[Cite as State v. McGhee, 2009-Ohio-4259.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 13-08-12

        v.

COREY K. McGHEE,                                         OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 07-CR-0172

                                     Judgment Affirmed

                          Date of Decision:    August 24, 2009




APPEARANCES:

        Todd A. Workman for Appellant

        Derek W. DeVine for Appellee
Case No. 13-08-12


PRESTON, P.J.

          {¶1} Defendant-appellant, Corey K. McGhee (hereinafter “McGhee”),

appeals the Seneca County Court of Common Pleas’ judgment of conviction. We

affirm.

          {¶2} On June 21, 2007, the Seneca County Grand Jury indicted McGhee

on twelve counts, including: count one (1) of trafficking in crack cocaine in

violation of R.C. 2925.03(A)(1),(C)(4)(a), a fifth degree felony; count two (2) of

possession of crack cocaine in violation of R.C. 2925.03(A),(C)(4)(a),1 a fifth

degree felony; counts three (3), seven (7), and ten (10) of possessing criminal

tools, violations of R.C. 2923.24(A) and fifth degree felonies; counts four (4) and

five (5) of complicity to trafficking in crack cocaine, violations of R.C.

2923.03(A)(2) and R.C. 2925.03(A)(1), (C)(4)(a) and fifth degree felonies; count

(6) of possession of marijuana in violation of R.C. 2925.11(A),(C)(3)(c), a fifth

degree felony; count eight (8) of complicity to trafficking crack cocaine in

violation of R.C. 2923.03(A)(2) and R.C. 2925.03(A)(1),(C)(4)(c), a fourth degree

felony; count nine (9) of possession of cocaine in violation of R.C.

2925.11(A),(C)(4)(c), a third degree felony; count eleven (11) of participating in a

criminal gang in violation of R.C. 2923.42(A), a second degree felony; and count




1
 Count two was subsequently amended to provide the correct revised code section for drug possession,
R.C. 2925.11(A),(C)(4)(a). (See e.g. Mar. 27, 2008 Verdict Hearing Tr. at 4).


                                               -2-
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twelve (12) of engaging in a pattern of corrupt activity, with two specifications, in

violation of R.C. 2923.32(A)(1), a first degree felony. (Doc. No. 1).

       {¶3} These charges were assigned case no. 07-CR-0172. (Id.). The State

also had two other cases against McGhee, case nos. 06-CR-0222 and 07-CR-0237.

McGhee pled guilty to possession of cocaine in case no. 06-CR-0222, and the trial

court continued his bond pending a pre-sentence investigation. (Apr. 5, 2007 Plea

Hearing Tr., case no. 06-CR-0222). Subsequent to his guilty plea in case no. 06-

CR-0222 and while still on bond, McGhee fled the State of Ohio, so the State

charged McGhee for failing to appear in violation of R.C. 2937.29, R.C.

2937.99(A), which was assigned case no. 07-CR-0237. (Apr. 15, 2008 Plea of

Guilty & Sentencing Hearing Tr. at 3, 13). On April 15, 2008, McGhee pled

guilty in both cases, pursuant to a new plea agreement, and the trial court

sentenced him to twelve (12) months in case no. 06-CR-0222 and eighteen (18)

months in case no. 07-CR-0237. (Id. at 14). The trial court ordered that the terms

be served concurrent to each other, but consecutive to the sentences imposed in the

case before us, no. 07-CR-0172. (Id.); (Apr. 16, 2008 JE, Doc. No. 133).

       {¶4} With regard to case no. 07-CR-0172, a ten-day bench trial was held

on March 10-21, 2008. (Doc. No. 107). After hearing all the evidence, the trial

court found McGhee guilty on all twelve (12) counts and sentenced him to a total

of sixteen (16) years and five (5) months imprisonment. (Doc. Nos. 131, 133).



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       {¶5} On May 15, 2008, McGhee filed a notice of appeal in case no. 07-

CR-0172, which was assigned appellate case no. 13-08-12. (Doc. No. 143).

McGhee also filed notices of appeal with regard to case nos. 06-CR-0222 and 07-

CR-0237, originally assigned appellate case nos. 13-08-11 and 13-08-13

respectively; however, this Court dismissed these two appellate cases following

appointed counsel’s filing of an Ander’s brief. However, with respect to case no.

07-CR-0172, appellate case no. 13-08-12, this Court found that there were

possible appealable issues. As a result, new appellate counsel was appointed to

submit an appeal in case no. 07-CR-0172 (appellate case no. 13-08-12), which is

the subject of this present appeal.

       {¶6} McGhee now appeals his convictions in case no. 07-CR-0172

asserting three assignments of error for our review. We elect to address McGhee’s

assignments of error out of the order they appear in his brief to this Court.

                       ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT ERRED IN NOT FINDING
       INSUFFICIENT  EVIDENCE    TO   SUPPORT   THE
       CONVICTIONS AND FURTHER ERRED WHEN IT FOUND
       APPELLANT GUILTY AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE.

       {¶7} In his third assignment of error, McGhee argues that his convictions

were not supported by sufficient evidence and were against the manifest weight of

the evidence. McGhee alleges that the State failed to present sufficient evidence



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Case No. 13-08-12


on specific elements of each offense.         We will address McGhee’s specific

arguments.

       {¶8} As an initial matter, McGhee failed to move for a Crim.R. 29(A)

motion for acquittal; and therefore, he has waived all but plain error with regard to

the sufficiency of the evidence. (Mar. 10-21, 2008 TR. at 1764, 1781-82); State v.

Robinson, 177 Ohio App.3d 560, 2008-Ohio-4160, 895 N.E.2d 262, ¶18, citations

omitted. We recognize plain error “‘with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.’” State v.

Landrum (1990), 53 Ohio St.3d 107, 110, 559 N.E.2d 710, quoting State v. Long

(1978) 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus. Under

the plain error standard, the appellant must demonstrate that the outcome of his

trial would clearly have been different but for the trial court’s errors. State v.

Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043, citing State v.

Moreland (1990), 50 Ohio St.3d 58, 552 N.E.2d 894.

       {¶9} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘[weigh] the evidence and all reasonable inferences, consider the credibility of

witnesses and [determine] whether in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.’” State v. Thompkins



                                        -5-
Case No. 13-08-12


(1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting State v. Martin (1983),

20 Ohio App.3d 172, 175, 485 N.E.2d 717. A reviewing court must, however,

allow the trier of fact appropriate discretion on matters relating to the weight of the

evidence and the credibility of the witnesses. State v. DeHass (1967), 10 Ohio

St.2d 230, 231, 227 N.E.2d 212.

       {¶10} With regard to counts one through three, McGhee argues that the

State failed to present evidence linking him to the Fostoria Hotel room where a

confidential informant (“C.I.”) purchased drugs. Count one charged McGhee with

trafficking in crack cocaine in violation of R.C. 2925.03(A)(1),(C)(4)(a); count

two charged McGhee with possession of crack cocaine in violation of R.C.

2925.11; and count three charged McGhee with possessing criminal tools in

violation of R.C. 2923.24(A). (Doc. No. 1).            R.C. 2925.03(A)(1),(C)(4)(a)

provides:

       (A) No person shall knowingly do any of the following:

       (1) Sell or offer to sell a controlled substance;

       (C) Whoever violates division (A) of this section is guilty of one
       of the following:

       (4) If the drug involved in the violation is cocaine or a
       compound, mixture, preparation, or substance containing
       cocaine, whoever violates division (A) of this section is guilty of
       trafficking in cocaine. The penalty for the offense shall be
       determined as follows:




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Case No. 13-08-12


       (a) Except as otherwise provided in division (C)(4)(b), (c), (d),
       (e), (f), or (g) of this section, trafficking in cocaine is a felony of
       the fifth degree, and division (C) of section 2929.13 of the
       Revised Code applies in determining whether to impose a prison
       term on the offender.

R.C. 2925.11 provides, in pertinent part:

       (A) No person shall knowingly obtain, possess, or use a
       controlled substance.

       (C) Whoever violates division (A) of this section is guilty of one
       of the following:

       (4) If the drug involved in the violation is cocaine or a
       compound, mixture, preparation, or substance containing
       cocaine, whoever violates division (A) of this section is guilty of
       possession of cocaine. The penalty for the offense shall be
       determined as follows:

       (a) Except as otherwise provided in division (C)(4)(b), (c), (d),
       (e), or (f) of this section, possession of cocaine is a felony of the
       fifth degree, and division (B) of section 2929.13 of the Revised
       Code applies in determining whether to impose a prison term on
       the offender.

R.C. 2923.24(A) provides: “[n]o person shall possess or have under the person’s

control any substance, device, instrument, or article, with purpose to use it

criminally.”

       {¶11} Counts one through three stemmed from a C.I.’s controlled purchase

of crack cocaine from McGhee on March 2, 2005 and a subsequent search of the

residence where the controlled purchase occurred. (Bill of Particulars, Doc. No.

16). At trial, C.I. Scott Moyers testified that he purchased forty dollars ($40)



                                        -7-
Case No. 13-08-12


worth of crack cocaine from McGhee, a.k.a. “C-Dog,” in room five (5) of the

Fostoria Motel. (Mar. 10-21, 2008 Tr. at 686-88, 690-91). Moyers identified

State’s exhibit 23 as a photograph of the Fostoria Motel where he purchased the

crack cocaine from McGhee and State’s exhibit 6 as the crack cocaine that he

purchased from McGhee at that location. (Id. at 688); (State’s Exs. 6, 9, 23).

Detective Don Joseph testified that he maintained surveillance during the

controlled drug purchase at the Fostoria Motel. (Mar. 10-21, 2008 Tr. at 1163-65).

Two other law enforcement officers also testified that McGhee was in room five

of the Fostoria Motel the day after the controlled buy when they executed the

search warrant. (Id. at 1095-96, 1450, 1506, 1512). Accordingly, we are not

persuaded that the State failed to produce evidence linking McGhee to the Fostoria

Motel; and therefore, we cannot conclude that his conviction is against the

manifest weight of the evidence for this purported reason.

      {¶12} With regard to counts four and five, McGhee argues that: the State

failed to present evidence that he resided at the home of James Stateler; a C.I.

testified that he had no knowledge of where Ms. Engler obtained the drugs he

purchased from her; and that Ms. Engler testified that McGhee had no knowledge

that she intended to resell the drugs and testified that she did not conspire with

him. We disagree.




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       {¶13} Counts four and five charged McGhee with complicity to trafficking

in   crack    cocaine    in   violation    of    R.C.    2923.03(A)(2)   and   R.C.

2925.03(A)(1),(C)(4)(a) for knowingly aiding or abetting Luwana Engler and

Robert E. Connor in selling crack cocaine. (Doc. No. 1). R.C. 2923.03(A)(2)

provides: “[n]o person, acting with the kind of culpability required for the

commission of an offense, shall * * * (1) [s]olicit or procure another to commit the

offense[.]”

       {¶14} At trial, Engler testified, in pertinent part:

       Q: Do you recall a specific occasion where you took a person you
       knew as Charlie over to the Stadium Drive residence?
       ***
       A: Yes. * * *
       Q: Do you remember what the -- whose residence that was?
       A: It’s Jamie Stateler’s residence.
       Q: And who lived with James Stateler at that time?
       A: Uhm, Corey McGhee was staying upstairs.
       Q: And where was he specifically staying?
       A: Upstairs in the first bedroom to the left.
       Q: Do you remember how that happened that you went over on
       that particular day, December 16, 2005.
       A: Charlie showed up, wanted something and I called him and
       he told me to come on.
       Q: When you say he wanted something, what do you mean?
       A: He wanted some crack cocaine.
       Q: Did he say how much crack cocaine he wanted?
       A: I can’t really recall right offhand right now, but usually
       Charlie wanted 50 or a 100 at a time.
       Q: So what did you do when he told you that?
       A: I called Corey.
       ***
       Q: When you called that number on December 16, 2005, what
       did you say to the defendant?


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      A: I just told him I had somebody that wanted some stuff.
      Q: And what was his response?
      A: He said -- he said, “Well, come on through.”
      Q: Okay. What does that mean to you?
      A: That means I know -- I knew where he was. He told me to
      come on, which meant just drive on over.
      ***
      Q: And what happened when you arrived at the Stadium Drive
      residence?
      ***
      A: Then I went up the stairs and went in and Corey gave me
      what I paid him for.
      ***
      Q: What happened once you entered into this bedroom you
      referred to?
      A: Uhm, I gave Corey the money and he gave me the dope and I
      said “Thank you” and left.

(Mar. 17, 2009 Tr. at 913-18). According to Engler’s testimony, McGhee was

staying in one of Stateler’s upstairs bedrooms, and thus, the State presented

evidence that McGhee was living with Stateler.

      {¶15} Although C.I. Charles Roberts—who purchased drugs from Engler

on December 16, 2005—never saw the person who sold the drugs to Engler, he

did testify that Engler took him to a location on Stadium Drive where she stated

that she could purchase some crack cocaine for him. (Mar. 10-21, 2008 Tr. at 705-

06, 710, 712-13, 794); (State’s Ex. 54). Roberts further testified that: he gave

Engler $100; Engler went into the residence on Stadium Drive, returned, and gave

him crack cocaine. (Id. at 716-18). Roberts further testified that an individual

named “C-Dog” lived at the Stadium Drive residence. (Id. at 721). According to



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Case No. 13-08-12


Engler, McGhee’s nickname was “C-Dog.” (Id. at 915). Engler did admit on

cross-examination that McGhee did not have knowledge of her intent to sell the

crack cocaine to Roberts and did not conspire with her to do so. (Id. at 965, 968).

However, on direct examination, Engler testified that, when she called to get the

drugs from McGhee, she “told him that [she] had somebody that wanted some

stuff,” and McGhee responded “[w]ell, come on through.” (Id. at 915). Engler

also testified that when she purchased the crack cocaine from McGhee, she

“purchased two different purchases of crack cocaine: one for 50 and one for 40,”

because she wanted $40 dollars worth of crack for herself. (Id. at 918). Engler

further testified about the people she brought to McGhee during 2005 and 2006 for

drug purchases:

      Q: How often would that happen back in 2004, 2005?
      A: Uhm, several times a week.
      Q: When you say several times?
      A: Three, four times a week, just depending on what I was doing
      and who showed up.
      Q: Every week?
      A: Hm-hmm.
      Q: During 2004 and five?
      A: I don’t know about 2004, but 2005 that sounds about right.
      Q: Okay. How about 2006?
      A: 2006, I was even better.
      Q: When you say “even better” what --
      A: Even better. We had people that would come, like, seven
      days a week.

(Id. at 923-24). With regard to January 4, 2006, Engler testified that she called C-

Dog and “told him that I had somebody who wanted a bill’s worth and he would


                                       - 11 -
Case No. 13-08-12


be back at such and such a time,” and McGhee told her that he would have the

drugs ready. (Id. at 926-27).   Engler also testified concerning the criminal

enterprise between her and McGhee as follows:

      Q: * * * As part of the -- your case, Ms. Engler, were you
      convicted of four counts of Trafficking in Cocaine?
      A: That would be correct.
      Q: And you were also convicted of Engaging in a Pattern of
      Corrupt Activity, correct?
      A: That’s correct.
      Q: Okay. With Robert Connor, Darrion Stewart, Alexa Johnson,
      James Burris, and Corey McGhee as associates as part of an
      enterprise, correct?
      A: That’s correct.
      ***
      Q: Did you have occasion to have personal knowledge that
      Corey McGhee had contact and distributed drugs to other
      persons in the City of Fostoria?
      A: Yes, he would have them come to my house.
      Q: Could you explain what you --
      A: Yes. He was at my house, you know, stopping by to see if we
      needed anything or just stopping by to chill. When a call came
      in, he would tell them where he was at, come on, which I
      dutifully charged him for.
      ***
      Q: And he would sell crack cocaine in your presence to these
      persons?
      A: Yes.
      ***
      Q: You mentioned that you would charge Mr. McGhee --
      ***
      A: * * * I would tell him -- remind him to tell them that they had
      to give up some for the house after they bought, because, you
      know, they’re making my house hot. You couldn’t just have
      them come in there like that, taking their stuff and leaving.
      Q: What would you charge him, cash or drugs?
      A: No. He would have them break off some of their -- what they
      just bought. And if they only bought like 20 then he would


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Case No. 13-08-12


       throw, because if they had to take two hits out of a 20, they were
       pretty much screwed. They might as well just not came and
       bought.
       Q: How much would that be, $20 each time a transaction
       occurred?
       A: No. They only have to have a hit for the house and a hit for
       the hookup.
       ***
       Q: And what’s that mean, “a hit for the house”?
       A: That means they have to break off a hit for one of us in the
       house, and then they have to break off a hit for the hookup.
       Q: And would that be a piece of crack cocaine?
       A: Yes.
       Q: What would happen to that piece of crack cocaine--
       A: * * * We probably smoked it.
       Q: How about the piece for the hookup?
       A: See, one of us would take one and one would take the other.
       We shared.
       Q: When you say “one of us” who are you referring to?
       A: My fiancé.

(Id. at 937-40).

       {¶16} Robert Conner, likewise, testified about taking the C.I. to purchase

crack cocaine at the Stadium Drive residence in December 2005. (Id. at 857);

(State’s Ex. 54). Conner testified as follows:

       Q: Do you remember one occasion, Mr. Connor, back on
       December 16, 2005, excuse me, December of 2005 of going to a
       431 Stadium Drive residence?
       A: Yes.
       Q: Would you tell us how that came about?
       A: Uhm, a colored guy named Charlie came to the house looking
       to buy -- he was a regular that like to come by and hang out at
       the house and smoke with us.
       Q: What was he looking to buy on December 20, 2005, do you
       remember?
       A: Uhm, I think it was like $90 worth, just crack cocaine.


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Case No. 13-08-12


       Q: And okay. And where were you when this --
       A: At the house.
       Q: Which one?
       A: South Main Street.
       Q: And what happened?
       A: Well, uhm, he promised that we -- he was gonna give us a
       little bit if we hooked him up. I was like, okay. So we headed
       down to the Stadium Drive. I went in, bought it, brought it back
       out to him and that was the deal.
       Q: So that was an occasion where you were with Charlie
       yourself?
       A: Yeah, I believe so. I remember it two times I was with him,
       one I rode with him and one I went in and got the stuff.
       Q: Who went in and got the stuff the other time?
       A: I think Luwana did.
       ***
       Q: What did you do when you went back out to see Charlie?
       A: He kind of argued with me and tried to say that this ain’t
       what I wanted, this should have been more than that. I says,
       well, this is what he gave me. He took it and I got in, and he was
       suppose to give me some and he didn’t because he said he
       thought I shorted him blah, blah. And then he dropped me off
       back at the house.

(Id. at 856-60).

       {¶17} After reviewing the testimony, we cannot conclude that the State

failed to present evidence on the issues cited by McGhee. The evidence, viewed

as a whole, demonstrates that McGhee knowingly aided or abetted both Engler

and Conner in selling crack cocaine to the C.I. Therefore, we are not persuaded

that McGhee’s convictions on counts four and five were against the manifest

weight of the evidence.




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Case No. 13-08-12


       {¶18} With regard to counts eight through ten, McGhee argues that the

State failed to present evidence that: he resided at Kim Martin’s home, where the

events took place; the contraband was found in his vicinity; and that finger print

evidence tied him to the contraband. Counts eight through ten stemmed from

McGhee’s knowingly aiding or abetting Engler in selling crack cocaine on or

about January 4, 2006. (Doc. No. 1).               Count eight charged McGhee with

complicity to trafficking in crack cocaine; count nine charged McGhee with

possession of crack cocaine; and count ten charged McGhee with possessing

criminal tools, to wit: a cell phone. (Id.).

       {¶19} Possession is defined as “having control over a thing or substance,

but may not be inferred solely from mere access to the thing or substance through

ownership or occupation of the premises upon which the thing or substance is

found.” R.C. 2925.01(K). However, “[p]ossession of drugs can be either actual or

constructive. State v. Pope, 3d Dist. No. 9-06-61, 2007-Ohio-5485, ¶19, citing

State v. Cooper, 3d Dist. No. 9-06-49, 2007-Ohio-4937, ¶25; State v. Edwards, 5th

Dist. No. 2004-CA-00060, 2004-Ohio-6139, ¶10. An individual has constructive

possession “if he is able to exercise domination and control over an item, even if

the individual does not have immediate physical possession of it.” Pope, 2007-

Ohio-5485, at ¶19, citing Cooper, 2007-Ohio-4937, at ¶25 (emphasis added);

Edwards, 2004-Ohio-6139, at ¶10.               “All that is required for constructive



                                          - 15 -
Case No. 13-08-12


possession is some measure of dominion or control over the drugs in question,

beyond mere access to them.” State v. Norman, 10th Dist. No. 03AP-298, 2003-

Ohio-7038, ¶31, citations omitted (emphasis added). “[D]ominion and control

may be proven by circumstantial evidence alone. State v. Stewart, 3d Dist. No. 13-

08-8, 2009-Ohio-3411, ¶51, citing State v. Trembly (2000), 137 Ohio App.3d 134,

141, 738 N.E.2d 93.

      {¶20} Engler testified regarding the January 4, 2006 controlled drug

purchase as follows:

      Q: Approximately two weeks after you sent Bob out to see Corey
      McGhee when he was at James Stateler’s residence, did you
      have occasion to meet with Charlie again and Charlie wanted to
      get some more crack cocaine?
      A: Are you referring to January?
      Q: Yeah, January 4, 2006?
      A: Yes. He came and had me call ahead of time. He said he was
      dropping off his female that was with him -- I think he said it
      was his girlfriend or his wife -- had to drop her off at her sister’s
      for a card game, and that he would be back. But he wanted the
      stuff ready. So I called ahead.
      Q: So who did you call ahead to?
      A: I called C-dog.
      ***
      Q: And what did you tell him?
      A: I told him I had somebody who wanted a bill’s worth and he
      would be back at such and such a time. Please have it, you know
      -- could he do it, have it ready.
      Q: And what was his response?
      A: And he said he would have it ready.
      Q: And, again, what were you expecting out of this for arranging
      this transaction?
      A: Uhm, I would have gotten a free 20 right off the top and then
      Charlie has to pay me, too.


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Case No. 13-08-12


      Q: When you say a “free 20” is that a 20-piece of something?
      A: Yes.
      Q: Of what?
      A: It’s a 20-piece of crack cocaine.
      Q: What happened after you had this conversation with the
      defendant on the phone?
      A: Uhm, we hung up. When Charlie left he was a little late
      getting back, and he was really wired. And he did not have all
      his cash.
      Q: So what happened next?
      A: I had to fill in the gap for him, which really made me mad.
      Q: So where did you go on this occasion?
      A: We went to Maple Street.
      Q: And who lived at Maple Street?
      A: Kim Martin.
      ***
      Q: And how was it that you were gonna go over to that location?
      A: Because I knew that’s where he’d went because Kim had
      been letting him use the car.
      Q: Who is he that you’re referring to?
      A: C-Dog.
      Q: The defendant in this case?
      A: Yes.
      Q: And how did you get over to that residence?
      A: Charlie drove after he wanted to make 20 million pit stops.
      Q: What happened when you arrived there?
      A: Uhm, C-Dog was acting a little paranoid. They didn’t want
      to answer the door, then finally answered the door and he didn’t
      have nothing cooked, so it was not good.
      ***
      Q: So what did you do?
      A: I hollered at him and waved the money at him. He took his
      sweet time, but that’s beside the point.
      ***
      Q: Okay. And where was he cooking it at?
      A: He had to go back out to the kitchen to use the microwave.
      **
      Q: Who was doing that?
      A: C-Dog.
      Q: The defendant?


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Case No. 13-08-12


      A: Hm-hmm.
      Q: And you saw him doing it?
      A: I saw him start it. I saw him finish it. In between, I had to go
      to the door and tell Charlie to go back to the car, quit knocking
      on the door.
      ***
      Q: How much, total, did you give the defendant?
      A: A hundred dollars.
      Q: What did you get in return for that $100?
      A: My share, because 50 of it was mine that I paid for, the 20 off
      the top, plus I made him give me extra for having to wait.

(Id. at 926-31). Engler also identified State’s exhibit 94 as a photograph of Kim

Martin’s house where she took the C.I. to purchase crack cocaine from McGhee.

(Id. at 932-33); (State’s Ex. 94). Thus, contrary to McGhee’s assertions, the State

did present evidence that he was selling crack cocaine at Kim Martin’s house.

      {¶21} With regard to the contraband found at Martin’s house, Detective

Boyer testified that they executed a search warrant at 551 Maple Street within

hours of the C.I.’s controlled purchase of crack cocaine at that residence. (Tr. at

106-07); (State’s Ex. 94). When the warrant was executed, several people were

located within the residence, including: McGhee, Ryan Johnson, John White, and

Kim Martin. (Id. at 108). Two others, Nina Charleton and Rachelle Johnson, had

just left the house and were entering their cars when police approached the house.

(Id.). Boyer testified that: Ryan Johnson was found in the basement; John White

was in the living room; Kim Martin was in his upstairs bedroom; and the residence

was owned by Kim Martin. (Id. at 108-09). Boyer then identified several items or



                                      - 18 -
Case No. 13-08-12


photographs of items seized during the search, including: a small sealed plastic

baggie of white powder that was found on the front living room floor (State’s Ex.

78); a sealed plastic bag containing $4 that was found on the living room floor

(State’s Ex. 79); a large sandwich bag of rock-like substance found on the living

room floor (State’s Ex. 80); small baggies of rock-like substance found on John

White (State’s Ex. 81); sandwich baggies containing white residue found on

McGhee (State’s Ex. 82); a large bag of white powder of suspected cocaine found

on the couch in the dining room or living room area of the first floor (State’s Ex.

83); a plastic bag containing $1,541 found lying on the same couch (State’s Ex.

84); a Nokia cell phone, phone number 419-619-3540, found on the same couch

(State’s Ex. 85); a suspected crack pipe found on the same couch (State’s Ex. 86);

a cell phone, phone number 419-464-5667, found on a living room chair (State’s

Ex. 88); a Bearcat scanner found in the living room next to the T.V. (State’s Ex.

89); and a small sealed bag containing chore boy found on the floor next to the

recliner in the living room (State’s Ex. 90). (Id. at 109-12).

       {¶22} Boyer further testified that State’s exhibit 85—the cell phone, phone

number 419-619-3540—was found lying on the couch right next to the U.S.

currency and the powder cocaine. (Id. at 112). Boyer confirmed that Engler used

this same phone number to purchase drugs from McGhee just hours before the

search warrant was executed. (Id. at 113). Boyer also testified that, when law



                                        - 19 -
Case No. 13-08-12


enforcement entered the residence, McGhee was only wearing one “Dickies boot”

on his left foot and nothing on his right foot. (Id. at 116, 122); (State’s Exs. 95-

97). Boyer further testified that a boot matching that worn by McGhee was found

“in front of the location where the couch had the cocaine, cell phone, crack pipe,

and lighter, and currency.” (Id. at 123); (State’s Exs. 98-100, 107-08).

Additionally, Boyer testified that law enforcement identified the marked funds

they had issued to C.I. Roberts to make the controlled purchase within the $1,541

found on the couch next to McGhee’s cell phone and shoe. (Id. at 118); (State’s

Exs. 84, 93).

       {¶23} In addition to this evidence, Nina Charleton testified that McGhee

was sitting on the couch where cocaine, cell phone, and currency were found. (Tr.

at 804-07). Charleton also testified that McGhee was in possession of a baggie of

cocaine, a cell phone, and money earlier that evening. (Id. at 804-05). Lastly,

Charleton testified that McGhee made two sales of crack cocaine at the residence

in her presence, and, at one point, the cocaine was on the couch next to McGhee.

(Id. at 803-04).

       {¶24} With regard to the criminal tools conviction, Charleton testified that

McGhee was receiving phone calls that evening, and Engler testified that she

called McGhee’s cell phone to purchase drugs. (Tr. at 803-07, 943).




                                       - 20 -
Case No. 13-08-12


        {¶25} Viewing all of this evidence, we cannot conclude that the State

failed to present evidence that McGhee had, at least, constructive possession of the

drugs. The testimony established that the cocaine was found on the living room

couch next to McGhee’s cell phone, cash, and shoe. This was evidence of “some

measure of dominion or control over the drugs in question” sufficient to find that

McGhee had constructive possession. Norman, 2003-Ohio-7038, at ¶31, citations

omitted. Aside from that, Charleton testified that McGhee had actual possession

of the drugs earlier that day. (Id. at 804-05). That the State failed to present

fingerprint evidence is of no consequence. Accordingly, we cannot conclude that

the trial court’s judgment of conviction on these counts was against the manifest

weight of the evidence.

        {¶26} Finally, with regard to counts eleven and twelve, McGhee argues

that the State failed to present evidence of any “direct relationship” between the

other co-defendants and him. We again disagree.

        {¶27} Count eleven charged McGhee with participating in a criminal gang

in violation of R.C. 2923.42(A),2 which provided:

        No person who actively participates in a criminal gang, with
        knowledge that the criminal gang engages in or has engaged in a
        pattern of criminal gang activity, shall purposely promote,
        further, or assist any criminal conduct, as defined in division (C)
        of section 2923.41 of the Revised Code, or shall purposely


2
 This statute, along with R.C. 2923.41, was amended subsequent to McGhee’s offenses and indictment.
(H.B. 241, eff. 7-1-07).


                                              - 21 -
Case No. 13-08-12


      commit or engage in any act that constitutes criminal conduct, as
      defined in division (C) of section 2923.41 of the Revised Code.

(H.B. 2, eff. 1-1-99); (Doc. No. 1). R.C. 2923.41 provided, in pertinent part, the

following definitions for purposes of R.C. 2923.42:

      (A) “Criminal gang” means an ongoing formal or informal
      organization, association, or group of three or more persons to
      which all of the following apply:
      (1) It has as one of its primary activities the commission of one
      or more of the offenses listed in division (B) of this section.
      (2) It has a common name or one or more common, identifying
      signs, symbols, or colors.
      (3) The persons in the organization, association, or group
      individually or collectively engage in or have engaged in a
      pattern of criminal gang activity.

      (B)(1) “Pattern of criminal gang activity” means, subject to
      division (B)(2) of this section, that persons in the criminal gang
      have committed, attempted to commit, conspired to commit,
      been complicitors in the commission of, or solicited, coerced, or
      intimidated another to commit, attempt to commit, conspire to
      commit, or be in complicity in the commission of two or more of
      any of the following offenses:

      (a) A felony or an act committed by a juvenile that would be a
      felony if committed by an adult;
      (b) An offense of violence or an act committed by a juvenile that
      would be an offense of violence if committed by an adult;
      (c) A violation of section 2907.04, 2909.06, 2911.211, 2917.04,
      2919.23, or 2919.24 of the Revised Code, section 2921.04 or
      2923.16 of the Revised Code, section 2925.03 of the Revised Code
      if the offense is trafficking in marijuana, or section 2927.12 of
      the Revised Code.

      (2) There is a “pattern of criminal gang activity” if all of the
      following apply with respect to the offenses that are listed in
      division (B)(1)(a), (b), or (c) of this section and that persons in
      the criminal gang committed, attempted to commit, conspired to


                                      - 22 -
Case No. 13-08-12


      commit, were in complicity in committing, or solicited, coerced,
      or intimidated another to commit, attempt to commit, conspire
      to commit, or be in complicity in committing:
      (a) At least one of the two or more offenses is a felony.
      (b) At least one of those two or more offenses occurs on or after
      the effective date of this section.
      (c) The last of those two or more offenses occurs within five
      years after at least one of those offenses.
      (d) The two or more offenses are committed on separate
      occasions or by two or more persons.

      (C) “Criminal conduct” means the commission of, an attempt to
      commit, a conspiracy to commit, complicity in the commission
      of, or solicitation, coercion, or intimidation of another to
      commit, attempt to commit, conspire to commit, or be in
      complicity in the commission of an offense listed in division
      (B)(1)(a), (b), or (c) of this section or an act that is committed by
      a juvenile and that would be an offense, an attempt to commit an
      offense, a conspiracy to commit an offense, complicity in the
      commission of, or solicitation, coercion, or intimidation of
      another to commit, attempt to commit, conspire to commit, or be
      in complicity in the commission of an offense listed in division
      (B)(1)(a), (b), or (c) of this section if committed by an adult.

(H.B. 2, eff. 1-1-99). Count twelve charged McGhee with engaging in a pattern of

corrupt activity in violation of R.C. 2923.32(A)(1), which provides:

      (A)(1) No person employed by, or associated with, any enterprise
      shall conduct or participate in, directly or indirectly, the affairs
      of the enterprise through a pattern of corrupt activity or the
      collection of an unlawful debt.

(Doc. No. 1).

      {¶28} McGhee was convicted in count eleven for his role in selling crack

cocaine as a member of the “Gear Gang Crips” gang. Gregory Green testified that

he was convicted of participating in a criminal gang and engaging in a pattern of


                                      - 23 -
Case No. 13-08-12


corrupt activity. (Tr. at 1313). Green testified that he knew McGhee as “C-Dog,”

and that he first met him in 2005 when he was released from jail. (Id. at 1314-15).

Green testified that he knew McGhee because of their mutual affiliation with the

Gear Gang Crips gang based out of the west side of Toledo, Ohio. (Id. at 1315).

Green testified that McGhee was an “OG” ranked member of the Gear Gang

Crips, and that “OG” meant he was one of the original gang members. (Id. at

1316). Green testified that he came from Toledo to sell crack cocaine, powder

cocaine, and marijuana in Fostoria, Ohio, and that he had witnessed McGhee

selling crack cocaine about ten times. (Id. at 1314, 1318-19).        Green further

testified that McGhee affiliated with the same persons for whom he was convicted

on his RICO charge, including: James Burris, Shane McDuffey, and Darrion

Stewart. (Id. at 1320, 1327). On cross-examination, Green admitted that he never

saw McGhee initiated into the gang, but that he has “seen him around a lot with

affiliated gang members. And you a - - a gang member not gonna go - - allowing

you to hang around them if you’re not in the gang * * *.” (Id. at 1325).

       {¶29} Leslee Delarosa testified that Aaron Hoskins, Marquette Dean,

Darrion Stewart (a.k.a. “D-Train”), Christopher Kincade (a.k.a. “Trub”), Shane

McDuffey, Derrick Noles, Gregory Green, Michael Thomas (a.k.a. “Mike-Mike”),

William Lamar Jackson, Ronald Johnson (a.k.a. “Poochie”), Anthony Duffey

(a.k.a. “Little Ant”), James Burris (a.k.a. “Dubb” or “Double Breasted”), were all



                                       - 24 -
Case No. 13-08-12


members of the Toledo-based Gear Gang Crips that brought drugs to Fostoria

from Toledo to sell. (Id. at 1527-64). Likewise, Alexa Johnson testified that

Stewart would go with Burris to Toledo to purchase crack cocaine to sell in

Fostoria. (Tr. at 1631). Johnson testified that both Stewart and Burris provided

McGhee with crack cocaine, and McGhee sold some pieces of this crack cocaine

to other individuals. (Id. at 1628-31).         Johnson also confirmed Delarosa’s

testimony that many of these individuals dealing crack cocaine were members of

the Gear Gang Crips gang. (Id. at 1640, 1643, 1645, 1647, 1651-52, 1654, 1656-

57, 1661). Johnson further testified that Stewart posted bond for McGhee when he

was arrested. (Id. at 1659-60). In addition, McGhee’s cell phone records indicated

a strong affiliation with several other drug-dealing Gear Gang Crips members. (Tr.

at 545-80). In fact, from December 6, 2005 to February 28, 2006, McGhee called:

Stewart 272 times; Burris 104 times; McDuffey 86 times; White 10 times; Jackson

6 times; and Kincade 5 times. (Id. at 580-81); (State’s Ex. 396). Furthermore,

McGhee actually called Stewart while he was in the Seneca County Jail and, in

March 2006, told law enforcement that he could assist them in their investigation

of Burris and Stewart. (Id. at 539-40, 544-45, 402-06).

      {¶30} Based upon our review of the evidence, we cannot conclude that

McGhee’s convictions on counts eleven and twelve were against the manifest

weight of the evidence. The evidence, taken in its totality, demonstrates that



                                       - 25 -
Case No. 13-08-12


McGhee was a member of the Gear Gang Crips gang; the gang was involved in

selling drugs; and McGhee was selling drugs, assisting the gang’s criminal

activity. The evidence also demonstrates a pattern of corrupt activity; to wit: the

selling of illegal drugs, usually crack cocaine, in Fostoria, Ohio by several

members of the gang and others not affiliated with the gang as well. For these

reasons, we reject McGhee’s argument that his convictions were against the

manifest weight of the evidence. Furthermore, we cannot find that McGhee’s

convictions amount to plain error.

       {¶31} McGhee’s third assignment of error is, therefore, overruled.

                       ASSIGNMENT OF ERROR NO. I

       APPELLANT WAS DENIED HIS CONSTITUTIONAL
       RIGHT TO DUE PROCESS WHEN THE TRIAL COURT
       ADMITTED EVIDENCE OF MULTIPLE CO-DEFENDANT’S
       [SIC] GUILTY PLEAS AS SUBSTANTIVE EVIDENCE OF
       APPELLANTS [SIC] GUILT.

       {¶32} In his first assignment of error, McGhee argues that the trial court

erred when it admitted his co-defendants’ guilty pleas and sentencing entries. The

State argues that these records were properly admitted for purposes of establishing

a criminal gang, a pattern of corrupt activity, and pattern of criminal gang activity

for counts eleven and twelve. Furthermore, the State argues that any potential

error was harmless in light of the other probative evidence presented relative to

these counts. We agree with the State that the trial court did not err.



                                        - 26 -
Case No. 13-08-12


      {¶33} “[D]ecisions regarding the admissibility of evidence are within the

sound discretion of the trial court and will not be reversed absent a showing of an

abuse of discretion.” Stewart, 2009-Ohio-3411, at ¶97, citations omitted. An

abuse of discretion “connotes more than an error of law or judgment; it implies

that the court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore

v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

      {¶34} This Court recently rejected this same argument in State v. Stewart,

which involved McGhee’s co-defendant Darrion Stewart. 3d Dist. No. 13-08-18,

2009-Ohio-3411. This Court reasoned, in pertinent part, as follows:

      In the present case, numerous indictments, pleas, and sentences
      were introduced at trial. However, we note that these documents
      were not introduced per se as substantive evidence of Stewart's
      guilt. Instead, these documents were introduced to show the
      behavior of co-defendants in proving an enterprise engaged in
      corrupt activity. For example, information concerning a co-
      defendant was not introduced to show that because a co-
      defendant sold drugs, Stewart must have as well. Instead, the
      information was introduced to show that Stewart sold drugs to a
      particular co-defendant, who then went and sold drugs to
      someone else, proving an enterprise engaging in a pattern of
      corrupt activity and also that Stewart was part of a criminal
      gang engaged in criminal conduct.

      We are also mindful that, when we are considering a charge of
      Engaging in a Pattern of Corrupt Activity, the State is required
      to prove that a person, associated with an enterprise, either
      directly or indirectly engaged in a pattern of corrupt activity. In
      the present case, the State did not only allege Stewart’s direct
      participation in corrupt activity, but also alleged his indirect
      participation through the resale of the drugs he sold to other co-
      defendants.


                                      - 27 -
Case No. 13-08-12



      The Ohio Supreme Court has held that,

      Offenses under RICO, R.C. 2923.32, are mala prohibita, i.e., the
      acts are made unlawful for the good of the public welfare
      regardless of the state of mind. Thus, we agree with the Twelfth
      District’s reasoning in State v. Haddix (1994), 93 Ohio App.3d
      470, 638 N.E.2d 1096, which stated, “Whether a defendant
      knowingly, recklessly or otherwise engages in a pattern of
      corrupt activity, the effect of his activities on the local and
      national economy is the same. Requiring the finding of a specific
      culpable mental state for a RICO violation obstructs the purpose
      of the statute * * *.” Id. at 477, 638 N.E.2d at 1101. Given these
      goals, we believe that the General Assembly intended to enhance
      the government’s ability to quell organized crime by imposing
      strict liability for such acts.

      State v. Schlosser, 79 Ohio St.3d 329, 333.

      “To obtain convictions, [the state] had to prove that each
      defendant was voluntarily connected to that pattern and
      performed at least two acts in furtherance of it.” State v.
      Schlosser, 79 Ohio St.3d at 334 citing United States v. Palmeri
      (C.A.3, 1980), 630 F.2d 192, 203. The RICO statute was designed
      to impose cumulative liability for the criminal enterprise. State v.
      Schlosser, 79 Ohio St.3d at 334.

      Therefore, it was essential that the State prove Stewart
      associated with the enterprise. However, it was not essential that
      the State prove Stewart knew of every instance of corrupt
      activity stemming from his corrupt activity, i.e. that he knew of
      every drug sale that resulted from his drug sales. In the present
      case, the State alleged Stewart’s indirect participation in corrupt
      activity through the “enterprise” of the Gear Gang Crips and
      others he was associated with through drug sales. Therefore, the
      convictions of those Stewart supplied with drugs, during the
      period testimony was given to establish that Stewart was these
      persons’ main supplier of drugs was directly relevant to
      Stewart’s indirect participation with the extended criminal
      enterprise that was involved in selling drugs in Fostoria.


                                     - 28 -
Case No. 13-08-12



Stewart, 2009-Ohio-3411, at ¶¶105-108. Furthermore, we noted in Stewart that

“the introduction of a judgment entry of conviction is the preferred method of

proving a predicate offense related to a charge of Engaging in a Pattern of Corrupt

Activity.” Id. at ¶108, fn.7, citing State v. Lightner, 3d Dist. No. 6-08-15, 2009-

Ohio-2307; State v. Lightner, 3d Dist No. 6-08-11, 2009-Ohio-544.           Like in

Stewart, we cannot conclude that the trial court abused its discretion by admitting

the indictments of McGhee’s co-defendants since the State admitted them to show

that McGhee was affiliated with a gang and an illegal enterprise. Even if we were

to assume that the trial court erred by admitting the indictments, we would find

any error relating thereto harmless given the overwhelming evidence of McGhee’s

guilt. State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶25,

citing State v. Getsy (1998), 84 Ohio St.3d 180, 193, 702 N.E.2d 866.

                      ASSIGNMENT OF ERROR NO. II

      THE TRIAL COURT PREJUDICIALLY ERRED WHEN IT
      ADMITTED PHONE RECORDS THAT WERE NOT
      PROPERLY AUTHENTICATED AND WERE THE CRUX OF
      THE PROSECUTIONS [SIC] CASE THEREFORE SUCH
      EVIDENCE CANNOT BE HARMLESS ERROR.

      {¶35} In his second assignment of error, McGhee argues that the trial court

improperly   admitted    Verizon   wireless’   phone    records   without    proper

authentication. Specifically, McGhee argues that the State’s witness: had never

seen the records; had no personal knowledge that the records were from Verizon


                                      - 29 -
Case No. 13-08-12


wireless; and had no knowledge of where the records came from.      McGhee also

argues that Detective Boyer testified that the documents were records, not bills,

and that nothing in records to indicate who they belonged to or who placed the

phone calls.

      {¶36} The State, however, argues that the Verizon wireless phone records

were Evid.R. 803(6) business records that the trial court properly admitted based

upon a Verizon wireless employee’s authentication. The State argues that the

Verizon wireless employee who testified for authentication purposes qualifies as

an “other qualified witness” under Evid.R. 803(6). We agree.

      {¶37} As previously noted, a trial court’s decision to admit or exclude

evidence at trial is reviewed under and abuse of discretion standard. Stewart,

2009-Ohio-3411, at ¶97, citations omitted. An abuse of discretion “connotes more

than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable.” Blakemore, 5 Ohio St.3d at 219.

      {¶38} Evid.R. 803(6) provides the following hearsay exception:

      (6) Records of regularly conducted activity. 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


                                      - 30 -
Case No. 13-08-12


         trustworthiness. The term “business” as used in this paragraph
         includes business, institution, association, profession, occupation,
         and calling of every kind, whether or not conducted for profit.

(Emphasis added).       This Court has previously found that the phrase “other

qualified witness” should be broadly interpreted. State v. Shaheen (July 29, 1997),

3d Dist. No. 5-97-03, at *2, citing State v. Patton (Mar. 5, 1992), 3d Dist. No. 1-

91-12; State v. Vrona (1988), 47 Ohio App.3d 145, 148, 547 N.E.2d 1189. In fact,

         [t]he witness providing the foundation need not have firsthand
         knowledge of the transaction. Rather, it must be demonstrated
         that the witness is sufficiently familiar with the operation of the
         business and with the circumstances of the record’s preparation,
         maintenance and retrieval, that he can reasonably testify on the
         basis of this knowledge that the record is what it purports to be,
         and that it was made in the ordinary course of business
         consistent with the elements of Rule 803(6).

Vrona, 47 Ohio App.3d at 148, citing 1 Weissenberger’s Ohio Evidence (1985)

76, Section 803.79; Shaheen, 3d Dist. No. 5-97-03, at *2; Patton, 3d Dist. No. 1-

91-12.

         {¶39} Here, Cynthia Hass testified that she has served as an assistant

manager at the Verizon wireless store located in Fremont, Ohio for the past year.

(Tr. at 23). For seven years prior to becoming an assistant manager, Hass was a

Verizon wireless sales representative. (Id. at 23-24). Hass estimated that ninety

percent of her duties as assistant manager consisted of handling customer

complaints and scheduling, and that these duties required her to use Verizon

wireless records. (Id. at 24). Hass testified that she was familiar with Verizon


                                        - 31 -
Case No. 13-08-12


wireless billing records since she had to access those records hourly when

handling customers’ billing questions or concerns. (Id. at 24-25).       Hass also

testified that she can retrieve these records from a computer database. (Id. at 25).

Hass then identified: State’s exhibit 345 as a phone bill for phone number 419-

619-3540 for the month of October 2005 and a phone bill for phone number 419-

619-3378 for the month of February 2006; and State’s exhibit 346 as a phone bill

for phone number 419-619-1974 for the month of October 2005 through January

2006. (Id. at 26-27). Hass testified that these records were kept on the computer

database as part of the business, and other than being Verizon’s record-keeper, she

had no other involvement with the case. (Id. at 29-30). On cross-examination,

Hass testified that the records “* * * look like normal bills, so I am sure it came

from the Verizon database * * *” and that she knew that the documents were

Verizon wireless phone bills. (Id. at 31-32).

       {¶40} Based upon this evidence, we conclude that the Verizon phone

records were properly authenticated. Hass testified that she was familiar with

Verizon’s phone bills from her experience as an assistant manager handling

customers’ billing questions and complaints. Hass further testified that, although

she did not have personal knowledge of the records’ creation, the records were

retrieved from Verizon’s computer database. Hass also testified that these records

were maintained on Verizon’s computer database in the ordinary course of its



                                        - 32 -
Case No. 13-08-12


business. Under these circumstances, Hass was “sufficiently familiar” with

Verizon wireless’ business operations—specifically its billing records—to

“reasonably testify” that these records were what they purported to be and were

made in the ordinary course of the business. Vrona, 47 Ohio App.3d at 148, citing

1 Weissenberger’s Ohio Evidence (1985) 76, Section 803.79; Shaheen, 3d Dist.

No. 5-97-03, at *2; Patton, 3d Dist. No. 1-91-12. Therefore, the trial court did not

abuse its discretion by admitting the Verizon wireless phone records.

       {¶41} McGhee’s second assignment of error is, therefore, overruled.

       {¶42} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




                                       - 33 -
