State v. Bell

[Cite as State v. Bell, 2013-Ohio-1299.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-12-39
v.
DEMARIS D. BELL,
OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 11 CR 0204
Judgment Affirmed
Date of Decision: April 1, 2013
APPEARANCES:
John M. Kahler, II for Appellant
Derek W. DeVine and Brian O. Boos for Appellee
Case No. 13-12-39
ROGERS, J.
{¶1} Defendant-Appellant, Demaris Bell, appeals the judgment of the Court
of Common Pleas of Seneca County convicting him of trafficking in cocaine,
possession of cocaine, and possessing criminal tools. On appeal, Bell argues that
the trial court erred by entering guilty verdicts that were not supported by
sufficient evidence, denying his motion for separate trials, and admitting evidence
that was not verified by the proper chain of custody. He also claims that he was
denied the effective assistance of counsel. For the reasons that follow, we affirm
the trial court’s judgment.
{¶2} On September 21, 2011, the Seneca County Grand Jury indicted Bell
on the following counts: (1) Count I – trafficking in cocaine in violation of R.C.
2925.03(A)(1), (C)(4)(b), a felony of the fourth degree; (2) Count II – trafficking
in cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(b), a felony of the fourth
degree; (3) Count III - possession of cocaine in violation of R.C. 2925.11(A),
(C)(4)(a), a felony of the fifth degree; and (4) Count IV – possessing criminal
tools in violation of R.C. 2923.24(A),(C), a felony of the fifth degree. Count I and
Count II both included a school specification.
{¶3} Count I related to a controlled buy that occurred on December 23,
2010 in which Bell purportedly sold crack cocaine to a confidential informant.
Count II, meanwhile, related to a similar controlled buy that occurred on January
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17, 2011. Counts III and IV arose from the February 3, 2011 arrest of Bell in
which he was discovered to be in possession of crack cocaine and a digital scale
that contained cocaine residue.
{¶4} On August 16, 2012, a mere four days before trial, Bell filed a motion
for separate trials. In the motion, Bell requested that there be a separate trial for
Count I, a separate trial for Count II, and a separate trial for Counts III and IV.
The trial court orally denied the motion on August 20, 2012.
{¶5} The trial of this matter commenced on August 20, 2012 and concluded
the next day. The jury returned a guilty verdict on all four counts alleged in the
indictment. After a sentencing hearing on August 28, 2012, the trial court
sentenced Bell to a total prison term of 43 months.
{¶6} Bell timely appealed from this judgment, presenting the following
assignments of error for our review.
Assignment of Error No. I
THERE WAS INSUFFICIENT EVIDENCE INTRODUCED
AT TRIAL TO SUPPORT THE FINDING THAT THE
DEFENDANT WAS GUILTY OF TWO COUNTS OF
TRAFFICKING IN COCAINE IN VIOLATION OF OHIO
REVISED CODE SECTION 2925.03(A)(1), (C)(4)(B).
Assignment of Error No. II
THE TRIAL COURT ERRED IN DENYING
DEFENDANT/APPELLANT’S MOTION FOR SEPARATE
TRIALS.
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Assignment of Error No. III
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE
FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF
THE UNITED STATES CONSTITUTION AND ARTICLE I,
SECTION 10 OF THE OHIO CONSTITUTION.
Assignment of Error No. IV
THE TRIAL COURT ERRED IN OVERRULING THE
APPELLANT’S OBJECTION TO THE ADMISSION OF
STATE’S EXHIBIT 7 AS THE STATE OF OHIO FAILED TO
ESTABLISH A PROPER CHAIN OF CUSTODY FOR SAID
EVIDENCE.
{¶7} Due to the nature of the assignments of error, we elect to address them
out of order.
Assignment of Error No. I
{¶8} In his first assignment of error, Bell argues that there was insufficient
evidence to support his convictions for trafficking in cocaine as alleged in Counts
I and II of the indictment. We disagree.
Sufficiency Standard
{¶9} When an appellate court reviews a record for sufficiency, 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. Monroe, 105 Ohio St.3d
384, 2005-Ohio-2282, ¶ 47. Sufficiency is a test of adequacy, State v. Thompkins,
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78 Ohio St.3d 380, 386 (1997), and the question of whether evidence is sufficient
to sustain a verdict is one of law, State v. Robinson, 162 Ohio St. 486 (1955),
superseded by state constitutional amendment on other grounds as stated in State
v. Smith, 80 Ohio St.3d 89 (1997).
R.C. 2925.03
{¶10} Bell was convicted of two counts of violating R.C. 2925.03(A)(1),
which provides that “[n]o person shall knowingly * * * sell or offer to sell a
controlled substance * * *.” The jury also found that the school specification
contained in R.C. 2925.03(C)(4)(b) applied to both counts. R.C. 2925.03(C)
reads, in pertinent part, as follows:
(4) If the drug involved in the violation is cocaine or a compound,
mixture, preparation, or substance containing cocaine, whoever
violates division (A) of this section is guilty of trafficking in
cocaine. The penalty for the offense shall be determined as follows:
***
(b) Except as other provided * * *, if the offenses were committed in
the vicinity of a school * * *, trafficking in cocaine is a felony of the
fourth degree * * *. R.C. 2925.03(C)(4)(b).
Count I
{¶11} As to Count I, the State provided the following evidence, which was
sufficient for a rational juror to find that the elements of R.C. 2925.03(A)(1) and
(C)(4)(b) were proven beyond a reasonable doubt.
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{¶12} Detective Charles Boyer of the Tiffin Police Department testified
that he received information that a confidential informant (“CI”) could set up a
drug transaction with Bell on December 23, 2010. According to Detective
Boyer’s testimony, after receiving the information and making the necessary
arrangements for a controlled buy, the CI reported to a predetermined location.
While he was there, Detective Boyer searched him for contraband, pursuant to the
department’s operational protocol, and found that he had none. The CI was also
fitted with audio and video recording devices. Although the buy was originally
scheduled to occur at a residence in Tiffin, the CI received a text message from
Bell indicating that they should meet at a local convenience store.
{¶13} Detective Boyer said that he observed the CI meet with Bell outside
of the convenience store and then walk to the auto dealership next door. He
further asserted that he could observe the CI the entire time that he was with Bell.
After the two met, the CI walked away from the store and Detective Boyer
continued his surveillance. Once the CI was a safe distance from the convenience
store, Detective Boyer picked him up and transported him back to the
predetermined location for the appropriate post-operation protocol. Detective
Boyer testified that throughout the course of the buy, the CI did not come into
contact with any person besides Bell.
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{¶14} Detective Boyer transported the CI to the predetermined location,
where he turned over a package of suspected crack cocaine. The substance was
first given to Detective Robert Bour of the Tiffin Police Department, who then
handed it over to Detective Boyer. Detective Boyer said that he first entered the
substance into the police department’s evidence locker before transporting it to the
BCI & I lab in Bowling Green so that it could be tested for the presence of
controlled substances.
{¶15} Detective Boyer also identified the recordings taken from the audio
and video recording devices that were placed on the CI. From the video recording,
Detective Boyer captured a still photograph of Bell’s face, which was entered into
evidence. Also, the jury heard the audio recording in which the CI and Bell are
heard discussing drug-related activities.
{¶16} Further, Kelsey Degen, a forensic scientist with the Ohio Bureau of
Criminal Identification & Investigation (“BCI & I”), testified that she received the
substance involved in the December 23, 2010 controlled buy and tested it for the
presence of controlled substances. Her tests led her to conclude that the substance
contained 0.2 grams of crack cocaine. Degen’s written report of the test results
was also entered into evidence.
{¶17} Finally, the State offered the following evidence regarding the
proximity of the location of the December 23, 2010 controlled buy to Noble
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Elementary School. Thomas Amway, the director of operations for the Tiffin City
School District, testified that on December 23, 2010, the district was operating
Noble as an educational institution for students. Mark Zimmerman, the Seneca
County Engineer, then testified that the location of the controlled buy was within
1,000 feet of Noble Elementary School.
{¶18} In light of the foregoing, we find that the State presented sufficient
evidence to support a conviction on Count I.
Count II
{¶19} As to Count II, the State provided the following evidence, which was
sufficient for a rational juror to find that the elements of R.C. 2925.03(A)(1) and
(C)(4)(b) were proven beyond a reasonable doubt.
{¶20} Detective Boyer testified to a similar set of events surrounding the
January 17, 2011 controlled buy. He indicated that he found no contraband on the
CI’s person in the pre-operational search and that he personally applied audio and
video recording equipment on the CI. Detective Boyer also stated that the buy
was scheduled to occur at an apartment located at 211 South Monroe Street in
Tiffin, Ohio. When the CI arrived at the location, Detective Boyer saw him go
into the apartment and that during the CI’s time in the apartment, he was able to
maintain video and audio surveillance. Detective Boyer then observed the CI
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leave the apartment and upon picking him up, the CI turned over suspected crack
cocaine.
{¶21} As with the December 23, 2010 controlled buy, Detective Boyer also
identified the recordings taken from the audio and video recording devices that
were placed on the CI. The recordings were played for the jury. Detective Boyer
testified that he recognized the CI’s and Bell’s voices but also acknowledged that
there was a third voice that he did not know. He also indicated that the
conversation between the CI and Bell suggested that there was a transfer of drugs
between the two.
{¶22} Further, Keith Taggart, a forensic scientist with BCI & I, testified
that he received the substance involved in the January 17, 2011 controlled buy and
tested it for the presence of controlled substances. His tests led him to conclude
that the substance contained 0.4 grams of crack cocaine. Taggart’s written report
of the test results was also entered into evidence.
{¶23} Finally, the State offered the following evidence regarding the
proximity of the location of the January 17, 2011 controlled buy to Columbian
High School. Amway testified that on January 17, 2011, the Tiffin City School
District was operating Columbian as an educational institution for students.
Engineer Zimmerman then testified that the location of the controlled buy at 211
South Monroe Street was within 1,000 feet of the high school.
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{¶24} In light of the foregoing, we find that the State presented sufficient
evidence to support a conviction on Count II.
{¶25} Accordingly, we overrule Bell’s first assignment of error.
Assignment of Error No. II
{¶26} In his second assignment of error, Bell contends that the trial court
erred in denying his motion for separate trials. We disagree.
Standard of Review
{¶27} We review a trial court’s decision to deny or grant a motion to sever
for an abuse of discretion. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶
49. A trial court will be found to have abused its discretion when its decision is
contrary to law, unreasonable, not supported by the evidence, or grossly unsound.
See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶ 16-18, citing Black’s
Law Dictionary 11 (8th Ed.2004). When applying the abuse of discretion
standard, a reviewing court may not simply substitute its judgment for that of the
trial court. State v. Nagle, 11th Dist. No. 99-L-089 (June 16, 2000), citing
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Standard for Severance
{¶28} Crim.R. 8(A) authorizes joinder of multiple criminal charges where
the charges “are of the same or similar character, or are based on the same act or
transaction, or are based on two acts or transactions connected together or
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constituting parts of a common scheme or plan, or are part of a course of criminal
conduct.” In applying Crim.R. 8(A), we note that “the law favors joinder.” State
v. Waddy, 63 Ohio St.3d 424, 429 (1992), superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).
Even if charges are properly joined under Crim.R. 8(A), a defendant may still seek
severance of the charges pursuant to Crim.R. 14, which provides as follows: “If it
appears that a defendant * * * is prejudiced by a joinder of offenses * * *, the
court shall order an election or separate trial of counts * * * or provide such other
relief as justice requires.”
{¶29} A motion to sever is considered a pre-trial motion. Crim.R.
12(C)(5). Accordingly, such a motion is subject to the time limitation contained in
Crim.R. 12(D), which provides that “[a]ll pretrial motions * * * shall be made
within thirty-five days after arraignment or seven days before trial, whichever is
earlier.” However, the rule also provides that the court may extend the time for
pretrial motions based on the “interest of justice.” Crim.R. 12(D). Courts have
affirmed denials of motions to sever where the defendant failed to file them in a
timely fashion. E.g., State v. Montgomery, 2d Dist. No. 22193, 2009-Ohio-1415, ¶
17 (affirming denial of motion to sever where it was filed outside the time
constraints of Crim.R. 12(D)); State v. Segines, 8th Dist. No. 89915, 2008-Ohio-
2041, ¶ 57 (same); State v. Tomlinson, 8th Dist. No. 83411, 2004-Ohio-3295, ¶
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14-17 (same); see also State v. Palmer, 7th Dist. No. 04-JE-41, 2006-Ohio-749, ¶
12 (noting that motion to sever was untimely but addressed merits of motion since
the trial court did so).
{¶30} Here, Bell filed the motion to sever a mere four days before trial, and
over eight months after his arraignment. This dilatory action was plainly contrary
to the dictates of Crim.R. 12(D). Further, Bell did not state a legitimate reason for
the untimely nature of his motion either at trial or in this appeal. As such, we find
no abuse of discretion in the trial court’s denial of Bell’s untimely motion to sever.
{¶31} Accordingly, we overrule Bell’s second assignment of error.
Assignment of Error No. IV
{¶32} In his fourth assignment of error, Bell asserts that the trial court erred
in admitting the State’s exhibit containing the white powder purportedly
transferred in the January 17, 2011 controlled buy. Specifically, he argues that the
State failed to establish the proper chain of custody for the exhibit. We disagree.
{¶33} We review a trial court’s admission of evidence as supported by
sufficient proof of the chain of custody for an abuse of discretion. State v. Ward,
3d Dist. No. 13-10-11, 2011-Ohio-254, ¶ 32.
{¶34} The State has the burden of establishing a proper chain of custody for
items of evidence that it offers at trial. Sate v. Brown, 107 Ohio App.3d 194, 200
(3d Dist. 1995). Carrying this burden implicates Evid.R. 901, which provides that
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“[t]he requirement of authentication or identification * * * is satisfied by evidence
to support a finding that the matter in question is what its proponent claims.”
Based on the “low threshold” embodied in Evid.R. 901, State v. Norman, 4th Dist.
Nos. 08CA3059, 08CA3066, 2009-Ohio-5458, ¶ 68, the State is not required to
prove “a strict chain of custody,” State v. Wilkins, 64 Ohio St.2d 382, 389 (1980).
Rather, the State merely needs to “establish that it is reasonably certain that
substitution, alteration or tampering did not occur.” Brown at 200. Accordingly,
“any breaks in the chain of custody after establishment of such a reasonable
certainty go to the weight of the evidence [and not] its admissibility.” State v.
Plotts, 3d Dist. No. 15-10-08, 2011-Ohio-900, ¶ 26.
{¶35} Here, the State offered significant evidence regarding the chain of
custody. Based on a review of the record, the following chain of custody was
established. First, the confidential informant turned the suspected crack cocaine
over to Detective Bour. Second, Detective Bour gave the substance to Detective
Boyer. Third, Detective Boyer entered the substance into evidence. Fourth,
Detective Donald Joseph of the Seneca County’s Sheriff Office received the
substance from evidence and handed it to Captain Brooks. Fifth, Captain Patrick
Brooks of the Fostoria Police Department transported the substance to the BCI & I
lab in Bowling Green, Ohio. Sixth, Detective Boyer retrieved the substance from
the BCI & I lab in Bowling Green. Providing evidence of these transfers was
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sufficient for the State to establish a proper chain of custody in support of the
substance’s admission into evidence.
{¶36} The State concedes that it did not offer evidence of how the
substance was transferred from the BCI & I lab in Bowling Green to the lab in
Richfield, Ohio, where Taggart performed tests on it. Despite this break, there
was still sufficient evidence for the jury to find that the substance offered into
evidence was authentic, especially since Taggart testified to BCI & I’s procedures
for cataloguing and tracking samples submitted for testing. As a result, the State’s
failure to track the transfer of the substance within BCI & I is only relevant to the
weight of the evidence and not its admissibility.
{¶37} Accordingly, we overrule Bell’s fourth assignment of error.
Assignment of Error No. III
{¶38} In his third assignment of error, Bell claims that he was denied the
effective assistance of counsel. In particular, he asserts that his trial counsel was
deficient for failing to object to Detective Boyer’s and Sergeant Jason Windsor’s
testimonies regarding the contents of BCI & I reports and to Detective Boyer’s
authentication of the video recording of the January 17, 2011 controlled buy. We
disagree.
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Ineffective Assistance Standard
{¶39} An ineffective assistance of counsel claim requires proof that trial
counsel’s performance fell below objective standards of reasonable representation
and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d
136 (1989), paragraph two of the syllabus. To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there
exists a reasonable probability that, but for counsel’s errors, the outcome at trial
would have been different. Id. at paragraph three of the syllabus. “Reasonable
probability” is a probability sufficient to undermine confidence in the outcome of
the trial. Waddy, 63 Ohio St.3d at 433, citing United States v. Bagley, 473 U.S.
667, 682, 105 S.Ct. 3375 (1985), superseded by constitutional amendment on
other grounds as recognized by Smith, 80 Ohio St.3d at 103.
{¶40} Further, the court must look to the totality of the circumstances and
not isolated instances of an allegedly deficient performance. State v. Malone, 2d
Dist. No. 10564 (Dec. 13, 1989). “Ineffective assistance does not exist merely
because counsel failed ‘to recognize the factual or legal basis for a claim, or failed
to raise the claim despite recognizing it.’” Id., quoting Smith v. Murray, 77 U.S.
527, 535, 106 S.Ct. 2661 (1986).
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Testimony Regarding BCI & I Analyses
{¶41} Hearsay is “a statement, other than one made by the declarant while
testifying at trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Evid.R. 802 generally prohibits the admission of
hearsay unless the offered hearsay statement is covered by a specific exception.
{¶42} Here, Detective Boyer testified that he received a lab report from
BCI & I indicating that the substances involved in the December 23, 2010 and
January 17, 2011 controlled buys contained cocaine. Sergeant Windsor similarly
testified that he received a lab report from BCI & I stating that the substance and
digital scale seized from Bell during his February 3, 2011 arrest contained cocaine.
Since both testimonies related to the out-of-court declarations contained in the
BCI & I reports, they constituted impermissible hearsay evidence and Bell’s trial
counsel could have objected.
{¶43} Nevertheless counsel’s failure to object does not rise to the level of
ineffective assistance of counsel. The State called all three of the BCI & I forensic
scientists who performed the tests of the substances involved in this matter. Each
forensic scientist testified to BCI & I’s procedures, their tests, and the lab reports
they prepared. As a result, the jurors learned of the lab reports through the
testimonies of the forensic scientists, which rendered the impermissible
testimonies of Detective Boyer and Sergeant Windsor to be harmless error. See
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State v. Austin, 131 Ohio App.3d 329, 339 (1st Dist. 1998) (finding that police
officer’s testimony regarding contents of coroner’s lab report was impermissible
hearsay evidence but that the admission of the testimony was harmless since
author of report also testified). Consequently, we cannot find that the failure of
Bell’s trial counsel to object to Detective Boyer’s and Sergeant Windsor’s
testimonies affected the ultimate outcome of the trial.
Authentication of January 17, 2011 Recording
{¶44} The failure of Bell’s trial counsel to object to Detective Boyer’s
authentication of the recording of the January 17, 2011 controlled buy again
implicates Evid.R. 901. In assessing Detective Boyer’s authentication, we are
mindful that it is immaterial whether the actual videographer testifies to the
authenticity of the video. See State Farm Mut. Auto. Ins. Co. v. Anders, 197 Ohio
App.3d 22, 2012-Ohio-824, ¶ 30 (10th Dist.) (“It is unnecessary to show who took
the photograph or when it was taken * * *.”); Solomon v. Mota, 49 N.E.2d 703,
705 (2d Dist. 1942) (“We have no difficulty in determining that it is not necessary
for photographs and exhibits to be identified by the person taking same in order to
make them admissible in evidence * * *.”). Instead, the proponent of the evidence
merely needs to offer “testimony that the [video] is a fair and accurate
representation of what it represents.” State Farm at ¶ 30.
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{¶45} Detective Boyer’s testimony satisfies the “low threshold” of
authentication. Norman, 2009-Ohio-5458, at ¶ 68. He indicated that he personally
placed the video and audio recording device on the confidential informant.
Detective Boyer also said that he removed the device once the controlled buy
operation was complete and downloaded its contents into the evidence database.
Further, while Detective Boyer was not in the room at the time that the recording
was made, he was overseeing the operation and was able to listen to the recording
in real time.
{¶46} Since Detective Boyer properly authenticated the recording, Bell’s
trial counsel had no grounds to make an objection. As a result, the failure of trial
counsel to make an objection cannot constitute ineffective assistance of counsel.
{¶47} Accordingly, we overrule Bell’s third assignment of error.
{¶48} Having found no error prejudicial to Bell, in the particulars assigned
and argued, we affirm the trial court’s judgment.
Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.
/jlr
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