         [Cite as State v. Greenway, 2017-Ohio-7729.]
                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :     APPEAL NO. C-160511
                                                        TRIAL NO. C-15CRB-10942
        Plaintiff-Appellee,                       :
                                                           O P I N I O N.
  vs.                                             :

LEAH GREENWAY,                                    :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                            Remanded

Date of Judgment Entry on Appeal: September 22, 2017




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos,
Assistant Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




M OCK , Presiding Judge.

       {¶1}   Following a bench trial, defendant-appellant Leah Greenway was

convicted of one count of possessing drug-abuse instruments under former R.C.

2925.12.   She presents four assignments of error for review. We find merit in her

fourth assignment of error related to her sentencing. Consequently, we affirm the

finding of guilt, but vacate the sentence and remand the matter for resentencing.

                                I.   Facts and Procedure

       {¶2}   The record shows that on May 1, 2015, Officer Michael Hackman of the

Forest Park Police Department responded to a radio call for a “non-breather,

someone that had overdosed.” When he arrived, he entered a residence and saw a

woman sitting on a couch. The woman, who identified herself as Greenway’s mother,

directed him to the basement.

       {¶3}   When he went down to the basement, Officer Hackman saw the life

squad “working on the defendant.” He said it appeared that they were “doing life

saving measures.” He further stated that he could see that Greenway was breathing

and that she was talking “somewhat” and moving.

       {¶4}   Officer Hackman also observed a syringe on the floor at the foot of the

bed where Greenway was lying. He stated that it was between her right leg and a

concrete wall. Hackman collected the syringe and secured it. Later he submitted it

for testing at the Hamilton County Coroner’s laboratory. The lab analysis showed

that residue in the syringe contained morphine and fentanyl.            Greenway was

transported to the hospital and a warrant was later issued for her arrest.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


                           II.   Questioning by the Trial Court

       {¶5}   In her first assignment of error, Greenway contends that the trial court

violated Evid.R. 614(B) and her right to due process by questioning Officer

Hackman, the state’s only witness. She argues that the court ceased to be impartial

when it stated on the record that the questions were meant to elicit a specific fact

necessary for conviction. This assignment of error is not well taken.

       {¶6}   Evid.R. 614(B) allows the court to interrogate witnesses in an impartial

manner. State v. Cepac, 149 Ohio St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, ¶ 70;

State v. Payne, 1st Dist. Hamilton No. C-060437, 2007-Ohio-3310, ¶ 12. Generally,

we review the trial court’s interrogation of a witness for an abuse of discretion.

Payne at ¶ 12; State v. Davis, 79 Ohio App.3d 450, 454, 607 N.E.2d 543 (4th

Dist.1992).

       {¶7}   After Officer Hackman had testified, the trial court began to question

him. The court asked the officer if he was able to tell the court “what * * * the life

squad was doing to her.” When Greenway objected on a number of grounds, the

court held a conference in chambers. It stated:

       Well, I’m not entirely conversant with what happens on one of these

       runs when somebody ODs, although it isn’t uncommon, we hear more

       and more that people say that either officers or life squad are

       administering something commonly referred to that I heard of called

       Narcan.

                                          ***

       So what I’m attempting to elicit out of the officer right now is whether

       he observed some kind of administration of Narcan or something like

       that, so that’s the purpose of my question.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶8}    Greenway explained more about the basis of her objections. The court

then stated:

       Well, what I was doing is excavating his answer further. They were

       working on * * * her. Do you know what they were doing? So if he

       knows what they are doing and if he says Narcan, I’ll have to evaluate

       its weight, so I was giving you the courtesy of doing it outside of [his

       presence] so that he doesn’t – so that he’s not overly stimulated to an

       answer by doing it outside of [his presence]. I don’t want him to get –

       I don’t want you to be treated unfairly by some lightbulb going on in

       his head, oh he wants me to say Narcan, so that’s why I called us in

       here.

       {¶9}    The court overruled Greenway’s objection and again asked Officer

Hackman what the life squad was doing to Greenway. He replied that they were

checking her vital signs and preparing her for transport. The officer started to testify

about something a member of the life squad had told him, but Greenway objected on

the basis of hearsay. The trial court sustained the objection.

       {¶10} The court then asked Officer Hackman if he saw the life squad

administer any medication to Greenway. He answered: “All of the medicine –

including Narcan, had been given prior to my arrival.” Defense counsel objected on

the basis that his answer was outside of the officer’s personal knowledge. The court

stated that “we’re going to strike what you said about the Narcan being prior

administered.” The court then asked him if he saw “Narcan there out in the open

somewhere?”     The officer answered:     “[T]he equipment and containers for the

Narcan were still laying on the floor around the area where the defendant was being




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                     OHIO FIRST DISTRICT COURT OF APPEALS



worked on.” The court asked him “Did you see it with your own eyes?” and Officer

Hackman replied that he did.

       {¶11} We cannot hold that the trial court’s questioning of the witness was an

abuse of discretion.    Greenway argues that the court’s questioning went to an

essential element of the state’s case. We disagree. The evidence would have been

sufficient to support the conviction even without the officer’s testimony about

Narcan.    Further, “[i]n regard to the examination of witnesses, the trial judge is

something more than a mere umpire or sergeant at arms to preserve order in the

courtroom.” Davis, 79 Ohio App.3d at 456, 607 N.E.2d 543. Rather, the court “has

active duties to perform in maintaining justice and in seeing that the truth is

developed, and may, for such purpose, put proper questions to the witnesses, and

even leading questions.” Id. Under the circumstances, we cannot say that the trial

court’s questioning was so arbitrary, unreasonable or unconscionable as to connote

an abuse of discretion. See State v. Clark, 71 Ohio St.3d 466, 470, 644 N.E.2d 331

(1994).

       {¶12} The trial court’s questioning would only have been improper if it had

demonstrated bias, as argued by Greenway. A criminal trial before a biased judge is

fundamentally unfair and denies a defendant due process of law. Cepac, 149 Ohio

St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, at ¶ 73. The presence of a biased judge

is structural error, which, if demonstrated, requires reversal. Id.

       The term ‘biased’ implies a hostile feeling or spirit of ill will or undue

       friendship or favoritism toward one of the litigants or his attorney,

       with the formation of a fixed anticipatory judgment on the part of the

       judge, as contradistinguished from an open state of mind which will be

       governed by the law and the facts.



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                       OHIO FIRST DISTRICT COURT OF APPEALS



Id. at ¶ 73, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St.3d 463, 132 N.E.2d

191 (1956), paragraph four of the syllabus; State v. Loudermilk, 1st Dist. Hamilton

No. C-160487, 2017-Ohio-7378, ¶ 21. The “threshold inquiry” is “whether, with

reference to a range of acceptable, though not necessarily model, judicial behavior,

the [trial] court’s conduct falls demonstrably outside this range so as to constitute

hostility or bias.” Cepac at ¶ 74, quoting McMillan v. Castro, 405 F.3d 405, 410 (6th

Cir.2005).

       {¶13}      Nothing in the record shows that the trial judge exhibited favoritism

toward the state and against Greenway or that he did not have an open mind.

Therefore, we cannot say that the trial judge exhibited bias, and we overrule

Greenway’s first assignment of error.

                                   III. Crime Lab Report

       {¶14} In her second assignment of error, Greenway contends that the trial

court erred in admitting the crime laboratory report into evidence. She argues that

the report was not admissible because the accompanying notarized statement by the

signer of the report was not also entered into evidence. This assignment of error is

not well taken.

       {¶15} The state served the lab report and the accompanying affidavit on

Greenway as required by R.C. 2925.51(B). It also notified her that if she did not

request the testimony of the signer of the report within seven days after receiving the

report, it would be prima-facie evidence of the test results. See State v. Pasqualone,

121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 16; State v. Garrett, 5th Dist.

Richland No. 03-CA-49, 2004-Ohio-2231, ¶ 19-20. The failure to serve the report

and to include all of the necessary information as specifically required by the statute

would have rendered it inadmissible. See State v. McClain, 6th Dist. Lucas No. L-10-


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                     OHIO FIRST DISTRICT COURT OF APPEALS



1088, 2012-Ohio-5264, ¶ 18-22; State v. Putnam, 8th Dist. Cuyahoga No. 91044,

2009-Ohio-233, ¶ 16-18; State v. Bethel, 5th Dist. Tuscarawas No. 2002AP0010,

2002-Ohio-5437, ¶ 9.      Since Greenway received the report and the required

notification and she did not request the testimony of the analyst, she waived the right

to have the analyst testify at trial and to cross-examine him. See Pasqualone at ¶ 18-

21.

       {¶16} Courts have held that the failure to submit a properly notarized

affidavit into evidence was harmless or was not plain error when it did not prejudice

the defendant.   See State v. Hudson, 8th Dist. Cuyahoga No. 79010, 2002 WL

472304, *3 (Mar. 28, 2002); State v. Rodriquez, 66 Ohio App.3d 5, 17, 583 N.E.2d

384 (6th Dist.1990). In this case, Greenway has not demonstrated how the failure to

include the affidavit was prejudicial. She makes no claim that anything in the report

itself was inaccurate or that a properly notarized chemical analysis would have

differed in any material respect from the exhibit presented at trial. See Hudson at

*3.

       {¶17} No reasonable probability existed that the failure to submit the

affidavit contributed to Greenway’s conviction. Therefore, any error was harmless.

See State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035 (1976), paragraph seven of

the syllabus; State v. Brundage, 1st Dist. Hamilton No. C-030632, 2004-Ohio-6436,

¶ 33. Consequently, we overrule Greenway’s second assignment of error.

                              IV. Weight and Sufficiency

       In her third assignment of error, Greenway contends that the evidence was

insufficient to support the conviction. R.C. 2925.12(A) provides:

       No person shall knowingly make, obtain, possess, or use any

       instrument, article, or thing the customary and primary purpose of


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                       OHIO FIRST DISTRICT COURT OF APPEALS



          which is for the administration or use of a dangerous drug, other than

          marihuana, when the instrument involved is a hypodermic or syringe,

          whether or not of crude or extemporized manufacture or assembly,

          and the instrument, article, or thing involved has been used by the

          offender to unlawfully administer or use a dangerous drug, other than

          marihuana, or to prepare a dangerous drug, other than marihuana, for

          unlawful administration or use.

To obtain a conviction under this statute, the state must prove that the offender had

used the syringe to unlawfully administer, use, or prepare a dangerous drug. State v.

Young, 5th Dist. Knox Nos. 16CA24 and 165CA25, 2017-Ohio-7051, ¶ 39; State v.

Lorenzo, 9th Dist. Summit No. 26214, 2012-Ohio-3145, ¶ 20; State v. Davis, 1st Dist.

Hamilton No. C-110620, 2012-Ohio-2642, ¶ 8.

          {¶18} Our review of the record shows that a rational trier of fact, after

viewing the evidence in a light most favorable to the prosecution, could have found

that the state proved beyond a reasonable doubt all of the elements of possessing

drug-abuse instruments, including the use of the syringe. Therefore, the evidence

was sufficient to support the conviction. See State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus; State v. Ojile, 1st Dist. Hamilton

Nos. C-110677 and C-110678, 2012-Ohio-6015, ¶ 48. While the evidence that she

possessed drug-abuse instruments was circumstantial, circumstantial and direct

evidence possess the same probative value. Jenks at paragraph one of the syllabus;

State v. Lowery, 160 Ohio App.3d 138, 2005-Ohio-1181, 826 N.E.2d 340, ¶ 19 (1st

Dist.).

          {¶19} Greenway further argues that her conviction was against the manifest

weight of the evidence. After reviewing the evidence, we cannot say that the trier of



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                      OHIO FIRST DISTRICT COURT OF APPEALS



fact lost its way and created such a manifest miscarriage of justice that we must

reverse her conviction and order a new trial. Therefore, the conviction was not

against the manifest weight of the evidence. See State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997); Loudermilk, 1st Dist. Hamilton No. C-160487,

2017-Ohio-7378, at ¶ 5. We overrule Greenway’s third assignment of error.

                                V. Right of Allocution

       {¶20} In her fourth assignment of error, Greenway contends that she was

denied her right of allocution at sentencing. She argues that the trial court did not

address her personally and ask whether she wished to make a statement on her own

behalf or present any information in mitigation of her punishment. This assignment

of error is well taken.

       {¶21} Crim.R. 32(A) provides that at the time of imposing sentence, the

court shall “afford counsel an opportunity to speak on behalf of the defendant and

address the defendant personally and ask if he or she wishes to make a statement in

his or her own behalf or present any information in mitigation of punishment.” The

right of allocution belongs to the defendant herself.     State v. Osume, 1st Dist.

Hamilton No. C-140390, 2015-Ohio-3850, ¶ 23. The failure to afford a defendant

the right of allocution is not insignificant. State v. Long, 1st Dist. Hamilton No. C-

150713, 2016-Ohio-5345, ¶ 3. “A Crim.R. 32 inquiry is much more than an empty

ritual: it represents a defendant’s last opportunity to plead his case or express

remorse.” State v. Green, 90 Ohio St.3d 352, 359-360, 738 N.E.2d 1208 (2000). It

is not enough for the trial court to simply give defense counsel the opportunity to

speak on the defendant’s behalf. Osume at ¶ 23.

       {¶22} Trial courts must “painstakingly adhere to Crim.R. 32, guaranteeing

the right of allocution.” Green at 359; Long at ¶ 4. If a trial court imposes sentence


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                     OHIO FIRST DISTRICT COURT OF APPEALS



without first asking the defendant if he or she wants to exercise the right of

allocution, resentencing is required unless the error is invited or harmless error.

State v. Campbell, 90 Ohio St.3d 320, 738 N.E.2d 1178 (2000), paragraph three of

the syllabus; Long at ¶ 4.      An error will be deemed harmless only in unusual

circumstances. See State v. Matthews, 1st Dist. Hamilton No. C-140663, 2015-Ohio-

5075, ¶ 14; Osume at ¶ 24.

       {¶23} The trial court erred in failing to address Greenway personally and ask

her if she wished to make a statement on her own behalf or to present any

information in mitigation of punishment before imposing sentence. No unusual

circumstances existed to render the error harmless.        Consequently, we sustain

Greenway’s fourth assignment of error.

                                       VI. Summary

       {¶24} In sum, we find merit in Greenway’s fourth assignment of error.

Consequently, we reverse the sentence, and remand the cause for resentencing. We

affirm the trial court’s judgment in all other respects.

                    Judgment affirmed in part, reversed in part, and cause remanded.


C UNNINGHAM and M ILLER , JJ., concur.


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




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