from the Franklin County Court of Common Pleas (C.P.C. No.
O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
H. Shamansky Co., L.PA., Samuel H. Shamansky, Donald L.
Regensburger, Colin E. Peters, and Sara A. Hill, for
1} Defendant-appellant, Phillip M. Edwards, appeals
from the judgment of conviction and sentence entered by the
Franklin County Court of Common Pleas pursuant to jury
verdicts finding appellant guilty of numerous drug possession
offenses and related charges.
2} A Franklin County Grand Jury returned an
eight-count indictment against appellant for: (1) possession
of heroin equal to or exceeding 250 grams; (2) possession of
cocaine equal to or exceeding 100 grams; (3) aggravated
possession of drugs (methamphetamine) equal to or exceeding
100 times the bulk amount; (4) aggravated possession of drugs
(oxycodone) equal to or proceeding the bulk amount; (5)
possession of heroin equal to or exceeding five grams; (6)
possession of cocaine; (7) failure to comply with an order to
signal or stop after commission of a felony; and (8) failure
to comply with an order or signal to stop, causing
substantial risk of serious physical harm to persons or
property. All offenses occurred on the date of
appellant's arrest, January 12, 2016, which was the
culmination of a police investigation involving informant
tips, a period of surveillance, a controlled buy of
narcotics, and a vehicular pursuit ending in a minor wreck.
Counts 5 and 6 involved small quantities of drugs found on
appellant's person and in his car at the time of his
arrest. Counts 1 through 4 involved large amounts of drugs
seized on the same day after a search of a residence
frequented by appellant.
3} Appellant initially pled guilty to three counts
as part of a plea bargain, but later moved successfully to
withdraw his plea. The matter proceeded to a jury trial.
During the course of trial, the judge replaced a tardy juror
with an alternate. The jury returned guilty verdicts on all
counts in the indictment.
4} After the jury was discharged, the assistant
prosecutor handling the case became aware that on the day the
jury deliberated, an evidentiary exhibit comprised of 71
oxycodone pills had gone missing in the interval between the
time the prosecutor had checked this and other physical
evidence out of the prosecutor's evidence room on the
morning of the last day of trial and the time the evidence
was returned to the evidence room after the jury had been
discharged. At the prosecutor's request, the pills and
other drug evidence had been sent back with the jury for
examination during deliberations. Appellant's counsel
filed a motion for new trial based on the disappearance of
the oxycodone pills and the inference that one or more of the
jurors were responsible for the disappearance and that such
conduct had prejudicially influenced the jury's
deliberations. The trial court denied the motion for new
trial and imposed an aggregate sentence of 25 years'
Assignments of Error
5} Appellant appeals and assigns the following five
assignments of error for our review:
[I.] THE DISAPPEARANCE OF EVIDENCE DURING APPELLANT'S
TRIAL, AND THE TRIAL COURT'S SUBSEQUENT REFUSAL TO ORDER
A NEW TRIAL, VIOLATED HIS RIGHT TO DUE PROCESS AS GUARANTEED
BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
[II.] TRIAL COUNSEL'S PERFORMANCE FELL BELOW THE
OBJECTIVE STANDARD OF REASONABLENESS AND CONSTITUTES
INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF
APPELLANT'S RIGHTS UNDER THE UNITED STATES AND OHIO
[III.] THE TRIAL COURT'S REMOVAL OF JUROR NUMBER 7
CONSTITUTED PLAIN ERROR, PREJUDICED APPELLANT, AND VIOLATED
HIS RIGHTS A JURY TRIAL AND DUE PROCESS AS GUARANTEED BY THE
UNITED STATES AND OHIO CONSTITUTIONS.
[IV.] APPELLANT'S CONVICTIONS ON COUNTS ONE THROUGH FOUR
WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION
OF HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THE OHIO
[V.] APPELLANT WAS DEPRIVED OF A FAIR TRIAL DUE TO THE
CUMULATIVE ERRORS OF THE TRIAL COURT IN VIOLATION OF HIS
RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.
6} We first address appellant's fourth
assignment of error, which asserts his convictions on Counts
1 through 4, involving large quantities of drugs that were
not on appellant's person at the time of his arrest, were
against the manifest weight of the evidence. Appellant, in
brief, argues that these drugs, taken from a residence
located at 854 Antwerp Road in Whitehall, Franklin County,
Ohio, were not proved to be in appellant's possession
because the prosecution presented no direct evidence
appellant had control over items located at that address,
which was not linked to appellant through ownership, utility
bills, or vehicle registrations. Appellant argues the
evidence demonstrates at most that appellant had access to
the residence, but did not exercise control or dominion over
the property therein.
7} "Weight of the evidence concerns 'the
inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the
issue rather than the other. It indicates clearly to the jury
that the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds,
they shall find the greater amount of credible
evidence sustains the issue which is to be established
before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief "
(Emphasis sic.) State v. Thompkins, 78 Ohio St.3d
380, 387 (1997), quoting Black's Law Dictionary
1594 (6 Ed.1990). As the finder of fact, the jury is in the
best position to weigh the credibility of testimony by
assessing the demeanor of the witness and the manner in which
he testifies, his connection or relationship with the
parties, and his interest, if any, in the outcome. The jury
can accept all, a part or none of the testimony offered by ...