[Cite as State v. Brown, 2014-Ohio-1409.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. 13 CA 43
SHANE BROWN

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 12 CR 692H


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       April 2, 2014



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JAMES J. MAYER, JR.                            ROBERT GOLDBERGER
PROSECUTING ATTORNEY                           10 West Newlon Place
JILL M. COCHRAN                                Mansfield, Ohio 44902
ASSISTANT PROSECUTOR
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 13 CA 43                                                   2

Wise, J.

         {¶1}   Appellant Shane Brown appeals his conviction and sentence entered in

the Richland County Court of Common Pleas on one count each of aiding and abetting

the following: possession of heroin, trafficking in heroin in a school zone, receiving

stolen property, and possession of a schedule IV controlled substance, following a jury

trial.

         {¶2}   Appellee is State of Ohio.

                        STATEMENT OF THE FACTS AND CASE

         {¶3}   On September 23, 2012, Henry Conley broke into the home of Floyd

Shaw, located at 7 Grove Avenue, in Shelby, Ohio, while Mr. Shaw was attending

church. (T. at 102-103). Items stolen from the Shaw residence included a .45 caliber

handgun, approximately a hundred dollars in miscellaneous change, a few two-dollar

bills, and some collectible coins, notably a Canadian dollar and several golden dollar

pieces. (T. at 102-104).

         {¶4}   Shelby Police were contacted later that day by Ron Hamilton. Mr.

Hamilton told police that Mr. Conley had contacted him in attempts to sell a Colt .45

1911 handgun for One Hundred Dollars ($100.00). Mr. Hamilton believed the gun to be

stolen as the value of the same was close to One Thousand Dollars ($1,000.00). Shelby

Police arranged for Mr. Hamilton to purchase the gun from Mr. Conley. Mr. Conley was

subsequently arrested, and it was determined that the gun he sold to Mr. Hamilton was

the one stolen from the Shaw residence. (T. at 121-124).

         {¶5}   Mr. Conley admitted to burglarizing Mr. Shaw's residence. When

questioned about the other missing items, Mr. Conley told the police that the coins and
Richland County, Case No. 13 CA 43                                                      3


the two-dollar bills could be found at the home of Appellant, Shane Brown, at 12 Grove

A venue Extension 1. Mr. Conley stated that he had traded the coins to the Appellant

for heroin. (T. at 125, 149, 192, 219-220).

       {¶6}   As a result of the investigation, Mr. Conley was charged with Burglary, and

a search warrant was obtained for Appellant's residence for the purpose of locating

property from the Shaw burglary. (T. at 124-125, 174). The search warrant was

executed the same day. At the time of execution of the warrant, there were four

occupants in the residence; the Appellant, his girlfriend, Honnie Muhr, his brother, Roy

Brown, and his mother, Loretta Brown. (T. at 128-129, 178). Appellant and Ms. Muhr

were located in a bedroom adjacent to the kitchen. Id. They were secured and removed

from the room. (T. at 129).

       {¶7}   Appellant was taken out to the front porch to speak to Sergeant Mack of

the Shelby Police Department and Lieutenant Coontz from METRICH. After being read

his Miranda rights, Appellant agreed to speak to officers. (T. at 129-130, 148, 198).

Appellant told Sergeant Mack that police would find the heroin in a pillowcase on the

bed in the room where he and Ms. Muhr had been, and that they would find the money

from the earlier drug transaction in a locked cabinet of the entertainment center. (T. at

130-131, 282). During questioning, Appellant admitted that he and the others in the

home had drug problems. He admitted he was selling heroin to support their habits.

Appellant specifically admitted to using the black truck that was sitting out front of the

residence to drive down to Columbus to pick up drugs and that sometimes Ms. Muhr

would go down to Columbus with him. (T. at 130-132, 148, 199, 201). Usually he would

drive to Columbus with another gentleman and purchase $1,000.00 in heroin. The
Richland County, Case No. 13 CA 43                                                      4


heroin would then be portioned out with some to use and some to sell. (T. at 199-

200,202, 199-200).

       {¶8}   Police searched the bedroom shared by Appellant and Ms. Muhr and

located two pill bottles and a duct tape wallet in a pillowcase on the bed, right where

Appellant indicated it would be found. (T. at 131, 230, 252, 282, 284). One of the pill

bottles contained forty-five wrapped balloons of what was later determined to be heroin.

The other pill bottle contained thirteen balloons. Neither of these pill bottles contained

labels. (T. at 230, 269-271). The duct tape wallet contained $863 in cash, including four

two-dollar bills. (T. at 126, 150-151, 227, 230-231). Also located in the bedroom was a

separate two-dollar bill, a Canadian dollar coin, several golden American dollar coins,

and a large amount of other miscellaneous coins, numerous items of drug paraphernalia

including syringes, and multiple prescription pill bottles. (T. at 126-127, 221, 230-234).

The prescription bottles that were labeled, found in the entertainment center cabinet,

bore labels indicating that the prescriptions were old and out of date. (T. at 243-246,

252-254). One of the bottles with no name, contained three orange pills and seven blue

pills. (T. at 126, 247-248). The orange pills were identified as Suboxone, and the blue

pills were identified as Alprazolam. (T. at 272, 272). Located on Appellant was a wallet

with $1,111.00 in cash. (T. at 146-147, 151, 180-182, 189-190).

       {¶9}   The location of Appellant's home was found to be 961 feet from St. Mary's

School using the AccuGlobe software used by the county Auditor and Engineer to

measure distances.

       {¶10} As a result of the execution of the search warrant, Appellant was charged

with Aiding and Abetting Possession of Heroin in an amount greater than fifty unit
Richland County, Case No. 13 CA 43                                                      5


doses, a felony of the third degree; Aiding and Abetting Trafficking in Heroin in a school

zone in an amount greater than fifty unit doses, a felony of the second degree; Aiding

and Abetting Receiving Stolen Property, a misdemeanor of the first degree, and Aiding

and Abetting Possession of Schedule IV drug with prior felony drug offense, a felony of

the fifth degree. The counts of possession and trafficking in heroin both contained

forfeiture specifications for $1,974.00 in cash and Appellant's 1999 Chevy Truck.

       {¶11} On November 27, 2013, Appellant was arraigned on the charges.

       {¶12} On February 4, 2013, the State of Ohio filed a motion to join the instant

case with case number 2012-CR-744H for purposes of trial. Two days later the court

scheduled the instant matter for a change of plea on February 22, 2013.

       {¶13} On February 7, 2013, Appellant changed his mind about the change of

plea, and the cases were joined and set for trial on March 18, 2013.

       {¶14} On March 13, 2013, a joint motion to continue was filed by the State and

Appellant.

       {¶15} A jury trial in the matter commenced on April15, 2013, and ended on

April19, 2013.

       {¶16} Honnie Muhr and Roy Brown testified on behalf of Appellant. Ms. Muhr,

who had already entered guilty pleas to Aiding and Abetting Trafficking and Possession

of   heroin, testified that all of the heroin and the money located in the pillow case

belonged to her. She claimed that she was the drug trafficker in the house, and that

Appellant had nothing to do with the sale of drugs. Ms. Muhr admitted Appellant was a

heavy heroin user, using approximately four to five balloons of heroin at a time, five

times a day. Ms. Muhr testified that her friend Nicky Reisner had delivered to the house
Richland County, Case No. 13 CA 43                                                        6


the night before the heroin that the police found. She first indicated she had purchased

a couple hundred bucks worth, then changed that to seven or eight hundred dollars

worth. The total amount of heroin that was allegedly purchased was eighty balloons.

They did not use any of the eighty (80) balloons. Ms. Muhr sold the twenty-two (22)

missing balloons for the $863 found in the duct tape wallet.

       {¶17} Honnie Muhr denied that Appellant had ever purchased heroin, gave her

money to purchase heroin, drove her to purchase heroin, or took part in any transaction

involving the sale of heroin. She testified that the coins and two dollar bills in question

were brought to the house by Tim West. She claimed that Mr. West came by the house

three times that day in order to attempt to purchase heroin from her. She stated that the

first time he carne over looking for drugs she did not want to sell him any because he

owed her money. She told him that he had to wait until Appellant woke up. She said that

Mr. West returned a second time with a handgun which he wanted to trade for drugs.

Ms. Muhr and Roy Brown told Mr. West that they did not want him there with the gun.

On the third visit, Mr. West brought over the coins and two dollar bills. Ms. Muhr testified

that she purchased the coins and two dollar bills from Mr. West for twenty-five dollars

($25.00), despite the fact that Mr. West owed her money. She told the jury Appellant

collected coins so she purchased the coins in order to help Mr. West since the man

down the street would not take the coins in exchange for drugs. She stated that

Appellant slept through all of these visits, never waking until the police arrived to

execute the search warrant.

       {¶18} Ms. Muhr further testified that she has never sold drugs to Henry Conley

and he had never been to the house, but hinted that Tim West was trying to unload the
Richland County, Case No. 13 CA 43                                                      7


property for Mr. Conley. The money Appellant had in his wallet, $1,111.00, was a loan

he had secured using his truck as collateral and was to pay a past due electric bill of

$1,400.00 and a $200.00 water bill. She claims that the police lied about finding

syringes in the bedroom. She stated they were all in the living room. The coins she took

from Mr. West were all put in a drawer next to her bed. She did not know how they got

into the entertainment center where they were located by police. Ms. Muhr was unaware

Appellant had talked to the police on the day the search warrant was executed. (T. at

326-386).

       {¶19} Roy Brown testified that Tim West had been to the house two times on the

day the search warrant was executed. The first time Mr. West had a pistol and was told

the leave. The second time he had approximately twenty-five dollars in change and two-

dollar bills which Ms. Muhr purchased from him. (T. at 398-400, 402-403). Mr. Brown

testified that he was not a heroin user and when pushed on the subject opted to invoke

his Fifth Amendment right to not incriminate himself. (T. at 401-402). However, he did

testify that Appellant, Ms. Muhr and Loretta Brown were all heroin addicts. (T. at 404-

405,408). Mr. Brown did not know how much anyone was using but testified that

Appellant was selling in order to take care of his and Ms. Muhr's habit. (T. at 408).

       {¶20} Appellant also testified. He admitted to possession of the Alprazolam that

was found on his person on October 6, 2012. He denied trafficking. He denied that the

money found on his person on September 23, 2012, were proceeds of drug trafficking.

Instead he testified that the $1,111.00 he had on him was from his social security that

he had just withdrawn. Appellant testified that he receives $795 a month in social

security on the third of the month. He claims he also withdrew some money from his
Richland County, Case No. 13 CA 43                                                       8


savings account which contained the remainder of his social security settlement. At one

point he testified to having close to $20,000.00 left of the settlement and that he usually

withdrew an extra $700 a month to supplement his social security check. He

subsequently indicated that he only had $3,500.00 left of the settlement. Appellant

indicated that he had that much cash on his person on September 23, 2012, because

he was interested in purchasing a new vehicle. He stated that he was the only driver in

the household and the truck was not sufficient for shuttling everyone around. He

testified that this was the same reason that he was in possession of close to $3,500.00

on October 6, 2012, when he was arrested a second time. Appellant indicated that he

did have a loan using the truck for collateral, but that had been previously paid off.

       {¶21} Appellant denied selling any heroin or even using heroin at the time in

question. He stated he had been using the Alprazolam in order to get off of heroin. He

testified that all of the drugs belonged to Ms. Muhr and that she was the one selling

drugs. He stated that the money in the duct tape wallet also belonged to Ms. Muhr and

that he had no knowledge of it. He further stated that he was asleep when Tim West

came over to the house and he had no knowledge of the coins or the two-dollar bills. He

further testified that his only knowledge of Mr. Conley is that they worked together off

and on a few years prior. He also alleged that he was never read his Miranda rights by

any police officer. (T. at 410-460).

       {¶22} On rebuttal, Tim West testified that he lived next door to Appellant. He

was aware of the execution of the search warrant and what was located at the home.

He denied taking any money or guns over to the residence on the day in question. He
Richland County, Case No. 13 CA 43                                                      9


also denied ever going over to the home to purchase or barter for heroin. (T. at 463-

470).

        {¶23} Sergeant Mack and Officer Aaron Bushey testified to statements made by

Henry Conley to police during their investigation of the Burglary. The only relevant

statements testified to by the officers indicated that Mr. Conley had recently relapsed on

heroin, and that he purchased all of his heroin in the preceding three days from

Appellant. Mr. Conley had told police that he had purchased a balloon that morning from

Appellant and used the coins and two-dollar bills for the purchase. Mr. Conley also

indicated that the residence contained a lot more heroin. (T. at 492-493, 498-500).

        {¶24} On rebuttal, the State introduced a recording that was made in the

interview room where Honnie Muhr and Appellant were placed alone after their arrest. It

is apparent from the tape that they were aware of the possibility that their conversation

was being recorded. As indicated by the State of Ohio in closing arguments, it is

apparent from the video that Appellant and Ms. Muhr spent that time together

concocting a story and trying to determine who had ratted them out to the police. (T. at

480-483, 519-523).

        {¶25} Sergeant Mack testified that St. Mary's School has been in existence for

the last thirty to fifty years. (T. at 153-156).

        {¶26} Evidence was also presented at trial that Appellant had a prior conviction

for possession of heroin, a felony of the fourth degree from Richland County in 2008. He

also had a conviction for trafficking in heroin, a fifth degree felony, from Huron County

from 2006. (T. at 209-212).
Richland County, Case No. 13 CA 43                                                      10


       {¶27} After deliberations, the jury found Appellant guilty on all counts and

forfeiture specifications.

       {¶28} The trial court sentenced Appellant to three (3) years on the charge of

possession of heroin while aiding or abetting another, four (4) years mandatory on the

charge of trafficking in heroin in a school zone, six (6) months on the charge of receiving

stolen property and twelve (12) months on the charge of possession of a schedule IV

controlled substance. The possession and trafficking charges were ordered to run

consecutively to each other. The remaining counts were ordered to run concurrently to

each other and concurrently to case number 12-CR074H, for a total sentence of seven

(7) years incarceration.

       {¶29} Appellant now appeals to this Court, assigning the following errors for

review:

                                  ASSIGNMENTS OF ERROR

       {¶30} “I. APPELLANT WAS IMPROPERLY CONVICTED AND SENTENCED

ON COUNTS I AND II OF THE INDICTMENT BECAUSE THEY WERE ALLIED

OFFENSES OF SIMILAR IMPORT.

       {¶31} “II. THE STATEMENTS MADE BY HENRY CONLEY AS TESTIFIED TO

BY OFFICERS MACK AND BUSHEY WAS (SIC) INADMISSIBLE HEARSAY

EVIDENCE BECAUSE IT VIOLATED THE CONFRONTATION CLAUSE OF THE

SIXTH AMENDMENT.

       {¶32} “III. THE COURT IMPROPERLY INSTRUCTED THE JURY ON COUNT II

OF THE INDICTMENT.
Richland County, Case No. 13 CA 43                                                     11


       {¶33} “IV. THE COURT IMPROPERLY INSTRUCTED THE JURY ON COUNT

IV OF THE INDICTMENT.”

                                              I.

       {¶34} In his First Assignment of Error, Appellant argues that the trial court erred

in not finding that Count I and Count II were allied offenses of similar import. We

disagree.

       {¶35} Appellant was convicted of both (aiding and abetting) possession of

heroin, in violation of R.C. §2925.11(A) and (C)(6)(d) and (aiding and abetting)

trafficking in heroin, in violation of R.C. §2925.03(A)(2) and (C)(6)(d).

       {¶36} Appellant argues that the two counts should have been merged as allied

offenses of similar import.

       {¶37} R.C. §2941.25 states as follows:

       {¶38} “(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or information

may contain counts for all such offenses, but the defendant may be convicted of only

one.

       {¶39} “(B) Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the same or

similar kind committed separately or with a separate animus as to each, the indictment

or information may contain counts for all such offenses, and the defendant may be

convicted of all of them.”

       {¶40} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

1061, the Ohio Supreme Court revised its allied-offense jurisprudence. The Johnson
Richland County, Case No. 13 CA 43                                                    12

court overruled State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), “to the

extent that it calls for a comparison of statutory elements solely in the abstract under

R.C. 2941.25.” The Court was unanimous in its judgment and the syllabus, “When

determining whether two offenses are allied offenses of similar import subject to merger

under R.C. 2941.25, the conduct of the accused must be considered. (State v. Rance

(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled.)” However, the Court could not

agree on how the courts should apply that syllabus holding. The Johnson case lacks a

majority opinion, containing instead two plurality opinions, and a separate concurrence

in the judgment and syllabus only. State v. Helms, 7th Dist. No. 08 MA 199, 2012-Ohio-

1147, 2012 WL 966810, ¶ 71 (DeGenaro, J., concurring in part and dissenting in part).

      {¶41} Justice Brown's plurality opinion sets forth a new two-part test for

determining whether offenses are allied offenses of similar import under R.C. 2941.25.

The first inquiry focuses on whether it is possible to commit both offenses with the same

conduct. Id. at ¶ 48, 942 N.E.2d 1061. It is not necessary that the commission of one

offense will always result in the commission of the other. Id. Rather, the question is

whether it is possible for both offenses to be committed by the same conduct. Id.,

quoting State v. Blankenship, 38 Ohio St.3d 116, 119, 526 N.E.2d 816 (1988).

Conversely, if the commission of one offense will never result in the commission of the

other, the offenses will not merge. Johnson at ¶ 51.

      {¶42} If it is possible to commit both offenses with the same conduct, the court

must next determine whether the offenses were in fact committed by a single act,

performed with a single state of mind. Id. at ¶ 49, quoting State v. Brown, 119 Ohio

St.3d 447, 895 N.E.2d 149, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring in
Richland County, Case No. 13 CA 43                                                   13


judgment only). If so, the offenses are allied offenses of similar import and must be

merged. Johnson at ¶ 50. On the other hand, if the offenses are committed separately

or with a separate animus, the offenses will not merge. Id. at ¶ 51.

       {¶43} Under Justice Brown's plurality opinion in Johnson, “the court need not

perform any hypothetical or abstract comparison of the offenses at issue in order to

conclude that the offenses are subject to merger.” Id. at ¶ 47, 942 N.E.2d 1061. Rather,

the court simply must ask whether the defendant committed the offenses by the same

conduct. Id.

       {¶44} Appellant herein was convicted of both possession of heroin, in violation

of R.C. §2925.11(A)&(C)(6)(d), and trafficking in heroin, in violation of R.C.

§2925.03(A)(2)&(C)(6)(d).

       {¶45} R.C. §2925.11, Drug Possession Offenses, provides in relevant part:

       {¶46} “(A) No person shall knowingly obtain, possess, or use a controlled

substance or a controlled substance analog.

       {¶47} “***

       {¶48} “(C) Whoever violates division (A) of this section is guilty of one of the

following:

       {¶49} “*** (6) If the drug involved in the violation is heroin or a compound,

mixture, preparation, or substance containing heroin, whoever violates division (A) of

this section is guilty of possession of heroin. The penalty for the offense shall be

determined as follows:

       {¶50} “***

       {¶51} “(d) If the amount of the drug involved equals or exceeds one hundred unit
Richland County, Case No. 13 CA 43                                                      14


doses but is less than five hundred unit doses or equals or exceeds ten grams but is

less than fifty grams, possession of heroin is a felony of the second degree, and the

court shall impose as a mandatory prison term one of the prison terms prescribed for a

felony of the second degree.”

       {¶52} R.C. §2925.03, Trafficking Offenses, provides in relevant part:

       {¶53} “(A) No person shall knowingly do any of the following:

       {¶54} “****

       {¶55} “(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.

       {¶56} “***

       {¶57} “(C) Whoever violates division (A) of this section is guilty of one of the

following:

       {¶58} “(6) If the drug involved in the violation is heroin or a compound, mixture,

preparation, or substance containing heroin, whoever violates division (A) of this section

is guilty of trafficking in heroin. The penalty for the offense shall be determined as

follows:

       {¶59} “***

       {¶60} “(d) Except as otherwise provided in this division, if the amount of the drug

involved equals or exceeds fifty unit doses but is less than one hundred unit doses or

equals or exceeds five grams but is less than ten grams, trafficking in heroin is a felony

of the third degree, and there is a presumption for a prison term for the offense. If the
Richland County, Case No. 13 CA 43                                                          15


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 heroin is a felony of the

second degree, and there is a presumption for a prison term for the offense.”

       {¶61} A person acts knowingly, regardless of his or her purpose, when that

person is aware that his or her conduct will probably cause a certain result or will

probably be of a certain nature. R.C. §2901.22(B). It is necessary to look at all the

attendant facts and circumstances in order to determine if a defendant knowingly

possessed a controlled substance. State v. Teamer, 82 Ohio St.3d 490, 492, 696

N.E.2d 1049(1998).

       {¶62} Possession “means having control over a thing or substance, but may not

be inferred solely from mere access to the thing or substance through ownership or

occupation of the premises upon which the thing or substance is found.” R.C.

2925.01(K). Interpreting the meaning of the term “possession,” Ohio courts have held

possession may be actual or constructive. See State v. Wolery, 46 Ohio St.2d 316, 329,

348 N.E.2d 351(1976); State v. Hankerson, 70 Ohio St.2d 87, 90–1, 434 N.E.2d 1362;

State v. Boyd, 63 Ohio App.3d 790, 580 N.E.2d 443(1989). To establish constructive

possession, the state must prove the defendant was able to exercise dominion or

control over the object, even though that object may not be within his immediate

physical possession. Boyd, supra, at 796, 580 N.E.2d 443. Further, it must also be

shown that the person was “conscious of the presence of the object.” Hankerson, supra,

at 91, 434 N.E.2d 1362.

       {¶63} In the case at bar, our review leads us to initially conclude that the first

question under Johnson, i.e., whether it is possible, with the same conduct, to engage in
Richland County, Case No. 13 CA 43                                                  16


possession and trafficking would be answered in the affirmative under the

circumstances.

      {¶64} We thus proceed to an examination of the second question under

Johnson, whether the offenses were in fact committed by a single act, performed with a

single state of mind. Here, Appellant drove to Columbus to purchase a quantity of

heroin large enough to keep some for personal use and allow him to sell the remainder

for profit to cover his personal use.   After purchasing, and thereby possessing the

heroin, Appellant engaged in the further steps of repackaging the heroin into smaller

quantities in balloons. Appellant then actually sold some of the heroin in exchange for

stolen property. Upon review, we are persuaded that Appellant's actions as charged

were not part of the same conduct. We therefore find the trial court did not err in

convicting and sentencing Appellant on both of the aforesaid counts.

      {¶65} Based on the foregoing, we find that the offenses were not allied offenses

of similar import and that the trial court did not err in failing to merge the offenses

contained in Counts One and Two.

      {¶66} Appellant's First Assignment of Error is not well-taken and we hereby

overrule same.

                                              II.

      {¶67} In his Second Assignment of Error, Appellant argues that the admission of

statements made by Henry Conley were inadmissible hearsay and violated the

Confrontation Clause. We disagree.

      {¶68} A defendant's failure to cross-examine a witness does not mean that the

witness was not available for such cross-examination or that the Confrontation Clause
Richland County, Case No. 13 CA 43                                                         17


has not been satisfied. “[W]hen the declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on the use of his prior testimonial

statements.” State v. Rucker, 1st Dist. No. C–110082, 2012–Ohio–185; ¶ 37, citing

State v. Lang, 129 Ohio St.3d 512, 2011–Ohio–4215, ¶ 113; Crawford v. Washington,

541 U.S. 36, 59, 124 S.Ct. 1354 (2004). “The Clause does not bar admission of a

statement so long as the declarant is present at trial to defend or explain it.” Rucker at ¶

37. Thus, any testimonial statements made by A.H. in her interview with Richey did not

violate appellant's Confrontational Clause rights because A.H. was available to testify,

and did testify, at trial.

        {¶69} To establish a Confrontation Clause violation, the defendant must show

that he was “prohibited from engaging in otherwise appropriate cross-examination” and

“[a] reasonable jury might have received a significantly different impression of [the

witness's] credibility had [the defendant's] counsel been permitted to pursue his

proposed line of cross-examination.” Id. at 680, 106 S.Ct. 1431, 89 L.Ed.2d 674.

        {¶70} Initially we note that the record reflects that while Henry Conley was

present at trial, the trial court determined he was, in fact, unavailable to testify due to an

auto accident which left him an apparent lack of memory as to many of the events in

question.

        {¶71} The State admits in its brief that because Mr. Conley’s statements to the

police were testimonial in nature, having been made during the course of a police

interrogation, the admission of such statements was a violation of Appellant’s Sixth

Amendment Right to confrontation. The State, however, argues that the trial court’s

error in admitting such statements was harmless. We agree.
Richland County, Case No. 13 CA 43                                                       18


       {¶72} Upon review, we find that the complained of statements were introduced

on rebuttal to counter statements made by Appellant and his witnesses that the coins

and two-dollar bills did not originate from Mr. Conley’s house, but were instead brought

to the house by Tim West.

       {¶73} This testimony showed that Mr. Conley traded stolen property to Appellant

for heroin. However, evidence of such exchange was also presented by the police

officers who testified as to the results of their investigation and the parameters of their

search warrant. The search warrant affidavit, which was entered into evidence, also

contained information concerning Mr. Conley’s statements that he took the coins/$2

Dollar Bills to Appellant’s house and exchanged same for heroin. The officer’s testimony

was made and the exhibits were introduced without objection.

       {¶74} We find that, given all of the evidence presented throughout the trial,

along with the cumulative nature of the rebuttal statements, there was more than

sufficient evidence to convict Appellant of the counts contained in the indictment and,

therefore, the introduction of such statements was harmless error.

       {¶75} Appellant’s Second Assignment of Error is overruled.

                                                III.

       {¶76} In his third assignment of error, Appellant argues that the trial court

improperly instructed the jury on Count II. We disagree.

       {¶77} While reading the instructions to the jury, the trial court advised the jury as

follows:

       {¶78} “If the prosecutor did not prove beyond a reasonable doubt all the

essential elements of possession of drugs as I have defined them for you, your verdict
Richland County, Case No. 13 CA 43                                                      19


must be guilty of that crime. If, on the other hand, you find that the prosecutor failed to

prove beyond a reasonable doubt any one of the essential elements of possession of

the drugs, your verdict must be not guilty of that crime."

       {¶79} Appellant did not object to the jury instructions given by the trial court and

therefore has waived all but plain error. State v. Underwood (1983), 3 Ohio St.3d 12,

444 N.E.2d 1332. Under the plain error standard, first there must be an error, i.e. a

deviation from a legal rule. Second, the error must be plain, i.e. an obvious defect in the

trial proceedings. Third the error must have affected “substantial rights” i.e. the outcome

of the trial. State v. Johnson, Franklin App. No. 06AP-878, 2007-Ohio-2792.

       {¶80} The Ohio Supreme Court has advised that Crim.R. 52(B) plain error is to

be taken “with the utmost caution, under exceptional circumstances and only to prevent

a manifest miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d

804, paragraph three of the syllabus.

       {¶81} “A jury charge must be considered as a whole and a reviewing court must

determine whether the jury charge probably misled the jury on a matter materially

affecting the complaining party's substantial rights.” Becker v. Lake Cty. Mem. Hosp.

West (1990), 53 Ohio St.3d 202, 208, 560 N.E.2d 165.

       {¶82} Upon review, we find that the written instructions presented to the jury did

not contain the above misstatement. Further, this particular instruction of law appears

more than once in these jury instructions and was read correctly by the judge in the

other instance, which actually was read to the jury before the misstatement.
Richland County, Case No. 13 CA 43                                                          20


       {¶83} This Court finds no evidence that the jurors noticed the trial court’s

misstatement, that Appellant was prejudiced by same, or that their verdict would have

been different in this case.

       {¶84} Appellant’s third assignment of error is overruled.

                                                 IV.

       {¶85} In his Fourth and final Assignment of Error, Appellant argues that the trial

court improperly instructed the jury on Count IV. We disagree.

       {¶86} At trial, Appellant requested that the trial court instruct the jury on the full

definition of “school” and “school premises” as contained in R.C. §2925.01(Q) and (R)

as such pertained to Count II. The trial court refused, stating the additional definitions

were not relevant to the case at bar. (T. at 583-584). Appellant objected to same.

       {¶87} The giving of jury instructions is within the sound discretion of the trial

court and will not be disturbed on appeal absent an abuse of discretion. State v.

Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3rd Dist.1993). In order to find an abuse

of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140(1983). Jury instructions must be

reviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792(1988).

       {¶88} “Error in refusing to give a special request to charge before argument

must be prejudicial in order to support reversal of a judgment rendered against a party

complaining of such error.” Smith v. Flesher, 12 Ohio St.2d 107, 233 N.E.2d 137(1967),

syllabus. It is well established that the trial court will not instruct the jury where there is

no evidence to support an issue. Riley v. Cincinnati, 46 Ohio St.2d 287, 75 O.O.2d 331,
Richland County, Case No. 13 CA 43                                                       21


348 N.E.2d 135(1976). “In reviewing a record to ascertain the presence of sufficient

evidence to support the giving of a[n] * * * instruction, an appellate court should

determine whether the record contains evidence from which reasonable minds might

reach the conclusion sought by the instruction.” Murphy v. Carrollton Mfg. Co., 61 Ohio

St.3d 585, 591, 575 N.E.2d 828, 832 (1991).

       {¶89} The relevant definitions are contained in R.C. §2925.01, which provides:

       {¶90} “(Q) “School” means any school operated by a board of education, any

community school established under Chapter 3314. of the Revised Code, or any

nonpublic school for which the state board of education prescribes minimum standards

under section 3301.07 of the Revised Code, whether or not any instruction,

extracurricular activities, or training provided by the school is being conducted at the

time a criminal offense is committed.

       {¶91} “(R) “School premises” means either of the following:

       {¶92} “(1) The parcel of real property on which any school is situated, whether or

not any instruction, extracurricular activities, or training provided by the school is being

conducted on the premises at the time a criminal offense is committed;

       {¶93} “(2) Any other parcel of real property that is owned or leased by a board of

education of a school, the governing authority of a community school established under

Chapter 3314. of the Revised Code, or the governing body of a nonpublic school for

which the state board of education prescribes minimum standards under section

3301.07 of the Revised Code and on which some of the instruction, extracurricular

activities, or training of the school is conducted, whether or not any instruction,
Richland County, Case No. 13 CA 43                                                          22


extracurricular activities, or training provided by the school is being conducted on the

parcel of real property at the time a criminal offense is committed.

       {¶94} “(S) “School building” means any building in which any of the instruction,

extracurricular activities, or training provided by a school is conducted, whether or not

any instruction, extracurricular activities, or training provided by the school is being

conducted in the school building at the time a criminal offense is committed.”

       {¶95} Here, the trial court instructed the jury as to the full definition of “school” as

set forth in R.C. §2925.01(Q) and further provided the definition of “school premises”

contained in R.C. 2925.01(R)(1).       The trial court refused to provide the definition

contained in R.C. 2925.01(R)(2) or the definition of “school building” contained in R.C.

2925.01(S).

       {¶96} Upon review, we find that evidence presented established that Appellant’s

residence was located 961 feet from St. Mary’s school, and that St. Mary’s school had

been in existence at that location for the last 30 to 50 years. (T. at 153-156).

       {¶97} Jury instructions should be tailored to fit the facts of the case. State v.

Mullins, Montgomery App. No. 22301, 2008–Ohio–2892, ¶ 9. We find that is what the

trial court did in this case. Under the circumstances of the case at bar, there is nothing

in the record to show Appellant was prejudiced by the instructions as presented to the

jury in this case.
Richland County, Case No. 13 CA 43                                         23


       {¶98} Appellant’s Fourth Assignment of Error is overruled.

       {¶99} Accordingly the judgment of the Court of Common Pleas of Richland

County, Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.




JWW/d 0312
Richland County, Case No. 13 CA 43   24
