State v. Smith

[Cite as State v. Smith, 2017-Ohio-7740.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 16AP-772

v. : (C.P.C. No. 15CR-4092)

James E. Smith, Jr., : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on September 21, 2017

On brief: Ron O'Brien, Prosecuting Attorney, and

Barbara A. Farnbacher, for appellee. Argued: Barbara A.

Farnbacher.

On brief: Dennis W. McNamara, for appellant.

Argued: Dennis W. McNamara.

APPEAL from the Franklin County Court of Common Pleas

SADLER, J.

{¶ 1} Defendant-appellant, James E. Smith, Jr., appeals from the judgment entry

of the Franklin County Court of Common Pleas finding appellant guilty of two counts of

possession of cocaine and two counts of trafficking in cocaine. For the following reasons,

we affirm the decision of the trial court.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On August 21, 2015, a Franklin County Grand Jury indicted appellant on

two counts of possession of cocaine, in violation of R.C. 2925.11, and two counts of

trafficking in cocaine, in violation of R.C. 2925.03. All four counts charged that the

amount of cocaine was equal to or greater than 100 grams, elevating those counts to first-

No. 16AP-772 2

degree felonies. Appellant did not file a pre-trial affidavit of indigence. On August 26,

2015, represented by counsel, appellant pled not guilty to all counts. Appellant posted a

$100,000 surety or appearance bond, and the case proceeded to a jury trial beginning on

October 11, 2016, where the following pertinent facts were presented.

{¶ 3} On August 11, 2015, law enforcement officials were notified of a FedEx

package that possibly contained a controlled substance. The package was addressed to

"Jesica Aviles" at 921 Chittenden Avenue in Columbus from a sender located on Veronica

Drive in Coachella, California; the FedEx tracking number indicated that the package was

shipped from a Kinko's in LaQuinta, California. Within the FedEx package, officers found

six kilos of cocaine encased within a karaoke machine. The officers placed one package of

cocaine, several packages of fake cocaine, and a GPS transmitter and another electronic

device back into the karaoke machine, resealed the karaoke machine in the FedEx box,

and obtained authorization to conduct a controlled delivery of the package to the

Chittenden Avenue residence.

{¶ 4} The next day, a special agent for a drug traffic force, posing as a FedEx

delivery person and equipped with electronic recording devices, approached the

Chittenden Avenue residence. Surveillance and tactical teams positioned nearby the

home monitored the delivery. Three men unknown to the special agent were on the front

porch to the home: appellant, George Spencer, and Mark Chafin. The special agent stated

that he had a package for "Jesica," and appellant responded, "Yeah, yeah." (Tr. Vol. I at

86.) Appellant told the agent his name was Burt Johnson and was a resident of the house,

signed for the package, and indicated that he did not think the box needed to be signed

for. A later search of the home produced no evidence indicating that appellant actually

lived there; rather, evidence showed Spencer's girlfriend, whose last name is not Aviles,

rented the home and lived there with her child. The special agent told appellant that the

package could be stolen if left on the front porch, and appellant moved the package from

the porch to inside the doorway of the house. The special agent left the property. The

electronic recording of the delivery was played for the jury.

{¶ 5} A few minutes after the controlled delivery, Chafin removed the FedEx box

from the home, placed it into the backseat of a Mercury Sable, and returned to the porch.

The Sable is titled to TSF Investment Company, LLC, a company for which appellant is

No. 16AP-772 3

the CEO. Shortly thereafter, appellant and Chafin got into the Sable. Appellant drove the

Sable down Chittenden Avenue with Chafin in the front passenger seat. Approximately

seven to ten minutes elapsed from the time the special agent arrived with the FedEx truck

to the time the Sable drove away.

{¶ 6} Uniformed detectives stopped the Sable at the end of the street. Officers

found the unopened FedEx package sitting on the back seat of the Sable behind the

passenger seat. Officers seized $1,014 in cash and three cell phones from appellant's

person. During inventory of the Sable, officers recovered from the trunk a second,

virtually identical karaoke machine containing an additional six kilos of cocaine.

Testimony conflicted as to whether the karaoke machine in the truck was found within a

FedEx package. No fingerprints matching appellant or Chafin were found on the karaoke

machine recovered from the truck.

{¶ 7} Eight days later, pursuant to a warrant, officers searched a business owned

by appellant named "The Speed Factory" located at 4555 Groves Road, Unit 35, in

Columbus. The officers did not find controlled substances, large amounts of money, or

valuables such as jewelry. The officers seized, among other items, a cell phone from the

garage area and a cell phone from a bag hanging on a coat rack.

{¶ 8} An expert in mobile device forensics testified to analyzing the five cell

phones recovered: the Nokia found in a bag on the coat rack of appellant's business; the

Samsung M260 recovered in the garage area of appellant's business, and two LG phones

and a Samsung Galaxy recovered from appellant's person. One of the LG phones found

on appellant contained records of calls to the same southern California number at least 11

times from August 4 to August 12, 2015. Text messages recovered from the phones found

on appellant contained tracking numbers that matched the FedEx records of other

packages sent between Columbus and California. At least one of those phones had

accessed FedEx.com to track three packages between Columbus and California.

Screenshots of texts from the Nokia phone taken from the coat rack of appellant's

business included California addresses related to locations of five other FedEx packages

shipped between Columbus and California coupled with texts relaying the Chittenden

Avenue address.

No. 16AP-772 4

{¶ 9} According to testimony from the officers involved, narcotics smugglers

seldom ship drugs to their own residence but rather typically ship drugs to another

residence with a fictitious name listed; likewise, the sender information listed on such a

package is fictitious in a high percentage of cases.

{¶ 10} Sometime later but before trial, Chafin allegedly executed an affidavit

stating he placed both boxes in the Sable, believed the boxes contained auto parts, and

that appellant did not know anything about the boxes. The affidavit is not a part of the

record of appeal. At trial, appellant attempted to call Chafin to testify as a defense witness

and enter Chafin's affidavit into evidence. A discussion out of the jury's presence occurred

whereby counsel for Chafin stated that he had advised Chafin to assert his right against

self-incrimination under the Fifth Amendment to the U.S. Constitution. The trial court

agreed that taking the stand posed a genuine risk to Chafin's Fifth Amendment rights,

noting that by carrying the box to the car Chafin arguably held equal possession of the

narcotics. The trial court stated that, procedurally, "I am not going to do this question by

question. It's my opinion that once he decides to take the Fifth, he takes the Fifth. It's not

a smorgasbord event." (Tr. Vol. III at 411-12.) Defense counsel recognized that there

could be a Fifth Amendment issue but objected to not being able to ask him multiple

questions and mentioned that he would like to question Chafin about whether officers

threatened him to not testify, and whether that had an impact on his decision to invoke

the Fifth Amendment. Defense counsel did not proffer for the record questions that he

would have asked Chafin.1

{¶ 11} The jury then returned, and defense counsel called Chafin to the stand.

After being sworn in, Chafin provided identifying information. Defense counsel then

handed Chafin his affidavit and asked whether he recognized it. Acting on his own

counsel's advice, Chafin invoked his right against self-incrimination under the Fifth

Amendment. Chafin further indicated that at his counsel's instruction, he would "plead

the fifth" in response to any question. Counsel for Chafin confirmed that he advised

Chafin to invoke the Fifth Amendment in response to any further questioning. The trial

court noted defense counsel's objection and instructed the jury not to draw any inference

1When asked about this at oral argument, counsel for appellant stated that he did not proffer the questions

he would have asked and that the record only shows such questions by inference.

No. 16AP-772 5

either for or against appellant on the basis of Chafin's failure to testify. On the objection

of plaintiff-appellee, State of Ohio, the trial court did not admit Chafin's affidavit into

evidence on the basis that appellant was an unavailable witness, and the affidavit did not

fall within any exception in Evid.R. 804(B). Appellant did not testify in his own defense

or call any other witness.

{¶ 12} On October 13, 2016, the jury returned verdicts finding appellant guilty of

all counts. Several weeks later, appellant filed an affidavit, pursuant to R.C.

2929.18(B)(1), setting forth his indigence.

{¶ 13} The trial court conducted a sentencing hearing on November 2, 2016,

whereby it merged Count 1 with Count 2, merged Count 3 with Count 4, and imposed a

sentence of 11 years each as to Counts 2 and 4 to be served concurrent with each other.

Regarding a fine, appellant reminded the trial court of the affidavit of indigence filed,

pursuant to R.C. 2929.18(B)(1), and asserted that while he may have enough money to

cover the $1,000 court costs, he had no ability to pay a mandatory fine of $10,000

considering he will be incarcerated and have no income. Nevertheless, the trial court

imposed a mandatory fine of $10,000 on each of the two counts and deferred collection of

the fine and costs until appellant is released from prison. Appellant again pointed out the

affidavit of indigence, and the trial court responded "I know, and I'm not making that

finding at this time." (Sentencing Hearing Tr. at 16.) Appellant asked whether the trial

court is making a finding that appellant is not indigent, and the trial court responded

"[u]nless [appellee]'s stipulating that he is. I mean, he can pay something." (Sentencing

Hearing Tr. at 17.) Thereafter, the following exchange occurred:

[Appellee:] In all honesty to the Court, Judge, if I have to give

an answer, his jail calls a couple days ago when he was talking

about an appeals bond, he has a million dollars worth of

property.

[Appellant:] According to the county, he owns no property, no

real estate. Anyway.

[Trial Court:] He made the bond on this thing. I think there's

plenty of evidence. I'm not going to find him indigent, and

obviously you can take that to the court of appeals as well.

(Sentencing Hearing Tr. at 17-18.)

No. 16AP-772 6

{¶ 14} The judgment entry of the trial court addresses the fine as follows:

The Court has considered [appellant's] present and future

ability to pay a fine and financial sanction and does, pursuant

to R.C. 2929.18, hereby render judgment for the following fine

and/or financial sanctions: The Court imposed a

mandatory fine in the amount of $10,000.00 EACH

on Counts Two and Four. Defendant shall pay court

costs in an amount to be determined. Fines and costs

shall be deferred while [appellant] is incarcerated.

The total fine and financial sanction is $20,000.00 plus

costs.

(Emphasis sic.) (Jgmt. Entry at 2.)

{¶ 15} Appellant filed a timely appeal to this court.

II. ASSIGNMENTS OF ERROR

{¶ 16} Appellant presents three assignments of error:

[1.] THE TRIAL COURT ERRED WHEN IT PERMITTED

MARK CHAFIN TO INVOKE HIS RIGHT AGAIN(sic) SELF

INCRIMINATION AND DID NOT ORDER HIM TO

TESTIFY.

[2.] THE TRIAL COURT ERRED WHEN IT EXCLUDED

THE AFFIDAVIT OF MARK CHAFIN.

[3.] THE TRIAL COURT ERRED WHEN IT IMPOSED A

FINE IN THE AMOUNT OF TWENTY THOUSAND

DOLLARS.

III. DISCUSSION

A. First Assignment of Error

{¶ 17} Under the first assignment of error, appellant contends that the trial court

erred in permitting Chafin to invoke his right against self-incrimination and not ordering

him to testify. We disagree on this record.

{¶ 18} "The Fifth Amendment to the United States Constitution and Article I,

Section 10 of the Ohio Constitution declare that no person shall be compelled in any

criminal case to be a witness against himself." State v. Arnold, 147 Ohio St.3d 138, 2016-

Ohio-1595, ¶ 30. "[T]he privilege against self-incrimination is accorded liberal

construction in favor of the right it was intended to secure." Id. at ¶ 31. It applies with

No. 16AP-772 7

equal force to "witnesses who would incriminate themselves by giving responses to

questions posed to them." Id.

{¶ 19} The right to invoke the Fifth Amendment right against self-incrimination is

not absolute. Id. at ¶ 43. The bare assertion of the Fifth Amendment privilege does not

provide automatic justification for a witness to refuse to testify. Id. at ¶ 45-46. Rather,

the witness claiming the privilege must assert a basis for asserting the privilege. Id. at

¶ 44. Such burden is "not an onerous one." Id. At minimum, "the proponent must

establish that he or she is faced with some authentic, objectively reasonable danger of

incrimination." Id., citing Hoffman v. United States, 341 U.S. 479, 486-87 (1951). The

danger of incrimination exists where a witness's answers "may reasonably have a

tendency either to incriminate the witness or to furnish proof of an element or link in the

chain of evidence necessary to convict the witness of a crime." Arnold at ¶ 45.

{¶ 20} Generally, a witness must assert the Fifth Amendment privilege against self-

incrimination on a question-by-question basis. Vega v. Tivurcio, 10th Dist. No. 14AP-

327, 2014-Ohio-4588, ¶ 12, appeal not accepted, 142 Ohio St.3d 1422, 2015-Ohio-1353.

See Arnold at ¶ 44, citing In re Morganroth, 718 F.2d 161 (6th Cir.1983). However, "[a]

trial court may exclude a person from appearing as a witness on behalf of a criminal

defendant at trial if the court determines that the witness will not offer any testimony, but

merely intends to assert the Fifth Amendment privilege against self-incrimination." State

v. Kirk, 72 Ohio St.3d 564 (1995), paragraph one of the syllabus.

{¶ 21} Ultimately, it is the duty of the trial court to inquire into the witness's basis

for asserting the privilege and to determine whether the witness's silence is justified.

Arnold at ¶ 46. The court in Arnold cautioned that in making such a determination, the

trial court must "tread lightly" in order to protect the witness from surrendering the

protection of the privilege in the process. Id. at ¶ 47. Arnold recognizes that a trial court

should require a witness to answer questions only if " 'it clearly appears to the court that

[the proponent of the privilege] is mistaken.' " Id. at ¶ 45, quoting Hoffman at 486.

{¶ 22} Furthermore, if a trial court commits error in failing to sufficiently delve

into a witness's purported fear of incrimination, an appellate court must still affirm the

trial court's judgment if the state proves beyond a reasonable doubt that the trial court's

inquiry was harmless. Arnold at ¶ 49. In criminal cases, the harmless error standard

No. 16AP-772 8

requires that "[a]ny error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded." Crim.R. 52(A). Generally, for an error to affect

substantial rights, the defendant must have suffered prejudice. Id. at ¶ 50.

{¶ 23} In this case, appellant first argues that the trial court erred procedurally

because, under Arnold, the trial court must assess, on a question-by-question basis,

whether the witness has a real and substantial basis for concluding each of his answers

will incriminate him. Second, appellant argues the trial court erred substantively in

finding that Chafin's purported testimony would have incriminated him since, based on

the affidavit, Chafin would likely have said he did not know the boxes he placed in the car

contained cocaine, and regarding questioning Chafin about police threats, Chafin's

answers to this line of questioning would not have created a substantial and real threat for

which he could be prosecuted. Finally, appellant argues that the trial court's wrongful

exclusion of Chafin's testimony was not harmless beyond a reasonable doubt, as "[t]he

purported testimony of Chafin (as set forth in his affidavit) would have exculpated

Appellant" by negating the "knowingly" element of each crime charged. (Appellant's Brief

at 9, 17.)

{¶ 24} Appellee responds that the trial court was permitted to allow Chafin to not

testify, pursuant to Kirk at 569, as Chafin indicated he would not offer any testimony but

would rather assert the Fifth Amendment in response to any further questioning and that

the trial court in this case considered much more than Chafin's bare assertion of the

privilege in determining his invocation of the privilege to be genuine.

{¶ 25} As a preliminary issue, we must decide whether we may determine

appellant's assignment of error based on the record before us. Pursuant to App.R.

12(A)(1)(b), this court is limited to determining an appeal based on the record as provided

in App.R. 9. As set forth in State v. Newman, 6th Dist. No. E-11-065, 2013-Ohio-414, ¶ 7-

8, appeal not accepted, 135 Ohio St.3d 1471, 2013-Ohio-2512:

Although it is the duty of all of the participants during trial to

ensure that a proper appellate record is being created, Crim.R.

22 and State v. Lewis, 2d Dist. No. 23850, 2011 Ohio 1411,

¶ 28, ultimately appellant bears the duty to demonstrate

where error occurs on the record. App.R. 9(B) and State v.

Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643,

¶ 6, quoting State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-

No. 16AP-772 9

2761, 789 N.E.2d 222, ¶ 7. Without a complete record, the

appellate court must presume the regularity of the

proceedings and the validity of the judgment. State ex rel.

Hoag v. Lucas Cty. Bd. of Elections, 125 Ohio St.3d 49, 2010-

Ohio-1629, 925 N.E.2d 984, ¶ 12, and State v. Prince, 71 Ohio

App.3d 694, 698, 595 N.E.2d 376 (4th Dist.1991), citing

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400

N.E.2d 384 (1980).

If an appealable issue arises during trial, appellant has a duty

to proffer contrary evidence in order for the appellate court to

have a record to review the issue. Evid.R. 103(A)(2) and State

v. Chapin, 67 Ohio St.2d 437, 444, 424 N.E.2d 317 (1981).

Correspondingly, appellant has a duty to ensure that all of the

evidence considered by the court is entered into the record

and transmitted to the court of appeals or to take action to

correct or supplement the record pursuant to App.R. 9 if there

is an error or omission. State v. Tyler, 50 Ohio St.3d 24, 41,

553 N.E.2d 576 (1990), superseded by constitutional

amendment in part on other grounds as stated in State v.

Smith, 80 Ohio St.3d 89, 103, 1997-Ohio-355, 684 N.E.2d 668

(1997), fn. 4 and Maseck v. Lindav Properties, 1st Dist. No. C-

050528, 2006-Ohio-3721, ¶ 11. Otherwise, the appellate court

must find that appellant waived any error that might have

been reflected in the omitted record. Smith at 41. Compare In

re Holmes, 104 Ohio St.3d 664, 2004-Ohio-7109, 821 N.E.2d

568, ¶ 19-20 (appellant does not waive any error if the

omission in the record is due to the error of the court

personnel and not appellant).

Likewise, "[a]n offer of proof is necessary to preserve procedural errors in the invocation

of [] witnesses' Fifth Amendment privilege." State v. Wilson, 3d Dist. No. 14-06-19,

2006-Ohio-6930, ¶ 34, appeal not allowed, 115 Ohio St.3d 1413, 2007-Ohio-4884.

{¶ 26} In this case, although the record contains some discussion alluding to the

substance of Chafin's affidavit, the affidavit is not present in the record on appeal.

Likewise, appellant concedes that he did not proffer to the trial court questions that he

would have asked Chafin. As a result, appellant waived error relating to the trial court's

decision to allow Chafin not to testify. Newman; Wilson at ¶ 33 (finding that a defendant

waived any error in the trial court's decision to permit a witness to make a "blanket

invocation" of his Fifth Amendment privilege by failing to proffer expected testimony to

the trial court). Moreover, without the affidavit and a record of what questions appellant

No. 16AP-772 10

would have asked Chafin, we cannot say that appellant has met his burden of

demonstrating error on appeal. State v. Sims, 10th Dist. No. 14AP-1025, 2016-Ohio-4763,

¶ 11, citing App.R. 16(A)(7).

{¶ 27} Regardless, even considering pieces of information describing the affidavit

and assuming defense counsel's questions based thereon, we disagree with the merits of

appellant's arguments. First, Arnold does not directly address the procedural issue raised

by appellant here. As a case considering a witness's response to a particular question,

Arnold does not address the issue of whether a witness who unequivocally states to the

court that he will assert his right against self-incrimination for all further questions must

actually remain on the stand and repeatedly assert that right. We note that Arnold makes

no reference to Kirk.

{¶ 28} Second, Arnold is distinguishable factually in that it involved assertion of

the privilege by the victim, who was also the defendant's father, and involved a record

completely devoid of any risk of incrimination to that victim. In this case, the facts

surrounding Chafin—as the person who placed a FedEx box containing six kilos of cocaine

into a car and then riding as a passenger in that car—clearly provide a heavy risk of

incrimination to Chafin.

{¶ 29} Rather, we find this case more factually in line with the post-Arnold case,

State v. Spangler, 5th Dist. No. 16-CA-12, 2017-Ohio-268. In Spangler, the state brought

an endangering children charge against the father of a young child. Defense counsel for

the father-defendant sought to call the mother, who was allegedly present in the room

during the incident but not charged with a crime, to testify. Defense counsel indicated

that he would not ask about events the day the alleged crime occurred but would ask her

about her mental health. Appointed counsel representing the mother spoke on her behalf

and relayed her intention not to testify at all on any matters other than her name and

address. The trial court determined that the mother's decision to not testify was justified.

On appeal, the Fifth District found that the trial court conducted a sufficient inquiry

under Arnold, noting that the mother was represented by counsel and that the

implications of the line of inquiry could incriminate the mother. The Spangler court also

found support for its decision in the Supreme Court of Ohio's opinion in Kirk, which held

that a trial court did not err in refusing to permit the defendant to call a witness where

No. 16AP-772 11

that witness had made it clear to the court and to counsel that the witness would claim

Fifth Amendment protection.

{¶ 30} Like in Spangler, in this case, Chafin was represented by counsel and

unequivocally told the trial court that he would assert his Fifth Amendment right against

self-incrimination in order to not answer any questions beyond his name and address.

Furthermore, the trial court considered the record of this particular case to conclude that

Chafin had a genuine risk to his Fifth Amendment rights. Defense counsel acknowledged

that a Fifth Amendment issue could occur. Therefore, on this record, we find that even if

appellant did not waive his arguments by failing to preserve an adequate record, he has

not demonstrated that the trial court erred in permitting Chafin to not testify pursuant to

his Fifth Amendment right against self-incrimination.

{¶ 31} Finally, we note that, on this record, the trial court decision to not require

Chafin to assert the privilege against self-incrimination on a question-by-question basis is

harmless beyond a reasonable doubt. Chafin, guided by his attorney, unequivocally stated

that he would answer no further questions. The trial court expressly considered the only

two topics defense counsel discussed regarding Chafin (the affidavit content and alleged

threats by police) and concluded that Chafin had a genuine risk to his Fifth Amendment

rights. In other words, in this case, no prejudice flows from the court's alleged procedural

failure in not addressing Chafin on a question-by-question basis. Based on these facts,

appellant's arguments related to Chafin's assertion of his right against self-incrimination

are not well-taken.

{¶ 32} Accordingly, we overrule appellant's first assignment of error.

B. Second Assignment of Error

{¶ 33} Under the second assignment of error, appellant contends that the trial

court erred in excluding the affidavit of Chafin. Under this assignment of error, appellant

argues in the alternative that if the trial court acted properly in not requiring Chafin to

testify, then it should have admitted his affidavit pursuant Evid.R. 804(B)(3) or pursuant

to his right to present a full and complete defense under the due process clause of the

Fourteenth Amendment and the confrontation clause of the Sixth Amendment. For the

following reasons, we disagree.

No. 16AP-772 12

{¶ 34} As a preliminary issue, we note that appellant contends we should review de

novo the portion of his assignment of error asserting that the trial court's exclusion of the

affidavit violated the Constitution. He cites to State v. McKelton, 148 Ohio St.3d 261,

2016-Ohio-5735, ¶ 97, which states that, although generally an appellate court reviews a

trial court's decision on admission of evidence, including hearsay rulings, for an abuse of

discretion, evidentiary rulings that implicate the Confrontation Clause are reviewed de

novo. Id., citing State v. Hymore, 9 Ohio St.2d 122, 128 (1967). Appellant does not

explain how the confrontation clause is implicated in his case, where he is the one seeking

admission of a statement of an unavailable declarant, and the evidence was excluded.

Rather, we find the essence of appellant's constitutional argument is his alleged lack of

opportunity to present a full defense since the trial court would not admit Chafin's

statement under Evid.R. 804(B)(3). A defendant's argument alleging his inability to

present a complete defense and implicating a trial court's ruling under evidentiary rules is

generally reviewed for an abuse of discretion. State v. Swann, 119 Ohio St.3d 552, 2008-

Ohio-4837, ¶ 12-15, 32-33 (finding that the exclusion of inadmissible hearsay pursuant to

Evid.R. 804(B)(3) does not deprive a defendant of his right to present a defense and

remanding the case to this court to decide whether in applying Evid.R. 804(B) the trial

court abused its discretion). Considering the above, we proceed to determine whether the

trial court abused its discretion in refusing to admit Chafin's affidavit pursuant to Evid.R.

804(B)(3).

{¶ 35} Evid.R. 801(C) defines hearsay 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. 802 provides:

Hearsay is not admissible except as otherwise provided by the

Constitution of the United States, by the Constitution of the

State of Ohio, by statute enacted by the General Assembly not

in conflict with a rule of the Supreme Court of Ohio, by these

rules, or by other rules prescribed by the Supreme Court of

Ohio.

{¶ 36} Evid.R. 804(B) sets forth exceptions to the hearsay rule for statements

made by declarants that are "unavailable." Pursuant to Evid.R. 804(B)(3), certain

No. 16AP-772 13

statements against interest made by an unavailable declarant are not excluded as hearsay.

Evid.R. 804(B)(3) defines a statement against interest as:

A statement that was at the time of its making so far contrary

to the declarant's pecuniary or proprietary interest, or so far

tended to subject the declarant to civil or criminal liability, or

to render invalid a claim by the declarant against another, that

a reasonable person in the declarant's position would not have

made the statement unless the declarant believed it to be true.

The rule further provides that "[a] statement tending to expose the declarant to criminal

liability, whether offered to exculpate or inculpate the accused, is not admissible unless

corroborating circumstances clearly indicate the truthworthiness of the statement."

Evid.R. 804(B)(3).

{¶ 37} Whether to admit the hearsay statement of an unavailable declarant,

pursuant to Evid.R. 804(B)(3), is within the discretion of a trial court. State v. Platt, 10th

Dist. No. 03AP-1148, 2005-Ohio-705, ¶ 74, citing State v. Sumlin, 69 Ohio St.3d 105

(1994), syllabus. An abuse of discretion implies the court's decision is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 38} The parties in this case agree that Chafin fits the definition of an

"unavailable" declarant. Appellant essentially contends that if the affidavit was

incriminating for purposes of the first assignment of error, which dealt with Chafin's

assertion of his right against self-incrimination, then it also qualifies as a declaration

against his penal interest.

{¶ 39} As with the first assignment of error, failure to proffer Chafin's affidavit for

purposes of the record hinders our assessment of appellant's contentions. We do not

know exactly what statement Chafin made in his affidavit to evaluate whether that

statement was against his interest. As such, we find appellant has not met his burden of

demonstrating error on appeal. Sims at ¶ 11, citing App.R. 16(A)(7); State v. Hubbard,

10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 34.

{¶ 40} Moreover, even if we were to assume the contents of Chafin's affidavit based

on the testimony provided, we disagree with the merits of appellant's argument. First, we

disagree that if Chafin was properly permitted to not testify due to the danger of self-

incrimination that the affidavit necessarily should not have been excluded under Evid.R.

No. 16AP-772 14

804(B)(3). Separate standards apply to each issue. As previously discussed in the first

assignment of error, the standard for whether a witness has a genuine risk of

incriminating himself at trial extends to answers that may furnish proof of an element or

link in the chain of evidence necessary to convict the witness of a crime. Arnold at ¶ 45.

Specifically, under this standard, undisputed facts adduced at trial raised a clear danger of

self-incrimination to Chafin should he have testified. On the other hand, the standard to

determine whether Chafin's affidavit is admissible hearsay under Evid.R. 804(B)(3)

requires that statement be "so far contrary to the declarant's pecuniary * * * interest, or so

far tended to subject the declarant to civil or criminal liability, * * * that a reasonable

person in the declarant's position would not have made the statement unless the declarant

believed it to be true" and that corroborating circumstances clearly indicate the

trustworthiness of the statement. The affidavit here presumably asserts that Chafin, as

well as appellant, did not know about the cocaine. Furthermore, appellant's cited

corroborating circumstances—the testimony of Peters that Chafin took the package from

the porch to the vehicle—does not clearly indicate the trustworthiness of the statement.

{¶ 41} Considering the separate standards, we find the trial court did not act

arbitrarily, unconscionably, or unreasonably in finding that Chafin's affidavit did not

contain a statement against interest or corroborating circumstances clearly indicating the

trustworthiness of the statement even though Chafin otherwise risked self-incrimination

under the uncontested facts of the case if he testified. See, e.g., Platt at ¶ 77-78 (finding

the trial court did not abuse its discretion in refusing to admit a letter into evidence made

by that witness where the letter asserted his innocence). Therefore, the trial court did not

abuse its discretion in excluding the affidavit.

{¶ 42} Accordingly, we overrule appellant's second assignment of error.

C. Third Assignment of Error

{¶ 43} Under the third assignment of error, appellant contends that the trial court

erred in imposing a fine of $20,000 because it did not consider appellant's ability to pay

the fine after appellant filed the requisite affidavit of indigence. We disagree.

{¶ 44} In addressing mandatory fines, an appellate court must first examine the

sentencing court's compliance with applicable rules and statutes in imposing the sentence

to determine whether the sentence is clearly and convincingly contrary to law. State v.

No. 16AP-772 15

Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 75 (10th Dist.). See, e.g., State v.

Hayes, 10th Dist. No. 08AP-233, 2009-Ohio-1100, ¶ 17. If the sentence is not clearly and

convincingly contrary to law, the appellate court reviews whether the trial court abused its

discretion in imposing the fine. Pilgrim. See, e.g., State v. Small, 10th Dist. No. 14AP-

659, 2015-Ohio-3640, ¶ 40-41. An abuse of discretion implies that the court's attitude is

unreasonable, arbitrary, or unconscionable. Blakemore at 219.

{¶ 45} R.C. 2929.18(B)(1) requires a sentencing court to impose a fine for any first,

second, or third-degree felony violation of R.C. Chapter 2925. However, in certain

circumstances, an indigent offender may avoid the mandatory fine. To this point, R.C.

2929.18(B)(1) provides that:

If an offender alleges in an affidavit filed with the court prior

to sentencing that the offender is indigent and unable to pay

the mandatory fine and if the court determines the offender is

an indigent person and is unable to pay the mandatory fine

described in this division, the court shall not impose the

mandatory fine upon the offender.

{¶ 46} An offender who files an affidavit, pursuant to R.C. 2929.18(B)(1), is not

automatically entitled to a waiver of the mandatory fine. Small at ¶ 40; State v. Gipson,

80 Ohio St.3d 626, 634 (1998) (stating that R.C. 2929.18(B)(1) "clearly require[s]

imposition of a mandatory fine unless (1) the offender's affidavit is filed prior to

sentencing, and (2) the trial court finds that the offender is an indigent person and is

unable to pay the mandatory fines"). "The burden is on the offender to make that

demonstration." Small at ¶ 40.

{¶ 47} A trial court's imposition of a fine, pursuant to R.C. 2929.18, is contrary to

law if the record does not contain any evidence that the trial court considered the

offender's present or future ability to pay the amount of the sanction or fine. State v.

Collier, 184 Ohio App.3d 247, 2009-Ohio-4652, ¶ 11 (10th Dist.); Hayes at ¶ 17. This is a

low standard: "some evidence in the record that the trial court considered [the offender's]

present and future ability to pay the sanction" is adequate to meet the trial court's

requirement under law. Id. at ¶ 14. A trial court is not required to expressly state that it

considered an offender's ability to pay a fine. State v. Parker, 2d Dist. No. 03CA0017,

2004-Ohio-1313, ¶ 42; State v. Hale, 5th Dist. No. 14-CA-00010, 2014-Ohio-4981, ¶ 12;

No. 16AP-772 16

Collier at ¶ 11. Likewise, the trial court is not required to expressly consider certain

factors or make specific findings. Hayes at ¶ 14. See also State v. Johnson, 10th Dist. No.

16AP-689, 2017-Ohio-5527, ¶ 45, quoting State v. Plemons, 2d Dist. No. 26434, 2015-

Ohio-2879, ¶ 8 (noting that a trial court does not have to affirmatively find that an

offender is able to pay). "The court's consideration of that issue may be inferred from the

record under appropriate circumstances." Parker at ¶ 42. A sentencing court need not

hold an evidentiary hearing on the matter. Hayes at ¶ 14.

{¶ 48} Here, appellant filed an affidavit of indigency, pursuant to R.C.

2929.18(B)(1), on October 31, 2016 and advised the court of the affidavit at the

subsequent sentencing hearing. Because appellant's drug convictions were violations of

R.C. Chapter 2925, the trial court was required to impose a fine of no more than $20,000

but no less than $10,000. R.C. 2929.18(A)(3); Small at ¶ 38. The trial court imposed a

fine of $10,000 on each of the two counts, with payment deferred while appellant is

incarcerated.

{¶ 49} The record of this case contains evidence that the trial court considered

appellant's present and future ability to pay the fee. First, in its judgment entry, the trial

court stated that it considered appellant's present and future ability to pay a fine and

financial sanction. Second, the record supports this statement. At the sentencing

hearing, the trial court stated that it would not make a finding that appellant was indigent

and referenced appellant's ability to post the $100,000 surety or appearance bond and

"plenty of evidence" in support of imposing a fee. (Sentencing Hearing Tr. at 16.) Third,

the record of this case shows that appellant was CEO of a company and was stopped by

officers in his company's car with over $1,000 cash on his person. Furthermore, nothing

in the record suggests that he is not an able-bodied person with some employment

potential after his release from prison. Gipson at 636; Collier at ¶ 14.

{¶ 50} Based on this record, we find that in sentencing appellant, the trial court

considered his present and future ability to pay a fine and made no determination he is

unable to pay the mandatory fine the statute authorizes. Furthermore, appellant did not

carry his burden to affirmatively demonstrate his inability to pay the mandatory fine.

Small at ¶ 40-41. As a result, the record demonstrates that the fine imposed on appellant

is neither contrary to law nor an abuse of the trial court's discretion.

No. 16AP-772 17

{¶ 51} Accordingly, we overrule appellant's third assignment of error.

IV. CONCLUSION

{¶ 52} Having overruled appellant's three assignments of error, we affirm the

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

TYACK, P.J., and BRUNNER, J., concur.

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