[Cite as State v. Morgan, 2019-Ohio-2785.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. John W. Wise, J.
                         Plaintiff-Appellee   :       Hon. Earle E. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. 18CA121
VERNON MORGAN III                             :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Richland County
                                                  Court of Common Pleas, Case
                                                  No.2018CR579




JUDGMENT:                                         Affirmed


DATE OF JUDGMENT ENTRY:                           July 2, 2019



APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JOSEPH SNYDER                                     JOHN O'DONNELL III
Assistant Prosecutor                              10 West Newlon Place
38 South Park Street                              Mansfield, OH 44902
Mansfield, OH 44902
Richland County, Case No. 18CA121                                                          2

Gwin, P.J.

         {¶1}   Appellant Vernon Morgan, III [“Morgan”] appeals his convictions and

sentences after a jury trial in the Richland County Court of Common Pleas.

                                  Facts and Procedural History

         {¶2}   On July 16, 2018, Morgan was indicted with a two-count indictment.

Count One charged Morgan with Possession of Heroin, a felony of the third degree in

violation of R.C. 2925.11(A) and (C)(6)(e). Count Two charged Morgan with Aggravated

Possession of Drugs [cyclopropylfentanyl], a felony of the fifth-degree in violation of

R.C. 2925.11(A) and (C)(1)(a). Both Counts came with three forfeiture specifications

each under R.C. 2941.1417. The following evidence was presented during Morgan’s jury

trial.

         {¶3}   On March 4, 2018, K.B. was coming home from work. On her way, she

noticed a car in her neighbor's driveway pointed towards her house that she did not

recognize. After dark, K.B. and her boyfriend were alerted to sounds from outside. K.B.

watched an individual grab one of the solar lights in her front yard take off the solar panel

and act as he was drinking out of it. When her boyfriend told him to leave, she watched

as the man began attempting to get into their neighbor's cars. K.B. then called the police.

K.B. watched the individual walk up onto the porch of another house. She watched as

the man attempted to break into the house. K.B. called the police again to update them

on what was happening.

         {¶4}   Officer Paul Webb arrived on scene shortly after the calls were made and

located Morgan pounding on the front door of a home. Officer Webb had Morgan step

away from the porch. Morgan then began yelling and falling down. Officer Webb noticed
Richland County, Case No. 18CA121                                                        3


that Morgan had bloodshot, glassy eyes, slurred speech, and an odor of alcohol. Morgan

told Officer Webb he was at the house because someone at the residence owed him

money. The occupant of the house indicated to Officer Webb that he had no idea who

Morgan was. It was readily apparent to Officer Webb that Morgan had no idea where he

was. Due to Morgan's intoxication, Officer Webb placed him under arrest to take him to

the jail to sober up.

       {¶5}   After placing Morgan in his patrol car, Officer Webb noticed a vehicle parked

at 659 Scholl Road that was parked at an angle with only half the car in the driveway.

Given the unusual positioning of the car, Officer Webb ran the vehicle through his

computer system. He discovered that the vehicle had been stopped a month earlier and

that Morgan had been the driver. The license plates did not come back to Morgan but

rather a third person. Officer Webb spoke with the residents at the address and they had

no idea whose car it was. They indicated to Officer Webb that they wanted the car towed

from their driveway. Officer Webb approached the vehicle and shined his flashlight into

the car. Inside, Officer Webb saw two cellphones, a knife, money strewn about on the

floor of the driver and passenger sides and what he suspected to be heroin in the center

console. The money totaled $571 divided among nine or ten bundles.

       {¶6}   Officer Webb then Mirandized Morgan and asked him about the car and the

drugs. Morgan told Officer Webb that the car was his, the cellphones were his, the money

was his, but the drugs were not his. Morgan told Officer Webb that a male named “Martel”

had been driving but he did not know what his last name was or where he had gone. As

the vehicle was to be towed, Officer Webb completed an inventory of the vehicle. During
Richland County, Case No. 18CA121                                                                          4


the inventory search, Officer Webb located a name badge for Morgan from his place of

employment.

        {¶7}    The substance that was removed from the center console of Morgan’s car

was tested. It was found to be 5.26 grams of cyclopropylfentanyl and heroin. A separate

weight for the heroin and the cyclopropylfentanyl was not possible. 2T. at 217-218.1 The

package of heroin contained five individual packages of heroin. Each "chuck" of heroin

appeared to be equal in size to one another. Presuming each chunk of heroin was worth

$30, the entirety of the heroin found in Morgan's vehicle would be worth $600.

        {¶8}    The jury found Morgan guilty of both counts and one forfeiture specification

on each count. The remaining forfeiture specifications were dismissed by the state. The

trial court sentenced Morgan to thirty-six months on Count One and twelve months on

Court Two, consecutive to one another.

                                             Assignments of Error

        {¶9}    Morgan raises three Assignments of Error,

        {¶10} “I. THE TRIAL COURT ERRED TO DEFENDANT/APPELLANT'S

PREJUDICE BY FAILING TO MERGE SENTENCES OF HEROIN AND FENTANYL.

        {¶11} “II. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

        {¶12} “III. DEFENDANT/APPELLANT WAS UNFAIRLY PREJUDICED BY THE

TRIAL COURT ADMITTING QUESTIONING BY THE STATE INFERRING THAT HE

WAS A TRAFFICKER.”


        1
        For clarity sake, the transcript of the October 30, 2018 jury trial will be referred to by Volume and
Page number as “T.”
Richland County, Case No. 18CA121                                                               5


                                                    I.

       {¶13} In his First Assignment of Error, Morgan argues the offenses of Possession

of Heroin and Aggravated Possession of Drugs [cyclopropylfentanyl], should have

merged because both drugs were in the same bag and the lab provided only their

combined weight.2 Morgan did not raise this issue in the trial court.

       STANDARD OF APPELLATE REVIEW.

       {¶14} In State v. Rogers, 143 Ohio St.3d 385, 2015–Ohio–2459, 38 N.E.3d 860,

the Court held,

               An accused’s failure to raise the issue of allied offenses of similar

       import in the trial court forfeits all but plain error, and a forfeited error is not

       reversible error unless it affected the outcome of the proceeding and

       reversal is necessary to correct a manifest miscarriage of justice.

       Accordingly, an accused has the burden to demonstrate a reasonable

       probability that the convictions are for allied offenses of similar import

       committed with the same conduct and without a separate animus; absent

       that showing, the accused cannot demonstrate that the trial court’s failure

       to inquire whether the convictions merge for purposes of sentencing was

       plain error.

143 Ohio St.3d 385, ¶ 3. The Court in Rogers reaffirmed that even if an accused shows

the trial court committed plain error affecting the outcome of the proceeding, the appellate

court is not required to correct it. Id. at ¶ 23. The Supreme Court stated:



       2 We note that this issue is presently pending before the Ohio Supreme Court. See, State v.
Pendleton, Ohio Supreme Court Case No. 2018-1348. (2nd Dist. Clark Nos. 2017-CA-9 and 2017-CA-17,
2018-Ohio-3199).
Richland County, Case No. 18CA121                                                        6


             [W]e have “admonish[ed] courts to notice plain error ‘with the utmost

      caution, under exceptional circumstances and only to prevent a manifest

      miscarriage of justice.’” (Emphasis added.) Barnes at 27, 94 Ohio St.3d

      21, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d

      804 (1978), paragraph three of the syllabus.

Rogers at ¶ 23.

      ISSUE FOR APPEAL.

      Whether the trial court committed plain error affecting the outcome of the

proceedings resulting in a manifest miscarriage of justice by failing to merge the offenses

in Morgan’s case.

      {¶15} R.C. 2941.25, Multiple counts states:

             (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.

             (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.

      {¶16} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.2d 892, the

Ohio Supreme Court revised its allied-offense jurisprudence,
Richland County, Case No. 18CA121                                                     7


             1. In determining whether offenses are allied offenses of similar

      import within the meaning of R.C. 2941.25, courts must evaluate three

      separate factors-the conduct, the animus, and the import.

             2. Two or more offenses of dissimilar import exist within the meaning

      of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses

      involving separate victims or if the harm that results from each offense is

      separate and identifiable.

Ruff, at syllabus. The Court further explained,

             A trial court and the reviewing court on appeal when considering

      whether there are allied offenses that merge into a single conviction under

      R.C. 2941.25(A) must first take into account the conduct of the defendant.

      In other words, how were the offenses committed? If any of the following is

      true, the offenses cannot merge and the defendant may be convicted and

      sentenced for multiple offenses: (1) the offenses are dissimilar in import or

      significance—in other words, each offense caused separate, identifiable

      harm, (2) the offenses were committed separately, and (3) the offenses

      were committed with separate animus or motivation.

                                          ***

             An affirmative answer to any of the above will permit separate

      convictions.    The conduct, the animus, and the import must all be

      considered.

State v. Ruff, 143 Ohio St.3d 114, ¶25.
Richland County, Case No. 18CA121                                                       8


       {¶17} To be guilty of possession under R.C. 2925.11(A), the offender must

‘knowingly obtain, possess, or use a controlled substance.”

       {¶18} “The simultaneous possession of different types of controlled substances

can constitute multiple offenses under R.C. 2925.11.” State v. Delfino, 22 Ohio St.3d

270, 490 N.E.2d 884 (1986), syllabus. The Twelfth District, in State v. Woodard, 12th

Dist. Warren No. CA2016-09-084, 2017-Ohio-6941, 2017 WL 3128807, recently held:

              Possession of heroin and aggravated possession of drugs [fentanyl]

       are two separate offenses pursuant to R.C. 2925.11(C)(6) and (C)(1). Each

       possession offense required proof as to the specific drug involved and could

       not be supported by possession of a different controlled substance. * * * The

       possession of heroin or fentanyl will never support a conviction for

       possession of the other. The fact that the two controlled substances were

       found in the same baggie is of no consequence. (Emphasis added.)

Woodard at ¶ 35.

       {¶19} The Eighth District, in State v. Perry, 8th Dist. Cuyahoga No. 105501, 2018-

Ohio-487, agreed with the Twelfth District’s decision and reasoning in Woodard, and held

that, “pursuant to the allied offense framework set forth in R.C. 2941.25, the offenses of

possession of heroin and possession of fentanyl do not merge.” Perry at ¶ 34. In State

v. Stuckey, the First Disrict Court of Appeals noted,

              But most appellate districts have affirmatively held that they are not.

       As the Second Appellate District noted, where “each violation of R.C.

       2925.11 requires proof of the identity of a different drug that was possessed

       * * * ‘the legislature intended the possession of the different drug groups to
Richland County, Case No. 18CA121                                                    9

     constitute different offenses.’” State v. Huber, 2d Dist. Clark No.2010-CA-

     83, 2011-Ohio-6175, ¶ 7, quoting State v. Delfino, 22 Ohio St.3d 270, 274,

     490 N.E.2d 884 (1986). The Fourth Appellate District concluded that the

     legislature clearly intended that possession of different drug groups

     constitutes different offenses. See State v. Deckard, 2017-Ohio-8469, 100

     N.E.3d 53, ¶ 52 (4th Dist.). The Fifth Appellate District has also held that

     counts of possession of different drug groups are not of similar import. See

     State v. Rice, 5th Dist. Licking No. 2016 CR 00085, 2017-Ohio-1504, ¶ 12

     (“It would thus defeat the legislature’s intent to merge the drug possession

     offenses for different drugs into a single offense for purposes of

     sentencing.”). The Sixth Appellate District agrees. See State v. Ratliff, 6th

     Dist. Lucas No. L-16-1187, 2017-Ohio-2816, ¶ 10-11. The Eighth Appellate

     District has also found that such counts do not merge. State v. Perry, 8th

     Dist. Cuyahoga No. 105501, 2018-Ohio-487, ¶ 32-34. The Ninth Appellate

     District has also held so. See State v. Helmick, 9th Dist. Summit No. 27179,

     2014-Ohio-4187, ¶27.       The Twelfth Appellate District has likewise

     concluded that “the simultaneous possession of two types of drugs

     constitutes two separate offenses that do not merge as allied offenses of

     similar import under R.C. 2925.11.” State v. Woodard, 12th Dist. Warren

     No. CA2016-09-084, 2017-Ohio-6941, ¶ 34. The Woodard court further

     noted that the fact that “the two controlled substances were found in the

     same baggie is of no consequence” because “[e]ach possession offense

     required proof as to the specific drug involved and could not be supported
Richland County, Case No. 18CA121                                                          10


      by possession of a different controlled substance.” Id. at ¶ 35. No appellate

      district has held that counts for simultaneous possession of two different

      controlled substances are subject to merger.

1st Dist. Hamilton No. C-170285, 2018-Ohio-4435, ¶ 11.

      {¶20} Clearly, if an individual has a baggie of, for example, heroin, in his left pocket

and a baggie of fentanyl in his right pocket, he could be convicted and sentenced for each

substance. We see no reason why an individual who chooses to engage in the sale or

use of Schedule I controlled substances should escape responsibility for both Schedule I

controlled substances simply by mixing one substance into the other. To do so would

encourage those individuals to, for example, simply pour one baggie into the other if they

suspected the police were approaching.         It would further encourage individuals to

combine and sell mixtures of various Schedule I controlled substances because they can

increase the seller’s profits and increase the potency of the drugs without fear of a more

severe sentence for doing so. In other words, by combining two controlled substances,

drug traffickers could offer their potential buyers a BOGO3 or 2-for1 sale without being

sentenced for selling both Schedule I drugs. As the Ohio Supreme Court has recognized,

                 Fentanyl, a Schedule II controlled substance, is a synthetic opioid

      that is approximately 100 times more potent than morphine and 50 times

      more potent than heroin. R.C. 3719.41 (Schedule II(B)(9)); United States

      Department of Justice, Drug Enforcement Administration, Drugs of Abuse,

      A DEA Resource Guide 40 (2017), https://www.dea.gov/pr/multimedia-

      library/publications/drug_of_abuse.pdf#page=40         (accessed     Dec.    12,



      3   Buy one, Get one {free}
Richland County, Case No. 18CA121                                                   11


      2017). Fentanyl and related drugs were involved in nearly 60 percent of

      Ohio’s 4,050 overdose deaths in 2016.        Ohio Dept. of Health, News

      Release, Fentanyl, Carfentanil and Cocaine Drive Increase in Drug

      Overdose Deaths in 2016 (Aug. 30, 2017), http://www.odh.ohio.gov/-

      /media/ODH/ASSETS/Files/health/injury-prevention/ODH-News-Release--

      --2016-Ohio-Drug-Overdose-Report.pdf?la=en (accessed Dec. 12, 2017).

      And in the first two months of 2017, approximately 90 percent of

      unintentional overdose deaths in 25 Ohio counties involved fentanyl,

      fentanyl analogs or both.      Daniulaityte, Juhascik, Strayer, Sizemore,

      Harshbarger, Antonides, and Carlson, Overdose Deaths Related to

      Fentanyl and its Analogs—Ohio, January–February 2017, 66 Morbidity &

      Mortality      Weekly      Report      No.      34,     904,      905–906,

      https://www.cdc.gov/mmwr/volumes/66/wr/pdfs/mm6634a3.pdf (accessed

      Dec. 12, 2017), datum corrected in Errata: Vol. 66 No. 34, 66 Morbidity &

      Mortality        Weekly         Report         No.        38,        1030,

      https://www.cdc.gov/mmwr/volumes/66/wr/pdfs/mm6638a8.pdf (accessed

      Dec. 12, 2017) (clarifying that the number of counties was 25).

State v. Poutney, 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶2. The Court

recognized,

               To be sure, enhanced felony prosecution for possession of fentanyl

      is one weapon in the state’s arsenal in the war on drug-related crime.

Poutney, ¶3.
Richland County, Case No. 18CA121                                                       12


      {¶21} Accordingly, we find no plain error in the failure to merge Morgan’s

convictions for two separate Control I substances for sentencing.

      {¶22} Morgan’s First Assignment of Error is overruled.

                                                II.

      {¶23} In his Second Assignment of Error, Morgan argues that his trial attorney

was ineffective because he failed to file a motion to suppress the search of the

automobile.

      STANDARD OF APPELLATE REVIEW.

      {¶24} To obtain a reversal of a conviction based on ineffective assistance of

counsel, the defendant must prove (1) that counsel's performance fell below an objective

standard of reasonableness, and (2) that counsel's deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.

Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674,

693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a

court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at

699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).

      Failure to File a Motion to Suppress.

      {¶25} Trial counsel’s failure to file a suppression motion does not per se constitute

ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–Ohio–

0448; Accord, State v. Ortiz, 5th Dist. Stark No. 2015CA00098, 2016-Ohio-354, ¶56.

Counsel can only be found ineffective for failing to file a motion to suppress if, based on

the record, the motion would have been granted. State v. Lavelle, 5th Dist. No. 07 CA

130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–CA–88, 2007–Ohio–
Richland County, Case No. 18CA121                                                         13


3009, at ¶ 86. The defendant must further show that there is a reasonable probability that

the outcome would have been different if the motion had been granted or the defense

pursued. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91

L.Ed.2d 305 (1986); see, also, State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798

(2001), citing State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).

       ISSUE FOR APPEAL

       Whether there is a reasonable probability a motion to suppress the search of the

automobile would have been granted.

       Inventory search.

       {¶26} “Inventory searches involve administrative procedures conducted by law

enforcement officials and are intended to (1) protect an individual’s property while it is in

police custody, (2) protect police against claims of lost, stolen or vandalized property, and

(3) protect police from dangerous instrumentalities.” State v. Mesa, 87 Ohio St.3d 105,

108, 1999-Ohio-253, 717 N.E.2d 329, citing South Dakota v. Opperman, 428 U.S. 364,

369 (1976).    “Because inventory searches are administrative caretaking functions

unrelated to criminal investigations, the policies underlying the Fourth Amendment

warrant requirement, including the standard of probable cause, are not implicated.” Mesa

at 108, citing Opperman at 370. “Rather, the validity of an inventory search of a lawfully

impounded vehicle is judged by the Fourth Amendment’s standard of reasonableness.”

Mesa at 108.

       {¶27} In State v. Hathman, 65 Ohio St.3d 403, 604 N.E.2d 743(1992), the Ohio

Supreme Court analyzed and followed various United States Supreme Court decisions

regarding inventory searches and held:
Richland County, Case No. 18CA121                                                          14


              1. To satisfy the requirements of the Fourth Amendment to the United

       States Constitution, an inventory search of a lawfully impounded vehicle

       must be conducted in good faith and in accordance with reasonable

       standardized procedure(s) or established routine.          (South Dakota v.

       Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000; Colorado

       v. Bertine (1987), 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739; and Florida

       v. Wells (1990), 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1, followed.)

              2. If, during a valid inventory search of a lawfully impounded vehicle,

       a law-enforcement official discovers a closed container, the container may

       only be opened as part of the inventory process if there is in existence a

       standardized policy or practice specifically governing the opening of such

       containers. (Colorado v. Bertine (1987), 479 U.S. 367, 107 S.Ct. 738, 93

       L.Ed.2d 739; and Florida v. Wells (1990), 495 U.S. 1, 110 S.Ct. 1632, 109

       L.Ed.2d 1, followed.)”

Accord, State v. Greeno, 5th Dist. Morgan No. 14AP002, 2014-Ohio-4718, ¶ 18-19.

       {¶28} In the case at bar, Officer Webb approached the homeowners in whose

yard and driveway the car had been left by its occupant. 1T. at 167; 174. This was a

consensual encounter; he approached and spoke with the residents just as any member

of the public could have done. The owners of the home and driveway in which the

automobile had been parked told Officer Webb that they had no idea who owned the car

and that they wanted it towed from the driveway. 1T. at 167. Officer Webb shined a

flashlight in the interior of the car and noticed in plain view what he believed to be heroin.

1T. at 167. Morgan admitted to Officer Webb that the car and all its contents, with the
Richland County, Case No. 18CA121                                                        15


exception of the drugs, belonged to him. 1T. at 168. Morgan claimed he had been a

passenger in the car and the driver had left. 1T. at 168. Morgan was under arrest and

not able to move the car from the scene. Officer Webb testified to the procedure for

completing an inventory search of the car. 1T. at 168-169.

       {¶29} Morgan could have no reasonable expectation of privacy because he left

his car partially in a driveway and partially in a yard without permission of the

homeowners. Any member of the public could have approached the car and looked inside

through the windows. When he observed the suspected heroin, Officer Webb did not

intrude into a constitutionally protected area. The fact that Officer Webb used a flashlight

to better see into the car “trenched upon no right secured…by the Fourth Amendment.”

Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 75 L.Ed.2d 502(1983).

       {¶30} Inventory searches are a “well-defined exception to the warrant requirement

of the Fourth Amendment.” Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 741,

93 L.Ed.2d 739, 745 (1987). See, also, South Dakota v. Opperman, 109 U.S. 364, 96

S.Ct. 3092, 49 L.Ed.2d 1000(1976). In Ohio, a standard inventory search of a lawfully

impounded automobile is permissible. State v. Robinson, 58 Ohio St.2d 478, 12 O.O.3d

394, 391 N.E.2d 317(1979), syllabus. As the United State Supreme Court noted in Harris

v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067, at 1069-1070(1968):

              “It has long been settled that objects falling in the plain view of an

       officer who has a right to be in the position to have that view are subject to

       seizure and may be introduced in evidence. Ker v. California, 374 U.S. 23,

       42-43, 83 S.Ct. 1623, 10 L.Ed.2d 726, 743 (1963); United States v. Lee,
Richland County, Case No. 18CA121                                                          16

       274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Hester v. United States,

       265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

       {¶31} The drugs here involved, contained in center console fell into the plain view

of Officer Webb during the course of a lawful routine inventory of Morgan’s car, conducted

in accordance with standard police procedure.

       {¶32} As there is not a reasonable probability that a motion to suppress the search

of Morgan’s car would have been granted, trial counsel was not ineffective in failing to file

a motion to suppress on those grounds.

       {¶33}    Morgan’s Second Assignment of Error is overruled.

                                                 III.

       {¶34} In his Third Assignment of Error, Morgan argues that he was unfairly

prejudiced by the admission into evidence during his jury trial of testimony concerning the

characteristics of drug traffickers.

       STANDARD OF APPELLATE REVIEW.

       {¶35} “[A] trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the

rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d

1056 (1991). An appellate court that reviews the trial court’s admission or exclusion of

evidence must limit its review to whether the lower court abused its discretion. State v.

Finnerty, 45 Ohio St.3d 104, 107, 543 N.E.2d 1233, 1237(1989). An abuse of discretion

can be found where the reasons given by the court for its action are clearly untenable,

legally incorrect, or amount to a denial of justice, or where the judgment reaches an end

or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit
Richland County, Case No. 18CA121                                                         17

No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S.H., 9th Dist. Medina No.

13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No.2006–

CA–41, 2006–Ohio–5823, ¶54.

       ISSUE FOR APPEAL.

       Whether the trial court abused its discretion by admitting evidence of drug trafficker

characteristics.

       {¶36} In State v. Crotts, the Ohio Supreme Court explained,

              As a legal term, “prejudice” is simply “[d]amage or detriment to one’s

       legal rights or claims.” Black’s Law Dictionary (8th Ed.1999) 1218. Thus, it

       is fair to say that all relevant evidence is prejudicial. That is, evidence that

       tends to disprove a party’s rendition of the facts necessarily harms that

       party’s case. Accordingly, the rules of evidence do not attempt to bar all

       prejudicial evidence—to do so would make reaching any result extremely

       difficult. Rather, only evidence that is unfairly prejudicial is excludable.

              “‘Exclusion on the basis of unfair prejudice involves more than a

       balance of mere prejudice. If unfair prejudice simply meant prejudice,

       anything adverse to a litigant’s case would be excludable under Rule 403.

       Emphasis must be placed on the word “unfair.” Unfair prejudice is that

       quality of evidence which might result in an improper basis for a jury

       decision.   Consequently, if the evidence arouses the jury’s emotional

       sympathies, evokes a sense of horror, or appeals to an instinct to punish,

       the evidence may be unfairly prejudicial. Usually, although not always,

       unfairly prejudicial evidence appeals to the jury’s emotions rather than
Richland County, Case No. 18CA121                                                       18

       intellect.’ ” Oberlin v. Akron Gen. Med. Ctr. (2001), 91 Ohio St.3d 169, 172,

       743 N.E.2d 890, quoting Weissenberger’s Ohio Evidence (2000) 85–87,

       Section 403.3.

104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23-24.

       {¶37} We note that any error will be deemed harmless if it did not affect the

accused’s “substantial rights.” Before constitutional error can be considered harmless,

we must be able to “declare a belief that it was harmless beyond a reasonable doubt.”

United States v. Chapman, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705(1967). Where

there is no reasonable possibility that unlawful testimony contributed to a conviction, the

error is harmless and therefore will not be grounds for reversal. State v. Conway, 108

Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶78, citing Chapman; State v. Lytle, 48

Ohio St.2d 391, 358 N.E.2d 623(1976), paragraph three of the syllabus, vacated in part

on other grounds Lytle v. Ohio, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154(1978).

See also, State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶177.

       {¶38} In the case at bar, Morgan cites the following testimony as irrelevant and

inadmissible,

                Q.    Okay. And with all of those drug buys, have you become

       familiar with the general indicators of drug trafficking?

                A.    Yes, ma'am.

                Q.    And what are some of the things that you look for?

                MR. CORLEY: Objection, Your Honor. This is not a trafficking case.

                THE COURT: I think these are general questions, so I will allow it.
Richland County, Case No. 18CA121                                                      19


            A.     You asked me what I believe a normal drug trafficker -- what

     type of indicators for them?

            Q      Yes.

            A.     Large amounts of money, large amounts of drugs, numerous

     cell phones, different vehicles. They use Facebook, Twitter, any social

     media accounts, photos. There’s a lot of indicators that we investigate to

     prove that somebody is a drug dealer.

            Q.     Okay. Hypothetically, if you were to locate 5.2 grams of

     heroin on an individual, would you associate that with a personal-use

     amount?

            A.     5.2 grams?

            Q.     Yeah.

                                                 ***

            A.     So if this is heroin, there's five individual packages of heroin.

     This is indicative of what a drug dealer would carry on them. So if they were

     going to meet with somebody, say a drug user that wanted to buy a specific

     amount, $20, $40, $60 worth, they would already have the packages

     prepackaged. Say they want $20. If one of these packages is worth $20,

     he would have to hand over one package, or if they wanted $60 worth, they

     would hand over three packages. To me, this looks like something a drug

     dealer would carry on them. They're prepackaged in cellophane and also

     amounts already cut off the block that they would just have to wrap in Saran

     wrap. They're all consistently the same size. If you look at the bottom of
Richland County, Case No. 18CA121                                                         20


       the package, other than what's on the bottom, all the packages, all the

       chunks, look specifically the same way. My guess would be -- and this is

       just a guess -- that whoever packaged this was making these chunks the

       same size, and these were prepackaged amounts probably, in my opinion,

       maybe $20 or $30 worth, each package.

                                            ***

       Q.     Sure. Thank you. Let's talk a little bit about money. Are there any

       particular denominations of money that stand out to you when you're looking

       at a trafficking case?

                                                ***

       Q.     Okay.   Thank you. How about multiple cell phones found near

       narcotics? What would that tell you?

       A.     Sure. So what happens is, drug dealers are intelligent, and they

       know, as investigators, we have investigative tools that we can use to find

       out who is selling drugs, where they're selling, stuff of that nature. So the

       drug dealers like to change phones up all the time. They will go get prepaid

       phones, Cricket Wireless from Walmart or PagePlus from one of the Circle

       Ks or something of that nature, something that they can pay $50, Boost

       Mobile or something else.

                                                ***

1T. at 183-187.

       {¶39} Morgan was indicted for possession of drugs, not trafficking in drugs.

However, the Indictment also contained a forfeiture specification that was tried to the jury.
Richland County, Case No. 18CA121                                                         21


2T. at 243. In a criminal forfeiture proceeding, where the specification was included in

the charging instrument and the defendant pleads guilty to or is convicted of an offense,

“the trier of fact shall determine whether the person's property shall be forfeited.” R.C.

2981.04(B); see also R.C. 2941.1417(B) (“The trier of fact shall determine whether the

property is subject to forfeiture.”). In the case at bar, the indictment properly charged the

forfeiture specification with the drug possession charges. Thus, the state was required

to prove that the items were instrumentalities used in the commission of any of the felony

drug possession offenses. Accordingly, the testimony had relevance to the issue of

whether the cell phones and money found in Morgan’s car were used or were intended

to be used in the commission or facilitation of the drug possession offenses.

       {¶40} In the alternative, we conclude, from a review of the entire record, that any

error in the admission of the evidence would be “harmless beyond a reasonable doubt.”

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Harrington v.

California, 395 U.S. 250, 89 S .Ct. 1726, 23 L.Ed.2d 284(1969); Schnabel v. Florida, 405

U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340(1972).

       {¶41} Morgan admitted to Officer Webb that the car and all its contents, with the

exception of the drugs, belonged to him. 1T. at 168. Morgan claimed he had been a

passenger in the car and the driver had left. 1T. at 168. All items were found in plain

view inside the passenger compartment of Morgan’s car.            Accordingly, there is no

reasonable possibility that testimony contributed to Morgan’s conviction, the error is

therefore harmless and therefore will not be grounds for reversal. State v. Conway, 108

Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶78, citing Chapman; State v. Lytle, 48

Ohio St.2d 391, 358 N.E.2d 623(1976), paragraph three of the syllabus, vacated in part
Richland County, Case No. 18CA121                                                    22

on other grounds Lytle v. Ohio, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154(1978).

See also, State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶177.

      {¶42} Morgan’s Third Assignment of Error is overruled.

      {¶43} The judgment of the Richland County Court of Common Pleas is affirmed.



By Gwin, P.J.,

Wise, John, J., and

Wise, Earle, J., concur
