39.)
       {¶ 7} Deputy Wade was receiving reports from surveillance and actively
monitoring phone calls and text messages between Dilo and Joseph DeJarnette at the time.
He received word that another female had left the residence with the suspects and, at some
point during their travels, Dilo and the man were in one car while being followed in the
other car by the two females. Based on the calls and texts Wade was monitoring at the time,
he believed that Dilo and his companions were transporting "at least two or three pounds."
(Apr. 5, 2016 Tr. at 86.) Wade decided to have the car driven by the women stopped in
Circleville because he believed that drugs were with them. However, no drugs were found
in the women's car. After the stop, Dilo and DeJarnette exchanged texts in which Dilo
assured DeJarnette that they were all "safe." (Tr. at 91.)
       {¶ 8} Dilo testified that on August 3, 2014, he was leaving a Wendy's restaurant in
Meigs County, Ohio, on a motorcycle when an officer attempted to stop him. Dilo fled from
the officer because he was carrying "a pound of marijuana" and "a bunch of
methamphetamine." (Apr. 7, 2016 Tr. at 195-96, 200.) Dilo wrecked the motorcycle while
trying to dump the drugs and was arrested. After being released from the hospital and taken
to jail, Dilo was interviewed by Detective Gilkey. Dilo stated that he told Gilkey a "big story
about where the drugs came from" because he was afraid of being stuck in jail in "a small
town" with a bond he couldn't pay. (Tr. at 201.) Dilo testified that he falsely told Gilkey that
he had obtained the drugs from the DeJarnette brothers, who had recently been arrested
and were "in the news," and that the drugs were actually from his "friend and business
partner Allen Davies." Id.
       {¶ 9} Gilkey called Deputy Wade, who subsequently traveled to the jail to interview
Dilo. Wade recorded the interview with Dilo, which was played for the jury during Wade's
testimony. (Apr. 6, 2016 Tr. at 13-15; State's Ex. D.)
       {¶ 10} On the recording, Dilo stated that the marijuana and methamphetamine he
was in possession of when he wrecked his motorcycle had come from James DeJarnette,
delivered from his girlfriend to Dilo. (State's Ex. D at 4:43-5:26.)
       {¶ 11} Dilo admitted that the DeJarnettes gave him methamphetamine to sell.
Typically he would meet Joe DeJarnette, who would follow him to Parkersburg or
Charleston, West Virginia to obtain the drugs, and Dilo would drive the drugs back. Dilo
No. 16AP-324                                                                               4

would pay them $19,000 for one pound of methamphetamine and he typically would not
pay for more than two pounds at a time. (State's Ex. D at 21:00-24:30).
       {¶ 12} During the recording, Dilo also made several admissions concerning the
events of the night of April 21, 2016 when Deputy Wade had him and the DeJarnettes under
surveillance. Dilo confirmed that he had the drugs with him that night, not the women
whose car Deputy Wade had ordered to be stopped. (State's Ex. D at 26:50.) After the stop,
Joe DeJarnette was "freaked out" and came to Circleville to pick up the methamphetamine
from Dilo. Dilo confirmed that the amount was at least two pounds of methamphetamine.
Dilo also stated that he sold cars to the DeJarnettes. (State's Ex. D at 26:50-29:00.)
       {¶ 13} During his trial testimony, Dilo presented a different story. He stated that he
had gone to the house of the DeJarnettes on the night of April 21, 2016 and received
$30,000 from them to purchase automobiles at a car auction. His explanation for having
two cars and driving separately with others was that it was an attempt to minimize the
chance of being pulled over and having the car searched with so much cash in it, because
he didn't have a valid driver's license at the time. (Apr. 7, 2016 Tr. at 107-09.)
       {¶ 14} After the interview with Deputy Wade, Dilo was released on bond on the
condition that he contact a Franklin County prosecutor. He did so and agreed to enter into
a controlled buy of one pound of methamphetamine from the girlfriend of one of the
DeJarnettes. However, Dilo did not go through with the purchase and was arrested and
charged. (Tr. at 216-21.)
       {¶ 15} A jury returned a verdict on the counts of aggravated possession of drugs
under R.C. 2925.11 and aggravated trafficking in drugs under R.C. 2925.03 that occurred
on or about April 22, 2014. The jury found Dilo not guilty of the remaining counts.
       {¶ 16} Dilo now appeals and asserts the following three assignments of error:
              [I.] The trial court erred when it entered judgment against
              Appellant when there was not sufficient evidence to support the
              guilty verdicts and conviction of Appellant for possessing
              and/or trafficking methamphetamine in an amount equal to or
              exceeding 100 times the bulk amount, in violation of his due
              process rights under the Ohio and United States Constitutions.

              [II.] Appellant was not afforded effective assistance of counsel
              as guaranteed under the Sixth and Fourteenth Amendments to
              the United States Constitution because trial counsel failed to
              request a jury instruction on the lesser included offenses of
No. 16AP-324                                                                                5

              Aggravated Possession and Aggravated Trafficking in Drugs
              without a weight element and when trial counsel waived
              closing argument.

              [III.] The trial court erred when it entered judgment against
              Appellant when the guilty verdicts returned by the jury were
              against the manifest weight of the evidence in violation of his
              due process rights under the US and Ohio Constitutions.

II. FIRST AND THIRD ASSIGNMENTS OF ERROR
       {¶ 17} We first consider Dilo's first and third assignments of error concerning the
legal sufficiency and the manifest weight of the evidence against him. Two different legal
standards apply to the legal sufficiency of the evidence and the manifest weight of the
evidence. See State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), paragraph two of the
syllabus ("The legal concepts of sufficiency of the evidence and weight of the evidence are
both quantitatively and qualitatively different"). Whether the evidence is legally sufficient
to sustain a verdict is a question of law. State v. Jennings, 10th Dist. No. 09AP-70, 2009-
Ohio-6840, ¶ 37, citing Thompkins. "Sufficiency is a test of adequacy." Id., citing
Thompkins. "The standard when testing the sufficiency of the evidence 'is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.' "
State v. Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, ¶ 15, quoting State v. McKnight, 107
Ohio St.3d 101, 2005-Ohio-6046, ¶ 70. A reviewing court "will not disturb a verdict on
appeal on sufficiency grounds unless 'reasonable minds could not reach the conclusion
reached by the trier-of-fact.' " State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 94,
quoting State v. Dennis, 79 Ohio St.3d 421, 430 (1997).
       {¶ 18} The manifest weight of the evidence analysis, on the other hand, requires the
appellate court to consider the state's evidence as an additional, or "thirteenth juror."
Thompkins at 387. After "reviewing the entire record," the appellate court " '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.' " Id., quoting State v. Martin, 20 Ohio App.3d 172 (1st Dist.1983). " 'The
discretionary power to grant a new trial should be exercised only in the exceptional case in
which the evidence weighs heavily against the conviction.' " Id., quoting Martin.
No. 16AP-324                                                                                6

       {¶ 19} The offense of possession of drugs is defined under R.C. 2925.11(A), which
states: "No person shall knowingly obtain, possess, or use a controlled substance or a
controlled substance analog." If the substance is included under Schedule II, an offender is
guilty of aggravated possession of drugs. R.C. 2925.11(C)(1). If the amount possessed
exceeds one hundred times the bulk amount, "the offender is a major drug offender, and
the court shall impose as a mandatory prison term the maximum prison term prescribed
for a felony of the first degree." R.C. 2925.11(C)(1)(e).
       {¶ 20} Trafficking in drugs is defined under R.C. 2925.03. The relevant portion of
the statute prohibits any person from knowingly doing any of the following acts: "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." R.C. 2925.03. One who commits the
offense with a Schedule II substance is guilty of aggravated trafficking in drugs. R.C.
2925.03(C)(1). If the amount in question exceeds one hundred times the bulk amount, "the
offender is a major drug offender, and the court shall impose as a mandatory prison term
the maximum prison term prescribed for a felony of the first degree." R.C. 2925.03(C)(1)(f).
       {¶ 21} Methamphetamine is a Schedule II substance. R.C. 3719.41, Schedule
II(C)(2). The bulk amount of any Schedule II substance is defined as "[a]n amount equal to
or exceeding three grams of a compound, mixture, preparation, or substance that is or
contains any amount of a schedule II stimulant, or any of its salts or isomers, that is not in
a final dosage form manufactured by a person authorized by the Federal Food, Drug, and
Cosmetic Act and the federal drug abuse control laws." R.C. 2925.01(D)(1)(g).
       {¶ 22} Here, Dilo admitted that he was in possession of at least two pounds of
methamphetamine on the night of April 21, 2016. He also admitted that the drugs were
with him in the car when he and his companions drove from Columbus to Circleville. Dilo's
out-of-court statements were admissible for the truth of what they asserted because, under
Evid.R. 801(D)(2), they were non-hearsay admissions of a party opponent. Such statements
may be offered against a defendant "as substantive evidence of his guilt." State v. Moody,
2d Dist. No. 26926, 2016-Ohio-8366, ¶ 68. Based on Dilo's statements, a rational jury could
have determined beyond a reasonable doubt that he both knowingly possessed and
knowingly transported methamphetamine, a Schedule II substance, and in the bulk
No. 16AP-324                                                                               7

amount of more than three ounces. Beverly at ¶ 15. Thus, the evidence was legally sufficient
to convict Dilo of aggravated possession of drugs under R.C. 2925.11 and aggravated
trafficking of drugs under R.C. 2925.03.
       {¶ 23} Citing State v. Huber, 187 Ohio App.3d 697, 2010-Ohio-2919 (2d Dist.), Dilo
argues that the state failed to prove the specific bulk amount. In Huber, the Second District
Court of Appeals remanded a conviction after the state failed to prove its allegation of the
bulk amount of fentanyl after the prosecutor elected to prove bulk amount under the
definition in R.C. 2925.01(D)(1)(d) of "five times the maximum daily dose in the usual dose
range specified in a standard pharmaceutical reference manual," but put on no evidence of
what constituted the maximum daily dose.
       {¶ 24} Huber is inapplicable because it used the "maximum daily dose" definition
of bulk amount under R.C. 2925.01(D)(1)(d), which was not used in Dilo's case. Here, the
bulk amount of the drug in question, methamphetamine, was proved by weight, under the
definition in R.C. 2925.01(D)(1)(g): "An amount equal to or exceeding three grams of a
compound, mixture, preparation, or substance that is or contains any amount of a schedule
II stimulant, or any of its salts or isomers, that is not in a final dosage form manufactured
by a person authorized by the Federal Food, Drug, and Cosmetic Act and the federal drug
abuse control laws." Dilo admitted that he had at least two pounds of methamphetamine,
far beyond three grams.
       {¶ 25} Dilo also argues that the evidence was legally insufficient evidence to show
that the substance in question, methamphetamine, was a Schedule II drug under State v.
Chandler, 109 Ohio St.3d 223, 2006-Ohio-2285, because the state introduced no physical
evidence of recovered drugs or tested drugs to prove the requirement that the substance
contained "a detectable amount" of the illegal substance. However, the Chandler
requirement only applies to cases where actual physical drugs are recovered. In a
subsequent case, the Supreme Court of Ohio clarified that the Chandler holding is:
              [L]imited to those cases where the substance offered for sale is
              recovered and subjected to testing to determine whether it
              contains a detectable amount of the drug offered for sale. It
              does not apply to situations where no drug is recovered and
              no testing is performed. Hence, where an offender offers to sell
              a controlled substance in a quantity that would implicate the
              MDO [major drug offender] specification, and where no
              substance is ever recovered or tested, Chandler is factually
No. 16AP-324                                                                                8

                distinguishable, as it is a counterfeit drug case where the
                alleged drug was recovered and tested.

(Emphasis added.) Garr v. Warden, Madison Corr. Inst., 126 Ohio St.3d 334, 2010-Ohio-
2449.
        {¶ 26} Here, as discussed, the state introduced direct evidence in the form of Dilo's
own statements to prove its allegations of possession and trafficking. This was legally
sufficient to prove that he was guilty of these offenses. State v. Robinson, 8th Dist. No.
105667, 2018-Ohio-285, ¶ 22 (affirming conviction for possession of drugs under R.C.
2925.11 based on the defendant's statements "made to police officers confirming his
possession").
        {¶ 27} We now turn to Dilo's challenge to the manifest weight of the evidence. Dilo
argues that his testimony at trial shows that the admissions he made on the recording to
Deputy Wade were false, and that any transactions between himself and the DeJarnettes
concerned the sale of automobiles.
        {¶ 28} After reviewing the testimony, we see no evidence that the jury lost its way in
choosing to disbelieve Dilo's self-serving testimony and instead believe the admissions he
made to Deputy Wade during the recorded interview. Thompkins at 387. Dilo's argument
is essentially an attack on his own credibility during the interview and an assertion that he
was more credible at trial. We defer to the jury's evaluation of the credibility of all the
witnesses, including Dilo, and conclude that his conviction was not against the manifest
weight of the evidence. Accordingly, the first and third assignments of error are overruled.
III. SECOND ASSIGNMENT OF ERROR
        {¶ 29} In Dilo's second assignment of error, he argues that he received ineffective
assistance of counsel because his attorney failed to request a jury instruction on lesser-
included offenses without a weight element and because his attorney chose to waive the
presentation of a closing argument.
        {¶ 30} "The benchmark for judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of the adversarial process that the
trial [court] cannot be relied on as having produced a just result."           Strickland v.
Washington, 466 U.S. 686 (1984). In order to succeed on a claim of ineffective assistance
of counsel, appellant must satisfy a two-prong test. First, he must demonstrate that his trial
counsel's performance was deficient. Id. at 687. This requires a showing that his counsel
No. 16AP-324                                                                                   9

committed errors which were "so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Id. If he can show deficient
performance, he must next demonstrate that he was prejudiced by the deficient
performance. Id. To show prejudice, he must establish there is a reasonable probability
that, but for his counsel's unprofessional errors, the result of the trial would have been
different. A reasonable probability is one sufficient to erode confidence in the outcome. Id.
at 694.
          {¶ 31} Trial strategy and even debatable trial tactics do not establish ineffective
assistance of counsel. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101. A
reviewing court must be "highly deferential to counsel's performance and will not second-
guess trial strategy decisions." State v. Tibbetts, 92 Ohio St.3d 146, 166-67 (2001).
Strategic choices made after substantial investigation "will seldom if ever" be found
wanting. Strickland at 686. "Because advocacy is an art and not a science, and because the
adversary system requires deference to counsel's informed decisions, strategic choices must
be respected in these circumstances if they are based on professional judgment." Id.
          {¶ 32} Here, Dilo's arguments do not satisfy the first prong of demonstrating
deficient performance under Strickland because they are all attributable to trial strategy.
First, as the Supreme Court has held, a "[f]ailure to request instructions on lesser-included
offenses is a matter of trial strategy and does not establish ineffective assistance of counsel."
State v. Griffie, 74 Ohio St.3d 332, 333 (1996); State v. Jones, 10th Dist. No. 16AP-128,
2017-Ohio-1121, ¶ 29.
          {¶ 33} Second, the wide latitude given to trial counsel in terms of strategy extends
to the decision whether or not to give a closing argument. The decision "may have simply
been a tactical decision made by defense counsel to prevent the state from splitting closing
argument and staging a strong rebuttal." State v. Burke, 73 Ohio St.3d 399, 405 (1995).
This is particularly true in this case, where the state would have had the opportunity in
rebuttal to attack any of Dilo's testimony referenced by his attorney during closing, as well
as damage Dilo's credibility in the eyes of the jury.
          {¶ 34} For the foregoing reasons, Dilo cannot demonstrate that his trial counsel's
performance was deficient under Strickland. Because he did not receive ineffective
assistance of counsel at trial, the second assignment of error is overruled.
No. 16AP-324                                                                          10

IV. CONCLUSION
         {¶ 35} The evidence presented by the state against Dilo, including his own
statements, was not legally insufficient to convict him of aggravated possession of drugs
under R.C. 2925.11 and aggravated trafficking in drugs under R.C. 2925.03, and his
convictions were not against the manifest weight of the evidence. Furthermore, he did not
receive ineffective assistance of trial counsel. Accordingly, we overrule all three
assignments of error and affirm the judgment of the Franklin County Court of Common
Pleas.
                                                                    Judgment affirmed.

                     DORRIAN and LUPER SCHUSTER, JJ., concur.
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