Court of Appeals upholds engaging in a pattern of corrupt activity, drug-related convictions of Hillsboro man

The Fourth District Court of Appeals this week affirmed the conviction of a Hillsboro man sentenced to 24.5 years in prison after being found guilty of multiple drug-related felony charges, including engaging in a pattern of corrupt activity, in August 2022.

As previously reported, the trial of Wesley A. Howard, 30, began on the morning of Aug. 22 and continued until  Aug. 23 at 6 p.m. He was charged with engaging in a pattern of corrupt activity, a first-degree felony; aggravated trafficking in methamphetamine in the vicinity of a juvenile, a second-degree felony; aggravated trafficking in methamphetamine in the vicinity of a school zone, a second-degree felony; five counts of aggravated possession of methamphetamine, a third-degree felony; three counts of aggravated trafficking in methamphetamine, a third-degree felony; and a forfeiture specification. 

He was convicted of all charges after approximately three hours of deliberations by the jury Aug. 24, as the only exception in the entire indictment was one of Howard’s four vehicles not being found subject to forfeiture. Howard was sentenced to a total of 24.5 years in prison.

The allegations in the indictment — which also included charges against co-defendant Christopher Hertzler, who was also convicted — stemmed from six separate alleged drug buys in the Highland County Task Force’s “Operation Ice Breaker” large-scale drug investigation. According to evidence presented by the state, the HCTF used confidential informants (CIs) to purchase large quantities of methamphetamine from the defendants, with all charges involving sales in an amount equal to or exceeding bulk amount but less than five times bulk amount.

That included deals at residences and in the parking lots of Hillsboro businesses, sometimes with children present, and at one point, within 1,000 feet of school property. The alleged deals took place in October and November 2020.

According to a decision and judgment entry by the Court of Appeals, filed April 10 by the Highland County Clerk of Courts, Howard (represented by attorney Steven Eckstein) raised four assignments of error on appeal, all of which were overruled by the appellate court. 

The first assignment of error was that Howard’s “right to confrontation, due process and a fair trial” was “violated” by the trial court’s denial of his motion to sever Hertzler from the trial.

The August 2022 trial was actually the second time the case was tried, as a mistrial was declared in March 2022 following a medical emergency that occurred at trial. Judge Michael Hess wrote in the appellate entry that Howard’s motion to sever was made prior to the March trial, but not again before the second trial where he was ultimately convicted, “so he forfeited all but plain error.”

According to Hess, “[Howard] argues that he was prejudiced because he could not cross examine Hertzler about” comments made by Hertzler about his “dude” (believed to be a reference to Howard) heard on recordings during drug buys.

“We find that the statements Howard contends violated his right to confrontation were not testimonial in nature,” Hess wrote. “Therefore, his Sixth Amendment right to confrontation was not implicated.”

Hess said that Howard’s argument was that Hertzler’s comments were “incriminating even through Hertzler used ‘dude’ rather than ‘Howard’ in referring to him.’” However, the appellate court found that those comments “were not testimonial in nature because they were not made under circumstances which an object witness would believe the statement would be available for use at a later trial.

“Hertzler made the statements during an illegal drug transaction to people he believed were legitimate customers and drug users,” Hess wrote. “Hertzler made the statements without knowledge that they were being recorded by law enforcement.

“Howard has failed to demonstrate plain error. We find no error — plain or otherwise — in the trial court’s decision to deny Howard’s motion to sever.”

The related second and third assignments of error raised by Howard are that his “convictions on counts two, four and six are not based upon sufficient evidence, thereby denying him his due process and fair trial rights.” He argued that the convictions on those counts are “against the manifest weight of the evidence.” 

Those counts were aggravated trafficking in methamphetamine in the vicinity of a juvenile, aggravated trafficking in methamphetamine in the vicinity of a school zone and aggravated trafficking in methamphetamine.

According to Hess, Howard is arguing that “the jury had to engage in impermissible stacking of inferences to conclude he was involved in the transactions” alleged in those counts. 

“After viewing the evidence in a light most favorable to the prosecution, we conclude that any rational trier of fact could have found he was selling methamphetamine without violating the rule against stacking inferences,” Hess wrote. 

Howard argued that “there was insufficient evidence that he participated in those three controlled buys” because he “‘was never seen’ by the witnesses” who testified for those counts, the appellate entry says. “He argues that the only automobile at the scene during each controlled buy was his mother’s white Ford Taurus. He argues, ‘It is readily apparent the [state] used circumstantial evidence to prove the identity of the co-defendant’s ‘dude.’’

The appellate court found that jurors “could draw multiple, separate inferences from the same set of facts.

“Those facts included that Howard was a drug dealers who had sold drugs directly to a confidential informant,” Hess wrote. “Howard sold drugs directly out of the white Ford Taurus he drove. Howard maintained larger quantities of drugs and provided smaller quantities to other dealers. Howard was repeatedly seen driving the white Ford Taurus around town. Hertzler did not have the drugs for the controlled buys and had to get them from his ‘dude’ each time. Immediately prior to each controlled buy, Hertzler procured drugs from Howard’s white Ford Taurus or from Howard’s residence. Phone records showed that Hertzler and Howard had daily contact with each other during October and November 2020, the time the controlled buys occurred. A search of Howard’s residence led to the discovery of scales, a money counter and surveillance cameras, all of which are commonly used in illegal drug deals.”  

Hess added that “any rational trier of fact could have found [Howard] was a ‘person’ selling methamphetamine without violating the rule against stacking inferences.

“We do not believe that the jury clearly lost its way so as to create a manifest miscarriage of justice such that Howard’s convictions must be reversed and a new trial ordered,” Hess wrote.

Finally, Howard argued that he was “denied effective assistance of counsel” because his attorney “did not prepare an affidavit of indigency and demonstrate that he was unable to pay the $40,000 mandatory fines.”

The appellate court determined that Howard “failed to establish that his trial counsel’s performance was deficient” by not filing such an affidavit, and that “even if an affidavit had been filed, Howard provides no proof that a reasonable probability exists that the trial court would have waived the fines.” 

Howard argued that he could have been called “as a witness to testify about his inability to pay the mandatory fines,” but also “concedes that there is no evidence in the record that he was indigent at the time of sentencing,” the appellate entry says.

“Therefore, there is no evidence that Howard could truthfully execute an affidavit of indigency at the time of sentencing or provide truthful testimony that he was indigent,” Hess wrote.

Hess pointed out that Howard “had the financial ability to retain his own defense counsel” for both trials and that he “owned four vehicles,” as there is “no evidence concerning Howard’s financial status and no evidence of indigency.

“According to statements made at the sentencing hearing, contrary to viewing Howard as indigent, the trial court believed Howard had a lucrative drug trade and made considerable money through drug deals,” Hess wrote.

As a result, the Court of Appeals overruled all four “assignments of error and affirm the trial court’s judgment,” Hess wrote.

Howard is incarcerated in the London Correctional Institution and has been in prison since Aug. 29, 2022, according to the Ohio Department of Rehabilitation and Correction. His expected release date/parole eligibility date is Feb. 23, 2047.

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