[Cite as State v. Steward, 2014-Ohio-5632.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 13-14-11

        v.

RYAN D. STEWARD,                                        OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 14 CR 0047

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: December 22, 2014




APPEARANCES:

        James W. Fruth for Appellant

        Derek W. DeVine and Brian O. Boos for Appellee
Case No. 13-14-11


SHAW, J.

        {¶1} Defendant-appellant Ryan D. Steward (“Steward”) appeals the May 9,

2014 judgment of the Seneca County Common Pleas Court sentencing Steward to

30 months in prison after Steward was found guilty in a jury trial of Cultivation of

Marihuana in an amount exceeding 1,000 grams in violation of R.C.

2925.04(A),(C)(5)(d), a felony of the third degree, Trafficking Marihuana in an

amount exceeding 200 grams in violation of R.C. 2925.03(A)(2),(C)(3)(c), a

felony of the fourth degree, and Possessing Criminal Tools in violation of R.C.

2923.24(A),(C), a felony of the fifth degree.

        {¶2} The facts relevant to this appeal are as follows. On February 20,

2014, Steward was indicted for Cultivation of Marihuana in an amount exceeding

1,000 grams in violation of R.C. 2925.04(A),(C)(5)(d), a felony of the third

degree, Trafficking Marihuana in an amount exceeding 200 grams in violation of

R.C. 2925.03(A)(2),(C)(3)(c), a felony of the fourth degree, and Possessing

Criminal Tools in violation of R.C. 2923.24(A),(C), a felony of the fifth degree.1

(Doc. 1).

        {¶3} On March 6, 2014, Steward was arraigned and pled not guilty to the

charges against him.




1
  The Cultivation and Trafficking charges also contained specifications that certain property subject was
subject to forfeiture as proceeds derived from the commission of the offenses.

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Case No. 13-14-11


       {¶4} The case proceeded to a jury trial, which was held April 28-29, 2014.

At trial the State first called Detective Gabriel Wedge, who worked for the Seneca

County Drug Task Force, METRICH Enforcement Unit. (Tr. at 108). Detective

Wedge testified that this case began when METRICH received information that

there was a “grow operation” at 129 Hale Drive in Fostoria, a residence leased by

a man named Brandon Navarro. (Tr. at 110). Detective Wedge testified after

receiving the information, METRICH began conducting surveillance on the

residence. (Tr. at 110).

       {¶5} Detective Wedge testified that along with conducting visual

surveillance, he also walked the railroad tracks behind the house to get the

registration of a truck that was parked there. (Tr. at 111). Detective Wedge

testified that he could smell a strong odor of unburnt marihuana coming from the

residence by simply walking past it. (Tr. at 111). Detective Wedge also testified

that while conducting surveillance on the residence, he observed Steward being

dropped off at the residence. (Tr. at 155).

       {¶6} Detective Wedge testified that his unit then obtained a warrant to use a

“thermal imager,” which detects differences in heat signatures in a home and

learned that there were abnormal heat signatures coming from the basement at the

Hale Drive residence. (Tr. at 112).




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        {¶7} Detective Wedge testified that he then obtained a search warrant to

search the Hale Drive residence, and that the search was conducted on July 11,

2013. (Tr. at 112-113). Detective Wedge testified that when the residence was

searched, two people were on the premises mowing the lawn, and they were

detained, but the residence was otherwise empty. (Tr. at 115). Detective Wedge

testified that when he entered the residence, there was a very strong odor of

marihuana such that anyone who was living there would have definitely smelled it.

(Tr. at 115).

        {¶8} Detective Wedge testified that during the search a mason jar

containing marihuana was found in the living room, and digital scales with

marihuana residue was found on a folding table in the dining room. (Tr. at 122-

123). Detective Wedge testified that in the basement of the residence there was a

grow operation consisting of heat lamps, temperature controls, soil, fertilizer,

ventilation, chemicals for growth, seeds, and over 100 marihuana plants. (Tr. at

125, 150). Detective Wedge also testified that there were High Times and Weed

World magazines in the bathroom of the residence with articles on cultivation of

marihuana, as well as a book on how to grow marihuana indoors. (Tr. at 129-

130).   Detective Wedge testified that there were plastic baggies of harvested

marihuana located in the upstairs bedroom, including a large freezer bag full of

marihuana. (Tr. at 131). Detective Wedge’s testimony regarding what was found


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in the residence was corroborated by video that was taken of the interior of the

residence, and various pictures, all of which was introduced into evidence.

(State’s Ex. 10).

        {¶9} Detective Wedge testified that Steward’s clothes were located in one

of the bedrooms on the first floor of the residence along with an air mattress. (Tr.

at 132). Detective Wedge also testified that Steward’s social security card, his

“Directions” card, an ID card, a bus ticket to Texas, and a work shirt with

Steward’s name on it for the auto-part manufacturing plant where Steward worked

were all located in the residence along with other piles of Steward’s clothing. (Id.)

Detective Wedge testified that the folding table with the digital scale was ten feet

from Steward’s bedroom. (Tr. at 132-133).

        {¶10} Detective Wedge testified that a cell phone was recovered on the end

table in the front room of the residence. (Tr. at 138). Detective Wedge testified

that the phone was searched, and messages from the phone were shown at trial.

(Id.) Three messages specifically identified Steward on the phone, and other

messages on the phone contained conversations regarding selling marihuana. (Tr.

at 141); (State’s Ex. 4). Detective Wedge testified that neither of the home’s other

two occupants, the renter listed on the lease, Brandon Navarro, or another known

associate, Logan Cole, was named or mentioned in the phone. (Tr. at 142); (Tr. at

173).


                                         -5-
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       {¶11} The State next called Megan Koentop, a Forensic Scientist

specializing in Drug Chemistry who worked for BCI. Koentop testified that she

received substances for testing and that the substances she received for testing

were, in fact, marihuana. (Tr. at 182). Koentop identified various exhibits and the

amount of marihuana contained in each one. One of the eleven items she tested

alone contained over 1,000 grams of marihuana, with several others containing

over three hundred grams each. (Tr. at 188). Koentop testified that there are

roughly 450 grams in a pound, and that altogether, by her estimation, there was

roughly 5.7 pounds of marihuana. (Tr. at 189-190).

       {¶12} The last witness called by the State was Detective Shawn Valley,

who was with the Tiffin Police Department. (Tr. at 195). Detective Valley

testified that he assisted in the execution of the search warrant on the Hale Drive

residence and that he transported the suspected marihuana after the search of the

Hale Drive residence to the BCI crime lab where Koentop subsequently tested it.

(Tr. at 195).

       {¶13} At the conclusion of the State’s case, Steward made a Crim.R. 29

motion for acquittal, which was overruled by the trial court.        Steward then

presented his case-in-chief, calling Michelle Hammond to the stand. Hammond

testified that Steward was her on-again, off-again boyfriend.        (Tr. at 219).

Hammond testified that Steward lived with her, and typically stayed with her 5-6


                                        -6-
Case No. 13-14-11


nights a week. (Tr. at 219). Steward testified that the other nights Steward stayed

with “Mike” or “Brandon” (indicating Brandon Navarro, who was on the lease of

the Hale Drive residence). (Tr. at 219).

       {¶14} Hammond testified that Steward had a job at an auto-part

manufacturer and that she did Steward’s laundry. (Tr. at 222-223). Hammond

testified that Steward would stay with her when they were together, but inevitably

they would fight and she would throw him out until they reconciled. (Tr. at 219).

Hammond also testified that Steward did not have his own cell phone and she had

to get in touch with him on multiple phones in the past. (Tr. at 221).

       {¶15} Steward then took the stand in his own defense and testified that he

was not involved in growing, cultivating, or selling marihuana. (Tr. at 267).

Steward testified that he did not live at the Hale Drive residence, and that he only

stayed there occasionally when Hammond threw him out and he had no place else

to go. (Tr. at 262).

       {¶16} Steward testified that he had not stayed at the Hale Drive residence

in the couple of days prior to the search warrant being executed, and that he was

unaware of any operation going on in the residence. (Tr. at 264). Steward

testified that he had never seen a scale on the folding table and that he had never

seen a plant in the residence as he had no reason to go down in the basement. (Tr.

at 264-265).     Steward testified he did not recall seeing the magazines on


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Case No. 13-14-11


cultivation in the bathroom. (Id.) Steward also testified that he did not own a cell

phone and that he only used the phone at the Hale Drive residence a couple of

times. (Tr. at 269).

       {¶17} On cross-examination Steward first testified that he never smelled

marihuana in the home, but later clarified stating that Brandon Navarro smoked

marihuana so he only associated any scent of marihuana in the residence with that.

(Tr. at 280). Steward testified that he did not know Navarro well, and did not

know of Navarro’s prior convictions, despite occasionally staying with him and

traveling to Texas with him. (Tr. at 277).

       {¶18} Steward again admitted using the cell phone that had his name

mentioned in it multiple times, but claimed the phone was not his and he only

borrowed it. (Tr. 282-283). Steward testified that his presence in the Hale Drive

residence and the presence of his name in the cell phone used to conduct drug

transactions was merely a coincidence. (Tr. at 283). Steward also admitted to

three prior felony convictions in Florida, one for dealing in stolen property in

2007, one for purchasing cocaine in 2008, and one for possession of cocaine in

2008. (Tr. at 284).

       {¶19} After Steward finished testifying, he rested his case. The State then

recalled Detective Wedge on rebuttal, who testified that the jury could look

through the phone in question, which was admitted into evidence, and that the


                                        -8-
Case No. 13-14-11


phone only mentioned Steward by name, and never mentioned either of the

residence’s other occupants.

       {¶20} At the conclusion of the testimony, the parties gave their closing

arguments and the court provided jury instructions. The case was then submitted

to the jury. After deliberations, the jury found Steward guilty of Cultivation of

Marihuana in an amount exceeding 1,000 grams in violation of R.C.

2925.04(A),(C)(5)(d), a felony of the third degree, Trafficking Marihuana in an

amount exceeding 200 grams in violation of R.C. 2925.03(A)(2),(C)(3)(c), a

felony of the fourth degree, and Possessing Criminal Tools in violation of R.C.

2923.24(A),(C), a felony of the fifth degree.

       {¶21} On May 7, 2014 a sentencing hearing was held. The trial court

ultimately sentenced Steward to serve 30 months in prison on the Cultivation

conviction, 14 months in prison on the Trafficking conviction, and 8 months in

prison on the Possession of Criminal Tools conviction.        The sentences were

ordered to be served concurrently. An entry memorializing this sentence was filed

May 9, 2014.

       {¶22} It is from this judgment that Steward appeals, asserting the following

assignments of error for our review.

                   ASSIGNMENT OF ERROR 1
       THE JURY VERDICT WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.


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Case No. 13-14-11


                   ASSIGNMENT OF ERROR 2
       THE TRIAL COURT ERRED IN PERMITTING EVIDENCE
       CONCERNING APPELLANT’S PRIOR FELONY RECORD
       TO BE INTRODUCED TO THE JURY.

                             First Assignment of Error

       {¶23} In Steward’s first assignment of error, he contends that his

convictions were against the manifest weight of the evidence.           Specifically,

Steward argues that no contraband was found in Steward’s room in the Hale Drive

residence during the execution of the search warrant, that the cell phone found in

the residence was not his, and that the State presented no evidence tying Steward

to the actual cultivation of marihuana.

       {¶24} An appellate court’s function when reviewing the weight of the

evidence is to determine whether the greater amount of credible evidence supports

the verdict. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In doing so, this

Court must review the entire record, weigh the evidence and all of the reasonable

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

resolving conflicts in the evidence, the factfinder “clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.” Thompkins, 78 Ohio St.3d at 387. Because reversals based

upon the manifest weight are for exceptional circumstances, as the Ohio Supreme

Court held in Thompkins, Section 3(B)(3), Article IV of the Ohio Constitution



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Case No. 13-14-11


mandates the unanimous concurrence of all three judges on the reviewing panel to

reverse a defendant’s conviction. Thompkins at 389.

         {¶25} We will review each of Steward’s three convictions in turn.

                              Trafficking in Marihuana

         {¶26} In this case Steward was convicted of Trafficking in Marihuana in an

amount exceeding 200 grams in violation of R.C. 2925.03(A)(2),(C)(3)(c), which

reads,

         (A) No person shall knowingly * * *

         ***

         (2) * * * [P]repare for distribution, or distribute a controlled
         substance * * * when the offender knows or has reasonable
         cause to believe that the controlled substance * * * is intended
         for sale or resale by the offender or another person.

         ***

         (B) Whoever violates division (A) of this section is guilty of * * *

         ***

         (3) If the drug involved in the violation is marihuana * * *

         ***

         (c) Except as otherwise provided in this division, if the amount
         of the drug involved equals or exceeds two hundred grams but is
         less than one thousand grams, trafficking in marihuana is a
         felony of the fourth degree * * * [.]




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           {¶27} On appeal, Steward argues that his Trafficking conviction was

against the manifest weight of the evidence because he claims that the cell phone

containing messages regarding marihuana sales was not his. We disagree.

           {¶28} Despite Steward’s arguments, the State presented evidence of text

messages addressed to, and sent by, Steward that were contained in a cell phone

that was found in the living room of the residence Steward occasionally stayed in.

The phone contained messages identifying Steward and other messages relating to

the sale of marihuana but which did not identify Steward by name.

           {¶29} Specifically, the phone in question contained three texts all

identifying Steward as the user of the phone, two incoming and one outgoing. The

two incoming messages read, “[Steward]…answer me please” and “[Steward] its

[sic] your father call me[.]” (State’s Ex. 4). The outgoing message contained a

fragment and read, “Im sorry im [Steward]. And I have a friend in jail that needs

to be * * * [.]”2 Detective Wedge testified that unlike Steward, neither Navarro,

the renter of the Hale Drive residence, nor Cole, a known associate, were named

or mentioned anywhere in the phone messages.

           {¶30} The cell phone in question also contained messages regarding the

sale of marihuana. One such incoming message read, “Even a ten bag would be

fine[.]” (State’s Ex. 4). Detective Wedge testified that a “bag” referred to a bag



2
    The testimony indicated that Brandon Navarro needed to be bailed out of jail.

                                                     -12-
Case No. 13-14-11


of marihuana. Another incoming message read, “Where’s my bag at[?]” (Id.)

Another similar one followed, asking where the “20 bag” was. (Id.) An outgoing

message from the phone replied, “I got u this week Forsure[.]” Detective Wedge

testified that these were evidence of drug transactions.

       {¶31} On the basis of the evidence presented, we cannot find that the jury

clearly lost its way as the jury had access to the phone itself and could see all of

the messages, which tied Steward to the phone and by reasonable inference

therefrom, to the sale of marihuana. Accordingly, Steward’s argument that his

conviction for Trafficking was against the manifest weight of the evidence is not

well taken and his assignment of error is overruled as to this issue.

                             Cultivation of Marihuana

       {¶32} Steward next contends that his conviction for Cultivation of

Marihuana in an amount exceeding 1,000 grams was against the weight of the

evidence. We agree.

       {¶33} Cultivation of Marihuana is prohibited by R.C. 2925.04(A),(C)(5)(d),

which reads,

       (A) No person shall knowingly cultivate marihuana or
       knowingly manufacture or otherwise engage in any part of the
       production of a controlled substance.

       ***




                                        -13-
Case No. 13-14-11


      (C)(1) Whoever commits a violation of division (A) of this section
      * * * that involves marihuana is guilty of illegal cultivation of
      marihuana.

      (5) If the drug involved in the violation is marihuana, the
      penalty for the offense shall be determined as follows:

      (d) If the amount of marihuana involved equals or exceeds one
      thousand grams but is less than five thousand grams, illegal
      cultivation of marihuana is a felony of the third degree * * * [.]

      {¶34} To convict Steward of cultivation, the State presented evidence that

Steward was observed being dropped off at the Hale Drive residence, that his

possessions were in the residence, and that he stayed there occasionally in a room

that was his own containing an air mattress and his clothing. The State presented

evidence that the odor of marihuana throughout the house was “very strong” and

that anyone who stayed there would have been aware of it.         The State also

presented evidence that there were various magazines and a book on the

cultivation of marihuana in the home, and that a scale to weigh marihuana was ten

feet from Steward’s room on a folding table.

      {¶35} The State also presented evidence that the residence contained a

variety of tools used for the cultivation of marihuana, as testified by Detective

Wedge and identified in the video/pictures of the residence. These tools included

an added ventilation system in the basement, grow lamps, temperature controls,

soil, chemicals, pruning shears, baggies, and scales. One hundred twenty-two

plants were found in the basement of the residence, and a total of approximately

                                      -14-
Case No. 13-14-11


5.7 pounds of marihuana was found, in excess of 2,000 grams, all indicative of a

growth and cultivation operation.

          {¶36} Thus the jury heard testimony and was presented evidence that

Steward, if not regularly, at least irregularly stayed at the Hale Drive residence,

which contained a grow operation. Steward’s items were in the home and he had

his own bedroom with digital scales just feet away from his bedroom door. His

messages were also in a cell phone, which contained several texts related to the

sale of marihuana. The State thus presented evidence that made it difficult to

believe that Steward was staying in the residence oblivious of the grow operation.

Moreover, as already noted, these factors taken together clearly permit reasonable

inferences that Steward was engaged in trafficking. However, the record contains

no evidence that Steward was actually involved in the cultivation of the marihuana

itself.

          {¶37} For example, there was no evidence Steward ever went into the

basement where the grow operation was contained. There was no evidence of

Steward caring for the plants, or cultivating them once they had grown. Moreover,

the only packaged marihuana that was found in the residence was found in

Brandon Navarro’s upstairs bedroom, which contained a padlock on the outside

preventing Steward from having access to it. No marihuana or criminal tools were

found located among Steward’s scant possessions inside the residence.


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Case No. 13-14-11


       {¶38} As a result, it is our determination that through the use of inferences

derived exclusively from his frequent presence in the home, his association with

Brandon Navarro, the scales and the cell phone, the jury could reasonably

conclude beyond a reasonable doubt that Steward was engaged in trafficking the

marihuana and perhaps that Steward was fully aware of the cultivation operation.

However, without relying on further multiple inferences upon inferences from

those same facts, it is also our determination that there was simply nothing

presented by the State from which a jury could properly conclude beyond a

reasonable doubt that Steward engaged in the cultivation aspect of this criminal

enterprise, rather than merely selling the finished product. Therefore, we have no

choice but to sustain Steward’s argument that his conviction for Cultivation of

Marihuana was against the weight of the evidence. His argument on this issue is

thus well-taken, and his assignment of error is sustained as to this conviction.

                             Possessing Criminal Tools

       {¶39} Steward was also convicted of Possessing Criminal Tools in

violation of R.C. 2923.24(A),(C), which reads,

       (A) No person shall possess or have under the person’s control
       any substance, device, instrument, or article, with purpose to use
       it criminally.

       ***

       (B) * * * If the circumstances indicate that the substance,
       device, instrument, or article involved in the offense was

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Case No. 13-14-11


       intended for use in the commission of a felony, possessing
       criminal tools is a felony of the fifth degree.

       {¶40} In this case, when the State indicted Steward for Possessing Criminal

Tools, the criminal tools were specified in the indictment. The indictment reads,

in pertinent part,

       On or about the 11th day of July, 2013, in Seneca County, Ohio,
       RYAN D. STEWARD did possess, or have under his control,
       any substance, device, instrument, or article, namely a digital
       scale, heaters, fans, lighting systems, water pump, generators,
       and CO2 tank, with the purpose to use them criminally, and the
       circumstances indicate that the tools were intended for use in the
       commission of a felony.

(Doc. 1). The jury instructions similarly identified the same items that were

claimed to be used by Steward as criminal tools.

       The Defendant is charged with possessing criminal tools. Before
       you can find the Defendant guilty, you must find beyond a
       reasonable doubt * * * the Defendant did possess or have under
       his control any device, instrument, or article, with purpose of
       using it criminally, namely a digital scale, heaters, fans, lighting
       systems, water pump, generators, CO2 tank, with the purpose to
       use them criminally, and the circumstances indicate the tools
       were * * * intended for use in the commission of a felony.

(Tr. at 313).

       {¶41} Thus in contrast to the general wording of the statute which might

have included the cell phone, for example, the indictment in this case was limited

to a number of specifically listed items, and the jury was instructed that to find

Steward guilty of possessing criminal tools, he had to possess one of the listed


                                       -17-
Case No. 13-14-11


items.     All of the listed items, except for the digital scale, pertained to the

cultivation of marihuana. We have already found that Steward’s conviction for

cultivation was against the manifest weight of the evidence, and we similarly find

here that there was simply no evidence tying Steward to possession of the

“heaters, fans, lighting systems, water pump, generators, [or the] CO2 tank” that

were involved in cultivation. This is particularly true when Steward was not the

renter of the Hale Drive residence and he did not regularly reside there. There was

simply no evidence that he was involved in personally using these items to

cultivate marihuana.

         {¶42} The digital scale is the item that Steward could possibly have

possessed and used criminally in the trafficking offense.3 The digital scale was

found on a folding table ten feet from Steward’s bedroom in the Hale Drive

residence containing marihuana residue. In order to convict Steward of possessing

the digital scale, the jury would have to make an inference that Steward, who was

already by inference only based on the cell phone text messages, tied to the

trafficking in marihuana, was using the digital scale to measure the appropriate

amount of marihuana discussed in the text message transactions.

         {¶43} However, in the text messages, there was never any mention of

actual weight, only dollar amounts. Therefore, it cannot be clearly evident that


3
  We would note that had the State listed the cell phone as a criminal tool the jury could potentially have
found it to be a criminal tool.

                                                  -18-
Case No. 13-14-11


Steward used or possessed the digital scale for trafficking marihuana without

improperly making multiple inferences on inferences. Accordingly, Steward’s

argument that his conviction for possession of criminal tools was against the

weight of the evidence is well-taken and his assignment of error is sustained on

this issue.

       {¶44} Steward’s first assignment of error is thus overruled in part as to his

Trafficking conviction and sustained in part as to his Cultivation and Possession of

Criminal Tools convictions.

                            Second Assignment of Error

       {¶45} In his second assignment of error, Steward argues that the trial court

erred by permitting testimony of Steward’s prior felony convictions in Florida

from 2007 and 2008. Specifically, Steward argues that the prior convictions were

“inflammatory,” suggesting that the probative value was substantially outweighed

by the prejudicial effect, and that the jury was misled and relied upon the prior

convictions.

       {¶46} Evidence Rule 609 governs the inclusion of evidence of prior

convictions to impeach a witness. It reads, in pertinent part,

       (A) General rule

       For the purpose of attacking the credibility of a witness:

       ***


                                        -19-
Case No. 13-14-11


      (2) notwithstanding Evid.R. 403(A), but subject to Evid.R.
      403(B), evidence that the accused has been convicted of a crime
      is admissible if the crime was punishable by death or
      imprisonment in excess of one year pursuant to the law under
      which the accused was convicted and if the court determines that
      the probative value of the evidence outweighs the danger of
      unfair prejudice, of confusion of the issues, or of misleading the
      jury.

      (3) notwithstanding Evid.R. 403(A), but subject to Evid.R.
      403(B), evidence that any witness, including an accused, has
      been convicted of a crime is admissible if the crime involved
      dishonesty or false statement, regardless of the punishment and
      whether based upon state or federal statute or local ordinance.

Evid.R. 609(A).

      {¶47} “A trial court is afforded broad discretion in determining the extent

to which such evidence may be admitted under Evid.R. 609[,]” therefore a trial

court’s decision to permit evidence under Evid.R. 609 will be reviewed for an

abuse of discretion. State v. Brown, 100 Ohio St.3d 51, 58, 2003-Ohio-5059, ¶ 27.

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

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

v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

      {¶48} In this case it is not disputed that Steward had been convicted of

three prior felonies. Prior to Steward taking the stand and testifying at trial,

Steward objected to the inclusion of the prior felonies as being more prejudicial

than probative. Outside of the presence of the jury, the trial court heard lengthy

arguments as to the prior convictions, and then made the following ruling.

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       THE COURT: * * * The Court has reviewed this issue. Has
       reviewed Evidence Rule 609. * * *

            [T]he court has looked at the nature of the crime[s]. Has
       looked at the recency of the prior convictions. Has looked at the
       similarity between the crime[s] for which there was a prior
       conviction and the crime[s] charged in this case. Court has
       looked at the importance of the Defendant’s testimony and has
       considered the centrality of the credibility issue, which is
       paramount in this case as to the issues involved in this case.

            So therefore, after review of all these factors * * * in
       making the determination, the Court is of the opinion that the
       unfair prejudice or misleading the jury is, does not outweigh the
       probative value and; therefore, the Court is going to allow
       limited cross-examination of the Defendant on the issues of prior
       impeachment testimony. And the Court will give a limiting
       instruction as proposed by [defense counsel].

(Tr. at 250-251).

       {¶49} When the trial resumed, Steward proceeded to testify, and the

following testimony was elicited while Steward was on the stand on cross-

examination regarding his prior felony convictions.

       Q[Prosecutor]: Okay. Mr. Steward, you’ve been convicted of
       felony crimes of dishonesty, correct?

       A: Yes, sir.

       Q: In fact, you were convicted in 2007 in the State of Florida
       dealing in stolen property, correct?

       A: That is correct.

       Q: In 2008 you were convicted of purchasing cocaine, correct?

       A: That is correct.

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Case No. 13-14-11



       Q: In 2008, you were also convicted of possession of cocaine,
       correct?

       A: That is correct.

       Q: And those are all felony convictions?

       A: That is correct.

(Tr. at 284).

       {¶50} After this line of questioning, the State concluded its cross-

examination of Steward.      The trial court then immediately gave a limiting

instruction regarding the prior conviction testimony.

       {¶51} On appeal, Steward contends that because two of his prior

convictions were drug-related, the jury was misled and likely based its decision on

Steward having prior convictions. First, there is no indication that the jury was

misled or improperly decided this case based solely on the prior convictions. In

fact, there was ample evidence implicating Steward in the trafficking charge as

discussed in the previous assignment of error. Second, the nature of the crimes in

this case were different from Steward’s prior convictions, as purchasing and

possessing cocaine are different than cultivating and trafficking in marihuana, as

one is for use and consumption and the other is an operation or criminal enterprise

for monetary gain, which is usually regarded as having a greater impact on society

as a whole. Third, as the trial court stated in making its decision, Steward’s


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credibility was a central issue in this case, particularly since he decided to take the

witness stand. As Steward’s version of events was different than that laid out by

the State, his credibility became a central determination for the jury, increasing the

probative value of the prior convictions for impeachment purposes. See State v.

Brown, 100 Ohio St.3d 51, 58, 2003-Ohio-5059, ¶ 27.

       {¶52} Therefore, for all of these reasons, we cannot find that the trial court

abused its discretion in permitting testimony regarding Steward’s prior

convictions. Moreover, this is particularly true in light of the fact that the trial

court gave a limiting instruction regarding the prior convictions immediately after

the testimony regarding the prior convictions was heard, and the jury is presumed

to follow the court’s instructions. Accordingly, Steward’s second assignment of

error is overruled.

       {¶53} For the foregoing reasons Steward’s first assignment of error is

sustained in part and overruled in part, and his second assignment of error is

overruled. Steward’s convictions for Cultivation of Marihuana and Possessing

Criminal Tools are hereby reversed, and the case is remanded to the trial court for

further proceedings consistent with this opinion.

                                                         Judgment Affirmed in Part,
                                                              Reversed in Part and
                                                                 Cause Remanded
WILLAMOWSKI, P.J., concurs.
/jlr


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ROGERS, J. concurring in part and dissenting in part.

       {¶54} I concur with the majority’s disposition of the offenses of cultivating

and possession of criminal tools. I respectfully dissent from the disposition of the

offense of trafficking, and with the comment in the third footnote.

       {¶55} To affirm the trafficking conviction, the majority concludes that a

cell phone found in the search of the Hale Drive residence in fact belonged to

Steward, that all messages on that cell phone were to or from Steward, that some

messages related to trafficking in marihuana, and from all this, that a reasonable

juror could conclude that Steward was trafficking in marihuana.

       {¶56} The problem with this logic is that it requires inference upon

inference, or stacking of inferences, which is not permitted in Ohio law. “A trier

of fact may not draw ‘[a]n inference based * * * entirely upon another inference,

unsupported by any additional fact or another inference from other facts[.]’ ”

(Emphasis added.) State v. Cowans, 87 Ohio St.3d 68, 78 (1999), quoting Hurt v.

Charles J. Rogers Transp. Co., 164 Ohio St. 329 (1955), paragraph one of the

syllabus. As the Ohio Supreme Court has noted:

       “For the purpose of supporting a proposition, it is not permissible to
       draw an inference from a deduction which is itself purely speculative
       and unsupported by an established fact. Where an inference not
       supported by or drawn from a proven or known fact is indulged, and
       is then used as a basis for another inference, neither inference has
       probative value. Such a process may be described as drawing an
       inference from an inference, and is not allowable.”


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Case No. 13-14-11


Hurt at 332, quoting Indian Creek Coal & Mining Co. v. Calvert, 68 Ind. App.474,

120 N.E. 709, 709-710 (1918).

         {¶57} The majority has inferred that because three messages refer to

Steward, and no other message refer to anyone else in the house by name, that the

cell phone was his. This inference comes from two inbound text messages asking

for Steward. This is not conclusive evidence that the phone was Steward’s, as the

other evidence in the record indicates that Steward had no cell phone and typically

borrowed cell phones from others. Indeed, that the two inbound messages asked

specifically for Steward indicate that the sender wanted to make sure that the

correct person received the message. This indicates that others had access to the

phone.

         {¶58} To further support its inference that Steward owned the phone, the

majority relies on a fragment of a text message that says “ ‘Im sorry im Steward *

* *.’ ” Majority Opin., ¶ 29. There is no identifying information as to when this

text was sent or the surrounding messages that would provide any context for

either apologizing or identifying himself. It appears that it was sent in response to

a text from a contact only identified as “K” which asked “First who is this?

Second Jason who?” State’s Exhibit 4. If Steward owned the phone, he would not

have had to identify himself to the person he was texting. That the person he was

texting did not know who he was is evidence that Steward was not the one that


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Case No. 13-14-11


owned the phone. These bits and pieces of a few text messages do not support the

inference that Steward owned the phone. Next they infer that because the cell

phone is his, all messages on the cell phone are his. Therefore, they infer that the

messages that appear to be related to marihuana are his. And finally they infer that

because a cell phone which they infer is his, contains messages which they have

inferred are his, which they infer are related to trafficking in marihuana, that

Steward is trafficking in marihuana. Meanwhile, the majority has accepted the

fact that the digital scales, located near the room where Steward occasionally

stayed, was not proven to be the Steward’s, and further conveniently ignores the

fact that “the only packaged marihuana was found in Brandon Navarro’s upstairs

bedroom, which contained a padlock on the outside preventing Steward from

having access to it.” Majority Opin., ¶ 37. To use the cell phone to convict

Steward, the majority impermissibly heaped inference upon inference.

        {¶59} Even if the majority could take all of these inferences from the cell

phone, it is not enough to convict Steward. Steward was charged with trafficking

marihuana in violation of R.C. 2925.03(A)(2), which makes it illegal to “[p]repare

for distribution, or distribute a controlled substance * * *.” R.C. 2925.03(A)(1),

on the other hand, makes it illegal to “sell or offer to sell a controlled substance *

* *.”    (Emphasis added.)     Under R.C. 2925.01, the definitions of the terms

“distribute” and “sale” are the same as those found in R.C. 3719.01. Under R.C.


                                        -26-
Case No. 13-14-11


3719.01(F), distribute “means to deal in, ship, transport, or deliver but does not

include * * * dispensing a drug.” (Emphasis added.) “ ‘Dispense’ means to sell *

* *.” (Emphasis added.) R.C. 3719.01(E). “ ‘Sale’ includes delivery, barter,

exchange, transfer, or gift or offer thereof * * *.” R.C. 3719.01(AA). With the

differentiation between selling and distributing in R.C. 2925.03 (A)(1) and (2),

coupled with the definitions in R.C. 3719.01, it seems clear that distribution does

not include selling the drug. Insofar as the texts from the cell phone may prove

that Steward offered to sell or even sold drugs, they do not prove that he

distributed the drugs or prepared them for distribution.

       {¶60} Nothing prevented the State from charging Steward under R.C.

2925.03(A)(1), where it need only prove that he sold the marihuana. However, the

State chose to charge Steward with trafficking under R.C. 2925.03(A)(2) and thus

was required to prove he distributed the drug. The cell phone text messages are

not enough to prove distribution.

       {¶61} Even if the majority can draw all of the inferences from the cell

phone to prove that Steward distributed marihuana, none of the texts refer to an

amount that “exceeds two hundred grams but is less than one thousand grams * *

*.” R.C. 2925.03(C)(3)(c). As discussed, Steward had no access to the vast

amounts of marihuana that was found in Navarro’s bedroom, which easily

exceeded two hundred grams, because it was padlocked. The only marihuana that


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Case No. 13-14-11


Steward had any access to was found in a jar near the scales and cell phone. The

amount in this jar was “9.5 grams – found to contain Marihuana (Cannabis).”

States Exhibit 9. This is clearly less than two hundred grams.

       {¶62} The majority relies exclusively on the cell phone to affirm Steward’s

convictions. However, the cell phone, standing alone, is not enough to draw all

the inferences necessary to convict Steward of trafficking under R.C.

2925.03(A)(2) and (C)(3)(c).        I would, therefore, sustain Steward’s first

assignment of error as to trafficking, as well as the other two offenses, and reverse

all three convictions.




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