State v. Rodgers

[Cite as State v. Rodgers, 2011-Ohio-3003.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-10-35
v.
MACK J. RODGERS, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2009-CR-229
Judgment Affirmed
Date of Decision: June 20, 2011
APPEARANCES:
Sarah G. LoPresti for Appellant
Mark C. Miller for Appellee
Case No. 5-10-35
PRESTON, J.
{¶1} Defendant-appellant, Mack J. Rodgers (hereinafter “Rodgers”),
appeals the judgment of conviction and sentence entered against him by the
Hancock County Court of Common Pleas, following a jury trial in which Rodgers
was found guilty of one count of aggravated possession of drugs. For the reasons
that follow, we affirm.
{¶2} On November 19, 2009, the Hancock County Grand Jury returned an
indictment against Rodgers charging him with one count of aggravated possession
of drugs in violation of R.C. 2925.11(A), a felony of the second degree. The
indictment listed the drugs at issue as Methylenedioxymethamphetamine in an
amount that was equal to or exceeded five times the bulk amount, but less than
fifty times the bulk amount.
{¶3} On December 14, 2009, December 16, 2009, and March 10, 2010,
Rodgers filed motions to suppress. Eventually, hearings on the motions to
suppress were heard on March 10, 2010 and April 17, 2010. Subsequently, on
May 19, 2010, the trial court overruled Rodgers’ motions to suppress.
{¶4} On September 27, 2010, the State filed a motion to amend the
indictment for purposes of changing the identity of the substance at issue, which it
claimed was really N-Benzylpiperazine, in an amount that was equal to or
exceeded five times the bulk amount, but less than fifty times the bulk amount.
-2-
Case No. 5-10-35
{¶5} On September 27, 2010, a hearing on the State’s motion was
conducted, at which time, both parties presented their arguments. Thereafter, the
trial court granted the State’s motion to amend the indictment.
{¶6} The matter proceeded to trial on September 27-28, 2010. After the
presentation of evidence, the jury ultimately found Rodgers guilty of aggravated
possession of drugs.
{¶7} On October 5, 2010, a sentencing hearing was held, wherein the trial
court sentenced Rodgers to seven (7) years in prison.
{¶8} Rodgers now appeals and raises the following two assignments of
error. For ease of our discussion, we elect to address Rodgers’ second assignment
of error first.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT VIOLATED MACK RODGERS’
RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN
THE ABSENCE OF SUFFICIENT EVIDENCE AND
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE,
MR. RODGERS WAS FOUND GUILTY OF THE
AGGRAVATED POSSESSION OF DRUGS. FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 16, ARTICLE I OF THE
OHIO CONSTITUTION. (October 7, 2010 Judgment Entry).
{¶9} In his second assignment of error, Rodgers argues that his conviction
was not supported by sufficient evidence and was against the manifest weight of
the evidence.
-3-
Case No. 5-10-35
{¶10} Reviewing a challenge to the sufficiency of the evidence requires this
Court to examine the evidence in the light most favorable to the prosecution. The
Ohio Supreme Court has set forth the sufficiency of the evidence test as follows:
[A]n appellate court’s function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the
evidence admitted at trial and determine whether such evidence,
if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. The relevant inquiry is
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 (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, superseded by
state constitutional amendment on other grounds as stated in State v. Smith, 80
Ohio St.3d 89, 684 N.E.2d 668.
{¶11} Unlike our review of the sufficiency of the evidence, an appellate
court’s function when reviewing the weight of the evidence is to determine
whether the greater amount of credible evidence supports the verdict. State v.
Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. In reviewing
whether the trial court’s judgment was against the weight of the evidence, the
appellate court sits as a “thirteenth juror” and examines the conflicting testimony.
Id. In doing so, this Court must review the entire record, weigh the evidence and
all of the reasonable inferences, consider the credibility of witnesses, and
determine whether in resolving conflicts in the evidence, the factfinder “clearly
-4-
Case No. 5-10-35
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” State v. Andrews, 3d Dist. No. 1-05-70,
2006-Ohio-3764, ¶30, citing State v. Martin (1983), 20 Ohio App.3d 172, 175,
485 N.E.2d 717; Thompkins, 78 Ohio St.3d at 387.
{¶12} Here, Rodgers was charged with aggravated possession of drugs
pursuant to R.C. 2925.11(A), which states that “no person shall knowingly obtain,
possess, or use a controlled substance. “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)
{¶13} At trial, the State presented testimony from Trooper Kurt
Beidelschies of the Ohio State Highway Patrol, Findlay Post No. 32. Trooper
Beidelschies testified that he was working the 11 pm to 7 am shift on November
10, 2009 on Interstate 75, when around 11:30 p.m., he observed a vehicle drive
past him traveling faster than the posted speed limit. (Sept. 27, 2010 Tr. at 149-
51). Trooper Beidelschies said that he used his laser check twice and it indicated
that the vehicle was traveling 83 mph and 82 mph in a 65 mph zone. (Id. at 151).
As a result, Trooper Beidelschies said that he executed a stop of the vehicle. (Id.
at 151-52). Trooper Beidelschies testified that Rodgers had been driving the
-5-
Case No. 5-10-35
vehicle, and that there had been a passenger seated in the front passenger’s seat,
later identified as Armond Price. (Id. at 151-52).
{¶14} Trooper Beidelschies stated that he explained to Rodgers the reason
for the traffic stop and asked him for his driver’s license, registration, and proof of
insurance. (Id. at 152). Rodgers did not give Trooper Beidelschies a driver’s
license, but instead gave him a Michigan state identification, which had a
Michigan State parole card stuck to the back of it. (Id.). Additionally, Price
explained to Trooper Beidelschies that the vehicle was a rental and that it was
rented to Price’s wife, Sierre Price. (Id.). Price gave Trooper Beidelschies the
rental agreement, along with an Ohio driver’s license. (Id. at 153).
{¶15} At that point, Trooper Beidelschies testified that he had Rodgers
come with him and had Rodgers sit in the front seat of his patrol car while he
conducted a check of Rodgers’ driver status. (Id.). Trooper Beidelschies said that
he asked Rodgers about his parole card because typically, as a condition of release
in any state, a person is not permitted to leave the state without getting permission.
(Id. at 153-54). In response, Rodgers indicated that he was on parole for
aggravated robbery and an attempted murder charge, and indicated that his parole
officer did not know that he had left the state, even though it was a condition of his
supervision. (Id.). Trooper Beidelschies testified that Rodgers’ license came back
as being suspended. (Id).
-6-
Case No. 5-10-35
{¶16} Trooper Beidelschies stated that soon after running the check on his
license, Rodgers admitted to speeding. (Id. at 155). Trooper Beidelschies also
said that he explained to Rodgers that the rental agreement specifically stated that
no other drivers were permitted to drive the car except for Sierre Price, and that it
was actually set to expire at midnight that day, which was only approximately 15
minutes from the time of the stop. (Id.). At that point, Rodgers explained to
Trooper Beidelschies that he had been driving Price down to Columbus and was
going to immediately return to Michigan to return the rental vehicle; however,
Rodgers admitted that by the time he dropped off Price in Columbus and drove the
car back to Michigan to the rental agency the agreement would be expired. (Id.).
{¶17} Trooper Beidelschies testified that by this time in the stop Rodgers
appeared “extremely nervous” and that he was “very fidgety, overly nervous.”
(Id. at 156). Consequently, based on the circumstances, Trooper Beidelschies said
he requested canine assistance from the Hancock County Sheriff’s Office. (Id. at
156). Trooper Beidelschies testified that Deputy Smith arrived within five
minutes with his canine, Becky, who positively alerted to the odor of narcotics
coming from somewhere inside the vehicle after doing a walk around the vehicle.
(Id. at 156-57). Subsequently, Trooper Beidelschies placed both Rodgers and
Price in the back of his cruiser, explained to them that based on the canine’s alert
they were going to search the vehicle, and asked them whether either of them had
-7-
Case No. 5-10-35
used any narcotics recently in the vehicle. (Id.). Price indicated that he smoked
marijuana and reasoned that that was why the dog had alerted to the vehicle. (Id.).
{¶18} Then Trooper Beidelschies said that he, Deputy Smith, and Trooper
Kline from the Ohio State Highway Patrol, Findlay Post No. 32, conducted a
search of the vehicle. (Id. at 157-60). Eventually, they discovered two plastic
baggies inside the armrest in the center of the back seat of the vehicle that
contained blue and green pills. (Id. at 158-60); (State’s Exs. 1, 1-A, 2, 2-A).
{¶19} Trooper Beidelschies explained that after they searched the vehicle,
he took Price and Rodgers back to the station and searched the two men. (Id. at
178). In particular, Trooper Beidelschies found two Vicodin pills on Price after he
shook Price’s pant leg. (Id.). Based on what Trooper Beidelschies had heard from
the in-car audio recording and the fact that the pills had rolled out from Price’s
pant leg, Trooper Beidelschies concluded that the pills had been previously
inserted in Price’s anal cavity. (Id.). In addition to the two pills found on Price,
Trooper Beidelschies also found four additional similar Vicodin pills inside his
patrol car. (Id.).
{¶20} Trooper Beidelschies also testified that along with a video recording
device in the front of his patrol cruiser, there were digital recording devices on his
person and inside his patrol cruiser as well. (Id. at 164). Both devices were
-8-
Case No. 5-10-35
working properly on the night in question.1 (Id. at 164-65). At trial, Trooper
Beidelschies played the video and audio recording of the traffic stop and explained
both the visual and audio recordings taken that night. (Id. at 169); (State’s Ex. 5).
{¶21} In particular, in the audio recording, Trooper Beidelschies can be
heard talking to Rodgers in his cruiser about the possibility of bond given
Rodgers’ suspended license. (State’s Ex. 5). In addition, Trooper Beidelschies
also can be heard informing Rodgers that in light of the rental agreement and the
fact that neither Rodgers nor Price was permitted as a driver of the vehicle he
would have to contact Enterprise Rental Company and determine how the
company wanted to proceed. (Id.). Furthermore, later on in the audio, while the
law enforcement officers were outside the cruiser, Price and Rodgers can be heard
discussing which person should take the fall for the pills found in the vehicle.
(Id.). While Price does most of the talking and tries several times to convince
Rodgers to admit to being responsible for the drugs, at one point Rodgers refuses
to go along and tells Price “we came up there together with this shit, man.” (Id.).
In addition, Rodgers can be heard telling Price several times that they have to
“fight this,” and at certain times, Rodgers can also be heard explaining to Price
1
We also note that there is evidence in the record that there were two visible signs in Trooper Beidelschies’
patrol cruiser which indicated that all conversation inside the patrol vehicle were subject to audio and video
recording.
-9-
Case No. 5-10-35
that the vehicle they were driving is a rental and that the drugs could belong to
anyone. (Id.).
{¶22} On cross-examination, Trooper Beidelschies acknowledged that on
the recording Rodgers denied that the pills were his and that he was “going to fight
this.” (Id. at 183-84). However, Trooper Beidelschies later explained that he
believed Rodgers had made that statement because he did not believe Trooper
Beidelschies could prove the pills belong to him based on the fact that they were
found in a rental car. (Id. at 183-84, 188). Trooper Beidelschies also stated that it
was only Price, not Rodgers, who had admitted to smoking marijuana. (Id. at 184-
85). Moreover, the Vicodin pills had only been found on Price. (Id. at 184-85).
Furthermore, Trooper Beidelschies testified that there was nothing attributable to
Rodgers with respect to the rental agreement since the rental agreement had been
in Price’s wife’s name. (Id. at 186). Finally, Trooper Beidelschies acknowledged
that a vast majority of the spoken words on the recording belonged to Price and
not Rodgers, and that Price repeatedly asked Rodgers that if he admitted to the
drugs, he would put together something for him. (Id. at 186). Nevertheless,
Trooper Beidelschies explained that even though Rodgers made statements that he
did not know anything about the drugs, Trooper Beidelschies believed that
Rodgers had made those comments in reference to the fact that they had been
-10-
Case No. 5-10-35
driving a rental vehicle and so the officers could not tie the drugs to either of them.
(Id. at 189-91).
{¶23} Next to testify was Deputy Frederick R. Smith of the Hancock
County Sheriff’s Office, who was assigned to the canine patrol and paired with his
canine partner, Becky, on the day in question. (Id. at 196). Deputy Smith testified
that on November 10, 2009, he received a call for a canine sniff between the river
and State Route 12 on southbound I-75. (Id. at 198-99). Deputy Smith said that
after he spoke to Trooper Beidelschies at the scene, he and Becky did a search of
the exterior of the vehicle. (Id. at 199). Deputy Smith explained that typically he
and his canine partner will do two sweeps of the vehicle, but in this particular
case, Becky positively reacted to the driver’s door seam on their first sweep of the
vehicle. (Id. at 199). At that point, Deputy Smith said that he, along with Trooper
Beidelschies and Trooper Kline, conducted a search of the interior of the vehicle
and located two bags of blue and green pills in the back seat center armrest. (Id. at
200). On cross-examination, when asked whether Becky could tell the difference
between MDMA and N-Benzylpiperazine, Deputy Smith stated that Becky was
trained and certified in marijuana, cocaine, heroin, and Methaphetamines, and any
derivatives of those four basic odors. (Id. at 202).
{¶24} Finally, Heather Brin Sheskey, a chemist with the Ohio Highway
Patrol crime lab, testified. Sheskey said that she performed the analysis on the
-11-
Case No. 5-10-35
pills retrieved from the vehicle searched on November 10, 2009. (Sept. 28, 2010
Tr. at 216). After running the standard tests, based on her education, training and
experience Sheskey concluded that the tablets in both baggies contained N-
Benzylpiperazine, otherwise known as BZP. (Id. at 220). There were one
hundred (100) tablets in State’s Exhibit 1 and 1-A, and ninety-nine (99) whole
tablets and one (1) partial tablet in State’s Exhibit 2 and 2-A. (Id.). Sheskey
explained that BZP is a Schedule I drug in Ohio and that the bulk amount in Ohio
is ten tablets. (Id. at 221). On cross-examination, Sheskey explained that, while
MDMA is also known as Ecstasy, she was not sure whether BZP had Ecstasy-like
effects given the fact that MDMA and BZP are not the same chemical. (Id. at
223). Nevertheless, Sheskey said that while the two drugs are separate chemicals,
MDMA and BZP are both Schedule I drugs, and are both equally illegal to possess
in Ohio. (Id. at 223).
{¶25} After Sheskey’s testimony and the admission of the State’s exhibits,
the State rested, and the defense raised a Crim.R. 29 motion for acquittal arguing
that the State had failed to present sufficient evidence that Rodgers had known
about the drugs or had possessed the drugs involved in the incident. (Sept. 28,
2010 Tr. at 231-33). The trial court overruled the defense’s motion for acquittal,
at which time the defense rested without calling any witnesses or presenting any
-12-
Case No. 5-10-35
additional evidence. (Id. at 234-35). Consequently, the matter was submitted to
the jury, and eventually they returned a verdict of guilty. (Id. at 274-75).
{¶26} Now on appeal, Rodgers claims that there was insufficient evidence
to establish that he (1) acted knowingly and (2) either actually or constructively
possessed the drugs that were found in the car’s backseat armrest. We disagree.
{¶27} With respect to whether Rodgers had knowledge of the drugs, R.C.
2901.22(B) defines knowingly as follows: “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.” Moreover, when the
disputed issue is the defendant’s culpable mental state, direct evidence will usually
not be available and, as such, proof must be derived from circumstantial evidence.
See Jenks, 61 Ohio St.3d 259, paragraph one of the syllabus. Circumstantial
evidence has the same probative value as direct evidence. See id.{¶28} At trial, there was testimony that Rodgers appeared “extremely
nervous” and that he was “very fidgety” when speaking to Trooper Beidelschies in
his cruiser. In addition, in the audio recording Rodgers and Price can clearly be
heard discussing the drugs in question and attempting to formulate a defense
strategy prior to the law enforcement officers discovering the drugs in the vehicle.
We find that when viewing this evidence in a light most favorable to the State a
-13-
Case No. 5-10-35
rational trier of fact could have found that Rodgers was aware of the probability of
the existence of drugs in the vehicle, especially considering the fact that the two
men were discussing who should take responsibility for the drugs in the vehicle
prior to law enforcement officers finding the drugs.
{¶29} Furthermore, with respect to the issue of possession, possession has
been defined as “having control over a thing or substance, but may not be inferred
solely from mere access to the thing or substance through ownership or occupation
of the premises upon which the thing or substance is found.” R.C. 2925.01(K).
However, “[p]ossession of drugs can be either actual or constructive. State v.
Pope, 3d Dist. No. 9-06-61, 2007-Ohio-5485, ¶19, citing State v. Cooper, 3d Dist.
No. 9-06-49, 2007-Ohio-4937, ¶25; State v. Edwards, 5th Dist. No. 2004-CA-
00060, 2004-Ohio-6139, ¶10. An individual has constructive possession “if he is
able to exercise domination and control over an item, even if the individual does
not have immediate physical possession of it.” Pope, 2007-Ohio-5485, at ¶19,
citing Cooper, 2007-Ohio-4937, at ¶25 (emphasis added); Edwards, 2004-Ohio-
6139, at ¶10. “All that is required for constructive possession is some measure of
dominion or control over the drugs in question, beyond mere access to them.”
State v. Norman, 10th Dist. No. 03AP-298, 2003-Ohio-7038, ¶31, citations
omitted (emphasis added). “[D]ominion and control may be proven by
circumstantial evidence alone.” State v. Stewart, 3d Dist. No. 13-08-18, 2009-
-14-
Case No. 5-10-35
Ohio-3411, ¶51, citing State v. Trembly (2000), 137 Ohio App.3d 134, 141, 738
N.E.2d 93.
{¶30} Here, there was evidence that, again when viewed in a light most
favorable to the State, a rational trier of fact could have found that Rodgers had
constructive possession of the drugs. While the vehicle involved was a rental
vehicle, neither Rodgers nor Price was listed as a permitted driver on the rental
agreement, and Rodgers was in fact the person driving the vehicle when Trooper
Beidelschies executed the stop. Moreover, Rodgers told Trooper Beidelschies that
he was the one responsible for returning the rental vehicle back to Michigan after
he dropped off Price in Columbus. Furthermore, there was no evidence presented
that Price ever drove the rental vehicle that night. As Rodgers stated in his
appellate brief, his mere proximity to the pills found in the rental vehicle is alone
insufficient to establish constructive possession; however, proximity to the object
does constitute some evidence of constructive possession, and proximity may,
coupled with another factor or other factors, establish constructive possession.
State v. Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶13,
citing State v. Fry, 4th Dist. No. 03CA26, 2004-Ohio-5747, ¶39. Here, in addition
to the fact that Rodgers was the driver and responsible for returning the rental
vehicle, there was the audio recording that evidenced Rodgers’ and Price’s
conversation in the back of the cruiser. In the audio recording, Rodgers not only
-15-
Case No. 5-10-35
refuses to take sole responsibility for the drugs because “we came up there
together with this shit, man,” but Rodgers makes several references to the fact that
since they were driving a rental vehicle the cops would not be able to determine
who was responsible for the drugs. When viewing this evidence in a light most
favorable to the State, we believe that a rational trier of fact could have concluded
that Rodgers had constructive possession of the pills in the rental vehicle.
{¶31} Finally, Rodgers also claims that his conviction was against the
manifest weight of the evidence. Rodgers again maintains that the State failed to
prove that he had knowledge and possession of the drugs in the vehicle. In
particular, Rodgers first claims that Trooper Beidelschies mischaracterized the
conversation between Rodgers and Price in the audio recording exhibit. Rodgers
argues that his statement to Price that “we came up there together with this shit,
man” was not an admission that he knew about the drugs but rather was nothing
more than an acknowledgement that both parties would likely be blamed for the
drugs. Rodgers also asserts that the evidence in actuality showed that Price, not
Rodgers, was the person most likely responsible for the drugs found in the rental
vehicle given the fact that the rental vehicle was in Price’s wife’s name and the
fact that the Vicodin pills were found on Price.
{¶32} However, Trooper Beidelschies’ testimony and credibility were
matters for the trier of fact to weigh and determine. In addition, the possibility
-16-
Case No. 5-10-35
that Price was the sole person responsible for the drugs was also a matter for the
trier of fact to weigh and determine. Nevertheless, there was evidence that
Rodgers appeared “extremely nervous” and that he was “very fidgety, overly
nervous” when speaking to Trooper Beidelschies. In addition, the drugs were
found in the center armrest in the back seat of the rental vehicle, so the pills were
accessible to both parties. While neither party admitted to knowing anything
about the drugs to the law enforcement officers directly, the audio recording
clearly indicates that both parties knew about the presence of the drugs in the
rental vehicle even before the drugs were found by the law enforcement officers.
Moreover, at one point in the audio recording, Price tries to convince Rodgers to
take responsibility for the drugs in the vehicle, but Rodgers refuses to go along
and tells Price “we came up there together with this shit, man.” Furthermore,
during their conversation, Rodgers makes several references to the fact that since
they were driving a rental vehicle the cops would not be able to determine who the
drugs belonged to.
{¶33} Overall, given all of the above circumstances, specifically the
statements made by Rodgers in the audio recording, we cannot say that the jury
clearly lost its way and created such a manifest miscarriage of justice that
Rodgers’ conviction must be reversed.
{¶34} Rodgers’ second assignment of error is, therefore, overruled.
-17-
Case No. 5-10-35
ASSIGNMENT OF ERROR NO. I
MACK RODGERS WAS DEPRIVED OF EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF HIS
RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I
OF THE OHIO CONSTITUTION. (T.pp. 7-14).
{¶35} In his first assignment of error, Rodgers claims that he was denied
effective assistance of trial counsel when his trial counsel failed to ask for a
continuance after the trial court allowed the State to amend the indictment the day
of trial.
{¶36} A defendant asserting a claim of ineffective assistance of counsel
must establish: (1) the counsel’s performance was deficient or unreasonable under
the circumstances; and (2) the deficient performance prejudiced the defendant.
State v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v.
Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. In order
to show counsel’s conduct was deficient or unreasonable, the defendant must
overcome the presumption that counsel provided competent representation and
must show that counsel’s actions were not trial strategies prompted by reasonable
professional judgment. Strickland, 466 U.S. at 687.
{¶37} Counsel is entitled to a strong presumption that all decisions fall
within the wide range of reasonable professional assistance. State v. Sallie (1998),
-18-
Case No. 5-10-35
81 Ohio St.3d 673, 675, 693 N.E.2d 267. Tactical or strategic trial decisions, even
if unsuccessful, do not generally constitute ineffective assistance. State v. Carter
(1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965. Rather, the errors complained of
must amount to a substantial violation of counsel’s essential duties to his client.
See State v. Bradley (1989), 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373, quoting
State v. Lytle (1976), 48 Ohio St.2d 391, 396, 358 N.E.2d 623.
{¶38} Prejudice results when “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Bradley, 42 Ohio St.3d at 142, citing Strickland, 466 U.S. at 691. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Bradley, 42 Ohio St.3d at 142; Strickland, 466 U.S. at 694.
{¶39} Here, on September 27, 2010, the State filed a motion to amend the
indictment. Essentially, the State had discovered that the substance found in the
vehicle driven by Rodgers was not Methylenedioxymethamphetamine
(“MDMA”), but actually N-Benzylpiperazine (otherwise known as “BZP”). The
State notified Rodgers’ trial counsel three days prior to the filing of the motion of
its intent to file the request. (Sept. 27, 2010 Tr. at 5, 12). As a result, prior to trial
on September 27, 2010, a hearing was conducted, during which Rodgers’ defense
counsel stated on the record that it had been part of his defense strategy to argue
that the substance identified and listed in the report was not the substance named
-19-
Case No. 5-10-35
in the original indictment, identified by Trooper Beidelschies, and alerted to by the
canine. (Id. at 7-8). Nevertheless, the trial court granted the State’s motion to
amend its indictment finding that there was no prejudice to Rodgers since the
amendment did not change the essential identity of the offense nor did it change
the level of offense. (Id. at 12). Thereafter, the matter proceeded immediately to
jury trial.
{¶40} On appeal, Rodgers claims that he was denied effective assistance of
trial counsel because his trial counsel failed to request a continuance after the trial
court allowed the State to amend the indictment the day of trial. Rodgers argues
that given his trial counsel’s statements at the hearing, it is clear that his defense
strategy was largely based on the lack of evidence that the drug listed in the
indictment was ever in Rodgers’ possession. Rodgers claims that had his counsel
asked for a continuance, he would have had time to prepare a defense focused on
the lack of evidence that Rodgers had any knowledge of the drugs in the vehicle.
{¶41} After reviewing the record, we do not believe that Rodgers’ trial
counsel’s performance was deficient or unreasonable under the circumstances. As
this Court has previously noted, “debatable strategic and tactical decisions may not
form the basis of an ineffective assistance of counsel claim, even if a better
strategy might have been utilized.” State v. Wilson, 3d Dist. No. 1-09-53, 2010-
Ohio-2947, ¶14, citing State v. Utz, 3d Dist. No. 3-03-38, 2004-Ohio-2357, ¶12,
-20-
Case No. 5-10-35
citing State v. Phillips (1995), 74 Ohio St.3d 72, 85, 656 N.E.2d 643. Here, the
decision of Rodgers’ trial counsel to not request a continuance could be termed a
tactical choice. Moreover, we disagree with Rodgers’ argument and find after
reviewing the record that his trial counsel did not admit that he was unable to
present any defense in light of the amendment to the indictment. (See Sept. 27,
2010 Tr. at 8-9). Not only that, but as the trial court stated at the hearing, allowing
the amendment did not prevent Rodgers’ trial counsel from presenting a defense
that the officers had misidentified the drug found in the vehicle. (Id. at 11-13). In
fact, Rodgers’ defense counsel still presented this strategy during the trial, in
particular with respect to challenging Trooper Beidelschies’ credibility and when
questioning the chemist with the Ohio Highway Patrol crime lab, which we
highlighted above.
{¶42} Even if Rodgers’ trial counsel’s performance was deficient or
unreasonable, Rodgers has failed to demonstrate that he was prejudiced. First of
all, we note that there was no Civil Rule 7(D) violation to which Rodgers’ trial
counsel should have requested a continuance. The amendment to the indictment
did not change the identity of the offense (it was still an aggravated possession of
drugs), nor did it change the level of offense (since both MDMA and BZP are
Schedule I drugs). See R.C. 3719.41, Schedule I(E)(2). Nonetheless, Rodgers
claims that if his trial counsel would have asked for a continuance he could have
-21-
Case No. 5-10-35
presented a defense focused on the lack of evidence that Rodgers had any
knowledge of the drugs in the vehicle.2 While Rodgers asserts that this alternative
defense strategy may have changed the outcome of the trial, it is clear from the
record that Rodgers’ trial counsel did in fact present this lack of knowledge theory
during trial. At trial, Rodgers’ trial counsel’s cross-examination of Trooper
Beidelschies significantly focused on the fact that Rodgers denied knowing about
the pills to Trooper Beidelschies. Therefore, because the amendment did not
prejudice Rodgers and because, despite Rodgers’ arguments to the contrary, this
“alternative defense strategy” was actually presented at trial, we find that Rodgers
has failed to demonstrate prejudice.
{¶43} Rodgers’ first assignment of error is, therefore, overruled.
{¶44} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J. and SHAW, J., concur.
/jlr
2
We also note that the BCI report indicating the identity of the drug found in the vehicle was included in
discovery three months prior to trial. So the only surprise Rodgers’ defense counsel could have claimed
occurred in support of a continuance would have been the fact that the State had not notified of him of its
intent to amend the indictment until three days prior to trial.
-22-