[Cite as State v. Laghaoui, 2018-Ohio-2261.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




 STATE OF OHIO,                                  :

        Plaintiff-Appellee,                      :     CASE NO. CA2017-06-098

                                                 :             OPINION
     - vs -                                                     6/11/2018
                                                 :

 MOHAMMED LAGHAOUI,                              :

        Defendant-Appellant.                     :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 16CR032065



David P. Fornshell, Warren County Prosecutor, Kirsten A. Brandt, 520 Justice Drive,
Lebanon, OH 45036, for plaintiff-appellee

Stephan D. Madden, 810 Sycamore Street, Sixth Floor, Cincinnati, OH 45202, for
defendant-appellant



        S. POWELL, P.J.

        {¶ 1} Defendant-appellant, Mohammed Laghaoui ("Laghaoui"), appeals from his

conviction in the Warren County Court of Common Pleas after a jury found him guilty of a

variety of felony offenses, including attempted aggravated murder of a law enforcement

officer, which resulted in him being sentenced to an aggregate 36-year prison term. For the

reasons outlined below, we affirm.
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        {¶ 2} On July 5, 2016, the Warren County Grand Jury returned a multi-count

indictment charging Laghaoui with attempted aggravated murder of a law enforcement

officer, felonious assault, improperly discharging a firearm into a habitation, tampering with

evidence, and domestic violence, among others. The charges arose after Laghaoui used

a Century Arms RAS-47 (a civilian variant of an AK-47) to shoot Deputy Katie Barnes of the

Warren County Sheriff's Office, his father, Abdessadek Laghaoui, and shot at his neighbor,

Jason Ratliff, after he and his brother, Lhoucine Laghaoui, got into an argument about

cleaning the dishes.1 Laghaoui, who is originally from Morocco, was then just 19 years old.

        {¶ 3} On July 6, 2016, Laghaoui appeared for his arraignment and entered a plea

of not guilty. After Laghaoui entered his not guilty plea, the trial court set bond at $2,000,000

and appointed Laghaoui an attorney. The following week, on July 13, 2016, Laghaoui

requested the trial court order a competency evaluation to determine whether he was

competent to stand trial. The trial court granted Laghaoui's motion and scheduled a hearing

on the matter for September 14, 2016.

        {¶ 4} On August 12, 2016, attorney Nadeem Quraishi ("Attorney Quraishi") filed a

notice of substitution of counsel for Laghaoui, thereby becoming Laghaoui's counsel of

record. It is undisputed that Attorney Quraishi was hired by Laghaoui's father, Abdessadek.

As noted above, Laghaoui's father was one of the victims Laghaoui was charged with

shooting in this case.

        {¶ 5} On September 14, 2016, the trial court held the previously scheduled hearing

on Laghaoui's competency to stand trial. At this hearing, the trial court heard testimony

from a single witness, Dr. Jennifer O'Donnell, a psychologist with Forensic Evaluation



1. The underlying facts in this case are generally immaterial to the issues raised by Laghaoui on appeal. For
a more detailed understanding of the facts giving rise to the charged offenses, see
https://www.wcpo.com/news/local-news/warren-county/mohammed-laghaoui-found-guilty-of-most-serious-
counts-in-june-shooting-of-father-and-deputy (accessed May 24, 2018).
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Service Center, Inc., who testified that Laghaoui was not competent to stand trial based on

her "strong sense, clinical sense" that "there was something going on" with Laghaoui given

his guardedness and his general unwillingness to engage in a conversation with her while

he was being held in the Warren County Jail regarding the charges against him, the basis

for those charges, and any possible defense(s) he may have had. As Dr. O'Donnell

testified, "I tried to let the Court know I have a sense that there's something going on here."

This opinion, as Dr. O'Donnell testified, was based on the limited information then available

to her, which came mostly from her discussion with Laghaoui's parents.

       {¶ 6} Despite Dr. O'Donnell's testimony, the trial court found Laghaoui was

competent to stand trial. In so holding, the trial court found Dr. O'Donnell's testimony

"clearly established" that Laghaoui understood the "nature of the proceedings and the

objective of these proceedings." The trial court found the same to be true regarding whether

Laghaoui could assist in his defense. As the trial court stated, "I do find that Dr. O'Donnell

limited her opinion to a sense or a feeling based upon her meeting with [Laghaoui] and that

that sense or feeling is not going to rise * * * to a preponderance of the evidence, and that

that presumption [that Laghaoui was competent to stand trial] is not overcome."

       {¶ 7} On October 21, 2016, Laghaoui filed a notice with the trial court joining his not

guilty plea with a plea of not guilty by reason of insanity, which was based primarily on his

admitted prior use of synthetic cannabinoids. Several months later, on March 10, 2017, the

state filed a motion in limine requesting the trial court exclude testimony from Laghaoui's

intended expert witness, Dr. William Fantegrossi, "concerning any alleged psychiatric or

psychological conditions of the defendant that are related to his voluntary ingestion of

drugs;" specifically, the synthetic cannabinoids XLR-11 and AB-CHMINACA.

       {¶ 8} After holding a hearing on the matter, the trial court granted the state's motion

in limine. In reaching this decision, the trial court noted Dr. Fantegrossi's testimony that the

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relationship between synthetic cannabinoids and their potential to induce psychosis had not

yet been subject to peer review and "is not generally accepted in the scientific community,

due to its relatively new emergence as a field of study." The trial court further noted:

              Ultimately, Dr. Fantegrossi stated that it cannot be determined
              to a reasonable degree of scientific certainty that synthetic
              cannabinoids, such as the ones ingested by [Laghaoui], induce
              psychosis, just that there is a relationship and that he "would not
              be surprised" if the drugs induced psychosis.

Concluding, the trial court stated:

              The Court finds that while Dr. Fantegrossi certainly spoke
              competently and thoroughly about his field of study and the
              emerging research that has been completed, this theory
              remains largely unsubstantiated as yet. For this reason, the
              Court finds that this testimony cannot pass Daubert's reliability
              standard. As a result, the Court finds this testimony is therefore
              rendered inadmissible under Evid. R. 702.

       {¶ 9} After granting the state's motion in limine, the matter proceeded to an eight-

day jury trial. At trial, the jury heard testimony from several witnesses, including Deputy

Barnes, Laghaoui's father, Abdessadek, and Laghaoui's brother, Lhoucine. After both

parties rested, the trial court provided the jury with its final jury instructions, which included

an instruction on intoxication that "[t]he defense of insanity cannot be successfully

established simply on the basis that the condition resulted from the use of intoxicants or

drugs where such use is not shown to be habitual or chronic." Following deliberations, the

jury returned a verdict finding Laghaoui guilty of the above-named offenses, thereby

rejecting Laghaoui's claims that he acted in self-defense and/or was not guilty by reason of

insanity. The trial court then sentenced Laghaoui to an aggregate 36-year prison term.

       {¶ 10} Laghaoui now appeals from his conviction, raising six assignments of error for

review.

       {¶ 11} Assignment of Error No. 1:

       {¶ 12} THE TRIAL COURT ERRED WHEN IT FOUND DEFENDANT-APPELLANT

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TO BE COMPETENT TO STAND TRIAL.

         {¶ 13} In his first assignment of error, Laghaoui argues the trial court erred by finding

him competent to stand trial. We disagree.

         {¶ 14} Due process and fundamental fairness demand that a criminal defendant who

is not competent to stand trial not be tried and convicted of an offense. State v. Murphy,

173 Ohio App.3d 221, 2007-Ohio-4535, ¶ 28 (12th Dist.), citing State v. Braden, 98 Ohio

St.3d 354, 2003-Ohio-1325, ¶ 114.           Pursuant to R.C. 2945.37(G), "[a] defendant is

presumed to be competent to stand trial." A defendant who claims incompetency to stand

trial has the burden of proving his incompetence by a preponderance of the evidence. State

v. Bullocks, 12th Dist. Warren No. CA2010-01-008, 2010-Ohio-2705, ¶ 6, citing State v.

Stanley, 121 Ohio App.3d 673, 685 (1st Dist.1997); and State v. Williams, 23 Ohio St.3d

16, 19 (1986). "The preponderance of the evidence means that amount of evidence on one

side which outweighs or is of greater probative value than that on the other." State v.

Puckett, 12th Dist. Butler No. CA88-12-178, 1990 Ohio App. LEXIS 1463, *5 (Apr. 16,

1990).

         {¶ 15} An appellate court will not disturb a trial court's finding a defendant competent

to stand trial if there was "'some reliable, credible evidence supporting the trial court's

conclusion that [the defendant] understood the nature and objective of the proceedings

against him.'" State v. Dollar, 12th Dist. Butler No. CA2012-01-002, 2012-Ohio-5241, ¶ 16,

quoting Williams at 19. The adequacy of the "data relied upon by the expert who examined

the [defendant] is a question for the trier of fact." Id. "Deference on these issues should be

given 'to those who see and hear what goes on in the courtroom.'" State v. Were, 118 Ohio

St.3d 448, 2008-Ohio-2762, ¶ 46, quoting State v. Cowans, 87 Ohio St.3d 68, 84 (1999).

         {¶ 16} It is undisputed that Laghaoui failed to object to the trial court's decision

finding him competent to stand trial. Because Laghaoui "failed to object to the competency

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finding at the trial court level, this court reviews this issue for plain error." In re Stone, 12th

Dist. Clinton No. CA2002-09-035, 2003-Ohio-3071, ¶ 10. "Plain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the

court." Crim.R. 52(B). Plain error does not exist unless the error is obvious and but for the

error, the outcome of the case would have been different. State v. Blacker, 12th Dist.

Warren No. CA2008-07-094, 2009-Ohio-5519, ¶ 39. "Notice of plain error is taken with the

utmost caution and only under exceptional circumstances to prevent a manifest miscarriage

of justice." State v. Rogers, 12th Dist. Butler No. CA2017-08-112, 2018-Ohio-1356, ¶ 24.

       {¶ 17} Laghaoui argues the trial court erred by finding him competent to stand trial

given Dr. O'Donnell's testimony that he was not competent to stand trial. In support,

Laghaoui argues the trial court should have followed Dr. O'Donnell's "unequivocal opinion"

that he was not competent to stand trial because her opinion was "uncontroverted by any

other testimony or evidence." However, although Dr. O'Donnell was the lone witness to

testify at the competency hearing, just as the trial court found, Dr. O'Donnell based her

opinion on a "sense or a feeling" she had upon meeting with Laghaoui while he was being

held in the Warren County Jail, during which he appeared guarded and exhibited a general

unwillingness to engage in a conversation with her regarding the charges against him, the

basis for those charges, and any possible defense(s) he may have had. As noted above,

Dr. O'Donnell's opinion was limited to the information then available to her, the majority of

which came from her discussion with Laghaoui's parents.

       {¶ 18} As the trial court found, "that sense or feeling is not going to rise * * * to a

preponderance of the evidence, and that that presumption [that Laghaoui was competent

to stand trial] is not overcome." We find no error, let alone plain error, in the trial court's

decision. This is because, as the Ohio Supreme Court has stated previously, "'[a] defendant

may be emotionally disturbed or even psychotic and still be capable of understanding the

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charges against him and of assisting his counsel.'" State v. Were, 2008-Ohio-2762 at ¶ 47,

quoting State v. Bock, 28 Ohio St.3d 108, 110 (1986). In so holding, we note the generally

well-established principle that "evidence tending to prove a fact does not necessarily

become uncontroverted or uncontested simply because an opposing party does not present

rebuttal evidence." Collins v. Collins, 12th Dist. Clinton No. CA2000-09-023, 2001 Ohio

App. LEXIS 4620, *5 (Oct. 15, 2001). Therefore, because the trial court did not err by

finding Laghaoui failed to meet his burden of proof requiring him to establish his

incompetence by a preponderance of the evidence, Laghaoui's first assignment of error

lacks merit and is overruled.

       {¶ 19} Assignment of Error No. 2:

       {¶ 20} THE TRIAL COURT ERRED WHEN IT FAILED TO INQUIRE AS TO

DEFENSE COUNSEL'S POTENTIAL CONFLICT OF INTEREST.

       {¶ 21} In his second assignment of error, Laghaoui argues the trial court erred by

failing to inquire whether Attorney Quraishi had a possible conflict of interest given the fact

that he was hired by Abdessadek, Laghaoui's father and one of the victims Laghaoui was

charged with shooting. Laghaoui never raised the issue that his trial counsel had a possible

conflict of interest. Nevertheless, "[w]here a trial court knows or reasonably should know of

an attorney's possible conflict of interest in the representation of a person charged with a

crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually

exists." State v. Bai, 12th Dist. Butler No. CA2010-05-116, 2011-Ohio-2206, ¶ 105, citing

State v. Gillard, 64 Ohio St.3d 304 (1992), syllabus. Yet, even then, a trial court's failure to

inquire into a possible conflict of interest does not automatically require "[a] retrial for failing

to inquire into a possible conflict of interest is premature." State v. Gillard, 78 Ohio St.3d

548, 552 (1997). "Rather, reversal is mandated only if an actual conflict is found." Id. This

is because "the United States Constitution is violated by an actual conflict of interest, not a

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possible one." Id., citing Cuyler v. Sullivan, 446 U.S. 335, 348-350, 100 S. Ct. 1708 (1980);

and State v. Manross, 40 Ohio St.3d 180, 182 (1988).

       {¶ 22} In order to establish that an actual conflict of interest existed, Laghaoui must

demonstrate two elements. State v. West, 12th Dist. Butler No. CA2017-07-091, 2018-

Ohio-640, ¶ 26. First, Laghaoui must show that "'some plausible alternative defense

strategy or tactic might have been pursued.'" Gillard, 78 Ohio St.3d. at 552, quoting United

States v. Fahey, 769 F.2d 829, 836 (1st Cir.1985). Second, Laghaoui must "'establish that

the alternative defense was inherently in conflict with or not undertaken due to the attorney's

other loyalties or interests.'" Id., quoting Fahey at 836. Whether an actual conflict of interest

existed is a mixed question of law and fact, subject to de novo review on appeal. Id. De

novo appellate review means that this court independently reviews the record and affords

no deference to a trial court's decision. State v. Walker, 10th Dist. Franklin No. 06AP-810,

2007-Ohio-4666, ¶ 10.

       {¶ 23} After a full and thorough review of the record, even if this court were to assume

the trial court failed to act upon its affirmative duty to inquire whether Attorney Quraishi had

a possible conflict of interest, Laghaoui has failed to demonstrate that an actual conflict of

interest existed. In reviewing Laghaoui's appellate brief, Laghaoui does not identify any

plausible alternative defense or tactic that Attorney Quraishi might have pursued at trial, nor

does Laghaoui allege that some other plausible alternative defense or tactic was not

undertaken due to Attorney Quraishi' s other loyalties or interests, presumably to that of

Laghaoui's father, Abdessadek. Simply stated, based on the record properly before this

court, there is no evidence to suggest the fact that Abdessadek's hiring of Attorney Quraishi

to represent Laghaoui impacted the defense strategy and tactics Attorney Quraishi pursued

at trial; namely, that Laghaoui was acting in self-defense and/or was not guilty by reason of

insanity. The defense strategy and tactics pursued by Attorney Quraishi were aligned with

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those of both Laghaoui and Laghaoui's father, who we note was called to testify as the trial

court's own witness without objection. Therefore, because Laghaoui has failed to establish

that an actual conflict of interest existed in this case, Laghaoui's second assignment of error

lacks merit and is overruled.

       {¶ 24} Assignment of Error No. 3:

       {¶ 25} THE CONVICTION MUST BE REVERSED DUE TO IMPROPER JURY

INSTRUCTIONS.

       {¶ 26} In his third assignment of error, Laghaoui argues the trial court erred by

providing the jury with an instruction on intoxication; specifically, that "[t]he defense of

insanity cannot be successfully established simply on the basis that the condition resulted

from the use of intoxicants or drugs where such use is not shown to be habitual or chronic."

In support of this claim, Laghaoui argues the instruction on intoxication was improper since

his "strongest argument in his defense was that he was not guilty by reason of insanity."

According to Laghaoui, by instructing the jury that intoxication could not serve as a basis

for insanity when there was insufficient evidence of intoxication, "the trial court essentially

provided the jury with a confusing instruction" that prejudiced his defense. We disagree.

       {¶ 27} The record indicates Laghaoui failed to raise this objection to the trial court

below, other than to say that "it adds a layer to the instruction [on the defense of not guilty

by reason of insanity] that isn't really required." Pursuant to Crim.R. 30(A), Laghaoui's

failure to raise this objection, stating specifically the matter objected to and the grounds of

the objection, waived all but plain error on appeal. State v. Glover, 12th Dist. Fayette No.

CA2016-11-016, 2017-Ohio-7360, ¶ 51.          "With respect to an allegedly improper jury

instruction, plain error exists only where, but for the error, the outcome of the trial would

have been clearly different." State v. Roberts, 12th Dist. Butler No. CA2001-09-203, 2002-

Ohio-4482, ¶ 26, citing State v. Underwood, 3 Ohio St.3d 12 (1983).

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       {¶ 28} The trial court "has discretion to determine whether the evidence is sufficient

to require a jury instruction on intoxication." State v. Nields, 93 Ohio St.3d 6, 22 (2001),

citing State v. Wolons, 44 Ohio St.3d 64 (1989). In determining whether there was sufficient

evidence to support the trial court giving the jury an instruction on intoxication, such as the

case here, "an appellate court should determine whether the record contains evidence from

which reasonable minds might reach the conclusion sought by the instruction." State v.

Davis, 12th Dist. Madison No. CA2015-05-015, 2016-Ohio-1166, ¶ 35, citing State v.

Risner, 120 Ohio App.3d 571, 574 (3d Dist.1997).

       {¶ 29} After a full and thorough review of the record, we find no error, let alone plain

error, in the trial court's decision to provide the jury with the challenged instruction on

intoxication. The record is clear that the state requested the trial court instruct the jury on

intoxication in direct response to Laghaoui's argument regarding his intoxication as it related

to his not guilty by reason of insanity defense; namely, that he was experiencing psychosis

and hallucinations on the night in question that was a direct result of his admitted prior use

of synthetic cannabinoids. Therefore, as noted by the state, to allow Laghaoui to raise the

issue of intoxication without also instructing the jury on the limits of that defense would have

prejudiced the state and otherwise improperly instructed the jury on the law applicable to

the case at bar. Accordingly, while Laghaoui himself denied being intoxicated on the night

in question, because the issue of Laghaoui's intoxication was raised as part of his not guilty

by reason of insanity defense, the trial court did not err by providing the jury with the

challenged instruction at issue. Laghaoui's third assignment of error is without merit and

overruled.

       {¶ 30} Assignment of Error No. 4:

       {¶ 31} DEFENDANT-APPELLANT'S CONVICTION MUST BE REVERSED DUE TO

INEFFECTIVE ASSISTANCE OF COUNSEL.

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       {¶ 32} In his fourth assignment of error, Laghaoui argues he received ineffective

assistance of counsel. We disagree.

       {¶ 33} Counsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment. State

v. Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14. As a result, to

prevail on an ineffective assistance of counsel claim, Laghaoui must show (1) that his trial

counsel's performance fell below an objective standard of reasonableness and, (2) that he

was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct.

2052 (1984); State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, ¶ 7.

The failure to make an adequate showing on either prong is fatal to an ineffective assistance

of counsel claim. State v. Zielinski, 12th Dist. Warren No. CA2010-12-121, 2011-Ohio-

6535, ¶ 50.

       {¶ 34} As it relates to the first prong regarding his trial counsel's performance,

Laghaoui must show Attorney Quraishi made errors so serious that he was not functioning

as the "counsel" guaranteed a defendant by the Sixth Amendment to the United States

Constitution. State v. Miller, 12th Dist. Clermont No. CA2011-04-028, 2012-Ohio-995, ¶ 27.

On the other hand, as it relates to the second prong requiring a showing of prejudice,

Laghaoui must establish that, but for Attorney Quraishi's errors, there is a reasonable

probability that the result of trial would have been different. State v. Kinsworthy, 12th Dist.

Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 42.             A "reasonable probability" is a

probability that is sufficient to undermine confidence in the outcome. State v. Graves, 12th

Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 31, citing Strickland at 694.

       {¶ 35} Laghaoui argues Attorney Quraishi was ineffective by requesting the trial

court to instruct the jury on self-defense when his "primary defense" was that he was not

guilty by reason of insanity. Laghaoui also argues Attorney Quraishi was ineffective for

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failing to object to testimony "relating to chemicals associated with him" that were seized

pursuant to a search of his residence. Laghaoui's claims lack merit for the record indicates

these decisions were strategic and employed by Attorney Quraishi in an effort to fashion

the best defense against the serious nature of the charges levied against Lagaoui, including

that of attempted aggravated murder of a law enforcement officer. It is not this court's role

to second guess these strategic decisions. State v. Lloyd, 12th Dist. Warren Nos. CA2007-

04-052 and CA2007-04-053, 2008-Ohio-3383, ¶ 61. Therefore, because the record does

not support Laghaoui's claim that Attorney Quraishi was ineffective, nor contain any

evidence to indicate Laghaoui suffered any resulting prejudice thereby, Laghaoui's fourth

assignment of error lacks merit and is overruled.

       {¶ 36} Assignment of Error No. 5:

       {¶ 37} THE TRIAL COURT ERRED WHEN IT PERMITTED THE PROSECUTOR

TO ESTABLISH THAT DEFENDANT-APPELLANT COULD NOT BE HOSPITALIZED IF

FOUND NOT GUILTY BY REASON OF INSANITY.

       {¶ 38} In his fifth assignment of error, Laghaoui argues the trial court erred by

overruling his objection to testimony that the conditions he purportedly suffered from;

namely, cannabis use disorder, generalized anxiety disorder, and schizotypal personality

disorder, did not meet the criteria for involuntary hospitalization. In support of this claim,

Laghaoui argues this was a "highly inappropriate line of questioning" that gave the jury the

impression that "he would be on his way back home" if it found him not guilty by reason of

insanity. However, contrary to Laghaoui's claim otherwise, a simple review of the record

indicates this testimony was elicited by the state in order to counter Laghaoui's claim that

he was suffering from a severe mental disease or defect on the night in question, thereby

supporting his not guilty by reason of insanity defense. Pursuant to R.C. 2901.01(A)(14),

because Laghaoui could be found not guilty by reason of insanity only if he proved, by a

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preponderance of the evidence, that at the time of the offense he did not know, as a result

of a severe mental disease or defect, the wrongfulness of his acts, we find nothing improper

about the challenged testimony. Therefore, finding no error in the trial court's decision,

Laghaoui's fifth assignment of error lacks merit and is overruled.

       {¶ 39} Assignment of Error No. 6:

       {¶ 40} THE TRIAL COURT ERRED WHEN IT GRANTED THE STATE'S MOTION

IN LIMINE PROHIBITING TESTIMONY FROM DEFENSE WITNESS FANTEGROSSI.

       {¶ 41} In his sixth assignment of error, Laghaoui argues the trial court erred by

granting the state's motion in limine, thereby excluding testimony from his intended expert

witness, Dr. Fantegrossi, regarding the "effect that synthetic cannabinoids may have in

causing psychosis" at trial. We disagree.

       {¶ 42} A trial court's ruling on a motion in limine, including a motion to exclude expert

testimony, is a "tentative, interlocutory, and precautionary ruling that reflects the trial court's

anticipated treatment of an evidentiary issue that may arise at trial." State v. Shalash, 12th

Dist. Warren No. CA2014-12-146, 2015-Ohio-3836, ¶ 30. In turn, "[a] motion in limine is

directed to the inherent discretion of the trial judge, about an evidentiary issue that is

anticipated, but has not yet been presented in full context." State v. Harris, 12th Dist. Butler

No. CA2007-11-280, 2008-Ohio-4504, ¶ 27. Generally, a trial court's ruling on a motion in

limine does not preserve for review any error the trial court may have made in ruling on the

motion; rather, "any claimed error regarding a trial court's decision on a motion in limine

must be preserved at trial by an objection, proffer, or ruling on the record." State v. Hensley,

12th Dist. Warren No. CA2009-11-156, 2010-Ohio-3822, ¶ 29. Therefore, "when a party

files a motion in limine regarding the exclusion of evidence but fails to timely object at trial,

this court will review the admission of such evidence under a plain error analysis." State v.

Freeze, 12th Dist. Butler No. CA2011-11-209, 2012-Ohio-5840, ¶ 43.

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       {¶ 43} It is well-established that this court will not reverse a trial court's decision

regarding the admission of evidence absent an abuse of discretion. State v. Perez, 124

Ohio St.3d 122, 2009-Ohio-6179, ¶ 96. "A reviewing court should not disturb evidentiary

decisions in the absence of an abuse of discretion that has created material prejudice."

State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 14, citing State v.

Smith, 12th Dist. Fayette No. CA2007-10-035, 2008-Ohio-5931, ¶ 33.              An abuse of

discretion connotes more than an error of law or judgment; it implies that the trial court's

decision was unreasonable, arbitrary, or unconscionable. State v. Napier, 12th Dist. No.

Clermont No. CA2016-04-022, 2017-Ohio-246, ¶ 21.

       {¶ 44} Although the challenged testimony was proffered on the record, the state

argues this issue must be reviewed under a plain error analysis since Laghaoui failed to

object to the trial court's decision to exclude Dr. Fantegrossi's testimony at trial. However,

regardless of whether this issue is reviewed for plain error, or merely for error under an

abuse of discretion standard, the record fully supports the trial court's decision to exclude

Dr. Fantegrossi's expert testimony as it was not admissible under the United States

Supreme Court's decision in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 113

S.Ct. 2786 (1983) and this state's evidentiary rule regarding the use of expert testimony as

found in Evid.R. 702.

       {¶ 45} In Daubert, the United States Supreme Court called upon federal district

courts to act as a "gatekeeper" in determining whether expert testimony on scientific matters

is admissible under Federal Rule of Evidence 702. To that end, the Supreme Court noted

four factors the district courts were advised to consider in evaluating an expert's theory or

technique; specifically, (1) whether it can be, and has been, tested; (2) whether it has been

subjected to peer review and publication; (3) what its known, or potential, rate of error is,

and whether standards controlling its operation exist; and (4) whether it is generally

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accepted in the field. Id. at 593-594. The Ohio Supreme Court later adopted these same

four factors for analyzing issues arising under Evid.R. 702 in both civil and criminal cases.

See Miller v. Bike Athletic Co., 80 Ohio St.3d 607 (1998); and State v. Nemeth, 82 Ohio

St.3d 202 (1999).

       {¶ 46} Pursuant to Evid.R. 702, a witness may testify as an expert if all of the

following apply:

              (A) The witness' testimony either relates to matters beyond the
              knowledge or experience possessed by lay persons or dispels
              a misconception common among lay persons;

              (B) The witness is qualified as an expert by specialized
              knowledge, skill, experience, training, or education regarding
              the subject matter of the testimony;

              (C) The witness' testimony is based on reliable scientific,
              technical, or other specialized information. To the extent that
              the testimony reports the result of a procedure, test, or
              experiment, the testimony is reliable only if all of the following
              apply:

                     (1) The theory upon which the procedure, test, or
                     experiment is based is objectively verifiable or is validly
                     derived from widely accepted knowledge, facts, or
                     principles;

                     (2) The design of the procedure, test, or experiment
                     reliably implements the theory;

                     (3) The particular procedure, test, or experiment was
                     conducted in a way that will yield an accurate result.

       {¶ 47} As noted above, Laghaoui argues the trial court erred by excluding Dr.

Fantegrossi's testimony regarding the "effect that synthetic cannabinoids may have in

causing psychosis." However, as it relates to the synthetic cannabinoids at issue in this

case, XLR-11 and AB-CHMINACA, Dr. Fantegrossi specifically testified that he "couldn't

tell" – but "wouldn't be surprised" – if there were psychotic effects associated with either

substance. This is because, as Dr. Fantegrossi testified, there had not been any testing


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done regarding these substances. According to the state, Dr. Fantegrossi's opinion serves

as nothing more than an unreliable, untested assumption that was inadmissible under both

Daubert and Evid.R. 702. We agree. In so holding, we reject Laghaoui's claim that Dr.

Fantegrossi should have been allowed to testify about the effects of synthetic cannabinoids

in general when, even then, Dr. Fantegrossi testified "the acute and chronic biological

effects of" synthetic cannabinoids are "largely unknown." Therefore, because the trial court

did not err, let alone commit plain error, by granting the state's motion in limine, thereby

excluding Dr. Fantegrossi's testimony regarding the "effect that synthetic cannabinoids may

have in causing psychosis" at trial, Laghaoui's sixth assignment of error lacks merit and is

overruled.

      {¶ 48} Judgment affirmed.


      RINGLAND and HENDRICKSON, JJ., concur.




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