[Cite as State v. Moss, 2020-Ohio-2862.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-19-1047

        Appellee                                  Trial Court No. CR0201802137

v.

Ronald Moss, Jr.                                  DECISION AND JUDGMENT

        Appellant                                 Decided: May 8, 2020

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

        Edward R. La Rue, for appellant.

                                           ****

        ZMUDA, P.J.

        {¶ 1} This matter is before the court on appeal from the judgment of the Lucas

County Court of Common Pleas, General Division, sentencing appellant Ronald Moss to

an 11-year prison term after a jury trial. Finding error in the proceedings at trial, we

reverse and remand for a new trial.
                          I. Facts and Procedural Background

       {¶ 2} On April 18, 2018, members of the Metro Drug Task Force, in the course of

surveilling Mark Belcher, a suspected trafficker, observed Belcher meet with Moss and

Moss’s uncle, Henry Leake. The task force is a multi-jurisdictional group that

investigates drug cases, with members from local law enforcement, as well as BCI, FBI,

and ATF. Initially, FBI Special Agent Kyle Fulmer was the only investigator, conducting

surveillance of Belcher from an unmarked vehicle.

       {¶ 3} After Belcher parked his white Land Rover in the 3200 block of Haughton

Street, in Toledo, Ohio, Fulmer took a position to the south in an unmarked vehicle and

called for assistance. Undercover Toledo Police Detective Kenneth DeWitt, Jr.

responded, in another unmarked vehicle, and drove by to verify that Belcher was sitting

in the white Land Rover. Detective DeWitt observed Moss, with a passenger, arrive and

park his maroon pickup truck several car lengths ahead of Belcher’s vehicle. The

surveillance team observed Leake exit the passenger side of the truck and walk back to

Belcher’s car, then take the front passenger seat of the Land Rover. Leake stayed for

several minutes, then exited Belcher’s car and returned toward the pickup. As Leake

returned to the pickup, Moss exited the truck and walked back to the Land Rover. Moss

then sat in the front passenger seat of Belcher’s car and appeared to be talking with

Belcher. At first, the Task Force only knew the identity of its target, Belcher, but in the

course of surveillance, officers identified both Leake and Moss, and determined the

activity of the three as suspicious.




2.
       {¶ 4} The task force requested assistance from a marked unit, and Toledo Police

Officer Melvin Haney and his partner responded in a limited marked vehicle, an all-black

vehicle with lights mounted inside and in the back. Officer Haney’s vehicle was

equipped with a dash camera, but the video did not record the apprehension of Moss.

       {¶ 5} As Officer Haney and his partner arrived, they watched Belcher and Moss

step out of the Land Rover, and Belcher tossed a plastic bag under his car. The officers

retrieved the plastic bag, and it contained a substance later identified as more than 100

grams of crack and powder cocaine. Belcher had additional cocaine and heroin in a

pocket, but when officers searched Moss they found no drugs. Moss had $1,468 in cash

in his wallet, and a search of the pickup truck, which was registered to Moss’s wife,

yielded $4,000 in four, banded wads, found inside a console.

       {¶ 6} All three men were taken into custody, charged, and held pending a bail

hearing. While Belcher was in custody, immediately after the arrest, he made several

phone calls from jail. In one call, he acknowledged to the other person on the call that

“Ronnie,” or Moss, was also in jail, and that “Ronnie and his Uncle,” were dealing drugs

at the time of his arrest.

       {¶ 7} On June 25, 2018, the Lucas County Grand Jury indicted Moss on two

counts, trafficking in cocaine in violation of R.C. 2925.03(A)(2) and (C)(4)(g), with a

major drug offender specification pursuant to R.C. 2941.1410 in Count 1; and possession

of cocaine in violation of R.C. 2925.11(A) and (C)(4)(f), with a major drug offender

specification pursuant to R.C. 2941.1410 in Count 2. A separate forfeiture proceeding




3.
was filed in Lucas Common Pleas case No. CI 201802961, regarding the $5,468 in

currency seized, and that case was later consolidated with the criminal proceeding.1

       {¶ 8} On July 11, 2018, Moss was arraigned with appointed counsel, and entered a

not guilty plea. On February 4, 2019, Moss filed a motion in limine, seeking to prohibit

evidence from “a jail phone call from an individual who will not be testifying in the

instant case and is clearly hearsay under Evid.R. 802.”

       {¶ 9} On February 5, 2019, jury trial commenced, and the trial court overruled

Moss’s objections to the jail phone call, finding the recording of Belcher’s conversation

was admissible as a business record. The state played the recording for the jury over

Moss’s renewed objections. The jury also heard testimony of Detective DeWitt and

Officer Haney, with Detective DeWitt narrating the events captured on the dashcam

video and opining on the significance of the events depicted. In addition, Natalie

Montecalvo, a Lucas County Sheriff’s Resource Officer, testified regarding the system

used to monitor and record jail calls, and introduced a copy of the calls. Finally, the state

presented expert testimony of Chadwyck Douglass, a Toledo Police criminalist who

analyzed the drugs seized on April 18, 2018.

       {¶ 10} At the close of the state’s case, Moss made a Crim.R. 29 motion, which the

trial court denied. Moss’s wife, Jaknae Moss, testified on his behalf regarding the cash

discovered and seized from Moss’s wallet and from the truck console, indicating it was


1
 On March 25, 2019, after the appeal of the criminal judgment, the trial court stayed the
forfeiture proceedings.



4.
part of funds given to her by an uncle to purchase a home, or it was casino winnings from

the week before.

      {¶ 11} During deliberations, the jury sent out questions, relayed by the trial court

as follows:

              Ladies and Gentlemen, we have received several questions as it

      relates to your deliberations and it’s very difficult to answer some of the

      questions.

              So the first question is just if the console in the truck was locked,

      would unlocking of the console be – by an officer constitute and illegal

      search of the vehicle?

              Whether the console was locked or not, that particular question on

      the search would be a legal issue to be determined by the court and would

      have no bearing on what the jury does.

              The second question is define clearly possession as it applies to this

      case. The term “possession,” the legal definition is in your jury

      instructions. And I am not allowed to ad lib on what those instructions are,

      which also applies to three, define “complicit” as it relates to this case.

              Again, the term “complicit,” the legal definition may be somewhat

      confusing, but I can’t elaborate on that definition as well, so I cannot

      answer that.




5.
               The fourth one, could we listen to – again to the recorded call and

         view once again the video? We have that set up, so we’re going to play it

         for you and I’ll have Mr. McDonald play each of those so you can see them

         again. Neither of the attorneys will be allowed to say anything.

         {¶ 12} The prosecutor replayed the dashcam video and selections of the jail calls

for the jury, and the jury returned to its deliberations. Soon after, the jury found Moss

guilty on both counts, and entered a finding that Moss was a major drug offender as to

each count. The trial court proceeded to sentencing, and found the two counts merged for

purposes of sentencing. As to Count 1, the trial court imposed an 11-year prison term,

and found Moss had the ability to pay costs of assigned counsel and prosecution. Moss

filed a timely appeal.

                                  II. Assignment of Error

         {¶ 13} Moss now challenges his conviction, arguing the following assignments of

error:

               1. The trial court erred by admitting into evidence the recorded jail

         telephone calls of the hearsay statements of Mark Belcher.

               2. The trial court erred by admitting into evidence expert witness

         testimony under the guise of lay witness testimony without the State having

         filed an expert witness report as required under Ohio Rule of Criminal

         Procedure 16(K).




6.
              3. The trial court erred by finding that the evidence was sufficient to

       convict Mr. Moss of drug trafficking and drug possession.

              4. Appellants’ convictions for drug trafficking and drug possession

       were against the manifest weight of the evidence, in violation of Article IV,

       Section 3, of the Ohio Constitution.

                                       III. Analysis

       {¶ 14} In his first and second assignments of error, Moss challenges the admission

of evidence, arguing the trial court erred in admitting the jail call recording of Belcher’s

statements, as inadmissible hearsay, and erred in permitting expert testimony by a lay

witness. We review a trial court’s ruling on evidentiary issues for an abuse of discretion

that resulted in material prejudice. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-

5735, 70 N.E.3d 508, ¶ 181, citing State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581,

74 N.E.3d 319, ¶ 116.2

       {¶ 15} Moss first challenges the admission of Belcher’s jail call recordings, over

his objection, as inadmissible hearsay. Hearsay is an out-of-court statement “offered in

evidence to prove the truth of the matter asserted.” Evid.R. 801(C). Appellee, the state




2
  We note that hearsay challenges implicating the Confrontation Clause are reviewed de
novo, under the applicable hearsay rule. State v. McKelton, 149 Ohio St.3d 261, 2016-
Ohio-5735, 70 N.E.3d 508, ¶ 97. While Moss raised his Sixth Amendment rights before
the trial court, Moss does not challenges the trial court’s ruling on appeal as implicating
the Confrontation Clause, arguing instead that Belcher’s statements are nontestimonial
hearsay, improperly admitted at trial.




7.
of Ohio, argues that Moss failed to object and raise this exact issue before the trial court,

and thus waived all but plain error.

       {¶ 16} Moss filed a motion in limine in the trial court, arguing Belcher’s

statements were inadmissible hearsay, not subject to cross-examination to test the

credibility of the declarant. The parties then argued the motion before the trial court,

with the prosecution’s position as follows:

              Mr. McDonald: The State is seeking to introduce a jail phone call

       placed hours after the arrest on April 18th of Mark Belcher who is a

       charged defendant, though charged federally, not here in state court, and is

       not a codefendant in this case.

              The call states in pertinent part – and I would only be attempting to

       play two little snippets – one, that there’s an acknowledgement that Ronnie

       is in jail too. Obviously, our defendant’s name is Ronald. Then Mr.

       Belcher makes a statement that says he came bringing me you know what it

       is, you know what it was, he gives me this shit, his uncle was there, he

       discusses some dispute about the quantity or the type of drug that it is. And

       then says he goes and talks to dude, being Ronald, and then that’s when the

       police swooped in, as well as a statement where he says he was jammed up

       with Ronnie and his uncle. Someone is asking who were you caught with

       in the background. Someone is yelling who’s the drug dealer and he says

       Ronnie and his uncle.




8.
              The State is seeking to introduce this jail phone [call] under two

       theories. The first is it’s a business record exception to hearsay, so the

       State argues that any hearsay contained in the phone call, there’s an

       exception which is the business record. There’s been an [argument] that

       this would be in violation of the confrontation clause.

              However, the State has provided authority to this court including a

       previous ruling made in 2016, a 2016 case by this court3 as well as State v.

       Stewart, 2009 Ohio 3411, as well as several federal cases, and State v.

       Dennison, 2013 Ohio 5535, which all stand for and hold that jail phone

       calls made are nontestimonial. Therefore, in no violation of the

       confrontation clause and thus alleviating any Bruton issues.

              The State is seeking to introduce those two snippets based on the

       authority provided to the court as well as precedent from this building. And

       thank you, judge.



3
 The state did not provide the citation to this 2016 case on the record, but the trial court
did reference a 2016 ruling in denying the motion in limine, naming the codefendants,
Davonte Nicholson and Alexander Williams. There were appeals filed by Davonte
Nicholson and Alexander Williams, codefendants in Lucas Common Pleas case No.
CR0201602818. In State v. Nicholson, 6th Dist. Lucas No. L-17-1187, 2018-Ohio-4909
and State v. Williams, 6th Dist. Lucas No. L-17-1186, 2019-Ohio-2657, neither appellant
challenged the admissibility of witness testimony regarding a phone call from Williams.
The witness called Williams, her drug dealer, to notify Williams of the victim’s
whereabouts, and agreed to detain the victim at that location. After the murder, Williams
called the witness and told her that the killing was done and if she said anything,
Williams would “get” her too.




9.
In response, Moss’s trial counsel supplemented argument in the motion in limine, noting

the case law deemed persuasive by the trial court, and stressing the danger of prejudice in

admitting Belcher’s statements.

              Mr. Luettke: Judge, I would argue that the statement that Mr.

       Belcher makes is mentioning Ronnie is an – it’s an accusatory statement.

       I – if the court sees that the jailhouse calls are a business record, which

       obviously the case law is leaning towards, I would argue that it’s highly

       prejudicial, under 403(A) that it be excluded, because the danger far

       outweighs the probative value of it. The police conducted a limited

       investigation. They moved in quickly. They have the evidence they have.

       I know Mr. Belcher was begging to get out on a bond and then this phone

       call and I’m certain shifting the blame because he wanted his folks to go

       post his bond and it’s not me, it’s all Ronnie.

              I think the dangers of misleading the jury far outweighs the

       probative value of admitting the call.

       {¶ 17} In reaching a determination regarding the recordings, the trial court noted

its own prior ruling in a separate case, stating:

              Court: Well, in addition to the references made by the State, there

       was a case in 2016 that the court handled with Davonte Nicholson and

       Alexander Williams which were codefendants in a murder case and I was




10.
       the trial judge at the time and there was a similar issue raised regarding

       some jail calls at that time.

              And the court reluctantly admitted the phone calls based on some of

       the case law that Mr. McDonald has just referred to. And the case law

       that’s been developed in Ohio and federally has indicated that jail calls are

       nontestimonial.

              I don’t necessarily agree with that, but because of the case law that

       has been developed regarding jail calls, the court is going to allow the State

       to play a limited portion of that section as it relates to any reference to the

       defendant in this case.

The trial court denied the motion in limine, but specifically noted defense counsel’s

objection at the time of denying the motion, immediately prior to the state’s introduction

of the recording into evidence, and again, prior to replaying the recording during the

jury’s deliberations.

       {¶ 18} To preserve an issue for appeal, the objection at trial must apprise a trial

court of the specific argument. (Citations omitted.) State v. Ruble, 2017-Ohio-7259, 96

N.E.3d 792, ¶ 38 (4th Dist.). Contrary to the state’s position, Moss preserved his

appellate challenge. Indeed, we are hard-pressed to find a more thorough preservation of

an issue, considering the objection asserted and noted at each stage of trial. Moss raised

the issue of hearsay, both before the trial court and on appeal, arguing the inapplicability




11.
of the business record exception to Belcher’s out-of-court statements, as well as the

prejudice posed by those statements.

       {¶ 19} In considering the argument, the trial court indicated a reluctance to admit

the jail calls, but determined case law dictated that such calls were nontestimonial, and

therefore admissible, without addressing the issue of hearsay. The authority considered

by the trial court, however, does not stand for the proposition that jail calls are

nontestimonial and, therefore, admissible regardless of content.

       {¶ 20} First, in State v. Dennison, the Tenth District Court of Appeals considered

the admissibility of a defendant’s own, recorded statements, finding the probative value

of the defendant’s statements outweighed the prejudice of the jury hearing his offensive

language and brief references to his incarceration. Dennison, 10th Dist. Franklin No.

12AP-718, 2013-Ohio-5535, ¶ 80. In Dennison, the recorded statements were

defendant’s own, offered against him at trial, and not hearsay under Evid.R. 801(D)(2).

The trial court, furthermore, weighed the potential prejudice prior to admitting the

recordings.

       {¶ 21} In State v. Stewart, the Third District considered the admissibility of video

and audio recordings of persons who did not testify, including recordings of jail calls by

the defendant’s co-conspirators. In that case, the defendant argued admission of the

recorded statements violated his right to confront witnesses, under the Sixth Amendment,

but raised no other challenge based on hearsay. The content of the statements included

talk of Stewart “cornering the market,” Stewart’s own admission that he was hiding while




12.
police conducted a search of a residence, and Stewart and a codefendant discussing their

belief they could not be charged if they were not listed on the lease. Based on the content

of these recordings, the court determined the statements were not testimonial in nature, as

no statements related to past events “potentially relevant to later criminal prosecution.”4

Stewart, 3d Dist. Seneca No. 13-08-18, 2009-Ohio-3411, ¶ 96. Unlike the facts in

Stewart, Moss argues Belcher’s recorded statements were improperly admitted hearsay,

resulting in prejudice.

       {¶ 22} Unlike the courts in Dennison and Stewart, the trial court, in this case, did

not consider the content of the jail calls before determining that Belcher’s statements

were admissible because the statements were nontestimonial. While it is true that

nontestimonial hearsay does not implicate the confrontation clause of the Sixth

Amendment, courts must still address the separate, hearsay issue. See, e.g., State v. Stahl,

111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 16, citing Crawford v.

Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Regardless of

any Confrontation Clause concerns, hearsay statements are not admissible unless they fall

within an exception to the rule. See Evid.R. 802.




4
 While we note that the statements in the present case did address past events
“potentially relevant to later criminal prosecution” and the state used these statements as
an evidentiary substitute to sustain a conviction, Moss argues the Belcher statements
were nontestimonial. Consideration of the nature of the statements, as testimonial or
nontestimonial, is not before us on appeal.




13.
       {¶ 23} Here, the prosecutor introduced out-of-court statements that included

Belcher’s response to the question, “who is the drug dealer?” Belcher’s statements

indicated Moss and his uncle were the drug dealers, the exact issue on trial. We agree

with Moss that such statements fit the definition of hearsay, as an out-of-court statement,

offered “to prove the truth of the matter asserted.” See Evid.R. 801(C). The state

acknowledged the Belcher statements as hearsay, but argued they were nevertheless

admissible as business records.

       {¶ 24} Pursuant to Evid.R. 803(6), a business record is defined as:

              A memorandum, report, record, or data compilation, in any form, of

       acts, events, or conditions, made at or near the time by, or from information

       transmitted by, a person with knowledge, if kept in the course of a regularly

       conducted business activity, and if it was the regular practice of that

       business activity to make the memorandum, report, record, or data

       compilation, all as shown by the testimony of the custodian or other

       qualified witness or as provided by Rule 901(B)(10), unless the source of

       information or the method or circumstances of preparation indicate lack of

       trustworthiness.

       {¶ 25} In arguing admissibility under Evid.R. 803(6), the state focuses on the

reliability of the recording methods, noting authority that supports authentication of jail

recordings involving a party. See State v. George, 8th Dist. Cuyahoga No. 106317,

2018-Ohio-5156 (jail call recordings admissible where defendant and her incarcerated




14.
boyfriend discussed and planned the crimes, with testimony demonstrating accurate

recording of the conversations); State v. Nixon, 11th Dist. Portage No. 2013-P-0098,

2014-Ohio-4303 (jail calls recordings of the defendant’s own statements properly

authenticated and admitted). Here, however, the jail call recording is of a non-party, and

while the state presented testimony to ensure the accuracy of the recording of that non-

party’s voice, the trial court failed to articulate any consideration of Moss’s objections to

the trustworthiness of that non-party’s statements, contained within the recording.

       {¶ 26} In State v. Eicholtz, the Second District Court of Appeals compared the

requirements for authentication of a recording versus trustworthiness of the contents of a

recording, as it related to 911 calls. State v. Eicholtz, 2d Dist. Clark No. 2012-CA-7,

2013-Ohio-302, ¶ 31. In drawing a distinction between accurate recording and the

reliability of the content, that court found the “business records” argument unpersuasive,

for purposes of admissibility of recorded, non-party statements, noting:

              “The theory underlying the business records exception to hearsay set

       forth in Evid.R. 803(6) is that records kept in the regular course of business

       are ordinarily accurate with respect to the purposes for which they are kept.

       Thus, it is reasonable to suppose that [a] 911 taping system accurately

       recorded [a declarant's] statements. * * * The 911 tape recording system

       can reasonably be expected to generate an accurate record of what is said

       by persons calling 911, but it cannot vouch for the accuracy of the

       statements made by persons calling 911.”




15.
Eicholtz at ¶ 31, fn. 5, quoting State v. Johnson, 2d Dist. Montgomery No. 15253,

1996 WL 200623, *4 (Apr. 26, 1996).

       {¶ 27} We find the same underlying theory applies in this case, where the

recording admitted contained double hearsay. While the state clearly demonstrated the

jail’s taping system accurately recorded Belcher’s statements to others, accusing Moss of

being the drug dealer, the integrity of that system in no way ensured that Belcher’s

statements were truthful or reliable. This is the exact reliability argument asserted by

Moss on appeal, which the state wholly fails to address, characterizing Moss’s authority

as pertaining strictly to hearsay issues in civil suits, and not to jail phone calls in a

criminal trial.

       {¶ 28} While Moss cites to no criminal cases involving jail calls, the state relies on

authority pertaining to jail calls that do not address the reliability issue before us. We

have previously considered this issue, however, concerning reliability and double hearsay

in criminal trials. In State v. Reynolds, we considered admissibility of medical records

that included victim statements, and noted a recording and the statements within that

recording each constituted an out-of-court statement, offered to prove the truth of the

matter asserted. See State v. Reynolds, 6th Dist. Lucas No. L-16-1080, 2018-Ohio-40,

¶ 49, appeal not allowed, 152 Ohio St.3d 1467, 2018-Ohio-1795, 97 N.E.3d 502.

Pursuant to Evid.R. 805, a court must consider admissibility as to each part of the

combined statements. Id.




16.
       {¶ 29} In Reynolds, we found the medical record admissible under the business

records exception of Evid.R. 803(6). Id. at ¶ 51. Much of the victim statements,

however, did not fall within an exception to the rule prohibiting hearsay, as the

statements were not “made for purposes of medical diagnosis or treatment”

as provided under Evid.R. 803(4). Id. at ¶ 52; ¶ 57. While we found error in the

admission of these statements, however, we determined the impact of the statement

negligible, and deemed the error harmless. Reynolds at ¶ 55-57.

       {¶ 30} The First District Court of Appeals performed a similar “hearsay within

hearsay” analysis concerning text messages in a criminal trial. In State v. Hinkston, 1st

Dist. Hamilton No. C-140448, 2015-Ohio-3851, the state introduced text messages

retrieved from a cell phone taken from the defendant. The court determined the record of

the cell phone account fell within the business record exception to hearsay, under Evid.R.

803(6). Hinkston at ¶ 17. The court further found that the content of the messages were

either not hearsay, as messages sent by the defendant, Evid.R. 801(D)(1), or not offered

for the truth of the matter asserted, Evid.R. 801(C). Id.

       {¶ 31} In this case, despite the hearsay objections raised by Moss, the state did not

present any basis for admitting the hearsay within hearsay before the trial court, relying

on the business records exception and distinguishable, inapplicable case law. Now, on

appeal, the state argues that the double hearsay was admissible based on the business

records exception, without addressing the independent basis for admission of the

statements, or based on Belcher’s unavailability, stating the record is clear “that in the




17.
trial court the state argued that the jail phone calls would meet the 804(B)(3) unavailable

witness hearsay exception.” We note, however, that the state cites to nothing in the

record to support this claim, demonstrating the state made any reasonable attempt to

secure Belcher’s live testimony at trial as required under Evid.R. 804(B), prior to any

“unavailable” determination. See, e.g., State v. Blakely, 6th Dist. Lucas No. L-03-1275,

2006-Ohio-185, ¶ 24 (witness not considered unavailable “unless the prosecution had

made reasonable efforts in good faith to secure his presence at trial” and the proffered

statement bore “sufficient indicia of reliability.”) (Citations omitted.)

       {¶ 32} Upon review of the record, we find the trial court erred in admitting

Belcher’s statements, as hearsay within hearsay, with nothing to indicate “each part of the

combined statements” was admissible under “an exception to the hearsay rule” as

required under Evid.R. 805. Finding error, we must next determine whether the

improperly admitted hearsay constitutes prejudicial error. State v. Kirk, 6th Dist. Huron

No. H-09-006, 2010-Ohio-2006, ¶ 18, citing State v. Smith, 64 Ohio App.3d 383, 387,

581 N.E.2d 1107 (6th Dist.1989).

       {¶ 33} Generally, “error in the admission of evidence is harmless if there is no

reasonable possibility that the evidence may have contributed to the accused’s

conviction,” and “in such cases there must be overwhelming evidence of the accused’s

guilt or some other indicia that the error did not contribute to the conviction.” (Citations

omitted.) State v. DeMarco, 31 Ohio St.3d 191, 195, 509 N.E.2d 1256 (1987).




18.
Considering the record in this case, there is a strong possibility that admission of

Belcher’s statements secured the conviction, and therefore, the error was not harmless.

       {¶ 34} In this case, the prosecutor highlighted Belcher’s statements as persuasive,

substantive evidence in proving Moss was the drug dealer. In addition to playing the

statements for the jury during trial, the prosecutor featured Belcher’s remarks in closing

argument, noting the federal investigation of Belcher for drug trafficking and Belcher’s

version of what happened the date of the arrest for possession and trafficking. The

prosecutor then replayed the recorded statements, over the objection of Moss’s trial

counsel, interjecting comment and highlighting how important Belcher’s statements were

to the case.

               Mr. McDonald: Okay. Now when we listen to this call – and I’ll

       play it a couple times for you because it’s important. Let’s set the context

       up where Mr. Luettke says in his closing argument that that can’t be trusted

       because it’s not under oath. Again, who cares? Who cares? He’s talking

       to his friends, family. Obviously someone familiar with Mr. Belcher. He is

       telling them what happened the day that it happened. This recording is

       from 4/18. * * *

               This is hours after it happened and he’s talking, Mark Belcher now is

       talking to friends or family, somebody who cares about him and he’s telling

       them what happened. If that’s not indicative of truthfulness, more so than

       an oath in a courtroom, I don’t know what is. This is a phone call he made




19.
      the day he gets arrested to his friends and family explaining what happened.

      And he’s going to fib about that? I don’t think so.

             And when we listen to this, it’s important to listen to what is said.

      The female on the recording says Ronnie is in jail too. He says I know.

      Listen to how Belcher’s voice changes when he’s discussing – he gets

      quiet. He’s saying, hey, look, he came bringing me, he came bringing me,

      you know he know what it was. Well, okay. Here he came bringing me,

      right. Ronnie’s in jail too. I know. He came bringing me.

             You know what it was. Right. And we know it was cocaine.

      Bringing cocaine.

             Four thousand dollars, in his car. Listen to it.

             (Recording played for the court and the jury)

             Mr. McDonald: He come bringing me. He come bringing me. You

      know what it was, right.

             (Resume playing recording)

             Mr. McDonald: He – he gives me the shit. His uncle was in there.

             (Resume playing recording)

             Mr. McDonald: He says like what is this? Right? Wrong

      quantitation.

             (Resume playing recording)




20.
             Mr. McDonald: Okay. So he walks out and dude comes back to the

      car which is exactly what the surveillance showed, right? He’s talking

      about Henry Leake comes in and he says, okay, what’s this. I can’t cut that

      up. And Leake goes back to the car and we know this happens because of

      the surveillance. We know that Leake comes back to the car and then we

      know that Ronald Moss goes back to the car. Why? Why are these

      behaviors happening on a street in Toledo in the middle of the afternoon?

      This is why. Money. Ronnie is in jail too. I know. And he explains the

      whole scenario, exactly corroborating what the detective testified to

      happened. Leake takes the drugs, he came, he came bringing the drugs to

      the car, exchange was made and he’s like, hey, man, I can’t work with this.

      Go send Ron because we’ve got to talk about this and so Ron goes to the

      car and that’s what happens. And that’s the way he explained it, almost

      identically the way the detective explained the surveillance.

             (Resumes playing recording)

             Mr. McDonald: Did you hear it, the sound like a child in the

      background? The dope dealer. Right. Let’s try that one more time.

             (Resumes playing recording.)

             Mr. McDonald: Going to play it through for a second.

             (Resumes playing recording.)




21.
              Mr. McDonald: See, they’re talking in code. What’s dude name,

       that she’s trying to get his name, right?

              (Resumes playing recording.)

              Mr. McDonald: I mean it’s right there. He says who’s your co-

       defendant? I don’t have a co-defendant. I don’t know who that – the dope

       dealer. Oh, the guy I got jammed up with, oh, it was Ronnie and his uncle.

       The dope dealer.

In the midst of deliberations, the jurors requested a replay of the recording, and the trial

court permitted the prosecutor to play the recording once more for the jurors.

       {¶ 35} Clearly, the prosecution relied on Belcher’s statements in demonstrating

Moss was “the dope dealer.” The prosecution played the recording during trial and again

during closing arguments. The prosecutor provided running commentary during his

closing argument, interpreting and explaining Belcher’s words when he spoke in “code.”

The jurors, moreover, demonstrated interest in this hearsay by asking to hear the

statements once more during deliberation. When we compare this hearsay to the totality

of the evidence presented at trial, we find a strong possibility that Belcher’s statements

contributed to the guilty verdicts. Therefore, the trial court’s error in admitting this

hearsay was prejudicial. We find Moss’s first assignment of error well-taken.

       {¶ 36} In his second assignment of error, Moss argues the state introduced

improper testimony by permitting Detective DeWitt to opine on matters he did not

observe. While we review a trial court’s decision regarding admission of evidence for an




22.
abuse of discretion, Moss did not raise any objection to this testimony during trial,

waiving all but plain error. State v. McClain, 6th Dist. Lucas No. L-10-1088, 2012-

Ohio-5264, ¶ 12; see also State v. McKee, 91 Ohio St.3d 292, 294, 744 N.E.2d 737

(2001). To find plain error we must determine that, “but for the error, the outcome of the

trial clearly would have been otherwise.” McKee at 294, citing Crim.R. 52(B); State v.

Johnson, 88 Ohio St.3d 95, 111, 723 N.E.2d 1054 (2000).

       {¶ 37} Procedurally, this issue is not moot, despite our finding of reversible error

regarding the hearsay statements of Belcher. An issue is moot where resolution of the

assigned error “is purely academic and will have no practical effect on the legal relations

between the parties.” State ex rel. Renwand v. Huron Cty. Bd. of Commrs., 6th Dist.

Huron No. H-09-011, 2010-Ohio-1477, ¶ 25, quoting Wagner v. City of Cleveland, 62

Ohio App.3d 8, 13, 574 N.E.2d 533 (8th Dist.1988). As our reversal based on trial error

results in a new trial, we address all evidentiary issues raised.

       {¶ 38} Moss objects to Detective DeWitt’s opinion testimony concerning events

he did not personally witness, explaining events depicted on the dashcam video and

stating his belief that Moss brokered a drug deal without any testimony that he observed

an exchange of drugs and money. A police officer may offer opinion, consistent with the

officer’s perception, training, and experience. McClain at ¶ 13. Opinion testimony

regarding “an ultimate issue to be decided by the trier of fact,” moreover, may be

admissible at trial. See Evid.R. 704.




23.
       {¶ 39} Here, Detective DeWitt explained the events of the date in question, based

on his participation in the surveillance and apprehension of Belcher, Leake and Moss.

His testimony, moreover, was limited to matters within his experience and observations,

as established through his testimony, detailing his training, education, and years of

experience in law enforcement. Furthermore, Detective DeWitt’s testimony was typical

officer testimony regularly admitted at trial. See, e.g., McClain at ¶ 13 (Officer properly

opined that quantity of drugs indicated sale and not personal use); State v. Blair, 2016-

Ohio-2872, 63 N.E.3d 798 (4th Dist.) (police could refute defense theory that another

individual killed the victim, opining on that individual’s poor physical strength and

uninjured hands, where victim was struck with fists.); State v. Parker, 2d Dist.

Montgomery No. 18926, 2002-Ohio-3920, ¶ 53 (experienced detective properly opined

that the wounds appeared to be gunshot wounds). Accordingly, we find no error that

rises to the level of plain error regarding Detective DeWitt’s testimony, and Moss’s

second assignment of error is not well-taken.

       {¶ 40} In his remaining assignments of error, Moss challenges both the sufficiency

and weight of the evidence. Because we sustained Moss’s first assignment of error, his

manifest-weight argument raised in his fourth assignment of error is moot. The

sufficiency argument, however, is not moot, as reversal based on improper evidence

requires a retrial, while reversal based on insufficient evidence bars a retrial. See State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 NE.2d 541 (1997), citing Tibbs v. Florida, 457

U.S. 31, 47, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). See also State v. Flannery, 1st Dist.




24.
Hamilton No. C-140426, 2015-Ohio-1360, ¶ 15 (where new trial granted based on error

in admission of evidence, sufficiency analysis must still be addressed).

       {¶ 41} In considering the sufficiency of the evidence, we consider all the evidence

presented at trial. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284,

¶ 18. We conduct our sufficiency determination apart from the review of improper

hearsay, or ordinary “trial error,” as sufficiency is a test of the state’s case against Moss,

while the hearsay determination relates only to a defect in the proceeding itself. Id.,

citing Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988),

quoting Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

Because the state properly relies on a trial court’s evidentiary rulings in deciding how to

present its case, a sufficiency review must include a review of all the evidence presented

at trial. Brewer at ¶ 19. To proceed otherwise would place the onus on the state to

“assume every ruling by the trial court on the evidence to be erroneous and marshall and

offer every bit of relevant and competent evidence[,]” a standard that is impractical and

adverse to the administration of justice. (Citations omitted.) Id.

       {¶ 42} Here, the jury convicted Moss of trafficking and possession of more than

100 grams of cocaine. The state’s theory of the case was that Moss and Leake sold the

drugs to Belcher for $4,000. In reviewing the sufficiency of the evidence, the test is not

whether the evidence is worthy of belief, but whether, if a jury finds the evidence

credible, that evidence would support a conviction as to each element of the offense

charged. (Citations omitted.) State v. Shelby, 135 N.E.3d 508, 2019, Ohio-1564, ¶ 18




25.
(6th Dist.). The sufficiency determination presents a question of law. Id., citing

Thompkins at 386.

       {¶ 43} To sustain a conviction for trafficking as charged, the evidence must

demonstrate that Moss knowingly prepared for shipment, shipped, transported, delivered,

prepared for distribution, or distributed “a controlled substance or a controlled substance

analog,” with knowledge or a reasonable belief 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(A)(2).

       {¶ 44} To sustain a conviction for possession as charged, the evidence must

demonstrate that Moss knowingly obtained, possessed, or used “a controlled substance or

a controlled substance analog.” R.C. 2925.11(A). “Possession of drugs may be actual or

constructive.” State v. Steed, 75 N.E.3d 816, 2016-Ohio-8088, ¶ 55 (6th Dist.), citing

State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976). Constructive

possession, shown by an exercise of control of an object, may be “inferred from a totality

of the evidence where sufficient evidence, in addition to proximity,” supports that

finding. Id., citing State v. Durr, 6th Dist. Sandusky No. S-97-056, 2000 WL 1033033,

*4 (July 28, 2000).

       {¶ 45} In addition to the drug charges, the jury also determined the major drug

offender specification, pursuant to R.C. 2941.1410, applied to Moss. A “major drug

offender” includes a person convicted of possessing or selling “at least one hundred

grams of cocaine[.]” R.C. 2929.01(W).




26.
       {¶ 46} In challenging the sufficiency of the evidence, Moss does not challenge the

amount of cocaine, instead arguing there was no direct evidence demonstrating he

physically possessed or sold the drugs and there was no testimony that officers observed

Leake place the $4,000 in the pickup truck’s center console. Even if no witness observed

a physical exchange of drugs and money, however, “circumstantial evidence can have the

same probative value as direct evidence.” State v. Franklin, 62 Ohio St.3d 118, 124, 580

N.E.2d 1 (1991), citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph one of the syllabus.

       {¶ 47} Here, Belcher implicated Moss as the dealer who sold him drugs, with a

street value of around $4,000. At the time, Belcher was under surveillance by the multi-

jurisdictional Task Force as a known drug trafficker. The testimony indicated over 100

grams of crack and powder cocaine near Belcher’s vehicle and $4,000 in Moss’s pickup

console, banded in a manner consistent with drug trafficking. Additionally, Moss carried

almost $1,500 in his wallet, kept in his pocket.

       {¶ 48} Officers observed Leake walk from Moss’s pickup truck to Belcher’s

vehicle, sit in the passenger seat, and then return to the pickup, followed by Moss

walking from his pickup to Belcher’s vehicle and sit in the passenger seat. Shortly

thereafter, officers observed Belcher throw a bag of drugs under the vehicle, apparently

to avoid detection. While Moss argues that Leake did not access the pickup after his

return from Belcher’s vehicle, and did not place the $4,000 in the console, the only

evidence elicited as to Leake indicated the Task Force was watching Belcher, and Leake




27.
stayed “at the side of the pickup.” Finally, Detective DeWitt indicated the console

containing $4,000 was unlocked, and while defense counsel attempted to discredit

testimony regarding the cash by arguing the console was locked and the cash belonged to

Jaknae Moss, the test for sufficiency is merely adequacy. Thompkins, 78 Ohio St.3d at

386, 678 N.E. 2d 541.

       {¶ 49} Having thoroughly reviewed the record, we find the state met its burden of

production and presented sufficient evidence as to each element of the charged offenses.

Therefore, while we reverse based on prejudicial error in permitting the introduction of

inadmissible hearsay, we find Moss’s third assignment of error not well-taken, and Moss

is merely entitled to a new trial, and not acquittal.

                                       IV. Conclusion

       {¶ 50} Finding substantial justice has not been done, we hereby reverse the

judgment of the Lucas County Common Pleas Court, General Division, and remand the

matter for a new trial. Appellee is assessed the costs of this appeal pursuant to App.R.

24.

                                                                        Judgment reversed
                                                                           and remanded.




28.
                                                                      State v. Moss
                                                                      C.A. No. L-19-1047




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Christine E. Mayle, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




29.
