[Cite as State v. Thompson, 2014-Ohio-4665.]


                     IN THE COURT OF APPEALS OF OHIO
                        FOURTH APPELLATE DISTRICT
                           WASHINGTON COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 13CA41
                               :
     vs.                       :
                               :    DECISION AND JUDGMENT
STACY R. THOMPSON,             :    ENTRY
                               :
    Defendant-Appellant.       :    Released: 10/15/14
_____________________________________________________________
                         APPEARANCES:

Robert W. Bright, Middleport, Ohio, for Appellant.

James E. Schneider, Washington County Prosecuting Attorney, and Alison
L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta,
Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Stacy R. Thompson appeals her convictions in the Washington

County Court of Common Pleas after a jury found her guilty of three counts

of trafficking in drugs (heroin), each felonies of the fifth degree in violation

of R.C. 2925.03(A)(1)& (C)(6)(a), and one count of trafficking in drugs

(heroin), a felony of the fourth degree, in violation of R.C. 2925.03(A)(1) &

(C)(6)(b). On appeal, Thompson contends the judgment of the trial court

should be reversed because: (1) no confidential informant testified and

therefore, Thompson did not have the opportunity to confront those
Washington App. No. 13CA41                                                     2


witnesses; (2) her convictions were not supported by sufficient evidence

and/or were otherwise against the manifest weight of the evidence; (3) a

member of the jury was the father of a confidential informant that testified

against Thompson in another case in 2010; and, (4) Thompson received

ineffective assistance of counsel. Upon review, we find no merit to

Thompson’s four assignments of error. Accordingly, we overrule all

assignments of error and affirm the judgment of the trial court.

                                   FACTS

      {¶2} Stacy R. Thompson (Appellant) was indicted in 2012, in

Washington County Common Pleas case number 12CR322, for two counts

of trafficking in drugs, violations of R.C. 2925.03(A)(1) & (C)(6)(a). Count

1 of the indictment alleged Appellant knowingly sold or offered to sell a

Schedule I controlled substance, heroin, on or about July 3, 2012, at a

location on Pike Street in Marietta, Ohio. Count 2 of the indictment alleged

Appellant again knowingly sold or offered to sell heroin on or about July 5,

2012 at locations on Pike Street. Both counts are felonies of the fifth degree.

      {¶3} While the 2012 trafficking case was pending, Appellant was

also indicted in 2013 for two counts of trafficking in heroin. The case

number of the second indictment was 13CR139. Count 1 of the indictment

alleged trafficking in violation of R.C. 2925.03(A)(1) & (C)(6)(b) on or
Washington App. No. 13CA41                                                                              3


about January 24, 2013 on Franklin Street in Marietta, within the vicinity of

school property. This count is a felony of the fourth degree. Count two, also

trafficking in heroin, alleged another violation of R.C. 2925.03(A)(1) &

(C)(6)(a) on or about January 28, 2013 on Acme Street in Marietta. On May

31, 2013, the trial court filed an entry consolidating both case numbers

12CR322 and 13CR139. The matter eventually proceeded to a jury trial on

August 7 and 8, 2013.

         {¶4} At trial, the State presented testimony from Sergeant Brian

Lockhart, Detective Joshua Staats, Detective Carrie Smithberger, and

Detective Ryan Huffman. These officers testified as to their observations on

the relevant dates alleged in the counts against Appellant. During Detective

Smithberger’s testimony, she identified State’s Exhibits I and J, audio

recordings of two of the controlled buys. However, defense counsel

objected to admission of the recordings and the trial court ruled they were

inadmissible hearsay.1 Where relevant, additional facts gleaned from the

officers’ testimony will be set forth in detail below.

         {¶5} Several forensic scientists from the Bureau of Criminal

Investigations in London, Ohio (BCI), Jessica Toms, Amanda White,

Jennifer Acurio, and Barbara Hoover, testified as to the State’s exhibits and

1
 The transcript is not quite clear as to when counsel actually objected, but the matter and ruling is
discussed at page 410.
Washington App. No. 13CA41                                                                                     4


the lab reports and opinions they prepared.2 David Tornes, on behalf of the

State, testified he was employed by the Washington County Sheriff’s Office

as an evidence technician, and he testified as to the chain of custody

involved with the State’s exhibits. Eric Arbaugh, an employee in the map

office of the county courthouse, identified States’ Exhibit M, an aerial view

of the west side of Marietta.3

         {¶6} Counsel for the State argued in closing there was both direct and

circumstantial evidence of Appellant’s guilt. Appellant was the “common

denominator” in all four counts of trafficking in heroin. The defense put on

no testimony. In closing, however, defense counsel argued there were no

recordings and no confidential informants pointing the finger at Appellant.

Counsel emphasized there was no evidence to convict Appellant beyond a

reasonable doubt.

         {¶7} Appellant was convicted of all four counts.4 Appellant was

before the court for sentencing on September 16, 2013 and a journal entry of


2
  It was stipulated between the attorneys that the forensic scientists testifying at trial were qualified to test
the drugs in question and render opinions on their findings. These State’s exhibits consisted of the
suspected heroin obtained from the confidential informants during the controlled buys and the lab reports
they prepared after testing the substances suspected to be heroin.
3
  Arbaugh testified to a distance of 552 feet between an address given to him by detectives and Harmar
school. This testimony pertained to the allegation that Appellant trafficked within the vicinity of a school
on January 24, 2013.
4
  The “Journal Entry: Guilty Verdicts” filed by the trial court on August 15, 2013 states: “The Court notes
that this case was consolidated with Case No. 13-CR-139, upon the Motion of the Defendant, and in its
instructions to the jury, and on its verdict forms it refers to the two original counts of Case No. 12-CR-322,
as Counts One and Two respectively, and refers to the two counts of Case No. 13-CR-139, as Counts Three
and Four of this case, respectively.”
Washington App. No. 13CA41                                                   5


sentencing was filed on October 24, 2013. Appellant was sentenced to a

definite period of twelve months for each conviction of counts one, two, and

four, and to a definite period of eighteen months upon her conviction in

count four of the consolidated cases. The sentences imposed for counts one,

three, and four were to be served consecutively to each other and the

sentence imposed for count two was to run concurrently to other sentences

imposed. In the aggregate, Appellant received a definite prison term of

forty-two months and she was ordered to pay the costs of prosecution. This

timely appeal followed.

                       ASSIGNMENTS OF ERROR

      I. THE JUDGMENT OF THE TRIAL COURT SHOULD BE
      REVERSED BECAUSE NO CONFIDENTIAL INFORMANT
      TESTIFIED AND THUS DEFENDANT DID NOT HAVE
      THE OPPORTUNITY TO CONFRONT THOSE
      WITNESSES.

      II. THE JUDGMENT OF THE TRIAL COURT SHOULD BE
      REVERSED BECAUSE THE STATE’S EVIDENCE WAS
      INSUFFICIENT TO MEET THE BURDEN OF PROOF
      AND/OR THE APPELLANT’S CONVICTIONS WERE
      AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

      III. THE JUDGMENT OF THE TRIAL COURT SHOULD BE
      REVERSED BECAUSE A MEMBER OF THE JURY WAS
      THE FATHER OF A CONFIDENTIAL INFORMANT THAT
      TESTIFIED AGAINST THE DEFENDANT IN ANOTHER
      CASE IN 2010.
Washington App. No. 13CA41                                                      6


      IV. THE APPELLANT RECEIVED INEFFECTIVE
      ASSISTANCE OF COUNSEL AT THE TRIAL COURT
      LEVEL.
               ASSIGNMENT OF ERROR ONE

                    A. STANDARD OF REVIEW

      {¶8} Appellant has not cited specific evidence admitted in violation

of the Confrontation Clause and, instead, makes a general complaint as to

the absence of the confidential informants at trial. Appellant did not make

specific objections at trial in order to properly preserve this issue for appeal.

Failure to object to an alleged error waives all but plain error. State v.

Keeley, 4th Dist. No. 11CA5, 2012-Ohio-3564, ¶28. Notice of Crim. R.

52(B) plain error must be taken with the utmost caution, under exceptional

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

Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, at ¶6;

State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), at paragraph three

of the syllabus. To find plain error, the outcome of trial clearly would have

been otherwise. State v. McCausland, 124 Ohio St.3d 8, 2009-Ohio-5933,

918 N.E.2d 507, at ¶15; State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-

1325, 785 N.E.2d 439, at ¶50.

                           B. LEGAL ANALYSIS

      {¶9} Under Appellant’s first assignment of error, she claims her

Confrontation Clause rights were violated because only law enforcement
Washington App. No. 13CA41                                                        7


officers testified at trial, instead of the confidential informants. Appellant

contends she was denied her constitutional right to confront the only

witnesses - the informants - on which the State relied to build its entire case

against her. The law enforcement officer witnesses testified as to the details

of the alleged drug sales contained in the four counts against Appellant, even

though they were not directly involved in the alleged sales. Appellant

argues their testimony was essentially and entirely based upon the results of

the actions of the informants. As such, the informants were, in effect,

witnesses for the prosecution yet not subject to cross-examination.

      {¶10} Appellee first notes Appellant has failed to separately argue the

first two assignments of error in accordance with App. R. 16. Pursuant to

App.R. 12(A)(2), this court may disregard an assignment of error presented

for review if the party raising it fails to identify in the record the error on

which the assignment of error is based or fails to argue the assignment

separately in the brief, as required under App.R. 16(A). See Wright v.

Suzuki Motor Corp. 4th Dist. Meigs Nos. 03CA2, 03CA3, and 03CA4,

2005-Ohio-3494, Fn.9. Appellant has argued assignments of error one and

two jointly. Though the appellate court has the option to address two or

more assignments of error at once, the parties do not. Grimes v. Grimes, 4th

Dist. Washington No. 10CA23, 975 N.E.2d 946, Fn. 4. However, “[It] is a
Washington App. No. 13CA41                                                        8


fundamental tenet of judicial review in Ohio that courts should decide cases

on the merits.” Salisbury v. Smouse, 4th Dist. Pike No. 05CA737, 2005-

Ohio-5733, quoting DeHart v. Aetna Life Ins. Co. 69 Ohio St.2d 189, 192,

431 N.E.2d 644 (1982). Therefore, in the interests of justice, we will

address Appellant’s assignments of error.

      {¶11} The Sixth Amendment to the United States Constitution

provides, “[i]n all criminal prosecutions, the accused shall enjoy the right * *

* to be confronted with the witnesses against him.” The Supreme Court of

the United States has “held that this bedrock procedural guarantee applies to

both federal and state prosecutions.” Crawford v. Washington, 541 U.S. 36,

124 S.Ct. 1354 (2004), citing Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065

(1965). Likewise, Section 10, Article I of the Ohio Constitution provides,

“[i]n any trial, in any court, the party accused shall be allowed * * * to meet

the witnesses face to face.” Before its admission, “[w]here testimonial

evidence is at issue * * * the Sixth Amendment demands what the common

law required: unavailability and a prior opportunity for cross examination.”

Crawford, 541 U.S. at 68. The question of whether a criminal defendant’s

rights under the Confrontation Clause have been violated is reviewed under

a de novo standard. State v. Smith, 162 Ohio App.3d 208, 2005-Ohio-3579,
Washington App. No. 13CA41                                                      9


832 N.E.2d 1286 (8th Dist.); United States v. Robinson, (C.A. 6, 2004), 389

F.3d 582, 592.

      {¶12} Upon review, we find the rights afforded Appellant under the

Confrontation Clause have not been compromised in this matter. In a

similar case, State v. Shinholster, 9th Dist. Summit No. 22587, 2005-Ohio-

5658, the defendant argued on appeal that he was denied his constitutional

right of confrontation under Crawford v. Washington when repeated

references to out of court statements by a confidential informant were used

against him. The appellate court noted that review of the trial transcript,

however, indicated the State did not elicit any testimony from its witnesses,

law enforcement officers, regarding any statements made by the confidential

informant in the case. The appellate court concluded because the trial

transcript indicated none of the State’s witnesses testified as to any

statements made by the confidential informants, the rights accorded by the

Sixth Amendment’s Confrontation Clause were not implicated.

      {¶13} In the case sub judice, the State chose to call the law

enforcement officers involved in the controlled buys to testify as to their

observations. The testimony of these officers is the heart of the State’s case.

The transcript reveals Appellant made no objections to the testimony of the
Washington App. No. 13CA41                                                      10


law enforcement officers. We therefore review this assignment of error

under a plain error standard.

         {¶14} Appellant also does not direct us to any portions of the

transcript wherein the law enforcement officers were erroneously allowed to

testify as to any testimonial statements of the confidential informants. We

are not persuaded by Appellant’s argument that the confidential informants

were, in effect, witnesses for the prosecution. While the confidential

informants may have been the best witnesses to provide direct evidence

regarding the controlled heroin buys, the State chose not to call them. There

is no requirement that the State prosecute a case using the “best evidence” or

“direct evidence.” We find no violation of Appellant’s rights under the

Confrontation Clause and no plain error arising out of the State’s failing to

call the confidential informants as witnesses. As such, we overrule

Appellant’s first assignment of error and affirm the judgment of the trial

court.

                       ASSIGNMENT OF ERROR TWO

                         A. STANDARD OF REVIEW

          {¶15} When reviewing a case to determine whether the record

contains sufficient evidence to support a criminal conviction, our function

“is to examine the evidence admitted at trial to determine whether such
Washington App. No. 13CA41                                                       11


evidence, if believed, would convince the average mind of the defendant’s

guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a 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.” State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus. See, also, Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979).

       {¶16} This test raises a question of law and does not allow us to

weigh the evidence. State v. Martin, 20 Ohio App.3d 172, 174, 485 N.E.2d

717 (1983). Rather, the test “gives full play to the responsibility of the trier

of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts.” Jackson at

319. We reserve the issues of the weight given to the evidence and the

credibility of witnesses for the trier of fact. State v. Thomas, 70 Ohio St.2d

79, 79-80, 434 N.E.2d 1356 (1982); State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1986), paragraph one of the syllabus.

       {¶17} Even when sufficient evidence supports a verdict, we may

conclude that the verdict is against the manifest weight of the evidence,

because the test under the manifest weight standard is much broader than

that for sufficiency of the evidence. State v. Banks, 78 Ohio App.3d 206,
Washington App. No. 13CA41                                                      12


214, 604 N.E.2d 219 (1992); State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1983). In determining whether a criminal conviction is against

the manifest weight of the evidence, we must review the entire record, weigh

the evidence and all the reasonable inferences, consider the credibility of the

witnesses, and determine whether, in resolving conflicts in the evidence, the

trier of fact clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial granted. State v.

Garrow, 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814; Martin at 175,

485 N.E.2d 717.

      {¶18} “A reviewing court will not reverse a conviction where there is

substantial evidence upon which the court could reasonably conclude that all

the elements of an offense have been proven beyond a reasonable doubt.”

State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), paragraph two

of the syllabus. Whether the evidence supporting a defendant’s conviction is

direct or circumstantial does not bear on our determination. “Circumstantial

evidence and direct evidence inherently possess the same probative value

and therefore should be subjected to the same standard of proof.” Jenks at

paragraph one of the syllabus.

                           B. LEGAL ANALYSIS

       {¶19} Appellant also contends that the jury’s judgment was
Washington App. No. 13CA41                                                    13


based upon insufficient evidence and is against the manifest weight of the

evidence. Specifically, Appellant asserts the State’s entire case rested on the

testimony of law enforcement officers that testified they did not actually

witness an exchange. Appellant submits the State did not present sufficient

evidence to meet its burden of proof and a reasonable trier of fact could not

reasonably conclude that all of the elements of the charged offenses had

been proven beyond a reasonable doubt when no officer testified at trial that

he or she actually witnessed a drug sale by Appellant in any of the four

incidents. For the reasons which follow, we disagree.

      {¶20} Regarding count one, Detective Joshua Staats of the Major

Crimes Task Force of the Washington County Sheriff’s Department testified

he participated in a controlled drug transaction on July 3, 2012. Detective

Staats testified he picked up informant Cory Meeks and transported him to

Marietta. Meeks was searched and given photocopied “buy” money and a

recording device. Staats observed as Meeks got into the vehicle Appellant

drove, a silver Durango, on the Kmart parking lot, and, a short time later,

Meeks exited Appellant’s vehicle and provided the officers with five unit

doses of heroin in purple balloons. Staats testified he did not actually see the

transaction take place inside the vehicle.
Washington App. No. 13CA41                                                  14


      {¶21} Detective Carrie Smithberger, also of the Major Crimes Task

Force in Washington County, worked with Detective Staats on July 3, 2012.

She testified Cory Meeks contacted her to assist in setting up the controlled

buy. Smithberger accompanied Officer Staats in driving Meeks to the

Kmart parking lot. Smithberger corroborated Staats’ testimony that he

searched Meeks. Smithberger provided Meeks with the buy money and

wiring equipment. Smithberger also observed Meeks getting into

Appellant’s vehicle on the Kmart parking lot. Smithberger specifically

testified she could visually observe an exchange between Appellant and

Meeks inside Appellant’s vehicle. Smithberger corroborated Staats’

testimony that Meeks returned to their vehicle with five balloons of

suspected heroin.

      {¶22} Regarding count two, Detective Smithberger testified to a

similar encounter on July 5, 2012. She testified that Cory Meeks again

contacted her to set up a controlled buy at the Kmart in Marietta.

Smithberger testified they she searched Meeks and provided him with the

photocopied buy money and recording device. Smithberger observed

Appellant, with Brittany Martin in the passenger seat of the silver Durango,

pick up Meeks and drive to the Las Trancas Restaurant. Then they returned

to the Kmart parking lot and dropped off Meeks. Smithberger testified she
Washington App. No. 13CA41                                                    15


did not observe a hand-to-hand exchange during the buy, but was in sight of

Appellant’s vehicle the entire time and no one else got out of the vehicle.

She testified the entire transaction took place during a five-minute time

period. When Meeks returned to Smithberger’s vehicle, he provided two

balloons of heroin. Both Staats and Smithberger acknowledged that the

transactions of July 3, 2012 and July 5, 2012 were not captured on video.

      {¶23} Sergeant Brian Lockhart of the Major Crimes Task Force in

Washington County worked with Detective Smithberger on July 5, 2012.

He corroborated her testimony that Meeks was picked up and dropped off at

the Kmart parking lot. He corroborated Smithberger’s testimony that she

searched Meeks and provided him with the photocopied buy money and

recording equipment. Lockhart also observed Appellant enter the Kmart lot

and Meeks enter into the silver Durango. Appellant drove to the Las

Trancas restaurant and back to the Kmart lot, where he exited Appellant’s

vehicle and was picked up by the officers. Lockhart acknowledged there

was a brief period of time where he could not see inside Appellant’s vehicle.

Lockhart also corroborated Smithberger’s testimony that she searched

Meeks and he provided the suspected heroin.

      {¶24} Regarding count three, Detective Staats also assisted in the

January 24, 2013 controlled buy on the west side of Marietta. The
Washington App. No. 13CA41                                                    16


transaction took place during daylight hours. Staats testified he sat on

Virginia Street, near the Boathouse bar in an unmarked vehicle, while

Detective Huffman was located on the other side of Virginia Street. Staats

testified Huffman dropped the confidential informant, this time, a person

named Mark McIntyre, off at the bar and McIntyre began walking on

Franklin Street. Staats observed Appellant, in a dark blue hooded jacket,

meet McIntyre on the sidewalk. Staats observed an exchange. The silver

Durango was parked up the street. Staats testified as he drove past the two

on the sidewalk, he saw an exchange of money.

      {¶25} Detective Lockhart also testified he worked with Detective

Staats on January 24, 2013. Lockhart testified he was a passenger with

Sergeant Staats when he witnessed a hand-to-hand exchange between the

confidential informant and Appellant on the sidewalk on Franklin Street in

Marietta. Lockhart testified they maintained radio contact with Detective

Huffman, but Huffman picked up the confidential informant after the

transaction took place. Lockhart also testified the confidential informant

was out of his line of vision for less than ten seconds.

      {¶26} Detective Ryan Huffman of the City of Marietta, but assigned

to the Major Crimes Task Force, also testified he was working on January

24, 2013. He testified McIntyre contacted him and a controlled buy was
Washington App. No. 13CA41                                                  17


arranged. Huffman and an Officer Hornbeck picked up McIntyre in an

unmarked vehicle. McIntyre was searched and then transported to the west

side of Marietta. Officers Staats and Lockhart were performing surveillance

in a different vehicle on the west side. The meeting location was the

Boathouse restaurant. Huffman let McIntyre out of the vehicle on Gilman

Street and watched him walk to Virginia Street. Then Huffman lost sight of

McIntyre, but McIntyre was in the sight of Staats and Lockhart. Huffman

was in radio contact with the other officers. McIntyre then went onto

Franklin Street and the other officers followed onto Franklin Street. The

other officers advised Huffman they observed a hand to hand transaction

between Appellant and the informant. Huffman admitted he did not see this

hand to hand transaction.

      {¶27} Huffman then picked up the confidential informant who gave

him the evidence and the recording device. The informant was searched

again. He transported the confidential informant away from the area and

returned to his office where he photographed the evidence and sealed it.

      {¶28} Regarding count four, Huffman further testified he worked

with McIntyre again on January 28, 2013 to arrange a heroin deal. McIntyre

advised it would take place in the Kroger parking lot. Huffman picked up

McIntyre and searched him, finding no illegal contraband. The informant
Washington App. No. 13CA41                                                   18


was transported to the location and called Appellant a few times. Huffman

parked on the Kroger lot. Huffman again provided the buy money and

recording device.

           {¶29} On this occasion, the informant walked to the Pizza Hut end of

the Kroger lot, in Huffman’s sight the entire time. A red Chevrolet Cavalier

driven by T. J. Gaughan arrived and parked at the Pizza Hut lot.5 McIntyre

went to the passenger side and obtained something from the passenger.

McIntyre walked back to Huffman’s location. When the red vehicle left,

Huffman could see the passenger was Appellant. Huffman eventually met

back with McIntyre on the parking lot. McIntyre was never out of

Huffman’s sight. When he got into the vehicle, he provided the substance he

had purchased from Appellant, and the recording device. The informant was

searched and dropped off elsewhere. Huffman went back to the station and

secured the evidence.

           {¶30} On cross-examination, Huffman acknowledged he had known

McIntyre for 10 or 11 years and he had been through the criminal system

quite a bit. McIntyre was paid $100.00 each for the separate transactions.

McIntyre has used crack cocaine and heroin. At the time of trial, he was




5
    T.J. Gaughan was later charged with complicity.
Washington App. No. 13CA41                                                     19


held in the North Central Regional Jail in West Virginia on a burglary

charge. He had been terminated as a confidential informant.

      {¶31} Finally, Detective Staats also testified as to observations made

on January 28, 2013. He testified he was in the Kroger area on Acme Street

in Marietta when he observed a red Chevrolet Cavalier, driven by a male,

pull in to the lot. Appellant was also in the vehicle. However, Staats

acknowledged he lost sight of the vehicle and did not observe anyone meet

with it. On cross-examination, Staats acknowledged he did not deal with

setting up the confidential informants. He also did not make a written

report.

      {¶32} The State’s case was proven, largely, by circumstantial

evidence. Circumstantial evidence is sufficient to establish an element of any

crime. State v. Kutsar, 8th Dist. Cuyahoga No. 89310, 2007-Ohio-6990,

¶20; see, State v. Jenks, 61 Ohio St.3d at paragraph one of the syllabus. In

State v. Mansaray, 8th Dist. Cuyahoga No. 90647, 2009-Ohio-1237, the

appellate court held that circumstantial evidence supported Mansaray’s

conviction. In Mansaray, the defendant was convicted of drug trafficking

pursuant to a drug deal arranged by police between defendant and an

informant. The police officers involved did not observe the actual hand-off

of the drugs, however, when the police officers arrived, the informant had
Washington App. No. 13CA41                                                           20


drugs on him. The appellate court also noted the informant was thoroughly

searched and was never out of the officers’ sight after being searched. Thus,

the only opportunity the informant had to obtain drugs was from the

defendant. In State v. Cunningham, 6th Dist. Wood No. WD-08-063, 2009-

Ohio-6970, Cunningham was convicted of three counts of trafficking in

cocaine. Although Cunningham was recorded during each buy and the

recordings were played for the jury, none of the officers involved directly

observed any of the drug transactions.6 Thus, the jury considered direct and

circumstantial evidence. In State v. Robinette, 4th Dist. Jackson No. 669,

1992 WL 12983, at *4, this court held that the circumstantial evidence

presented at trial sufficiently proved Robinette was aware he was selling

marijuana.

           {¶33} Further, we are mindful of the weight to be given evidence and

the credibility to be afforded testimony are issues to be determined by the

trier of fact. State v. Frazier, 73 Ohio St.3d 323, 339, 1995-Ohio-235, 652

N.E.2d 1000, citing State v. Grant, Ohio St.3d 465, 477, 1993-Ohio-171,

620 N.E.2d 50. The fact finder “is best able to view the witnesses and

observe their demeanor, gestures, and voice inflections, and use these

observations in weighing the credibility of the proffered testimony.”


6
    Cunningham’s appeal was not based on sufficiency or manifest weight arguments.
Washington App. No. 13CA41                                                      21


Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273

(1984).

       {¶34} It appears that here, the jury found the testimony of the four

officers involved to be persuasive and credible, despite the admissions that,

at times, they were unable to see an actual hand-to-hand transaction or to see

inside Appellant’s vehicle. We will not substitute our judgment for that of

the jury under these circumstances. The officers testified that prior to each

controlled buy, the informants were searched. As to count one, Detective

Smithberger testified she observed the exchange made inside the silver

Durango Appellant was driving. As to count two, although both officers

admitted they did not see the exchange, there was testimony that the

informant was the only person to get into Appellant’s vehicle and, within

five minutes, he returned with the substance later found to be heroin. As to

count three, Staats and Lockhart testified they witnessed an exchange of

money on the sidewalk between the informant and Appellant. Huffman lost

sight of the informant for only a brief period of time. And as to count four,

Huffman observed an exchange between Appellant, as passenger, and the

confidential informant. Huffman also testified the informant was never out

of his line of vision.
Washington App. No. 13CA41                                                     22


       {¶35} Admittedly, there was also testimony that Detective Staats

attempted to video the July 3, 2012 transaction, but it was raining and the

camera did not record well. And, on the January 28, 2013 occasion, Staats

acknowledged he did not deal with the confidential informant and did not

make a written report. There was also testimony from Detective

Smithberger that she did not videotape the transactions she was involved

with. None of the searches of the informants were strip searches. The

informants were paid minimal amounts. Testimony elicited on cross

examination demonstrated that Mark McIntyre had a history of criminal

activity and drug usage. But, it was in the province of the jury to evaluate

the evidence and determine its weight and value.

       {¶36} We conclude that there was both substantial and direct

evidence upon which the jury could have concluded that all the essential

elements of the counts charged had been proven beyond a reasonable doubt.

Further, in light of the circumstantial evidence adduced at trial, we cannot

conclude the jury lost its way and created a manifest miscarriage of justice

by finding Appellant guilty of four counts of trafficking in heroin. As such,

we overrule Appellant’s second assignment of error and affirm the judgment

of the trial court.

                      ASSIGNMENT OF ERROR THREE
Washington App. No. 13CA41                                                                                  23


                                A. STANDARD OF REVIEW

          {¶37} To succeed on a claim regarding error in the selection of a

    juror, Appellant must show that the error affected a substantial right- i.e.,

that is that it caused actual prejudice to the defendant. State v. Wilhelm, 5th

Dist. Knox Nos. 03-CA-25, 03-CA-26, 2004-Ohio-5522, ¶17; United States

v. Delgado (6th Cir.2003), 350 F.3d 520.

                                     B. LEGAL ANALYSIS

          {¶38} Appellant also contends the judgment of the trial court should

be reversed because a member of the jury was the father of a confidential

informant that testified against the defendant in another case in 2010.

During voir dire, prospective juror Nunn was questioned as to whether or not

he recognized Appellant. He responded that he did not recognize her. After

trial, Appellant claims to have learned that Nunn has some relationship to

Christina Nunn Hines.7 Hines acted as a confidential informant against

Appellant in a prior case, 10CR073.8 Appellant’s counsel also

acknowledges she has conducted a search of more than 100 cases and has no

specific basis for arguing that Appellant’s conviction should be overturned

on the basis of the juror’s apparent relationship to the previous confidential



7
  Appellant acknowledges she has not yet been able to confirm the relationship, but argues she is certain
they are related as father and daughter.
8
  The briefs indicate this was verified by court personnel.
Washington App. No. 13CA41                                                    24


informant. Appellant however requests this court to consider the issue as a

factor in determining whether or not to overturn Appellant’s convictions.

      {¶39} Appellee responds that Appellant’s argument in the third

assignment of error is based on information gained from an unexplained

source after trial and is not contained in the record for our review. We agree

with Appellee. Wilhelm, supra, at ¶15. (See State v. Hooks, 92 Ohio St.3d

83, 2001-Ohio-150, 748 N.E.2d 528, wherein the Supreme Court of Ohio

noted: “[A] reviewing court cannot add matter to the record before it that

was not a part of the trial court’s proceedings, and then decide the appeal on

the basis of the new matter.” The only evidence in the record regarding the

selection of Juror Nunn is contained in the following exchange:

      The Court: Mr. Nunn, you need to come to the jury box. Good
      morning, sir. Were you able to hear all of our questions and
      comments?

      Prospective Juror Nunn: Yes, Your Honor.

      The Court: Are there any you would have answered, had you
      been seated there?

      Prospective Juror Nunn: Say that again.

      The Court: Are there any questions that you would have
      answered, had you been seated there when we were asking
      them or any comments you would have responded to?
      Prospective Juror Nunn: Well, I do have to say I - - outside of
      my profession, I do volunteer at a homeless shelter.

      The Court: Okay. Okay. What’s your profession sir.
Washington App. No. 13CA41                                                 25


     Prospective Juror Nunn: I am a retired Marine and I work for
     the Bureau of Public Debt as an IT specialist.

     The Court: Okay. Okay. Any other questions you would have
     answered? Okay, sir, do you understand - - and will you do
     this, will you be fair and impartial to both sides, decide the case
     on the evidence that’s - - you hear in court and - - and the law
     as I give it to you, and give the case your undivided attention?

     Prospective Juror Nunn: Yes, Your Honor.

     The Court: Thank you. Attorney Schneider, you may inquire.

     ***

     Mr. Schneider: Any family or friends, close friend issues
     involving heroin abuse or drug abuse that would cause you
     maybe a problem sitting on the - -

     Prospective Juror Nunn: My wife’s - - my wife’s sister’s
     daughter has some chemical issues.

     Mr. Schneider: All right. Does that fact cause you a greater
     problem sitting on a jury in which the crime charged is
     trafficking in drugs?

     Prospective Juror Nunn: No.

     Mr. Schneider: Any reason you feel you couldn’t sit as a fair
     and impartial juror in this case?

     Prospective Juror Nunn: No.

     ***

     Mr. Smith: All right. You say your wife’s sister’s daughter has
     issues with substance abuse?

     Prospective Juror Nunn: Yes.
Washington App. No. 13CA41                                                    26


      Mr. Smith: What’s her drug of choice? Do you know?

      Prospective Juror Nunn: To speak it out, to know for sure, no.
      I just kind of stay some distance (inaudible).

      Mr. Smith: Stay away - - as far away from it as you can get?
      Prospective Juror Nunn: that’s correct.

      ***

      Mr. Smith: Do you recognize Miss Thompson?

      Prospective Juror Nunn: No.

       ***

      Mr. Smith: Do you understand, the State has the burden of
      proof? Do you know what the burden of proof is?

      Prospective Juror Nunn: Beyond a reasonable doubt.
      Mr. Smith: Can you hold the State to that - - that standard?
      Can you stay - - keep an open mind throughout the trial? Any
      other reason you don’t believe you could sit on this jury?

      Prospective Juror Nunn: No.

      Mr. Smith: Pass for cause.

      {¶40} Appellant’s contention that Juror Nunn’s apparent relationship

to Christina Nunn, a confidential informant in a previous case against

Appellant, is cause for her conviction to be overturned is based upon

information not properly in the record before us. Furthermore, from what is

properly before us regarding the selection of Juror Nunn, we see no evidence

that Juror Nunn was unable to function as a fair and impartial juror in the
Washington App. No. 13CA41                                                    27


case. Appellant’s assertion under this assignment of error is, further,

“nothing more than speculation- and speculation cannot support a finding of

actual prejudice.” Wilhelm, supra, at ¶17, quoting Delgado, supra. As such,

we find no merit to Appellant’s third assignment of error and it is hereby

overruled.

                     ASSIGNMENT OF ERROR FOUR

      {¶41} In Appellant’s final assignment of error, she contends she

received ineffective assistance of counsel. Specifically, Appellant argues:

(1) her counsel failed to attempt to subpoena either of the confidential

informants in the case; and, (2) her counsel failed to file a motion to

suppress prior to trial. For the reasons which follow, we disagree.

                       A. STANDARD OF REVIEW

      {¶42} Criminal defendants have a right to counsel, including a right

to the effective assistance from counsel. McMann v. Richardson, 397 U.S.

759, 770, 90 S.Ct. 1441 (1970); State v. Stout, 4th Dist. No. 07CA5, 2008-

Ohio-1366, ¶21. To establish constitutionally ineffective assistance of

counsel, a defendant must show (1) that his counsel’s performance was

deficient and (2) that the deficient performance prejudiced the defense and

deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904
Washington App. No. 13CA41                                                      28


(2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In

order to show deficient performance, the defendant must prove that

counsel’s performance fell below an objective level of reasonable

representation. To show prejudice, the defendant must show a reasonable

probability that, but for counsel’s error, the result of the proceeding would

have been different.” State v. Conway, 109 Ohio St.3d 412, 2006 Ohio-2815,

848 N.E.2d 810, ¶95 (citations omitted). “Failure to establish either element

is fatal to the claim.” State v. Jones, 4th Dist. No. 06CA3116, 2008-Ohio-

968, ¶14. Therefore, if one element is dispositive, a court need not analyze

both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000)

(stating that a defendant’s failure to satisfy one of the elements “negates a

court’s need to consider the other”).

       {¶43} When considering whether trial counsel’s representation

amounts to deficient performance, “a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689. Thus, “the defendant

must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” Id. “A

properly licensed attorney is presumed to execute his duties in an ethical and

competent manner.” State v. Taylor, 4th Dist. No. 07CA1, 2008-Ohio-482,
Washington App. No. 13CA41                                                       29


¶10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).

Therefore, a defendant bears the burden to show ineffectiveness by

demonstrating that counsel’s errors were so serious that he or she failed to

function as the counsel guaranteed by the Sixth Amendment. State v.

Gondor, 112 Ohio St.3d 377, 2006 Ohio-6679, 860 N.E.2d 77, ¶62; State v.

Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988).

      {¶44} To establish prejudice, a defendant must demonstrate that a

reasonable probability exists that but for counsel’s errors, the result of the

trial would have been different. State v. White, 82 Ohio St.3d 15, 23, 693

N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989), at paragraph three of the syllabus. Furthermore, courts may not

simply assume the existence of prejudice, but must require that prejudice be

affirmatively demonstrated. See State v. Clark, 4th Dist. No. 02CA684,

2003-Ohio-1707, ¶22; State v. Tucker, 4th Dist. No. 01CA2592 (Apr.2,

2002); State v. Kuntz, Ross App. No. 1691 (Feb. 26, 1992).

                           B. LEGAL ANALYSIS

      1. The failure to subpoena either of the confidential informants.

      {¶45} Appellant argues the identity of informant Corey Meeks was

revealed to Appellant nearly six months prior to trial. Appellant also points

to Brittany Martin’s letter to the prosecuting attorney, stating that Appellant
Washington App. No. 13CA41                                                      30


gave her a ride to meet with her cousin, Meeks, at Kmart and at the Mexican

restaurant, references the two incidents in which Appellant was convicted of

selling drugs to informant Meeks. Appellant argues the failure to subpoena

Meeks prejudiced Appellant because Appellant was unable to establish the

fact that Brittany Martin was meeting with Meeks. Appellant also argues

that the identity of the other informant, Mark McIntyre, was known to

counsel prior to trial and no effort was made to subpoena him for trial.

      {¶46} Appellee responds by pointing out that Appellant successfully

moved to exclude the audio recordings, which she must have believed would

harm, not assist, her case at trial. Appellee argues Appellant is not able to

show how the informants’ testimony would have benefitted her and

therefore, she is unable to demonstrate prejudice. Appellee also argues the

“Brittany Martin” letter was prepared “after the fact” and demonstrates only

that she was present at the scene. Appellee asserts Appellant is unable to

show prejudice in this regard as well.

      {¶47} “‘Generally, counsel’s decision whether to call a witness falls

within the rubric of trial strategy and will not be second-guessed by a

reviewing court.’” State v. Siders, 4th Dist. Gallia No. 07CA10, ¶19,

quoting State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d

229, at ¶143, quoting State v. Treesh, 90 Ohio St.3d 460, 490, 739 N.E.2d
Washington App. No. 13CA41                                                      31


749 (2001). We agree with Appellee that Appellant has failed to show

prejudice by her counsel’s failure to secure the confidential informant

witnesses’ presence at trial. Both informants Meeks and McIntyre could just

have easily chosen to testify against Appellant. The fact that Appellant

moved to exclude the audio recordings provides further evidence that the

testimony of the informants would have hurt Appellant’s defense rather than

have assisted with it. Appellant likely did not want the recordings to come

into evidence because they were accurate recordings of the conversations

between her and the informants and provided strong evidence of guilt. The

failure to secure the presence of these witnesses at trial appears to be a

strategic decision of counsel.

       {¶48} It is also only speculation that, had Meeks testified, he would

verify the contents of the Brittany Martin letter, that Appellant was actually

taking Martin to see Meeks. Prejudice must be affirmatively demonstrated.

See Clark, supra Appellant is not able to show prejudice, i.e., that, but for

her counsel’s purported errors, the result of the proceeding would have been

different. We find no merit to this argument.

      2. The failure to file a motion to suppress.

      {¶49} Appellant also argues trial counsel did not file any motion to
Washington App. No. 13CA41                                                    32


suppress witness testimony, statements, documentary evidence, or other

evidence. As such, Appellant went to trial “blind.” “The failure to file or

pursue a motion to suppress does not automatically constitute ineffective

assistance of counsel.” Siders, supra, at ¶11, quoting State v. Taylor, 4th

Dist. Washington No. 07CA11, 2008-Ohio-482, at ¶10, citing State v.

Madrigal, 87 Ohio St.3d 378, 389, 200-Ohio-448, 721 N.E.2d 52 (internal

citations omitted.). Instead, to establish ineffective assistance of counsel for

failure to file a motion to suppress, a defendant must prove that there was a

basis to suppress the evidence in question. Siders, supra, citing State v.

Brown, 115 Ohio St.3d 55, 20070Ohio-4837, 873 N.E.2d 858, at ¶65, citing

State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, at

¶35. In other words, the defendant must show that a motion to suppress

would have had a reasonable probability of success. Siders, supra; see, State

v. Santana, 90 Ohio St.3d 513, 515-516, 2001-Ohio-7, 739 N.E.2d 798; see

also, State v. Chamblin, 4th Dist. Adams No. 02CA753, 2004-Ohio-2252, at

¶34, citing State v. Nields, 93 Ohio St.3d 6, 2001-Ohio-1291, 752 N.E.2d

859(2001).

      {¶50} Here, Appellant does not specify what witness testimony

should have been suppressed by a favorable motion ruling. Appellant does

not specify which statements made my which witnesses should have been
Washington App. No. 13CA41                                                    33


suppressed. Appellant does not specify what documentary evidence merited

suppression. As such, she cannot show prejudice based on speculation of

vaguely-described content of a motion to suppress.

         {¶51} Next, Appellant points out the audio recordings of the incidents

were, in fact, excluded the day before trial. Thus, such a motion would have

had a reasonable probability of success. Appellant argues had the audio

recordings been suppressed earlier in the proceedings, trial counsel could

have taken other steps, such as entering into plea negotiations from a

stronger position and/or filing another motion to suppress or limit the

testimony of the law enforcement officers concerning the details of incidents

to which the officers did not witness an exchange. This again, is

speculation.

         {¶52} Appellant, here, cannot establish prejudice because the audio

recordings were, in fact, excluded. Appellant’s argument focuses on the

actions she may have taken, had a motion to suppress been filed and granted,

and is based on speculation. As such, Appellant’s argument is without

merit.

         {¶53} In sum, we do not believe Appellant can show a reasonable

probability that, but for counsel’s alleged errors, the result of the proceeding

would have been different. We do not find Appellant was prejudiced by the
Washington App. No. 13CA41                                                      34


actions of trial counsel with regard to counsel’s failure to subpoena the

confidential informant witnesses or the failure to file a motion to suppress.

As such, we also overrule this assignment of error. Having overruled all of

the assignments of error, we affirm the judgment of the trial court.

                                              JUDGMENT AFFIRMED.
Washington App. No. 13CA41                                                     35


                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, P.J. & Harsha, J.: Concur in Judgment and Opinion.

                                 For the Court,

                          BY: ___________________________________
                              Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
