[Cite as State v. Carson, 2026-Ohio-2709.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, : CASE NO. 25CA23
Plaintiff-Appellee, :
v. : DECISION AND JUDGMENT ENTRY
MICHAEL L. CARSON, :
Defendant-Appellant. :
APPEARANCES:
Angela Miller, Jupiter, Florida, for appellant1.
Anneka P. Collins, Highland County Prosecuting Attorney, and Adam J. King, Assistant Prosecuting Attorney, Hillsboro, Ohio, for appellee.
________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:7-9-26
ABELE, J.
{¶1} This is an appeal from a Highland County Common Pleas
Court judgment of conviction and sentence. Michael Carson,
defendant below and appellant herein, raises three assignments
of error for review:
FIRST ASSIGNMENT OF ERROR:
“THERE WAS INSUFFICIENT EVIDENCE PRODUCED AT
TRIAL TO SUPPORT A FINDING OF GUILT ON
AGGRAVATED POSSESSION OF METHAMPHETAMINE IN
VIOLATION OF APPELLANT CARSON’S RIGHT TO DUE
PROCESS UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION
AS WELL AS ARTICLE I, § § 5, 9, AND 16 OF
THE OHIO CONSTITUTION.”
1 Different counsel represented appellant during the trial court proceedings. Highland 25CA23 2
SECOND ASSIGNMENT OF ERROR:
“THE JURY LOST ITS WAY BY FINDING APPELLANT
CARSON GUILTY AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
THIRD ASSIGNMENT OF ERROR:
“THE REPRESENTATION PROVIDED TO CARSON FELL
BELOW THE PREVAILING NORMS FOR COUNSEL AND
AFFECTED THE OUTCOME OF HIS TRIAL IN
VIOLATION OF THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, ARTICLE I, §§ 2, 10, AND 16 OF
THE OHIO CONSTITUTION.”
{¶2} In July 2025, a Highland County Grand Jury returned an
indictment that charged appellant with (1) one count of burglary
in violation of R.C. 2911.12(A)(2), a second-degree felony, (2)
one count of theft in violation of R.C. 2913.02(A)(1), a firstdegree misdemeanor, and (3) one count of aggravated possession
of methamphetamine in violation of R.C. 2925.11, a second-degree
felony. Appellant entered not guilty pleas.
{¶3} On September 10, 2025, appellant filed a motion in
limine to prevent appellee from presenting evidence or testimony
related to a purported video from Fenner Ridge Apartments.
After a hearing, the trial court granted the motion in limine.
On September 15, 2025, the court granted appellee’s motion to
dismiss counts one and two of the indictment based on the
decision of the court regarding the investigating officer’s Highland 25CA23 3
failure to collect video evidence in the matter. The court
denied counsel’s September 16, 2025 motion to withdraw as
counsel, stating that appellant “fired her. . . stated that he
no longer wishes to have your undersigned represent him and
attempted to leave the attorney/client interview room. . .
refused to converse . . . and stated that she no longer
represents him.”
{¶4} At appellant’s September 22, 2025 jury trial, Highland
County Sheriff’s Captain Chris Bowen testified that he assisted
in the execution of a search warrant at an apartment leased to
Elizabeth Kibler. Bowen explained that when officers arrived,
they found appellant asleep in the bedroom. Bowen assisted with
the search of the bedroom, took photographs, and collected
evidence. Bowen testified that he had been told that items on
the bed “had come from gray shorts that were on the floor beside
the bed on the left side of the bed.” Bowen searched the shorts
and found a camouflaged container and a grenade-like container.
Bowen also found “a black pouch that contained a plastic vial of
powder that was also laying (sic.) on the bed with the items
that came from the shorts.” The grenade, camouflaged vial, and
black pouch all contained methamphetamine. Bowen also collected
a gray duffel bag on the floor beside the bed that contained
drug paraphernalia, digital scales, and “some mail” addressed to
appellant.
Highland 25CA23 4
{¶5} Highland County Sheriff’s Lt. Vincent Antinore also
assisted with the execution of the search warrant. Antinore
testified that when officers arrived, appellant was in bed
asleep in his underwear. When appellant asked if he could put
on shorts, Antinore instructed another officer to empty the
shorts' pockets and then allow appellant to put on the shorts.
The officer emptied appellant’s pockets onto the bed and onto
the floor near the bed.
{¶6} Lt. Antinore testified that next to the bed he found a
pack of cigarettes with a clear plastic bag of methamphetamine
and a wallet that belonged to Kibler. He also found a box of
tissues on the nightstand that contained a blue container of
methamphetamine hidden inside, approximately four feet from
appellant’s position. Antinore explained that the apartment
property manager was on scene that day and stated that appellant
was not listed on the lease, but Antinore found men’s clothing
in a closet. Antinore admitted on cross-examination that when
law enforcement first arrived at the apartment, they did not
possess a search warrant; consequently, they removed the
occupants and waited for the warrant.
{¶7} Ohio Bureau of Criminal Investigation Forensic
Chemist Stanton Wheasler testified regarding State’s Exhibit 1,
a lab report. Wheasler explained that the combined weight of
the methamphetamine was more than 15 but less than 150 grams, Highland 25CA23 5
which is more than 5 times the bulk amount. Specifically,
Wheasler detailed the findings in Exhibit 1:
1. Faux grenade metal container with a plastic bag with
crystalline solid substance and loose crystalline solid
substance – 2.60 g +/- 0.05 g – found to contain
Methamphetamine. Method(s) of testing used: chemical
testing and GC-MS.
2. Zipper pouch containing a plastic bag with silicone
earbud covers and a knotted plastic bag with crystalline
solid substance – tested the crystalline solid substance
– 1.14 g +/- 0.05 g- found to contain Methamphetamine.
Method(s) of testing used: chemical testing and GC-MS.
3. Metal vial with crystalline residue – trace amount
– found to contain Methamphetamine. Method(s) of
testing used: chemical testing and GC-MS.
4. Plastic bag with crystalline solid substance – 2.48
g +/- 0.05 g – found to contain Methamphetamine.
Method(s) of testing used: chemical testing and GC-MS.
5. Plastic bag with crystalline solid substance – 1.71
g +/- 0.05 g – found to contain Methamphetamine.
Method(s) of testing used: chemical testing and GC-MS.
6. Three (3) plastic bags with crystalline solid
substance – 14.09 g +/- 0.05 g – found to contain
Methamphetamine. Method(s) of testing used: chemical
testing and GC-MS.
{¶8} At the close of appellee’s case, the trial court
overruled appellant’s Crim.R. 29 motion for judgment of
acquittal.
{¶9} After hearing the evidence, the jury found appellant
guilty of third-degree felony aggravated trafficking in drugs.
{¶10} Subsequently, the trial court proceeded to sentencing.
Appellee noted that it possessed camera footage from appellant’s Highland 25CA23 6
cell phone of “some pretty violent videos of this defendant, for
lack of a better way to phrase it, just beating the crap out of
her [Elizabeth Kibler] right in the living room.” Appellee
sought the maximum sentence based on appellant’s prior criminal
history, including trafficking in methamphetamine and “his
priors in Florida.” Appellee further noted that, despite the
trial court’s admonition that appellant not have contact with
Kibler, jail calls indicated that “every single day he called
the phone number of the person where she was staying, and while
[Kibler] didn’t get on the phone with him directly it was
constantly, well, tell her this, well tell her that, well, what
is she going to testify about, what is she going to say about
me, this that and the other.” Appellee concluded, “he just has
no respect for the authority of the Court.”
{¶11} Defense counsel, on the other hand, argued that
appellant had been on community control from a case earlier in
the year and had been “doing well” at the STAR program. Thus,
appellant asked for community control and completion of the STAR
program.
{¶12} The trial court noted appellant’s threats against his
co-defendant, “which appears to have worked because she didn’t
testify against you.” The court referenced appellant’s previous
Florida convictions and observed that the scales indicated
trafficking. The court sentenced appellant to (1) serve a 3-Highland 25CA23 7
year, 36-month maximum prison sentence, (2) serve up to a 2-year
post-release control term, and (3) pay costs. This appeal
followed.
I.
{¶13} In his first assignment of error, appellant asserts
that his convictions should be reversed because insufficient
evidence supports a finding of guilt beyond a reasonable doubt.
In his second assignment of error, appellant contends that his
convictions are against the manifest weight of the evidence. As
a threshold matter, because appellant challenges both the
sufficiency and the manifest weight of the evidence, we
initially address both standards of review.
{¶14} A claim of insufficient evidence invokes a due process
concern and raises the question whether the evidence is legally
sufficient to support the verdict as a matter of law. State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997), syllabus; State v.
Blevins, 2019-Ohio-2744, ¶ 18 (4th Dist.). When reviewing the
sufficiency of the evidence, an appellate court's inquiry
focuses primarily on the adequacy of the evidence; that is,
whether the evidence, if believed, could reasonably support a
finding of guilt beyond a reasonable doubt. Id. at syllabus.
The standard of review is whether, after viewing the probative
evidence and inferences reasonably drawn therefrom in the light
most favorable to the prosecution, any rational trier of fact Highland 25CA23 8
could have found all the essential elements of the offense
beyond a reasonable doubt. E.g., Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Jenks, 61 Ohio St.3d 259, 273 (1991).
{¶15} Furthermore, under the sufficiency of the evidence
standard, a reviewing court does not assess “whether the state's
evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction.”
Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring).
Therefore, when reviewing a sufficiency of the evidence claim,
an appellate court must construe the evidence in a light most
favorable to the prosecution. See, e.g., State v. Hill, 75 Ohio
St.3d 195, 205 (1996); State v. Grant, 67 Ohio St.3d 465, 477
(1993). A reviewing court will not overturn a conviction on a
sufficiency of the evidence claim unless reasonable minds could
not reach the conclusion the trier of fact did. State v.
Tibbetts, 92 Ohio St.3d 146, 162 (2001); State v. Treesh, 90
Ohio St.3d 460, 484 (2001).
{¶16} “Although a court of appeals may determine that a
judgment of a trial court is sustained by sufficient evidence,
that court may nevertheless conclude that the judgment is
against the weight of the evidence.” Thompkins, 78 Ohio St.3d
at 387. “The question to be answered when a manifest weight
issue is raised is whether ‘there is substantial evidence upon
which a jury could reasonably conclude that all the elements Highland 25CA23 9
have been proved beyond a reasonable doubt.’ ” State v.
Leonard, 2004-Ohio-6235, ¶ 81, quoting State v. Getsy, 84 Ohio
St.3d 180, 193–194 (1998), citing State v. Eley, 56 Ohio St.2d
169 (1978), syllabus. A court that considers a manifest weight
challenge must “ ‘review the entire record, weigh the evidence
and all reasonable inferences, and consider the credibility of
witnesses.’ ” State v. Beasley, 2018-Ohio-493, ¶ 208, quoting
State v. McKelton, 2016-Ohio-5735, ¶ 328. However, the
reviewing court must bear in mind that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93
Ohio St.3d 49, 67 (2001); State v. Murphy, 2008-Ohio-1744, ¶ 31
(4th Dist.). “ ‘Because the trier of fact sees and hears the
witnesses and is particularly competent to decide “whether, and
to what extent, to credit the testimony of particular
witnesses,” we must afford substantial deference to its
determinations of credibility.’ ” Barberton v. Jenney, 2010-Ohio-2420, ¶ 20, quoting State v. Konya, 2006-Ohio-6312, ¶ 6 (2d
Dist.), quoting State v. Lawson, 1997 WL 476684 (2d Dist. Aug.
22, 1997).
{¶17} Thus, an appellate court will generally defer to the
trier of fact on issues of evidence weight and credibility, as
long as a rational basis exists in the record for the factfinder's determination. State v. Picklesimer, 2012-Ohio-1282, ¶
24 (4th Dist.); accord State v. Howard, 2007-Ohio-6331, ¶ 6 (4th Highland 25CA23 10
Dist.) (“We will not intercede as long as the trier of fact has
some factual and rational basis for its determination of
credibility and weight.”). Accordingly, if the prosecution
presented substantial, credible evidence upon which the trier of
fact reasonably could conclude, beyond a reasonable doubt, that
the essential elements of the offense had been established, the
judgment of conviction is not against the manifest weight of the
evidence. Accord Eastley v. Volkman, 2012-Ohio-2179, ¶ 12,
quoting Thompkins, 78 Ohio St.3d at 387, quoting Black's Law
Dictionary 1594 (6th Ed.1990) (a judgment is not against the
manifest weight of the evidence when “ ‘ “the greater amount of
credible evidence” ’ ” supports it).
{¶18} Consequently, when an appellate court reviews a
manifest weight of the evidence claim, the court may reverse a
judgment of conviction only if it appears that the fact-finder,
when it resolved the conflicts in evidence, “ ‘clearly lost its
way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’ ”
Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist. 1983); accord McKelton at ¶ 328.
Finally, a reviewing court should find a conviction against the
manifest weight of the evidence only in the “ ‘exceptional case
in which the evidence weighs heavily against the conviction.’ ”
Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d Highland 25CA23 11
at 175; accord State v. Clinton, 2017-Ohio-9423, ¶ 166; State v.
Lindsey, 87 Ohio St.3d 479, 483 (2000); State v. Hodges, 2025-Ohio-2050, ¶ 29-30 (4th Dist.).
{¶19} R.C. 2925.11(A) sets forth the essential elements of
the offense of possession of drugs. The statute provides: “No
person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.” R.C. 2901.22(B)
defines when a person acts knowingly:
A person acts knowingly, regardless of purpose, when the
person is aware that the person's conduct will probably
cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when a
person is aware that such circumstances probably exist.
When knowledge of the existence of a particular fact is
an element of an offense, such knowledge is established
if a person subjectively believes that there is a high
probability of its existence and fails to make inquiry
or acts with a conscious purpose to avoid learning the
fact.
{¶20} Whether a defendant knowingly possessed a controlled
substance “is to be determined from all the attendant facts and
circumstances available.” State v. Teamer, 82 Ohio St.3d 490,
492 (1998); accord State v. Corson, 2015-Ohio-5332, ¶ 13 (4th
Dist.). To establish knowing possession of a controlled
substance under R.C. 2925.11(A), the state is not required to
prove that “a defendant knew the specific characteristics of the
item possessed that made it” a controlled substance. State v. Highland 25CA23 12
Jordan, 89 Ohio St.3d 488, 494 (2000); accord State v. Williams,
2005-Ohio-1597, ¶ 34 (2d Dist.).
{¶21} “Possession of drugs can be either actual or
constructive.” State v. Bustamante, 2013-Ohio-4975, ¶ 25 (3d
Dist.), citing State v. Cooper, 2007-Ohio-4937, ¶ 25 (3d Dist.),
citing State v. Wolery, 46 Ohio St.2d 316, 329 (1976). “
‘Actual possession exists when the circumstances indicate that
an individual has or had an item within his immediate physical
possession.’ ” State v. Kingsland, 2008-Ohio-4148, ¶ 13 (4th
Dist.), quoting State v. Fry, 2004-Ohio-5747, ¶ 39 (4th Dist.).
“Constructive possession exists when an individual knowingly
exercises dominion and control over an object, even though that
object may not be within his immediate physical possession.”
State v. Hankerson, 70 Ohio St.2d 87, (1982), syllabus; State v.
Brown, 2009-Ohio-5390, ¶ 19 (4th Dist.). For constructive
possession to exist, the state must show that the defendant was
conscious of the object's presence. Hankerson, 70 Ohio St.2d at
91; Kingsland at ¶ 13; accord State v. Huckleberry, 2008-Ohio1007, ¶ 34 (4th Dist.); State v. Harrington, 2006-Ohio-4388, ¶
15 (4th Dist.); Criss v. City of Kent, 867 F.2d 259, 263 (6th
Cir. 1988) (“Ohio law is clear that a suspect can be in
‘constructive possession’ of ... property without having actual
physical possession of the property if it is located within Highland 25CA23 13
premises under the suspect's control and he was conscious of its
presence.”).
{¶22} Both dominion and control, and whether a person was
conscious of the object's presence, may be established through
circumstantial evidence alone. E.g., Brown at ¶ 19; see, e.g.,
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph one of the
syllabus (“[c]ircumstantial evidence and direct evidence
inherently possess the same probative value”); State v. Davis,
2018-Ohio-4268, ¶ 50 (3d Dist.)(prosecution may establish
constructive possession by circumstantial evidence alone.).
“Circumstantial evidence is defined as ‘[t]estimony not based on
actual personal knowledge or observation of the facts in
controversy, but of other facts from which deductions are drawn,
showing indirectly the facts sought to be proved ...’ ” State
v. Nicely, 39 Ohio St.3d 147, 150 (1988), quoting Black's Law
Dictionary 221 (5th Ed.1979).
{¶23} Furthermore, to establish constructive possession, the
State need not show that the defendant had “[e]xclusive control”
over the contraband. State v. Tyler, 2013-Ohio-5242, ¶ 24 (8th
Dist.), citing State v. Howard, 2005-Ohio-4007, ¶ 15 (8th
Dist.), citing In re Farr, 1993 WL 464632, *6 (10th Dist. Nov.
9, 1993) (nothing in R.C. 2925.11 or 2925.01 states that illegal
drugs must be in sole or exclusive possession of accused at time
of offense). Instead, “ ‘[a]ll that is required for
Highland 25CA23 14
constructive possession is some measure of dominion or control
over the drugs in question, beyond mere access to them.’ ”
Howard at ¶ 15, quoting Farr at *6. Thus, simply because others
may have access to the contraband, in addition to the defendant,
does not mean that the defendant “could not exercise dominion or
control over the drugs.” Tyler at ¶ 24; accord State v. Walker,
2016-Ohio-3185, ¶ 75 (10th Dist.) because multiple persons may
have joint constructive possession of an object. State v.
Philpott, 2020-Ohio-5267, ¶ 67 (8th Dist.); Wolery, 46 Ohio
St.2d at 332, 329 (“[p]ossession * * * may be individual or
joint” and “control or dominion may be achieved through the
instrumentality of another”); State v. Russell, 2022-Ohio-1746,
¶ 43 (4th Dist.). Although a defendant's mere proximity is in
itself insufficient to establish constructive possession,
proximity to the object may constitute some evidence of
constructive possession. Fry at ¶ 40. Therefore, “presence in
the vicinity of contraband, coupled with another factor or
factors probative of dominion or control over the contraband,
may establish constructive possession.” Kingsland, 2008-Ohio4148, at ¶ 13.
{¶24} In the case sub judice, appellant contends that
appellee failed to prove that appellant constructively possessed
the methamphetamine found in Kibler’s apartment. Appellant
argues that the only evidence appellee presented is appellant’s Highland 25CA23 15
presence in Kibler’s apartment where officers found multiple
containers of methamphetamine and drug paraphernalia. Appellant
emphasizes that Kibler is the sole lessee of the apartment,
appellant is not a resident, and officers found no drugs on
appellant. Appellant further notes that appellee acknowledged
that it was difficult to prove whether the methamphetamine
belonged to Kibler or to appellant, but argued that both
defendants “could have” possessed the drugs since they were both
present in the apartment.
{¶25} In the case at bar, appellant maintains that Kingsland
and State v. Smith, 2005-Ohio-3233 (3d Dist.) compel reversal.
In Kingsland, supra, this Court considered whether the State
presented sufficient evidence for the jury to determine whether
Kingsland knowingly exercised dominion and control over the
chemicals found in a pickup truck. We noted that the officer’s
testimony and the exhibits admitted at trial made clear that
Kingsland could be a passenger in the truck and be unaware of
the bottles, jars, and chemicals to manufacture methamphetamine
in the back of the truck. We observed that the State presented
no evidence to show that Kingsland had any specialized knowledge
regarding methamphetamine production, or that he should have
recognized these objects as components in the production of
methamphetamine. Further, the State produced no evidence as to
when Kingsland entered the truck or how long he had been a Highland 25CA23 16
passenger. Thus, we concluded that the evidence adduced at that
trial only provided mere proximity to the illegal chemicals.
Id. at ¶ 16.
{¶26} We believe, however, that Kingsland is distinguishable
from the instant case. Although appellant contends that
appellee adduced no evidence to prove constructive possession,
we point out that evidence adduced at trial showed, inter alia,
that (1) officer found appellant asleep in the bedroom with
drugs and drug paraphernalia, (2) appellant “was in bed in his
underwear,” and officers found appellant’s shorts “directly next
to the bed, at the bed side in front of the night stand,” (3)
before allowing appellant to put on the shorts, another officer
“emptied the shorts for all its contents,” “onto the bed and the
floor next to the bed,” (4) officers also found multiple bags
and containers that contained methamphetamine in that bedroom,
including a grenade-shaped container, a camouflaged vial, and a
black pouch, (5) officers found an assignment notice with
appellant’s name on the bedroom night stand, (6) officers found
a gray duffel bag on the floor next to the bed that contained
drug paraphernalia, digital scales, and mail addressed to
appellant, (7) officers found men’s clothing in the apartment’s
closet, and (8) according to Lt. Antinore on cross-examination,
the apartment property manager stated that “they were having Highland 25CA23 17
problems with the tenant because it was leased to Elizabeth
Kibler, however, she had Michael Carson living with her.”
{¶27} In Smith, supra, 2005-Ohio-3233, the State only
adduced evidence to show that the defendant was present in a
small, one-room apartment where cocaine was located. The Third
District emphasized that no drugs were found on his person, and
the State conceded that it was impossible to prove who provided
the cocaine. The court found the evidence presented that
established Smith's presence at the scene insufficient to prove
that he exercised control over the cocaine. Id. at ¶ 7.
However, we find Smith distinguishable on the facts of the
present case. In the case at bar, although officers did not
find drugs on appellant’s person, they did find methamphetamine
in at least three containers that, moments before, had been in
the appellant’s shorts beside the bed that appellant donned
after officers found him asleep in bed clad only in his
underwear. Thus, we conclude that in the present case, appellee
adduced far more evidence than simple presence.
{¶28} Consequently, we believe that the jury could
reasonably conclude that appellant constructively possessed the
drugs. See State v. Davis, 2018-Ohio-4368 (3d Dist.)
(constructive possession requires ability to exercise dominion
and control over item, even without immediate physical
possession; readily usable drugs in close proximity to accused Highland 25CA23 18
can constitute sufficient circumstantial evidence to support
constructive possession); State v. Dues, 2014-Ohio-5276 (8th
Dist.)(constructive possession proven via circumstantial
evidence after delay in opening apartment door and codefendant
threw drugs off of defendant’s balcony); State v. McClain, 2020-Ohio-1436 (3d Dist.)(mere proximity to drugs is insufficient to
establish constructive possession, but proximity combined with
other factors indicative of dominion or control, such as furtive
movements, can support a finding of constructive possession);
State v. Fulton, 2024-Ohio-671 (7th Dist.)(readily usable drugs
found in close proximity to defendant can be sufficient
circumstantial evidence for constructive possession; defendant
did not own vehicle, but drugs where within reach); State v.
Dixon, 2016-Ohio-1491, ¶ 19 (4th Dist.)(defendant driver
constructively possessed drugs contained in another passenger’s
buttocks); State v. Crocker, 2015-Ohio-2538 (4th
Dist.)(constructive possession of drugs carried in codefendant’s
vagina proven when defendant was driver of vehicle and text
messages and jail phone calls proved knowledge).
{¶29} Further, other courts have found that evidence
reflecting a defendant's personal paperwork or documents located
with or near the drug-related items can support a conviction
based on constructive possession. See State v. Scalf, 126 Ohio
App.3d 614, 620 (8th Dist.1998)(sufficient evidence of
Highland 25CA23 19
constructive possession when multiple adults lived in home and
search of home revealed cocaine found in a cabinet, along with
appellant's papers, in a sitting room shared by all occupants of
the house); State v. Carroll, 2000 WL 1015229 (10th Dist. July
25, 2000)(evidence that defendant’s driver's license found
together with receipts bearing his name in “location next to
drugs and cash” supported constructive possession finding).
{¶30} Similarly, in the case at bar, after our review of the
evidence in a light most favorable to appellant, we believe that
the evidence adduced at trial is sufficient to support the
jury’s verdict concerning appellant’s constructive possession of
methamphetamine.
{¶31} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II.
{¶32} In his second assignment of error, appellant asserts
that his conviction is against the manifest weight of the
evidence. Specifically, appellant contends that the jury lost
its way because no evidence existed to prove that appellant
exercised dominion or control over the methamphetamine located
in different compartments and on the floor of Kibler’s
apartment. Rather, appellant contends that the evidence pointed
to Kibler as the drug dealer because officers found a large
amount of methamphetamine hidden in a tissue box on Kibler’s Highland 25CA23 20
side of the bed, and other baggies with her driver’s license and
prescription medication.
{¶33} To determine whether the case sub judice is an
exceptional case in which the evidence weighs heavily against
conviction, this court must review the record, weigh the
evidence and all reasonable inferences, and consider witness
credibility. Hodges, supra, 2025-Ohio-2050, at ¶ 53, citing
State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).
However, a reviewing court must bear in mind that credibility
generally is an issue for the trier of fact to resolve. State
v. Schroeder, 2019-Ohio-4136, ¶ 61 (4th Dist.); State v. Dunn,
2012-Ohio-518, ¶ 16 (4th Dist.); State v. Wickersham, 2015-Ohio2756, ¶ 25 (4th Dist.). Because the trier of fact sees and
hears the witnesses, an appellate court will afford substantial
deference to a trier of fact's credibility determinations.
Shroeder at ¶ 62. The jury has the benefit of seeing witnesses
testify, observing facial expressions and body language, hearing
voice inflections, and discerning qualities such as hesitancy,
equivocation, and candor. State v. Fell, 2012-Ohio-616, ¶ 14
(6th Dist.); State v. Pinkerman, 2024-Ohio-1150, ¶ 26 (4th
Dist.). Thus, an appellate court may reverse a conviction only
if the trier of fact clearly lost its way in resolving conflicts
in the evidence and created a manifest miscarriage of justice.
State v. Benge, 2021-Ohio-152, ¶ 28 (4th Dist.); Hodges at ¶ 53. Highland 25CA23 21
Only in extraordinary circumstances when evidence presented at
trial weighs heavily in favor of acquittal, will an appellate
court overturn a conviction on the manifest weight of the
evidence grounds. State v. Ridenour, 2023-Ohio-2713, ¶ 50 (12th
Dist.).
{¶34} After our review, we do not believe the case sub
judice is extraordinary. Here, the evidence adduced at trial
does not weigh heavily in favor of acquittal. Consequently,
after our review of the record, we conclude that ample,
competent, credible evidence supports appellant's felony
convictions. Here, the prosecution presented substantial,
credible evidence upon which the trier of fact could reasonably
conclude, beyond a reasonable doubt, that the essential elements
of the offense had been established. Thus, appellant's
conviction is not against the manifest weight of the evidence.
{¶35} In the case at bar, the jury chose to believe
appellee’s witnesses who testified that appellant exercised
dominion and control over the methamphetamine found in the
bedroom in which appellant slept when officers executed the
search warrant. The jury also chose to believe the evidence
adduced at trial, which is within the province of the jury. “
‘A reviewing court should not disturb the factfinder’s
resolution of conflicting evidence unless the factfinder clearly
lost its way.’ ” State v. Newman, 2015-Ohio-4283, ¶ 56 (4th Highland 25CA23 22
Dist.), quoting State v. Davis, 2010-Ohio-555, ¶ 16-17 (4th
Dist.); State v. Price-Tuggle, 2026-Ohio-1027, ¶ 61 (4th Dist.).
Once again, after our review we do not believe the present case
is the exceptional case in which the evidence weighs heavily
against the conviction. As we noted above, the record is
replete with evidence, if believed, that appellant committed the
charged crime. Accordingly, we cannot say the jury clearly lost
its way and created such a manifest miscarriage of justice that
the conviction is against the manifest weight of the evidence.
See State v. Kyle, 2020-Ohio-3281, ¶ 41-44 (8th Dist.).
III.
{¶36} In his third assignment of error, appellant asserts
that his trial counsel rendered ineffective assistance of
counsel in violation of his constitutional guarantees. In
particular, appellant contends that his counsel provided
ineffective assistance of counsel when she failed to file a
motion for mistrial when an officer provided inadmissible
hearsay testimony.
{¶37} The Sixth Amendment to the United States Constitution
and Article I, Section 10 of the Ohio Constitution provide that
defendants in all criminal proceedings shall have the assistance
of counsel for their defense. The United States Supreme Court
has generally interpreted this provision to mean a criminal Highland 25CA23 23
defendant is entitled to the “reasonably effective assistance”
of counsel. Strickland v. Washington, 466 U.S. 668 (1984).
{¶38} To establish constitutionally ineffective assistance
of counsel, a defendant must show that (1) his counsel's
performance was deficient and (2) the deficient performance
prejudiced the defense and deprived the defendant of a fair
trial. See Strickland, 466 U.S. at 687; State v. Myers, 2018-Ohio-1903, ¶ 183; State v. Powell, 2012-Ohio-2577, ¶ 85.
“Failure to establish either element is fatal to the claim.”
State v. Jones, 2008-Ohio-968, ¶ 14 (4th Dist.). Moreover, if
one element is dispositive, a court need not analyze both.
State v. Madrigal, 87 Ohio St.3d 378, 389 (2000).
{¶39} The deficient performance part of an ineffectiveness
claim “is necessarily linked to the practice and expectations of
the legal community: ‘The proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.’ ” Padilla v. Kentucky, 559 U.S. 356, 366 (2010),
quoting Strickland, 466 U.S. at 688. Prevailing professional
norms dictate that “a lawyer must have ‘full authority to manage
the conduct of the trial.’ ” State v. Pasqualone, 2009-Ohio315, ¶ 24, quoting Taylor v. Illinois, 484 U.S. 400, 418 (1988).
{¶40} Further, “the performance inquiry must be whether
counsel's assistance was reasonable considering all the
circumstances.” Strickland, 466 U.S. at 688. Accordingly, Highland 25CA23 24
“[i]n order to show deficient performance, the defendant must
prove that counsel's performance fell below an objective level
of reasonable representation.” State v. Conway, 2006-Ohio-2815,
¶ 95 (citations omitted). In addition, 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. Additionally, “[a] properly licensed attorney is presumed
to execute his duties in an ethical and competent manner.”
State v. Taylor, 2008-Ohio-482, ¶ 10 (4th Dist.), citing State
v. Smith, 17 Ohio St.3d 98, 100 (1985). Therefore, a defendant
bears the burden of showing ineffectiveness by demonstrating
that counsel's errors were “so serious” that counsel failed to
function “as the ‘counsel’ guaranteed ... by the Sixth
Amendment.” Strickland, 466 U.S. at 687; e.g., State v. Gondor,
2006-Ohio-6679, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 156
(1988).
{¶41} To establish prejudice, a defendant must demonstrate
that a reasonable probability exists that “but for counsel's
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
Highland 25CA23 25
undermine the outcome.” Strickland, 466 U.S. at 694; e.g.,
State v. Short, 2011-Ohio-3641, ¶ 113; State v. Bradley, 42 Ohio
St.3d 136 (1989), paragraph three of the syllabus; accord State
v. Spaulding, 2016-Ohio-8126, ¶ 91 (prejudice component requires
a “but for” analysis). “[T]he question is whether there is a
reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.”
Strickland, 466 U.S. at 695. Further, courts ordinarily may not
presume the existence of prejudice; rather, they must require a
defendant to establish prejudice affirmatively. State v. Clark,
2003-Ohio-1707, ¶ 22 (4th Dist.). Moreover, we have recognized
that speculation is insufficient to establish the prejudice
component of an ineffective assistance of counsel claim. E.g.,
State v. Tabor, 2017-Ohio-8656, ¶ 34 (4th Dist.); State v.
Jenkins, 2014-Ohio-3123, ¶ 22 (4th Dist.); State v. Simmons,
2013-Ohio-2890, ¶ 25 (4th Dist.); accord State v. Powell, 2012-Ohio-2577, ¶ 86.
{¶42} In the case sub judice, appellant characterizes Lt.
Antinore’s stricken testimony that appellant cohabitated with
Kibler as inaccurate, inadmissible hearsay. Appellee, however,
points out that trial counsel repeatedly objected to the
challenged testimony and that the trial court sustained the
objections, struck the testimony, and instructed the jury to
disregard the statements.
Highland 25CA23 26
{¶43} Further, appellee argues that the decision whether to
seek a mistrial is a matter of trial strategy. When reviewing
ineffective-assistance claims, we will not second-guess trialstrategy decisions. State v. Miller, 2025-Ohio-197, ¶ 30 (2d
Dist.), citing State v. Mason, 82 Ohio St.3d 144, 157(1998);
Strickland at 689. “ ‘Debatable strategic and tactical
decisions may not form the basis of a claim for ineffective
assistance of counsel, even if, in hindsight, it looks as if a
better strategy had been available.’ ” Miller at ¶ 30, quoting
State v. Conley, 2015-Ohio-2553, ¶ 56 (2d Dist.). “When a claim
of ineffective assistance of counsel is based on counsel's
failure to file an objection or file a motion, the appellant
must demonstrate that the objection or motion had a reasonable
probability of success.” State v. Jones, 2019-Ohio-2134, ¶ 52
(10th Dist.) (citing cases). “If the objection or motion would
not have been successful, then the appellant cannot prevail on
an ineffective assistance claim.” Id. Similarly, whether to
move for a mistrial or request a curative jury instruction is a
matter of trial strategy. State v. Lauderdale, 2024-Ohio-481, ¶
55 (2d Dist.), citing State v. Jenkins, 2001 WL 848582, *6 (2d
Dist. July 27, 2001) (counsel's decision not to request mistrial
or curative jury instruction “involved matters of trial tactics,
on which trial counsel's decisions must be given broad
deference”), and State v. Zeune, 2011-Ohio-5170, ¶ 37 (10th Highland 25CA23 27
Dist.) (“[t]he decision not to request a mistrial is one of
trial strategy best left to trial counsel”), citing State v.
Seiber, 56 Ohio St.3d 4, 12 (1990); see also State v. Bankston,
2025-Ohio-5543, ¶ 53 (2d Dist.)(when trial court instructed jury
stricken statements are not evidence, jury required to disregard
stricken statements, and jury not to speculate regarding why
court sustained objection to any question, defendant did not
demonstrate motion for a mistrial would have been successful).
Thus, counsel’s failure to file a futile or frivolous motion “ ‘
cannot be the basis for claims of ineffective assistance of
counsel and is not prejudicial.’ ” State v. Waters, 2014-Ohio3109, ¶ 12 (4th Dist.), quoting State v. Witherspoon, 2011-Ohio704, ¶ 33 (8th Dist.).
{¶44} Our review of the record in the case sub judice
reveals that appellant did not demonstrate that the filing of a
motion for mistrial would have been granted, and thus, appellant
did not demonstrate ineffective assistance of counsel. Instead,
appellant’s counsel requested and received ruling from the trial
court to strike the statements in question and to provide the
jury with a cautionary instruction. We find no lack of
representation or assistance of counsel envisioned by the United
States Constitution.
Highland 25CA23 28
{¶45} Accordingly, based on the foregoing reasons, we
overrule appellant’s third assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
Highland 25CA23 29
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that
appellant shall pay the costs.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Highland 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 60 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 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period set forth in the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 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.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.