Court of Appeals of Ohio, Eleventh District, Portage
Criminal Appeal from the Portage County Court of Common
Pleas, Case No. 2018 CR 00075.
Affirmed in part, reversed in part, and remanded.
V. Vigluicci, Portage County Prosecutor, and Pamela J.
Holder, Assistant Prosecutor, (For Plaintiff-Appellee).
F. Borkowski, Jr., (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
Appellant, Michael Thompson, appeals his conviction of
possession of cocaine, a felony of the fifth degree,
following a jury trial in the Portage County Court of Common
Pleas. Appellant argues (1) his conviction was against the
manifest weight of the evidence; (2) the trial court
improperly admitted other-acts testimony; (3) the trial court
improperly admitted evidence that the state did not properly
authenticate and for which it did not establish the chain of
custody; (4) he received ineffective assistance of counsel;
(5) his sentence is contrary to law; and (6) the trial court
erred by failing to provide him with post-release control
notifications. We affirm in part, reverse in part, and remand
the matter for a new trial.
On June 20, 2017, Patrolman Scott Krieger ("Officer
Krieger") of the Ravenna City Police Department was in
the squad room of the police department when he received a
call from Laura Taylor ("Ms. Taylor), a records clerk at
the department. Ms. Taylor informed him that appellant was
there to pick up some police reports. Ms. Taylor had
apparently read one of Officer Krieger's reports
indicating that he wanted to speak with appellant about an
assault for which he was a suspect.
Ms. Taylor explained to Officer Krieger that appellant had
gone out to his car but was due to come back to pick up the
reports. Officer Krieger proceeded to the south entrance of
the police department to meet appellant.
The police department is located on the corner of Parkway and
Spruce Street, and the records department entrance is on
Spruce Street. One must ascend approximately ten outside
steps to reach the entrance to the second floor. The building
entrance contains two clear glass double doors.
Officer Krieger was inside the building, on the second floor,
looking out the double doors when he observed appellant
coming up the outside steps. As appellant pulled a set of car
keys from his left pants pocket, Officer Krieger saw a small,
clear, plastic bag fall out of that pocket. The bag dropped
to the landing outside the department where Officer Krieger
The plastic bag appeared to contain some white rocks, which
Officer Krieger suspected was crack cocaine. Officer Krieger
picked up the bag and informed appellant that it had just
fallen out of his pocket. Appellant denied the bag belonged
to him and suggested he may have just kicked it. Officer
Krieger reassured appellant that it had fallen out of his
Officer Krieger attempted to discuss the report of the
alleged assault, but appellant had difficulty communicating
and continued to stare at the bag in Officer Krieger's
hand. Appellant then indicated he was at the police
department to obtain some reports with his name on them.
Specifically, he wanted to obtain a report alleging that he
had offered drugs to a juvenile. Officer Krieger held up the
bag and stated, "It wasn't crack cocaine, was
it?" Appellant put his head down and did not make any
Officer Krieger did not arrest appellant but informed him
that he intended to send the suspected crack cocaine to the
laboratory for testing. The officer advised appellant that if
the test results came back positive for a controlled
substance, he would be charged at a later date.
After the encounter, Officer Krieger returned to the squad
room, and appellant entered the police department and
presumably proceeded to the records department. Officer
Krieger weighed the plastic bag and the suspected crack
cocaine, placed it in an evidence bag, and sealed it. He put
his initials across the seal. On the evidence bag, Officer
Krieger listed an agency case number of 2171710029, the
evidence tag number of 32577, the weight of 0.26 grams,
appellant's name, the date, time, and location of
recovery, and his name. He then submitted it to the police
department's evidence room and filled out a Bureau of
Criminal Investigation ("BCI") evidence submission
On June 28, 2017, Detective Greg Francis ("Detective
Francis") submitted the evidence bag to BCI for
laboratory testing at its office in Richfield, Ohio.
According to Detective Francis, the original agency case
number listed on the BCI evidence submission sheet was
2171560011, which was incorrect, so he scratched out this
"clerical error and wrote the correct agency case number
of 2171710029. According to Officer Krieger, case number
2171560011 related to the alleged assault in which Mr.
Thompson was a suspect. Upon submission, BCI assigned its own
unique laboratory number.
Erin Miller ("Ms. Miller"), a BCI analyst,
retrieved the evidence from BCI's evidence vault for
laboratory testing. Ms. Miller first weighed the substance
without the clear plastic bag, which was 0.17 grams. She then
performed a color test, which indicated the possible presence
of cocaine. Next, she performed a GC-MS analysis, where she
determined the substance was cocaine.
Ms. Miller submitted a written report containing her
findings. She testified that the agency case number listed on
her report, as submitted by the Ravenna police, was 217560011
(the alleged assault case). Finally, Ms. Miller placed the
evidence bag within another bag and sealed it.
The laboratory results were also emailed to Detective
Francis. As he did with the BCI evidence submission form,
Detective Francis crossed out the agency case number of
217560011 (the alleged assault case), wrote 2171710029 (the
underlying case) next to it, and dated it. Detective Francis
subsequently retrieved the evidence from BCI.
The Portage County Grand Jury indicted appellant on one count
of possession of cocaine, a felony of the fifth degree, in
violation of R.C. 2925.11(A) and (C)(4)(a). Appellant pleaded
The matter proceeded to a jury trial. Mr. Thompson filed a
motion in limine to exclude evidence of other criminal acts.
Mr. Thompson's counsel also orally requested exclusion of
evidence relating to the drug testing, asserting that it was
performed under a different case number. The trial court
granted the motion to exclude prior acts unless appellant
testified. It deferred ruling on the motion with respect to
the drug testing.
The state presented testimony from three witnesses -
Detective Francis, Officer Krieger, and Ms. Miller. The state
also presented three exhibits - a sealed bag from BCI
containing the Ravenna police's evidence bag (State's
Exhibit 1), the BCI evidence submission form (State's
Exhibit 2), and the BCI results sheet (State's Exhibit
3). Following Detective Francis' testimony,
appellant's counsel renewed his motion to exclude the
drug testing evidence. The trial court overruled the motion
pending presentation of all of the evidence.
Following the state's presentation of evidence,
appellant's counsel objected to State's Exhibit 2
(the BCI evidence submission form) and State's Exhibit 3
(the BCI results sheet) on the basis that they had been
altered. Appellant's counsel stated he did not object to
the admission of State's Exhibit 1 (the sealed bag from
BCI containing the Ravenna police's evidence bag). The
trial court admitted State's Exhibits 2 and 3 to let the
jury decide "what they're worth."
The state rested, and appellant moved for acquittal, which
the trial court denied. The defense rested without presenting
any evidence. Appellant renewed his motion for acquittal,
which the trial court again denied.
The jury returned a verdict of guilty on the sole count in
the indictment. The trial court issued a judgment entry
memorializing the jury's guilty verdict and referring the
matter to the adult probation department for a presentence
investigation and report.
At sentencing, the trial court found appellant was amenable
to community control sanctions and sentenced him to 12 months
of intensive supervision by the adult probation department
followed by 36 months of general supervision, along with
certain conditions. The trial court notified appellant that
if he violated the terms of his community control sanctions,
he may receive more restrictive community control sanctions
or will serve a specific prison term of 12 months. The trial
court subsequently issued a sentencing entry memorializing
the conviction and sentence.
Appellant now appeals, raising six assignments of error. We
shall consider them out of order. His second assignment of
"The court erred by permitting 'other acts'
The Supreme Court of Ohio has instructed "[a]ppellate
review of a trial court's decision regarding the
admissibility of other crimes, wrongs, or acts under Evid.R.
404(B) is conducted under an abuse-of-discretion
standard." State v. Morris, 132 Ohio St.3d 337,
Appellant's counsel filed a pretrial motion in limine to
exclude other-acts evidence, which the trial court granted,
but he did not object to the other-acts evidence at trial.
When a party files a motion in limine regarding the exclusion
of evidence but fails to timely object at trial, the court
reviews the admission of such evidence under a plain error
analysis. See State v. Frazier, 115 Ohio St.3d 139,
2007-Ohio-5048, ¶133; State v. Bowers, 11th
Dist. Trumbull No. 2016-T-0049, 2017-Ohio-2726, ¶15.
The Supreme Court of Ohio has set forth very strict
limitations on what constitutes plain error. State v.
Devai, 11th Ashtabula Dist. No. 2012-A-0054,
2013-Ohio-5264, ¶17. To establish plain error, a
defendant must show "(1) there was an error, (2) the
error was 'plain,' i.e., obvious, and (3) the error
affected substantial rights." State v. Tench,
156 Ohio St.3d 85, 2018-Ohio-5205, ¶217, citing
State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
To affect "substantial rights," the error
"must have affected the outcome of the trial."
Id., citing Barnes at 27. The defendant is
therefore required to demonstrate a reasonable probability
that the error resulted in prejudice. Id.
"Notice of plain error under Crim.R. 52(B) is to be
taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of
justice." State v. Long, 53 Ohio St.2d 91
(1978), paragraph three of the syllabus.
"Evidence that an accused committed a crime other than
the one for which he or she is on trial is not admissible
when its sole purpose is to show the accused's propensity
or inclination to commit crime or that he acted in conformity
with bad character." (Citations omitted.) State v.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶15.
Evid.R. 404(B) states: "Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." Evid.R.
404(B) affords the trial court discretion to admit evidence
of other crimes, wrongs, or acts for "other
purposes," including, but not limited to, those set
forth in the rule. Williams, supra, at ¶17.
Hence, the rule affords broad discretion to the trial judge
regarding the admission of other-acts evidence. Id.
The Supreme Court of Ohio has established the following
three-step analysis regarding the admission of
"other-acts" evidence: (1) whether it is relevant
under Evid.R. 401, (2) whether it is presented for a
permissible purpose, such as those stated in Evid.R. 404(B),
rather than to prove the character of the accused in order to
show activity in conformity therewith, and (3) whether its
probative value is substantially outweighed by the danger of
unfair prejudice under Evid.R. 403. Williams, supra,
We shall treat appellant's alleged problematic other-acts
evidence in turn.
Defense counsel's reference to another case
First, appellant objects to a reference which occurred during
defense counsel's cross-examination of Detective Francis
about his scratching out a perceived "clerical error on
the BCI evidence submission form:
"[DEFENSE COUNSEL]: I understand it might be clerical
error, but actually that is another case involving Mr
Thompson, isn't it?"
"[DETECTIVE FRANCIS]: That I don't know. I don't
know what that case number correlates to." (Emphasis
It appears appellant is objecting to a reference contained in
a question defense counsel posed to a witness, not the
witness's testimony. Evid.R. 404(B) prohibits the
admission of certain "evidence." A defense
attorney's question is not proof that an event occurred,
and statements of counsel are not evidence. State v.
Eddy, 8th Dist. Cuyahoga No. 104417, 2017-Ohio-741,
¶39. Therefore, defense counsel's question does not
constitute "evidence" for purposes of Evid.R.
Even if the question constituted "evidence," it was
not "evidence" of another "crime, wrong, or
act" under Evid.R. 404(B). Not all evidence regarding a
defendant's behavior constitutes other-acts evidence.
See, e.g., State v. Patton, 74 Ohio App.3d 224, 229
(3d Dist.1991) (finding that testimony regarding the
defendant's oral statements and comments did not
constitute other-acts evidence); State v. Heineman,
8th Dist. Cuyahoga No. 103184, 2016-Ohio-3058, ¶74
(testimony regarding the defendant's demeanor or behavior
did not constitute other-acts evidence). The definition of
the word "act" includes "the process of doing
something; action" and "[something that is done or
performed; deed." Patton, supra, at 229.
Here, defense counsel's reference to "another
case" did not reference appellant's commission of
any crime, wrong, or act. In addition, Detective Francis'
response did not implicate appellant in another crime, wrong,
or act, since he testified that he did not even know what the
other case number related to.
The first of the prerequisites for plain error is the
existence of an error. State v. Osie, 140 Ohio St.3d
131, 2014-Ohio-2966, ¶82. Even if the reference was
inadmissible, appellant has not provided any authority that
the trial court is required to sua sponte strike or provide a
curative instruction regarding defense counsel's own
And if there was any error, it was invited error and not
subject to plain error analysis. The doctrine of invited
error precludes a defendant from making an affirmative and
apparent strategic decision at trial and then complaining on
appeal that the result of that decision constitutes
reversible error. State v. Doss, 8th Dist. Cuyahoga
No. 84433, 2005-Ohio-775, ¶7, quoting United States
v. Jernigan, 341 F.3d 1273, 1290 (11th Cir.2003).
Judicial scrutiny of counsel's performance is to be
highly deferential, and reviewing courts must refrain from
second-guessing the strategic decisions of trial counsel.
State v. Carter, 72 Ohio St.3d 545, 558 (1995).
Appellant's defense has consistently been that the
suspected crack cocaine related to another case. Thus,
permitting the jury to hear that appellant had another case
with the Ravenna police could create doubt as to whether BCI
tested the right evidence. As a result of defense
counsel's strategy to focus on the change in the incident
report numbers, it was inevitable that evidence about other
incidents would be presented. See, e.g., State v.
Broadnax, 2d Dist. Montgomery No. 18169, 2001 WL 127779,
*3 (Feb. 16, 2001) (eliciting damaging testimony was the
product of a tactical decision to show a witness's bias);
State v. Benitez, 8th Dist. Cuyahoga No. 98930,
2013-Ohio-2334, ¶22 (invited error found where line of
questioning was "an apparent strategic decision" to
cast doubt on the alleged victim's claims); State v.
Jarrell, 4th Dist. Gallia No. 15CA8, 2017-Ohio-520,
¶52, 54 (invited error found where defense counsel's
eliciting of testimony regarding the defendant's breath
test on cross-examination was part of a reasonable trial
strategy to challenge the functionality of the breath test
Based on the foregoing, we find no reversible error with
respect to defense counsel's reference to another case.
Officer Krieger's reference to an alleged
Appellant next objects to Officer Krieger's reference to
an alleged assault during defense counsel's
"[DEFENSE COUNSEL]: Now, you've told the Jury twice
that you were talking to him about another drug charge, but
that wasn't the report he was there to get, right?
"[OFFICER KRIEGER]: The reason that I wanted to speak
"[DEFENSE COUNSEL]: Yes.
"[OFFICER KRIEGER]: Was - he was listed as a suspect in
an assault, that's why I was there - or that's what I
wanted to speak to him."
We do not find error in the trial court's failure to
intervene during Officer Krieger's testimony. A court
does not have a per se duty to intervene when defense counsel
elicits negative information from the state's witness.
See State v. Stragisher, 7th Dist. Columbiana No. 03
CO 13, 2004-Ohio-6797, ¶17.
In addition, Officer Krieger's reference does not tend to
prove appellant's bad character and conformity therewith.
Mr. Thompson's prior involvement in an alleged assault
had no bearing on whether he later possessed drugs in front
of the police department. See State v. Jones, 8th
Dist. Cuyahoga No. 68929, 1996 WL 355292, *3 (June 27, 1996)
(defendant's propensity to commit drug crimes, if any,
had no bearing on whether he engaged in a non-drug related
shooting). Rather, the reference provides background
information explaining why the records clerk called Officer
Krieger upon Mr. Thompson's arrival and why Officer
Krieger came out to speak with him.
Even if there was error, the error was invited. An error is
invited if it was elicited by defense counsel on
cross-examination. State v. Hare, 2d Dist. Clark No.
2017- CA-4, 2018-Ohio-765, ¶45; State v.
Lenoir, 2d Dist. Montgomery No. 22239, 2008-Ohio-1984,
¶24. See also State v. Hartford, 21 Ohio App.3d
29, 31 (8th Dist.1984) (objection to evidence of other crimes
committed by a defendant waived where it is first brought out
on cross-examination by defendant's attorney).
Further, defense counsel's elicitation of this testimony
appears to have been part of his trial strategy. In context,
the testimony could permit the jury to infer that there was
an evidentiary mix up with another case involving Mr.
Based on the foregoing, we find no reversible error with
respect to Officer Krieger's reference to an alleged
Allegation of offering drugs to a juvenile
Appellant finally challenges to two portions of Officer
Krieger's testimony during the state's direct
examination where Officer Krieger recited appellant's own
statement that he had heard there was a police report
alleging he had offered drugs to a juvenile:
[THE STATE]: Okay. So as you're standing here having the
conversation, tell us about that.
[OFFICER KRIEGER]: * * * So then the conversation changes to
why he come [sic] to the police department. He indicated that
he was there to get some reports with his names [sic] on
them. Apparently, he had heard, or whatever,
that one of the reports was a report about him offering
drugs to a juvenile. He wanted that report. When he had
mentioned that, I kind of held up the bag and I said, it
wasn't crack cocaine, was it? And then he just kind of
put his head down and didn't - didn't make anymore
statements after that.
* * *
[THE STATE]: When you asked Mr. Thompson was this crack
cocaine, and you said - I believe you said he just hung his
head, or was - I'm sorry.
[OFFICER KRIEGER]: When he had told me that he was there
to get reports or a report listing him as a possible suspect
in offering drugs to a juvenile, that's when I said,
it wasn't ...