[Cite as State v. Jordan, 2026-Ohio-3956.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 115473
v. :
REGGIE JORDAN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 8, 2026
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-23-684719-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Chloe Robinson and Owen Knapp,
Assistant Prosecuting Attorneys, for appellee.
Eric M. Levy, for appellant.
DEENA R. CALABRESE, J.:
On July 25, 2025, a jury found defendant-appellant Reggie Jordan
guilty of one count of possession of a fentanyl-related compound with a major drug
offender (“MDO”) specification and one count of possession of cocaine. The trial
court sentenced Jordan to an aggregate minimum term of 16 years of imprisonment, with a maximum of 21.5 years. This timely appeal followed. Finding no merit to the
appeal, we affirm.
I. Facts and Procedural History
A. The Indictment
On October 25, 2023, the Cuyahoga County Grand Jury returned a
seven-count indictment charging Jordan and codefendant Stanley Barrow with a
total of seven drug-related offenses:
Count 1: trafficking, a felony of the first degree in violation of R.C.
2925.03(A)(2), with an MDO specification pursuant to R.C.
2941.1410(B), as well as forfeiture specifications (fentanyl-related
compound — Jordan and Barrow);
Count 2: drug possession, a felony of the first degree in violation of R.C.
2925.11(A), with MDO specification pursuant to R.C. 2941.1410(B), as
well as forfeiture specifications (fentanyl-related compound — Jordan
and Barrow);
Count 3: trafficking, a felony of the first degree in violation of R.C.
2925.03(A)(2), with forfeiture specifications (cocaine — Jordan only);
Count 4: trafficking, a felony of the first degree in violation of R.C.
2925.03(A)(2), with forfeiture specifications (cocaine — Barrow only);
Count 5: drug possession, a felony of the first degree in violation of R.C.
2925.11(A), with forfeiture specifications (cocaine — Jordan and
Barrow);
Count 6: tampering with evidence, a felony of the third degree in
violation of R.C. 2921.12(A)(1) (Jordan and Barrow); and
Count 7: possessing criminal tools, a felony of the fifth degree in
violation of R.C. 2923.24(A) (Jordan and Barrow).
Jordan and Barrow were tried together, and Barrow’s convictions are
the subject of a companion appeal, State v. Barrow, 8th Dist. Cuyahoga No. 115482.
B. Factual Background and Motions to Suppress
In the midmorning hours of March 14, 2023, Jordan and Barrow were
occupying an apartment in North Olmsted, Ohio. A 911 caller lodged a noise
complaint regarding the apartment, and North Olmsted police were dispatched to
the location. North Olmsted police officers ultimately decided to enter the premises
without a warrant based on alleged exigent circumstances.
Jordan and Barrow each filed motions to suppress. Jordan filed his
motion on May 17, 2024. The State filed its opposition several months later, on
September 13, 2024. The State’s opposition brief did not mention a search warrant.
The trial court scheduled a suppression hearing and, depending on the
outcome, a jury trial for January 28, 2025. That morning, the State noted on the
record that it had just received a copy of a search warrant that North Olmsted police
had obtained after they had entered and allegedly observed drugs in plain view. The
State explained that the “search warrant came into the possession of the State’s
Assistant Prosecutor . . . this morning” and that “[s]he immediately turned it over
to defense counsel to let them see it.” (Tr. 38.) The State explained that “nobody
put two and two together that there was a search warrant done.” (Tr. 38.) It also
reported that the warrant affidavit, in addition to the warrant itself, had been turned
over to defense counsel. (Tr. 38.)
Jordan’s counsel argued that there were “material misrepresentations”
in the affidavit when compared to “what’s contained in the police reports.” (Tr. 38-39.) He also criticized the late disclosure, assigning the blame to North Olmsted
police and city prosecutors.
The trial court continued the suppression hearing and trial. On
February 1, 2025, Jordan filed a motion for a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978), based on alleged inconsistencies between the
warrant affidavit and police reports. According to Jordan’s motion, North Olmsted
police had secured the warrant from a Rocky River Municipal Court judge.
However, neither the warrant affidavit nor the police reports — indeed, not even the
warrant itself — were attached to Jordan’s motion for a Franks hearing. They also
were not offered for admission or proffered at the suppression hearing. Those
documents, therefore, are not part of the record on appeal.
C. The Suppression Hearing
The trial court held the suppression hearing on July 11, 2025. The State
asserted that there were “clear, exigent circumstances” supporting the warrantless
entry. (Tr. 69.) It called a single witness, North Olmsted Patrol Officer Alexander
Pickens.
Officer Pickens testified to his training as a police officer, which
included training in the administration of Narcan for opioid overdoses. He stated
that officers are “trained to administer it nasally” and that “we carry it on our person
and have it in our cruisers.” (Tr. 79.) Officer Pickens testified that it was principally
employed in cases involving fentanyl or heroin and that to his knowledge it does not
reverse the effects of an overdose stemming from nonopioid drugs. (Tr. 79.)
At approximately 3:29 a.m. on March 14, 2023, Officer Pickens was
working the night shift and responded to a call for a noise complaint at 23303 Lorain
Road. The State played two 911 calls at the suppression hearing, as well as several
calls between officers and dispatch. Officer Pickens testified that officers knocked
on the door to the apartment and identified themselves as police. He stated they
“were told to hold on so [they] continued to wait.” Asked to describe the radio call
marked as State’s exhibit No. 6, Officer Pickens stated that it referenced the sounds
of items being smashed in the apartment, “[s]tomping and screaming for help,” and
that one of the occupants had said he was “tripping,” which to him suggested drug
use. (Tr. 83-84.)1
The State played State’s exhibit No. 8, another radio call, for the trial
court. Officer Pickens testified that the radio call indicated a male inside the
apartment had “[r]equested an ambulance.” (Tr. 85.)2 In the recording, dispatch
asked whether to send an ambulance, and an officer replied, “Yeah, if you just want
to start one.” An officer also described an occupant “[s]mashing the window screen
out” in the third-floor apartment. (Tr. 85.)
1 The State identified these as State’s exhibit Nos. 1-9 at the suppression hearing, and
those exhibits were admitted without objection at the conclusion of the hearing. The record contains no separate schedule of exhibits for the suppression hearing. Nevertheless, based upon the descriptions in the transcript, the radio call referencing “tripping,” “smashing things,” “stomping,” and “screaming for help — State’s exhibit No. 6 at the suppression hearing — appears to correspond to State’s exhibit No. 221 at trial, which is part of the record.
2 Based on testimony, this radio call appears to correspond to State’s exhibit No. 223
at trial.
Officer Pickens testified that because one of the occupants asked for
help and an ambulance, they were concerned “that there was something medical
going on.” (Tr. 86.) Officer Pickens stated that the male asked twice for an
ambulance. He testified that in such circumstances, officers “advise dispatch of the
situation and have them have an ambulance en route. And then we try and figure
out what’s going on so that way we can relay it to the medics.” (Tr. 87.) Upon
questioning by the trial court, Officer Pickens testified that they requested an
ambulance when he heard a male say “Help me. Send an ambulance.” (Tr. 144.) He
“relayed that to the dispatch, and they immediately dispatched the ambulance.”
(Tr. 144.)
Officer Pickens stated that the police continued their attempts to elicit
further response from the occupants while they waited approximately 10-15 minutes
for the ambulance to arrive. (Tr. 144.)
According to Officer Pickens, the loud commotion coming from the
apartment stopped abruptly. More specifically, he testified that a “loud thud”
followed by silence ultimately triggered the police to force entry into the apartment:
A. We continued to knock. We heard noises coming from inside the
apartment. And then, after a while, we heard a loud thud. And then we
continued to try and get an answer from the apartment, and we heard
nothing.
Q. And why is that important?
A. We believed, at that time, that we would have to go in to make
potential life-saving measures and they were, potentially, unconscious.
(Tr. 88.)
Officer Pickens stated that it was “[t]he fire department” that “made
the determination to enter,” but that “[i]f the fire department wasn’t, [the police]
were going to make entry.” (Tr. 89-90.) A couch was blocking the door. After
moving it to gain entry, police found Jordan “unconscious covered in white powder
in the fetal position on the floor.” (Tr. 89.) They administered Narcan. (Tr. 91.)
Officer Pickens testified that they would not have entered the
apartment if they had not believed there was a medical emergency. (Tr. 90.) He
further identified photographs depicting Jordan on a “stretcher in the back of the
ambulance” with “[v]omit and saliva” around his mouth and white powder on his
hands and forearms. (Tr. 90-91.) Officer Pickens also identified several exhibits
depicting the interior of the apartment. He described a floor with “white powder . . .
[r]ight inside the door.” (Tr. 97-98.) He confirmed, based on photos, that the
kitchen, which was also “right inside the door,” contained white powder everywhere.
(Tr. 98.) The kitchen sink appeared to contain drugs.
Officer Pickens testified that he had reason to believe there was more
than one person in the apartment. (Tr. 104.) The officers continued to observe
suspected narcotics, including on the floor, as they walked through the apartment
from the front door, past the kitchen, and into the bathroom. They reached the
bathroom and found Barrow, who was likewise unconscious. (Tr. 100-101.)
The trial court denied the motion to suppress, concluding that
“[t]here’s been uncontroverted testimony and evidence that there was a cry for
help.” (Tr. 158.) The trial court found the officers’ decision to summon medical personnel prior to entry “the most telling aspect[.]” (Tr. 158.) It concluded that the
police “had an objectively reasonable basis to believe that someone needed help.”
(Tr. 159.)3
D. Trial
The case proceeded to trial on July 21, 2024. We note at the outset
that while the jury returned guilty verdicts on two counts of drug possession, one for
a fentanyl-related compound and one for cocaine, it acquitted Jordan of all other
charges, including trafficking, tampering with evidence, and possession of criminal
tools. For purposes of brevity, therefore, we focus principally on trial testimony and
other evidence relevant to issues pertinent to this appeal.
At trial, Officer Pickens again testified concerning the circumstances
that led police to enter the apartment, where they found Jordan unconscious, in a
fetal position, and covered in white powder. Another witness for the State, Detective
Majed Abuzahrieh, was employed by the time of trial with the Cuyahoga County
Sheriff’s Department. At the time of the incident, however, he had served as a North
Olmsted patrol officer for several years. On the night in question, he responded to
the Kensington Court Apartments after Officer Pickens had already arrived. While
knocking at the door, he heard “[s]creaming, groaning, moaning,” and “other
noises.” (Tr. 563.) After 10 to 20 minutes had passed, he “heard . . . a thump of what
[he] was immediately able to identify as a human body hitting the floor.” (Tr. 524.)
3 The trial court addressed the Franks issue only briefly, noting at the outset of the
suppression hearing that if the officers lawfully entered based upon exigent circumstances, drugs observed in plain view would provide a basis for a search warrant. (Tr. 53.) After the thump or thud, there was silence except for the sound of running water
that he had heard upon arrival.
In conjunction with members of the North Olmsted Fire Department
who had also arrived at the scene, they determined to make entry. Detective
Abuzahrieh stated that they suspected there was a medical emergency because after
the thud or thump, they were “no longer getting a verbal response.” (Tr. 525.)
Upon entry, they observed Jordan on the floor in a fetal position,
unresponsive other than thrashing or tensing when touched, and with “white
powder on his body.” (Tr. 526.) Detective Abuzahrieh testified that he considered
this consistent with opioid usage and overdose. They also observed “white
sprinkles” and or “white droplets” on other surfaces (Tr. 525.)
Detective Abuzahrieh testified that they handcuffed Jordan for their
safety and his own, prior to administering Narcan. He explained that in his
experience, the administration of Narcan prompted a response similar to waking
someone suddenly from a deep sleep, triggering a “fight or flight” reaction that could
prove to be dangerous. (Tr. 528.)
Prior to allowing the fire department to enter, officers cleared the
apartment to ensure safety, looking for other individuals. He continued through the
apartment and found Barrow in the bathtub, “unconscious, passed out, and
unresponsive” despite the fact that the shower was running. (Tr. 530-531.) After
handcuffing Barrow and moving him to the living room, officers “did a search [for]
additional persons in any portion of the apartment that a person would be reasonably located.” (Tr. 531.) Finding no one, they allowed the fire department to
enter and provide aid to Jordan and Barrow, including administration of Narcan.
Detective Abuzahrieh was present when multiple doses of Narcan were given and
testified that Jordan and Barrow “had an immediate response,” including “nasal
breathing.” (Tr. 532-533.) They were ultimately transported to the hospital for
evaluation. (Tr. 538.)
Detective Abuzahrieh testified that in performing the initial sweep of
the apartment, they observed “numerous bags of white substances and just other
rock-like substances” in the kitchen sink, as well as “numerous baggies” in the
residence, all “within plain view.” (Tr. 533-534.) Additional items within plain view
included several cell phones, piles of cash, filtered masks, a blender, a pill press, and
a scale. There was a couch, a table, and chairs, but no bed. He further described the
white substance that was visible:
Throughout the apartment there was just a layer of white dust almost
throughout the kitchen surfaces. On the floor there were other — I
don’t want to say droplets because it didn’t appear to be wet, but a dust
that — not dust. It’s hard to describe. White substances or like white
droplets on the ground throughout the kitchen. The kitchen table also
had like a sheen of white dust all over it. Not to be confused with just
regular house dust, but like to me it appeared to be the same substances
that we located throughout the apartment.
(Tr. 535.) He believed, based on his training and experience, that it was “[c]rack
cocaine or coke.” (Tr. 535.) He also testified that the multiple, individual bags of
white substances, combined with the referenced paraphernalia such as a pill press
and scale, suggested drug trafficking. (Tr. 535.) Detective Abuzahrieh remained in the apartment, and “anything in plain view was photographed and collected.”
(Tr. 538.) He identified State’s exhibit Nos. 1 through 102 as the referenced
photographs, several of which depicted white substances in baggies or covering
various surfaces, including overturned chairs. He testified that none of the closet
doors or drawers were “manipulated” by police during the protective sweep.
(Tr. 547.) In other words, if a closet door or drawer was depicted as open in a
photograph, that is how they had found it at the time. State’s exhibit Nos. 28 and
30 depicted Jordan in an ambulance with “the white substance on his hands,
forearms, shoulders, [and] chest,” as well as on his hand and fingernails. (Tr. 545.)
State’s exhibit Nos. 31 and 32 depicted the white substance on “his fingernails,
palms,” and “fingers,” as well as on his wrist. (Tr. 545.)
Detective Abuzahrieh testified that the kitchen sink had been running,
and in fact overflowing, when police entered the apartment. They turned off the
faucet and allowed it to drain. They were then “left with numerous bags of the
substances.” (Tr. 543.) They photographed several items suspected to be drugs,
sometimes placing a ruler next to the items. (Tr. 548-549.) The bags were ultimately
removed from the sink, and unbagged items left behind were photographed.
(Tr. 557-558.)
The evidence was collected at the scene, bagged, and transported back
to the station to be entered into property management software. Detective
Abuzahrieh participated in the collection of evidence. He described the software as
“essentially an evidence management entry system.” (Tr. 561.)
On cross-examination, Detective Abuzahrieh conceded that the
contents of the plastic baggies found in the kitchen sink, i.e., some of the suspected
drugs, were wet. (Tr. 577-578.) He further conceded that whether the white
substance was crack cocaine or fentanyl, it would become heavier because of the
water. (Tr. 578.) Defense counsel walked him through several images that he
conceded depicted bags with visible moisture. While there were no pictures of the
sink when it was filled with water, he admitted that water was inside the plastic
packages. (Tr. 590.)
On redirect, Detective Abuzahrieh testified that the suspected items
inside the wet bags were dried prior to being entered into the evidence room and
stored:
Q. Detective, how were those drugs inside those wet bags collected?
A. So those items were collected. Obviously, due to them being wet,
they have to be dried out and any moisture removed as per policy and
to preserve the evidence. Any wet items cannot be entered into the
evidence room or property room without being dried out. So those
drugs would have been placed in a brown bag, dried, and then entered.
Q. And then submitted for testing; is that correct?
A. Correct. So the weight of the items would be the dry weight.
(Tr. 591.)
The suspected drugs were sent to the Cuyahoga County Regional
Forensic Science Laboratory for testing on March 20, 2023, and a lab report was
issued on May 30, 2023. Forensic scientist Heather Pilch-Cooper testified
concerning testing of the collected samples. She was recognized as an expert in the field of drug chemistry without objection and identified State’s exhibit No. 210 as
her report pertaining to this case. (Tr. 639, 645.) Evidence bag 001 had been
preliminarily identified as suspected crack cocaine. Testing was divided into
subparts. Item 001.01 in the report reflected testing of 54 white fragments of
suspected drugs. Pilch-Cooper testified that the weight was 140.28 grams and that
testing revealed the mixture to contain 4-ANPP and fentanyl, both classified as
Schedule II drugs. She testified that 4-ANPP is a “precursor chemical that is used
to make fentanyl,” and that fentanyl itself was “a synthetic opioid compound.”
(Tr. 650.) Items 001.02 and 001.03 tested positive for illicit drugs as well, including
cocaine, 4-ANPP, and fentanyl. Specifically, item 001.02 weighed 0.42 grams and
“was found to contain cocaine, 4-ANPP, and fentanyl.” (Tr. 651.) Item 001.03
weighed 30.5 grams and “was found to be cocaine-based.” (Tr. 651.) Additional
evidence bags likewise contained substances revealed to be illicit drugs.
Pilch-Cooper testified that lab scales were calibrated annually, but
also tested daily “before we begin any work” using standard 1-gram, 10-gram, and
50-gram weights. (Tr. 654.) She identified State’s exhibit Nos. 187-209 as photos
of the items tested. With respect to the contents of evidence bag 001, she testified
that none of the items appeared to be wet and that she “did not have it noted in [her]
report that they were damp or wet.” (Tr. 655.) Pilch-Cooper further testified that
she could tell from the image that they were not wet because when something is
received “that’s damp or wet, there will be stains on the paper or watermarks on the
paper showing that these items were wet or damp because the paper absorbs water from them and there is none of that in this photograph.” (Tr. 655-656.) She later
reiterated on redirect that “[a]t the time they were tested, there was no indication of
water or it would have been noted in [her] report.” (Tr. 673.) She “did not indicate
. . . that there was any wetness or dampness in the sample.” (Tr. 676.)
The jury found Jordan guilty of one count of drug possession (Count 2
— fentanyl-related compound), a felony of the first degree in violation of R.C.
2925.11(A) with an MDO specification pursuant to R.C. 2941.1410(B), as well as
certain forfeiture specifications, and one count of drug possession (Count 5 —
cocaine), a felony of the fifth degree in violation of R.C. 2925.11(A), along with
certain forfeiture specifications. Jordan was acquitted of all other charges.
On July 28, 2025, the trial court sentenced Jordan to a prison term of
five years on the MDO specification, to be served prior and consecutive to a
minimum term of 11 years up to a maximum of 16 years and 6 months on the
underlying drug-possession count. It sentenced Jordan to a prison term of 12
months on the fifth-degree felony drug-possession count, to be served concurrently.
Consistent with the indictment, the trial court initially treated Count 5
as a felony of the first degree. Following a limited remand, the designation was
corrected to a felony of the fifth degree via a nunc pro tunc journal entry. The 12-month concurrent sentence, however, remained unchanged.
This timely appeal followed.
II. Assignments of Error
Jordan presents six assignments of error for our review:
First Assignment of Error: The trial court erred by denying appellant’s
motion to suppress evidence due to illegal entry into a home in
violation of the Fourth Amendment to the United States Constitution
and Article I, Section 14 of the Ohio Constitution.
Second Assignment of Error: The trial court erred by denying
appellant’s motion for a Franks hearing and finding the false
statements negated probable cause.
Third Assignment of Error: The evidence was insufficient to support
the convictions for drug possession in counts two and five and the first
degree felony and major drug offender specification enhancements in
count two where the state failed to prove all elements of the offense
including possession and the actual weight of the controlled substance
exclusive of external water weight, violating appellant’s due process
rights.
Fourth Assignment of Error: The drug possession convictions were
against the manifest weight of the evidence.
Fifth Assignment of Error: The trial court erred by giving incomplete
jury instructions regarding the mixture and weight of the controlled
substances.
Sixth Assignment of Error: The MDO specification in count two was
unconstitutional as it required a factual finding by the court, not a jury,
and further, as the jury made the finding regarding weight of the
contraband the MDO finding violated Ohio law.
We find no merit to any of Jordan’s assignments of error.
Accordingly, we affirm the trial court’s judgment in its entirety.
III. Analysis
A. First Assignment of Error
In his first assignment of error, Jordan challenges the trial court’s
denial of his motion to suppress evidence, arguing that entry into the apartment
violated the Fourth Amendment to the Constitution of the United States and Section 14, Article I, of the Constitution of Ohio. We find no merit to this assignment of
error.
“An appellate review of a motion to suppress presents a mixed
question of law and fact.” State v. Byrd, 2022-Ohio-4635, ¶ 14 (8th Dist.), citing
State v. Burnside, 2003-Ohio-5372, ¶ 8. “Because the trial court assumes the role
of trier of fact and is in the best position to resolve factual questions and evaluate
witness credibility, we must accept the trial court’s findings of fact if they are
supported by competent, credible evidence.” State v. Thompson, 2020-Ohio-486,
¶ 9 (8th Dist.), citing State v. Riedel, 2017-Ohio-8865, ¶ 30 (8th Dist.). See also
Byrd at ¶ 14, citing State v. Preztak, 2009-Ohio-621, ¶ 22 (8th Dist.). We then
“independently determine, as a matter of law, whether the applicable legal standard
has been satisfied.” State v. Moore, 2014-Ohio-2979, ¶ 9 (8th Dist.), citing State v.
Jones, 2014-Ohio-496 (8th Dist.).
This court has stated:
The Fourth Amendment to the Constitution of the United States and
Section 14, Article I, of the Constitution of Ohio, prohibit unreasonable
searches of persons and seizure of their property. Evidence obtained
by the State in violation of that prohibition must be suppressed from
use by the State in its criminal prosecution of the person from whom it
was seized.
State v. Baker, 2007-Ohio-5450, ¶ 12 (8th Dist.).
“The Fourth Amendment ordinarily requires that police officers get a
warrant before entering a home without permission.” Lange v. California, 594 U.S.
295, 298 (2021). A search conducted in the absence of a warrant “is reasonable only if it falls within a specific exception to the warrant requirement.” Riley v. California,
573 U.S. 373, 382 (2014), citing Kentucky v. King, 563 U.S. 452, 459-460 (2011).
“When a defendant moves to suppress evidence recovered during a warrantless
search, the state has the burden of showing that the search fits within one of the
defined exceptions to the Fourth Amendment’s warrant requirement.” State v.
Banks-Harvey, 2018-Ohio-201, ¶ 18, citing Athens v. Wolf, 38 Ohio St.2d 237, 241
(1974).
“One important exception” to the warrant requirement “is for exigent
circumstances.” Lange at 301. This exception “applies when ‘the exigencies of the
situation make the needs of law enforcement so compelling that [a] warrantless
search is objectively reasonable.’” Id., quoting King at 460. “The exception enables
law enforcement officers to handle ‘emergenc[ies]’— situations presenting a
‘compelling need for official action and no time to secure a warrant.’” Lange at 301,
quoting Riley at 402. See also State v. Beckwith, 2008-Ohio-2780, ¶ 19 (8th Dist.).
The United States Supreme Court “has identified several such exigencies. An officer,
for example, may ‘enter a home without a warrant to render emergency assistance
to an injured occupant[,] to protect an occupant from imminent injury,’ or to
ensure his own safety.” (Emphasis added.) Lange at 301, quoting Brigham City v.
Stuart, 547 U.S. 398, 403 (2006).
“Numerous state and federal cases have recognized that the Fourth
Amendment does not bar police officers from making warrantless entries and
searches when they reasonably believe that a person within is in need of immediate aid.” Mincey v. Arizona, 437 U.S. 385, 392 (1978). “‘The need to protect or preserve
life or avoid serious injury is justification for what would be otherwise illegal absent
an exigency or emergency.’” Id., quoting Wayne v. United States, 318 F.2d 205, 212
(D.C. Cir. 1963).
Moreover, the officers’ “subjective motivation is irrelevant.” Brigham
City at 404. “An action is ‘reasonable’ under the Fourth Amendment, regardless of
the individual officer’s state of mind, ‘as long as the circumstances, viewed
objectively, justify [the] action.’” (Emphasis in original.) Id., quoting Scott v. United
States, 436 U.S. 128, 138 (1978).
Finally, “the police may seize any evidence that is in plain view during
the course of their legitimate emergency activities.” Mincey at 393, citing Michigan
v. Tyler, 436 U.S. 499, 509-510 (1978), and Coolidge v. New Hampshire, 403 U.S.
443, 465-466 (1971).
In Michigan v. Fisher, 558 U.S. 45 (2009), police responded to a call
reporting a disturbance and found, inter alia, a damaged pickup truck with blood on
the hood and on the clothes within, and also on one of the doors to the house. They
were able to see Fisher through a window. They observed that his hand was cut and
he was “screaming and throwing things.” Id. at 45. Furthermore, the back door had
been locked “and a couch had been placed to block the front door.” Id. Officers
knocked, but Fisher refused to answer. When officers asked if he needed medical
attention, he “demanded, with accompanying profanity, that the officers go to get a search warrant.” Id. An officer nevertheless made entry. The trial court granted
Fisher’s motion to suppress.
The United States Supreme Court ultimately held that the warrantless
entry did not violate the Fourth Amendment. It concluded that “[a] straightforward
application of the emergency aid exception, as in Brigham City, [547 U.S. 398,]
dictates that the officer’s entry was reasonable.” Fisher at 48. It rejected the
reasoning of the Michigan Court of Appeals, which held that there was insufficient
evidence of an emergency justifying a warrantless intrusion:
Even a casual review of Brigham City reveals the flaw in this reasoning.
Officers do not need ironclad proof of “a likely serious, life-threatening”
injury to invoke the emergency aid exception. The only injury police
could confirm in Brigham City was the bloody lip they saw the juvenile
inflict upon the adult. Fisher argues that the officers here could not
have been motivated by a perceived need to provide medical assistance,
since they never summoned emergency medical personnel. This would
have no bearing, of course, upon their need to ensure that Fisher was
not endangering someone else in the house. Moreover, even if the
failure to summon medical personnel conclusively established that [the
officer] did not subjectively believe, when he entered the house, that
Fisher or someone else was seriously injured (which is doubtful), the
test, as we have said, is not what [the officer] believed, but whether
there was “an objectively reasonable basis for believing” that medical
assistance was needed, or persons were in danger, Brigham City,
supra, at 406, 126 S.Ct. 1943, 164 L.Ed.2d 650; Mincey, supra, at 392,
98 S.Ct. 2408, 57 L.Ed.2d 290.
Id. at 49. In the present case, there was uncontroverted testimony that before
entering the apartment, North Olmsted police heard an individual say he was
“tripping,” that the individual asked for help, and that he requested an ambulance.
There also was uncontroverted testimony that unlike in Fisher — and even though
subjective belief is irrelevant — North Olmsted police summoned medical aid before entering the dwelling. Indeed, the uncontroverted testimony was that even with
medical personnel on the scene, the officers continued to knock and announce
themselves. It was not until officers heard a thud or thump, followed by silence, that
they decided — in conjunction with medical personnel, no less — to make a
warrantless entry.
In his argument, Jordan minimizes the thud and ignores the sudden
silence. He states that “[a] ‘thud’ is consistent with a mundane household
occurrence” such as “dropping an object or moving furniture, not inherently a
medical emergency.” (Jordan’s brief at p. 10-11.) The officers’ observation of a thud,
however, cannot be divorced from the silence that immediately followed, which itself
must be contrasted with the preceding cacophony. This included sounds of
screaming and smashing, observations of a window being broken, an occupant’s
announcement that they were “tripping,” a cry for help, and even the request for an
ambulance. The trial court found the officers’ decision to summon medical
personnel prior to entry “the most telling aspect,” driving its ultimate conclusion
that police had an objectively reasonable basis to believe that occupants needed
emergency assistance. (Tr. 158.) See also Case v. Montana, 607 U.S. 107, 110
(2026) (Brigham City’s reasonableness standard was satisfied where police had an
objectively reasonable basis for believing that a homeowner intended to commit
suicide and might already have shot himself.)4 We find no error in that conclusion.
4 We agree with the State that the present case is not properly viewed through the
lens of a “community caretaking” exception. “In Caniglia v. Strom, 593 U.S. 194, 198, 141 S.Ct. 1596, 209 L.Ed.2d 604 (2021),” the Supreme Court “rejected a ‘community caretaking
We also find no error in the trial court’s rejection of an argument that
a protective sweep of the apartment was impermissible. Protective sweeps are
generally discussed when performed incident to an arrest as described in Maryland
v. Buie, 494 U.S. 325 (1990). See also State v. Woods, 2026-Ohio-1204, ¶ 19 (8th
Dist.) (While Buie was limited to situations incident to an arrest, the Ohio Supreme
Court has recognized that officers may conduct a protective sweep without an arrest
in certain circumstances.). In the present case, however, the officers’ actions are
better characterized as a continuation of their provision of emergency aid rather
than a sweep incident to an arrest. In Mincey, 437 U.S. 385, the Supreme Court
authorized “a prompt warrantless search of the area to see if there are other
victims[.]” Id. at 392. In Case, the Supreme Court held that “an emergency-aid
entry provides no basis to search the premises beyond what is reasonably needed
to deal with the emergency while maintaining the officers’ safety.” (Emphasis
added.) Case at 117. Furthermore, as discussed above, “the police may seize any
evidence that is in plain view during the course of their legitimate emergency
activities.” Mincey at 393, citing Tyler, 436 U.S. at 509-510, and Coolidge, 403 U.S.
at 465-466.
As the State correctly notes, the testimony established that upon entry,
police found Jordan unconscious and covered in white powder, suggesting an
rule’ allowing a warrantless home entry even absent a ‘need to render emergency assistance’ to an occupant.” (Emphasis added.) Case at 112. Here, the State offered a straightforward argument that the circumstances, viewed objectively, justified a warrantless entry to render emergency assistance.
overdose. This supported an objectively reasonable assessment that a serious
medical emergency was occurring. Officer Pickens testified that based on his
observations at the scene, he had reason to believe there was more than one person
in the apartment. (Tr. 103-104.) Jordan was in no position to discuss who else
might be in the apartment, and that potential second person was also a possible
overdose victim requiring immediate assistance. The emergency, in other words,
was not limited to Jordan. The testimony therefore supported a reasonable belief
that more than one individual was in the apartment and required emergency aid.
Accordingly, the officers’ movements in an effort to locate other distressed
individuals did not exceed the scope of the exigency and were permissible under
Mincey. See also Beckwith, 2008-Ohio-2780, at ¶ 21 (8th Dist.). Testimony further
established that the direct route to the bathroom, where Barrow was found, went
past the kitchen, where suspected drugs were in plain view.
Jordan argues that the protective sweep “morphed into a criminal
investigation” and resulted in “searching areas not in plain view relative to the
alleged medical emergency[.]” (Jordan’s brief at p. 11.) These characterizations are
not supported by the record. Indeed, Jordan’s citation to the transcript in support
of this proposition consists entirely of the arguments of counsel, not testimony.
Jordan’s first assignment of error is overruled.
B. Second Assignment of Error
In his second assignment of error, Jordan argues that the trial court
erred by denying his motion for a Franks hearing and by failing to find that
purported false statements in the warrant affidavit negated probable cause.
As discussed above, Jordan supplemented his motion to suppress with
a motion for a hearing pursuant to Franks, 438 U.S. 154. Jordan claimed there were
inconsistencies between the warrant affidavit and North Olmsted police reports.
According to Jordan’s motion, after the initial entry into the apartment, North
Olmsted police secured a search warrant from a Rocky River Municipal Court judge.
The motion, however, did not include affidavits or sworn statements supporting a
claim of deliberate falsification.
“There is . . . a presumption of validity with respect to the affidavit
supporting [a] search warrant.” Franks at 172. “To successfully attack the veracity
of a facially sufficient search warrant affidavit, a defendant must show by a
preponderance of the evidence that the affiant made a false statement, either
‘intentionally, or with reckless disregard for the truth.’” State v. Waddy, 63 Ohio
St.3d 424, 441 (1992), quoting Franks at 155-156. “‘Reckless disregard’ means that
the affiant had serious doubts about the truth of an allegation.” State v. McKnight,
2005-Ohio-6046, ¶ 31, citing United States v. Williams, 737 F.2d 594, 602 (7th Cir.
1984). “The [defendant’s] attack must be more than conclusory. . . . Allegations [by
defendant] of negligence or innocent mistake are insufficient.” Franks at 155. Omissions can likewise qualify as false statements under certain circumstances.
State v. Woods, 2024-Ohio-467, ¶ 48 (8th Dist.).
Here, neither the warrant affidavit nor any police reports were
attached to Jordan’s motion for a Franks hearing. Neither was the warrant itself.
Moreover, while they were discussed at the suppression hearing, they were not
marked as exhibits, offered for admission, or proffered by any party. The
descriptions of their contents were limited to representations by counsel and were
incomplete.
In short, the warrant affidavit, the purportedly inconsistent police
reports, and the warrant itself are not part of the record on appeal. Omission of the
warrant affidavit from the appellate record is fatal to appellate review. A Franks
analysis requires examination of the affidavit for at least two distinct purposes: First,
determining whether the affiant’s representations were knowingly false or made
with reckless disregard for the truth; and second, after excising any knowingly or
recklessly false material, determining whether the remainder of the affidavit still
established probable cause. See, e.g., State v. Mason, 2017-Ohio-7065, ¶ 23 (8th
Dist.).
Here, “[w]hile there is significant testimony about the challenged
affidavit, this affidavit is not within the record before this court; therefore, we are
prevented from conducting a proper analysis of this issue.” State v. Parker, 2011-Ohio-1059, ¶ 48 (8th Dist.). “In the absence of evidence contained within the record,
we must presume regularity in the proceedings below.” Id., citing State v. Farris, 2005-Ohio-1749, ¶ 9 (8th Dist.). Jordan has therefore “failed to demonstrate error
on the part of the trial court in denying appellant’s motion to suppress pursuant to
Franks[, 438 U.S. 154].” Parker at ¶ 48.
In addition, this is not merely a case in which the Franks issue is
unreviewable because of a defect in the record. The Ohio Supreme Court has held
that “‘a challenge to the factual veracity of a warrant affidavit must be supported by
an offer of proof which specifically outlines the portions of the affidavit alleged to be
false, and the supporting reasons for the defendant’s claim.’” State v. Sheron, 2013-Ohio-1989, ¶ 30 (8th Dist.), quoting State v. Roberts, 62 Ohio St.2d 170, 178 (1980).
“In order to overcome” the presumption of validity, “the defendant must support his
allegations with something more than conclusory accusations.” Sheron at ¶ 29. “In
order to require a trial court to hold a hearing, a defendant must first make a
‘substantial preliminary showing’ that the affiant included a false statement in the
affidavit either knowingly and intentionally, or with reckless disregard for the truth.”
Sheron at ¶ 31, citing Roberts at 177, and Franks at 155.
A motion that merely describes an affidavit and says it conflicts with
unidentified police reports, without submitting the affidavit, reports, sworn
statements, or some explanation for their absence, does not satisfy the required
“substantial preliminary showing.” That failure carried over to the suppression
hearing itself. The transcript does not indicate that the affidavit or reports were
marked, offered, admitted, proffered, or retained by the trial court.
Jordan’s second assignment of error is overruled.
C. Third Assignment of Error
In his third assignment of error, appellant argues there was
insufficient evidence to support his convictions for drug possession under Counts 2
and 5, as well as the MDO specification attached to Count 2.
This court has recently reaffirmed that “[a]n appellate court’s function
when reviewing the sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.” State v. Spencer, 2024-Ohio-5809, ¶ 15 (8th Dist.), citing State
v. Murphy, 91 Ohio St.3d 516 (2001); State v. Williams, 2025-Ohio-2593, ¶ 26 (8th
Dist.); State v. Lynch, 2025-Ohio-2769, ¶ 49 (8th Dist.). The appellate court views
the evidence “‘in a light most favorable to the prosecution’” to determine whether
“‘any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.’” Spencer at ¶ 15, quoting State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus; Williams at ¶ 26. The inquiry is
whether the State has met its “burden of production” at trial. State v. Dyer, 2007-Ohio-1704, ¶ 24 (8th Dist.); Lynch at ¶ 49.
“‘In essence, sufficiency is a test of adequacy. Whether the evidence is
legally sufficient to sustain a verdict is a question of law.’” Cleveland v. Williams,
2024-Ohio-3102, ¶ 10 (8th Dist.), quoting State v. Thompkins, 78 Ohio St.3d 380,
386 (1997); see also Cleveland v. Neal, 2024-Ohio-1467, ¶ 26 (8th Dist.); Lynch at
¶ 49. Appellate courts are not to assess “whether the State’s evidence is to be believed, but whether, if believed, the evidence against a defendant would support a
conviction.” (Emphasis added.) Dyer at ¶ 24; Lynch at ¶ 49. In considering the
sufficiency of the evidence, we do not independently weigh the evidence. Cleveland
v. Wiggins, 2025-Ohio-649, ¶ 37 (8th Dist.).
In Count 2, the State charged Jordan with possession of a fentanylrelated compound in an amount equal to or exceeding 100 grams, with an
accompanying MDO specification for possession of a fentanyl-related compound in
an amount of at least 100 grams. In Count 5, the State charged Jordan with
possession of cocaine in an amount equal to or exceeding 27 grams but less than 100
grams. Viewing the evidence in a light most favorable to the prosecution, as we must
for purposes of a sufficiency analysis, we find that the evidence was sufficient to
establish possession of a fentanyl-related compound and cocaine in the requisite
amounts to support the respective convictions.
We first address Jordan’s contention that there was insufficient
evidence to establish possession generally, i.e., to support a finding that he
“exercised dominion and control over” contraband where he was found unconscious
in the hallway and there was purportedly no evidence that he possessed or sought to
discard the fentanyl or cocaine. (Jordan’s brief at p. 18-19.) We find these
arguments unpersuasive.
R.C. 2925.11 provides that “[n]o person shall knowingly obtain,
possess, or use a controlled substance or a controlled substance analog.” “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.”
R.C. 2901.22(B). “It is necessary to look at all the attendant facts and circumstances
in order to determine if a defendant knowingly possessed a controlled substance.”
State v. Loper, 2003-Ohio-3213, ¶ 41 (8th Dist.), citing State v. Teamer, 82 Ohio
St.3d 490, 492 (1998).
Loper argued that the State had failed to prove possession where four
individuals were present at the apartment where drugs were found, no drugs were
actually found on his person, and the drugs were “discovered in the general living
area.” Loper at ¶ 42. This court, however, recognized that “possession can be
constructive” and that “[c]onstructive possession exists when an individual
knowingly exercises dominion and control over an object, even though that object
may not be within the individual’s immediate physical possession.” Id. at ¶ 43. See
also State v. Williams, 2025-Ohio-1457, ¶ 23 (8th Dist.).
The Loper Court then observed that “proof by circumstantial evidence
is sufficient to support constructive possession.” Loper at ¶ 44. Indeed,
“[c]ircumstantial evidence alone can be used to prove constructive possession.”
(Emphasis added.) Williams at ¶ 23, citing State v. Alexander, 2009-Ohio-597, ¶ 25
(8th Dist.). See also State v. Burton, 2019-Ohio-2431, ¶ 46 (8th Dist.). “‘Thus, the
discovery of readily accessible drugs in close proximity to a person constitutes
circumstantial evidence that the person was in constructive possession of the
drugs.’” Williams at ¶ 23, quoting State v. Harris, 2013-Ohio-484, ¶ 16 (8th Dist.).
The Williams Court further observed that “‘[t]his court has repeatedly recognized that constructive possession can be established by knowledge of an illegal substance
or goods and the ability to exercise dominion or control over the substance or the
premises on which the substance is found.’” Id. at ¶ 23, quoting Harris at ¶ 18.
In Williams, this court noted “that drugs, items frequently related to
drug trafficking or possession, cash, and drug paraphernalia were found in many
different areas around the house, and not just localized to a specific area or an area
indicating that perhaps one of the codefendants had exclusive knowledge or control
of the drugs.” Williams at ¶ 25. This is similar to the present case. Indeed, we agree
with the State that the evidence presented to support the core finding of possession
was overwhelming. Testimony and exhibits, principally photographs of the scene,
indicated that the small apartment was strewn with drugs and drug paraphernalia,
with white powder and larger white particles on multiple surfaces, including in the
kitchen sink and on the floor. North Olmsted police testified that they heard loud
activity within the apartment prior to entry, including screaming, a window screen
being smashed, and running water.
Upon entry, they found Jordan and Barrow alone. They observed
drugs in the kitchen sink with the water running. Indeed, the majority of the drugs
were in the kitchen sink, in plain view, where they could be easily observed.
While Jordan was found to be unconscious when police entered, his
hands and forearms were covered in white powder, and he appeared to be
overdosing. Testimony established that Jordan immediately responded to
administration of Narcan. (Tr. 531-533.) Testimony likewise established that fentanyl is a potent opioid, (tr. 600-601) and that Narcan is used to reverse the
effects of opiates. (Tr. 491.) Indeed, Jordan’s response to Narcan supports the
inference that he was in the grip of an opioid overdose. See State v. Penwell, 2021-Ohio-1216, ¶ 24 (2d Dist.) (Evidence “supported the rational inference that Penwell
had overdosed on an opiate, because he otherwise would not have responded to
treatment with Narcan.”); Adapt Pharma Operations Ltd. v. Teva Pharmaceuticals
USA, Inc., 2020 U.S. Dist. LEXIS 109257, *5 (D.N.J. June 5, 2020) (Narcan “works
as an ‘opioid antagonist,’ in that it quite literally reverses the effects of opioids.”);
Adm.Code 4729-8-01 (Naloxone recognized as approved by federal food and drug
administration “for the reversal of a known or suspected opioid-related
overdose[.]”).
Jordan, plainly overdosing and covered in white powder, was in close
proximity to the drugs visible in plain sight throughout the small apartment on the
floor, in the kitchen, and elsewhere. “Where a sizeable amount of readily usable
drugs are in close proximity to the defendant, there is circumstantial evidence to
support constructive possession.” State v. Jones, 2015-Ohio-1818, ¶ 46 (8th Dist.).
See also State v. Nesbit, 2019-Ohio-1646, ¶ 32 (8th Dist.). Moreover, the fact that
another individual was present in the apartment in addition to Jordan does not
mean that Jordan could not exercise dominion and control over the drugs. State v.
Tyler, 2013-Ohio-5242, ¶ 24 (8th Dist.). “Exclusive control over the premises is not
required.” State v. Shary, 2021-Ohio-3604, ¶ 48 (8th Dist.), citing In re Farr, 1993
Ohio App. LEXIS 5394, *16 (10th Dist. Nov. 9, 1993) (nothing in the statute states that illegal drugs must be in the sole or exclusive possession of the accused at the
time of the offense). See also State v. Wilson, 2015-Ohio-4979, ¶ 24 (8th Dist.)
(“[T]wo or more persons may have joint constructive possession of the same
object.”). Compare State v. Hall, 2016-Ohio-698, ¶ 16 (8th Dist.) (No evidence
demonstrated that Hall handled the cocaine or heroin at any point, and the State
provided no evidence that Hall was in close proximity to the narcotics other than the
fact he was in the house where the drugs were found.).
Taken together and viewed in a light most favorable to the State for
sufficiency purposes, this evidence supported a finding that Jordan knew drugs were
present, used them, and constructively possessed them. The testimony of PilchCooper provided sufficient evidence of the composition of the seized drugs (fentanyl
and 4-ANPP, which are Schedule II controlled substances, and cocaine).
The bulk of Jordan’s argument attacks Pilch-Cooper’s testimony as to
the weight of the seized chunks of fentanyl and 4-ANPP.5 Jordan notes, correctly,
that the seized drugs became wet in the kitchen sink. He suggested at trial,
specifically during his Crim.R. 29 argument, that they had been contaminated by
water to such an extent that any subsequent weighing would be unreliable. Jordan
relied at trial on State v. Bilah, 2023-Ohio-4070 (8th Dist.), and his argument on
appeal is likewise centered on that case.
5 Jordan’s arguments concerning the weight of the seized drugs focuses exclusively
on the fentanyl-related compound. As discussed above, he argues generally that he did not possess the drugs seized in the apartment, but not that the cocaine-based samples were contaminated by water.
In Bilah, police chased the defendant through a residential
neighborhood. All the while he “was pulling out plastic baggies, tearing them open,
and throwing them in the air, which created a large cloud of suspected fentanyl.” Id.
at ¶ 2. In the aftermath of the chase, police “observed what appeared to be fentanyl
in the snow on the ground.” Id. at ¶ 3. They “skimmed the gray powder from the
snow and put it into plastic vials; however, because some snow got in that then
melted, the lab analysis was done on the gray liquid that had formed.” Id. “The gray
liquid in each of the two vials tested positive for fentanyl and 4-ANPP, with one
weighing 21.40 grams and the other weighing 5.04 grams; however, the amount of
fentanyl was not separated out.” (Emphasis added.) Id. at ¶ 5.
Bilah was convicted under R.C. 2925.11(A) of possession of a fentanylrelated compound in an amount that equals or exceeds 20 grams but is less than 50
grams. On appeal, he argued that the State “could not establish the weight of the
fentanyl in the vials because it was mixed with melted snow and the forensic scientist
could not testify to what concentration of the gray liquid in the vials was fentanyl.”
Id. at ¶ 17. This court found merit to that argument:
Although the contents of the vials had a combined weight of 26.44
grams, it is undisputed that the vials contained liquid from the snow
that was collected. The forensic scientist could not separate out the
weight of the fentanyl collected in the vials. There simply was no
evidence of the relative weight of fentanyl to water. Therefore, the state
did not meet its burden of production at trial.
Id. at ¶ 20. This court further noted that “the forensic scientist testified the weight
of the contents in the vials included the fluid and that there was no way to know if the vials had a little more than a trace of fentanyl in them.” Id. at ¶ 21. It refused to
“speculate as to the amount fentanyl that was in the vials.” Id.
We view Bilah, 2023-Ohio-4070 (8th Dist.), as distinguishable. In
that case, the laboratory sample remained a liquid, rendering the fentanyl and water
from melted snow indistinguishable. Here, the laboratory did not weigh a liquid, or
even visibly wet chunks of suspected contraband. It weighed 54 solid fragments.
More importantly, unlike in Bilah, there was affirmative evidence that the weighed
fragments were dry. Pilch-Cooper testified that there was no indication of any water
remaining in the samples when they were weighed. Therefore, unlike in Bilah, the
State presented evidence from which a rational juror could conclude that the
laboratory weight of 140.28 grams did not include foreign tap water.
Jordan’s argument that there simply must have been some residual
water in the weighed samples, despite Pilch-Cooper’s testimony to the contrary, is
properly understood as an attack on Pilch-Cooper’s credibility and the weight of the
State’s evidence, not on the legal sufficiency of the State’s evidence. See State v.
Peterson, 2025-Ohio-2937, ¶ 32 (11th Dist.). In Peterson, the Eleventh District
persuasively distinguished Bilah, holding that because certain foreign material
could be visually distinguished from methamphetamine, the question of whether it
meaningfully contributed to the sample’s aggregate weight “could be considered in
light of the physical evidence without undue speculation.” Id. The issue was “not
the purity of the methamphetamine but to what extent the foreign material
contributed to the overall weight. Stated otherwise, the issue raised by Peterson in the present case involves the weight rather than the sufficiency of the evidence.” Id.
The Peterson Court wrote:
Though visible, the specks and flecks were not substantial compared to
the amount of methamphetamine. Moreover, the amount of crystalline
substance that was actually collected was only a portion what was
found in the vehicle and on the road. The jury could readily conclude
(as it did) that the weight of the foreign material did not significantly
contribute to the overall weight of the methamphetamine submitted for
analysis.
Id.
Here, as in Peterson, there was evidence from an expert witness, PilchCooper, that even if any moisture whatsoever remained in the weighed samples, it
was not substantial. She testified that she observed no dampness, wetness, or other
indication of water, such as an imprint on paper, and that any water previously
absorbed had dried by the time of testing. The jury could reasonably conclude,
based on her testimony, that the weight of the foreign material (water) introduced
at the time of collection did not significantly contribute to the weight of the samples
when tested. Jordan’s third assignment of error is overruled.
D. Fourth Assignment of Error
In his fourth assignment of error, Jordan argues that his drug
possession convictions were against the manifest weight of the evidence. “In
contrast to a sufficiency argument, a manifest weight challenge questions whether
the state met its burden of persuasion.” State v. Hill, 2013-Ohio-578, ¶ 32 (8th
Dist.); State v. Shirley, 2025-Ohio-1064, ¶ 21 (8th Dist.); State v. Wardlaw, 2025-Ohio-2221, ¶ 67 (8th Dist.). In our manifest-weight analysis, we “must look at the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether in resolving conflict in the
evidence, the trier of fact clearly lost its way and created such a miscarriage of
justice that the conviction must be reversed and a new trial ordered.” (Emphasis
added.) Spencer, 2024-Ohio-5809, at ¶ 26 (8th Dist.), citing Thompkins, 78 Ohio
St.3d at 387. See also Wardlaw at ¶ 67.
An appellate court will reverse on manifest weight “‘only in the
exceptional case in which the evidence weighs heavily against the conviction.’” State
v. McLoyd, 2023-Ohio-4306, ¶ 40 (8th Dist.), quoting Thompkins at 387; Williams,
2025-Ohio-2593, at ¶ 41 (8th Dist.). This is because “in a manifest-weight review,
the weight to be given the evidence and the credibility of the witnesses are primarily
for the finder of fact.” State v. Metz, 2019-Ohio-4054, ¶ 70 (8th Dist.); see also
Cleveland v. Johns, 2024-Ohio-3301, ¶ 24 (8th Dist.). Indeed, “‘“an appellate court
may not substitute its own judgment for that of the finder of fact.”’” Id. at ¶ 24,
quoting State v. Harris, 2021-Ohio-856, ¶ 33 (8th Dist.), quoting State v.
Maldonado, 2020-Ohio-5616, ¶ 40 (8th Dist.).
The Ohio Supreme Court very recently emphasized that
“[i]n weighing the evidence, the court of appeals must always be
mindful of the presumption in favor of the finder of fact.” Eastley [v.
Volkman], 2012-Ohio-2179, at ¶ 21. “‘“If the evidence is susceptible of
more than one construction, the reviewing court is bound to give it that
interpretation which is consistent with the verdict and judgment, most
favorable to sustaining the verdict and judgment.”‘“ [In re] Z.C., 173
Ohio St. 3d 359, 2023-Ohio-4703, at ¶ 14, 230 N.E.3d 1123, quoting
Seasons Coal Co. [v. Cleveland], 10 Ohio St.3d [77, 80 fn. 3], quoting 5
Ohio Jur.3d, Appellate Review, § 603, at 191-192 (1978). “‘The
underlying rationale of giving deference to the findings of the [factfinder] rests with the knowledge that 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.’” Id., quoting Seasons Coal at 80.
State v. Reillo, 2026-Ohio-2701, ¶ 28. “The use of the word ‘manifest’ in the
standard of review ‘means that we can only reverse the trier of fact if its decision is
very plainly or obviously contrary to the evidence.’” State v. Harris, 2020-Ohio1497, ¶ 28 (8th Dist.), quoting State v. Hernandez, 2018-Ohio-5031, ¶ 20 (8th
Dist.); Wardlaw at ¶ 67. “The jury may take note of any inconsistencies and resolve
them accordingly, ‘believ[ing] all, part, or none of a witness’s testimony.’” State v.
Sheline, 2019-Ohio-528, ¶ 96 (8th Dist.), quoting State v. Raver, 2003-Ohio-958,
¶ 21 (10th Dist.).
Jordan’s arguments as to manifest weight are largely duplicative of his
sufficiency arguments. He once again attacks Pilch-Cooper’s testimony concerning
the weight of the “soggy” evidence recovered from the sink. (Jordan’s brief at p. 20-21.) Pilch-Cooper, however, was qualified, without objection, as an expert. There
were no inconsistencies in her testimony, and on cross-examination she remained
firm that the samples she tested showed no signs of moisture, despite Jordan’s
suggestion that there must have been some residual moisture. The persuasive power
of her testimony, and the effectiveness of cross-examination in blunting it, were for
the jury to determine. Upon review, we find nothing in her testimony that was “so
inconsistent as to material facts, so impeached, or so fantastical as to render it
patently unbelievable.” Reillo at ¶ 32.
The remainder of Jordan’s manifest-weight argument is tied to the
issue of constructive possession. He contends, for example, that the white powder
covering his forearms and hands was never tested to determine whether it was
actually contraband and that there was no evidence he was aware of any of the drugs
in the apartment or in the sink. We have already concluded that the State produced
sufficient evidence of constructive possession based principally on the presence of a
sizeable amount of readily accessible drugs in plain view and in close proximity to
Jordan. Jordan argues that the white powder covering his forearms and hands was
never tested, but testimony established that he appeared to be overdosing and was
revived using Narcan, which reverses the effects of opioids. The jury was free to
credit this testimony, which was bolstered by photographs demonstrating Jordan’s
condition. In addition, while Jordan further argues that there was no evidence he
leased the apartment, exclusive control of the premises is not required. Shary,
2021-Ohio-3604, at ¶ 48 (8th Dist.).
Even if Jordan’s arguments that he had no ties to the drugs were
plausible, we cannot say that the jury lost its way in rejecting such arguments.
“‘When there exist two fairly reasonable views of the evidence or two conflicting
versions of events, neither of which is unbelievable, it is not the province of this court
to choose which version we believe.’” Sheline, 2019-Ohio-528, at ¶ 102 (8th Dist.),
quoting State v. Dyke, 2002 Ohio App. LEXIS 1197, *6 (7th Dist. Mar. 13, 2002).
See also Burton, 2019-Ohio-2431, at ¶ 55 (8th Dist.); State v. Ford, 2019-Ohio-2570,
¶ 79 (8th Dist.). A conviction is “not against the manifest weight of the evidence merely because the jury rejected the defense’s theories and found the state’s version
of the events to be more believable.” Sheline at ¶ 102.
Having reviewed the entire record, this is not the exceptional case in
which the jury clearly lost its way and created a manifest miscarriage of justice.
Jordan’s fourth assignment of error is overruled.
E. Fifth Assignment of Error
In his fifth assignment of error, Jordan focuses exclusively on his
conviction under Count 2 for possession of a fentanyl-related compound in an
amount that equals or exceeds 100 grams. He argues that the trial court erred by
giving incomplete jury instructions regarding the mixture and weight of the
controlled substances. More specifically, Jordan returns in this assignment of error
to the issue of alleged “non-filler foreign contaminants (water)” that purportedly
added weight to the seized contraband. In addition, though not expressly stated in
the assignment of error itself, Jordan contends that his trial counsel was ineffective
in failing to request a more explicit instruction.
“Requested jury instructions should ordinarily be given if they are
correct statements of law, if they are applicable to the facts in the case, and if
reasonable minds might reach the conclusion sought by the requested instruction.”
State v. Adams, 2015-Ohio-3954, ¶ 240. The ultimate decision whether to give an
instruction is committed to the trial court’s sound discretion. Generally, “[a]n
appellate court reviews a trial court’s refusal to give a requested jury instruction for
abuse of discretion.” Id., citing State v. Wolons, 44 Ohio St.3d 64, 68 (1989). Here, however, Jordan did not request a water-contamination instruction or object to the
admission of such an instruction. He has therefore waived all but plain error on
appeal. State v. Davis, 2021-Ohio-2311, ¶ 29 (8th Dist.), citing State v. Lott, 51 Ohio
St.3d 160 (1990), State v. Burns, 2011-Ohio-4230 (8th Dist.), Crim.R. 52(B), and
Crim.R. 30(A). See also State v. Hall, 2025-Ohio-644, ¶ 11 (8th Dist.). “Even in the
context of jury instructions, ‘[p]lain error “should be applied with utmost caution
and should be invoked only to prevent a clear miscarriage of justice.”’” Cleveland v.
White, 2024-Ohio-1584, ¶ 17 (8th Dist.), quoting State v. Skatzes, 2004-Ohio-6391,
¶ 52, quoting State v. Underwood, 3 Ohio St.3d 12 (1983), syllabus. In a plain-error
analysis, therefore, we review the jury instructions as a whole to determine whether
a manifest injustice occurred as a result of any purported error in the instructions.
State v. Jones, 2025-Ohio-2144, ¶ 42 (8th Dist.). “An improper or erroneous jury
instruction does not constitute plain error under Crim.R. 52(B) unless, but for the
error, the outcome of the trial would clearly have been different.” Davis at ¶ 30,
citing State v. Cooperrider, 4 Ohio St.3d 226 (1983); Jones at ¶ 42. See also White
at ¶ 17, citing State v. Campbell, 69 Ohio St.3d 38 (1994).
Viewing the instructions as a whole, the trial court instructed the jury
on the statutory components of possession and required it to determine beyond a
reasonable doubt that the amount of the fentanyl-related compound, mixture,
preparation, or substance equaled or exceeded 100 grams. The trial court did not
erroneously instruct the jury that water was a filler that should be counted in the
total weight. Rather, it simply did not give an instruction excluding water as a potential contaminant. Such an instruction, however, was not warranted by the
evidence. While the drugs were indisputably exposed to water at the scene,
testimony established that the relevant weight measurement was taken after the
evidence had dried. Expert witness Pilch-Cooper found no moisture in her
examination of the contraband. There was therefore no evidentiary basis on which
the jury could subtract or otherwise calculate alleged water contamination.
We have already distinguished Bilah, 2023-Ohio-4070 (8th Dist.), in
connection with Jordan’s sufficiency argument. Bilah addressed sufficiency where
the weighed items were actually in liquid form and the State therefore could not
demonstrate how much of the weight was fentanyl as opposed to water. Jordan
appears to argue for a Bilah-adjacent instruction whenever drugs were at one time
exposed to water even in the absence of evidence as to retained moisture. We reject
that argument. The trial court did not err by not instructing the jury to subtract an
unknown quantity of water weight from the fragments that Pilch-Cooper testified
were dry.
Indeed, in light of Pilch-Cooper’s testimony, we cannot conclude that
if the jury had been instructed on water contamination the outcome of the trial
clearly would have been different, or that a manifest injustice occurred because of
the omission of such an instruction. Pilch-Cooper’s expert testimony was that the
fragments contained no moisture when tested at the laboratory and that they
weighed 140.28 grams. To fall below the statutory threshold of 100 grams, the jury would have to attribute more than 40 grams of the fragments’ weight to retained
water, despite Pilch-Cooper’s testimony that those fragments were dry.
Jordan further argues that his trial counsel was ineffective for failing
to request an instruction on water contamination. To establish a claim of ineffective
assistance of counsel, Jordan “‘must demonstrate that (1) his counsel was deficient
in some aspect of his representation and (2) there is a reasonable probability that,
were it not for counsel’s errors, the result of the [proceeding] would have been
different.’” State v. Thompson, 2024-Ohio-5910, ¶ 5 (8th Dist.), quoting In re S.A.,
2019-Ohio-4782, ¶ 46 (8th Dist.), citing Strickland v. Washington, 466 U.S. 668,
687-688, 694 (1984). “Reasonable probability” is “probability sufficient to
undermine confidence in the outcome.” Strickland at 694.
As this court stated in Thompson, “‘the failure to make a showing of
either deficient performance or prejudice defeats a claim of ineffective assistance of
counsel.’” (Emphasis added.) Thompson at ¶ 5, quoting In re S.A. at ¶ 46. See also
State v. Davenport, 2018-Ohio-2933, ¶ 25 (8th Dist.). To put it even more explicitly,
“[t]he failure to prove either prong of Strickland’s two-part test makes it
unnecessary for a reviewing court to consider the other prong.” State v. McCann,
2025-Ohio-966, ¶ 18 (8th Dist.), citing State v. Madrigal, 87 Ohio St.3d 378, 389
(2000). See also Bilah, 2023-Ohio-4070, at ¶ 11 (8th Dist.) (reviewing court need
not determine whether counsel’s performance was deficient before addressing
whether defendant was prejudiced).
“Deficient performance, the first prong of the Strickland test, requires
a showing ‘that counsel’s representation fell below an objective standard of
reasonableness.’” McCann at ¶ 18, quoting Strickland at 688. “In Ohio, every
properly licensed attorney is presumed to be competent and, therefore, a defendant
claiming ineffective assistance of counsel bears the burden of proof.” In re S.A. at
¶ 47, citing State v. Smith, 17 Ohio St.3d 98, 100 (1985). See also McCann at ¶ 18.
Moreover, “Counsel’s tactical decisions or trial strategy cannot form the basis for a
claim of ineffective counsel.” In re S.A. at ¶ 47, citing State v. Foster, 2010-Ohio3186, ¶ 23 (8th Dist.). See also State v. Clayton, 62 Ohio St.2d 45 (1980).
Reviewing courts “‘will strongly presume that counsel rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.’” McCann at ¶ 17, quoting State v. Powell, 2019-Ohio-4345,
¶ 69 (8th Dist.); see also Strickland, 466 U.S. at 689 (A reviewing court “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.”). We therefore afford “great deference” to “trial
counsel’s performance and tactical decisions and trial strategies.” McCann at ¶ 17.
Even “debatable” or “questionable” trial tactics generally “do not constitute
ineffective assistance of counsel.” State v. Harris, 2022-Ohio-4630, ¶ 50 (8th Dist.),
citing State v. Scarton, 2020-Ohio-2952, ¶ 90 (8th Dist.). Appellate courts
therefore “‘ordinarily refrain from second-guessing strategic decisions counsel make
at trial,’ . . . even where appellate counsel argues that he or she would have defended against the charges differently.” Scarton at ¶ 90, quoting State v. Myers, 2002-Ohio-6658, ¶ 152. See also State v. Stewart, 2024-Ohio-5802, ¶ 54 (8th Dist.).
Having thoroughly reviewed the trial court record in light of
applicable legal standards, we cannot conclude that defense counsel’s decision not
to request a jury instruction on water contamination constituted ineffective
assistance of counsel. Counsel presented the water-contamination theory through
extensive cross-examination and in closing argument. The jury was fully aware of
Jordan’s contention that exposure to sink water undermined Pilch-Cooper’s
testimony as to the weight of the contraband. “That another strategy may have been
available does not mean that counsel provided ineffective assistance.” Bilah, 2023-Ohio-4070, at ¶ 12 (8th Dist.).
Moreover, even assuming counsel could have requested a more
specific instruction, Jordan cannot show prejudice. The trial court would have been
justified in refusing it because Pilch-Cooper’s expert testimony that the fragments
showed no signs of moisture foreclosed a reasonable finding that over 40 grams of
water remained in the tested fragments. Upon our review, therefore, we find that
Jordan has failed to demonstrate a reasonable probability that but for the alleged
deficiencies in his trial counsel’s performance, the result of the proceedings would
have been different.
F. Sixth Assignment of Error
In his sixth assignment of error, Jordan argues that the MDO
specification attached to Count 2 was unconstitutional because it required a factual finding by the court rather than the jury and that because the jury made the finding
regarding the weight of the contraband, the MDO finding violated Ohio law.
Jordan concedes that review of this issue is limited to plain error, as
no objection was lodged at the trial-court level. He further acknowledges that this
court has previously addressed the problems that potentially flow from the language
of the MDO statute. In State v. Makin, 2017-Ohio-2649 (8th Dist.), the appellant,
like Jordan, argued that he “was denied his right to a jury trial guaranteed by the
Sixth and Fourteenth Amendments to the U.S. Constitution in determining the
MDO Specification.” Id. at ¶ 9. This court summarily disposed of the associated
assignment of error:
Trafficking or possession of more than 100 grams of cocaine is an
MDO. R.C. 2925.03(C)(4)(g) and 2925.11(C)(4)(f). According to R.C.
2941.1410(B), the trial court is required to determine the MDO
specification. As we previously recognized, “[t]his appears to be
inconsistent with the principle that elements necessary for a penalty
enhancement must be found by the trier of fact, not the court.” State
v. Dues, 2014-Ohio-5276, 24 N.E.3d 751, ¶ 49 (8th Dist.), citing State
v. Fort, 2014-Ohio-3412, 17 N.E.3d 1172, ¶ 28, and Alleyne v. United
States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). However, as was the
case in Dues, we are not required to make a determination on that issue
as the jury determined in Count 13 that the aggregate amount of
cocaine exceeded 100 grams. Dues at ¶ 50.
Id. at ¶ 10. In Dues, this court observed “that the United States Supreme Court’s
decision in Alleyne appears to lead to the conclusion that Ohio’s major drug offender
statutes could be constitutionally infirm where a trial court makes factual
determinations to enhance a defendant’s sentence.” Dues at ¶ 49, citing Fort at ¶ 32.
The Dues Court explained that there was no Alleyne problem in that case, however, because the indictment had charged Dues with trafficking and possessing over 100
grams of contraband and “it was the jury who determined the weight of the drug —
the element necessary to enhance the penalty.” Dues at ¶ 50. Accordingly, “[o]nce
the jury found Dues guilty of these two counts, the MDO determination was
automatic.” Id. It was the jury, therefore, that determined Dues was a major drug
offender “based on its finding that he possessed over 100 grams of cocaine.” Id. This
“does not run afoul of Alleyne.” Id.
In this case, the indictment clearly contained an MDO specification
on Count 2, and the jury’s verdict form indicating a finding that he possessed a
fentanyl-related compound or a compound, mixture, preparation, or substance
containing fentanyl that was in an amount that exceeds 100 grams. This puts to rest
Jordan’s claim that the MDO finding violated his constitutional rights. In addition,
there was no separate verdict form returned by the jury containing specific MDO
specification language. Instead, because “the MDO determination was automatic,”
Dues at ¶ 50, the trial court noted the MDO specification in its sentencing entry. We
find no error in this regard.
Jordan contends that both the trial court and the jury are required
to make the MDO finding. He then appears to argue that the entire MDO scheme is
unlawful because if the trial court makes the MDO determination, the finding is
unconstitutional, and if the jury makes the determination as to the weight of the
contraband — leading to an automatic MDO determination — that procedure runs
afoul of the statute because the trial court failed to make a separate determination, rendering the sentence contrary to law. Dues had made a different statutoryinterpretation argument, but like here the end result would have been that “no drug
offender could ever be found a MDO, either by the trial court or by the jury[.]” Id.
at ¶ 54. As this court stated in Dues, “[w]e must construe statutes to avoid
unreasonable or absurd results[.]” Id. at ¶ 55, citing State ex rel. Striker v. Cline,
2011-Ohio-5350, ¶ 25. In addition, Jordan has provided no authority to support his
argument that both the trial court and the jury are required to make factual findings
before the trial court imposes a sentence on the MDO specification.
Moreover, the Fourth District, in State v. Barnes, 2020-Ohio-3943
(4th Dist.), relied on both Dues, 2014-Ohio-5276 (8th Dist.), and Tenth District
precedent in harmonizing the statutory scheme. The Fourth District first noted that
in State v. Pena, 2007-Ohio-4516 (10th Dist.), “the court explained that the portions
of R.C. 2929.14 requiring judicial fact-finding before imposition of additional
penalties for major drug offender specifications had been severed from the statute
by State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.” Barnes at
¶ 38, citing Pena at ¶ 15. The Barnes Court explained that the defendant “was
properly found guilty of the major drug offender specification contained in the
indictment, in light of the jury’s finding that he was guilty of possessing an amount
of heroin equal to or exceeding 100 grams.” Barnes at ¶ 38. The trial court was
therefore required to impose a mandatory term because of Barnes’s automatic
classification as a major drug offender. Id. The Fourth District continued:
Furthermore, it arguably would have been error for the trial court to
make the major drug offender determination, in light of Foster, supra,
as interpreted by Pena, supra. Moreover, we have found nothing, and
Barnes has cited us to nothing that requires the trial court to include a
specific determination in the sentencing entry regarding a defendant’s
classification as a major drug offender. Nor has Barnes provided any
legal support for the proposition that the failure to include major drug
offender language in a sentencing entry results in the sentence being
contrary to law or resulting in reversible error on appeal.
In light of the foregoing, we cannot conclude that the trial court erred
in sentencing Barnes, or that his sentence is otherwise contrary to law.
Id. at ¶ 38-39.
In the present case, the trial court’s sentencing entry includes MDO
language, but it is framed appropriately as a determination based on the jury’s
factual finding. In short, the jury found that Jordan possessed the requisite amount
of contraband, and the trial court imposed the automatic MDO determination.
Jordan’s argument that the court was required to make a more explicit MDO
specification finding is undermined by Barnes. Nothing in the trial court’s handling
of the MDO specification violated Jordan’s constitutional rights or ran afoul of
Ohio’s statutory MDO scheme.
Jordan’s sixth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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
convictions having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
DEENA R. CALABRESE, JUDGE
LISA B. FORBES, P.J., and
ANITA LASTER MAYS, J., CONCUR