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IN THE SUPREMF_, COURT OF OHIO
STATE OF OHIO,
Plaintiff-Appellee,
vs.
RONALD LEONARD,
Defendant-Appellant.
Case No.
On Appeal frorn the AthensCounty Court of Appeals,Fourth Appellate District
C.A. Case No. 08CA24
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT RONALD LEONARD
C. DAVID WARREN (0024763)Athens County Prosecutor
GEORGE REITMEIER (0065820)Assistant Prosecuting Attorney(Cottnsel of Record)
Athens County Prosecutor's OfficeAthens County CourthouseI South Court St., Ist FloorAtliens, Ohio 45701Phone: (740) 592-3208Fax: (740) 592-3291
COUNSEL FOR APPELLEESTATE OF OHIO
OFFICE OF THEOHIO PUBLIC DEFENDER
MELISSA M. PRENDERGAST (0075482)Assistant State Public Defender(Counsel of Record)
250 East Broad Street, Suite 1400Columbus, Ohio 43215Phone: (614) 466-5394Fax: (614) 752-5167Email: melissa.prendergast a,opd.ohio.gov
COUNSEL FOR APPELLANTRONALD LEONARD
JAN 04 ?i11k
E,L tal EfIK OF CQ11{'-^ I^UlAElMl: COfJV1T OF pH10
TABLE OF CONTENTS
Page No.
EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC ORGREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION .................................................................................. 1
STATEMENT OF THE CASE AND FACTS................................................................. 2
PROPOSITION OF LAW 1:
A criminal defendant is denied due process of law when he is convicted for thethird-degree felony offense of cidtivation of marijuana in a weight equal to orexceeding 1,000 grams, when the State's proof of the weight includes the weightof moisture accumulated on the surface of inarijuana plants following a watering.Due Process Clause of the Fourteenth Amendment to the United StatesConstitution, and Sectioii 16, Article I of the Oliio Constitution . ...................................4
PROPOSITION OF LAW II:
A criminal defendant is denied the effective assistance of counsel when trialcounsel fails to recognize inadmissible evidence and fails to file effective motionsthat would cnrtail the State's use of the inadmissible evidence, in violation of hisSixth and Fourteenth Amendments to the United States Constitution and Section10, Article I of the Ohio Constitution.............................................................................. 7
CONCLUSION ............................................................................................................... 9
CERTIFICATE OF SERVICE . ....... ...................... ............ ............................. ............... 10
APPENDIX
State v. Leonard, Decision and'Judgment Entry, Athens App No. 08CA24,2009-Ohio-6191 (Novetnber 18, 2009) .................................................................... A-1
EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION
After denying Mr. Leonard's motion to suppress the seized marijuana evidence, the
trial court erroneously allowed the State to establish the weight of the marijuana by way of
an Ohio Department of Natural Resources Wildlife Officer's lay testimony. In this case, it
was the defense who called the drug analyst from the Ohio Bureau of Criminal Identification
and Investigation to testify about the laboratory report submitted in compliance with R.C.
2925.51. Despite the laboratory report submitted by B.C.T. showing the seized evidence
weighed 744.1 grams, the trial court improperly allowed the State's lay witness, wildlife
officer Stone, to testify that he calculated the weight of the seized evidence as more than
2,800 grams. The only explanation for this wildly inconsistent result is the lack of a
standard protocol for weighing marijuana.
Ronald Leonard's case presents this Court with the opportunity to address Judge
Harsha's "concern over the inconsistent protocols used by different law enforcement
agencies to determine the weight of marihuana." State v. Leonard, Athens App. No.
08CA24, 2009-Ohio-6191, at1177 (Harsha, J., concurring). Judge Harsha further expressed
his trepidation with weight-based drug offenses due to his finding that "it seems somewhat
arbitrary that one defendant could get charged with an elevated felony because an agency
chose to use a 'wet weight,' while another defendant with an identical quantity of cannabis
could face a lesser charge because a different agency used a 'dry weight' measurement." Id.
While Mr. Leonard's case may be unique to this Court, given Judge Harsha's noted
concern over the disparity among drug offense convictions based on weight, Mr. Leonard's
case most eertainily is not the only one in Ohio that would be affected by this Court
accepting jurisdiction over this case. The arbitrariness Judge Harsha refers to in his
concurrence had its most severe effect on Mf. Leonard's case: because of the inconsistent
protocols used by various law enforcement agencies to determine the weight of marijuana,
he ended up with a third-degree felony conviction favoring prison, as opposed to a fifth-
degree felony conviction that would not have a presumption for prison. Consistency in the
application of the law is a central tenet to the American judicial system and Mr. Leonard's
case is a poignant example of the disparate effect inconsistency in the law has on
individual's freedom.
STATEMENT OF THE CASE AND FACTS
In February 2006, the Athens County Grand Jury inldicted Ronald Leonard on one
count of the third-degree felony offense of crdtivation of marijuana. Cultivation of
marijuana, in violation of R.C. 2925.04, is a felony of the fifth-degree if "the amount of
marihuaia involvc.d equals or exceeds two hundred grams but is less than one thousand
grarns." R.C. 2925.04(C)(5)(c). However, if "the amount of marihuana involved equals or
exceeds one thousand grams but is less than five thousand grams," then the offense is
elevated to a third-degree felony. R.C. 2925.04(C)(5)(d).
On July 26, 2006, the prosecution filed its Bill of Particulars, alleging that "[o]n
September 21, 2005, in the Division of Ohio Department of Natural Resources (ODNR)
found marihuana growing on the Fox Lake Wildlife Area, Athens County, Ohio,
Defendant was observed from 5:22 p.m. to 6:08 p.m. caring for the plans by picking leaves
and buds from the plants and carrying a large blue container to water the plants." 'The case
proceeded to jury trial, and the State presented the testimony of five ODNR officers.
According to Thomas Donnelly, a State Wildlife Officer Supervisor, the marijuana
plants in question came to the attention of ODNR officials when a wildlife technician found
2
them while mowing in the area. Subsequently, ODNR officials set up surveillance in the
area. Retired Wildlife Office Supervisor Terry Hawk testified that on September 21, 2005,
while conducting surveillance, lie witnessed Mr. Leonard walk into a wooded area carrying
a water jug. Hawk further testifred that he could hear water being poured from the jug.
When Mr. Leonard came walking out of the wooded area, Hawk ordcred him to get down
on the ground and handcuffed him. Finally, Hawk stated that a total of six marijuana
plants were seized as a result of the surveillance and arrest.
The final prosecution witness was Officer Stone, the custodial officer for the seized
marijuana. Officer Stone testified that he had no prior experience in marijuana cultivation
cases and that he had asked the Athens Count Prosecutor's Office for advice on handling
and weighing the evidence. On September 26, 2005, Officer Stone weighed the plant
material and calculated a total weight of just over 2,800 grams. Officer Stone took the
evidence to the Ohio Bureau of Criminal Identification and Investigation on May 16, 2007,
where a controlled substances analyst weighed the evidence and calculated a total weight of
747.1 grams. On August 28, 2007, Officer Stone took the evidence to a State Highway Post
and re-weighed it. Upon re-weighing the evidence, Officer Stone calculated a weight nearly
identical to the weight calculated by B.C.I.
B.C.I. analyst Beverly Wiltshire testified for the defense and with regard to B.C.I.
policy, she stated: "We do not accept vegetation in a hydrated or wet state." She further
testified that "[wJhen plants are harvested they have different amounts of water in them
dcpending on if it's a wet year or a dry year, or if they were irrigated, or if they went
through a drought period." Additionally, Wiltshire stated that B.C.I. only accepts wet
3
vegetation when thcy are not aware of its state azld that, when wet vegetation is accepted,
B.C.I. opens the evidence bags before doing the weight analysis.
On July 10, 2008, the jury returned its verdict, finding Mr. Leonard guilty of the
charge as a felony of the third degree, and fmding that the amount of marijuana "involved"
exceeded one thousand grams but was less than five thousand grams. By Judgment Entry
dated October 1, 2008, the trial court sentenced Mr. Leonard to three years in prison,
ordered him to pay court costs and a one thousand dollar fine, and ordered his driver's
license suspended for a period of three years.
On direct appeal, the Fourth District Court of Appeals overruled three assignments
of error and affnined Mr. Leonard's conviction and sentence. State v. Leonard, Athens App.
No. 08CA24, 2009-Ohio-6191.
A criminal defendant is denied due process of law when he isconvicted for the third-degree felony offense of cttltivation ofmarijuana in a weight equal to or exceeding 1,000 grams, when theStatc's proof of the weight includesthe weight of moistttre accttmulated on tlre surface of marijuanaplants following a watering. Due Process Clause of the FourteenthAmendment to the United States Constitution, and Section 16,Article I of the Ohio Constitution.
Ronald Leonard has been deprived of his right to liberty without due process of law
because he was convicted of the third-degree felony offense of illegal cultivation of
marijuana, in violation of R.C. 2925.04, absent "proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged." Jackson v. Virginia (1979),
443 U.S. 307, 316; In re LVinsltip (1970), 397 U.S. 358, 364; State v. Jenks et al. (1991), 61
Ohio St.3d 259. Under R.C. 2925.04, the statute governing Illegal Cultivation of
Marijuana, the level of the otl'ense is determined by the weight of the marijuana involved.
4
R.C. 2925.04(C). Section (C)(5)(c) specifies that if the weight is between two hundred
grams and one thousand grams, the offense is a felony of the fifth degree. Section (C)(5)(d)
specifies that if the weight of the marijuana involved is equal to or exceeds one thousand
grams but is less than five thousand grams, the offense is a felony of the third degree.
However, in this case, Ronald Leonard's conviction for the elevated felony level of the
offense was based upon inadmissible and insufficient evidence indicating that the weight of
the marijuana was over 2,800 grams-more than four times the weight independently
reached by both a qualified analyst for B.C.I. and a trooper at the State Highway Patrol.
The six seized marijuana plants were initially weighed by a wildlife officer for
ODNR, Charles Stone, who had no specific experience in marijuana cultivation cases and
no general experience weighing controlled substances. The testimony established that Mr.
Leonard had watered the six plants immediately before he was arrested and the evidence
seized. Thus, Stone's weight calculation was necessarily skewed by the excess water
clinging to the plants when he weighed them, which explains his exaggerated weight
calculation of more than 2,800 grams, more than four times the calculation reached by
trained professionals at B.C.I. and the State Highway Patrol post.
The primary problem with Officer Stone's weight calculation of the marijuana plants
in question can be explanied by his utter lack of training or experience in calculating the
weight of controlled substances involved in a criminal offense such as illegal cultivation.
Ohio Revised Code Section 2925.51 is unambiguous in its requirements. The analysis and
weight'of the substance in question is proven by the presentation of a laboratory report from
"the bureau of criminal identification and investigation, a laboratory operated by another
law enforcemcnt agency, or a laboratory established by or under the authority of an
institution of higher education that has its main campus in this state and that is accredited
by the association of American universities or the north central association of colleges and
secondary schools[.]" R.C. 2925.51(A). T'he laboratory report contemplated by the statute
is to be signed by the person performing the analysis, stating the findings as to the content,
weight, and identity of the substance. Id. Additionally, the report shall have attached a
notarized statement by the signer stating that the sigiier is an employee of the laboratory
issuing the report and that performing the analysis is a part of the signer's regular duties,
and giving an outline of the signer's education, training, and experienee for performing the
analysis. The signer shall also attest that the evidence was handled in accordance with
established and accepted procedures while in the custody of the laboratory. Officer Stone
met none of the requirements of R.C. 2925.51 and his testimony as to the weight of the
seized evidence is insufficient evidence on which to base a conviction for the elevated
degree of the felony offense of cultivation of marijuana.
As the concurring opinion in Mr. heonard's case noted, "it seems somewhat
arbitrary that one defendant could get charged with an elevated felony because an agency
chose to use a`wet weight,' while another defendant with an identical quantity of cannabis
could face a lesser charge because a different agency used a`dry weight measurement."'
State v. I,eonaYri, Athens App. No. 08CA24, 2009-Ohio-6191 at'{[ 77 (Harsha, J., concurring).
While the jury had before it three different results for the weight of the seized marijuana, the
only evidence not satisfyiirg R.C. 2925.51 came from the State's witness, Officer Stone.
Contrary to Officer Stone, B.C. 1. analyst Beverly Wiltshire was accepted as an expert by the
trial court and submitted a laboratory report in compliance with R.C. 2925.51(A).
Wiltshire's laboratory report concluded that the seized marijuana weighed 747.1 grams, a
6
weight virtually identical to that calculated independently by the State Highway Patrol.
Furthermore, Wiltshire stated that B.C.I. policy is to not accept wet vegetation, or if
unavoidable, to let it dry out somewhat before testing it.
Mr. Leonard's case establishes that the weight of the marijuana is rarely, if ever, the
actual weight at the time of the offense. Rather, the amount of "marijuana involved" is
nearly always the weight it is when it is analyzed and weighed by a competent, statutorily-
acceptable laboratory analyst. Further, had ODNR officials originally provided B.C.I. with
the seized evidence, it would have weighed close to, if not the same, as the weight Wiltshire
reported-a weight that was sufficient only to convict Mr. Leonard of the fifth-degree felony
offense of illegal cultivation. Due process demands that "[n]either a trial court nor an
appellate court [...] abdicate its responsibility to enter a judgment of acquittal when the
evidence is legally insufficient to sustain a conviction." State v. Goodin (1978), 56 Ohio St.2d
438, 442. Yet, evcn in the face of the unquestionable lack of evidence to convict Mr.
Leonard of the third-degree felony offense of illegal cultivation, both the trial court and the
appellate court in this case failed in their responsibility to protect his right to due process,
allowing the conviction to stand.
PROPOSITION OF LAW II
A criminal defendant is denied the effective assistanec of coiuiselwhen trial counsel fails to recognize inadrnissible evidence and failsto file effective motions that would curtail the State's use of theinadtnissible evidence, in violation of his Sixth and FourteenthAmendments to the United States Constitntion and Section 10,Article I of the Ohio Constitntion.
Mr. Leonard's trial counsel was ineffective when he failed to recognize and move for
the exclusion of inadmissible evidence for Mr. Leonard's jury trial. Counsel's failure
prejudiced Mr. Lconard, as counsel's failure allowed the jury to hear inadmissible evidence
7
reladng to the weight of marijuana involved and made it possible to convict him of a higher
degree of felony than of which he would otherwise have been eonvicted. Had trial counsel
objeeted to the admission of the improper evidenee both before and during trial, Mr.
Leonard would only have been convicted of a fifth-degree felony offense and most likely
would not now be in prison.
To establish a claim of ineffective assistance of counsel, a defendant must show that
counsel's performance was deficient and that the deficient performance caused prejudice.
Strickland v. Washington (1984), 466 U.S. 668; State v. Bradley (1989), 42 Ohio St.3d 136, 538
N.E.2d 373, Strickland established a two-prong test for determining whether a defendant
has been deprived of the right to the effective assistance of counscl. First, a defendant mnst
show that counsel's performance was deficient. Id. at 687. Second, the defendant must
show that the deficient performance prejudiced the outcome. Id. The test for determining
prejudice is whether there is a reasonable probability that but for counsel's unprofessional
error, the result of the proceedings would have been different. Id. at 694.
Mr. Leonard's trial counsel did file a motion in liniine, questioning "the accuracy of
the methods used by ODNR to handle and analyze [the marijuana] evidence." However,
trial counsel was ineffective for failing to reeognize and argue the more salient issue of the
absence of qualifications of the ODNR officer who provided that exaggerated weight in the
first place. As addressed. in the First Proposition of Law, above, R.C. 2925,51(A) has
specific requirements for laboratory reports providing the results of tested and weighed
controlled substances. Officer Stone did not and could not have satisfied R.C. 2925.51's
articulated requirements, and trial counsel's motion in limine should have sought to exclude
the evidence of weight offered by the ODNR officer on the grounds that he did not qualify
8
as an analyst under R.C. 2925.51, and he would not otherwise qualify as an expert under
Evidence Rule 702. Due to counsel's errors, the jury was presented with and ultimately
relied upon this faulty, incompetent, and inadmissible evidence.
CONCLUSION
This Court should accept Mr. Leonard's appeal because it raises substantial
constitutional questions, involves a felony, and is of great public and general interest.
Respectfully submitted,
OFFICE OF THE01110 PUBLIC DEFENDER
MELISSA IVTPITVNMRGAST (0075482)Assistant State Public Dcfender(Counsel of Record)
250 East Broad Street, Suite 1400Colutnbus, Ohio 43215Phone: (614) 466-5394Fax: (614) 752-5167Email: melissa.prendergast(tbopd.ohio.gov
COUNSEL FOR APPELLANTRONALDI,EONARD
9
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Memorandnm in Support of Jnris-
diction of Appellant Ronald Leonard has been served, by first class U.S. mail, upon
George Reitmeier, Assistant Prosecuting Attorney, Athens County Courthouse, 1 South
Court Street, lst Floor, Athens, Ohio 45701 on this 4th day of January, 2010.
MELISSA M. PRIKDERG ST #0075482Assistant State Public der
COUNSEL FOR APPELLANTRONALD LEONARD
#31258•1
10
IN THE SUPREME COURT OF OHIO
STATE OF OHIO,Case No.
Plaintiff-Appellee,
vs.
RONALD LEONARD,
Defendant-Appellant.
On Appeal from the AthensCounty Court of Appeals,Fourth Appellate District
C.A. Case No. 08CA24
APPENDIX TO MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT RONALD LEONARD
DEC-04-2009 14:55 FROM-ATfE.NS CO CLERK OF CouKis TII4UV â Li6eL
IN THE COURT OF APPEALS OF OHIOFOURTH APPELLATE DISTRICT
ATHENS COUNTY
The State of Ohio,
Plaint'iff-Appellee,
vs.
Ronald Leonard,
Defendant-Appellant.
Case No. 08CA24
FILE.ATHOMs doUNV' OHIO
NOV 18 2009
mERKIcouRT OP APPE^A^-'"
DECISION AND JUDGMENT
: ENTRY
APP__ EARANC^S'
Dennis G. Day, Columbus, Ohio, for AppeUant.
C. David Warren, Athens CountyProsecutor, and George Reitmeier, Athens
pCounty Assistant Prosecutor, Athens, Ohio, for Ap pellee .
Kline P.J.:
{¶1} Ronald Leonard appeals the judgment of the Athens County Court of
Common Pleas. After a jury trial, the trial court found Leonard guilty of third-
degree felony cultivation of marihuana in violation of R.C. 2925.04(A) and R.C.
2925.04(C)(5)(d). On appeal, Leonard contends that (1) that there was
insufficient evidence to support his conviction and (2) that his conviction was
against the manifest weight of the evidence. We disagree. First, we believe that
any rational trier of fact could have found the essential elements of third-degree
felony cultivation of marihuana proven beyond a reasonable doubt. And second,
we find substantial evidence upon wtiich the jury could have reasonably
concluded that all the elements of third-degree felony cultivation of marihuana
were proven beyond a reasonable doubt. Next, Leonard contends t%aftftizED
NOV 1 B ZU09JR=.PG:
DFC-04-2009 14:55 FROM-ATHENS CO CLERK OF COURTS
Athens App. No. 08CA24
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2
denied a fair trial because of prosecutorial misconduct. We disagree. First,
Leonard cannot demonstrate that the prosecutor's failure to pravide timely
discovery deprived him of a fair trial. Second, the prosecutor's reference to the
subject matter of a suppression hearing lacked prejudicial effect because the trial
court sustained Leonard's objection to the reference. And finally, the
prosecutor's references to the suppression hearing itself did not rise to the level
of plain error, Leonard also contends that he received ineffective assistance of
counsel. We disagree because Leonard (1) has not overcome the presumption
that his triai counsel engaged in sound trial strategy and (2) has not
demonstrated that his trial counsel's performance resulted in prejudice for him.
Accordingly, we overrule all of Leonard's assignments of error and affirm the
judgment of the tria{ court.
1.
{12} In September 2005, a wildlife technician discovered some marihuana
plants while mowing a brushy section of the Fox Lake Wildlife Area in Athens
County, Ohio. At about the same time, some confidential informants told Ofticer
Terry Hawk of the Ohio Department of Natural Resources (hereinafter "ODNR")
about suspicious activity in the area. Based on these reports, Officer Hawk and
ODNR Officer Thomas Donnelly drove to that section of the Fox Lake Wildlife
Area and found marihuana plants growing in two blue pots and one black pot.
The two blue pots each contained two marihuana plants. The black pot also
contained two marihuana plants and was located about seventy-five yards away
from the two blue pots.
DEC 04-200g 14:56 FROlA-ATHENS CO CLERK OF COURTS +17405923282
Athens App. No. OBCA24
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3
{13) On September 9, 2005, Officers Hawk and Donnelly set up a
surveillance camera in the area of the marihuana plants. The surveillance
camera was designed to start recording upon sensing any seismic activity in the
area. On September 13, 2005, the surveillance camera recorded a white male
approaching the marihuana plants while carrying a blue jug. Subsequently, the
seismic activity from a nearby gas line caused the surveiilance camera to record
near continuously. As a result, the surveillance camera quickly ran out of power
and recorded nothing else related to the marihuana plants.
t114} On September 20 and 21, 2006, Officers Hawk and Donnelly, along
with other ODNR officers, set up live surveillance in the area of the marihuana
plants. The officers observed nothing related to the marihuana on September
20, 2005. Before starting surveillance on September 21, 2005, one of the
officers checked the marihuana in the blue pots and noticed that the sail was dry.
{¶5} At approximately 5:22 p-m. on September 21, 2005, Officer Donnelly
observed a red jeep driving towards the area of the marihuana plants. The driver
of the red jeep parked in a wooded area, got out of his car, and walked towards
the area of the marihuana p(ants; i.e., the brushy area. Ofticer Hawk and another
ODNR officer testified that they saw the suspect, later identified as Leonard,
carrying a blue jug.
15} Leonard then entered the brushy area that hid the blue pots. After
Leonard entered this particular area, Officer Hawk testified that he saw the tops
of the marihuana plants move and heard the sound of water pouring. (One of the
ODiyR officers later checked the blue pots and discovered that the soil was wet.)
DEC-04-2009 14:58 FROM-ATHENS CO CLERK OF COURTS f17405823zAZ 1 uLc r.uuviu c .1.
4Athens App. No. 08CA24
When Leonard emerged from the brushy area, Officer Hawk apprehended
Leonard and ordered him to the ground. At this point, ODNR officers found ioose
marihuana lying on the ground next to Leonard.
(17) ODNR lnvestigator Charles Stone took possession of the marihuana
evidence a few days later. investigator Stone testified that, because he had not
worked a marihuana cultivation case before, he called the Athens County
Prosecutor's office for guidance. Investigator Stone further testified that he
operated under the following guidelines: "Keeping the three pots separate and
removing the teaves and buds from the stalks of each of the two plants in each of
the three planters, and putting them in separate boxes. So we ended up with
three boxes. And because our scales were not on site at the Qistrict office I was
given some advice to take it (sic] the State Highway Patrol off^ce in Athens and
utilizing their digital scales to weigh the contents of each of the boxes. That
process occurred on [September] 26th-" Transcript of Sury Trial Proceedings,
Day Two at 221. According to Investigator Stone's testimony, the first box of
marihuana plants weighed 426.86 grams; the second box of marihuana plants
weighed 1,361.10 grams; and the third box weighed 1,079.29 grams. Therefore,
according to Investigator Stone's testimony, the total weight of the marihuana
was 2,867.25 grams_
{¶8} On February 27, 2006, an Athens County Grand Jury indicted Leonard
for one count of third-degree felony cultivation of marihuana, in violation of R.C.
2925.04(A) and R.C. 2925.04(C)(5)(d).
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Athens App. No. 08CA24
{19) Sometime after Investigator Stone weighed the marihuana, ODNR
officers transferred the marihuana evidence to the Ohio Attorney General's
Bureau of Criminal IdentiFication and Investigation (hereinafter "Ohio ®Ct" or
"BCP'). A BCI analyst weighed the rnarihuana plants on May 16, 2007.
According to the analysYs report, the marihusna weighed 747.1 grams.
(Investigator Stone weighed the marihuana evidence again on August 26, 2007.
The weight obtained by investigator Stone that day was consistent with the
weight obtained by the BCI analyst.)
(1110) During his arrest on September 21, 2005, Leonard stated that he took
the loose marihuana for his own use and, also, that he was growing the
marihuana for his own use- On July 27, 2007, Leonard fited a motion to
suppress that statement. Leonard aiso filed a motion in 6mine to prohibitthe
state from introducing into evidence (1) any marihuana seized subsequent to
Leonard's arrest and (2) the September 13, 2005 surveittance videotape. After a
suppression hearing that addressed these issues, the trial court granted the
motion to suppress the stafement because Leonard had not been read his
Miranda rights_ However, the trial court denied Leonard's motion in limine.
(111) on February 4, 2008, Leonard filed a Motion for Disciosure of the
Identity of the Informant. The trial court denied that rnotion. Leonard
subsequently filed another motion requesting the confidential informant's identity.
Again, the trial court denied that motion. On July 7, 2006, the state filed a Notice
of Citizen Information. In that Notice, the prosecutor stated that "[gjiven the fact
that Supervisor ponnetly was watching for a certain vehicle, it became apparent
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6Athens App. No. 08CA24
to me that there was another individual who had provided information to the
officers. This individual was not present on September 21, 2005, this individual
is a not a suspect in the case, and this individual had no other relationship to this
case."
(912) On July 8, 2008, before the voir dire process in Leonard's trial, the
judge ruled that the prosecutor should provide the name of the confidential
informant to Leonard's attorney. The trial court judge said that the prosecutor
"did not say that the individual that he's told us about and filed a notice about was
a confiden8al informant. He just said it was somebody that they saw there who
gave some general information when asked. And I think to allay any suspicions
or anything the name and the address of that person should be given. It doesn't
have to be published. Just something so counsel can call this person and talk to
this person-" Transcript of Jury Trial Proceedings, Day One (Pre-Voir Dire) at 5.
{¶93} The prosecutor provided the name of the informant to Leonard's trial
counsel. But instead of providing an address or phone number, the prosecutor
merely provided a street name. When Leonard's trial counsel complained, the
trial court offered to help him make contact with the informant. However, it
appears that nobody was able to contact the informant before the end of
Leonard's trial.
{114} During the three-day jury trial, the prosecution called Officer Hawk,
Officer Donnelly, Investigator Stone, and two other ODNR officers as witnesses.
Leonard called the BC{ analyst as a witness. After the trial, the jury found
Leonard guilty of cultivation of marihuana, a felony of the third degree.
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7
Athens App. No. 08CA24
{115} On July 23, 2008, Leonard filed a motion for a new trial pursuant to
CrimR. 33. However, the trial court disregarded Leonard's arguments under
Crim.R. 33(A)(2) and (3) because his mo6on did not include the necessary
supporting affidavits. See Crim.R. 33(C). Further, the trial court found that
Leonard's arguments under Crirn.R. 33(A)(1) were without merit. As a result, the
trial court denied Leonard's motion for a new trial.
{116} Leonard appeals his conviction, asserting the following three
assignments of error: I. "THE CONVICTION WAS BASED UPON INSUFFICIENT
EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE." 11. "APPELLANT WAS DENIED A FAIR TRIAL DUE TO
PROSECUTORIAL MISCONDUCT." And, Ill. "APPELLANT WAS DENIED A
FAIR TRIAL DUE TO THE INEFFECTIVE ASSISTANCE OF COUNSEL."
11.
{qi7} In his first assignment of error, Leonard contends (1) that there was
insufficient evidence to support his conviction and (2) that his conviction was
against the manifest weight of the evidence.
(118} Here, based on the jury's verdict, the trial court found Leonard guilty of
violating R.C. 2925.04(A) and R.C. 2925,04(C)(5)(d). R.C. 2925.04(A) states
that "[n]o person shall kncwingly cultivate marihuana or knowingly manufacture
or otherwise engage in any part of the production of a controlled substance"
R.C. 2925.01(F) defines the word "cuftivate" to include "planting, watering,
fertilizing, or tilling" rnarihuana. And R.C- 2925•04(C)(5)(d) provides: "If the
amount of marihuana involved equals or exceeds one thousand grams but is less
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Athens App. No. 08CA24
than five thousand grams, illegal cultivation of marihuana is a felony of the third
degree[.]"
8
A. Sufficiency of the Evidence
{119} When reviewing a case to determine if the record contains sufficient
evidence to support a criminal conviction, we must "examine the evidence
admitted at trial to determine whether such evidence, if believ$d, would convince
the average mind of the defendant's guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt." State v. Smith, Pickaway App.
No. 06CA7, 2007-Ohio-502, ¶33, citing State v. Jenks (1991), 61 Ohio St.3d 259,
paragraph two of the syllabus. See, also, Jackson V. Virginia (1979), 443 U.S.
307, 319.
{¶20} The sufficiency of the evidence test "raises a question of law and does
not allow us to weigh the evidence." Smith at ¶34, citing State v. Martin (1983),
20 Ohio App.3d 172, 175. instead, the sufficiency of the evidence test "'gives full
play to the responsibility of the trier of fact [ta fairly] resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts."' Smith at ¶34, quoting Jackson at 319_ This court will
"reserve the issues of the weight given to the evidence and the credibility of
witnesses for the trier of fact." Smith at ¶34, citing State v. Thomas (1982), 70
Ohio St.2d 79, 79-80; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one
of the syllabus.
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Athens App. No. 08CA249
{1(21} Here, we find sufficient evidence to support Leonard's conviction. On
September 21, 2005, ODNR officers observed Leonard drive into a secluded
area and walk towards the brushy area that contained the marihuana plants.
According to Officer Hawk's testimony, Leonard was carrying a blue jug at the
time. Importantly, on September 13, 2005, the ODNR's surveillance camera
recorded a white male also carrying a blue jug in the vicinity of the marihuana
plants. At the start of the September 21, 2005 live surveillance, the soil in the
blue marihuana plant containers appeared to be dry. Officer Hawk tesiified that
he saw the tops of the marihuana plants move and heard the sound of water
pouring after Leonard entered the brushy area. And after Leonard had emerged
from the brushy area, the soil in the containers was wet. Finally, after ordering
Leonard to the ground, ODNR officers found loose marihuana lying next to him.
{1iJ22} Regarding the weight of the marihuana plants, Inves#igator Stone
testified that he weighed the plants on September 26, 2005. According to
Investigator Stone's testimony, the first box of marihuana plants weighed 426.86
grams; the second box of marihuana plants weighed 1,361.10 grams; and the
third box weighed 1,079.29 grams- Therefore, according to tnvestigator Stone's
testimony, the total weight of the marihuana was 2,867.25 grams.
(1123} Consequently, after viewing the evidence in a light most favorable to
the state, we find that any rational trier of fact could have found the essential
elements of third-degree felony cultivation of marihuana proven beyond a
reasonable doubt.
B. Manifest Weight of the Evidence
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Athens App. No. 08CA2410
{124} "The legal concepts of sutTiciency of the evidence and weight of the
evidence are both quantitatively and qualitatively different." State v. Thompkins
(1997), 78 Ohio St.3d 380, at paragraph two of the syllabus. Sufficiency is a test
of the adequacy of the evidence, while "Iwleight of the evidence concerns 'the
inclination of the greater amount of credible evidence, offered in a tria(, to support
one side of the issue rather than the otherj.]"' State v. Sudderth, Lawrence App.
No. 07CA38, 2008-Ohio-5115, at ¶27, quoting Thompkins at 387.
{¶25} "Even when sufficient evidence supports a verdict, we may conclude
that the verdict is against the manifest weight of the evidence, because the test
under the manifest weight standard is much broader than that for sufficiency of
the evidence." Smith at ¶41. When determining whether a criminal conviction is
against the manifest weight of the evidence, we "will not reverse a conviction
where there is substantial evidence upon which the [trier of fact) could
reasonably conclude that all the elements of an offense have been proven
beyond a reasonable doubt." State v. Eskridge (1988), 38 Ohio St.3d 56,
paragraph two of the sy(fabus, See, also, Smith at ¶41. We "must review the
entire record, weigh the evidence and all reasonabte inferences, consider the
credibility of the witnesses, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial
granted." Smith at ¶41 , cfting State v. Garrow ( 1995), 103 Ohio App.3d 368,
370-371; Martin at 175. However, "[o]n the trial of a case, '°` the weight to be
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Athens App. No. OBGA2411
given the evidence and the credibility of the witnesses are primarity for the trier of
the facts." DeHass, at paragraph one of the syllabus.
{126} Here, we also find that Leonard's conviction is not against the manifest
weight of the evidence. In making this finding, we considered fhe same evidence
that we discussed in our resolution of Leonard's sufficiency of the evidence
challenge.
(127) Unquestionably, Leonard's cross-examination of the prosecution's
witnesses revealed several fiaws in ODNR's investigation. Most notably, ODNR
officers may not have kept appropriate photoiogs and apparently mislabeted
several photographs. Furthermore, Leonard's cross-examination of Officer Hawk
and ODNR Officer Robert Nelson called into question whether either officer
actually saw Leonard carrying the blue jug. However, in our view, these flaws do
not outweigh the following evidence against Leonard: (1) the prosecution's
eyewitness testirnony regarding Leonard's actions on September 21, 2005; (2)
the wet soil in the blue marihuana plant containers after Leonard left the brushy
area; and (3) the loose marihuana found lying next to Leonard,after ODNR
officers had arrested him.
{¶28} Finally, we must address an argument made by Leonard regarding the
weight of the marihuana plants- Leonard argues that Investigator Stone was not
qualified to weigh the marihuana plants and, as a result, the evidence did not
support a conviction for third-degree felony marihuana cultivation. Leonard
bases his argument on R.G. 2925.51, which provides: "Vn any criminal
prosecution for a violation of this chapter or Chapter 3719. oPthe Revised Code,
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Athens App- No. 08CA2412
a laboratory report from the bureau of criminal identification and investigation, a
laboratory operated by another law enforcement agency, or a laboratory
established by or under the authority of an institution of higher education that has
its main campus in this state and that is accredited by tne association of
American universities or the north central association of colleges and secondary
schools, primarily for the purpose of providing scientific services to law
enforcement agencies and signed by the person performing the analysis, stating
that the substance that is the basis of the alleged offense has been weighed and
analyzed and stating the findings as to the content, weight, and identity of the
substance and that it contains any amount of a controlled substance and the
number and description of unit dosages, is prima-facie evidence of the content,
identity, and weight or the existence and number of unit dosages of the
substance." Leonard contends that Investigator Stone was incompetent to testify
as to the weight of the marihuana plants because investigator Stone did not meet
the requirements of R.C. 2925.51.
{129} However, we believe that Leonard has misinterprete^ R.C- 2925.61.
We agree with the state's argument. Namely, we do not believe that R.C.
2925.51 establishes standards that a witness must meet in order to competently
testify about the weight of marihuana plants. Rather, R.G. 2926;51 merely
establishes how a laboratory report may serve as prima facie evidence of the
content, weight, and identity of a controlled substance. Here, the state did not
attempt to introduce a report from Investigator Stone as prima facie evidence of
the weight of the marihuana. Instead, the state called Investigator Stone as a
DEC-04-200.9 14:59 FROM-ATHENS CO CLERK OF COURTS
Athens App. No. 08CA2413
witness to testify about the weight of the marihuana and his methods for
obtaining that weight. Therefore, the requirements of R.C. 2925.51 do not apply
to the present case.
{130} Next, we will address the discrepancy in the weight of the marihuana
plants. The BCI analyst testified that she weighed the marihuana plants on May
16, 2007. According to her report (which meets the requirements of R.C.
2925.51), the marihuana weighed 747.1 grams. Because of this, Leonard argues
that the evidence supports only a conviction for fifth-degree marihuana cultivation
pursuant to R.C. 2925.04(C)(5)(c), which provides: "If the amount of marihuana
involved equals or exceeds two hundred grams but is less than one thousand
grams, illegal cultivation of marihuana is a felony of the fifth degree[.]"
{731} Here, we do not believe that the jury created a manifest miscarriage of
justice by convicting Leonard under R.C. 2925.04(C)(5)(d) (a third-degree felony)
instead of R.C. 2925.04(C)(5)(c) (a fifth-degree felony). Leonard had the
opportunity to cross-examine Investigator Stone about his methods for weighing
the marihuana and his experience with marihuana plants. Therefore, the jury
was in the best position to determine whether the weight obtained by Investigator
Stone was credible. Further, we note that other Ohio courts have agreed with
the conclusion that drugs "can be weighed as received and ha[ve] upheld
convictions of higher degrees in cases where later testing of [the drugs] showed
a lower weight." State v. Jones, Mahoning App. No. 06 MA 17, 2007-Ohio-7200,
at ¶25, citing State v. Burra!(, Cuyahoga App. No. 36702, 2006-Ohio-2593, at gj3.
See, also, State v. Kuntz (Oct_ 2, 2001), Ross. App. No. 01CA2604, 2001-Ohio-
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Athens App. No. OBCA2614
2591; State v. Hunter (Aug. 19, 1999), Licking App. No. 99CA0036. And
although Invest^ . gator Stone obtained a tower weight when he weighed the
marihuana a second time, he agreed that the marihuana had "dried up quite a
bit" from Septerpber 26, 2005 through August 28, 2007.
{132} We b^lieve that our decision in Kuntz is relevant to the present case.
in Kuntz, the dqendant's marihuana weighed over 200 grams. at the time of the
offense. Howeyer, the marihuana weighed less than 200 grams on the day of
the defendant'slltdal. in resolving a manifest weight of the eviqience challenge,
this court uphel^l the defendant's conviction for possession of inarijuana weighing
over two hundrql d grams but less than one thousand grams. A police officer
test'rfied that, ovier time, marihuana loses weight because of dehydration. And
this court foundlthat testimony to be an "altemate explanation to the theory that
the scale [was] ^naccurate or unreliable." Kuntz. Implicit in th^^t finding is our
belief that law e'r forcement officials need not let marihuana "dry out" before
weighing it. SeC also, Jones at ¶29 ("Although the crack eoc^ine in count four
may not have ben as dry as it will be in the future " the lab need not allow the
crack to dry at 0."). As a result, we cannot conclude that the jury clearly iost its
way in resolvinq the conflict in the evidence between a weight'of 2,657.25 grams
(a third-degree felony) and a weight of 747.1 grams (a flfth-degree felony).
(133) After review;ng the record, we find substantial evidence upon which the
jury could have reasonably concluded that all the e{ements of third-degree felony
cultivation of rnarihuana were proven beyond a reasonable doubt. Therefore, we
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15Athens App. No. oBCA24
cannot find that the jury, as the trier of fact, clearly lost its way and created such
a manifest miscarriage of justice that Leonard's conviction must be reversed.
(¶34) Accordingly, we overrule Leonard's first assignment of error.
Ill.
{436} In his ^econd assignment of error, Leonard contends that the
prosecutoes mis^onduct denied Leonard a fair trial. First, Leonard claims that
the prosecutor fa,iled to provide Leonard with timely discovery. Leonard further
argues that the p . rosecutor improperly and repeatedly referred to the
"suppression he4ring° during the trial,
{136} The te'st for prosecutorial misconduot is whether the conduct was
improper and, if so, whether the rights of the accused were materially prejudiced.
State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, at ¶45, citing State v. Smith
(1984),14 Ohio St.3d 13, 14; State v_ Givens, Washington App. No, 07CA19,
2008-Ohio-1202; at ¶28. "7he'conduct of a prosecuting attorney during trial
cannot be grounds for error unless the conduct deprives the defendant of a fair
trial."' Givensat ¶28, quoting State v. Gest (1995), 108 Ohio App.3d 248, 257_
See, also, State v. Keenan (1993), 66 Ohio St.3d 402, 405; State v. Apanovitch
(1987), 33 Ohio Pt.3d 19, 24. "Prosecutorial misconduct constitutes reversible
error only in rard instances-" State v. Edgington, Ross App. No. 05CA2866,
2006-Ohio-3712; at ¶18, citing Keenan at 406. The 'touchstone of analysis
is the fairness of the trial, not the culpability of the prosecutor. The
Constitution does not guarantee an 'error free, perfect trial: ' Gest at 257
(citations omitted); Edgington at ¶18.
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Athens App. No. 08CA2416
A. The Failure to Provide Timely Discovery
{1[37} Leonard argues that the prosecutor engaged in misconduct by failing
to provide timely:discovery. As part of this argument, Leonard contends that the
prosecutor failed to provide timely discovery of relevant videotapes and an
evidence report.. However, Leonard makes no attempt to explain how he would
have benefited fqom the timely disclosure of these items. Therefore, Leonard
cannot demonstr,ate that the prosecution's failure to provide timely discovery of
the videotapes or the evidence report resulted in either prejudice or an unfair
trial. See, e.g., ^tate v. Chatman, Franklin App. No. OBAP-803, 2009-Ohio-2504,
at ¶55 ("[WJithout any evidence, we are left only With speculation and conjecture,
and cannot find prosecutorial misconduct, much less prejudice to the defendant,
based on the same."). Aecordingfy, we cannot find misconduct based on the
prosecutor's failure to provide timely discovery of the videotapes and the
evidence report.
{¶38} Leonard also contends that the prosecutor engaged in misconduct by
failing to reveal the identity of the confidential informant. Even though the trial
court ordered a Ijmited disclosure of the informant's identity just before trial,
Leonard has not.demonstrated that the prosecutor was required to reveal the
identity of the coofidential informant at any time. "Courts have lield consistently
that where the informant was not an active participant in the erOinal activity, but
only a tipster, disclosure is not required[.]" State v. Parsons (1989), 64 Ohio
App.3d 63, 67-68. See, also, State v. 8ays, 87 Ohio St.3d 15, 25, 1999-Ohio-
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17Athens App. No. o8CA24
216- Here, there is no evidence that the confidentia( informant was an active
participant in theicultivation of marihuana•
{¶39} "Addftionally, it is clear that the burden rests with defendant to
establish the need for disclosure. Something more than speculation about
the possible usetu{ness of an informant's testimony is required, The mere
possibility that th'e informer might somehow be of some assistance in preparing
the case is not spfficient to satisfy the test that the testimony of the informant
would he helpful or beneficial to the accused in preparing or making a defense to
criminal charges." Parsonsat 69 (citations omitted). Here, Leonard freely admits
that "whether thq defendant would have benefited from the information sought
[the identity of th'p confidential informant] cannot be demonstrafed,° Brief of
Appellant at 18.
{140} Forthe foregoing reasons, we cannotfind miscondupt based on the
prosecutor's faifure to reveal the identity of the confidential infdrrnant.
B. References to the suppression Hearing
{141} We also find that the prosecutor's references to the suppression
hearing do not vJarrant reversal. The prosecutor mentioned the suppression
hearing twice dr{ring the trial. The state claims that "[t]he second reference was
objected to by the defense and sustained." Brief of Appellee $tate of Ohio at 11.
However, we do: not agree with the state's description of this soquence of events.
The transcript reveals the following exchange between the prdsecutor and Officer
Hawk:
(1142) "Q: (Inaudible) suppression hearing in October of 2407, weren't you?
p^C°04^20€9 15:00 FROM-ATHENS CO CLERK OF COURTS
AthenS App. No, oeCA24
{¶43}
{144}
{¶45}
{¶4s}
(147}
{'¶48}
Tllwuuaca^u^
A: Yes.
Q: And that had to do withstatements, didn't it?
A: Par4ion7
BY [LEONARD'S TRIAL COUNSEL]:Objection.
Q: Th^ suppression.
BY [LEONARD'S TRIAL COUNSEL]: Objection.
18
{1149} BY THE JUDGE: Basis, counsel?9
{¶50}BY [LEONARD'S TRIAL COUNSELI Can we appro4c11
{1151} BY THE JUDGE: Yes you can.
{¶52} BENCH CONFERENCE
¶53} BY [LEONARD'S TRIAL COUNSEL]:(Inaudible) statements that were
{
being made (inaudible) court issued an order as to what was suppressed. I think
it's highly inappropriate now to infer (inaudible) statements were an issue and
rate in the presence of the jury. Thank you.to be able to elabothat he's not going
A ? _
{lf5 }{¶55} BY THE JUDGE: LLeonard's trial counsel] has been very careful to
never said what kind of a hearing. You havealways refer to itas a hearing. He
referred to it as what kind of hearing itwas•!t'he had made arj objection to that
don'tI would haye sustained
his objection because1 t think the jury needs fo
know that-
{,V55} BY [fME PROSECUTOR]: Okay.
DEC°C4-2D"9 15:00 FROWATHENS CO CLERK OF COURTS
Athens App. No. 08GA24
+174059232ez I-VG4 ^w+ dv^
19
(157) BY THE JUDGE: And theydon't need to know what the subject was for
that hearing. Objection sustained. " Day Two Transcript at 159-160 (emphasis
added).
(158) easec{ on the trial transcript, we do not believe that Leonard's trial
counsel objectec^ to the mere mention of the suppression hearing. instead, we
believe that Leonard's trial counsel objected to the prosecutor's reference to the
subject matferof the suppression hearing; that is, Leonard's suppressed
statement about the marihuana. As a result, "[e]ven if the prosecutor's remark
[about the subjej;t matter of the suppression hearing] is considered misconduct, it
lacks prejudicialjeffectwarranting reversal because the court 5ustained
[Leonard's] objection." State v. Carter, Mahoning App. No. 06-MA-187, 2009-
Ohio-933, at ¶89, citing State v. Aloling, 98 Ohio St.3d 44, 200^-Ohio-7044, at
¶94.
{¶59} Contrary to the state's assertions, we believe that Leanard's trial
counsel failed tq object to the prosecutoPs second reference to the suppression
hearing. For that reason, Leonard has forfeited all but plain error on this issue.
See State v_ tNiNiams,79 Ohio St.3d 1, 12 (applying the plain error standard to a
prosecutorial misconduct claim).
{¶S0} Pursu;ant to Crim.R. 52(B), we may notice plain errors or defects
affecting substahtial rights. "Inherent in the rule are three limits piaced on
reviewing courts for correcting plain error." State v.Payne, 114 Ohio St.3d 602,
2007-Ohio..4642, at 115. "First, there must be an error, i.e., a deviation from the
legal rule. "``$econd, the error must be plain. To be 'plain' v,aithin the meaning
DEC-04-20n9 15:00 FROM-ATHENS CO CLERK OF COURTS b17405'dZ304 1-VGG I -vvv -
20,
Athens App, No. 08CA24
of Crim.R. 52(B),r an error must be an 'obvious' defect in the tnai proceedings.
• Third, the error Imust have affected 'substantial rights: We have interpreted this
aspect of the rul to mean that the trial court's error must have:affected the
outcome of the tr<ial." Id. at ¶16, quoting State v. Sarnes(2002), 94 Ohio St.3d
21, 27, (omissiols in original). We will notice plain error "only to prevent a
manifest miscarrlage of jusGce ° Statev. Long (1978), 53 Ohio, St.2d 91,
paragraph three bf syllabus_ "prosecutorial misconduct rises to the level of plain
error if it is clear the defendant would not have been convicted in the absence of
the improper cor(tments" State v. Tumbleson (1995), 105 Ohio App•3d 693, 700;
SfaPe v. Olvera-Gulllen,Butler App. No, cA2007-05-118, 2008}Ohio-5416, at
iassignment of etror.
¶36.(¶61} Here, Ve have already found that substantial evidence supports
do not believe that the Nry convictedLeonard's conviqUon• Therefore, we
e suppression hearingLeonard becauso of the prosecutor's references to th. In
other words, we!beheve that Leonard would have been convicqed even if the
prosecutor had never referred to the suppression hea(ng during the trial. And as
a result, those roferences do not constitute plain error.
tI62} Accordingly, for the foregoing reasons, we overrule Leonard's second
iV.
1163) In his Rhird assignment of error, Leonard contends that he received
ineffectiva assistance of counsel for the following reasons: Leonard's trial
d testicounsel (1) faifetl te object to improper statements anmony; and (2) filed
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21Athens App- No. 08GA24
ineffective motions regarding the marihuana evidence, the confidential informant,
and Leonard's r^quest for a new trial.
{164} "'In 06io, a properly licensed attorney is presumed competent and the
appellant bears khe burden to establish counsel's ineffectiveness."' State v.
Countryman,Wloshington App. No. 08CA12, 2008-Ohio-6700,`at¶20, quoting
State v. Wright,Washington App. No. O0GA39, 2001-Ohio-2473; State v.
Hamblin (1986),i37 Ohio St.3d 153, 155-56, cert. den. Hamblin v. Ohio (1986)
488 U_S. 975. T,o secure reversal for the ineffective assistance of counsel, one
must show two things: (1) "that counsel's performance was deficient* *'which
"requires showinjg that counsel made errors so serious that coWnsel was not
functioning as ttye 'counsel' guaranteed the defendant by the Sixth
Amendment(;]" and (2) "that the deficient performance prejudiqed the defense' °
°[,l" which "requiti°es showing that counsel's errors were so serious as to deprive
the defendant oF a fair trial, a trial whose result is reliable." Strickland v.
Washington (1984), 466 U.S. 668, 687. See, also, Countrymap at ¶20• "Failure
to satisfy either yrong is fatal as the accused's burden requires proof of both
elements." Stat9 v. Hall, Adams App. No. 07GA837, 2007-Ohr-6091, at ¶11,
citing State v. D^umrnond, 111 Ohio St.3d 14, 20o6-Ohio-5084, at ¶205.
A. F^iling to Object to Improper Statements and TestimonY
1165} Leonard claims ineffective assistance of counsel because his trial
counsel failed tq object to statements and testimony regardingithe suppression
hearing. Leonard also claims that his trial counsel should have objected to the
following tesfimony from officer Donnelly: "Well Mr. Leonard kind of disappeared
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22Athens App. No. 08CA24
and we weren't in court for quite a white. So there was nearly a two Year
window that Mr. Leonard, or a long period of time, I can't tell you exactly, but Mr•
Leonard was novkhere to be found." Transcript of Jury Tnat Proceedings Day
One (Post-Voir C^ire) at 64-65. Leonard argues that, becsuse of these
statements, °[tjh^ jurors were free to develop a picture of the defendant as
technical obstrup'tionist [sic] who was on the lam for an extended period of
time[1" Brief of Appellant at 22.
{¶66} First, t}eonard has not overcome the presumption that his trial
counsel's faflure ao object to the relevant statements and testimony might be
considered sound trial strategy, "When considering whether tr+al counsel's
representation aMounts to deficient performance, 'a court must indulge a strong
presumption thatj counsel's conduct falls within the wide range of reasonable
professional assistance.' Thus, 'the defendant must overcqme the
presumption tha>j, under the circumstances, the chatlenged action might be
considered sounp trial strategy."' State v. Dickess (2008), 174Ohio App.3d 658,
2008-Ohio-39, ai ¶61, quoting Strickland at 689.
{167} Here, Leonard's "[c]ounsel r.ould reasonably have decided against
raising an objection for fear that an objection would only call the jury's
attention to the [suppression hearing.]" State v. Patrick (Sept. 8, 1994),
Lawrence App. No• 94GA02. See, also, State v. Dixon, 152 Ohio App.3d 760,
2003-Ohio-2550; at $42-43; State v. Zack (June 14, 2000), Looin App. Nos.
99CA007321, 98CA007270; State v. Lawson (June 4, 1990), Clermont App. No.
CA88-05-044. This is especially true because Leonard's trial qounsel did object
p5C °J4-2Qp9 16:p1 FROM-ATHENS CO CLERK OF COURTS
23
Athens App. No. 0BCA24
to the mention of.the subject matterof the suppression hearing. Therefore, it is
reasonable to eonclude that, as a matter of trial strategy, Leonard's trial counsel
differentiated betvveen references to the subject matter of the suppression
hearing and the rnere mention of the suppression hearing itself. Counsel may
have reasonablyifound that it was best not to call attention to tYje fact that a
suppression hea(ing took place, but felt compelled to object whan the prosecutor
went further and imentioned Leonard's statements.
(168) t=urthepnore, Leonard has not demonstrated that his trial counsel's
failure to object to the relevant statements deprived Leonard of; a fair trial.
Leonard claims t^atthe jurors were free to form a picture of LeQnard as an
"obstructionist who was on the lam, but we can only speculate, as to whether the
° eculation regarding the prejudicialjurors actually formed such a picture. Sp
effects of counsal's performance will not establish ineffective asistance of
counsel:' State v. Cromartre,Medina App. No. 06CA0107-M, ^008-Ohio-273, at
qj25, citing Stateiv. Downing, Summit App.No. 22012, 2004-Ohio-5952, at ¶27.
S. lneffective Nlotions
(Iffgg) Leonafd also argues that his trial counsel filed ineffeptive motions.
First, Leonardclaims ineffective assistance of counsel based an the motion to
exclude the marihuana evidEnce. Leonard contends that his trial counsel
ght to exclude the evidence of weight offered l by Linvestigator" have soushouldStone] on the grbunds that he did not qualify as an analyst u+r [R.C.] 2925•51
and he would not otherwise qualify as an expert under F-vidence Rule702." Srief
of Appellant at 20-21 ,t/ve have already found that Leonard has misinterpreted
6eC 34 20-09 15:01 FROM-ATHENS CO CLERK OF COURTS
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R C 2925,51, T^ e qualifications mentionedin R.C. 2925-51
do not apply to the
attepresent case because the state did not mpt to introduce a rePort from
Investigator Stonje as prima facie evidence of the weight of the {narihuana.
^not find ineffective assistance of counsel for reasons related toTherefore, we ca l
R.C.2925.51. i(170) Similajly, we cannot find ineffective assistan^ of counsel for reasons
related to Evid.Ri 702. In relevant pat, Evid.R- 702 provides: "A witness may
testimony either relates to matters beyondtestify as an exp?rt if the witness'
the knowledge ol experience possessed by lay persons or dispels a
misconception cbmmon among lay persons[.]° Here, we do not believe that
rt^'s testimony was beyond the knowledge or e^perience of theInvestigatar Stoaverage lay Pembn• Although most people have probably never weighed a
marihuana ptant, the average person (1) understands the concept of weight andCourt of
(2) has weighed omething during their lives. Additionally, the Supreme
'deterr^ ined that the state has no burden to separate!any portion oftheOhio has
of statutory dnug'marijuana ptant v^hen determining weight for purposes
offenses' State;v. Davis (1985), 16 Ohio St.3d 34, 34, citingState v. 1Nolpe
5^, Therefore, a Person need not h^ve sp^iatized(1984), 11 Ohio ^t.3d 50,
knowtedge of m$rihuana to weigh a marihuana plant; e.g., differen5ating
hin a marihuana plant requiresbetween stalks, I^aves, and buds. Rather, we19 g recording
nothing more th^n (1) placing the plant on an accurate scale amd (2)
the correct weight. Such an act is within the experience of the average iay
person-
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{1179} We do; not believe that weighing marihuana plants requires any
"specialized knoydledge, skill, experience, training, or education[.]" Evid.R.
702(g). And any motion to exclude Investigator Stone's testimpny based on
Evid.R. 702 wouid have been meritless- "Defense counsel's falilure to raise
meritless issuesidoes not constitute ineffective assistance of counset."Stat® v.
Ross, Ross. App- No. 04CA2780, 2005-Dhio-1888, at ¶9. See, also,State v.
Cose, WashingQon App. No. 03CA30, 2004-0hio-1764, at ¶34.
{172} Leonalyd also claims ineffective assistance of counsel because his trial
counsel failed ta include sufficient information in the motion to disclose the
confidential informant's identity. As we discussed in the resolution of Leonard's
second assignmjent of error, Leonard freely admits that he dods not know
whether he would have benefited from knowing the identity of the confidential
informant. Therefore, Leonard can only speculate as to whether he was
prejudiced by hio trial counsel's performance. Again, mere speculation is not
enough to satisfiy the second prong of the Stticklartd test. See Crnmarti® at ¶25.
{173} And fqnally, Leonard claims ineffective assistance ofi counsel because
his mafion for anew trial did not include the necessary supporting affidavits, in
relevant part, Leonard's new trial motion made arguments under Crim. R.
33(A)(2) and (3). Crim.R. 33(C) provides: 'The causes enumd:rated in subsection
(A)(2) and (3) ri^ust be sustained by affidavit showing their truth(.]" Leonard's trial
counsel did notisuhmitthe required affidavits. Therefore, we agree that
Leonard's trial counsel erred by failing to follow the rules of criminal procedure.
Nevertheless, Leonard has not demonstrated that his new trial motion would
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Athens App. No. 08CA2426
have been meritorious if Leonard's trial counsel had included the required
affidavits. Without such a showing, we cannot find that his trial counsel's error
resulted in mater•ial prejudice. Furthermore, Leonard's new trial motion contained
the same arguments that we have rejected in this appeal; i.e., that Leonard
suffered prejudicp as a result of misconduct and surprise. Therefore, we believe
that Leonard's n°^ I otion for a new trial would have been merittess, even if the
motion had incluoed the necessary affidavits.
{1[74} Accordingly, for the foregoing reasons, we overrule Leonard's third
assignment of edror. Having overruled all of Leonarct's assignments of error, we
affirm the judgment of the trial court.
JUDGMENT AFFIRMEq.
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Athens App. No. OBCA2427
Harsha, J., Concurring:
{175} Based upon the specific facts in this case, I concur in the principal
opinion's conclusion that Leonard's convic6on for cuitivation of marihuana as a
felony of the thirdi degree is supported by the weight of the evidence. Initially, it is
apparent that Leqnard has benefited from the wildlife officer's decision to
separate the leaves and buds of the plants from the stalks before weighing them.
In State v. Wotpe; (1984), 11 Ohio St.3d 50, the Supreme Court.of Ohio held in a
per curiam opiniop that in a prosecution for trafficking marihuana, the State had
no burden of sep^rafing any statutorily excluded portions of the plant from the
quantity seized bofore weighing it. Id, at 52. The court reviewed the statutory
definition of marihuana found in R.C. 3719.01(Q):
"Marijuana° means all parts of any plant of the genus cannabis,whether growing or not,
Even though the definition went on to exclude mature stalks, sterilized seeds,
and legitimately processed derivatives of the plant, the court held those materials
need not be excluded from the weight of the plant unless they ttad already been
separated (for legitimate use) from the plant at the time of seizure. In other
words, the exclusion of mature stalks, sterilized seeds and by-products only
applies where thQ substance consists solely of the excluded materials. As a
consequence, the State has no burden to separate any statutorily excluded
portions of the piont from the quantity of marihuana seized frorrt a suspect. !d.
This interpretatiom should also apply in cuitivation cases like the one before us.
Thus, the weight could have included the stalks that the officer chose not to use.
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{1176} More important, however, is Leonard's implicit assettion that the "dry
weight" is the only proper measure of the quantity because the marihuana must
be usable or suitqbie for consumption before it is measured. I see nothing in the
statute's definition that supports this proposition. Moreover, it i$ reasonable to
conclude that the moisture of the wet marihuana plant comes within the definition
of marihuana foupd in the statute because water is a natural component of the
plant. For a more detailed discussion of the issue of dry weight verses wet
weight, see Nortti Carotina v. Gonzales (2004), 596 S.E.2d 297, affirmed without
opinion in State u. Gonzales (2005), 359 N.C. 420, 611 S.E.2d 832.
{¶77} However, I do recognize some concern over the inconsistent protocols
used by different'law enforcement agencies to determine the weight of
marihuana. It seems somewhat arbitrary that one defendant could get charged
with an elevated felony because an agency chose to use a "wet weight," while
another defendant with an identical quantity of cannabis could face a lesser
charge because a different agency used a"dry weight" measurement. Perhaps a
fegisfatively or administratively mandated protocol is necessaryto avoid unequal
arbitrary application of the statute. However, that question is not presently before
us.
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Athens App- No. 08CA24 29
JUDGMENT EtdT
It is ordered that the JUDGMENT BE AFFIRMED and Appellant pay thecosts herein taxed.
The Court!finds there were reasonable grounds for this appeal.
It is ordergd that a special mandate issue out of this Court directing theAthens County Common Pleas Court to carry this judgment into execution.
A certified icopy of this entry shall constitute the mandate! pursuant to Rule27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J.: Concurs in Judgment and Opinion with Opinion.McFarland, J.: Concurs in Judgment Only.
For the Court
BY: f `"`z-.
Roger L. Kline, P'sesiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constit?utes a finaljudgment entry ond the time period for further appeal commences from thedate of filing with the clerk.
