[Cite as State v. Gibson, 2017-Ohio-1266.]



                               STATE OF OHIO, NOBLE COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )           CASE NO. 16 NO 0431
V.                                               )
                                                 )                  OPINION
CHRISTOPHER L. GIBSON, JR.,                      )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Nobel County, Ohio
                                                 Case No: 215-2030

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Kelly A. Riddle
                                                 Prosecutor
                                                 150 Courthouse
                                                 Caldwell, Ohio 43724

For Defendant-Appellant                          Attorney Chandra L. Ontko
                                                 665 Southgate Parkway
                                                 Cambridge, Ohio 43725




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                 Dated: March 31, 2017
[Cite as State v. Gibson, 2017-Ohio-1266.]

DONOFRIO, J.

        {¶1}     Defendant-appellant, Christopher Gibson, appeals from a Noble County
Common Pleas Court judgment convicting him of illegal conveyance of prohibited
items onto the grounds of a detention facility following a jury trial.
        {¶2}     On February 25, 2015, Deputy Paul Channel transported appellant to
the Noble County Jail. Deputy Channel testified that he took appellant to the shower
room, collected his street clothes, advised him to shower, and then left the room.
Deputy Channel also said he did a head-to-toe search of appellant. However that
search would not have revealed whether or not something had been ingested,
Deputy Channel admitted.
        {¶3}     Jail personnel assigned appellant to the 16-person dorm known as
“DO-3”. The dorm consists of a large open room with 16 bunks, 2 showers with
curtains, and 2 partially walled-off toilet areas. Two other inmates besides appellant
also occupied that dorm.
        {¶4}     The day after appellant was booked, on February 26, Corrections
Officer Zane Love conducted a walk-through of DO-3. Upon entering the dorm,
Officer Love said he immediately smelled marijuana. Officer Love asked the inmates
who had the marijuana, but none of them admitted to it. So Officer Love requested
backup and searched the dorm. Nothing was found.
        {¶5}     Upon later being questioned by Detective Captain Robert Pickenpaugh,
appellant purportedly admitted that, during the February 26 search, he had hidden
the marijuana-filled balloon in his hand, swallowed it, and would later pass it.
        {¶6}     Two days later, on February 28, Officer Love became aware that there
might be drugs in the jail. So, along with backup, he again searched DO-3. This time,
next to appellant’s bed, Officer Love discovered a jail-issued cup with a lid on it.
According to the officer, appellant said it was his spit cup. When Officer Love opened
the lid, he could see the cup was filled with toilet paper. Unraveling the toilet paper,
the officer found two balloons that smelled strongly of marijuana.
        {¶7}     Officer Love asked appellant where the drugs had come from.
According to the officer, appellant replied, “They’re mine.” The officer followed up,
                                                                              -2-


asking “Where did the drugs come from? Were they inside you when you came into
the jail?” To which appellant purportedly answered, “Yes, they’re mine for my own
personal use.”
      {¶8}   Later that same day, during the course of the investigation, appellant
and another inmate reported that they had found the marijuana in an electrical socket
in the dorm. Officer Love described this as a “concerted” explanation, recounting that
some time had passed after the marijuana was discovered and before appellant was
locked down. Officer Love reviewed the surveillance video that showed the electrical
outlet in question, and he testified that he saw no one access that socket. The video
was not made part of the record.
      {¶9}   During the February 28 investigation, officers also found a pen with
suspected drug residue on it. The pen was found on an inmate named Littleton, who
shared a “bunk or cell” with appellant. The record did not disclose what exactly the
suspected drug residue was.
      {¶10} Next, Corrections Officer Ron Saling arrived to photograph the
evidence, i.e., the balloons. And another officer later transported the evidence to the
Bureau of Criminal Identification and Investigation (“BCI”), where test results showed
that the substance in the balloons was indeed marijuana.
      {¶11} Two days later, on March 2, Detective Pickenpaugh interviewed
appellant, after having him sign a waiver-of-rights form. According to Detective
Pickenpaugh, appellant initially denied everything. Then the detective told appellant
that he could send the balloons away for DNA testing, and it would probably come
back as a match. That apparently prompted appellant to give the detective a more
detailed explanation — i.e., (1) that he was attempting to purchase the marijuana
from another inmate, Joe Hess, by having his wife put money on Hess’ books; and
(2) that he had had the balloon in his hand when Officer Love walked into the dorm
on February 26, at which time he swallowed it, and it passed through his body.
      {¶12} Detective Pickenpaugh also interviewed Hess. Hess had apparently
arrived at the dorm two days after appellant, on February 27. According to Detective
                                                                              -3-


Pickenpaugh, appellant’s account and Hess’ account were not consistent. Hess did
not testify in this action.
       {¶13} On April 29, 2015, the grand jury indicted appellant on one count of
illegal conveyance of prohibited items onto the grounds of a detention facility, a
violation of R.C. 2921.36(A)(2), a felony of the third degree. Appellant pleaded not
guilty, and the case went to trial before a jury on March 22, 2016. The jury returned a
guilty verdict. On May 12, 2016, the trial court sentenced appellant to 30 months of
incarceration and ordered him to pay costs. Appellant timely filed a notice of appeal
on May 17, 2016.
       {¶14} Appellant raises three assignments of error.
       {¶15} Appellant’s first assignment of error states:

       THE JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶16} Appellant argues that his conviction was against the manifest weight of
the evidence. He first points out that, although Officer Love testified that appellant
admitted that the marijuana was his, Officer Love did not record that statement or
read appellant his rights. Appellant then concludes that “there is no indication or
evidence” that appellant actually told the officer the drugs were his and that he
brought them into the jail.
       {¶17} Next appellant highlights the testimony of Deputy Channel, who booked
appellant into the jail. Appellant emphasizes the fact that Deputy Channel had
appellant in his control and had the responsibility to ensure appellant did not break
the rules. Appellant adds that Deputy Channel did not notice appellant doing
anything. In addition, appellant noted the fact that Deputy Channel could not recall
whether he had frisked appellant before or after he entered the jail.
       {¶18} Appellant then takes issue with the testimony of Officer Saling, who
photographed the balloons. Appellant, in making his manifest weight argument, relies
on the fact that Officer Saling did not know where the balloons came from, did not
                                                                                   -4-


open them, and did not know what was inside.
       {¶19} With respect to the marijuana that was found, appellant argues that
officials never found the drugs on his person. Moreover appellant points out that,
although the marijuana was found in a cup near his bunk, the surveillance video
supposedly did not show appellant doing anything with the cup. Appellant then notes
that a pen with powder residue was found in a different inmate’s pocket, appearing to
cast blame on that inmate instead.
       {¶20} Lastly appellant argues that the state failed to show the full chain of
custody of the marijuana. Appellant notes that Detective Pickenpaugh was not sure
who transported the evidence to BCI, having testified that he believed it was
Sergeant Pointer. Appellant also attacks the chain of custody by noting that the
state’s last witness, Elizabeth Wolford, from BCI, testified that she had nothing to do
with transporting the evidence.
       {¶21} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine whether, in resolving conflicts in the
evidence, the jury clearly lost its way and created such a miscarriage of justice that
the conviction must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio
St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541 (1997). “Weight of the evidence
concerns ‘the inclination of the greater amount of credible evidence, offered in a trial,
to support one side of the issue rather than the other.’” Id. at 387. (Emphasis sic). In
making its determination, a reviewing court is not required to view the evidence in a
light most favorable to the prosecution but may consider and weigh all of the
evidence produced at trial. Id. at 390 (Cook, J. concurring).
       {¶22} Granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of facts
who sits in the best position to judge the weight of the evidence and the witness’
                                                                               -5-


credibility by observing their gestures, voice inflections, and demeanor. State v.
Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill, 75 Ohio
St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231,
227 N.E.2d 212 (1967). Thus, “[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. No. 99-
CA-149, 2002-Ohio-1152.
      {¶23} The jury found appellant guilty of illegal conveyance, a violation of
R.C. 2921.36(A), which forbids any person from (1) knowingly (2) conveying or
attempting to convey (3) a drug of abuse (4) onto the grounds of a detention facility.
Appellant has challenged the verdict as being against the manifest weight of the
evidence. To determine that issue, we must first review the record from the trial court.
      {¶24} The record shows that appellant traveled to the Noble County Jail. (Tr.
87). Once there, Deputy Channel searched appellant; however that search was not
invasive enough to reveal whether or not appellant had ingested contraband with the
intent of passing it. (Tr. 88–89). After appellant was housed inside the detention
center, Officer Love said that he smelled marijuana in appellant’s dorm and
conducted    a   search.   (Tr.   103–104).    Appellant    purportedly   admitted    to
Detective Pickenpaugh that he swallowed the marijuana-filled balloon during this
search and then passed the contraband. (Tr. 148). Later Officer Love found two
balloons containing marijuana, wrapped in toilet paper, inside a “spit cup” belonging
to appellant and next to appellant’s bed. (Tr. 107, 121, 169). Officer Love questioned
appellant. (Tr. 108). And by answering Officer Love’s questions (“Where did the
drugs come from? Were they inside you when you came into the jail?”) in the
affirmative, appellant effectively admitted to having marijuana inside of him when he
came to the jail. (Tr. 108). One may reasonably infer from this evidence in the record
that appellant conveyed a drug of abuse onto the grounds of a detention facility.
      {¶25} Notably, the explanations that appellant gave evolved over time. At first
appellant said he found the marijuana and flushed it down the toilet. (Tr. 106). Later,
                                                                               -6-


appellant said he had found the drugs inside of a light socket. (Tr. 109). And then,
when interviewed by Detective Pickenpaugh, appellant eventually said that he was
attempting to purchase the marijuana from another inmate, Hess, by having his wife
put money on Hess’ books. (Tr. 147–148, 155). In addition, appellant revised his
explanation when he gave it to Detective Pickenpaugh, admitting he had the balloon
in his hand when Officer Love walked into the dorm the first time, at which time he
swallowed it and later passed it through his body. (Tr. 148).
        {¶26} Notably appellant’s account that he was trying to purchase drugs from
Hess seems to conflict with other facts in the record. (Tr. 147–148, 155). For context,
appellant arrived at the jail on February 25. (Tr. 87). Officer Love searched the dorm
on February 26. (Tr. 103–104). Appellant told the detective that during that search,
he concealed the balloon in his hand and swallowed it. (Tr. 148). But appellant also
told the detective that he was attempting to purchase the drugs from Hess. (Tr. 148,
155). Appellant’s narrative notwithstanding, according to Officer Love, prison officials
did not transfer Hess to appellant’s dorm until February 27. (Tr. 117). Thus Hess
ostensibly would not have been able to supply appellant with the drugs, as
appellant’s story implies, on February 26.
        {¶27} Nevertheless, it was the province of the jury to decide what evidence or
explanation they believed.
        {¶28} Appellant also makes arguments regarding the less-than-thorough
search conducted by Deputy Channel and the photographs of balloons taken by
Officer Saling, who was not personally aware of the contraband contained within.
(Tr. 88–89, 142–143). Both of those arguments go to the weight of the evidence as
well.
        {¶29} Moreover appellant argues that the drugs were not found on his person
and that the video does not show him handling the cup that contained the marijuana.
(Tr. 107–108, 121–122). These go to the weight of the evidence too. And they must
be weighed against the fact that appellant admitted that the cup was his “spit cup”
and the fact that the cameras do not cover the entirety of the dorm. (Tr. 107, 131–
                                                                                -7-


132).
        {¶30} Appellant points out that officers found a pen with a powder residue on
another inmate during the search. (Tr. 121). Appellant appears to imply that that
inmate was to blame for the marijuana as well. However, the record does not show
what that powder was. Nonetheless, that was something for the jury to weigh.
        {¶31} Lastly appellant highlights the fact that appellee failed to show the full
chain of custody for the marijuana. (Tr. 149–151, 160–163, 171). However, appellee
did not have to show the full chain of custody. Appellee’s burden only required that it
show to a reasonable certainty that substitutions, alterations, or tampering did not
occur. In re Lemons, 77 Ohio App.3d 691, 693, 603 N.E.2d 315 (8th Dist.1991). Any
breaks in the chain of custody went to the weight of the evidence, not its admissibility.
State v. Howell, 7th Dist. No. 10-MA-148, 2012-Ohio-4349, ¶ 79.
        {¶32} Here, Officer Love testified that he believes he bagged and marked the
contraband in this case. (Tr. 136). Det. Pickenpaugh explained how their process
goes from there. In particular, Det. Pickenpaugh testified that officers will place
evidence in a pre-evidence locker that has a key. (Tr. 149). The officer will then give
notice to Detective Pickenpaugh, and he will prepare the paperwork to have the
evidence analyzed, he said. (Tr. 149). And then, every Tuesday an officer transports
evidence to BCI; in this instance, Sergeant Pointer transported the evidence to the
Cambridge BCI, according to Det. Pickenpaugh’s recollection. (Tr. 149). Elizabeth
Wolford, who works for BCI, explained that once evidence has been dropped off, it’s
received by the evidence receiving team, who codes it and places it in a sealed
container to await analysis. (Tr. 165–166). The evidence goes into scientist custody
during analysis, and then it is returned to the evidence receiving team, who returns it
to the original agency, Wolford said. (Tr. 166).
        {¶33} The state’s burden was to show—to a reasonable certainty—that
substitutions, alterations, or tampering did not occur. The state met that burden by
presenting the following evidence: the use of a lockable pre-evidence locker; the
maintenance of the jail’s paperwork system; the regularly scheduled transports; and
                                                                                    -8-


BCI’s use of codes. In addition, Det. Pickenpaugh testified there was no reason to
believe that the evidence was tampered with. Having reviewed the evidence, we
conclude the record shows that the state met its burden in terms of showing—to a
reasonable certainty—that substitutions, alterations, or tampering did not occur
(Tr. 163).
       {¶34} The evidence in the record supports the jury’s verdict. Officers found
what turned out to be contraband inside a cup that appellant admitted was his.
(Tr. 107, 121, 169). And then appellant admitted that he transported the contraband
into the facility. (Tr. 108). In light of the evidence in support of the verdict, appellant’s
arguments regarding the weight of the evidence fail to establish that a miscarriage of
justice has occurred.
       {¶35} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
       {¶36} Appellant’s second assignment of error states:

       THE APPELLANT ALLEGES HE WAS DENIED HIS RIGHT TO THE
       EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

       {¶37} Here appellant argues that defense counsel failed to effectively assist
him. Appellant claims that defense counsel was ineffective because he failed to
subpoena Hess, the “key” witness who would have provided exculpatory evidence,
according to appellant.
       {¶38} Appellant next claims that no statements or incident reports from
corrections officers were introduced into the record, overlooking Defendant’s Exhibit
A, which was the report of Officer Love. Appellant further takes issue with the fact
that counsel did not introduce Detective Pickenpaugh’s interview summaries into the
record.
       {¶39} Appellant’s last ineffectiveness claim concerns motions that appellant
says he requested counsel file including “a motion for a bill of particulars, a motion to
change venue, a motion for a fast and speedy trial, a subpoena duces tecum [sic] of
                                                                              -9-


witnesses, and other motions.” Appellant contends that these motions may have
helped him in this matter and that he could have been found not guilty had counsel
been effective.
      {¶40} To prove an allegation of ineffective assistance of counsel, the
appellant must satisfy a two-pronged test. First, appellant must establish that
counsel’s performance has fallen below an objective standard of reasonable
representation. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), State v. Bradley, 42 Ohio St.3d 136, 141–142, 538 N.E.2d 373
(1989). Second, appellant must demonstrate that he was prejudiced by counsel’s
performance. Id. To show that he was prejudiced by counsel’s performance,
appellant must prove that, but for counsel’s errors, the result of the trial would have
been different. Bradley.
      {¶41} Appellant bears the burden of proof on the issue of counsel’s
ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714
N.E.2d 905 (1999). In Ohio, a licensed attorney is presumed competent. Id.
      {¶42} Appellant’s claim that trial counsel was ineffective because he did not
call Hess as a witness is not supported by the record. The mere failure to call a
witness does not render counsel’s assistance ineffective absent a showing of
prejudice. State v. Brown, 7th Dist. No. 12-MA-118, 2015-Ohio-793, ¶ 8, citing State
v. Hector, 2d Dist. No. 18653, 2002-Ohio-1200. And the record in this case does not
show how counsel’s decision not to call Hess prejudiced appellant. For instance,
appellant apparently claimed that Hess was selling the drugs to him. (Tr. 147–148,
155). However, the testimony at trial showed that the drugs were in appellant’s
possession when Officer Love first did his walkthrough, which was one day before
Hess arrived in appellant’s dorm. (Tr. 103–104, 117, 148). In addition, Detective
Pickenpaugh testified that the explanations from appellant and Hess were not
consistent. (Tr. 151). Thus, appellant has not demonstrated how trial counsel’s
choice not to call Hess prejudiced him.
      {¶43} The same is true for appellant’s other claims that counsel was
                                                                                - 10 -


ineffective. Appellant argues that trial counsel was ineffective for failing to introduce
statements     or   incident   reports   into   the   record   (Defendant’s   Exhibit    A
notwithstanding). (Tr. 128–129, 185–186). And appellant argues that trial counsel
was ineffective for not filing a number of motions. However, appellant has not
demonstrated how the result at trial would have been different had counsel
introduced the statements or reports or had counsel filed those motions. Without a
showing of prejudice, this court cannot find that counsel was ineffective. Therefore,
appellant’s second assignment of error is without merit and is overruled.
       {¶44} Appellant’s third and final assignment of error states:

       THE APPELLANT ALLEGES HE WAS DENIED A FAIR TRIAL BY THE
       CUMULATIVE EFFECT OF THE NUMEROUS ERRORS IN THIS
       TRIAL.

       {¶45} Appellant argues that the cumulative effect of the errors in his case
denied him a fair trial.
       {¶46} Appellant asserts that the delays caused memories of witnesses to
fade, caused some witnesses to be inaccessible, and certain evidence to not be
presented. Appellant does not give specific examples of which witnesses became
inaccessible or which evidence was not presented because of delays. Regarding
faded memories, appellant points to the difficulty that Deputy Channel had in
recalling the circumstances of when he searched appellant before entering the jail.
Appellant concludes that the delays prejudiced him.
       {¶47} Appellant next argues that he was prejudiced because he is African
American and the witnesses and jurors were all Caucasian. Appellant does not
support this assertion with any reference to the record.
       {¶48} Appellant finally reiterates that the confession that he apparently gave
to Officer Love was not recorded or prefaced with a waiver of Miranda rights.
       {¶49} An appellate court has the power to reverse a defendant’s conviction
based on the doctrine of cumulative error. Cumulative error occurs when errors
                                                                               - 11 -


deemed separately harmless cumulatively deny the defendant a fair trial. State v.
DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the
syllabus.
       {¶50} With respect to any delays, a defendant may waive his or her
constitutional and statutory rights to a speedy trial. State v. King, 70 Ohio St.3d 158,
1994-Ohio-412, 637 N.E.2d 903, paragraph one of the syllabus. In addition, motions
filed by the defendant may extend the time as well. R.C. 2945.72(E). That is what
happened here.
       {¶51} The grand jury indicted appellant on April 29, 2015. Appellant filed a not
guilty plea and a time waiver on June 1, 2015. He filed a demand for discovery on
May 22, 2015, a motion to preserve evidence on June 11, 2015, a motion to dismiss
on October 13, 2015, and a motion in limine on October 13, 2015. Then appellant
filed another time waiver on December 16, 2015. Under the circumstances in this
case, appellant having filed pretrial motions and having waived his right to a speedy
trial, he cannot now maintain that delays in starting the trial were error.
       {¶52} Appellant makes an argument that he was prejudiced on account of
race. However, an appellate court may only consider what is in the record. See
App.R. 9(A); State v. Ishmail, 54 Ohio St.2d 402, 405–406, 377 N.E.2d 500 (1978). In
this case, no objection was made with respect to racial prejudice. And the record
does not reflect any racial bias such that it may be considered plain error.
Accordingly appellant’s claim of bias is not supported.
       {¶53} Finally, appellant’s argument that the trial court erred regarding the non-
Mirandized confession also lacks merit. Appellant specifically argues the court erred
in admitting his alleged confession to Officer Love because appellant was not first
read his Miranda rights. (Tr. 122–124). However, appellant’s analysis is incorrect.
       {¶54} Courts have created a narrow exception to Miranda for “on-the-scene”
investigations such as the one that occurred in this case. See State v. Porter, 178
Ohio App.3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 16 (2d Dist.).
       {¶55} In the limited circumstance in which there is on-the-scene questioning
                                                                              - 12 -


of an inmate about a crime the inmate is suspected of having committed while in a jail
or prison facility, officers need not give Miranda warnings prior to an interrogation.
Porter at ¶ 16 citing State v. Holt, 132 Ohio App.3d 601, 607, 725 N.E.2d 1155 (1st
Dist.1997); State v. Schultz, 8th Dist. No. 46043, 1983 WL 4749, *1 (Sept. 22, 1983).
Here, Officer Love’s questioning of appellant was regarding a crime that appellant
was suspected to have committed while in the jail. (Tr. 107–108). Consequently, the
on-the-scene questioning falls into the narrow exception to Miranda, and thus did not
require prior warnings. Meanwhile, the fact that Officer Love did not record the
statement goes to the weight of the evidence.
       {¶56} Accordingly, appellant’s argument that the cumulative effect of alleged
errors in his case denied him a fair trial is unfounded.
       {¶57} Thus, appellant’s third assignment of is without merit and is overruled.
       {¶58} For the foregoing reasons, the trial court’s judgment is hereby affirmed.

Waite, J., concurs.

DeGenaro, J., concurs.
