[Cite as State v. Harding, 2017-Ohio-8930.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                              MADISON COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :      CASE NO. CA2016-11-029

                                                    :           OPINION
    - vs -                                                      12/11/2017
                                                    :

KELLY L. HARDING,                                   :

        Defendant-Appellant.                        :



      CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                          Case No. CRI 2016-0016



Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main
Street, London, Ohio 43140, for plaintiff-appellee

Brehm & Associates, LPA, Robert J. Beck, Jr., 14 South High Street, New Albany, Ohio
43054, for defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Kelly Harding, appeals his convictions and sentence in

the Madison County Court of Common Pleas for possession of marijuana and criminal tools.

        {¶ 2} Craig Voight asked Harding to drive him to New York and Harding agreed.

Harding met Voight at his house in a car Harding borrowed from his mother. After leaving the

car parked overnight at Voight's house, the two men began the trip to New York and
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eventually drove on Interstate 70.

       {¶ 3} Several canine units with the Ohio State Highway Patrol were patrolling the

area along Interstate 70 where Harding was driving. A trooper began to follow Harding, and

observed Harding following a semi-truck too closely. The trooper initiated a traffic stop and

identified Harding as the driver of the car and Voight as the passenger.

       {¶ 4} During the traffic stop, troopers walked a canine around the car, and the canine

indicated at the rear passenger door of the car. Troopers then discovered 123 pounds of

marijuana in the vehicle. Harding was indicted for possession of marijuana and criminal

tools, and pled not guilty. Harding filed a motion to suppress, claiming that the search of the

car was unconstitutional.      The trial court overruled Harding's motion, and the matter

proceeded to a jury trial. The jury returned guilty verdicts on both counts, and the trial court

sentenced Harding to an aggregate prison sentence of eight years. Harding now appeals his

convictions and sentence, raising the following assignments of error.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE TRIAL COURT DID ERR BY OVERRULING DEFENDANT'S MOTION TO

SUPPRESS.

       {¶ 7} Harding argues in his first assignment of error that the trial court erred in

overruling his motion to suppress.

       {¶ 8} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353.

Acting as the trier of fact, the trial court is in the best position to resolve factual questions and

evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to

suppress, a reviewing court is bound to accept the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No. CA2005-03-

074, 2005-Ohio-6038. "An appellate court, however, independently reviews the trial court's
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legal conclusions based on those facts and determines, without deference to the trial court's

decision, whether as a matter of law, the facts satisfy the appropriate legal standard."

Cochran at ¶ 12.

       {¶ 9} Ohio recognizes two types of lawful traffic stops, noninvestigatory and

investigatory. State v. Campbell, 12th Dist. Butler Nos. CA2014-02-048 and CA2014-02-051,

2014-Ohio-5315, ¶ 25. A noninvestigatory stop is one where an officer has probable cause

to stop a vehicle because the officer observed a traffic violation. State v. Moore, 12th Dist.

Fayette No. CA2010-12-037, 2011-Ohio-4908, ¶ 31. The establishment of probable cause

necessary to effectuate the noninvestigatory stop "requires only a probability or substantial

chance of criminal activity, not an actual showing of such activity." City of Wilmington v.

Lubbers, 12th Dist. Clinton No. CA2013-06-013, 2014-Ohio-3083, ¶ 12.               "The focus,

therefore, is not on whether an officer could have stopped the suspect because a traffic

violation had in fact occurred, but on whether the arresting officer had probable cause to

believe that a traffic violation had occurred." State v. Pfeiffer, 12th Dist. Butler No. CA2003-

12-329, 2004-Ohio-4981, ¶ 23.

       {¶ 10} According to R.C. 4511.34(A), the operator of a motor vehicle shall not follow

another vehicle more closely than is reasonable and prudent, and must maintain a sufficient

space between vehicles while driving on the road.

       {¶ 11} We first note that Harding failed to ensure that a transcript of the motion to

suppress hearing held in this case was made a part of the record. The Ohio Supreme Court

has stated that "upon appeal of an adverse judgment, it is the duty of the appellant to ensure

that the record, or whatever portions thereof are necessary for the determination of the

appeal, are filed with the court in which he seeks review." Rose Chevrolet, Inc. v. Adams, 36

Ohio St.3d 17, 19 (1988). In the absence of a transcript of the suppression hearing in this

case, we must presume the regularity of the proceedings and accept the trial court's factual
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determinations as correct. See State v. Fields, 12th Dist. Brown No. CA2009-05-018, 2009-

Ohio-6921.

       {¶ 12} The trial court determined that the trooper who pulled Harding over had

probable cause to initiate a valid traffic stop. The trial court specifically stated in its entry that

the trooper's testimony regarding the traffic stop was "credible." According to the trial court,

the trooper testified that when Harding passed his location on Interstate 70, the vehicle

Harding was driving was following too closely behind a semi-truck and that Harding failed to

maintain a safe, clear distance between himself and the truck. As such, and with no

transcript to prove otherwise, we find that the trial court's findings and conclusions support

the conclusion that the trooper had probable cause to initiate the traffic stop. As such,

Harding's first assignment of error is overruled.

       {¶ 13} Assignment of Error No. 2:

       {¶ 14} THE TRIAL COURT DID ERR WHEN IT ENTERED JUDGMENT AGAINST

THE DEFENDANT WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A

CONVICTION AND WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE

EVIDENCE.

       {¶ 15} Harding argues in his second assignment of error that his convictions were not

supported by sufficient evidence and were against the manifest weight of the evidence.

       {¶ 16} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). When reviewing

the sufficiency of the evidence underlying a criminal conviction, an appellate court examines

the evidence in order to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist.

Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant inquiry is

whether, after viewing the evidence in a light most favorable to the prosecution, any rational
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trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶ 17} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶

14. To determine whether a conviction is against the manifest weight of the evidence, the

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

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.

Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.

       {¶ 18} In reviewing the evidence, an appellate court must be mindful that the jury, as

the original trier of fact, was in the best position to judge the credibility of witnesses and

determine the weight to be given to the evidence. State v. Blankenburg, 197 Ohio App.3d

201, 2012-Ohio-1289, ¶ 114 (12th Dist.). Therefore, an appellate court will overturn a

conviction due to the manifest weight of the evidence "only in the exceptional case in which

the evidence weighs heavily against the conviction." Id. Although the legal concepts of

sufficiency of the evidence and weight of the evidence are quantitatively and qualitatively

different, "[a] determination that a conviction is supported by the manifest weight of the

evidence will also be dispositive of the issue of sufficiency." State v. Jones, 12th Dist. Butler

No. CA2012-03-049, 2013-Ohio-150, ¶ 19.

       {¶ 19} Harding was convicted of possessing marijuana in violation of R.C.

2925.11(A), which provides, "no person shall knowingly obtain, possess, or use a controlled

substance or a controlled substance analog." Harding was also convicted of possession

criminal tools in violation of R.C. 2923.24(A), which provides, "no person shall possess or
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have under the person’s control any substance, device, instrument, or article, with purpose to

use it criminally."

       {¶ 20} After reviewing the record, we find that Harding's convictions were supported

by sufficient evidence and were not against the manifest weight of the evidence. The state

presented testimony from the trooper who pulled Harding over. The trooper testified that

when he was patrolling Interstate 70, he observed the vehicle Harding was driving pass him.

The trooper testified that he noticed what appeared to be a "continuous blanket" pulled from

the back of the driver's seat to the back window, which was covering items in the back-seat

area. The trooper testified that the vehicle and its driver exhibited "numerous indicators" that

led him to pull over Harding. When the trooper made contact with Harding, Harding was

"extremely nervous" to the point that his hand shook as if Harding was having a seizure when

he handed the trooper his driver's license. Harding also refused to make eye contact with the

trooper.

       {¶ 21} The trooper observed clothes on hangers draped over larger items in the back

seat, and Harding explained to the trooper that the vehicle belonged to his mother. While the

trooper checked Harding's license, another trooper arrived on the scene and deployed his

canine. The canine indicated to the presence of drugs by scratching on the doors. The

trooper opened the back of the vehicle and saw clothes draped over rubber totes. Once

opened, the trooper observed vacuum-sealed bundles of marijuana in the totes and in a

suitcase on the back seat near the totes. The trooper also observed a vacuum sealer on the

right rear floorboard, and discovered that the spare tire wheel well was filled with packaged

marijuana. In all, troopers seized approximately 123 pounds of marijuana from the vehicle.

       {¶ 22} The trooper also testified that he spoke with Harding after the marijuana was

discovered and that Harding told him that he grew marijuana and used it in the past, but that

he had stopped both practices. Harding also admitted to helping Voight load the totes into
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the vehicle, but claimed that he believed the totes were filled with dishes and clothing. The

trooper searched Harding, and found keys in his right front pocket. The keys opened locks

located on the large bags of sealed marijuana discovered in the vehicle.

       {¶ 23} The state also presented testimony from another trooper who assisted once

Harding had been pulled over. The second trooper testified that he deployed his canine

partner around the vehicle Harding was driving, and that the canine indicated the presence of

drugs by scratching on the doors. After putting the canine back into the cruiser, the trooper

then observed large amounts of marijuana in the totes and the spare tire wheel well. The

trooper also observed the first trooper's search of Harding's person, and testified that he saw

the first trooper remove the keys from Harding's pocket.

       {¶ 24} The state then presented testimony from a criminalist who works for the state

crime laboratory. The criminalist testified that the leafy substance seized from the vehicle

tested positive as marijuana.

       {¶ 25} Harding and his girlfriend testified in his defense. Both testified that the vehicle

was empty when he drove it to Voight's house, and that when he left for New York with

Voight, the car was full of items. Harding denied knowing that the car had marijuana in it. He

also claimed that he never grew marijuana in the past, and that he had only helped someone

else grow it. Harding also denied that troopers removed any keys from this pocket on the

day of the incident.

       {¶ 26} Based on the verdict, the jury believed the testimony of the state's witnesses,

rather than that of Harding and his girlfriend. The jury is in the best position to judge the

credibility of the witnesses, and we will not disturb its finding that Harding was not credible

when testifying that he did not have knowledge of the marijuana in the vehicle.

       {¶ 27} After reviewing the record, we find the evidence sufficient to support both of

Harding's convictions, and that such convictions were not against the manifest weight of the
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evidence. As such, Harding's second assignment of error is overruled.

       {¶ 28} Assignment of Error No. 3:

       {¶ 29} THE TRIAL COURT DID ERR BY IMPOSING A PRISON SENTENCE ON A

FIFTH-DEGREE FELONY WITHOUT MAKING ANY FINDINGS.

       {¶ 30} Harding argues in his third assignment of error that he was erroneously

sentenced.

       {¶ 31} We review the imposed sentence under the standard of review set forth in R.C.

2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1; State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-

3315, ¶ 6. Pursuant to that statute, an appellate court does not review the sentencing court's

decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an

appellate court to modify or vacate a sentence only if the appellate court finds by clear and

convincing evidence that "the record does not support the trial court's findings under relevant

statutes or that the sentence is otherwise contrary to law." Id. at ¶ 1.

       {¶ 32} A sentence is not clearly and convincingly contrary to law where the trial court

"considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, properly imposes postrelease control, and sentences the defendant within the

permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-

Ohio-2890, ¶ 8. Thus, this court may "increase, reduce, or otherwise modify a sentence only

when it clearly and convincingly finds that the sentence is (1) contrary to law or (2)

unsupported by the record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶

1.

       {¶ 33} Harding does not challenge the eight-year sentence he received for

possession of marijuana, as that sentence was mandatory. However, Harding challenges the

11-month sentence for possession of criminal tools, which was ordered to be served
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concurrently to the eight-year mandatory sentence.

        {¶ 34} The possession of criminal tools charge was a felony of the fifth degree.

According to R.C. 2929.14, "for a felony of the fifth degree, the prison term shall be six,

seven, eight, nine, ten, eleven, or twelve months." The trial court ordered the 11-month

sentence after considering the purposes and principles of sentencing according to R.C.

2929.11 and R.C. 2929.12, as noted in the trial court's sentencing entry.1 As such, the trial

court properly sentenced Harding within the appropriate range, and after considering the

statutory factors.

        {¶ 35} The trial court's sentence is also supported by the record. The trial court

specifically noted that it had considered the facts of the case in relation to the sentencing

factors before imposing sentence.              Those facts include that Harding possessed and

transported over 120 pounds of marijuana and tools to package the marijuana. Moreover,

the trial court ordered the sentence for possessing criminal tools concurrent to the sentence

for possessing marijuana. Therefore, any amount of sentence imposed would have been

served during the eight years Harding was ordered to serve for the possession charge.

        {¶ 36} According to R.C. 2929.13(B)(1)(a), an offender who is convicted of a

nonviolent fifth-degree felony is entitled to a presumption of community control. However,

R.C. 2929.13(B)(1)(a)(ii) provides that the offender is not entitled to such a presumption if the

offender is facing a charge more serious than a fifth or fourth degree felony at the time of

sentencing. The record is clear that at the time of sentencing, Harding also faced the charge



1. The court's entry contains a typographical error in that it lists the statute specific to the purposes and
principles of sentencing as "R.C. 2929.1." However, it is obvious from the record that the court properly
considered the statutory factors according to R.C. 2929.11, as the court made specific reference to the
"purposes and principles of sentencing," which are found in R.C. 2929.11. "When sentencing a defendant, a trial
court is not required to consider each sentencing factor, but rather to exercise its discretion in determining
whether the sentence satisfies the overriding purpose of Ohio's sentencing structure." State v. McCree, 12th
Dist. Warren No. CA2016-06-049, 2017-Ohio-791, ¶ 21. While the trial court's entry and discussion at the
sentencing hearing could have been more complete, we nonetheless find that the trial court properly considered
the statutory factors before imposing the sentence.
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for possession of marijuana, which is a felony of the second degree. As such, he was not

entitled to a presumption of community control for the fifth-degree felony charge, and the trial

court was not required to make any findings before sentencing Harding to 11 months on that

count. Thus, we find no error in the trial court's sentence, and Harding's third assignment of

error is overruled.

       {¶ 37} Assignment of Error No. 4:

       {¶ 38} DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶ 39} Harding argues in his fourth assignment of error that he did not receive

effective assistance of counsel during his trial.

       {¶ 40} To prevail on an ineffective assistance of counsel claim, appellant must show

his trial counsel's performance was deficient, and that he was prejudiced as a result. State v.

Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v.

Washington, 466 U.S. 668, 687-688 (1984). Trial counsel's performance will not be deemed

deficient unless it fell below an objective standard of reasonableness. Strickland at 688. To

show prejudice, appellant must establish that, but for his trial counsel's errors, there is a

reasonable probability that the result of his trial would have been different. Id. at 694.

       {¶ 41} The failure to satisfy either prong of the Strickland test is fatal to an ineffective

assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment. State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-

4625, ¶ 7.

       {¶ 42} Harding asserts that his trial counsel was ineffective for not filing a request to

preserve all evidence in the case. Specifically, Harding argues that he should have received

video camera footage from the other highway patrol cruisers that participated in the stop, in

addition to the video he received from the first trooper's cruiser showing the actual traffic
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stop, pat down, and discovery of marijuana. However, the only reason Harding asserts for

filing a motion to preserve the video is that if the state then destroyed the evidence after

defense counsel moved to preserve, the evidence would have become preemptively

exculpatory.

      {¶ 43} Even if the evidence would have been destroyed, the proper rule of law is

"where the defendant requests evidence and the state fails to respond in good faith to the

defendant's request, the burden shifts to the state to show that the evidence was not

exculpatory." State v. McDade, 12th Dist. Warren Nos. CA2003-09-096 and CA2003-09-097,

2004-Ohio-3672, ¶ 14. Likewise, the same burden shifts to the state where the defendant

moves to have the evidence preserved and the state destroys the evidence. Id. Harding,

however, does not argue that the state would not have been able to fulfill its burden to

overcome the presumption. Nor does Harding even assert that the additional police camera

video was or could have been exculpatory for him.

      {¶ 44} Moreover, Harding has not demonstrated that with extra footage, the results of

his trial would have been different. The jury was asked to determine if Harding knew about

the marijuana and criminal tools in the vehicle, and it determined that he did. This decision

would not have changed had the jury viewed the stop or discovery of marijuana from a

different police cruiser camera. Harding has not carried his burden to prove that is counsel

was ineffective for not filing a motion to preserve evidence. As such, Harding's final

assignment of error is overruled.

      {¶ 45} Judgment affirmed.


      HENDRICKSON, P.J., and M. POWELL, J., concur.




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