[Cite as State v. Holman, 2018-Ohio-1373.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. John W. Wise, P.J.
                                              :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :       Case No. 2017CA00114
ADAM M. HOLMAN                                :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Stark County
                                                  Court of Common Pleas, Case
                                                  No.2017CR0417(A)

JUDGMENT:                                         Affirmed in part; vacated in part



DATE OF JUDGMENT ENTRY:                           April 9, 2018




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JOHN D. FERRERO                                   AARON KOVALCHIK
STARK COUNTY PROSECUTOR                           116 Cleveland Avenue N.W.
BY: RONALD MARK CALDWELL                          Suite 808
110 Central Plaza South                           Canton, OH 44702
Canton, OH 44702
[Cite as State v. Holman, 2018-Ohio-1373.]


Gwin, J.,

        {¶1}    Appellant Adam M. Holman [“Holman”] appeals his convictions and

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

                                        Facts and Procedural History

        {¶2}    On February 27, 2017, Massillon Police Officer Jeremy Moody was on

routine patrol around 4:30 p.m. near the Viaduct on Lincoln Way in Massillon when he

spotted a speeding car driven by Holman. A check of his radar device confirmed his

suspicion that Holman's car was driving faster than the speed limit. As a result, Moody

made a traffic stop of Holman's car. The car was not registered to Holman. As Moody

approached the vehicle, Holman admitted to Moody that he did not have a license so he

gave the officer his name and social security number. T. at 110. Christopher Predojev

was seated in the passenger seat of the car. Doing routine background checks on both

people inside the car, Officer Moody was informed that Holman's driver's license was

under a financial responsibility law suspension [“FRA suspension”], and that Predojev had

an active warrant for his arrest. T. at 110; 115.

        {¶3}    On cross-examination, Officer Moody was questioned about the FRA

suspension. T. at 115-116. He was asked how did he verify the suspension. Moody

testified that it was through the dispatch center. He further testified that he was not 100%

sure of the nature of the suspension, but that he noted it on the ticket he gave Holman.

T. at 116-117. Officer Moody testified that an FRA suspension “usually comes with a

failure to provide proof of insurance…” T. at 115. In addition, dispatch had told Moody

that the owner of the stopped car had prior convictions for the manufacturing of drugs. T.

at 119.
Stark County, Case No. 2017CA00114                                                          3


       {¶4}      During the traffic stop, other police officers arrived on the scene and took

Predojev into custody. In addition, Officer Moody told Holman that his car would have to

be towed since he did not have a valid driver's license. Holman therefore exited his car,

at which time Moody ask Holman for his consent to pat him down. Holman consented to

a search of his person. T. at 111. Moody then patted Holman down and found in one of

Holman's pants pocket a Marlboro Red cigarette filter, a pack of Marlboro Red cigarettes,

and a Coca-Cola bottle cap with a hole drilled in the center of it. Based upon his field

training and experience, Officer Moody recognized the bottle cap as a device often used

in the making of methamphetamine. Both Holman and Predojev were arrested. Holman

was initially charged with driving under suspension, and Predojev arrest was based on

the active arrest warrant. A pat-down search incident to the arrest of Predojev uncovered

a pack of little cigar-like cigarettes. T. at 129. Officer Moody further testified that Holman

did not have any drugs on him when he conducted the pat down search.

       {¶5}      Because of Holman's arrest, his car was to be towed pursuant to department

policy. As part of the towing process, standard policy requires an inventory search be done

of the vehicle. Massillon Police Officer Lieutenant Michael Maier1, who had responded as

back up for this traffic stop, conducted this inventory search. Between the center console

and the front passenger seat, Maier found a Marlboro Red cigarette pack. Instead of

finding cigarettes inside this pack, however, Maier found a folded-up white coffee filter.

Inside this coffee filter was a white powdery substance resembling crystal

methamphetamine. This substance was later tested by Jennifer Creed of the Stark

County Crime Lab, and was determined to be 1.8 grams of methamphetamine.



       1   Lieutenant Maier was a sergeant at the time of the traffic stop. T. at 126.
Stark County, Case No. 2017CA00114                                                              4


      {¶6}      Christopher Predojev testified that the methamphetamine was his and his

alone, and that Holman did not know of the methamphetamine in the Marlboro Red

cigarette pack.      He claimed that he did not tell the police at the time that the

methamphetamine was his because he was scared. He further testified that getting into

the car that day with Holman was the worst decision he had made in his life. Predojev

was a 49 year old who had never been in serious trouble before this incident.

      {¶7}      On rebuttal, Massillon Police Officer Jerrell Vincent testified about the

background information he had when he responded to the scene. Vincent testified that

Holman had been stopped for speeding, doing 44 mph in a 25-mph zone, that Holman

was under a FRA suspension and that Predojev had an active arrest warrant, that the car

was inventoried as part of the towing process, and that the cigarette pack with

methamphetamine was found in the car between the console and the passenger seat. T.

183- 186. As part of the booking procedure for both Holman and Predojev, Vincent

interviewed the men. During this interview process, Predojev told Vincent that half of the

meth found in the car was his. T. 186-187.

      {¶8}      Prior to the start of Holman ‘s jury trial, the trial court went on the record and

confirmed that Holman was turning down a plea offer where he would serve 90 to 120

days of incarceration and then enter SRCCC2. (T. at 7). Holman confirmed that he was

indeed turning down that offer. T. at 7.

      {¶9}      The jury verdict found Holman guilty of the charged offenses. Holman was

sentenced to an aggregate prison term of eleven months.




      2   Stark County Regional Community Correction Center.
Stark County, Case No. 2017CA00114                                                          5

                                       Assignments of Error

       {¶10} Holman raises three assignments of error,

       {¶11} “I. APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT

WITNESSES AGAINST HIM WAS VIOLATED WHEN THE TRIAL COURT PERMITTED

THE ADMISSION OF HEARSAY STATEMENTS.

       {¶12} “II. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

       {¶13} “III. APPELLANT’S PRISON SENTENCE WAS AN UNCONSTITUTIONAL

TRIAL PENALTY.”

                                                 I.

       {¶14} In his first assignment of error, Holman contends the trial court allowed

hearsay testimony that connected him to the crime of Driving under Suspension.

[Appellant’s Brief at 8]. The focus of his constitutional challenge is the admission of the

testimony of Massillon Police Officer Jerrell Vincent that he received from police dispatch

information that Holman was driving under an FRA suspension. T. 184-185. According

to Holman, this alleged error violated his rights to confrontation and due process. Holman

objected to the admission of this testimony, which the court overruled on the basis that

the background information was not being offered to prove the truth of the matter

asserted, but was instead being offered to explain Vincent's role and what he did in this

investigation.

                            STANDARD OF APPELLATE REVIEW.

       {¶15} “[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
Stark County, Case No. 2017CA00114                                                     6

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

1056 (1991).    “Ordinarily, we review a trial court’s hearsay rulings for an abuse of

discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). However,

we review de novo evidentiary rulings that implicate the Confrontation Clause. United

States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010).” State v. McKelton, 148 Ohio

St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97.

       ISSUES FOR APPEAL

       A. Whether the trial court erred as a matter of law in admitting the testimony of

Officer Vincent concerning Holman’s driver license suspension.

       B. Whether the admission of Officer Vincent’s testimony concerning Holman’s

driver license affected Holman’s “substantial rights.”

       {¶16} Holman’s objection centered upon the testimony elicited from the state’s

rebuttal witness. However, Officer Moody had already testified that the dispatch center

had told him that Holman did not have a valid driver's license due to a FRA suspension.

Holman did not object to Officer Moody's testimony on this point. On cross-examination,

Officer Moody was questioned by Holman’s counsel about the FRA suspension. T. at

116. He was asked how did he verify the suspension, and Moody testified that it was

through the dispatch center. He further testified that he was not 100% sure of the nature

of the suspension, but that he noted it on the ticket he gave Holman. T. at 116-117.

       {¶17} 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
Stark County, Case No. 2017CA00114                                                        7


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.

       {¶18} Assuming arguendo the trial court had excluded Officer Vincent’s testimony,

the jury had evidence from Officer Moody that was not objected to that Holman’s driver’s

license was under suspension. Thus, even if error occurred in the admission of the

statements by Officer Vincent, it was harmless beyond a reasonable doubt because it

was merely cumulative to the testimony that Homan’s driver’s license was under

suspension that was not objected to during the trial. Holman’s first assignment of error is

overruled.

                                                II.

       {¶19} In his second assignment of error, Holman argues that there was insufficient

evidence to convict him of aggravated possession of drugs and driving under suspension.

Holman further contends that the jury’s findings are against the manifest weight of the

evidence.

                            STANDARD OF APPELLATE REVIEW.

       A. Sufficiency of the Evidence.

       {¶20} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of
Stark County, Case No. 2017CA00114                                                       8

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,

621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,

2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson, 150

Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

      {¶21} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus; Walker, at ¶30. “The relevant inquiry

is whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.” Jenks at paragraph two of the syllabus. State v. Poutney, Oh. Sup.

Ct. No. 2016-1255, 2018-Ohio-22, 2018 WL 328882 (Jan. 4, 2018), ¶19. Thus, “on review

for evidentiary sufficiency we do not second-guess the jury's credibility determinations;

rather, we ask whether, ‘if believed, [the evidence] would convince the average mind of

the defendant's guilt beyond a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516,

543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus (emphasis

added); Walker at ¶31. We will not “disturb a verdict on appeal on sufficiency grounds

unless ‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’”

State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State

v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148

Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.
Stark County, Case No. 2017CA00114                                                       9


      ISSUE FOR APPEAL

      Whether, after viewing the evidence in the light most favorable to the prosecution,

the evidence, “if believed, would convince the average mind of the defendant's guilt on

each element of the crimes beyond a reasonable doubt.”

      a). Aggravated possession of drugs.

      {¶22} Holman was indicted for aggravated possession of drugs in violation of R.C.

2925.11(A)(C)(1)(a). R.C. 2925.11 provides,

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

      substance or a controlled substance analog.

      {¶23} R.C. 2925.11(C)(1)(a) states,

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

      following:

             (1) If the drug involved in the violation is a compound, mixture,

      preparation, or substance included in schedule I or II, with the exception of

      marihuana, cocaine, L.S.D., heroin, hashish, and controlled substance

      analogs, whoever violates division (A) of this section is guilty of aggravated

      possession of drugs. The penalty for the offense shall be determined as

      follows:

             (a) Except as otherwise provided in division (C)(1)(b), (c), (d), or (e)

      of this section, aggravated possession of drugs 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.
Stark County, Case No. 2017CA00114                                                     10


      {¶24} R.C. 2925.01(K) defines possession as follows: “ ‘Possess' or ‘possession’

means 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. 2901.21 provides the requirements for

criminal liability and provides that possession is a “voluntary act if the possessor

knowingly procured or received the thing possessed, or was aware of the possessor's

control of the thing possessed for sufficient time to have ended possession.” R.C.

2901.21(D)(1).

      {¶25} Possession may be actual or constructive. State v. Butler, 42 Ohio St.3d

174, 176, 538 N.E.2d 98(1989); State v. Haynes, 25 Ohio St.2d 264, 267 N.E.2d

787(1971); State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362(1982), syllabus. To

establish constructive possession, the evidence must prove that the defendant was able

to exercise dominion and control over the contraband. State v. Wolery, 46 Ohio St.2d

316, 332, 348 N.E.2d 351(1976). Dominion and control may be proven by circumstantial

evidence alone. State v. Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93(8th Dist. 2000).

Circumstantial evidence that the defendant was located in very close proximity to the

contraband may show constructive possession. State v. Butler, supra; State v. Barr, 86

Ohio App.3d 227, 235, 620 N.E.2d 242, 247-248(8th Dist. 1993); State v. Morales, 5th

Dist. Licking No. 2004 CA 68, 2005-Ohio-4714, ¶50; State v. Moses, 5th Dist. Stark No.

2003CA00384, 2004-Ohio-4943,¶9.          Ownership of the contraband need not be

established in order to find constructive possession. State v. Smith, 9th Dist. Summit No.

20885, 2002-Ohio-3034, ¶13, citing State v. Mann, 93 Ohio App.3d 301, 308, 638 N.E.2d

585(8th Dist. 1993). Furthermore, possession may be individual or joint. Wolery, 46 Ohio
Stark County, Case No. 2017CA00114                                                          11


St.2d at 332, 348 N.E.2d 351. Multiple individuals may constructively possess a particular

item of contraband simultaneously. State v. Pitts, 4th Dist. Scioto No. 99 CA 2675, 2000-

Ohio-1986. The Supreme Court has held that knowledge of illegal goods on one's

property is sufficient to show constructive possession. State v. Hankerson, 70 Ohio St.2d

87, 91, 434 N.E.2d 1362, 1365(1982), certiorari denied, 459 U.S. 870, 103 S.Ct. 155, 74

L.Ed.2d 130(1982).

       {¶26} If the state relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61 Ohio

St.3d 259, 272, 574 N.E. 2d 492(1991), paragraph one of the syllabus, superseded by

State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668(1997). “Circumstantial evidence and direct evidence inherently

possess the same probative value [.]” Jenks, 61 Ohio St.3d at paragraph one of the

syllabus.   Furthermore, “[s]ince circumstantial evidence and direct evidence are

indistinguishable so far as the jury's fact-finding function is concerned, all that is required

of the jury is that i[t] weigh all of the evidence, direct and circumstantial, against the

standard of proof beyond a reasonable doubt.” Jenks, 61 Ohio St.3d at 272, 574 N.E. 2d

492. While inferences cannot be based on inferences, a number of conclusions can result

from the same set of facts. State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293(1990),

citing Hurt v. Charles J. Rogers Transp. Co, 164 Ohio St. 329, 331, 130 N.E.2d 820(1955).

Moreover, a series of facts and circumstances can be employed by a jury as the basis for

its ultimate conclusions in a case. Lott, 51 Ohio St.3d at 168, 555 N.E.2d 293, citing Hurt,

164 Ohio St. at 331, 130 N.E.2d 820.
Stark County, Case No. 2017CA00114                                                       12

       {¶27} In Ulster County Court v. Allen, 442 U. S. 140, 99 S.Ct. 2213(1979), the

United States Supreme Court upheld a statute which provided that the presence in an

automobile, other than a public one, of a firearm “is presumptive evidence of its

possession by all persons occupying such automobile at the time except (a) where the

firearm is found upon the person of an occupant, (b) where the automobile is being

operated for hire by a licensed operator or (c) if the weapon is a handgun and one of the

occupants, not present under duress, has a license to have a handgun.” Id. at 442 U. S.

142-143, 99 S.Ct. 2217. The Court noted that the presumption was not a mandatory;

rather it was a permissive inference available only in certain circumstances. Further, the

jury could ignore the presumption even if there was no affirmative proof offered in rebuttal

by the accused. Id. at 160-162, 99 S.Ct. at 2226-2227. Finally, the trial judge in Allen

explained, “that possession could be actual or constructive, but that constructive

possession could not exist without the intent and ability to exercise control or dominion

over the weapons.” Id. at 161, 99 S.Ct. at 2226.

       {¶28} The evidence produced during Holman’s jury trial included a Marlboro Red

cigarette box and a Marlboro filter that were found on Holman's person. In the car, a

Marlboro Red cigarette box was found between the center console and the passenger

seat, which contained the drugs. Holman had a Marlboro Red cigarette butt in his pocket;

a second Marlboro Red cigarette butt was found on the floor of the driver side of the

automobile.

       {¶29} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Holman exercised control or dominion over the drugs. We hold,
Stark County, Case No. 2017CA00114                                                     13


therefore, that the state met its burden of production regarding aggravated possession of

drugs and accordingly, there was sufficient evidence to support Holman’s conviction.

      b). Driving under suspension.

      {¶30} Holman was indicted for driving under suspension in violation of R.C.

4501.11(A), which states,

              (A) Except as provided in division (B) of this section and in sections

      4510.111 and 4510.16 of the Revised Code, no person whose driver’s or

      commercial driver’s license or permit or nonresident operating privilege has

      been suspended under any provision of the Revised Code, other than

      Chapter 4509. of the Revised Code, or under any applicable law in any

      other jurisdiction in which the person’s license or permit was issued, shall

      operate any motor vehicle upon the public roads and highways or upon any

      public or private property used by the public for purposes of vehicular travel

      or parking within this state during the period of suspension unless the

      person is granted limited driving privileges and is operating the vehicle in

      accordance with the terms of the limited driving privileges.

Emphasis added. At trial, the state produced evidence that Holman’s license was an

“FRA” suspension, which the officer noted on the citation he gave to Holman. T. at 109-

110; 116-117; 184-186. See also, Brief of Appellee at 5-6; 10.

             {¶31} R.C. 4509.101 provides for a suspension of a person’s

      driver’s license for failure to maintain proof of financial responsibility:

             (A)(1) No person shall operate, or permit the operation of, a motor

      vehicle in this state, unless proof of financial responsibility is maintained
Stark County, Case No. 2017CA00114                                                           14


          continuously throughout the registration period with respect to that vehicle,

          or, in the case of a driver who is not the owner, with respect to that driver's

          operation of that vehicle.

                 (2) Whoever violates division (A)(1) of this section shall be subject to

          the following civil penalties:

                 (a) Subject to divisions (A)(2)(b) and (c) of this section, a class (F)

          suspension of the person's driver's license, commercial driver's license,

          temporary instruction permit, probationary license, or nonresident operating

          privilege for the period of time specified in division (B)(6) of section 4510.02

          of the Revised Code and impoundment of the person's license.

          {¶32} A suspension for driving under financial responsibility law suspension

[“FRA”] is expressly exempt by the specific wording of R.C. 4501.11(A); this is necessarily

true because driving under an FRA suspension is governed by R.C. 4510.16, which

states,

                 (A) No person, whose driver’s or commercial driver’s license or

          temporary instruction permit or nonresident’s operating privilege has been

          suspended or canceled pursuant to Chapter 4509. of the Revised Code,

          shall operate any motor vehicle within this state, or knowingly permit any

          motor vehicle owned by the person to be operated by another person in the

          state, during the period of the suspension or cancellation, except as

          specifically authorized by Chapter 4509. of the Revised Code. No person

          shall operate a motor vehicle within this state, or knowingly permit any motor

          vehicle owned by the person to be operated by another person in the state,
Stark County, Case No. 2017CA00114                                                       15

       during the period in which the person is required by section 4509.45 of the

       Revised Code to file and maintain proof of financial responsibility for a

       violation of section 4509.101 of the Revised Code, unless proof of financial

       responsibility is maintained with respect to that vehicle.

Emphasis added. By its express terms, R.C. 4501.11(A) only applies to a driver’s license

that has been suspended under any provision of the Revised Code other than the statutes

governing financial responsibility. These two statutes are not identical.

       {¶33} Driving under suspension, in violation of R.C. 4510.11, is a first-degree

misdemeanor. R.C. 4510.11(D)(1). Driving under an FRA suspension, in violation of

R.C. 4510.16, is generally an unclassified misdemeanor, punishable by a fine up to

$1,000 and up to 500 hours of community service. R.C. 4510.16(D)(1). Jail time and

community residential sanctions are generally not permitted for a violation of R.C.

4510.16. R.C. 4516(D)(1). If within three years of the FRA suspension the offender

previously was convicted of or pleaded guilty to two or more violations of R.C. 4510.16,

the offense is a fourth-degree misdemeanor. R.C. 4510.16(D)(2). A violation of R.C.

4510.11 is an arrestable offense. See, State v. Howard, 11th Dist. Lake No. 2009–L–

158, 2010–Ohio–2817, ¶26, but a violation of R.C. 4510.16 is not, R.C.

4509.101(D)(1)(b). See, State v. Vineyard, 2nd Dist. No. 25854, 2014-Ohio-3846, n. 2.

       {¶34} In the case at bar, the jury was not instructed pursuant to R.C. 4510.16 that

it must find Holman was driving during a period in which he had failed to satisfy all of the

statutory requirements for reinstatement of his license from an FRA suspension. (T. at

196-198).
Stark County, Case No. 2017CA00114                                                       16


      {¶35} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could not have found beyond a

reasonable doubt that Holman’s operating privilege had been suspended under any

provision of the Revised Code, other than Chapter 4509.            Therefore, we find that

reasonable minds could not reach the conclusion reached by the trier-of-fact.

      {¶36} Because there was insufficient evidence that Holman violated R.C.

4501.11(A), pursuant to the authority contained in Section 3(B) (2), Article IV of the Ohio

Constitution and R.C. 2953.07, Holman’s conviction and sentence on Count Two of the

Indictment Driving under Suspension in violation of 4501.11(A) is vacated.

      B. Manifest weight of the evidence.

      {¶37} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

             “[I]n determining whether the judgment below is manifestly against

      the weight of the evidence, every reasonable intendment and every

      reasonable presumption must be made in favor of the judgment and the

      finding of facts.

                                            ***

              “If the evidence is susceptible of more than one construction, the

      reviewing court is bound to give it that interpretation which is consistent with
Stark County, Case No. 2017CA00114                                                           17


       the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶38} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d

904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.

Because the trier of fact sees and hears the witnesses and is particularly competent to

decide whether, and to what extent, to credit the testimony of particular witnesses, the

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In

other words, “[w]hen there exist two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–

Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th

Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

       {¶39} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘the jury 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, supra, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
Stark County, Case No. 2017CA00114                                                      18


1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.” Id.

       ISSUE FOR APPEAL.

       Whether the jury court clearly lost their way and created such a manifest

miscarriage of justice that the convictions must be reversed and a new trial ordered.

       {¶40} In the case at bar, Holman’s defense centered upon the credibility of

Christopher Predojev.    Holman argues that the testimony of Predojev is credible;

however, Predojev’s statement to Officer Vincent that half the drugs belonged to Predojev

is not credible.

       {¶41} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. “While the trier of

fact may take note of the inconsistencies and resolve or discount them accordingly * * *

such inconsistencies do not render defendant’s conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional
Stark County, Case No. 2017CA00114                                                       19

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n. 4,

684 N.E.2d 668 (1997).

       {¶42} In the case at bar, the jury heard the witnesses, viewed the evidence and

heard Holman’s attorney’s arguments and explanations about Holman, Predojev and the

investigating officers’ actions. The jury was able to see for themselves Predojev and

Vincent subject to cross-examination. Thus, a rational basis exists in the record for the

jury’s decision.

       {¶43} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury

neither lost his way nor created a miscarriage of justice in convicting Holman of

aggravated possession of drugs.

       {¶44} Based upon the foregoing and the entire record in this matter we find

Holman’s convictions for aggravated possession of drugs is not against the sufficiency or

the manifest weight of the evidence. To the contrary, the jury appears to have fairly and

impartially decided that matter. The jury heard the witnesses, evaluated the evidence,

and was convinced of Holman’s guilty of aggravated possession of drugs.

       {¶45} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crime of aggravated possession of drugs in violation of R.C. 2925.11(A)(C)(1)(a) for which

Holman was convicted.

                                         CONCLUSION.
Stark County, Case No. 2017CA00114                                                       20


       {¶46} Holman’s second assignment of error is affirmed, in part and overruled in

part. Holman’s conviction on Count One of the Indictment aggravated possession of

drugs is affirmed.

       {¶47} Pursuant to the authority contained in Section 3(B) (2), Article IV of the Ohio

Constitution and R.C. 2953.07, Holman’s conviction and sentence on Count Two of the

Indictment driving under suspension in violation of 4501.11(A) is vacated.

                                                III.

       {¶48} In his third assignment of error, Holman challenges his sentence on the

ground that the trial court punished him by going to trial by imposing the aggregate eleven-

month prison sentencing. According to Holman, the trial court punished him for going to

trial with the eleven-month sentence instead of imposing the proffered plea offer of a jail

term between 90 and 120 days.

                            STANDARD OF APPELLATE REVIEW.

       {¶49} It is axiomatic that “a defendant is guaranteed the right to a trial and should

never be punished for exercising that right [.]” State v. O'Dell, 45 Ohio St.3d 140, 147,

543 N.E.2d 1220, 1227(1989).       Thus, the augmentation of sentence based upon a

defendant's decision to stand on his right to put the government to its proof rather than

plead guilty is improper. United States v. Araujo, 539 F.2d 287(2nd Cir. 1976), certiorari

denied sub. nom. Rivera v. United States, 429 U.S. 983, 97 S.Ct. 498, 50 L.Ed.2d

593(1979); United States v. Hutchings, 757 F.2d 11, 14(2nd Cir. 1985); United States v.

Derrick, 519 F.2d 1, 3(6th Cir. 1975); State v. Howard, 5th Dist. Stark No. 2012CA00061,

2013-Ohio-2884, ¶81.
Stark County, Case No. 2017CA00114                                                        21


       {¶50} Moreover, courts must not create the appearance that it has enhanced a

defendant’s sentence because he has elected to put the government to its proof. United

States v. Hutchings, supra; United States v. Stockwell, 472 F.2d 1186, 1187(9th Cir.

1973). The chilling effect of such a practice upon standing trial would be as real as the

chilling effect upon taking an appeal that arises when a defendant appeals, is reconvicted

on remand, and receives a greater punishment. State v. Morris, 159 Ohio App.3d 775,

2005–Ohio–962, 825 N.E.2d 637 (8th 2005), ¶ 12 citing State v. Scalf, 126 Ohio App.3d

614, 621, 710 N.E.2d 1206 (1998) and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct.

2072, 23 L.Ed.2d 656 (1969); Howard, 2013-Ohio-2884, ¶82.

       {¶51} However, when a defendant receives a harsher sentence following his

rejection of a plea offer, there is not a “reasonable likelihood” that the sentence was based

on actual vindictiveness. The Ohio Supreme Court has declined to apply a presumption

of vindictiveness, and instead has held that the appellant must prove actual

vindictiveness. See United States v. Wasman, 468 U.S. 559, 569, 104 S.Ct. 3217, 82

L.Ed.2d 424(1984); State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.2d 431,

¶16.

       {¶52} Having declined to presume that the trial court acted with vindictiveness, we

begin our review of an appellant’s sentence as we do in any other appeal—with the

presumption that the trial court considered the appropriate sentencing criteria. State v.

O'Dell, 45 Ohio St.3d 140,147, 543 N.E.2d 1220(1989); State v. Rahab, 150 Ohio St.3d

152 at ¶9. We then review the entire record—the trial court's statements, the evidence

adduced at trial, and the information presented during the sentencing hearing—to

determine whether there is evidence of actual vindictiveness.          We will reverse the
Stark County, Case No. 2017CA00114                                                            22


sentence only if we clearly and convincingly find the sentence is contrary to law because

it was imposed as a result of actual vindictiveness on the part of the trial court. See R.C.

2953.08(G)(2); State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 1; State v. Rahab, 150 Ohio St.3d 152 at ¶33.

       {¶53} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the

degree of proof required sustaining an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

120 N.E.2d 118.

       ISSUE FOR APPEAL.

       Whether the eleven-month prison sentence in Holman’s case is clearly and

convincingly contrary to law because it was imposed because of actual vindictiveness on

the part of the trial court.

       {¶54} At a pretrial hearing two months before trial, the trial court discussed with

Holman a plea offer from the state. In exchange for his guilty plea to the two charged

offenses, the state would agree that Holman would submit a presentence investigation

report ("PSI") to the trial court and let the court decide his sentence. The court could

impose a community control sanction or a prison term, depending on the contents of this

PSI. The following exchange occurred, at the pretrial hearing:
Stark County, Case No. 2017CA00114                                                        23


              [COURT]: Okay. We are here for a pretrial today. There was an

       offer today of to do a PSI which means the Court would consider probation.

       The worst-case scenario - I indicated to your lawyer who's done a good job

       for you - - would be a ship-and-shock, a short prison term would be a

       possibility, or treatment at our facility, the SRCCC; because it appears, just

       from what I reviewed, that there is an issue of a drug problem.

              We have certain opportunities that I have to tell you about. Number

       one, if that's rejected today, then we will go to trial. At a trial I could give

       more, I could give less. You're looking at 12 months in prison in this case.

              Is it your intention to turn down that offer?

              [HOLMAN]: Yes, Your Honor.

T. (Pretrial: March 27, 2017) at 3. Rather than threatening Holman with more time in

prison should he exercise his right to a jury trial, the court was simply ensuring that he

understood the choice he was making. In the case at bar, Holman cites only the following

exchange in support of his argument that the trial court enhanced his sentence because

he decided to exercise his right to a jury trial,

              THE COURT: Okay. I just want to make sure everyone’s clear.

       There was an offer to you of a PSI, 90 to 120 days incarcerated, excuse

       me, and then the SRCCC.

              It’s my understanding you’ve turned that down?

              [HOLMAN]:        Yes, Your Honor.

              THE COURT:        Okay. No problem.
Stark County, Case No. 2017CA00114                                                    24


T. at 7. Again, the trial court made no threat or promise concerning sentence should

Holman be found guilty of the offenses. At sentencing the court explained,

             THE COURT: Okay. The way I understand it, there's one felony

      conviction of aggravated possession of drugs today. It carries a 12-month

      maximum sentence and a fine of $2500.

             I've reviewed the record and it's obvious to me, Mr. Holman. I've

      reviewed the parameters outlined in 2929.11 through 17 of the Revised

      Code, including the seriousness of the offense and the recidivism factors.

      You have a drug problem. And I'm not trying to be mean to you. You have

      in 2014, 24 months for illegal assembly. I see another conviction of unlawful

      purchase of products. One of the goals I wanted to do in this case was get

      you help, because I think you really need help.

             Unfortunately, you didn't want help, and as a result of that, you put

      me in a very awkward position. I've reviewed your record, the facts of the

      case, and as a result, on the aggravated possession of drugs, I'm going to

      sentence you to a period of 11 months in prison.

             Count Two, under the suspended license, 60 days in the local jail,

      run it concurrent with Count One, and you've already served that, so it would

      basically be moot. Therefore, you'll be sentenced to 11 months in prison.

             By sending you to prison, it will bring in the issue of what's called

      post-release control. If you were to violate the terms of the Adult Parole

      Authority, they could impose a prison term not to exceed nine months;
Stark County, Case No. 2017CA00114                                                        25


      multiple violations, a prison term not to exceed one half of your original

      sentence, and that would be discretionary for three years on that count.

T. at 236-237.

      {¶55} The Ohio Supreme Court has observed,

             Furthermore, as the court made clear in [Alabama v.]Smith 490 U.S.

      794, 801-802, 104 L.Ed.2d 865, 109 S.Ct. 2201(1989)], there are legitimate

      reasons a defendant who rejects a plea may end up receiving a harsher

      sentence.    Acceptance of responsibility is an appropriate sentencing

      consideration. Id. at 801, 109 S.Ct. 2201. Moreover, a plea bargain is, after

      all, a bargain. In the bargain, the prosecutor achieves certain benefits: a

      forgoing of the risk that the defendant will be found not guilty, relief from the

      burden of trying the case and a concomitant ability to devote prosecutorial

      resources to other cases, and limitations on the defendant's right to appeal

      an agreed sentence, see R.C. 2953.08(D)(1). In return, the prosecutor is

      able to offer the defendant certain sentencing considerations. Both sides

      exchange risk about the outcome for an enhanced degree of certainty. For

      the bargain to be worth anything to the defendant (at least in most cases),

      the defendant must have a reasonable probability of receiving a more

      lenient sentence than he would following trial and conviction.

State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.2d 431, ¶17.

      {¶56} Given the record before us, we are not convinced that the court sentenced

Holman based on vindictiveness, rather than on the evidence of his prior record and

insincere remorse. A trial court is not forever bound to impose a sentence based upon a
Stark County, Case No. 2017CA00114                                                        26


pre-trial offer made in exchange for a guilty plea. Simply because it does not honor the

pre-trial offer is not, standing alone, evidence of actual vindictiveness.

       {¶57} Holman’s third assignment of error is overruled.

                                            Conclusion.

       {¶58} Holman’s first and third assignments of error are overruled.

       {¶59} Holman’s second assignment of error is affirmed, in part and overruled in

part. Holman’s conviction on Count One of the Indictment Aggravated Possession of

Drugs is affirmed. Pursuant to the authority contained in Section 3(B) (2), Article IV of the

Ohio Constitution and R.C. 2953.07, Holman’s conviction and sentence on Count Two of

the Indictment Driving under Suspension in violation of 4501.11(A) is vacated.

       {¶60} The decision of the Stark County Court of Common Pleas is affirmed, in part

and vacated in part.




By Gwin, J.,

Wise, P.J., and

Baldwin, J., concur
