State v. Bazler , 2018 Ohio 5306 ( 2018 )

[Cite as State v. Bazler, 2018-Ohio-5306.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff – Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 18-CA-29
CHAD BAZLER
Defendant – Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Case No. 16-CR-605
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 26, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
HAWKEN FLANAGAN JAMES A. ANZELMO
NATHANIEL H. HURST Anzelmo Law
Licking County Prosecutor’s Office 446 Howland Drive
20 South Second Street, 4th Floor Gahanna, Ohio 43230
Newark, Ohio 43055
Licking County, Case No. 18-CA-29 2
Hoffman, J.
{¶1} Appellant Chad Bazler appeals the judgment entered by the Licking County
Common Pleas Court convicting him of two counts of aggravated trafficking in drugs (R.C.
2925.03(A)(1), (C)(1)(a)) and sentencing him to eighteen months incarceration on each
count, to be served consecutively. Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} In 2016, Courtney Zigan was working with Newark Police officer Todd
Green as a confidential informant, in exchange for having her felony drug charges
reduced to a misdemeanor. Zigan identified Appellant to police as someone she could
purchase drugs from in a controlled buy.
{¶3} On June 6, 2016, Officer Green arranged a controlled buy between Zigan
and Appellant. Zigan called Appellant to arrange to buy methamphetamine. The call was
recorded and monitored by police. Appellant sent a text to Zigan to meet him at the Taco
Bell in Heath in ten minutes. Police searched the informant and her vehicle, fitted her
with a covert transmitter recorder, and provided her with $50 in cash.
{¶4} Officer Green followed Zigan to Taco Bell. Green knew Appellant from past
dealings, and recognized Appellant in a silver Chevy in the Taco Bell parking lot. A
woman, also known to Green, came out of the Taco Bell and hugged Zigan. Green
watched the informant’s hands at all times to make sure she was not given drugs by the
other woman. He watched a hand-to-hand exchange between Zigan and Appellant
through the passenger door of the vehicle. The drugs Zigan purchased from Appellant
were tested and found to be methamphetamine.
{¶5} Again on July 12, 2016, Green arranged another recorded phone call
between Zigan and Appellant. Appellant told Zigan to meet him in the Giant Eagle parking
Licking County, Case No. 18-CA-29 3
lot. She was again searched and fitted with a recorder. Police gave her $50 in cash for
the drug buy. Green stayed farther away from the transaction so as to avoid being
recognized by Appellant. However, he heard Detective Greg Collins over the radio say
Appellant exited his vehicle and walked to Zigan’s vehicle. Zigan again purchased
methamphetamine from Appellant using the money provided by police.
{¶6} Appellant was interviewed by Officer Green on March 31, 2017. Appellant
admitted he sold drugs in the past, but claimed he stopped because he had a new job.
{¶7} Appellant was indicted by the Licking County Grand Jury on two counts of
aggravated trafficking in drugs. The case proceeded to jury trial in the Licking County
Common Pleas Court. He was convicted on both counts and sentenced to eighteen
months incarceration on each count, to be served consecutively, for an aggregate term
of incarceration of thirty-six months. It is from the February 21, 2018 judgment of
conviction and sentence Appellant prosecutes this appeal, assigning as error:
I. CHAD BAZLER’S CONVICTIONS ARE BASED ON
INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I
OF THE OHIO CONSTITUTION.
II. CHAD BAZLER’S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE
PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS
Licking County, Case No. 18-CA-29 4
TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16,
ARTICLE I OF THE OHIO CONSTITUTION.
III. THE TRIAL COURT UNLAWFULLY ORDERED BAZLER TO
SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS
TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE
OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
IV. BAZLER RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE
OHIO CONSTITUTION.
I.
{¶8} In his first assignment of error, Appellant argues the judgment is not based
on sufficient evidence because the State failed to prove a proper chain of custody of the
methamphetamine.
{¶9} An appellate court's function when reviewing the sufficiency of the evidence
is to determine whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
{¶10} Appellant was convicted of two counts of aggravated trafficking in drugs in
violation of R.C. 2925.03:
Licking County, Case No. 18-CA-29 5
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a controlled
substance analog;
(C) Whoever violates division (A) of this section is guilty of one of the
following:
(1) If the drug involved in the violation is any compound, mixture,
preparation, or substance included in schedule I or schedule II, with the
exception of marihuana, cocaine, L.S.D., heroin, any fentanyl-related
compound, hashish, and any controlled substance analog, whoever violates
division (A) of this section is guilty of aggravated trafficking in drugs. The
penalty for the offense shall be determined as follows:
(a) Except as otherwise provided in division (C)(1)(b), (c), (d), (e), or
(f) of this section, aggravated trafficking in drugs is a felony of the fourth
degree, and division (C) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender.
{¶11} Appellant argues in the absence of testimony from the person who
transported the drugs to BCI for testing, the State failed to prove the drugs tested were,
in fact, the drugs Appellant allegedly sold to the informant. This Court has previously
recognized this argument is not cognizable in a sufficiency of the evidence claim:
Appellant also argues that in the absence of the testimony of David
Billings, there is a missing link in the chain of custody, which demonstrates
Licking County, Case No. 18-CA-29 6
insufficient evidence that the arresting officer recovered a controlled
substance from her motor vehicle. Chain of custody is part of the
authentication and identification mandates set forth in Evid. R. 901. State v.
Barzacchine (1994), 96 Ohio App.3d 440, 645 N.E.2d 137. Any break in the
chain of custody goes to the credibility, or weight of the evidence, and not
to admissibility. Id. The State is not required to prove a perfect, unbroken
chain of custody. State v. Keene, 81 Ohio St.3d 646, 693 N.E.2d 246, 1998-
Ohio-342.
We first note that appellant has not challenged the manifest weight
of the evidence, but rather the sufficiency of the evidence. As a break in the
chain of custody goes to the credibility or weight of the evidence, and not
its admissibility, chain of custody is not an appropriate consideration on a
claim that the State presented insufficient evidence to allow a rational trier
of fact to find the elements of the crime proven beyond a reason [sic] doubt.
{¶12} State v. Bias, 5th Dist. Licking No. 02-CA-00044, 2002-Ohio-4539, ¶¶ 11-
12.
{¶13} Appellant did not object to the admission of the methamphetamine into
evidence, nor does he assign plain error to its admission. Appellant’s claim the State
failed to prove chain of custody goes to the weight to be given to the evidence, and is not
an appropriate consideration on a claim the State presented insufficient evidence to allow
a rational trier of fact to find the elements of the offense proven beyond a reasonable
doubt.
Licking County, Case No. 18-CA-29 7
{¶14} The first assignment of error is overruled.
II.
{¶15} In his second assignment of error, Appellant argues the judgment of
conviction is against the manifest weight of the evidence.
{¶16} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).
{¶17} Appellant argues the only witness who testified to firsthand knowledge of
the drug transactions is the informant, and her testimony is not credible because she was
involved with the police as an informant for the sole purpose of reducing her own drug
charges. He argues the police only witnessed the transactions from afar, and therefore
their testimony is of little value. He also argues the State failed to prove chain of custody,
and therefore the record does not demonstrate the drugs trafficked were the same drugs
tested.
{¶18} Officer Green testified as to the procedures employed by police to ensure
the reliability of the controlled buy. He testified prior to each buy, Zigan and her vehicle
were searched. Careful surveillance was maintained of Zigan as she traveled to the spot
designated by Appellant for each of the controlled buys. The controlled purchases were
monitored through both visual surveillance and through live audio of the informant’s
Licking County, Case No. 18-CA-29 8
interaction with Appellant. He testified on June 6, 2016, he carefully watched Zigan’s
hands during the entire transaction. He also testified on June 6, 2016, he saw the hand-
to-hand transaction between Zigan and Appellant. Det. Greg Collins identified Appellant
as the person he observed approach Zigan’s vehicle on July 12, 2016, in the Giant Eagle
parking lot. After each purchase, police maintained surveillance of Zigan’s vehicle until
they reached a meeting spot, at which time she gave them the drugs purchased from
Appellant and both her person and her vehicle were again searched.
{¶19} Zigan testified on both occasions she received methamphetamine from
Appellant in exchange for the money police gave her for the controlled buy. She identified
the voices on the audio recordings of the recorded calls and the transactions themselves,
and the recordings were played for the jury. Although she was working for the police in
exchange for a reduction of her own drug charges, the jury was in a better position than
this Court to judge her credibility. Further, the jury was aware of the deal she made with
the police and the fact she had previous drug charges.
{¶20} Officer Green additionally testified when he interviewed Appellant on March
31, 2017, Appellant admitted he had sold drugs in the past, although now he had a job
and was no longer selling drugs.
{¶21} Officer Green testified the manila envelopes containing the substance
tested and found to be methamphetamine by BCI were the envelopes he placed the
baggies of methamphetamine in and put in the evidence locker at the Licking County
Sheriff’s Office. Appellant cross-examined him at length concerning his claim not every
person who potentially handled the drugs appeared on the chain of custody as set forth
on the manila envelopes. However, while there was a suggestion persons not noted on
Licking County, Case No. 18-CA-29 9
the chain of custody may have had access to the drugs, the documentary evidence
submitted in the case reflects the agency number is the same in each case on the property
records filled out in the Licking County Sheriff’s Office, the evidence submission sheets
at BCI, and the reports of the tests results. We find the jury did not lose its way in
concluding the drugs tested by BCI were in fact the drugs seized by Officer Green from
the controlled buys.
{¶22} Based on the evidence presented at trial, we find the judgment is not against
the manifest weight of the evidence.
{¶23} The second assignment of error is overruled.
III.
{¶24} In his third assignment of error, Appellant argues the trial court failed to
make the findings during the sentencing hearing required by R.C. 2929.14(C)(4) to
impose consecutive sentences.
{¶25} R.C. 2929.14(C)(4) states:
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
Licking County, Case No. 18-CA-29 10
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶26} When imposing consecutive sentences, a trial court must state the required
findings at the sentencing hearing. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-
3177, 16 N.E.3d 659, ¶ 29. Because a court speaks through its journal, the court should
also incorporate its statutory findings into the sentencing entry. Id. However, a word-for-
word recitation of the language of the statute is not required. Id. As long as the reviewing
court can discern the trial court engaged in the correct analysis and can determine the
record contains evidence to support the findings, consecutive sentences should be
upheld. Id.{¶27} In the sentencing entry, the trial court found pursuant to R.C.
2929.14(C)(4)(c) Appellant’s history of criminal conduct demonstrates consecutive
Licking County, Case No. 18-CA-29 11
sentences are necessary to protect the public from future crime by the offender. While
the court did not use the statutory language at the sentencing hearing, the trial court
stated on the record:
Well, Mr. Bazler, the Court’s considered the purposes and principles
of sentencing set out under Section 2929.11, as well as the seriousness
and recidivism factors set out under Section 2929.12. My recollection is
that this is your fifth felony conviction since 2013, and I also recall we should
have had this trial in August but you failed to appear for your jury trial then,
so you’ve had ample opportunity to get that accomplished. And you didn’t
show up until you were arrested sometime in December I believe after I’m
pretty sure your bond forfeiture hearing was continued once or twice.
While your case was pending before you failed to show up, you were
dirty for Methamphetamine. You were using during that period of time, and
if I’m not mistaken, you’ve been serving a sentence for fleeing at the jail
from Muni Court from when they caught you on your bond. So, you’ve had
lots of opportunity to do the right thing and you haven’t done it, it doesn’t - -
it appears to me.
{¶28} Tr. 234-35.
{¶29} From the trial court’s statements at the sentencing hearing, we can discern
the trial court engaged in the correct analysis. Appellant does not argue the record fails
Licking County, Case No. 18-CA-29 12
to support the court’s findings concerning his history of criminal conduct, but only argues
the sentence is contrary to law because of the court’s failure to make the requisite
findings. We find the trial court’s statements at the hearing were sufficient to comply with
Bonnell, supra., and R.C. 2929.14(C)(4).
{¶30} The third assignment of error is overruled.
IV.
{¶31} In his fourth assignment of error, Appellant argues trial counsel was
ineffective for failing to move to waive court costs.
{¶32} In State v. Davis, 5th Dist. Licking No. 17-CA-55 (Dec. 20, 2017), ¶ 27, this
Court reviewed this issue and determined the following:
We find no merit in Appellant's allegation that he received ineffective
assistance of counsel as a result of his attorney failing to request that the
trial court waive court costs. Because R.C. 2947.23(C) grants appellant the
ability to seek waiver of costs at any time, including after sentencing,
Appellant has not been prejudiced by the failure of his counsel to request a
waiver at sentencing.
{¶33} We note this court's decision in Davis has been accepted for review by the
Supreme Court of Ohio upon certification of a conflict with the decision in State v.
Springer, 8th Dist. Cuyahoga No. 104649, 2017-Ohio-8861. Unless a decision is rendered
on the issue to the contrary in the future, this Court will continue to abide by its decision
in Davis.
Licking County, Case No. 18-CA-29 13
{¶34} The fourth assignment of error is overruled.
{¶35} The judgment of the Licking County Common Pleas Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur