[Cite as State v. Collins, 2011-Ohio-2660.]


          Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 95422




                                     STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                   TONY D. COLLINS
                                                    DEFENDANT-APPELLANT




                                 JUDGMENT:
                         AFFIRMED IN PART, REVERSED
                           IN PART, AND REMANDED



                                 Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                            Case Nos. CR-529965 and CR-533453

        BEFORE: Celebrezze, P.J., Jones, J., and S. Gallagher, J.
      RELEASED AND JOURNALIZED:                June 2, 2011

ATTORNEY FOR APPELLANT

John T. Castele
1310 Rockefeller Building
614 West Superior Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Marc D. Bullard
      Erica Barnhill
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


FRANK D. CELEBREZZE, JR., P.J.:

      {¶ 1} Appellant, Tony Collins, brings this consolidated appeal of his

drug trafficking convictions in two criminal cases. After a thorough review of

the record and law, we affirm in part and reverse and remand in part.

      {¶ 2} Appellant was indicted in CR-529965 on October 20, 2009 on

charges of drug trafficking, drug possession, and possession of criminal tools.

The day before trial was to begin, he was arrested for substantially the same

crimes.   Appellant was indicted in CR-533453 on February 2, 2010 on

charges of drug trafficking and possession with school yard specifications.

The cases were consolidated for a bench trial, which began on June 15, 2010.
      {¶ 3} The state presented the testimony of Cleveland police detectives

and a United States Postal Service (“USPS”) investigator at trial. Detective

Neil Hutchinson of the Package Interdiction Team (“PIT”), a division of the

Cleveland Police Narcotics Unit, testified that on October 9, 2009, he

observed a suspicious package at a Federal Express sorting facility in

Cleveland, Ohio.    Upon further investigation and after a trained dog

indicated the package contained illicit drugs, a search warrant was obtained

and the package was opened.      Det. Hutchinson discovered approximately

6,573 grams of a substance that field-tested positive for marijuana packaged

in a round Tupperware-style container.     He sought and was granted an

anticipatory warrant for the address where the package was destined and

arranged a controlled delivery posing as a Federal Express employee. Det.

Hutchinson delivered the package to its destination, where it was illegibly

signed for and accepted by James Collins, appellant’s brother.          Det.

Hutchinson then drove away.

      {¶ 4} Detective Thomas Klamert, a member of the Cleveland Police

Narcotics Unit, was working surveillance when the package was delivered.

Det. Klamert testified that after Det. Hutchinson drove away, he observed

James make a call on his cell phone. A short time later, appellant arrived at

the location.   Det. Klamert testified that appellant retrieved the package

from James and then walked a few houses down. Appellant then stepped
onto the porch of a vacant home and was seen “monkeying with the box.” It

was later determined that he removed the shipping label from the box and

tossed it onto the front lawn. Detectives moved in and arrested appellant

and his brother.

      {¶ 5} On January 14, 2010, postal inspector Martin Cernelich of the

USPS was alerted to another suspicious package in a Cleveland mail sorting

facility. He conducted an investigation that resulted in a federal warrant to

open the package.       He discovered a large cellophane-wrapped bundle of

marijuana with a total weight, including the cellophane, of 12 pounds and

7.55 ounces.    Inspector Cernelich testified that the contents field-tested

positive for marijuana. The weight of the marijuana was later determined to

be 4,567 grams. Inspector Cernelich then collaborated with PIT detectives to

arrange a controlled delivery to the destination address.   On January 20,

2010, Inspector Cernelich arrived at the address wearing a USPS uniform

and attempted delivery of the package. He was met by an older gentleman,

Trent Collins, who informed him that the package recipient did not live at

that address.      Inspector Cernelich left information with the man so the

intended recipient could retrieve the package. He later learned that several

calls had been received at the USPS branch office responsible for delivery of

the package, and someone had attempted to pick it up.
     {¶ 6} Inspector Cernelich then arranged to attempt delivery a second

time and, on January 27, 2010, he drove to the destination address posing as

a mail carrier. This time he was met by appellant and was informed that the

named recipient did indeed live at the address.      Appellant signed for the

package using a false name, John Jones. Inspector Cernelich gave him the

package and then left.

     {¶ 7} PIT detective Joseph Bovenzi, who had been surveilling the

delivery, testified that he observed appellant receive the package from

Inspector Cernelich.     He testified that appellant initially went inside the

home, but emerged approximately 30 seconds later and placed the package on

the porch a few feet from the doorway. Officers then decided to execute the

search warrant they had obtained. They arrested appellant and seized the

package. Appellant was heard saying that “[y]ou don’t have sh*t on me. I

didn’t even sign my real name.”

     {¶ 8} The trial court found appellant guilty of one count of drug

trafficking, drug possession, and possession of criminal tools in CR-529965;

and one count of drug trafficking and drug possession with school yard

specification in CR-533453. The trial court determined that the counts of

drug trafficking and drug possession were allied offenses, and the state

elected to proceed with sentencing on the two trafficking charges.         In

CR-529965, appellant was sentenced to two years of incarceration for drug
trafficking, to be served concurrently with six months for possession of

criminal tools, and forfeiture of a cell phone. In CR-533453, appellant was

sentenced to a term of imprisonment of four years to be served consecutively

to the term in CR-529965, for a total prison sentence of six years. Appellant

was also informed of a mandatory three-year term of postrelease control. He

then timely filed the instant appeal, citing three assignments of error.1

                                    Law and Analysis

                                        Sufficiency

      {¶ 9} Appellant first claims that the state produced insufficient

evidence to convict him of drug trafficking.

      {¶ 10} “In a criminal case, the state must prove that the accused

engaged in ‘a voluntary act, or an omission to perform an act or duty that the

person is capable of performing,’ with the ‘requisite degree of culpability’ for

each element of the alleged offense in order to obtain a conviction.        R.C.

2901.21(A). ‘The state has the burden of establishing all material elements

of a crime by proof beyond a reasonable doubt.’ State v. Manley (1994), 71

Ohio St.3d 342, 346, 643 N.E.2d 1107, citing Mullaney v. Wilbur (1975), 421

U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508; State v. Adams (1980), 62 Ohio St.2d

151, 153, 16 O.O.3d 169, 404 N.E.2d 144. ‘[T]he Due Process Clause protects

the accused against conviction except upon proof beyond a reasonable doubt


      1   Appellant’s assignments of error are contained in the appendix.
of every fact necessary to constitute the crime with which [the accused] is

charged.’ (Emphasis added.) In re Winship (1970), 397 U.S. 358, 364, 90

S.Ct. 1068, 25 L.Ed.2d 368.”         State v. Nucklos, 121 Ohio St.3d 332,

2009-Ohio-792, 904 N.E.2d 512, ¶6.

      {¶ 11} Appellant was convicted of two counts of drug trafficking.   Ohio’s

drug-trafficking statute, R.C. 2925.03, provides, “(A) [n]o person shall

knowingly do any of the following:

      {¶ 12} “(1) * * * ;

      {¶ 13} “(2) Prepare for shipment, ship, transport, deliver, prepare 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.”

      {¶ 14} Appellant was also found guilty of drug possession, defined in

R.C. 2925.11 as the knowing possession, obtainment, or use of a controlled

substance.

      {¶ 15} “A person acts ‘knowingly’ when ‘he is aware that his conduct will

probably cause a certain result or will probably be of a certain nature. A

person has knowledge of circumstances when he is aware that such

circumstances probably exist.’ R.C. 2901.22(B). Knowledge is generally not

susceptible to direct proof, but must be determined through inferences drawn

from the surrounding facts and circumstances.” State v. Saddler (Oct. 21,
1999), Cuyahoga App. No. 74218, 5, citing State v. Green (Apr. 20, 1988),

Hamilton App. No. C-860791.

      {¶ 16} Appellant claims the state failed to adduce sufficient evidence

that he trafficked or possessed any drugs or that he had knowledge of the

marijuana found in the packages he received. Appellant points to State v.

Bettis, Hamilton App. No. C-060202, 2007-Ohio-1724, for support, but this

case is distinguishable. In that case, the state failed to show that Bettis ever

gained dominion or control over the package. During a controlled delivery,

the police officer never gave Bettis the package.       The officer maintained

possession the entire time, and Bettis was arrested without having received

it. The Bettis court reversed the conviction for drug possession because the

state could not show possession, constructive or otherwise. Here, appellant

received both packages and actually possessed them. He even went so far as

to remove the shipping label from one of the packages. Although appellant

did not open the boxes, he did maintain possession of them.

      {¶ 17} In Saddler, this court faced a similar situation where authorities

intercepted a package containing drugs and substituted some of the contents

for a benign substance. This court found that the state failed to show that

Saddler constructively possessed the contraband before the state removed a

portion of the drugs, and therefore, reversed Saddler’s conviction as to the full

amount of the drugs originally shipped. His convictions were sustained only
to the amount Saddler actually possessed upon receipt of the package. This

court affirmed Saddler’s convictions for drug trafficking and drug possession

in spite of the fact that no evidence was offered that Saddler inquired about

the whereabouts of the package or attempted to direct its delivery, and the

package was not addressed to him.

      {¶ 18} Appellant argues that he did not know there was marijuana

inside the packages, but that is contradicted by his actions and the

circumstances.   The packages were sent to different addresses using false

names for the senders and the recipients. Regarding the second package,

appellant signed using a false name and claimed that the named recipient

resided at the address when Inspector Cernelich, during the previous

attempted delivery, had been informed by the homeowner that no one by that

name lived there.    “‘“It is today universally conceded that the fact of an

accused’s flight, escape from custody, resistence to arrest, concealment,

assumption of a false name, and related conduct, are admissible as evidence

of consciousness of guilt, and thus of guilt itself.”’”     (Emphasis added.)

United States v. Griffin (C.A.6, 1999), 172 F.3d 874, quoting United States v.

Serio (C.A.6, 1971), 440 F.2d 827, 832, quoting Marcoux v. United States

(C.A.9, 1968), 405 F.2d 719, 721.

      {¶ 19} To establish that appellant was guilty of drug trafficking, two

police officers testified that, based on their extensive training and experience,
the quantity of marijuana involved was indicative of trafficking. “We have

held in several cases that police officers may testify to the nature and amount

of drugs and its significance in drug trafficking.” State v. Young, Cuyahoga

App. No. 92744, 2010-Ohio-3402, ¶19, citing State v. Fellows (May 22, 1997),

Cuyahoga App. No. 70900, citing State v. Crenshaw (June 4, 1992), Cuyahoga

App. No. 60671; State v. Wilson (Oct. 3, 1996), Cuyahoga App. No. 69751.

      {¶ 20} Also, Det. Hutchinson testified that the first package was sent

using a false name, address, and phone number for the sender, and the phone

number was the same for the sender and recipient. The named recipient did

not reside at the destination address, and the package was heavily taped and

sent overnight at a cost of $101. He testified that this was often indicative of

a package that contained drugs. Inspector Cernelich testified that the name,

phone number, and address of the sender listed on the second package were

fictitious. He also spoke to the postal carrier who serviced the block of the

listed address of the sender and was informed that no one by the listed name

lived on that block, and Cernelich confirmed with various databases that the

address did not exist.     This evidence provides a strong indication that

appellant served as the last leg in the transportation of marijuana from

California to Cleveland for distribution and sale. This is sufficient evidence

that appellant violated R.C. 2925.03(A)(2).
     {¶ 21} This court has held that “[w]ith respect to the charge of

possession of drugs for sale [R.C. 2925.03], an inference may be drawn from

the circumstances surrounding the defendant at the time of his arrest and the

quantity and character of the narcotics seized at the time.” State v. Conner,

Cuyahoga App. No. 84073, 2005-Ohio-1971, ¶57, citing State v. Jones (Dec.

26, 1973), Franklin App. No. 73AP-338. This court went on to hold that

“approximately fifty pounds of marijuana was discovered in the two bags. A

prudent person could conclude that those narcotics were in his possession for

the purpose of sale and not for personal consumption.” Id.

     {¶ 22} During oral arguments, appellant’s counsel implored this court to

review the very recent case, State v. Blackshear, Cuyahoga App. No. 95424,

2011-Ohio-1806. However, that case is distinguishable from the present one

for a number of reasons. Blackshear testified that Det. Bovenzi covered the

shipping label with a clipboard where Blackshear signed his real name and

never inquired if Blackshear was the intended recipient of the package. His

father also regularly received packages at home, leading this court to the

conclusion that Blackshear possessed a reasonable assumption that the

package was for his father. Blackshear’s father also testified that as he left

for work, he saw the package his son had left next to the front door and

instructed his son to leave it for him to take care of after he returned. The
police executed a warrant before the father returned home, and they found

the package still unopened next to the door.

      {¶ 23} This court decided that a “deliberate ignorance” or “willful

blindness” jury instruction 2 was improperly given because the state had

offered insufficient evidence that Blackshear deliberately turned a blind eye

to the likely contents of the package.       This court held that the detective

delivering the package “did not testify that he said anything to defendant

that would or should have aroused defendant’s suspicions.” Id. at ¶42.

      {¶ 24} Here, appellant twice received packages addressed to others that

contained large quantities of marijuana.            There was no “deliberate

ignorance” or “willful blindness” instruction given, and appellant signed a

false name when he claimed the second package.3

      {¶ 25} Appellant’s convictions for drug trafficking and drug possession

are supported by sufficient evidence because, viewing the evidence in a light

most favorable to the state, appellant knew the contents of the packages,

participated in its transport to Cleveland for sale or distribution, and the




      2   See State v. Smith (June 15, 1995), Cuyahoga App. No. 67524.
      3  Such an instruction may have been proper in this case because Inspector
Cernelich testified that he asked appellant if the named recipient of the second
package lived at the address and appellant responded that she did, even though
Cernelich had been told by the homeowner that she did not. This should have been
sufficient to raise appellant’s suspicion.
testimony of various police officers indicated that the quantity involved —

some 25 pounds of marijuana — was indicative of drug trafficking.

      {¶ 26} Appellant next argues that the state failed to adduce sufficient

evidence to sustain the school yard specification.      R.C. 2925.03(C)(3)(d)

indicates that if the offense occurs within the vicinity of a school, it is

elevated to a second degree felony.     R.C. 2925.01(P) defines “vicinity of a

school” as “on school premises, in a school building, or within one thousand

feet of the boundaries of any school premises[.]”

      {¶ 27} The state offered the testimony of Det. Hutchinson, along with a

map prepared by the Cuyahoga County Engineer’s Office showing the location

of the controlled delivery and the distance between it and South High School.

 Det. Hutchinson testified that South High School “is a Cleveland public

school,” and is “within 1,000 feet of the location” of the controlled delivery.

(Emphasis added.)

      {¶ 28} The state rests their entire argument on the present-tense

meaning of      “is.”   In State v. Johnson, Cuyahoga App. No. 82804,

2004-Ohio-745, ¶30, this court affirmed a school yard specification conviction

where a police officer “testified that the transaction occurred within the

vicinity of an elementary school [Fullerton Elementary School], and a map

depicting the elementary school as within a 1,000 foot radius[.]” The Third

District also addressed a similar issue and determined that reference to the
school by name was sufficient evidence to sustain the specification. State v.

McDuffey, Seneca App. No. 13-03-41, 2003-Ohio-6985, ¶8. Finally, the Ohio

Supreme Court upheld a similar conviction when three witnesses testified

that the transaction took place within 1,000 feet of a school without

specifically addressing whether the school met the definition under R.C.

2925.01®), and merely referred to the school by its name. State v. Manley,

71 Ohio St.3d 342, 348, 1994-Ohio-440, 643 N.E.2d 1107.

      {¶ 29} However, this court in State v. Darling, Cuyahoga App. No.

92120, 2009-Ohio-4198, required that reference by name was not sufficient

when no evidence was adduced showing the school was open and operating.

This court agreed with the Sixth District that “‘[t]he introduction of evidence

that a “school” as defined by R.C. 2925.01 actually exists in proximity to the

location is * * * not an unduly burdensome requirement.’” Id. at ¶20, quoting

State v. Boyd, Ottawa App. No. OT-06-034, 2008-Ohio-1229. Here, there is

no evidence that South High School was open and operating apart from the

present-tense form of the verb “is” used by the officer while testifying about

the location of the school.    Under our most recent precedent, this was

insufficient to sustain the school yard specification in this case. Therefore,

this specification must be vacated.

      {¶ 30} Appellant next argues that the state failed to support his

conviction for possession of criminal tools with sufficient evidence.     R.C.
2923.24 states that “[n]o person shall possess or have under the person’s

control any substance, device, instrument, or article, with purpose to use it

criminally.”

      {¶ 31} The state argues that appellant used his cell phone in obtaining

the first package from his brother James. Det. Klamert testified that a short

time after receiving the package, James made a call on his cell phone, and a

short time after that, appellant arrived.     Det. Klamert testified that he

observed both men talking on their cell phones. However, the state did not

investigate the cell phone records to determine if appellant was talking to

James prior to receiving the package from him.        The state did not even

examine the phones to determine what phone number was last dialed or from

what number the last incoming call was received.

      {¶ 32} The entire testimony regarding the possession of criminal tools

charge rests solely on the officers’ observations of both men talking on cell

phones prior to James giving the package to appellant. The state has not

presented sufficient evidence with which the jury could make a reasonable

inference that appellant used his cell phone with a criminal purpose.

Recently, in State v. Brooks, Cuyahoga App. No. 94978, 2011-Ohio-1679, ¶23,

this court reaffirmed our holding in State v. Byers, Cuyahoga App. No. 94922,

2011-Ohio-342, ¶9, that “[t]he ubiquitousness of cell phones is such that the

mere possession of a cell phone is not ipso facto proof that it was used in drug
trafficking.” The Brooks court reversed a conviction of possession of criminal

tools where insufficient evidence existed in the record to demonstrate that the

appellant actually used the cell phone in furtherance of drug trafficking.

Brooks at ¶23.

      {¶ 33} All we have in the present case is an inference based on an

inference.   First, that James called appellant, and, secondly, that the call

aided appellant in the trafficking of marijuana. These multiple inferences

we are left with are inconsistent with the state’s burden of proof. Therefore,

appellant’s first assignment of error is sustained only as to his conviction for

possession of criminal tools, the resultant forfeiture specifications, and the

school yard specification. Otherwise, appellant’s first assignment of error is

overruled.

                                   Manifest Weight

      {¶ 34} Appellant also claims that his convictions were against the

manifest weight of the evidence.

      {¶ 35} “The   criminal manifest-weight-of-the-evidence standard was

explained in State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541.

In Thompkins, the court distinguished between sufficiency of the evidence

and manifest weight of the evidence, finding that these concepts differ both

qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held

that sufficiency of the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support a verdict as a matter of law, but

weight of the evidence addresses the evidence’s effect of inducing belief. Id.

at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks whose

evidence is more persuasive — the state’s or the defendant’s? We went on to

hold that although there may be sufficient evidence to support a judgment, it

could nevertheless be against the manifest weight of the evidence. Id. at

387, 678 N.E.2d 541. ‘When a court of appeals reverses a judgment of a trial

court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a “thirteenth juror” and disagrees with the factfinder’s

resolution of the conflicting testimony.’ Id. at 387, 678 N.E.2d 541, citing

Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.”

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶25.

      {¶ 36} Appellant relies on the fact that the packages were unopened and

argues that he had no idea that a substantial quantity of marijuana was

contained in the two packages he received in the mail. His knowledge is

demonstrated in his actions, as explained above. Simply because he did not

open the packages — a tactic used by drug traffickers to attempt to avoid

liability4 — does not establish that his convictions for drug trafficking and

drug possession are against the manifest weight of the evidence.              The


      4 Saddler at 3 (“[D]rug traffickers usually leave a package unopened for some
time after delivery so if the police come in, they can deny any knowledge about the
contents of the package.”).
evidence presented by the state weighs in favor of conviction in this case.

Accordingly, appellant’s second assignment of error is overruled.

                        Ineffective Assistance of Counsel

      {¶ 37} Appellant finally claims that he was denied effective assistance of

counsel.   He specifically argues that his trial counsel was constitutionally

deficient when stipulating to the accuracy of the laboratory report stating the

amount and type of drugs involved and for failing to object to testimony of the

detectives regarding the report, in violation of his right to confront witnesses

against him as stated in Crawford v. Washington (2004), 541 U.S. 36, 124

S.Ct. 1354, 158 L.Ed.2d 177, and Melendez-Diaz v. Massachusetts (2009), 557

U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314.

      {¶ 38} In order to substantiate a claim of ineffective assistance of

counsel, the appellant is required to demonstrate that: 1) the performance of

defense counsel was seriously flawed and deficient; and 2) the result of

appellant’s trial or legal proceeding would have been different had defense

counsel provided proper representation.      Strickland v. Washington (1984),

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio

St.3d 144, 495 N.E.2d 407.

      {¶ 39} In reviewing a claim of ineffective assistance of counsel, it must

be presumed that a properly licensed attorney executes his legal duty in an
ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98, 477

N.E.2d 1128; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d 164.

      {¶ 40} The Ohio Supreme Court held in State v. Bradley (1989), 42 Ohio

St.3d 136, 141-142, 538 N.E.2d 373, that, “‘[w]hen considering an allegation of

ineffective assistance of counsel, a two-step process is usually employed.

First, there must be a determination as to whether there has been a

substantial violation of any of defense counsel’s essential duties to his client.

Next, and analytically separate from the question of whether the defendant’s

Sixth Amendment rights were violated, there must be a determination as to

whether the defense was prejudiced by counsel’s ineffectiveness.’ State v.

Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623,

627, vacated in part on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57

L.Ed.2d 1154. This standard is essentially the same as the one enunciated

by the United States Supreme Court in Strickland v. Washington (1984), 466

U.S. 668 * * *.

      {¶ 41} “Even assuming that counsel’s performance was ineffective, this

is not sufficient to warrant reversal of a conviction. ‘An error by counsel,

even if professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no effect on the judgment.

Cf. United States v. Morrison, 449 U.S. 361, 364-365 [101 S.Ct. 665, 667-68,

66 L.Ed.2d 564] (1981).’ Strickland, supra, 466 U.S. at 691, 104 S.Ct. at
2066. To warrant reversal, ‘[t]he defendant must show that there is a

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

of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’ Strickland,

supra, at 694, 104 S.Ct. At 2068. In adopting this standard, it is important

to note that the court specifically rejected lesser standards for demonstrating

prejudice.

      {¶ 42} “Accordingly, to show that a defendant has been prejudiced by

counsel’s deficient performance, the defendant must prove that there exists a

reasonable probability that, were it not for counsel’s errors, the result of the

trial would have been different.” Bradley at 142-143.

      {¶ 43} In Melendez-Diaz, the Supreme Court ruled that the presentation

of a lab report without the testimony of the technician conducting the

analysis violated a defendant’s Sixth Amendment right to confrontation

because the report was testimonial under Crawford.        Here, appellant has

failed to demonstrate a reasonable probability that the outcome of his trial

would have been different.      The contents of both packages field tested

positive for marijuana. Further, Inspector Cernelich weighed the contents of

the second package in the field and determined its weight, including
cellophane wrapping, to be 12 pounds and 7.55 ounces. This is consistent

with a weight of 4,567 grams5 as stated in the report.

         {¶ 44} The Ohio Supreme Court has found that Ohio’s “notice and

demand” statutes6 adequately protect this right to confrontation and that the

right can be waived.               State v. Pasqualone, 121 Ohio St.3d 186,

2009-Ohio-315, 903 N.E.2d 270. The waiver of such a right can be a tactic of

trial.       State v. Jackson, Ashtabula App. No. 2007-A-0079, 2010-Ohio-820,

¶30-32.        Therefore, because there is no evidence that this matter of trial

strategy would have changed the outcome of appellant’s trial, this assignment

of error is overruled.

         {¶ 45} Judgment affirmed in part, reversed in part, and remanded to the

lower court for further proceedings consistent with this opinion.

         It is ordered that appellant and appellee share the costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s



         5   Roughly ten pounds.

        R.C. 2925.51(C) is applicable in this case and states, “[t]he report shall not
         6

be prima-facie evidence of the contents, identity, and weight or the existence and
number of unit dosages of the substance if the accused or the accused’s attorney
demands the testimony of the person signing the report, by serving the demand
upon the prosecuting attorney within seven days from the accused or the accused’s
attorney’s receipt of the report.”
convictions having been affirmed in part, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



      FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

    LARRY A. JONES, J., CONCURS AND DISSENTS IN PART (WITH
SEPARATE OPINION);

    SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY (WITH
SEPARATE OPINION)


      LARRY A. JONES, J., CONCURRING AND DISSENTING IN PART:

      {¶ 46} Respectfully, I dissent as to the majority’s finding of sufficient

evidence to support the drug trafficking convictions.

      {¶ 47} Drug trafficking is prohibited by R.C. 2925.03(A)(2), which

provides in relevant part that:

      “No person shall knowingly * * *[p]repare for shipment, ship, transport,
      deliver, prepare 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.”

      {¶ 48} Thus,   to convict Collins for drug trafficking, the state needed to

prove that he knowingly did one of the following: (1) prepared the marijuana

for shipment; (2) shipped, transported, or delivered the marijuana; (3)
prepared the marijuana for distribution; or (4) distributed the marijuana.

State v. Hatcher (July 31, 1997), Cuyahoga App. No. 70857. There was no

evidence that Collins did any of the above.

      {¶ 49} In its brief, the state contends that Collins “prepared the

marijuana for distribution by accepting delivery of the packages.” The state

cites four cases in support of its position: State v. Patterson (1982), 69 Ohio

St.2d 445, 432 N.E.2d 802; State v. Ballard (May 31, 1990), Cuyahoga App.

No. 56676; State v. Saddler (Oct. 21, 1999), Cuyahoga App. No. 74218; and

State v. Anderson (Nov. 27, 1996), Cuyahoga App. No. 69620.

      {¶ 50} Saddler involved a drug possession, not trafficking, conviction.

In Ballard, the defendant made a sale of drugs, and in Patterson the

defendant made an offer to sell, both cases unlike here.            (See R.C.

2925.03(A)(1) providing that “[n]o person shall knowingly * * * [s]ell or offer

to sell a controlled substance”).

      {¶ 51} Anderson is the only case cited by the state that supports its

position, and I respectfully disagree with its holding that, because the

defendant possessed a “significant” amount of cocaine, “[a] reasonable

conclusion * * * is that [he] intended not to personally consume the cocaine,

but knowingly prepared it for shipment or distribution.”

      {¶ 52} I disagree with the state’s contention that “by accepting delivery

of the package, [Collins] took the first step (obtaining the wholesale
merchandise) in preparing it for distribution.” As this court stated in State

v. Powell (1993), 87 Ohio App.3d 157, 621 N.E.2d 1328:

     “* * * the offense of drug trafficking defined by R.C. 2925.03(A)(2)
     requires proof of more than mere ‘possession’ of a controlled substance.
     Rather, drug trafficking under this provision requires demonstrating
     some form of the proscribed trafficking conduct incident to a drug sale.”
      Id. at 170.

     {¶ 53} Acceptance of the packages only proved possession.   No evidence

was presented that Collins engaged in “some form of the proscribed

trafficking conduct incident to a drug sale.” Id. Thus, I would vacate the

drug trafficking convictions.   I concur with the remainder of the majority

opinion.


      SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:

     {¶ 54} I respectfully concur in judgment only with the holding of the

majority on the drug trafficking conviction.       I concur fully with the

remainder of the majority opinion. I am constrained to concur in judgment

only on the drug trafficking count because of prior precedent in this district

on the specific subject of what constitutes drug trafficking under R.C.

2925.03(A)(2) as outlined in State v. Conner, Cuyahoga App. No. 84073,

2005-Ohio-1971.

     {¶ 55} In Conner, we held that the “quantity and character of the

narcotics seized” could form the basis of a conviction under R.C.
2925.03(A)(2), independent of evidence related to the actual elements of the

statute.   Here, the majority attempts to distance itself from Conner by

relating the act of receiving drugs to the chain of distribution, and thus

making it part of the scheme of a drug shipment covered under R.C.

2925.03(A)(2).    Nevertheless, while I agree we must apply the holding in

Conner, and it may indeed be possible in some circumstances to

circumstantially prove the elements of drug trafficking under R.C.

2925.03(A)(2), I feel this case was decided on inferences and not on actual

facts supporting the elements of the drug trafficking statute.

      {¶ 56} In my view, this case raises concerns about the method of proof

being offered by the Cuyahoga County Prosecutor’s Office and whether the

evidence in so-called “preparation for shipment” cases being considered by

trial courts in this district is too remote. Further, the facts in this case, and

similar cases, raise questions about the viability of our earlier decision in

Conner. Nevertheless, because Conner is controlling in this district, I would

reluctantly affirm the conviction and sentence. I would recommend the court

either en banc this issue or restate the law for clarity on what constitutes

evidence of      “preparation for shipment” in drug trafficking convictions.

Further, Conner may be in conflict with the holding of earlier cases on this

issue in State v. Thomas (Mar. 15, 1979), Cuyahoga App. No. 38315, and State

v. Jordan (1992), 73 Ohio App.3d 524, 597 N.E.2d 1165. Most cases that
support the inference of trafficking based on possession have specific facts

related to the packaging or facts relating to the method of trafficking. See

State v. Fellows (May 22, 1997), Cuyahoga App. No. 70900; State v. Crenshaw

(June 4, 1992), Cuyahoga App. No. 60671; and State v. Wilson (Oct. 3, 1996),

Cuyahoga App. No. 69751.

      {¶ 57} The statute at issue has specific elements.   R.C. 2925.03 defines

drug trafficking as follows:

      {¶ 58} “(A) No person shall knowingly do any of the following:

      {¶ 59} “(2) Prepare for shipment, ship, transport, deliver, prepare 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.”

      {¶ 60} The “preparation for shipment” statute requires some evidence

that the offender actually prepares a drug for shipment, or ships a drug, or

transports a drug, or delivers a drug, or prepares for distribution a drug, or

actually distributes 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.

      {¶ 61} What has evolved in this district is a pattern where an offender,

by receiving a quantity of drugs that suggests trafficking, is automatically

presumed to have committed a “preparation for shipment” offense under
R.C. 2925.03(A)(2). Often, no direct evidence of conduct by the offender is

offered as to the elements listed above. The inference is because an offender

receives a quantity of drugs, that offender is inferred to have violated the

elements of R.C. 2925.03(A)(2).

      {¶ 62} Normally, convictions are based on specific facts that support or

establish the elements of a crime charged. While it is certainly acceptable to

infer certain facts or circumstances from the evidence at hand, inferences that

establish criminal elements based on other inferences not established in fact

thwart how criminal liability should be established in our system of justice.

      {¶ 63} An analogous scenario to this situation would be where a person

is angry at a neighbor, then makes a verbal threat to that neighbor, and

stalks the neighbor outside his home. Given these facts, we might rationally

assume the person may attack the neighbor.            But that possibility or

probability does not satisfy the elements involved for an assault or felonious

assault conviction.   That person might be charged and found guilty of a

variety of other offenses, but unless the authorities can establish by some

direct evidence that the person knowingly caused or attempted to cause

physical harm, or serious physical harm, or physical harm by means of a

deadly weapon, it is unlikely the person can ever be convicted of assault or

felonious assault.
      {¶ 64} Here, there is overwhelming evidence that Collins possessed a

quantity of marijuana that subjected him to an enhanced penalty based on

that quantity. Further, while we can rationally assume that Collins did not

receive this quantity of marijuana simply to sit in his living room and smoke

it all by himself, the act of “receiving” is not one of the enumerated elements

under R.C. 2925.03(A)(2). Establishing that the person committed a crime is

not possible solely using inferences from assumptions about conduct without

factual evidence supporting the actual elements of crime charged.

      {¶ 65} The precedent for the conviction on drug trafficking has its origin

in our decision in Conner.     The analysis in Conner primarily dealt with

peremptory challenges involving African-American jurors in a drug case

under Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.

It also addressed reasonable suspicion issues related to the stop and

subsequent search of bags possessed by Conner at an airport. State v. Bobo

(1988), 37 Ohio St.3d 177, 524 N.E.2d 489; United States v. Rickus (C.A.3,

1984), 737 F.2d 360, 365; United States v. Hall (C.A.D.C.1976), 525 F.2d 857,

859; State v. Freeman (1980), 64 Ohio St.2d 291, 295, 414 N.E.2d 1044; and

Adams v. Williams (1972), 407 U.S. 143, 145, 92 S.Ct. 1921, 32 L.Ed.2d 612.

Also addressed was the admissibility of evidence pursuant to Evid.R. 404(B).

State v. Broom (1988), 40 Ohio St.3d 277, 281, 533 N.E.2d 682; State v. Curry

(1975), 43 Ohio St.2d 66, 70, 330 N.E.2d 720.
      {¶ 66} Crowded into the well-reasoned and exhaustive analysis of the

above issues was a reference to a challenge of the drug trafficking conviction

under the “preparation for shipment” language of the statute under R.C.

2925.03(A)(2). The court in Conner noted:

      {¶ 67} “With respect to the charge of possession of drugs for sale, an

inference may be drawn from the circumstances surrounding the defendant at

the time of his arrest and the quantity and character of the narcotics seized at

the time. In the instant case, approximately fifty pounds of marijuana was

discovered in the two bags. A prudent person could conclude that those

narcotics were in his possession for the purpose of sale and not for personal

consumption.    Therefore, the jury’s finding Conner guilty of possession of

drugs and possession of drugs for sale was proper.”

      {¶ 68} Had the legislature included the phrases “possession of an

amount indicating sale or resale” or “receiving an amount indicating sale or

resale,” the task of meeting the elements of R.C. 2925.03(A)(2) would be

simple.

      {¶ 69} The statute as written, however, indicates prospective conduct

that is particularized and not based on common assumptions.            A plain

reading indicates that it requires an offender to take some action in

furtherance of the goal of accomplishing trafficking by doing one or more of
the proscribed acts under the statute. Receipt of drugs alone is not one of

the enumerated methods of violating the “preparation for shipment” statute.

         {¶ 70} Unless police can lay out the conspiracy to distribute drugs,

including details on the origin of the shipment, method of shipment, and

parties involved in the shipment (real or otherwise), in a manner designed to

prove the act of receipt is part of an overall drug conspiracy, the elements

that an offender prepares a drug for shipment, or ships a drug, or transports

a drug, or delivers a drug, or prepares for distribution a drug, or actually

distributes 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, are not met by evidence of receipt

alone.

         {¶ 71} Here, there is no question evidence was offered indicating that

this delivery was arguably part of the chain of distribution of some unknown

conspiracy, but the verdict and the finding of the trial court supporting that

conviction was made based solely on the quantity of drugs involved in the

package received.

         {¶ 72} While I concur with the judgment of the majority because of

Conner, I have reservations about convictions based on inferences.

                                   APPENDIX

Appellant’s Assignments of Error:
I.    “The state produced insufficient evidence to support the defendant’s
convictions.”

II.   “The defendant’s convictions were against the manifest weight of the
evidence.”

III.   “The defendant was denied effective assistance of counsel.”
