State v. Shaw

[[COURTLISTENER_SUBOPINION {"id":"10752882","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
[Cite as State v. Shaw,
2024-Ohio-5637
.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,
                                                          CASE NO. 1-23-54
         PLAINTIFF-APPELLEE,

    v.

REBEKAH A. SHAW,                                          OPINION

         DEFENDANT-APPELLANT.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2022 0110

                                      Judgment Affirmed

                           Date of Decision: December 2, 2024



APPEARANCES:

         Brian A. Smith for Appellant

         John R. Willamowski, Jr. for Appellee
Case No. 1-23-54




ZIMMERMAN, J.

       {¶1} Defendant-appellant, Rebekah A. Shaw (“Shaw”), appeals the August

3, 2023 judgment entry of sentence of the Allen County Court of Common Pleas.

For the reasons that follow, we affirm.

       {¶2} This case stems from an August 28, 2021 incident during which law

enforcement recovered 24 grams of methamphetamine following the arrest of

Timothy Perkins (“Perkins”)—a homeless man who was living in Shaw’s detached

garage. Perkins was allegedly selling methamphetamine on Shaw’s behalf in

exchange for drugs. Then, on August 28, 2021, Perkins stole the methamphetamine

along with money and marijuana from Shaw while she was asleep.

       {¶3} Upon discovering the missing methamphetamine, Shaw sent

threatening text messages to Perkins in an attempt to retrieve the methamphetamine.

Eventually, Perkins returned to Shaw’s residence, where he was assaulted in the

driveway for the theft. When law enforcement arrived, the altercation dispersed.

However, Shaw told law enforcement that the methamphetamine was not hers and

that Perkins was assaulted because he attempted to sexually abuse her ten-year-old

daughter, D.R.

       {¶4} On April 14, 2022, the Allen County Grand Jury indicted Shaw on a

single count of aggravated possession of drugs in violation of R.C. 2925.11(A),



                                          -2-
Case No. 1-23-54


(C)(1)(c), a second-degree felony. On February 23, 2023, Shaw filed a written plea

of not guilty.

       {¶5} On April 27, 2023, Shaw filed a motion in limine requesting that the

trial court preclude “[s]tatments made by Defendant’s 10 year old daughter to

Ashley Maag, purported to have been overheard by Allen County Children Services

case worker.” (Doc. No. 21).

       {¶6} The case proceeded to a jury trial on June 20-22, 2023. On June 22,

2023, the jury found Shaw guilty of the count alleged in the indictment. On August

3, 2023, the trial court sentenced Shaw to a minimum term of four years in prison

to a maximum term of six years in prison. (Doc. No. 69).

       {¶7} Shaw filed her notice of appeal on August 17, 2023, and raises four

assignments of error for our review. For ease of our discussion, we will begin by

addressing Shaw’s fourth assignment of error, followed by her second assignment

of error, and then we will address her third assignment of error, followed by her first

assignment of error.

                           Fourth Assignment of Error

       Because the trial court abused its discretion and acted in an
       arbitrary, unreasonable, and capricious manner, and Appellant
       was materially prejudiced as a result, the trial court abused its
       discretion in declaring Ashley Maag to be a hostile witness
       pursuant to Evid.R. 611(C).




                                         -3-
Case No. 1-23-54


       {¶8} In her fourth assignment of error, Shaw argues that the trial court abused

its discretion by declaring a State’s witness (and Shaw’s sister), Ashley Maag

(“Maag”), as a hostile witness under Evid.R. 611(C). Specifically, Shaw argues that

Maag did not meet the criteria for a hostile witness, as she was not aligned with

Shaw and did not make any contradictory statements.

                                Standard of Review

       {¶9} “‘The determination of whether a witness is hostile or adverse is

entrusted to the sound discretion of the trial court.’” State v. Spear,
2017-Ohio-169,

¶ 25
(9th Dist.), quoting State v. Rutkowski,
1995 WL 324085
, *2 (9th Dist. May

31, 1995). “Consequently, we ‘review a trial court’s application of [Evid.R. 611(C)]

for an abuse of discretion.’”
Id.,
quoting State v. McKelton,
2016-Ohio-5735, ¶ 150
.

Accord State v. McBeth,
2019-Ohio-59, ¶ 22
(3d Dist.). An abuse of discretion

implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State

v. Adams,
62 Ohio St.2d 151, 157-158
(1980).

                                      Analysis

       {¶10} “The Ohio Rules of Evidence grant trial courts broad discretion to

‘exercise reasonable control over the mode and order of interrogating witnesses so

as to . . . make the interrogation and presentation effective for the ascertainment of

the truth . . . .”
McBeth at ¶ 19
, quoting Evid.R. 611(A). “Evid.R. 611(C) generally

prohibits the use of leading questions on direct examination.”
McKelton at ¶ 150
.



                                         -4-
Case No. 1-23-54


“A trial court may permit the use of leading questions, however, when “a party calls

a hostile witness, an adverse party, or a witness identified with an adverse party . . .

.” Evid.R. 611(C). “‘A leading question has been defined as a question that

suggests a particular answer by the form or substance of the inquiry.’” State v.

Messenger,
2010-Ohio-479, ¶ 54
(3d Dist.), quoting Haley v. Mason & Dixon Lines,

Inc.,
1992 WL 205798
, *5 (1st Dist. Aug. 26, 1992). The “rule gives the court

discretion to allow counsel to proceed with leading questions so that, in effect, the

direct examination becomes a cross-examination by leading questions.” State v.

Johnson,
2015-Ohio-5491, ¶ 34
(2d Dist.).

       {¶11} “‘A witness who has a strong affinity to the defendant is a witness

“identified with an adverse party.”’” Spear at ¶ 24, quoting State v. White,
1995

WL 338423
, *4 (9th Dist. June 7, 1995). “‘A hostile witness is one who is so evasive

or uncooperative on examination that his testimony is impeded.’”
McKelton at ¶

152
, quoting Weissenberger, Ohio Evidence: 1991 Courtroom Manual 170 (1991).

See also
Johnson at ¶ 33
(“A ‘hostile witness’ is one who surprises the calling party

at trial by turning against that party while testifying.”).

       {¶12} “A ‘hostile witness’ is addressed under Evid.R. 607, which states that

the ‘credibility of a witness may be attacked by any party except that the credibility

of a witness may be attacked by the party calling the witness by means of a prior

inconsistent statement only upon a showing of surprise and affirmative damage.’”



                                           -5-
Case No. 1-23-54


State v. Gutierrez,
2022-Ohio-1692, ¶ 18
(2d Dist.), quoting Evid.R. 607. “For

purposes of the rule, a party demonstrates surprise when a witness’s trial testimony

is ‘materially inconsistent’ with a prior statement and counsel did not have reason

to believe that the witness would repudiate the prior statement.”
Id.
“‘“Affirmative

damage” exists when a witness’s trial testimony contradicts, denies, or harms the

case of the party who called that witness; it does not exist when a witness denies

knowledge or fails to remember.’”
Id.,
quoting
Johnson at ¶ 33
.

       {¶13} In this case, the State requested that the trial court declare Maag to be

a hostile witness as a result of its surprise at her testimony and the affirmative

damage caused by her testimony to the State’s trial position. Assessing whether

Maag was a hostile witness, the State asserted to the trial court that Maag initially

“spoke very freely” to Stacie Powell (“Powell”), a caseworker with Allen County

Children Services, “about everything that she was told by” D.R. since “she didn’t

think her name was going to be mentioned . . . .” (June 21, 2023 Tr. at 301). The

State represented that Maag then “backed off [her] initial statement” when talking

with Detective Jesse Harrod (“Detective Harrod”) of the Lima Police Department,

who investigated the allegation that Perkins attempted to sexually assault D.R. (Id.

at 302). Thereafter, the State met with Maag to prepare for trial and “she again went

to this story that was in the initial report from [Powell] that [D.R.] said nothing had

happened and that she had to go along with the story that mommy and the brothers



                                          -6-
Case No. 1-23-54


she said had told her or mommy would go to jail.” (Id. at 303). Then, “Maag

testified to things that are in direct contradiction to both the report of what [she] told

[Powell] . . . as well as what [she] told” the State during trial preparations. (Id. at

298).

        {¶14} Ultimately, the trial court declared Maag to be a hostile witness after

finding inconsistencies between her testimony and her prior statements, which were

“a surprise to the State” and “directly pertain[ed] to the damage to their case . . . .”

(Id. at 308). Following the trial court’s declaration, the State conducted its re-direct

examination of Maag using leading questions and impeached her testimony through

Powell’s testimony with Maag’s prior inconsistent statement.

        {¶15} On Appeal, Shaw argues that the trial court abused its discretion by

designating Maag as a hostile witness since she “did not meet the criteria for a

‘hostile witness’ under Evid.R. 611(C) because she was not ‘aligned with an

opposing party,’ in this case Shaw.” (Appellant’s Brief at 22). Shaw’s argument is

misplaced. Shaw confuses the legal concept of hostile and adverse witnesses.

Compare State v. Darkenwald,
2004-Ohio-2693, ¶ 13
(8th Dist.) with In re K.S.,
2012-Ohio-2388, ¶ 15-16
(8th Dist.).

        {¶16} Instead, based on our review of the facts presented, we conclude that

the trial court did not abuse its discretion by declaring Maag to be a hostile witness.

Notwithstanding the inconsistent statements that Maag made to Powell and



                                           -7-
Case No. 1-23-54


Detective Harrod, Maag’s statement to the State during trial preparation (a few days

before trial commenced) was materially different from her trial testimony.

Consequently, it is apparent to us that Maag’s contradictory testimony surprised the

State and hurt its case. Indeed, based on its discussion with Maag days before trial

began, the State did not have reason to believe that Maag would recant when she

was called to testify. See State v. Moorer,
2016-Ohio-7679, ¶ 16
(9th Dist.) (noting

that the State was surprised by the witness’s testimony after he “had reviewed that

statement with the state in close proximity to trial”). Therefore, the trial court did

not abuse its discretion by declaring Maag to be a hostile witness.

       {¶17} Shaw’s fourth assignment of error is overruled.

                           Second Assignment of Error

       Because the performance of Appellant’s trial counsel fell below
       an objective standard of reasonable representation and
       prejudiced Appellant, the failure of Appellant’s trial counsel to
       renew Appellant’s objection, made in Appellant’s Motion in
       Limine, to hearsay testimony from Stacie Powell as to statements
       allegedly made by D.R. to Ashley Maag, constituted ineffective
       assistance of counsel, in violation of Appellant’s right to counsel
       under the Sixth and Fourteenth Amendments to the United States
       Constitution and Article I, Section 10 of the Ohio Constitution.

       {¶18} In her second assignment of error, Shaw argues her trial counsel was

ineffective for failing to object to impermissible hearsay evidence. Specifically,

Shaw argues that her trial counsel should have objected to Powell’s testimony that

she overheard D.R. state “that she had been told to claim that Perkins had sexually



                                         -8-
Case No. 1-23-54


abused her, or else Shaw would be going to jail ‘for drugs in the house.’”

(Appellant’s Brief at 12, quoting June 21, 2023 Tr. at 340).


                                 Standard of Review

       {¶19} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole,
92 Ohio St.3d 303, 306
(2001), citing Strickland v. Washington,
466 U.S. 668,

687
(1984). In order to show counsel’s conduct was deficient or unreasonable, the

defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

prompted by reasonable professional judgment.
Strickland at 687
. Counsel is

entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie,
81 Ohio St.3d 673, 675
(1998).

Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute

ineffective assistance. State v. Carter,
72 Ohio St.3d 545, 558
(1995). Rather, the

errors complained of must amount to a substantial violation of counsel’s essential

duties to his client. See State v. Bradley,
42 Ohio St.3d 136, 141-142
(1989),

quoting State v. Lytle,
48 Ohio St.2d 391, 396
(1976), vacated in part on other

grounds,
438 U.S. 910
(1978).




                                          -9-
Case No. 1-23-54


       {¶20} “Prejudice results when ‘there is a reasonable probability that, but for

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

different.’” State v. Liles,
2014-Ohio-259, ¶ 48
(3d Dist.), quoting
Bradley at 142
,

citing
Strickland at 691
. “‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’”
Id.,
quoting Bradley at 142 and citing
Strickland at 694
.

                                       Analysis

       {¶21} On appeal, Shaw argues that her trial counsel was ineffective for

failing to object to the admission of impermissible hearsay evidence. “The ‘failure

to object to error, alone, is not enough to sustain a claim of ineffective assistance of

counsel.’”
Liles at ¶ 49
, quoting State v. Johnson,
2006-Ohio-6404
, ¶ 139.

“Because ‘objections tend to disrupt the flow of a trial, and are considered technical

and bothersome by the fact-finder,’ competent counsel may reasonably hesitate to

object in the jury’s presence.” State v. Campbell,
69 Ohio St.3d 38, 53
(1994),

quoting Jacobs, Ohio Evidence, at iii-iv (1989). “To prevail on such a claim, a

defendant must first show that there was a substantial violation of any of defense

counsel’s essential duties to his client and, second, that he was materially prejudiced

by counsel’s ineffectiveness.” State v. Holloway,
38 Ohio St.3d 239, 244
(1988).

       {¶22} However, based on our resolution of Shaw’s fourth assignment of

error, Shaw’s argument that her trial counsel was ineffective for failing to object to



                                         -10-
Case No. 1-23-54


Powell’s testimony is without merit. That is, since we determined that the trial court

properly declared Maag to be a hostile witness, the State was permitted to impeach

Maag’s testimony under Evid.R. 607 by presenting her prior inconsistent statement.

See Moorer,
2016-Ohio-7679, at ¶ 18
(9th Dist.) (concluding that “Evid.R. 607

permitted the State to impeach [the hostile witness’s] testimony with prior

inconsistent statements”).    In other words, the State was permitted to introduce

Powell’s testimony regarding the statements that D.R. made to Maag (at a

minimum) to impeach Maag’s testimony. See State v. Hare,
2019-Ohio-3047, ¶ 24
(5th Dist.).

       {¶23} Shaw’s third assignment of error is overruled.

                             Third Assignment of Error

       Because the trial court abused its discretion and acted in an
       arbitrary, unreasonable, and capricious manner, and Appellant
       was materially prejudiced as a result, the trial court abused its
       discretion in admitting testimony from Ashely Maag as to alleged
       hearsay statements from D.R., in violation of Appellant’s right to
       confrontation and cross-examination of witnesses under the Sixth
       and Fourteenth Amendments to the United States Constitution
       and Article I, Section 10 of the Ohio Constitution.

       {¶24} In her third assignment of error, Shaw argues that the trial court erred

by admitting impermissible hearsay evidence and that the admission of that hearsay

evidence violated her rights under the Confrontation Clause of the Sixth

Amendment to the United States Constitution. Specifically, Shaw contends that the




                                        -11-
Case No. 1-23-54


trial court erred by “admitting Maag’s testimony regarding alleged statements made

by D.R. to Maag . . . .” (Appellant’s Brief at 18).

                                Standard of Review

       {¶25} Generally, the admission or exclusion of evidence lies within the trial

court’s discretion, and a reviewing court should not reverse absent an abuse of

discretion and material prejudice. State v. Conway,
2006-Ohio-2815
, ¶ 62. As we

previously stated, an abuse of discretion implies that the trial court acted

unreasonably, arbitrarily, or unconscionably. Adams,
62 Ohio St.2d at 157-158
.

“However, we review de novo evidentiary rulings that implicate the Confrontation

Clause.” McKelton,
2016-Ohio-5735, at ¶ 97
. “De novo review is independent,

without deference to the lower court’s decision.” State v. Hudson,
2013-Ohio-647,

¶ 27
(3d Dist.).

                                      Analysis

       {¶26} In this case, Shaw contends that the trial court improperly allowed

Maag to testify to a statement made by D.R. Specifically, Shaw disputes the trial

court’s admission of Maag’s testimony that D.R. said she was told to lie about

Perkins attempting to sexually assault her. We will begin by addressing whether

the admission of D.R.’s hearsay statement was proper under the rules of evidence.

Then, we will consider whether the admission of D.R.’s out-of-court statement

violated Shaw’s Sixth Amendment rights.



                                        -12-
Case No. 1-23-54


                                       Hearsay

          {¶27} Hearsay is defined as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Evid.R. 801(C). “Hearsay is inadmissible under

Evid.R. 802, unless a particular statement fails to meet the two-part definition in

Evid.R. 801(C), or fully satisfies the conditions for nonhearsay prior statements

under Evid.R. 801(D)(1) or (2), or falls within one of recognized exceptions under

Evid.R. 803 or 804.” State v. Richcreek,
2011-Ohio-4686
, ¶ 22 (6th Dist.). “[A]

statement is, by definition, not hearsay when it is offered for a purpose other than to

prove the truth of the matter asserted.” State v. Armour,
2022-Ohio-2717, ¶ 38
(3d

Dist.).

          {¶28} “Evid.R. 803(4) provides that a hearsay statement made for purposes

of medical diagnosis or treatment is not excluded by the hearsay rule, even though

the declarant is available as a witness.” State v. Pate,
2021-Ohio-1838, ¶ 63
(2d

Dist.). “Specifically, the rule permits ‘[s]tatements made for purposes of medical

diagnosis or treatment and describing medical history, or past or present symptoms,

pain, or sensations, or the inception or general character of the cause or external

source thereof insofar as reasonably pertinent to diagnosis or treatment.’”
Id.,
quoting Evid.R. 803(4). “‘Such statements are deemed to be trustworthy and

admissible because “the effectiveness of the treatment depends upon the accuracy



                                         -13-
Case No. 1-23-54


of information given to the physician [so] the declarant is motivated to tell the

truth.”’”
Id.,
quoting State v. Hazel,
2012-Ohio-835, ¶ 45
(2d Dist.), quoting State

v. Brewer,
2003-Ohio-3423
, ¶ 28 (6th Dist.).

       {¶29} Based on our review of the record, it is evident that D.R. made the

statement regarding the veracity of her allegation to Maag for purposes of medical

treatment. Notably, Maag testified that, while at the hospital, she inquired about the

details of the alleged sexual assault to determine the necessity of subjecting D.R. to

a rape kit examination. Maag explicitly stated that she sought to avoid subjecting

D.R. to unnecessary trauma. Consequently, D.R.’s statement to Maag regarding the

alleged sexual assault was made for the purpose of medical treatment. See State v.

Williams,
2017-Ohio-8898, ¶ 15
(1st Dist.).          Therefore, D.R.’s out-of-court

statement was properly admissible under Evid.R. 803(4). Thus, the trial court did

not abuse its discretion by admitting Maag’s testimony.

                                Confrontation Clause

       {¶30} Having determined that Maag’s testimony was not inadmissible

hearsay, we will turn to Shaw’s argument that D.R.’s out-of-court statement should

have been excluded under the Confrontation Clause. The Confrontation Clause to

the Sixth Amendment of the United States Constitution, made applicable to the

states by the Fourteenth Amendment, provides that “‘[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against him



                                         -14-
Case No. 1-23-54


. . . .’” Crawford v. Washington,
541 U.S. 36, 42
(2004), quoting the Confrontation

Clause.

       The United States Supreme Court has interpreted [the Sixth
       Amendment right to confrontation] to mean that admission of an out-
       of-court statement of a witness who does not appear at trial is
       prohibited by the Confrontation Clause if the statement is testimonial
       unless the witness is unavailable and the defendant has had a prior
       opportunity to cross-examine the witness.

State v. Maxwell,
2014-Ohio-1019, ¶ 34
.

       {¶31} Consequently,      “[o]nly    testimonial    hearsay    implicates    the

Confrontation Clause.” McKelton,
2016-Ohio-5735, at ¶ 185
. “Therefore, even if

a statement falls under a hearsay exception it can be excluded as testimonial because

such statements violate the Confrontation Clause.” State v. Hairston, 2016-Ohio-

8495, ¶ 27 (10th Dist.). Conversely, nontestimonial statements may be admissible

under a hearsay exception.
Id.
Likewise, “[t]here is also no dispute that the

Confrontation Clause ‘does not bar the use of testimonial statements for purposes

other than establishing the truth of the matter asserted.’” State v. Ricks, 2013-Ohio-

3712, ¶ 18, quoting
Crawford at 59
, and citing Williams v. Illinois,
567 U.S. 50
, 57-

58 (2012).

       {¶32} “The key issue is what constitutes a testimonial statement: ‘It is the

testimonial character of the statement that separates it from other hearsay that, while

subject to traditional limitations upon hearsay evidence, is not subject to the

Confrontation Clause.’” State v. Hood,
2012-Ohio-6208, ¶ 33
, quoting Davis v.


                                          -15-
Case No. 1-23-54


Washington,
547 U.S. 816, 821
(2006). Even though the United States Supreme

Court “did not define the word ‘testimonial,’” courts have distinguished statements

made to law enforcement from statements communicated to non-law enforcement

officials.
Maxwell at ¶ 34
, quoting
Crawford at 52
.

       {¶33} “If the questioner is a law enforcement officer or an agent of law

enforcement, the court applies the primary-purpose test to determine whether the

statements are testimonial.” State v. Pettway,
2009-Ohio-4544
, ¶ 69 (8th Dist.).

Such

       “[s]tatements are nontestimonial when made in the course of police
       interrogation under circumstances objectively indicating that the
       primary purpose of the interrogation is to enable police assistance to
       meet an ongoing emergency,” but that [such] statements are
       testimonial when the circumstances indicate that there “is no such
       ongoing emergency, and that the primary purpose of the interrogation
       is to establish or prove past events potentially relevant to later criminal
       prosecution.”

Hairston at ¶ 27, quoting
Davis at 822
. “In making [the] ‘primary purpose’

determination, courts must consider ‘all of the relevant circumstances.’” State v.

Heard,
2017-Ohio-8796, ¶ 9
(12th Dist.), quoting Michigan v. Bryant,
562 U.S. 344,

369
(2011). “Other factors to be considered in determining the ‘primary purpose’

of an interrogation include the formality of the situation, the standard rules of

hearsay, as well as the statements and actions of both the declarant and the officer

questioning the declarant.” Id. at ¶ 10, quoting
Bryant at 367
. “Thus, the question

is whether, in light of all the circumstances, the primary purpose of the conversation


                                          -16-
Case No. 1-23-54


was to create ‘an out-of-court substitute for trial testimony.’”
Id.,
quoting
Bryant at

358
.

       {¶34} “While the primary purpose test applies to statements made to law

enforcement, the Ohio Supreme Court has ‘adopted the “objective-witness test” for

out-of-court statements made to a person who is not law enforcement.’” State v.

Little,
2016-Ohio-8398, ¶ 24
(3d Dist.), quoting State v. Jones,
2012-Ohio-5677, ¶

161
. When a statement is communicated to a non-law enforcement official, such

statement is “‘a testimonial statement [if it is] made “under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial.”’” State v. Durdin,
2014-Ohio-5759, ¶ 17
(10th

Dist.), quoting State v. Stahl,
2006-Ohio-5482
, paragraph one of the syllabus,

quoting Crawford,
541 U.S. at 52
. “The focus is on the expectation of the declarant

at the time the statement is made, and the intent of the questioner is irrelevant unless

it could affect a reasonable declarant’s expectations.” State v. Menton, 2009-Ohio-

4640, ¶ 24 (7th Dist.). Significantly, “[s]tatements to persons outside of law

enforcement are ‘much less likely to be testimonial than statements to law

enforcement officers.’”
Little at ¶ 24
, quoting Ohio v. Clark,
576 U.S. 237, 246
(2015).

       {¶35} We conclude that Shaw’s confrontation rights were not violated by the

admission of D.R.’s out-of-court statement. Decisively, even if we assume without



                                         -17-
Case No. 1-23-54


deciding that D.R.’s statement was testimonial, Shaw’s confrontation rights were

not violated because D.R. testified at trial.

       {¶36} Shaw’s third assignment of error is overruled.

                             First Assignment of Error

       Because the jury lost its way and created a manifest miscarriage
       of justice in convicting Appellant, Appellant’s conviction, in case
       number CR-2022-0100, was against the manifest weight of the
       evidence.

       {¶37} In her first assignment of error, Shaw argues that her aggravated

possession of drugs conviction is against the manifest weight of the evidence.

Specifically, Shaw contends that the evidence supporting that she committed

aggravated possession of drugs is not credible.

                                  Standard of Review

       {¶38} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins,
78 Ohio St.3d 380, 389
(1997). In determining whether a conviction is against the manifest weight of the

evidence, a reviewing court must examine the entire record, “‘weigh[ ] the evidence

and all reasonable inferences, consider[ ] the credibility of 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 ordered.’”
Id. at 387
, quoting State v. Martin,
20 Ohio

App.3d 172, 175
(1st Dist. 1983). A reviewing court must, however, allow the trier


                                          -18-
Case No. 1-23-54


of fact appropriate discretion on matters relating to the weight of the evidence and

the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231
(1967).

When applying the manifest-weight standard, “[o]nly in exceptional cases, where

the evidence ‘weighs heavily against the conviction,’ should an appellate court

overturn the trial court’s judgment.” State v. Haller,
2012-Ohio-5233, ¶ 9
(3d Dist.),

quoting State v. Hunter,
2011-Ohio-6524, ¶ 119
.

                                      Analysis

       {¶39} Shaw was convicted of aggravated possession of drugs in violation of

R.C. 2925.11(A), (C)(1)(c). That statute provides, in its relevant part, that “[n]o

person shall knowingly obtain, possess, or use a controlled substance or a controlled

substance analog.” R.C. 2925.11(A). The statute elevates the level of the offense

“[i]f the drug involved in the violation is a compound, mixture, preparation, or

substance included in schedule I or II, with the exception of marihuana, cocaine,

L.S.D., heroin, any fentanyl-related compound, hashish, and any controlled

substance analog” and “[i]f the amount of the drug involved equals or exceeds five

times the bulk amount but is less than fifty times the bulk amount . . . .” R.C.

2925.11(C)(1)(c).

       {¶40} On appeal, Shaw argues that her aggravated possession of drugs

conviction is against the manifest weight of the evidence because the evidence that

Perkins possessed the methamphetamine is weightier than the evidence that she



                                        -19-
Case No. 1-23-54


possessed the methamphetamine. “‘Possess’ or ‘possession’ means having control

over a thing or substance, but may not be inferred solely from mere access to the

thing or substance through ownership or occupation of the premises upon which the

thing or substance is found.” R.C. 2925.01(K). “The issue of whether a person

charged with drug possession knowingly possessed a controlled substance ‘is to be

determined from all the attendant facts and circumstances available.’” State v.

Brooks,
2012-Ohio-5235, ¶ 45
(3d Dist.), quoting State v. Teamer,
82 Ohio St.3d

490, 492
(1998).

       {¶41} “Possession of drugs can be either actual or constructive.” State v.

Bustamante,
2013-Ohio-4975, ¶ 25
(3d Dist.). “‘A person has “actual possession”

of an item if the item is within his immediate physical possession.’”
Id.,
quoting

State v. Williams,
2004-Ohio-1130, ¶ 23
(4th Dist.). “A person has ‘constructive

possession’ if he is able to exercise dominion and control over an item, even if the

individual does not have immediate physical possession of it.”
Id.
“For constructive

possession to exist, ‘[i]t must also be shown that the person was conscious of the

presence of the object.’”
Id.,
quoting State v. Hankerson,
70 Ohio St.2d 87, 91
(1982). “Finally, the State may prove the existence of the various elements of

constructive possession of contraband by circumstantial evidence alone.”
Id.
See

also State v. Jenks,
61 Ohio St.3d 259, 272-273
(1981), superseded by state

constitutional amendment on other grounds, State v. Smith,
80 Ohio St.3d 89
(1997).



                                       -20-
Case No. 1-23-54


“Absent a defendant’s admission, the surrounding facts and circumstances,

including the defendant’s actions, are evidence that the trier of fact can consider in

determining whether the defendant had constructive possession.” State v. Voll,
2012-Ohio-3900, ¶ 19
(3d Dist.).

       {¶42} Consequently, since it is the only element that she challenges, we will

address the weight of the evidence supporting whether Shaw constructively

possessed the methamphetamine. Here, Shaw argues that her conviction is against

the manifest weight of the evidence because “Perkins’ testimony that he stole drugs

from Shaw, and testimony that D.R. allegedly stated that the sexual abuse

allegations involving Perkins were not true” was not credible. (Appellant’s Brief at

7). Shaw’s argument overlooks the relevant inquiry, which is whether the weight

of the evidence demonstrates that she exercised dominion and control over the

methamphetamine. Compare State v. Frye,
2018-Ohio-894, ¶ 57
(3d Dist.) (noting

that it was “irrelevant who brought the [drugs] to the residence; rather, the relevant

inquiry [was] whether the weight of the evidence demonstrates that Frye exercised

dominion and control over the” drugs), citing State v. Hilton,
2004-Ohio-1418, ¶ 24
(9th Dist.) (“The arguments . . . that the drugs and other items found may not have

actually belonged to him, are ultimately inconsequential.”); State v. Grundy,
1998

WL 852844
, *11 (9th Dist. Dec. 9, 1998) (noting that “ownership is irrelevant when

considering whether an individual possessed a substance”).



                                        -21-
Case No. 1-23-54


       {¶43} Critically, “[a]lthough we review credibility when considering the

manifest weight of the evidence, the credibility of witnesses is primarily a

determination for the trier of fact.” State v. Banks,
2011-Ohio-5671, ¶ 13
(8th Dist.).

“The trier of fact 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 State v. Wilson, 2007-Ohio-

2202, ¶ 24.

       {¶44} Notwithstanding Perkins’s weak credibility, the jury also observed

Shaw’s testimony “and we are mindful of the jury’s ‘superior first-hand perspective

in judging the demeanor and credibility of witnesses.’” State v. Suffel, 2015-Ohio-

222, ¶ 33 (3d Dist.), quoting State v. Phillips,
2014-Ohio-5162, ¶ 125
(10th Dist.).

Indeed, the trier of fact was aware of Perkins’s character defects and weighed his

testimony accordingly. See State v. Parsons,
2017-Ohio-1315, ¶ 65
(3d Dist.).

Consequently, in this instance, the trier of fact was free to credit or discount each

witness’s “testimony because the trier of fact is ‘patently in the best position to

gauge the truth.’”
Parsons at ¶ 63
, quoting State v. Smith,
2015-Ohio-1610
, ¶ 24

(5th Dist.).

       {¶45} Likewise, the jury was also able to assess Maag’s and Powell’s

testimony against D.R.’s testimony regarding the sexual abuse allegations. See id.

at ¶ 64 (concluding that “[t]he trier of fact was free to believe or disbelieve [the



                                         -22-
Case No. 1-23-54


witness’s] testimony or accept part of what [the witness] said and reject the rest”).

Importantly, the trier of fact was able to consider the demeanor of Maag, Powell,

and D.R. as well as “‘“the manner in which [they] testifie[d], [their] connection or

relationship with the prosecution or defendant, and [their] interest, if any, in the

outcome.”’” Id. at ¶ 66, quoting State v. Saxton,
2003-Ohio-3158
, ¶ 36 (9th Dist.),

quoting State v. Antill,
176 Ohio St. 61
, 67 (1964).

       {¶46} Furthermore, based on our review of the record, we conclude that the

jury could reasonably infer from the evidence presented that Shaw exercised

dominion and control over the methamphetamine. Accord Frye,
2018-Ohio-894, at

¶ 58
(3d Dist.). Indeed, “‘[a] jury can make reasonable inferences from the

evidence.’”
Id.,
quoting State v. Knight,
2016-Ohio-8134, ¶ 26
(10th Dist.). “‘“It

is permissible for a jury to draw inferences from the facts presented to them.”’”
Id.,
quoting
Knight at ¶ 26
, quoting State v. Sanders,
1998 WL 78787
, *3 (6th Dist. Feb.

13, 1998). “‘“The weight given to an inference is a question for the trier of fact and

will not be disturbed unless it is such that reasonable minds could not reach such a

conclusion.”’”
Id.,
quoting
Knight at ¶ 26
, quoting
Sanders at *3
. In addition to

Perkins’s and Shaw’s competing version of the events, the jury was also able to

review text messages exchanged between Perkins and Shaw in which they discussed

the drugs. Critically, State’s Exhibit 3 reflects Shaw admitting that the stolen

“money n dope” belonged to her. (State’s Ex. 3). State’s Exhibits 1 and 2 bolster



                                        -23-
Case No. 1-23-54


this confession by depicting that Shaw and Perkins discussed hiding and selling the

drugs. Consequently, based on that evidence, the jury could infer that Shaw was

exercising dominion and control over the methamphetamine and, therefore, that she

constructively possessed the methamphetamine. See
Frye at ¶ 58
.

       {¶47} For these reasons, we conclude that the trier of fact did not lose its way

in determining that the evidence supporting Shaw’s conviction is more compelling

and credible than the evidence suggesting that she did not possess the

methamphetamine. Therefore, Shaw’s aggravated possession of drugs conviction

is not against the manifest weight of the evidence.

       {¶48} Shaw’s first assignment of error is overruled.

       {¶49} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

MILLER and EPLEY, J.J., concur.

/hls

** Judge Christopher B. Epley of the Second District Court of Appeals, sitting
by Assignment of the Chief Justice of the Supreme Court of Ohio.




                                         -24-