text:
    STATE EX REL. REESE v. DEPT. OF REHAB. & CORR.
    2018-1183
    Supreme Court of Ohio.
    August 22, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   This cause was filed as a jurisdictional appeal. It is determined by the court that this cause should proceed as an appeal of right pursuant to S.Ct.Prac.R. 5.01. The clerk shall issue an order for the transmission of the record from the Court of Appeals for Franklin County, and the parties shall otherwise proceed in accordance with S.Ct.Prac.R. 16.02 through 16.07.


source: Caselaw Access Project

license: Public Domain

text:
    STATE v. WORLEY
    2018-0757
    Supreme Court of Ohio.
    August 20, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for stay of execution of death sentence pending direct appeal. Motion granted. No execution date shall be set while this appeal is pending. On appellant's request to extend time to file record. Request granted. The record shall be filed no later than November 28, 2018.


author: McFarland, J. Hoover, J., dissenting:

text:
    STATE of Ohio, Plaintiff-Appellee, v. Cito E.L. HILL, Defendant-Appellant.
    No. 16CA3
    Court of Appeals of Ohio, Fourth District, Athens County.
    Released: January 5, 2018
    Timothy Young, Ohio State Public Defender, and Allen M. Vender, Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.
    Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.
    DECISION AND JUDGMENT ENTRY
   McFarland, J.

{¶ 1} Cito Hill appeals the judgment of the Athens County Court of Common Pleas convicting him of one count of aggravated trafficking in drugs and sentencing him to an eighteen-month prison term. On appeal, Appellant contends that 1) his conviction is not supported by sufficient evidence; 2) the trial court abused its discretion when it permitted the State to introduce evidence of other bad acts; 3) he received ineffective assistance of counsel because his attorney failed to object to prosecutorial misconduct in closing argument; and 4) the trial court abused its discretion when it admitted labels affixed to prescription bottles, which were both hearsay and not authenticated. Because we fail to find merit in Appellant's second, third and fourth assignments of error, and because we have determined under Appellant's first assignment of error that his conviction was supported by sufficient evidence, we overrule all of the assignments of error raised by Appellant. Accordingly, the judgment of the trial court is affirmed.

FACTS

{¶ 2} On November 6, 2013, the Athens County Grand Jury indicted Appellant on one count of aggravated trafficking in drugs (oxycodone) in violation of R.C. 2925.03(A)(1), a third-degree felony, and one count of aggravated trafficking in drugs (oxycodone) in violation of R.C. 2925.03(A)(2), a third-degree felony. Each count carried an attendant forfeiture specification. Appellant pleaded not guilty and the matter proceeded to trial on November 19, 2015. Just prior to trial, the State dismissed count one of the indictment.

{¶ 3} The State presented several witnesses at trial, including Sergeant Coy Lehman of the Ohio State Highway Patrol. Sergeant Lehman testified that in the early morning hours of August 24, 2011, he received a call about a possible impaired driver traveling on Route 33 in Athens County. After locating the car and observing it swerve multiple times, Sergeant Lehman initiated a traffic stop. He testified that he asked Appellant, who was the driver, for his license and registration. Appellant admitted that he did not have a valid driver's license but provided Sergeant Lehman with a Florida identification card and a copy of the car's rental agreement. The agreement listed Tamara Cremeans, the mother of Appellant's child, as the authorized driver and showed an estimated return date of August 8, 2011.

{¶ 4} Sergeant Lehman testified that Appellant stated he and his girlfriend were traveling from Florida to Columbus, and as Appellant was speaking, Sergeant Lehman noticed that his "speech was very slurred, * * * his pupils were pinpoint, which [was] odd because it was dark and they should be dilated. His eyes were red. His actions were lethargic and slow. His facial features were droopy." Sergeant Lehman testified that because he did not smell alcohol on Appellant, he suspected Appellant was under the influence of drugs.

{¶ 5} Sergeant Lehman testified he noticed that Appellant's girlfriend also seemed impaired. While talking with her, Sergeant Lehman observed a prescription pill bottle lying near the gas pedal. The label on the bottle indicated that the pills were "Oxycodone" and that the prescription was filled for Appellant on August 22, 2011, just two days prior to the traffic stop. Sergeant Lehman testified that of the 180 pills that the prescription label indicated were originally in the bottle, "significantly less than 180 pills" remained. Sergeant Lehman testified that he then administered field sobriety tests to Appellant and that despite the fact the test results did not confirm his suspicions, he nevertheless placed Appellant under arrest for driving while under the influence of alcohol or drugs. Subsequent urine testing confirmed the presence of cocaine and marijuana metabolites in Appellant's system.

{¶ 6} During the search of Appellant's person, Sergeant Lehman found a "wad of cash" totaling $1,935.00 dollars. Sergeant Lehman testified that based on the number of missing pills and the large amount of cash, he suspected Appellant was transporting drugs. He further testified that after additional officers arrived on the scene, a search of the car yielded two more prescription pill bottles in Appellant's name and two cell phones. The record reveals that Appellant stated, on a recording of the traffic stop admitted a trial, that both of the cell phones in the car were his.

{¶ 7} The record reveals that of the 180 tablets that the label indicated were originally in the first bottle, which was found near the gas pedal in plain view, there were only 70 tablets remaining. The label on a second prescription pill bottle, which was found in the driver's door storage compartment, indicated that the pills were "Alprazolam" and that the prescription was filled for Appellant on August 22, 2011, as well. The label on that bottle indicated there were 84 pills, but of the 84 pills that the label indicated were originally in the bottle, there were only 37 whole and 14 broken pieces remaining. A third bottle containing oxycodone was found in the center console of the vehicle. The label on that bottle, also dated August 22, 2011, indicated there were 140 pills, but there were only 11 pills remaining. It was later determined that the bottles did in fact contain oxycodone, a schedule II controlled substance, and alprazolam, a schedule IV controlled substance. Thus, out of 320 oxycodone pills prescribed to Appellant just two days prior, 239 pills were missing at the time Appellant was stopped.

{¶ 8} The State also presented testimony from Detective Chuck Haegele, employed by the Athens City Police Department and assigned to the Athens Major Crimes Unit. Detective Haegele, though not involved with Appellant's stop or arrest, testified generally with respect to his specific training and experience in drug interdiction. The trial court allowed the detective's testimony, over the objection of Appellant, "just for background[,]" in response to the State's asserted purpose of educating the jury. Detective Haegele testified that he typically looks for certain drug interdiction factors or common indicators, including rental vehicles, not carrying identification, coming from other states, including Michigan, Florida and Washington, D.C., and carrying prescription pills, the most common being oxycontin or oxycodone.

{¶ 9} The jury ultimately found Appellant guilty of aggravated trafficking in drugs. However, it found that the State had not proved that the cash found on Appellant was derived through the commission of the offense. Appellant was subsequently sentenced to an eighteen-month prison term, an eighteen-month suspension of his operator's license, and fines totaling $6,935.00. Appellant now brings his timely appeal, assigning the following errors for our review.

ASSIGNMENTS OF ERROR

"I. THE TRIAL COURT VIOLATED CITO HILL'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT EVIDENCE, IT ENTERED A JUDGMENT OF CONVICTION FOR AGGRAVATED TRAFFICKING OF DRUGS.

II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PERMITTED THE STATE TO INTRODUCE EVIDENCE OF OTHER BAD ACTS, AND THUS DENIED CITO HILL HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

III. CITO HILL RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS ATTORNEY FAILED TO OBJECT TO PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT, IN VIOLATION OF MR. HILL'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED LABELS AFFIXED TO PRESCRIPTION BOTTLES, AND THE LABELS WERE BOTH HEARSAY AND NOT AUTHENTICATED."

ASSIGNMENT OF ERROR II

{¶ 10} For ease of analysis, we address Appellant's assignments of error out of order. In his second assignment of error, Appellant contends that the trial court abused its discretion when it permitted the State to introduce evidence of other bad acts, thus denying him his right to due process and a fair trial. Appellant's argument under this assignment of error is twofold. First, Appellant argues the trial court erred by allowing the jury to consider urinalysis results showing that he had ingested illicit drugs. Second, Appellant argues the trial court erred in allowing evidence of "drug interdiction" factors. Appellant argues the admission of this evidence violated Evid.R. 404(B). The trial court denied Appellant's motion in limine requesting this evidence and testimony be excluded. The State argues, with respect to the admission of the urine test results, that because defense counsel failed to object to the admission of testimony by expert witness, Emily McAnulty, this issue was not properly preserved for purposes of appeal.

{¶ 11} Generally, appellate courts do not directly review in limine rulings. State v. Hapney , 4th Dist. Washington No. 01CA30-31, 2002-Ohio-3250, ¶ 55, 2002 WL 1746755 ; citing State v. White , 4th Dist. Gallia No. 95CA08, 1996 WL 614190. Such rulings are tentative and interlocutory and made by a court only in anticipation of its actual ruling on evidentiary issues at trial. See McCabe/Marra Co. v. Dover , 100 Ohio App.3d 139, 160, 652 N.E.2d 236, 250 (8th Dist.1995) ; Collins v. Storer Communications, Inc. , 65 Ohio App.3d 443, 446, 584 N.E.2d 766 (1989). Thus, the grant or denial of a motion in limine does not preserve any error for review. See State v. Hill , 75 Ohio St.3d 195, 202-203, 661 N.E.2d 1068 (1996). Rather, in order to preserve the error, the evidence must be presented at trial, and a proper objection lodged. See State v. Brown , 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph three of the syllabus (1988); State v. Grubb , 28 Ohio St.3d 199, 503 N.E.2d 142, paragraph two of the syllabus (1986). An appellate court will then review the correctness of the trial court's ruling on the objection rather than the ruling on the motion in limine. See White, supra ; Wray v. Herrell , 4th Dist. Lawrence No. 93CA08, 1994 WL 64293.

{¶ 12} "A trial court has broad discretion in the admission or exclusion of evidence, and so long as such discretion is exercised in line with the rules of procedure and evidence, its judgment will not be reversed absent a clear showing of an abuse of discretion with attendant material prejudice to defendant." State v. Green , 184 Ohio App.3d 406, 2009-Ohio-5199, 921 N.E.2d 276, ¶ 14 (4th Dist.) ; citing State v. Powell , 177 Ohio App.3d 825, 2008-Ohio-4171, 896 N.E.2d 212, ¶ 33 (4th Dist). " 'Although the abuse of discretion standard usually affords maximum [deference] to the lower court, no court retains discretion to adopt an incorrect legal rule or to apply an appropriate rule in an inappropriate manner. Such a course of conduct would result in an abuse of discretion.' " See 2-J Supply, Inc. v. Garrett & Parker, L.L.C. , 4th Dist. Highland No. 13CA29, 2015-Ohio-2757, ¶ 9, 2015 WL 4113330 ; quoting Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals , 2013-Ohio-5610, 5 N.E.3d 694, ¶ 16. When applying the abuse-of-discretion standard of review, appellate courts must not substitute their judgment for that of the trial courts. See In re Jane Doe 1 , 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991). Furthermore, an appellate court must presume that the findings of the trial court are correct because the finder of fact is best able to observe the witnesses and to use those observations to weigh witness credibility. Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984) ; see also Mahlerwein v. Mahlerwein , 160 Ohio App.3d 564, 2005-Ohio-1835, 828 N.E.2d 153, ¶ 19 (4th Dist.).

{¶ 13} Appellant argues that the evidence related to urine testing and drug interdiction factors should have been excluded under Evid.R. 404(B), which provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." However, Evid.R. 404(B) also contains exceptions, stating that evidence may be admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

{¶ 14} A review of the record reveals that the State sought to introduce evidence, at the end of day one of the trial, regarding Appellant's impairment on the night of the traffic stop, in part with testimony and evidence related to the field sobriety tests that were conducted. Appellant objected, arguing such testimony constituted impermissible other acts evidence. The trial court decided to adjourn the trial for the day so that further discussion could be had outside the presence of the jury, but agreed that the evidence might constitute inadmissible other acts evidence. The trial resumed the next day with the State having filed a formal motion requesting the trial court to reconsider its prior ruling on the OVI evidence. The reason advanced by the State regarding the need for the evidence related to defense counsel's claim during both voir dire and opening statements that Appellant was stopped for nothing other than "driving while black."

{¶ 15} Appellant objected to the motion to reconsider, arguing that because he was not formally charged with Operating a Vehicle While Intoxicated (OVI), such evidence was irrelevant and also consisted of other bad acts evidence. After an extended bench conference at the beginning of day two of the trial, the trial court agreed and ruled that evidence related to Appellant's impairment, beyond his driving and the video and of the initial stop, were not relevant, would not be admitted, and thus the court denied the motion to reconsider.

{¶ 16} However, on day three of the trial, the State sought to introduce the urine test results from the urinalysis performed on Appellant the night of the stop, arguing that the results were admissible because Sergeant Lehman had stated one of the factors he considers in drug trafficking investigations is whether or not an individual is a drug user as well. The trial court held off ruling on the issue until later in the afternoon, and when it did it decided as follows:

"As a preliminary matter as to the issues raised by the State, by the State at the last break the Court will allow the testimony of the State's witness tomorrow morning. Defense counsel can lodge any objections to her testimony at the appropriate time. But the court will allow the testimony."

{¶ 17} The next morning, on day four of the trial, Appellant filed a written motion in limine, arguing that the urine test results were inadmissible. Appellant further asked the trial court to exclude "evidence related to drug trafficking indicators," including the urine test results. Appellant argued in his motion that the State's introduction of urine test results showing drug use, as well as testimony describing "drug trafficking indicators" such as "travelling between certain State's [sic], using rental cars, [and] using drugs * * *" is just another way of saying "that drug traffickers have certain character traits[,]" and that Evid.R. 404(B) specifically prohibits the use of other crimes, wrongs or acts to establish character or action in conformity therewith. Appellant argued that all of the drug trafficking indicators constituted other acts, wrongs or potential crimes, which the State was using to attempt to establish that he was a drug trafficker. The trial court denied the motion in limine, stating as follows:

"As an initial matter counsel for the defense has submitted a written Motion in Limine excluding evidence related to the indicators as was testified to yesterday. And as the Court has already ruled on that, having denied that motion, I don't believe we need to re-address that. But it is good to have that down in written form for the Court of Appeals to review."

Thereafter, the State presented witness Emily McAnulty, who is employed by the Ohio State Highway Patrol, and who was stipulated to as an expert by defense counsel. Ms. McAnulty testified that testing of Appellant's urine revealed the presence of marijuana metabolites and cocaine metabolites. She confirmed on cross examination that Appellant's urine was not tested for the presence of opiates. Appellant did not object to McAnulty's testimony, but did object to the admission of the urinalysis report.

{¶ 18} With respect to Appellant's argument that the trial court erred in allowing the jury to consider urinalysis results showing that he had ingested illicit drugs, we note that we do not actually review the trial court's ruling on the motion on the limine, but rather we review the trial court's ultimate ruling based upon a later objection to the admission of the evidence. Based upon the foregoing, it is clear that Appellant, despite filing a motion in limine seeking the exclusion of testimony by McAnulty and the urinalysis report itself, did not object to McAnulty's testimony. As such, we agree with the State's argument that this issue was not properly preserved for review. Despite the fact that Appellant did object to the later admission of the actual urinalysis report, McAnulty's testimony regarding the results of the urinalysis was already admitted into evidence.

{¶ 19} Further, assuming arguendo the issue was preserved by the objection to the admission of the urine test results themselves, we reject Appellant's assertion that the urine tests results were not relevant or admissible in the context of a charge of drug trafficking. The record reveals that Sergeant Lehman testified that an accused's drug use is a factor considered when investigating drug trafficking. Additionally, in State v. Dixon , 2016-Ohio-1491, 63 N.E.3d 591, ¶ 39 (overruled on other grounds by State v. Mozingo , 2016-Ohio-8292, 72 N.E.3d 661, Dixon argued that his trial counsel was ineffective for failing to object to the admission of testimony pertaining to his prior drug use, including his statement that he smokes crack. Dixon argued that his statement should have been excluded under Evid.R. 404(B) as evidence of other crimes, wrongs or acts, which are not admissible to prove the character of a person or to show action in conformity therewith. Id. The State argued that the testimony was not improper character testimony, but instead was admissible as a statement against interest, and also was evidence of motive, which is admissible under other acts. Id. This Court ultimately found that Dixon's statement regarding his personal drug use "was admissible for purposes of showing knowledge of the existence of the drugs at issue, as well as motive for his involvement in the transportation of drugs." Id. at ¶ 41. Thus, we found Dixon's personal drug use to be both relevant and admissible as an exception to Evid.R. 404(B), as it demonstrated Dixon's motive and knowledge in the context of drug trafficking. The same reasoning applies to the facts presently before us and leads us to conclude that the trial court did not err or abuse its discretion in admitting the testimony of Emily McAnulty as well as the urinalysis report. As such, we reject this portion of Appellant's second assignment of error.

{¶ 20} Next, with respect to Appellant's argument that the trial court erred in allowing evidence of "drug interdiction" factors, we note that Appellant cites no authority whatsoever in support of his argument. Further, this Court has been unable to locate any authority which indicates that testimony regarding "drug interdiction" factors or common indicators of drug trafficking, constitute impermissible other acts evidence. In fact, courts in Ohio, including this Court, routinely review and consider testimony regarding such factors given by law enforcement officers, based upon their training and experience in drug interdiction. See State v. Dixon, supra , at ¶ 18 (significance of admission of drug use better understood when considered in light of trooper testimony that based on his experience working drug interdiction, drugs travel south and money travels north); State v. Alexander-Lindsey , 2016-Ohio-3033, 65 N.E.3d 129, ¶ 26-27 (noting drug interdiction factors including the fact that the accused was travelling on a major drug route and noting it has been held that " '[t]he reputation of an area for criminal activity is an articulable fact upon which a police officer may legitimately rely * * *.' ") (internal citations omitted); State v. Fain , 5th Dist. Delaware No. 06CAA120094, 2007-Ohio-4854, ¶ 13, 38, 2007 WL 2729820 (noting that one common indicator of drug trafficking is the use of multiple cell phones and that "drug traffickers frequently do not utilize their own vehicles.").

{¶ 21} Here, Sergeant Lehman was permitted to define and describe drug interdiction to educate the jury. He was permitted to testify regarding common indicators of drug trafficking based upon his training and experience in drug interdiction. Likewise, Detective Chuck Haegele with the Athens City Police Department was permitted to testify regarding his training in drug interdiction and common indicators seen in drug trafficking cases. Appellant acknowledged in his motion in limine that drug interdiction factors are admissible to establish the basis for stops and seizures when evaluating Fourth Amendment issues, noting that the rules of evidence do not apply at suppression hearings. Thus, Appellant seems to argue that although such factors are relevant and admissible to justify an initial stop or search, they are not relevant or admissible in determining guilt at trial. We disagree.

{¶ 22} Again, Appellant cites no authority which suggests that these factors, in a totality of the circumstances analysis, cannot constitute circumstantial evidence to be considered by a jury in determining guilt. As such, we find no error or abuse of discretion in the trial court's allowance of this testimony herein. Accordingly, having found no merit in either of the arguments raised under this assignment of error, Appellant's second assignment of error is overruled.

ASSIGNMENT OF ERROR IV

{¶ 23} In his fourth assignment of error, Appellant contends that the trial court abused its discretion when it admitted labels affixed to prescription bottles, arguing the labels were both hearsay and not authenticated. Appellant contends, with respect to his authenticity argument, that the authentication requirement demands that there be "evidence sufficient to support a finding that the matter in question is what its proponent claims[,]" citing Evid.R. 901(A) in support. Appellant argues this requirement could not be satisfied because the State could not decide throughout trial whether the prescription labels were authentic or not, offering some witnesses who opined the prescriptions were filled at a pharmacy, but then arguing during closing arguments that the labels may have been printed by Appellant himself. Appellant further argues that the labels constituted hearsay, were offered for the truth of the matter asserted (the number of pills in each bottle), and not subject to a hearsay exception. Based upon the following, we reject Appellant's arguments.

{¶ 24} " 'The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.' " State v. Jones , 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 185 ; quoting State v. Sage , 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. We will not reverse the trial court's decision absent an abuse of discretion, which implies an unreasonable, unconscionable, or arbitrary attitude. State v. Inman , 4th Dist. Ross No. 13CA3374, 2014-Ohio-786, ¶ 20, 2014 WL 861499. 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). "To constitute hearsay, two elements are needed. First, there must be an out-of-court statement. Second, the statement must be offered to prove the truth of the matter asserted. If either element is not present, the statement is not 'hearsay.' " State v. Maurer , 15 Ohio St.3d 239, 262, 473 N.E.2d 768 (1984). Further, "[h]earsay is generally not admissible unless it falls within one of the recognized exceptions." State v. Agosta , 5th Dist. Fairfield No. 11-CA-53, 2012-Ohio-3225, ¶ 33, 2012 WL 2903922 ; citing Evid.R. 802 ; State v. Steffen , 31 Ohio St.3d 111, 119, 509 N.E.2d 383 (1987).

{¶ 25} In State v. Agosta , the court was confronted with an argument the trial court erred in admitting hearsay statements, which consisted of testimony by an officer as to the written warnings on canisters found in a the defendant's vehicle. Id. at ¶ 31. In analyzing the question before it, the Agosta court looked to its previous decision in State v. Taylor , 5th Dist. Ashland No. 05COA062, 2006-Ohio-6559, 2006 WL 3616734, in which the appellant therein argued that the warning label on a prescription bottle constituted inadmissible hearsay that should not have been admitted as evidence. The Agosta court noted that in Taylor , it had previously stated as follows in holding that the references to the warning label did not constitute hearsay:

" 'The prescription bottle was marked as evidence and received as Exhibit 8. T. at 191. During oral argument, appellant's counsel attempted to move for an App.R. 9(E) correction of the record. Counsel argued an objection was made to the prescription bottle's admission, but it was omitted from the record. Although defense counsel objected at each mention of the warning label, there is no specific assignment of error on the prescription bottle's admission into evidence; therefore, we find the App.R. 9(E) request to be irrelevant.' " Agosta at ¶36 ; quoting Taylor at ¶ 12.

Agosta further noted the following reasoning in Taylor :

" 'The prescription bottle was seized during appellant's arrest and qualified as relevant and admissible evidence under Evid.R. 401. Appellant admitted to taking Vicodin and it was in his possession during his arrest. T. at 76. We therefore conclude the references to the warning label did not constitute hearsay and were relevant.' " Agosta at ¶ 37 ; quoting Taylor at ¶ 13.

Much as in Taylor, Agosta had not assigned as error the admission of the actual canisters. As such, and based upon the reasoning of Taylor , the court held the canisters that were seized during the arrest were admissible evidence under Evid.R. 401 and that testimony referencing the warning label on the canister did not constitute hearsay. The same reasoning applies here as Appellant has only assigned error related to the labels, and not admission of the prescription bottles themselves, which were found in the vehicle being driven by Appellant on the night of his arrest. Thus, we conclude that the prescription bottles and affixed labels are relevant, admissible and, we believe, also authenticated, by the fact they were found in Appellant's possession when he was arrested.

{¶ 26} We further conclude that assuming arguendo the labels constitute hearsay, they are admissible under the business records exception to the hearsay rule. See State v. Mitchell , 18 Ohio App.2d 1, 9, 246 N.E.2d 586 (10th Dist.1969) (holding that "[t]he labels in question are not hearsay, but if they are so regarded, they are an exception to the hearsay rule, as provided by the uniform-business-records statute, but, still further, they are real evidence, which could well have been used as an exhibit, and admitted as evidence, supported by circumstantial probability of trustworthiness.")

{¶ 27} Based upon the foregoing case law and reasoning, we conclude that the prescription labels at issue did not constitute hearsay, but instead were real evidence seized during Appellant's arrest that were properly admitted as exhibits during trial. We further note that much like Agosta and Taylor , Appellant's arguments involve the admission of the labels, not the bottles themselves, which were properly admitted as exhibits. Further, even if the labels could be considered hearsay, we conclude they fall under the business records exception to the hearsay rule. See State v. Mitchell, supra. Accordingly, Appellant's fourth assignment of error is overruled.

ASSIGNMENT OF ERROR I

{¶ 28} In his first assignment of error, Appellant contends his rights to due process and a fair trial were violated when, in the absence of sufficient evidence, the trial court entered a judgment of conviction for aggravated trafficking of drugs. The State contends Appellant's conviction is supported by sufficient evidence. We begin by considering the appropriate standard of review when confronted with a sufficiency of the evidence argument.

{¶ 29} A claim of insufficient evidence invokes a due process concern and raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence, an appellate court's inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt. Thompkins , syllabus. The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. E.g., Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Jenks , 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). Furthermore, a reviewing court is not to assess "whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction." Thompkins at 390, 678 N.E.2d 541.

{¶ 30} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate court must construe the evidence in a light most favorable to the prosecution. E.g., State v. Hill , 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996) ; State v. Grant , 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a sufficiency-of-the-evidence claim unless reasonable minds could not reach the conclusion that the trier of fact did. State v. Tibbetts , 92 Ohio St.3d 146, 162, 749 N.E.2d 226 (2001) ; State v. Treesh , 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001). Here, after our review of the record we believe that the State presented sufficient evidence to support Appellant's drug trafficking conviction.

{¶ 31} R.C. 2925.03(A)(2) sets forth the offense of drug trafficking as charged in the indictment and states: "No person shall knowingly do any of the following: * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person." Drug trafficking offenses involve an element of knowledge. "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B).

{¶ 32} " '[D]irect evidence of a fact is not required. Circumstantial evidence * * * may also be more certain, satisfying, and persuasive than direct evidence.' " State v. Grube , 987 N.E.2d 287, 2013-Ohio-692, ¶ 30 ; quoting State v. Lott , 51 Ohio St.3d 160, 555 N.E.2d 293 (1990) ; citing Michalic v. Cleveland Tankers, Inc. , 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960) ; citing Rogers v. Missouri Pacific RR Co , 352 U.S. 500, 508, 77 S.Ct. 443, fn.17, 1 L.Ed.2d 493 (1957). " 'Even murder convictions and death sentences can rest solely on circumstantial evidence.' " Grube, supra ; citing State v. Apanovitch , 33 Ohio St.3d 19, 514 N.E.2d 394 (1987) ; State v. Nicely , 39 Ohio St.3d 147, 151, 529 N.E.2d 1236, 1239 (1988) ; State v. Adkins , 4th Dist. Scioto No. 14CA3674, 2016-Ohio-7250, ¶ 15, 2016 WL 5887354. Further, as we reasoned in State v. Woodruff , 4th Dist. Ross No. 07CA2972, 2008-Ohio-967, ¶ 9, 2008 WL 613115, "[a]bsent an admission by a defendant, the state must rely on circumstantial evidence to satisfy the reasonable cause to believe element."

{¶ 33} Here, Appellant's argument that the State failed to prove beyond a reasonable doubt that he knew or had reasonable cause to believe that the oxycodone in his possession was intended for sale or resale fails due to the circumstantial evidence presented by the State at trial. Specifically, based upon the record before us, we believe it was reasonable for the jury to conclude, based upon the reasonable inferences it was permitted to make, that Appellant was trafficking in oxycodone. For instance, the jury was presented with evidence that Appellant was driving a rented car that was not rented in his name, and which had an estimated return date of more than two weeks prior. The jury was also presented with evidence that in the thirty days the car had been rented, it had been driven nearly 10,000 miles. The jury was informed that Appellant did not have a valid driver's license, but that he produced an identification card from the State of Florida.

{¶ 34} Further, evidence was also presented to the jury indicating three prescription pill bottles were found in the vehicle Appellant was driving, all in Appellant's name and filled just two days prior from a pharmacy in Florida. The jury heard testimony from Sergeant Lehman that of 320 oxycodone pills collectively prescribed to Appellant according to the prescription labels, only 81 pills remained after just being filled just two days prior. Thus, 239 oxycodone pills were missing. Additionally, with regard to the third prescription, which was for Alprazolam, the jury heard testimony that of the 84 pills prescribed just two days prior, only 37 whole pills and 14 broken pills remained. The jury was presented with evidence that in addition to the number of pills missing from the prescription bottles found, law enforcement also found two cells phones in the vehicle and a large sum of cash on Appellant's person.

{¶ 35} Moreover, the jury listened to testimony by Sergeant Lehman that in his experience as a law enforcement officer and his work involving drug interdiction, it is common to see drugs coming into the State of Ohio from Florida, especially in vehicles rented in another person's name. Sergeant Lehman also testified regarding certain other drug interdiction factors that indicate drug trafficking, including having multiple cell phones and carrying large quantities of cash. He also testified that having broken pills is a drug interdiction factor indicative of drug trafficking.

{¶ 36} We find, based on the evidence it had before it, that the jury could have reasonably inferred that Appellant was engaging in drug trafficking. Based upon the above evidence, the jury could reasonably infer that the reason Appellant only had 81 oxycodone pills remaining from a total of 320 prescribed just two days prior, was because he was trafficking in drugs. See Westlake v. Wilson , 8th Dist. Cuyahoga No. 96948, 2012-Ohio-2192, ¶ 38, 2012 WL 1755165 ; citing State v. Byers , 8th Dist. Cuyahoga No. 94922, 2011-Ohio-342, ¶ 9, 2011 WL 315453 ("Although this court has recognized that having a cell phone is ubiquitous and therefore possession of one cell phone is not ipso facto proof that it was used in drug trafficking, the same cannot be said about having two cell phones."); State v. Young , 8th Dist. Cuyahoga No. 92744, 2010-Ohio-3402, ¶ 19, 2010 WL 2854239 ("We have held in several cases that police officers may testify to the nature and amount of drugs and its significance in drug trafficking."); State v. Nelson , 8th Dist. Cuyahoga No. 100439, 2014-Ohio-2189, ¶ 20, 2014 WL 2159011 (using a rental car is significant indicia of drug trafficking because traffickers know that their own personal vehicles will be seized and the rental cars are more difficult to identify during police surveillance); State v. Young , 8th Dist. Cuyahoga No. 92744, 2010-Ohio-3402, ¶¶ 15-19, 2010 WL 2854239 (the fact that no drug paraphernalia was found on appellant as well as the quantity of crack recovered undercut argument the drugs were for personal use).

{¶ 37} Here, evidence before the jury consisted of a finding of a large quantity of missing drugs, multiple cell phones, a large quantity of cash, and a rental car not in the driver's name that was overdue for return with a very large number of miles on it, being driven from Florida to Ohio. Although the amount of drugs recovered are not necessarily indicative of drug trafficking, it is the amount of drugs missing from the prescription bottles which gives rise to a reasonable inference that the drugs were being trafficked, especially in light of the fact that the labels indicate the prescriptions were filled just two days prior.

Common sense dictates that even if Appellant was using the drugs, he could not have possibly used the number of pills that were unaccounted for in a two day time span and still be living. Further, even though no charges were made with respect to the prescription for Alprazolam, the fact that several of those pills were also missing, along with the presence of several broken pills, is pertinent to a totality of the circumstances analysis. We conclude, based upon the evidence before it and the totality of the circumstances, the inferences made and conclusions reached by the jury are supported by the record.

{¶ 38} Consequently, we find that the State presented sufficient evidence that, if believed, established that Appellant trafficked in oxycodone by transporting a controlled substance when he knew or had reasonable cause to believe that the controlled substance was intended for sale or resale by the offender or another person. Accordingly, Appellant's first assignment of error is overruled.

ASSIGNMENT OF ERROR III

{¶ 39} In his third assignment of error, Appellant contends that he received ineffective assistance of counsel because his attorney failed to object to prosecutorial misconduct in closing argument, thus denying him his constitutional rights under the Fifth, Sixth and Fourteenth Amendments. We initially note that failure to object to an alleged error waives all but plain error. State v. Keeley , 4th Dist. Washington No. 11CA5, 2012-Ohio-3564, ¶ 28, 2012 WL 3194355. Notice of Crim.R. 52(B) plain error must be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Rohrbaugh , 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 6 ; State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. To find plain error, the outcome of trial must clearly have been otherwise. State v. McCausland , 124 Ohio St.3d 8, 2009-Ohio-5933, 918 N.E.2d 507, ¶ 15 ; State v. Braden , 98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 50.

{¶ 40} "The test for prosecutorial misconduct is whether the conduct was improper and, if so, whether the rights of the accused were materially prejudiced." State v. Purdin , 4th Dist. Adams No. 12CA944, 2013-Ohio-22, ¶ 31, 2013 WL 84897 ; quoting State v. Leonard , 4th Dist. Athens No. 08CA24, 2009-Ohio-6191, ¶ 36, 2009 WL 4050254 ; citing State v. Smith , 97 Ohio St.3d 367, 2002-Ohio-6659, 780 N.E.2d 221, ¶ 45, in turn citing State v. Smith , 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). "The 'conduct of a prosecuting attorney during trial cannot be grounds for error unless the conduct deprives the defendant of a fair trial.' " Purdin at ¶ 31 ; quoting State v. Givens , 4th Dist. Washington No. 07CA19, 2008-Ohio-1202, ¶ 28, 2008 WL 699044 ; quoting State v. Gest , 108 Ohio App.3d 248, 257, 670 N.E.2d 536 (8th Dist.1995). Accord State v. Apanovitch , 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). "Prosecutorial misconduct constitutes reversible error only in rare instances." Purdin, supra ; quoting State v. Edgington , 4th Dist. Ross No. 05CA2866, 2006-Ohio-3712, ¶ 18, 2006 WL 2023554 ; citing State v. Keenan , 66 Ohio St.3d 402, 406, 613 N.E.2d 203 (1993). The "touchstone analysis * * * is the fairness of the trial, not the culpability of the prosecutor. * * * The Constitution does not guarantee an 'error free, perfect trial.' " Purdin at ¶ 31 ; quoting Leonard at ¶ 36 ; quoting Gest at 257, 670 N.E.2d 536.

{¶ 41} Criminal defendants have a right to counsel, including a right to the effective assistance from counsel. McMann v. Richardson , 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ;

State v. Stout , 4th Dist. Gallia No. 07CA5, 2008-Ohio-1366, ¶ 21, 2008 WL 757521. To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel's performance was deficient and (2) that the deficient performance prejudiced the defense and deprived him of a fair trial. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Issa , 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001) ; State v. Goff , 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). "In order to show deficient performance, the defendant must prove that counsel's performance fell below an objective level of reasonable representation. To show prejudice, the defendant must show a reasonable probability that, but for counsel's error, the result of the proceeding would have been different." State v. Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95 (citations omitted). "Failure to establish either element is fatal to the claim." State v. Jones , 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14, 2008 WL 613116. Therefore, if one element is dispositive, a court need not analyze both. State v. Madrigal , 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, (stating that a defendant's failure to satisfy one of the elements "negates a court's need to consider the other").

{¶ 42} When considering whether trial counsel's representation amounts to deficient performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland at 689, 104 S.Ct. 2052. Thus, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. "A properly licensed attorney is presumed to execute his duties in an ethical and competent manner." State v. Taylor , 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10, 2008 WL 343328 ; citing State v. Smith , 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, a defendant bears the burden to show ineffectiveness by demonstrating that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62 ; State v. Hamblin , 37 Ohio St.3d 153, 524 N.E.2d 476 (1988).

{¶ 43} To establish prejudice, a defendant must demonstrate that a reasonable probability exists that but for counsel's errors, the result of the trial would have been different. State v. White , 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998) ; State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus. Furthermore, courts may not simply assume the existence of prejudice, but must require that prejudice be affirmatively demonstrated. See State v. Clark , 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 22, 2003 WL 1756101 ; State v. Tucker , 4th Dist. Ross No. 01CA2592, 2002-Ohio-1597, 2002 WL 507529 ; State v. Kuntz , 4th Dist. Ross No. 1691, 1992 WL 42774.

{¶ 44} Here, Appellant claims that although trial counsel consistently objected throughout the trial when the State tried to offer evidence of Appellant's possible driving while using illicit drugs, trial counsel did not object when the State was arguing other acts as substantive evidence of guilt in closing argument. Trial counsel's failure to object to alleged instances of prosecutorial misconduct "does not necessarily constitute ineffective assistance" of counsel. State v. Topping , 4th Dist. Lawrence No. 11CA6, 2012-Ohio-5617, ¶ 80, 2012 WL 6017986 ; citing State v. Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 230 ;

State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 62. That is, a failure to object does not necessarily fall below an objective standard of reasonableness. Topping, supra. Instead, a failure to object to alleged instances of prosecutorial misconduct may be considered sound trial strategy. Id ; State v. Brown , 5th Dist. Stark No. 2007CA15, 2008-Ohio-3118, ¶ 58, 2008 WL 2587050 (stating that failure to object to prosecutor's statements during closing arguments may have been trial strategy and thus did not constitute deficient performance).

{¶ 45} " 'A competent trial attorney might well eschew objecting * * * in order to minimize jury attention to the damaging material.' " Topping, supra ; quoting State v. Mundt , 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 90 ; quoting United States v. Payne , 741 F.2d 887, 891 (C.A.7 1984). Accord State v. Franklin , 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 42 (stating that "[a] reasonable attorney may decide not to interrupt his adversary's argument as a matter of strategy"); State v. Clay , 7th Dist. Mahoning No. 08MA2, 2009-Ohio-1204, ¶ 141, 2009 WL 684585 (stating that "[l]imiting objection during closing is a trial tactic to avoid trying to draw attention to the statements."). Thus, in order to establish that trial counsel performed deficiently by failing to object to error at trial, the defendant ordinarily must demonstrate that the error "is so compelling that competent counsel would have been obligated to object to [it] at trial." Topping, supra ; quoting State v. Hale , 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 233.

{¶ 46} The Supreme Court of Ohio has recognized that if counsel decides, for strategic reasons, not to pursue every possible trial strategy, the defendant is not denied effective assistance of counsel. State v. Black , 4th Dist. Ross No. 12CA3327, 2013-Ohio-2105, ¶ 40, 2013 WL 2295697 ; State v. Brown , 38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988). "Speculation regarding the prejudicial effects of counsel's performance will not establish ineffective assistance of counsel." Leonard,supra , at ¶ 68 ; quoting State v. Cromartie , 9th Dist. Medina No. 06CA0107-M, 2008-Ohio-273, ¶ 25, 2008 WL 216352. An appellate court reviewing an ineffective assistance of counsel claim "must refrain from second-guessing the strategic decisions of trial counsel." Black, supra ; quoting State v. Carter , 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).

{¶ 47} In this case, we have already determined that the trial court did not err or abuse its discretion in admitting testimony and evidence indicating Appellant's urine tests results revealed he had taken illicit drugs on the night of his traffic stop and arrest. Thus, it cannot be said that the prosecutor's statements were improper or constituted prosecutorial misconduct in light of this ruling. Nor can it be argued defense counsel was ineffective for failing to object in light of the trial court's prior ruling. In light of the prior ruling, defense counsel could have reasonably determined it was a better strategy not to continue to draw attention to the evidence by continuing to lodge objections. Further, we are mindful that both the prosecution and the defense have wide latitude during opening and closing arguments. State v. Waters , 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109, ¶ 33, 2014 WL 3511814 ; citing Sunbury v. Sullivan , 5th Dist. Delaware No. 11CACO30025, 2012-Ohio-3699, ¶ 30, 2012 WL 3525617. Even if it was not sound strategy for defense counsel not to object to the complained of statement, we rely on the instructions given to the jury, which inform the jury that statements of counsel are not to be considered as evidence. For instance, the jury was instructed that "[t]he evidence does not include * * * the opening or closing arguments of counsel." Further, the jury was instructed that "[t]he evidence does not include the indictment or the opening statements or closing arguments of counsel. The opening statements and closing arguments of counsel are designed to assist you. They are not evidence." " 'A presumption always exists that the jury has followed the instructions given to it by the trial court.' " State v. Murphy , 4th Dist. Scioto No. 09CA3311, 2010-Ohio-5031, ¶ 81, 2010 WL 4027745 ; quoting Pang v. Minch , 53 Ohio St.3d 186, 559 N.E.2d 1313 (1990), paragraph four of the syllabus.

{¶ 48} As such, based upon a review of the record and considering the complained of statements within the context of the entire trial, we cannot say the Appellant would not have been convicted in the absence of the statements. Further, we have already noted that Appellant's conviction was based upon sufficient evidence. Based on the trial court's instructions, as well as the other evidence in the record which sufficiently supports Appellant's conviction, we cannot say that the prosecutors' statements made during closing argument, which were not objected to by defense counsel, changed the outcome of the trial. Nor can we conclude that but for counsel's errors, the result of the trial would have been different. Accordingly, we cannot conclude Appellant's trial counsel was ineffective. Thus, we find no merit to Appellant's third assignment of error and affirm the judgment of the trial court.

JUDGMENT AFFIRMED.

Abele, J.: Concurs in Judgment and Opinion.

Hoover, J.: Dissents with Dissenting Opinion.

Hoover, J., dissenting:

{¶ 49} I respectfully dissent from the majority opinion because I believe that Appellant's conviction is supported by insufficient evidence.

{¶ 50} Appellant was charged with drug trafficking under R.C. 2925.03(A)(2). This section of the drug trafficking statute requires some evidence that the offender actually prepares a drug for shipment, or ships a drug, or transports a drug, or delivers a drug, or prepares for distribution a drug, or actually distributes a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person. (Emphasis added.) Compare R.C. 2925.03(A)(2)with 2925.03(A)(1) ("No person shall knowingly * * *[s]ell or offer to sell a controlled substance or a controlled substance analog.").

{¶ 51} "An element of an offense may be established by either circumstantial or direct evidence or both." State v. Lowe , 86 Ohio App.3d 749, 753, 621 N.E.2d 1244 (4th Dist.1993). "In general, circumstantial evidence and direct evidence possess the same probative value." State v. Husted , 4th Dist. Ross No. 14CA3447, 23 N.E.3d 253, 2014-Ohio-4978, ¶ 15, citing State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus.

{¶ 52} "Circumstantial evidence has been defined as testimony not grounded on actual personal knowledge or observation of the facts in controversy, but of other facts from which inferences are drawn, showing indirectly the facts sought to be established." State v. Payne , 11th Dist. Ashtabula No. 2014-A-0001, 2014-Ohio-4304, ¶ 22, 2014 WL 4825334, citing State v. Nicely , 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988). " 'An 'inference' is a conclusion which, by means of data founded upon common experience, natural reason draws from facts which are proven.' " State v. Nevius , 147 Ohio St. 263, 274, 71 N.E.2d 258 (1947), quoting Ensel v. Lumber Ins. Co. of New York , 88 Ohio St. 269, 102 N.E. 955 (1913), paragraph thirteen of the syllabus.

{¶ 53} "A trier of fact may not draw '[a]n inference based * * * entirely upon another inference, unsupported by any additional fact or another inference from other facts[.]' " State v. Cowans , 87 Ohio St.3d 68, 78, 717 N.E.2d 298 (1999), quoting Hurt v. Charles J. Rogers Transp. Co. , 164 Ohio St. 329, 130 N.E.2d 820 (1955), paragraph one of the syllabus. "When an inference, which forms the basis of a conviction, is drawn solely from another inference and that inference is not supported by any additional facts or inferences drawn from other established facts, the conviction is improper." Armstrong , 2014-Ohio-4304, at ¶ 23, citing State v. Maynard , 10th Dist. Franklin No. 11AP-697, 2012-Ohio-2946, ¶ 27, 2012 WL 2463966. "The rule against inference-stacking essentially forbids the drawing of an inference from evidence, which is too uncertain or speculative or which raises merely a possibility or conjecture. While reasonable inferences may be drawn from the facts and conditions established, they cannot be drawn from facts or conditions merely assumed." Armstrong at ¶ 23. See generally Ray v. Wal-Mart Stores, Inc. , 4th Dist. Washington No. 12CA21, 993 N.E.2d 808, 2013-Ohio-2684, ¶ 35 (discussing improper inference stacking).

{¶ 54} The evidence presented at trial was that Appellant possessed three, prescription-pill bottles containing significantly fewer pills than the labels suggested they should. All three labels stated that the prescriptions had been filled for Appellant at pharmacies in Florida roughly 48 hours before the traffic stop. The first bottle contained only 70 of 180 oxycodone pills; the second bottle contained only about 37 of 84 alprazolam pills; and the third bottle contained only 11 of 140 oxycodone pills. Appellant also had more than one cell phone and nearly two thousand dollars in cash in his pocket.

{¶ 55} There were also several things about Appellant's situation that were consistent with someone trafficking in drugs. For example, Florida is a known source of oxycodone; and traffickers often transport drugs in rental cars. Records also confirmed that the car Appellant was driving had been driven nearly ten thousand miles since being rented on August 1, 2011.

{¶ 56} However, the State presented no evidence at trial from which a jury could find beyond a reasonable doubt that Appellant transported his remaining oxycodone pills when he knew or had reasonable cause to believe that the drug was intended for sale or resale. For example, the State presented no evidence that the remaining pills were cut for sale, that Appellant possessed items to package the pills for sale (e.g., plastic baggies) or that Appellant's phones contained text messages about future sales.

{¶ 57} Furthermore, the State did not present any evidence at trial that Appellant sold his missing oxycodone pills. For example, no testimony is in the record that officers made a controlled buy from Appellant or that Appellant's cell phones contained text messages about past sales.

{¶ 58} The jury necessarily must have based an inference upon another inferential assumption in order to find beyond a reasonable doubt that Hill knew the oxycodone was intended for sale or resale. Specifically, the jury had to have inferred that Hill had been selling oxycodone based on the number of missing pills in the bottles and then inferred that he intended to sell his remaining oxycodone pills. Because no evidence exists in the record from which a jury could infer that Appellant sold his missing pills, this inference "was dependent not upon an established fact, but upon another inferential assumption" and is therefore improper. (Emphasis sic.) State v. Armstrong , 2016-Ohio-7841, at ¶ 28, 2016 WL 6876504.

{¶ 59} "Normally, convictions are based on specific facts that support or establish the elements of a crime charged. While it is certainly acceptable to infer certain facts or circumstances from the evidence at hand, inferences that establish criminal elements based on other inferences not established in fact thwart how criminal liability should be established in our system of justice." State v. Collins , 8th Dist. Cuyahoga No. 95422, 2011-Ohio-4808, ¶ 25, 2011 WL 4389539.

{¶ 60} Accordingly, I would sustain Appellant's first assignment of error and reverse the judgment of the trial court.

      Officers also found another prescription pill bottle in Appellant's girlfriend's name, which was empty, as well as a bottle of "Ultra Scent."


author: M. POWELL, J.

text:
    Doreen BARROW, et al., Plaintiffs-Appellees, v. VILLAGE OF NEW MIAMI, et al., Defendants-Appellants.
    NO. CA2017-03-031
    Court of Appeals of Ohio, Twelfth District, Butler County.
    January 22, 2018
    Engel & Martin, LLC, Joshua A. Engel, 4660 Duke Drive, Suite 101, Mason, Ohio 45040, for plaintiff-appellee, Doreen Barrow
    Rittgers & Rittgers, Charles H. Rittgers, 12 East Warren Street, Lebanon, Ohio 45036, for plaintiff-appellee, Michelle Johnson
    Michael K. Allen & Associates, LLC, Michael K. Allen, 810 Sycamore Street, 5th Floor, Cincinnati, Ohio 45202, for plaintiff-appellee, Don Muirheid
    Markovits, Stock & DeMarco, LLC, Paul M. DeMarco, 3825 Edwards Road, Suite 650, Cincinnati, Ohio 45209, for plaintiff-appellee, Diane Woods
    Rendigs, Fry, Kiely & Dennis, LLP, Felix J. Gora and James J. Englert, 600 Vine Street, Suite 2650, Cincinnati, Ohio 45202, for defendant-appellant, Village of New Miami
    Rendigs, Fry, Kiely & Dennis, LLP, Anthony G. Raluy, 500 West Jefferson Street, Suite 1515, Louisville, Kentucky 40202, for defendant-appellant, Village of New Miami
   M. POWELL, J.

{¶ 1} Defendant-appellant, the village of New Miami, Ohio ("New Miami"), appeals a decision of the Butler County Court of Common Pleas denying its motion for summary judgment seeking governmental immunity pursuant to R.C. Chapter 2744. This interlocutory appeal is limited to the issue of whether the trial court erred in denying New Miami sovereign immunity under R.C. Chapter 2744.

{¶ 2} New Miami operates a civil enforcement program to deter motorists from exceeding the speed limit at several village street intersections. The Automated Speed Enforcement Program was instituted in July 2012 with the adoption of Ordinance 1917 (hereinafter "ASEP"). If a vehicle exceeds the posted speed limit, a camera photographs the license plate and the registered owner of the vehicle receives a Notice of Liability in the mail. Pursuant to the Notice of Liability, motorists may pay the penalty, thus waiving the right to a hearing. Alternatively, motorists may request a hearing within 30 days from the date of the violation. A motorist may file an administrative appeal from the result of the hearing to the Butler County Common Pleas Court pursuant to R.C. 2506.01. Motorists who neglect to pay the penalty are subject to a late fee and are referred to a collection agency, and the judgment against them is reported to credit reporting agencies.

{¶ 3} New Miami entered into a contract with Maryland Optotraffic, LLC, to operate the program. Pursuant to the contract, the penalties are paid directly to Optotraffic which retains 40 percent of the penalties as compensation for its services in administering the program; the remaining 60 percent of the penalties is forwarded to New Miami. Since the program's inception in 2012, over three million dollars have been collected, with New Miami receiving $1,839,914.14 and Optotraffic retaining $1,226,609.41.

{¶ 4} Doreen Barrow and other similarly situated individuals ("Plaintiffs") are all motorists who were sent Notices of Liability. Some of the Plaintiffs paid the penalty and some did not. In 2013, Plaintiffs collectively filed suit against New Miami challenging ASEP and seeking class action certification. Count 1 sought a declaration that ASEP improperly divested the municipal court of jurisdiction over traffic violations in contravention of the Ohio Constitution. Count 2 sought a declaration that ASEP violated Plaintiffs' due process rights. Count 3 prayed for injunctive relief prohibiting continued enforcement of ASEP. Finally, Count 4 sought equitable restitution of any penalties, fees, or charges ("penalties") paid by Plaintiffs pursuant to ASEP, on the ground that retention of the penalties would unjustly enrich New Miami.

{¶ 5} In March 2014, the trial court granted partial summary judgment to Plaintiffs on Counts 1, 2, and 3 and denied New Miami's motion for summary judgment. The trial court found that ASEP unlawfully divested the municipal court of jurisdiction and violated the Ohio Constitution's guarantee of "due course of law." The trial court granted an injunction against continued enforcement of ASEP. Subsequently, Plaintiffs moved for summary judgment regarding their unjust enrichment/restitution claim. The trial court certified a class comprised of all persons who had received Notices of Liability under ASEP.

{¶ 6} New Miami appealed the class action certification decision. On December 30, 2014, we reversed and remanded for the trial court to clarify its Civ.R. 23 findings in support of certification. Barrow v. New Miami , 12th Dist. Butler No. CA2014-04-092, 2014-Ohio-5743, 2014 WL 7390202 (" Barrow I "). On remand, the trial court articulated its rationale, made the requisite findings, and certified the class. New Miami once again appealed. On February 1, 2016, we affirmed the trial court's class certification. Barrow v. New Miami , 2016-Ohio-340, 58 N.E.3d 532 (" Barrow II ").

{¶ 7} Subsequently, the parties renewed their motions for summary judgment regarding Plaintiffs' unjust enrichment/restitution claim in Count 4. New Miami argued it was immune from liability pursuant to the political subdivision immunity of R.C. Chapter 2744. On February 8, 2017, the trial court granted Plaintiffs' motion for summary judgment and denied New Miami's cross motion for summary judgment, finding that New Miami was not entitled to sovereign immunity under R.C. Chapter 2744 because Plaintiffs' unjust enrichment/restitution claim was an equitable claim, not a legal claim. Specifically, the trial court found that Plaintiffs were neither seeking to impose personal liability on New Miami nor money damages from the village. Rather, Plaintiffs were seeking "the restoration, refund, or return" of the penalties they were forced to pay pursuant to the unconstitutional ordinance, that were wrongfully collected by New Miami, and that were in New Miami's possession. As such, the trial court ruled, Plaintiffs' suit to correct the unjust enrichment of New Miami was a suit brought in equity.

{¶ 8} New Miami now appeals, raising one assignment of error:

{¶ 9} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S CLAIM FOR SOVEREIGN IMMUNITY, GRANTING SUMMARY JUDGMENT TO PLAINTIFFS-APPELLEES AND DENYING SUMMARY JUDGMENT TO DEFENDANT[-]APPELLANT ON PLAINTIFFS' CLAIM FOR UNJUST ENRICHMENT.

{¶ 10} This court reviews summary judgment decisions denying governmental immunity de novo. Kirk Bros. Co. v. Trucraft Constr., L.L.C. , 2017-Ohio-7281, 97 N.E.3d 27, ¶ 13. We review the trial court's judgment independently and without deference to its determination and use the same standard in our review that the trial court should have employed. Id.

{¶ 11} New Miami generally argues it is immune from liability under R.C. Chapter 2744 because its operation of ASEP is a governmental function and there is no unjust enrichment exception to sovereign immunity. New Miami further argues that Count 4 of Plaintiffs' complaint is in fact a legal claim for money damages seeking to impose personal liability on the village for deprivation of due process, disguised as an equitable restitution claim in an effort to avoid the immunity granted to political subdivisions in the performance of governmental functions.

{¶ 12} Count 2 alleged that ASEP violates the Ohio Constitution's guarantee of "due course of law" found in Article I, Section 16 of the Constitution. As stated earlier, the trial court previously granted summary judgment to Plaintiffs upon this due course of law claim. In Count 4, Plaintiffs sought equitable restitution of any penalties they paid pursuant to ASEP on the ground that to allow New Miami to retain the funds wrongfully collected pursuant to an unconstitutional ordinance would unjustly enrich the village.

{¶ 13} Unjust enrichment occurs when "a person has and retains money or benefits which in justice and in equity belong to another." Johnson v. Microsoft Corp. , 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 20. The purpose of an unjust enrichment claim is not to compensate the plaintiff for loss or damage suffered by the plaintiff, but to enable the plaintiff to recover the benefit he has conferred on the defendant under circumstances in which it would be unjust to allow the defendant to retain it. Id. at ¶ 21. Restitution is the remedy for the unjust enrichment of one party at the expense of another. Santos v. Ohio Bur. of Workers' Comp. , 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, ¶ 11. To prevail on a claim for unjust enrichment, a plaintiff must demonstrate that: (1) he conferred a benefit upon the defendant, (2) the defendant had knowledge of the benefit, and (3) the defendant retained the benefit under circumstances where it would be unjust to do so without payment. RG Long & Assocs., Inc. v. Kiley , 12th Dist. Warren No. CA2014-10-129, 2015-Ohio-2467, 2015 WL 3824365, ¶ 14.

{¶ 14} R.C. Chapter 2744 provides a three-tiered analysis to determine whether a political subdivision enjoys immunity. The first tier of the analysis provides a general grant of immunity: "[A] political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision * * * in connection with a governmental or proprietary function." R.C. 2744.02(A)(1). Once immunity is established, the second tier of the analysis carves out certain exceptions to immunity which re-establish the liability of a political subdivision in certain delineated situations. R.C. 2744.02(B). Finally, if any exception applies to re-impose liability, the third tier of the analysis focuses on whether any of the defenses contained in R.C. 2744.03 apply to reinstate immunity. See Cincinnati v. Harrison , 1st Dist. Hamilton No. C-130195, 2014-Ohio-2844, 2014 WL 2957946.

{¶ 15} In support of its argument it is immune from liability, New Miami asserts its operation of ASEP is a governmental function. However, whether ASEP involves a governmental function for which there is immunity is germane only if sovereign immunity applies pursuant to the first tier of the analysis. State ex rel. Fatur v. Eastlake , 11th Dist. Lake No. 2009-L-037, 2010-Ohio-1448, 2010 WL 1254369, ¶ 32. That is, does Count 4 of Plaintiffs' complaint assert a claim for "damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision" as required by R.C. 2744.02(A)(1) ?

{¶ 16} By its very language and title, R.C. Chapter 2744 applies to tort actions for damages. Cincinnati , 2014-Ohio-2844, 2014 WL 2957946 at ¶ 30 ; LaBorde v. Gahanna , 2015-Ohio-2047, 35 N.E.3d 55, ¶ 18. "Ohio courts have uniformly held that while sovereign immunity bars tort claims for money damages, it has no application in actions for equitable relief." Cincinnati at ¶ 30. Thus, "where a political subdivision is not being subjected to a claim for money damages, the near absolute immunity of R.C. 2744.02(A) -the first tier of the [analysis]-is not available." Id. at ¶ 29. Accordingly, we must determine if the relief sought by Plaintiffs constitutes equitable relief or a claim for money damages.

{¶ 17} Simply because a plaintiff characterizes the relief he seeks as being equitable in nature, does not mean it is so. Cirino v. Ohio Bur. of Workers' Comp. , 2016-Ohio-8323, 75 N.E.3d 965, ¶ 48. Conversely, not every claim for monetary relief constitutes money damages. LaBorde at ¶ 19. A specific remedy is not transformed into a claim for damages simply because it involves the payment of money. See Interim Healthcare of Columbus, Inc. v. Ohio Dept. of Admin. Servs. , 10th Dist. Franklin No. 07AP-747, 2008-Ohio-2286, 2008 WL 2025153.

{¶ 18} In determining whether the relief sought by Plaintiffs is legal or equitable in nature, we are guided by several decisions of the Ohio Supreme Court. In support of their respective arguments, Plaintiffs cite Ohio Hosp. Assn. v. Ohio Dept. of Human Services , 62 Ohio St.3d 97, 579 N.E.2d 695 (1991) ; and Santos , 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, whereas New Miami cites Cristino v. Ohio Bur. of Workers' Comp. , 118 Ohio St.3d 151, 2008-Ohio-2013, 886 N.E.2d 857 ; and Measles v. Indus. Comm. , 128 Ohio St.3d 458, 2011-Ohio-1523, 946 N.E.2d 204.

{¶ 19} In Ohio Hosp. Assn. , several Medicaid providers filed a lawsuit against the Ohio Department of Human Services after the agency promulgated a new administrative rule that lowered certain Medicaid reimbursement rates solely for budgetary reasons and without regard to the rule's effect on efficiency, economy, and the quality of care. The complaint sought declaratory, injunctive, and monetary relief. The monies sought were alleged to have been improperly withheld by the agency pursuant to the unlawfully promulgated reimbursement rate. One of the issues before the Ohio Supreme Court was whether the state of Ohio was "immune from suit for reimbursement of monies withheld under an invalid administrative rule."

{¶ 20} The supreme court held that reimbursement sought by the Medicaid providers for amounts unlawfully withheld by the agency pursuant to the improperly promulgated reduced reimbursement rate was "not an award of money damages, but equitable relief." Ohio Hosp. Assn. , 62 Ohio St.3d at 104-105, 579 N.E.2d 695. Relying on a United States Supreme Court's decision, the Ohio Supreme Court explained that

Damages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies "are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled." * * * Thus, while in many instances an award of money is an award of damages, "[o]ccasionally a money award is also a specie remedy."

Id. at 105, 579 N.E.2d 695, quoting Bowen v. Massachusetts , 487 U.S. 879, 895, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). The supreme court determined that the monetary relief sought was in the nature of specific relief, that is, payment of specific funds of a determined amount to which the Medicaid providers were statutorily entitled, and not an award of money damages to compensate the plaintiffs for whatever losses they suffered or would suffer as a result of the invalid administrative rule. The supreme court then held, "The reimbursement of monies withheld pursuant to an invalid administrative rule is equitable relief, not money damages, and is consequently not barred by sovereign immunity." Ohio Hosp. Assn. at 105, 579 N.E.2d 695.

{¶ 21} Santos involved a restitution claim brought by injured workers who sought to recover funds the Ohio Bureau of Workers' Compensation ("BWC") had collected pursuant to a subrogation statute that was later declared unconstitutional. The injured workers argued that their restitution claim for the return of funds wrongfully held by the state was an equitable action seeking to make them whole. By contrast, the BWC argued that the money sought represented damages for injuries, therefore, the claim was legal in nature. Santos , 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441 at ¶ 10.

{¶ 22} The Ohio Supreme Court first noted that "[h]istorically, restitution has been available both in equity and in law as the remedy for an unjust enrichment of one party at the expense of another. Several remedies are available to a litigant seeking restitution, including a judgment for money." Id. at ¶ 11. "Although ordinarily such money judgment is obtained by an action at law, a decree of money will sometimes be rendered by a court of equity." Id.

{¶ 23} Relying on a United States Supreme Court's decision, the Ohio Supreme Court explained that "whether restitution is 'legal or equitable depends on the basis for the plaintiff's claim and the nature of the underlying remedies sought.' " Santos , 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441 at ¶ 13, quoting Great-West Life & Annuity Ins. Co. v. Knudson , 534 U.S. 204, 213, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). Therefore,

Restitution is available as a legal remedy when a plaintiff cannot "assert title or right to possession of particular property, but in which nevertheless he might be able to show just grounds for recovering money to pay for some benefit the defendant had received from him." Restitution is available as an equitable remedy "where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant's possession." "Thus, for restitution to lie in equity, the action generally must seek not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant's possession."

(Citation omitted and emphasis sic.) Santos at ¶ 13, quoting Great-West Life at 214, 122 S.Ct. 708.

{¶ 24} Based upon the foregoing and its prior decision in Ohio Hosp. Assn. , the supreme court held that because "the workers' compensation subrogation statute was unconstitutional" and thus, "any collection or retention of moneys collected under the statute by the BWC was wrongful," the action seeking restitution by the injured workers "is not a civil suit for money damages but rather an action to correct the unjust enrichment of the BWC. A suit that seeks the return of specific funds wrongfully collected or held by the state is brought in equity." Santos at ¶ 17.

{¶ 25} New Miami contrasts the foregoing supreme court decisions with two other, more recent, supreme court decisions, Cristino and Measles . Cristino involved a workers' compensation recipient, Cristino, who, pursuant to an agreement with the BWC, agreed to relinquish his statutory right to receive periodic payments for permanent total disability ("PTD") until his death in exchange for a lump-sum payment of the present value of his PTD claim. Following his settlement with the BWC, Cristino filed a class-action lawsuit against the bureau alleging it had improperly calculated the present value of his PTD claim. Cristino sought full restitution of the difference between the amount the BWC represented was the present value of his PTD claim and the true present value. The BWC argued that the claim for restitution was a request for money damages.

{¶ 26} Relying upon its prior holding in Ohio Hosp. Assn. as well as the United States Supreme Court Great-West Life and Bowen decisions, which distinguished between a claim for funds due under a contract and a claim for funds due pursuant to a statute, the Ohio Supreme Court held, "The rule applied in Ohio Hosp. Assn. is clear: A claim against the state for money due under a contract is not a claim of equitable restitution[.]" Cristino , 118 Ohio St.3d 151, 2008-Ohio-2013, 886 N.E.2d 857 at ¶ 11 ; Great-West Life , 534 U.S. at 210, 122 S.Ct. 708 ("[a] claim for money due and owing under a contract is 'quintessentially an action at law.' "). Then, looking to the basis for Cristino's restitution claim and the nature of the underlying remedies sought, the supreme court found that the claim was a legal, and not an equitable, claim of restitution because Cristino was not seeking the restitution of funds to which he was statutorily entitled. Rather, the claim sought money due pursuant to Cristino's agreement with the BWC, that is, funds due under a contract:

Cristino's restitution claim does not challenge the validity of his agreement with the Bureau; he does not seek a reinstatement of the benefits accorded to him by statute. On the contrary, Cristino requested the amount he believed was proper under the agreement. His claim for restitution is therefore not a claim to enforce his statutory right.

Cristino at ¶ 12, 14.

{¶ 27} The supreme court further rejected Cristino's assertion that his action was equitable under Santos . The court found that Santos was inapplicable because the plaintiffs in Santos "sought return of funds already collected by the BWC under the subrogation statute. The plaintiffs thus sought the return of funds that had once been in their possession and so belonged to them 'in good conscience.' " Cristino at ¶ 15.

{¶ 28} Measles involved recipients of workers' compensation benefits who were entitled to weekly payments of disability benefits for life. Instead of receiving all the benefits according to the statutory schedule, the plaintiffs entered into agreements with the BWC, opting to receive portions of their benefits through lump-sum advancements. The plaintiffs subsequently filed a class-action lawsuit against the BWC, alleging that the reduction of their periodic benefits pursuant to the agreements should have stopped once the aggregate value of the periodic benefit reductions equaled the amount of the lump-sum advancements.

{¶ 29} Relying upon Cristino , the Ohio Supreme Court noted that "[i]f the essence of a claim is not of restitution for money owed under a contract, but instead restitution for the state's unjust enrichment by withholding funds to which a worker had a statutory right, then the ultimate relief sought is equitable restitution." Measles , 128 Ohio St.3d 458, 2011-Ohio-1523, 946 N.E.2d 204 at ¶ 9. Noting that "[t]he heart of this matter is a contract dispute" between the plaintiffs and the BWC, the supreme court held that the plaintiffs' claim was a claim for money due under a contract and was therefore not an equitable claim of restitution. Id. at ¶ 12-13. The supreme court again found that Santos was inapplicable because the plaintiffs in Santos sought repayment of funds that were previously in their possession and that the BWC had collected pursuant to a subrogation statute that was later declared unconstitutional. Id. at ¶ 10.

{¶ 30} Although monetary damages are normally associated with compensation for previous damage or injury, the foregoing supreme court decisions make clear that "[e]ven when the relief sought consists of the state's ultimately paying money, a cause of action will sound in equity if 'money damages' is not the essence of the claim." Interim Healthcare , 2008-Ohio-2286, 2008 WL 2025153 at ¶ 15. Thus, a claim seeking to recover a specific amount of money wrongfully collected or held by a state agency is an equitable claim of restitution, and not a substitute for the loss occasioned by some prior injury. Santos , 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441 at ¶ 17. In those cases, restitution is the "remedy that prevents the state from being unjustly enriched at the expense of the plaintiff, who, in good conscience, is entitled to the funds, and who can clearly trace them as rightfully belonging to the plaintiff, though they are in the defendant's possession." Morning View Care Ctr. v. Ohio Dept. of Job & Family Servs. , 10th Dist. Franklin No. 04AP-57, 2004-Ohio-6073, 2004 WL 2591237, ¶ 19.

{¶ 31} By contrast, a claim seeking to recover damages to compensate or substitute for a suffered loss is a legal claim of restitution. Id. at ¶ 25 ; Ohio Academy of Nursing Homes v. Ohio Dept. of Job & Family Servs. , 114 Ohio St.3d 14, 2007-Ohio-2620, 867 N.E.2d 400, ¶ 18. Similarly, a claim for restitution relating to a contract dispute constitutes an action in law. Measles , 128 Ohio St.3d 458, 2011-Ohio-1523, 946 N.E.2d 204 at ¶ 9.

{¶ 32} We find that Cristino and Measles are not applicable as both decisions involved a claim for money due under a contract, and Plaintiffs are not seeking restitution for money due under an agreement, settlement, or contract with New Miami. Nor are Plaintiffs seeking money damages to compensate or substitute for a suffered loss.

{¶ 33} Rather, as in Santos , Plaintiffs are seeking the recovery of the specific amount of penalties they paid pursuant to the unconstitutional ordinance and that were therefore wrongfully collected by New Miami. That is, Plaintiffs are seeking the return of specific monies that had once been in their possession and so belonged to them "in good conscience," and thus have asserted a claim for the return of the very thing to which the class was allegedly entitled in the first place. Santos , 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441 at ¶ 13-14. The action seeking restitution by Plaintiffs "is not a civil suit for money damages but rather an action to correct the unjust enrichment of" New Miami. Id. at ¶ 17. As the Ohio Supreme Court plainly held, "A suit that seeks the return of specific funds wrongfully collected or held by the state is brought in equity" and "is consequently not barred by sovereign immunity." Id. ; Ohio Hosp. Assn. , 62 Ohio St.3d at 105, 579 N.E.2d 695.

{¶ 34} New Miami nevertheless asserts that Plaintiffs' claim is not an equitable claim but a legal claim for money damages, raising three issues.

{¶ 35} New Miami first argues that Plaintiffs' claim is a legal claim for money damages because it seeks to impose personal liability on the village for the injury of deprivation of due process suffered by Plaintiffs. In support of its argument, New Miami cites Vos v. State , 2017-Ohio-4005, 91 N.E.3d 217, for the proposition that claims for denial of due process are legal, not equitable. However, in Vos , the plaintiffs claimed a denial of due process for being allegedly denied their right to appeal a decision to a state agency. The claims in Vos did not involve a deprivation of money or other property, but rather the deprivation of a right. Damages were sought to compensate for the deprivation of that right. Here, Plaintiffs' claim is for the reimbursement of monies they were compelled to pay pursuant to an unconstitutional ordinance.

{¶ 36} The failure of the ASEP hearing procedure to comport with due process was not the basis of Plaintiffs' claim for reimbursement of monies paid as penalties under ASEP. Rather, the lack of due process afforded by ASEP was the basis for a declaration that the ordinance adopting ASEP was unconstitutional and unenforceable, and to enjoin further enforcement of ASEP, as set forth in Counts 2 and 3 of Plaintiffs' complaint. The allegations of Count 4 are simply that the collection of the penalties under an unconstitutional ordinance is "unconscionable" and that retention of the penalties unjustly enriches New Miami.

{¶ 37} New Miami claims that this is not a case where Plaintiffs are seeking reimbursement for services rendered or money "wrongfully collected." New Miami asserts that the penalties paid by Plaintiffs were not "wrongfully collected" because New Miami has the authority "to operate traffic programs and collect penalties for violation of traffic laws." Apparently, it is New Miami's contention that because it has legal authority to collect penalties for violation of its traffic laws, Plaintiffs' claim is necessarily for money damages based upon a denial of due process in the collection of those penalties. While it is true that New Miami has the authority to enforce its traffic laws, it must do so in a constitutional manner. New Miami does not have the authority to do so in an unconstitutional manner.

{¶ 38} New Miami seeks to distinguish Santos and Ohio Hosp. Assn. on the ground that the state "wrongfully collected certain funds" in those cases, whereas the penalties collected for the ASEP violations were not "wrongfully collected" because they were collected pursuant to New Miami's authority to establish traffic programs. In Santos , the Ohio Supreme Court determined that the subrogation sought by the BWC was wrongful because it was pursuant to an unconstitutional statute. In Ohio Hosp. Assn. , the supreme court found that the reduction of the Medicaid reimbursement rates was wrongful because it was pursuant to a statute and administrative regulation that violated the Social Security Act. This case is like Santos and Ohio Hosp. Assn. in that the ASEP penalties were collected pursuant to an unconstitutional ordinance. The distinction claimed by New Miami is simply not present.

{¶ 39} Just as New Miami has the authority to enforce its traffic laws, the state has the authority to adopt statutes and regulations for the administration of its Workers' Compensation and Medicaid programs, as was the case in Santos and Ohio Hosp. Assn. The determinative issue in Santos and Ohio Hosp. Assn. is not whether the government has authority to administer its various programs and enforce its laws in a general sense, but whether that authority has been exercised within the parameters of constitutional and statutory authority. Collection of penalties pursuant to ASEP fails this test.

{¶ 40} Moreover, there are many Ohio cases where claims for reimbursement of monies collected by a political subdivision were found to be equitable claims even though the collection of monies was within the political subdivision's authority. See LaBorde , 2015-Ohio-2047, 35 N.E.3d 55 (over-collection of municipal income tax); Judy v. Ohio Bur. of Motor Vehicles , 6th Dist. Lucas No. L-01-1200, 2001 WL 1664295 (Dec. 31, 2001) (double-billing of driver's license reinstatement fees); Dunlop v. Ohio Dept. of Job & Family Servs. , 10th Dist. Franklin No. 11AP-929, 2012-Ohio-1378, 2012 WL 1078778 (over-collection of child support payments by a child support enforcement agency); and San Allen, Inc. v. Buehrer, 2014-Ohio-2071, 11 N.E.3d 739 (overcharging certain employers for workers' compensation insurance premiums). In all of these cases, the state or political subdivision involved had the authority to require the payment. Again, the issue is not whether the government has the authority to require the payment, but whether the authority was exercised in a legal and constitutional manner.

{¶ 41} In 2013, the Sixth Appellate District found that a claim for the return of fines collected by the city of Toledo pursuant to a municipal program very similar to ASEP was an equitable claim. Walker v. Toledo , 2013-Ohio-2809, 994 N.E.2d 467, ¶ 16. The Ohio Supreme Court later reversed the holding of the Sixth Appellate District that Toledo's program violated the jurisdiction of the municipal court under the Ohio Constitution. Walker v. Toledo , 143 Ohio St.3d 420, 2014-Ohio-5461, 39 N.E.3d 474. However, the supreme court did not address the appellate court's holding that the claim for return of fines paid pursuant to the program was equitable in nature, and that holding remains good law.

{¶ 42} Citing Santos and Ohio Hosp. Assn. , New Miami further asserts that the distinguishing factor between legal and equitable claims is that equitable claims are based upon "a pre-existing claim by statute or other basis upon funds wrongfully collected or retained by the State." This appears to be a correct statement of the law. For example, in Santos , the Ohio Supreme Court characterized the remedy sought as equitable "where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant's possession." Santos , 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441 at ¶ 13. In Ohio Hosp. Assn. , the supreme court found the remedy sought was equitable, rather than legal, where the claim for relief is "to give the plaintiff the very thing to which he was entitled." Ohio Hosp. Assn. , 62 Ohio St.3d at 105, 579 N.E.2d 695.

{¶ 43} New Miami goes on to argue that Plaintiffs are seeking not something upon which they had a pre-existing claim, but rather, compensation for a due process injury. Suffice it to say, Plaintiffs' payment of penalties pursuant to an unconstitutional ordinance is no different than the monies withheld by the state pursuant to invalid statutory and regulatory provisions in Ohio Hosp. Assn. and Santos . The issue primarily turns upon whether the gist of the claim for money is an injury inflicted upon the plaintiff by the defendant or a benefit conferred upon the defendant by the plaintiff. The former seeks legal relief whereas the latter seeks equitable relief. The plaintiffs in this case seek the latter.

{¶ 44} New Miami next argues that Plaintiffs' claim is not an equitable claim of restitution because New Miami does not have and never took possession of the funds which are the basis of the claim. In other words, New Miami asserts that in order for a claim of restitution to be equitable, the money or property involved must be identifiable, in specie. As stated above, pursuant to New Miami's contract with Optotraffic, the penalties were paid directly to Optotraffic, which retained 40 percent of the penalties and forwarded the remaining 60 percent of the penalties to New Miami.

{¶ 45} Accepting New Miami's argument would permit a defendant to defeat a claim for equitable restitution simply by spending or commingling the monies involved. In addition, actual possession of the monies wrongfully collected is not a necessary element of a claim for equitable restitution. Dunlop , 2012-Ohio-1378, 2012 WL 1078778.

{¶ 46} In Dunlop , the plaintiff argued "that the claims in Santos and Interim HealthCare were found to be claims in equity because the state was still in possession of all of the funds that it had wrongly collected, while his claim in the present case is a proper conversion claim because the state wrongfully collected and then redistributed the money." Id. at ¶ 13. The Tenth Appellate District squarely rejected the argument, stating

That the state still possessed the funds is not the basis for either decision. In Santos , the syllabus provided that "[a] suit that seeks the return of specific funds wrongfully collected or held by the state is brought in equity." Thus, the funds can either be wrongfully collected or wrongfully held by the state to form the basis of an action brought in equity. Likewise, in Interim HealthCare , the court stated, "[c]ases in which a plaintiff claims a state agency has wrongfully collected certain funds are characterized generally as claims for equitable restitution."

(Citations omitted.) Id. The appellate court then found that "merely because ODJFS might have eventually distributed the allegedly improperly collected funds to [other agencies] does not transform his claim seeking restitution of those funds from one sounding in equity to one sounding in law. * * * What ODJFS might have subsequently done with the funds is not relevant[.]" Id. at ¶ 14. See also San Allen , 2014-Ohio-2071, 11 N.E.3d 739 at ¶ 61 (Fact that the BWC distributed the funds after the excessive premiums were wrongfully collected from the class, such that the specific funds constituting the plaintiffs' overpayments may no longer be readily traceable, does not transform plaintiffs' claim from one sounding in equity into one sounding in law).

{¶ 47} We find the reasoning in Dunlop to be persuasive and apply it here. The fact that New Miami only received 60 percent, and not 100 percent, of the penalties paid by Plaintiffs and initially collected by Optotraffic does not transform Plaintiffs' claim from one sounding in equity to one sounding in law. The penalties paid by Plaintiffs were collected by Optotraffic on behalf of New Miami, and 40 percent of those monies was used by New Miami to pay Optotraffic for its services in administering ASEP.

{¶ 48} Finally, New Miami argues that Plaintiffs' restitution claim is in fact a legal claim, given Plaintiffs' demand for pre-judgment interest. In support of its argument, New Miami cites Zelenak v. Indus. Comm. , 148 Ohio App.3d 589, 2002-Ohio-3887, 774 N.E.2d 769, ¶ 24 (10th Dist.) ("The payment of interest prayed for constitutes a substitute for a particular loss suffered by [the plaintiffs]").

{¶ 49} Zelenak does not stand for the proposition that a demand for interest transforms an equitable claim into a legal claim of restitution. Zelenak involved former disability compensation recipients whose wrongly terminated benefits were reimbursed without interest. The issue before the Tenth Appellate District was whether the trial court had concurrent jurisdiction over the case or whether the court of claims had exclusive subject-matter jurisdiction.

{¶ 50} Noting that the payment of interest prayed for constituted a substitute for a particular loss suffered by the plaintiffs, the appellate court found that the plaintiffs' claim for the payment of interest was one for money damages. Zelenak , 148 Ohio App.3d 589, 2002-Ohio-3887, 774 N.E.2d 769 at ¶ 24. However, the appellate court further found that the reimbursement of the wrongly terminated benefits constituted equitable relief and not money damages: "The reimbursement of the overpayments collected from [the plaintiffs] or payment of the TTD compensation withheld from some of them, presents a form of relief that merely requires a state agency to pay amounts it should have paid all along, clearly constituting equitable relief and not monetary damages." Id. at ¶ 19. The appellate court concluded that because the relief sought by the plaintiffs included a claim for money damages, the court of claims had exclusive jurisdiction over the case and the trial court did not err in dismissing the case for lack of subject-matter jurisdiction. Id. at ¶ 21-22, 25. Therefore, the fact that Plaintiffs are also demanding pre-judgment interest does not transform their restitution claim from one sounding in equity to one sounding in law.

{¶ 51} In light of all of the foregoing, we find that Plaintiffs' unjust enrichment/restitution claim is an equitable claim of restitution and is therefore not barred by sovereign immunity. Accordingly, we affirm the interlocutory judgment of the trial court with respect to its denial of New Miami's request for governmental immunity. This matter is remanded for further proceedings consistent with this opinion.

HENDRICKSON, P.J., and RINGLAND, J., concur.

      In December 2014, the Ohio Supreme Court released Walker v. Toledo , 143 Ohio St.3d 420, 2014-Ohio-5461, 39 N.E.3d 474. The supreme court reaffirmed a previous holding that municipalities may, pursuant to their home-rule authority under Article XVIII of the Ohio Constitution, impose civil liability on traffic violators through the use of automated red light cameras. Id. at ¶ 3, 21. The court ruled that the ordinance in that case did not unlawfully usurp the jurisdiction of municipal courts over traffic violations. Id. at ¶ 22-25. The court further held that municipalities' home-rule authority permitted them to establish civil administrative proceedings that must be exhausted before traffic violators may pursue judicial remedies. Id. at ¶ 26-28.

      Plaintiffs refer to our opinions in Barrow I and Barrow II to suggest that we already have characterized their Count 4 claim as an equitable claim. While we did refer to the Count 4 claim as equitable in our opinions, we were only referring to the claim as it was characterized in Plaintiffs' complaint. Whether the claim was equitable or legal was never an issue in Barrow I and Barrow II and we never ruled upon the nature of the claim.

      We make no ruling on the amount of New Miami's liability. This is an interlocutory appeal concerned solely with the issue of whether the trial court erred in rendering summary judgment against New Miami upon its claim of immunity pursuant to R.C. Chapter 2744.

      Pursuant to R.C. 2743.03, the court of claims has exclusive jurisdiction over civil actions against the state for money damages that sound in law. R.C. Chapter 2743 does not, however, divest other courts of jurisdiction to hear and determine a civil action in which the sole relief sought against the state is a declaratory judgment, injunctive relief, or other equitable relief. R.C. 2743.03(A)(2). A suit seeking only declaratory, injunctive, or other equitable relief may be brought against the state in the court of common pleas. R.C. 2743.03(A)(1). However, where claims for damages are coupled with claims for injunctive, declaratory, or other equitable relief, all of the claims are within the exclusive, original jurisdiction of the court of claims. R.C. 2743.03(A)(2).