State v. Feagin

[Cite as State v. Feagin, 2022-Ohio-3641.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ULYSSES FEAGIN : Case No. 2021-CA-0084
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2020-CR-0467
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 12, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES L. BLUNT, II JODIE SCHUMACHER
3954 Industrial Parkway 38 South Park Suite
Shelby, OH 44875 Second Floor
Mansfield, OH 44902
Richland County, Case No. 2021-CA-0084 2
Wise, Earle, P.J.
{¶ 1} Defendant-Appellant Ulysses Feagin appeals the November 17, 2021
judgment of conviction and sentence of the Richland County Court of Common Pleas.
Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} This matter involves two separate incidents. The first took place on January
17, 2020 when appellant crashed his vehicle into another vehicle, went across the double
yellow line and rolled his vehicle over. Officers responding to the scene found appellant
was intoxicated, slurring his words, belligerent, and uncooperative. Appellant refused to
give his name and resisted going to the hospital for apparent injuries. Appellant was
therefore arrested and transported to the hospital. In a search incident to arrest, marijuana
and cocaine were found on appellant's person. At the hospital, nursing staff found
additional cocaine on appellant's person. Due to his erratic and uncooperative behavior,
medical staff needed to sedate appellant in order to assess and treat his injuries.
Appellant was released from police custody the same day.
{¶ 3} The second incident took place on July 6, 2020. On that date, appellant and
Amanda Craft were cruising around in a black Lincoln SUV drinking liquor and smoking
marijuana. Appellant was driving and Craft was in the passenger seat. As they drove on
King Street, Officer Mark Boggs of the Mansfield Police Department was traveling in the
opposite direction on his way to the jail with a prisoner in the back seat of his cruiser. As
the two vehicles approached each other, appellant drove so far left of center that Boggs
had to drive into a ditch to avoid being struck head-on. Boggs tuned around, pursued
appellant, and requested assistance from other officers in the area.
Richland County, Case No. 2021-CA-0084 3
{¶ 4} Two additional Mansfield Police Officers responded. Officer Jordan Moore
pulled appellant over and officers Mark Boggs and Clay Blair arrived immediately after.
Both Boggs' and Moore's cruisers were equipped with dashcams. When officers
approached appellant's vehicle he rolled up the windows and locked the doors. Officers
gave appellant orders to unlock and open the door. Instead of complying, appellant turned
his body all the way toward Craft and appeared to be reaching to the right. Eventually
either appellant or Craft unlocked the doors and appellant was extracted from the vehicle.
Upon his removal from the vehicle, two rounds of ammunition fell from his lap. There were
additional rounds of ammunition on the driver's side floorboard.
{¶ 5} Officers searched the Lincoln and discovered two .22 caliber handguns on
the passenger side floorboard. Appellant was prohibited form possessing a handgun due
to a 2018 conviction for possession of cocaine. In the back seat of the vehicle officers
found a backpack. Appellant's hospital discharge papers from the January 17 accident
were in the backpack. The backpack additionally contained 6.94. grams of cocaine, 20
tablets (5.07 grams) of alprazolam (Xanax)141 tablets of trazodone (Desyrel), 2 tablets
(2.3 grams) of clonazepam (Klonopin) 1 tablet (.50 grams) of oxycodone, 1.3 grams (2
tablets) of penicillin, 5 tablets (.5 grams) of oxycodone (Roxicodone), 1 tablet (.49 grams)
of oxycodone (Percocet), 13.44 grams of heroin, 152 tablets of diazepam (Valium), and
210 tablets (96.6 grams) of tramadol (Ultracet).
{¶ 6} Appellant was arrested on July 7, 2020. On September 3, 2020, the
Richland County Grand Jury returned an indictment charging appellant as follows:
{¶ 7} Count one, trafficking in heroin in violation of R.C. 2925.03(A)(2),
2925.03(C)(6)(e), a felony of the second degree.
Richland County, Case No. 2021-CA-0084 4
{¶ 8} County two, possession of heroin in violation of R.C. 2925.11(A),
2925.11(C)(6)(d), a felony of the second degree.
{¶ 9} Count three, trafficking in cocaine in violation of R.C. 2925.03(A)(2)
2925.03(C)(4)(c), a felony of the fourth degree.
{¶ 10} Count four, possession of cocaine in violation of R.C. 2925.11(A),
2925.11(C)(4)(b), a felony of the fourth degree.
{¶ 11} Count five, aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2),
2925.03(C)(1)(a), a felony of the fourth degree.
{¶ 12} Count six, aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2),
2925.03(C)(1)(a), a felony of the fourth degree.
{¶ 13} Count seven, aggravated possession of drugs in violation of R.C.
2925.11(A), 2925.11(C)(1)(a), a felony of the fifth degree.
{¶ 14} Count eight, aggravated possession of drugs in violation of R.C.
2925.11(A), 2925.11(C)(1)(a), a felony of the fifth degree.
{¶ 15} Count nine, trafficking in drugs in violation of R.C. 2925.03(A)(2),
2925.03(C)(2)(a), a felony of the fifth degree.
{¶ 16} Count ten, trafficking in drugs in violation of R.C. 2925.03(A)(2),
2925.03(C)(2)(a), a felony of the fifth degree.
{¶ 17} Count eleven, trafficking in drugs in violation of R.C. 2925.03(A)(2),
2925.03(C)(2)(a), a felony of the fifth degree.
{¶ 18} Count twelve, trafficking in drugs in violation of R.C. 2925.03(A)(2),
2925.03(C)(2)(a), a felony of the fifth degree.
Richland County, Case No. 2021-CA-0084 5
{¶ 19} Count thirteen, possession of drugs in violation of R.C. 2925.11(A),
2925.11(C)(2)(a), a felony of the fifth degree.
{¶ 20} Count fourteen, possession of drugs in violation of R.C. 2925.11(A),
2925.11(C)(2)(a), a felony of the fifth degree.
{¶ 21} Count fifteen, possession of drugs in violation of R.C. 2925.11(A),
2925.11(C)(2)(a), a felony of the fifth degree.
{¶ 22} Count sixteen, possession of drugs in violation of R.C. 2925.11(A),
2925.11(C)(2)(a), a felony of the fifth degree.
{¶ 23} Count seventeen, having weapons under disability in violation of R.C.
2923.13(A)(3), 2923.13(B), a felony of the third degree.
{¶ 24} Count eighteen, having weapons under disability in violation of R.C.
2923.13(A)(3), 2923.13(B), a felony of the third degree.
{¶ 25} Count nineteen, improperly handing firearms in a motor vehicle in violation
of R.C. 2923.16(B), 2923.16(I), a felony of the fourth degree.
{¶ 26} Count twenty, improperly handing firearms in a motor vehicle in violation of
R.C. 2923.16(B), 2923.16(I), a felony of the fourth degree.
{¶ 27} Count twenty-one, carrying a concealed weapon in violation of R.C.
2023.12(A)(2), 2923.12(F)(1), a felony of the fourth degree.
{¶ 28} Count twenty-two, carrying a concealed weapon in violation of R.C.
2023.12(A)(2), 2923.12(F)(1), a felony of the fourth degree.
{¶ 29} Counts one through sixteen each carried two one-year firearm
specifications pursuant to R.C. 2941.141(A) and two specifications for forfeiture of a gun
Richland County, Case No. 2021-CA-0084 6
in a drug case pursuant to R.C. 2941.1417(A). Counts seventeen through twenty-two
each carried two specifications for forfeiture of a weapon pursuant to R.C. 2941.1417(A).
{¶ 30} Appellant pled not guilty to the charges and a jury trial was set for December
1, 2020. Although represented by counsel, appellant filed a plethora of pro se motions
including motions to remove counsel and to disqualify the judge assigned to the case.
Counsel for appellant also filed a motion to determine appellant's competency.
{¶ 31} Trial was eventually held on September 20, 2021, at the conclusion of which
appellant was found guilty as charged. Appellant was subsequently sentenced to an
aggregate prison term of 8 to 12 years and an additional 2 years for the firearm
specifications.
{¶ 32} Appellant timely filed an appeal and the matter is now before this court for
consideration. He raises five assignments of error for our consideration as follow:
I
{¶ 33} "ISSUE: WHETHER THE TRIAL COURT ERRED BY FAILING TO
DISMISS THE CASE FOR NOT AFFORDING THE DEFENDANT A TRIAL WITHIN THE
STATUTORY TIME LIMIT, PURSUANT TO ORC 2945.71"
II
{¶ 34} "WHETHER THE TRIAL COURT ERRED BY EXCLUDING THE POLICE
BODY CAMERA OF THE POLICE OFFICER WHO RESIGNED DUE TO DISCIPLINARY
REASONS TO BE SEEN AND HEARD BY THE JURY."
III
Richland County, Case No. 2021-CA-0084 7
{¶ 35} "WHETHER THE TRIAL COURT ERRED BY FINDING THE CHAIN OF
CUSTODY OF THE EVIDENCE DID NOT AFFECT THE INTEGRITY OF THE
EVIDENCE."
IV
{¶ 36} "ISSUE: INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO
SUBPOENA THE POLICE OFFICER WHO RESIGNED DUE TO DISCIPLINARY
REASONS PRIOR TO TRIAL."
V
{¶ 37} "ISSUE: INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO
CALL THE OWNER OF THE VEHICLE AS A WITNESS.
I
{¶ 38} In his first assignment of error, appellant baldly argues the state failed to
bring him to trial within the statutory time limit. He provides no speedy trial calculation and
does not acknowledge the many tolling events that took place before trial. App.R. 16(A)(7)
requires an appellant to include in his brief "* * * [a]n argument containing the contentions
of the appellant with respect to each assignment of error presented for review and the
reasons in support of the contentions, with citations to the authorities, statutes, and parts
of the record on which appellant relies."
{¶ 39} "If an argument exists that can support [an] assignment of error, it is not this
court's duty to root it out." Thomas v. Harmon, 4th Dist. Lawrence No. 08CA17, 2009-
Ohio-3299, at ¶14, quoting State v. Carman, 8th Dist. Cuyahoga No. 90512, 2008-Ohio-
Richland County, Case No. 2021-CA-0084 8
4368, at ¶31. "It is not the function of this court to construct a foundation for [an
appellant's] claims; failure to comply with the rules governing practice in the appellate
courts is a tactic which is ordinarily fatal." Catanzarite v. Boswell, 9th Dist. Summit No.
24184, 2009-Ohio-1211, at ¶16, quoting Kremer v. Cox, 114 Ohio App.3d 41, 60, 682
N.E.2d 1006 (9th Dist. 1996). Therefore, "[w]e may disregard any assignment of error that
fails to present any citations to case law or statutes in support of its assertions." Frye v.
Holzer Clinic, Inc., 4th Gallia No. 07CA4, 2008-Ohio-2194, at ¶12. See, also, App.R.
16(A)(7); App.R. 12(A)(2); Tally v. Patrick, 11th Dist. Trumbull No. 2008-T-0072, 2009-
Ohio-1831, at ¶21-22; Jarvis v. Stone, 9th Dist. Summit No. 23904, 2008-Ohio-3313, at
¶23; State v. Norman, 5th Guernsey No. 2010-CA-22, 2011-Ohio-596, ¶29; State v.
Untied, 5th Dist. Muskingum No. CT20060005, 2007 WL 1122731, ¶141.
{¶ 40} An appellate court may rely upon App.R. 12(A) in overruling or disregarding
an assignment of error because of "the lack of briefing" on the assignment of error.
Hawley v. Ritley, 35 Ohio St.3d 157, 159, 519 N.E.2d 390, 392-393 (1988); Abon, Ltd. v.
Transcontinental Ins. Co., 5th Dist. Richland No. 2004-CA-0029, 2005 WL 1414486,
¶100; State v. Miller, 5th Dist. Ashland No. 04-COA-003, 2004-Ohio-4636, ¶41. "Errors
not treated in the brief will be regarded as having been abandoned by the party who gave
them birth." Uncapher v. Baltimore & Ohio Rd. Co., 127 Ohio St. 351, 356, 188 N.E. 553,
555 (1933).
{¶ 41} Despite appellant's lack of proper briefing, in the interest of justice, we will
consider this assignment of error.
{¶ 42} Speedy-trial provisions are mandatory and are encompassed within the
Sixth Amendment to the United States Constitution. The availability of a speedy trial to a
Richland County, Case No. 2021-CA-0084 9
person accused of a crime is a fundamental right made obligatory on the states through
the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 200, 383 N.E.2d 579(1978). "The statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a rational
effort to enforce the constitutional right to a public speedy trial of an accused charged with
the commission of a felony or a misdemeanor and shall be strictly enforced by the courts
of this state." State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589, syllabus (1980).
{¶ 43} A speedy-trial claim involves a mixed question of law and fact. State v.
Hickinbotham, 5th Dist. Stark No. 2018CA000142, 2019-Ohio-2978, 2019 WL 4780988,
¶ 26, citing State v. Jenkins, 5th Dist. Stark No. 2009-CA-00150, 2010-Ohio-2719, ¶ 31,
citing State v. Larkin, 5th Dist. Richland No. 2004-CA-103, 2005-Ohio-3122. As an
appellate court, we must accept as true any facts found by the trial court and supported
by competent, credible evidence. Id. With regard to the legal issues, however, we apply
a de novo standard of review and thus freely review the trial court's application of the law
to the facts. Id.{¶ 44} R.C. 2945.71(C)(2) requires "[a] person against whom a charge of felony is
pending * * * be brought to trial within two hundred seventy days after his arrest." R.C.
2945.71(E) provides "each day during which the accused is held in jail in lieu of bail on
the pending charge shall be counted as three days." In State v. McDonald, 48 Ohio St.2d
66 (1976), the Ohio Supreme Court held the triple count provision applies "only to those
defendants held in jail in lieu of bail solely on the pending charge." Id. at syllabus.
{¶ 45} The statutory speedy-trial period begins to run on the date the defendant is
arrested, although the date of arrest is not counted when calculating speedy-trial time.
State v. Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶44, citing State v.
Richland County, Case No. 2021-CA-0084 10
Tatum, 3d Dist. Seneca No. 13-10-18, 2011-Ohio-3005. Once the statutory time limit has
expired, the defendant has established a prima facie case for dismissal. State v. Butcher,
27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). The burden then shifts to the state to
demonstrate that sufficient time was tolled pursuant to R.C. 2945.72. Brecksville v. Cook,
75 Ohio St.3d 53, 55-56, 661 N.E.2d 706 (1996). If the state has violated a defendant's
right to a speedy trial, then the court must dismiss the charges against the defendant.
R.C. 2945.72(B).
{¶ 46} Speedy trial time is tolled by those events listed in R.C. 2945.72. These
events include "[a]ny period of delay necessitated by reason of a * * * motion * * * made
or instituted by the accused," under R.C. 2945.72(E), or during "[t]he period of any
continuance granted on the accused's own motion, and the period of any reasonable
continuance granted other than upon the accused's own motion," under R.C. 2945.72(H).
{¶ 47} Under the "triple-count provision" contained in R.C. 2945.71(E), each day a
defendant spends in jail in lieu of bail counts as three days in the speedy trial time
calculation. In State v. McDonald, 48 Ohio St.2d 66 (1976), however, the Ohio Supreme
Court held the triple count provision applies "only to those defendants held in jail in lieu
of bail solely on the pending charge." Id. at syllabus.
{¶ 48} Relevant to the time line in this matter, "[t]he Ohio Attorney General has
opined that courts may suspend jury trials to prevent the spread of the corona virus and
they may do so consistent with state and federal speedy-trial obligations." In re
Disqualification of Paris, 161 Ohio St.3d 1285, 2020-Ohio-6875, 164 N.E.3d 509, ¶5;
quoting In re Disqualification of Fleegle, 161 Ohio St.3d 1263, 2020-Ohio-5636, 163
N.E.3d 609, ¶7; citing 2020 Atty.Gen.Ops. No. 2020-002. In Fleegle, the Ohio Supreme
Richland County, Case No. 2021-CA-0084 11
Court held that trial judges have the authority to continue trials on a case-by-case basis
without violating speedy-trial requirements and continuing a trial because of a pandemic
state emergency is reasonable under R.C.2945.72(H). Id.{¶ 49} When reviewing a speedy trial question, an appellate court must count the
number of delays chargeable to each appellant and appellee. Next, the appellate court
must determine whether the number of days not tolled exceeded the time limits under
R.C. 2945.71. State v. Ferrell, 8th Dist. Cuyahoga No. 93003, 2010-Ohio-2882, ¶20.
When reviewing legal issues presented in a speedy trial claim, we must strictly construe
the relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661
N.E.2d 706, 709 (1996); State v. Colon, 5th Dist. Stark No. 09-CA-232, 2010-Ohio-2326,
¶12.
{¶ 50} An examination of the record yields the following pertinent dates:
{¶ 51} Appellant was arrested on July 7, 2020. The day of arrest does not count
toward speedy trial calculations. Additionally, Ohio House Bill 197 tolled all time limitations
under the Revised Code from March 9, 2020 until July 30, 2020 due to the global Covid-
19 pandemic. Thus, from July 7 to July 30, 2020, no speedy trial time elapsed.
{¶ 52} On July 20, 2020, appellant was sentenced to 12 months incarceration on
an unrelated case and released on October 20, 2020. Because he was not being held
solely on the pending charge, this period of incarceration is calculated as 1-to-1 time.
State v. MacDonald, 48 Ohio St.2d 66, 2 O.O.3d 219, 357 N.E.2d 40 (1976). However,
on October 15, 2020 appellant filed a pro se motion to reduce bond in the current matter,
which is a tolling event. July 30, 2020 to October 15, 2020 = 77 days.
{¶ 53} Appellant's motion to reduce bond was denied on October 21, 2020.
Richland County, Case No. 2021-CA-0084 12
{¶ 54} On October 29, 2020, the state filed a demand for discovery. Appellant
never responded to the state's demand. In State v. Palmer, 112 Ohio St.3d 457, 2007-
Ohio-374, 860 N.E.2d 1011, the Supreme Court of Ohio held, "[t]he failure of a criminal
defendant to respond within a reasonable time to a prosecution request for reciprocal
discovery constitutes neglect that tolls the running of speedy-trial time pursuant to R.C.
2945.72(D)." Id. at paragraph one of the syllabus. Thus, time tolled with the state's request
for discovery for a reasonable time, generally held to be 30 days. State v. Crawford, 6th
Dist. Lucas No. l-17-1297, 2019-Ohio-2660, ¶30. October 21 through October 29, 2020
= 9 days at 3 to 1. 9x3 = 27 days. 77 + 27 = 104 days.
{¶ 55} On November 12, 2020, however, appellant filed a motion to withdraw court
appointed counsel and appoint new counsel. The motion was denied on November 30,
2020. On November 25, appellant filed a motion for continuance of the December 1, 2020
trial. The same day, appellant filed a motion for a bill of particulars. Trial was continued
until January 26, 2021. The judgment entry continuing trial noted time was tolled, thus
Appellant's motion to continue tolled time from November 25, 2020 to January 26, 2021.
See State v. Austin, 5th Dist. Fairfield Nos. 18-CA-18, 18-CA-31, 2019-Ohio-686. While
these are all tolling events, time was previously tolled on October 29, 2020 by appellant's
failure to respond to the state's demand for discovery.
{¶ 56} On January 13, 2021, appellant filed a motion to continue the January 26,
2021 trial. On January 22, 2021, the state filed a joint motion to continue the trial. On
January 21, 2021, the trial court granted the motion, continuing trial until March 2, 2021
and continuing to toll time as noted in its judgment entry.
Richland County, Case No. 2021-CA-0084 13
{¶ 57} On March 1, 2021, appellant again filed a motion to continue trial. The trial
court granted the motion on March 8, 2021, set trial for April 6, 2021, and continued to toll
time.
{¶ 58} On March 24, 2021, appellant filed a pro se complaint with the Supreme
Court of Ohio to disqualify Judge Naumoff which stayed proceedings.
{¶ 59} On April 2, 2021, counsel for appellant filed a motion for a not guilty by
reason of insanity (NGRI) evaluation of appellant which tolled time.
{¶ 60} On April 1, 2021, the Supreme Court of Ohio denied appellant's motion for
disqualification.
{¶ 61} On April 6, 2021, the trial court reopened the matter to proceed as
scheduled before Judge Naumoff. On April 7, 2021, due to the still pending NGRI
evaluation, the trial court continued the trial date to June 1, 2021. However, appellant was
not found competent to stand trial until August 11, 2021 thereby tolling time from April 7
through August 11, 2021.
{¶ 62} Appellant's trial began on September 23, 2021. August 11 through
September 23, 2021 = 43 days. 43 days at 3 to 1 = 129 days.
{¶ 63} 104 + 129 = 233 days.
{¶ 64} Appellant was brought to trial within 270 days. His first assignment of error
is overruled.
II
{¶ 65} Appellant's second assignment of error is a one-paragraph conclusory
statement, again not in compliance with the appellate rules. In it, appellant states the trial
court erred in excluding the body camera footage of Officer Moore, who between
Richland County, Case No. 2021-CA-0084 14
appellant's arrest and trial had resigned from the Mansfield Police Department following
disciplinary action. We disagree.
{¶ 66} Appellant references one transcript page in regard to his argument. That
transcript page does not mention body cameras. Rather, it is a discussion between the
state, counsel for appellant, and the trial court regarding Officer Moore's dash camera.
We will therefore presume appellant is referring to a dash camera and not a body camera.
{¶ 67} The matter arose during the defense's case while appellant was on the
stand. Counsel for appellant desired to play the video from Officer Moore's dash camera
and the state objected arguing counsel would be unable to authenticate the video. The
trial court permitted counsel for appellant to lay a foundation for authentication through
appellant, which counsel did. The video was then shown to the jury. Transcript of trial (T.)
572-575.
{¶ 68} The trial court did not exclude the dash camera video. Appellant's second
assignment of error is therefore overruled.
III
{¶ 69} In his third assignment of error, a two-paragraph conclusory statement,
appellant states the trial court erred by failing to exclude evidence that was at some point
in the custody of Officer Moore. Appellant appears to allege the chain of custody was
broken because Moore was not called to testify at trial. We disagree.
{¶ 70} Appellant does not indicate exactly what evidence should have been
excluded. He does cite pages 207 through 216 of the transcript as well as pages 523
through 525.
Richland County, Case No. 2021-CA-0084 15
{¶ 71} Pages 207 through 216 contain a sidebar conversation which took place
during the state's case-in-chief and while Mansfield Police Lieutenant Don Rhinehart was
on the stand. Counsel for appellant asked Reinhart if Moore was subject to any
disciplinary action before his resignation. The state objected and during the sidebar
counsel for appellant stated he wanted to establish that Moore has a pattern of
"tampering, going rouge, so to speak, as an officer." T. 209. Counsel did not argue the
chain of custody was incomplete. Rather, counsel wished to imply that Moore had planted
appellant's January 17, 2020 hospital visit record in the backpack located in the backseat
of the Lincoln, which also contained the drugs and thus established appellant's connection
to the drugs. Counsel for appellant was permitted to ask Rhinehart if Moore resigned after
disciplinary action involving Moore's violations of the rules and regulations of the
Mansfield Police Department. Reinhart answered affirmatively. T. 216. Nothing contained
in the cited pages pertained to chain of custody issues.
{¶ 72} Pages 523 through 525 contain conversation regarding the admissibility of
the state's exibits after the state had rested and before appellant began his case. Within
these pages counsel for appellant does make a chain of custody argument arguing that
Moore took the drugs to the crime lab for testing but did not testify. The state argued that
Moore was not the only officer present when the drugs were seized from appellant's
vehicle, laid out on the hood of the vehicle, photographed and weighed. In fact, three
officers were present for these events. The evidence bags were sealed and initialed by
Officer Mark Boggs, not Moore. T. 525-26, 242-43, 249, 253, 255-256.
{¶ 73} Appellant's arguments during this conversation appeared to be that Moore
was untrustworthy and had planted or tampered with evidence in order to frame appellant.
Richland County, Case No. 2021-CA-0084 16
This, however, is a credibility argument, not an admissibility argument. Insofar as a chain
of custody is concerned, "the state was not required to prove a perfect, unbroken chain
of custody." State v. Keene, 81 Ohio St.3d 646, 662, 693 N.E.2d 246 (1998). Even if the
chain of custody had indeed been broken, it is well settled that this goes to the weight
rather than the admissibility of the evidence. State v. Richey, 64 Ohio St.3d 353, 360, 595
N.E.2d 915 (1992).
{¶ 74} Appellant's third assignment of error is overruled.
IV, V
{¶ 75} Appellant's fourth and fifth assignments of error allege ineffective
assistance of counsel. Specifically, appellant faults trial counsel for failing to subpoena
Officer Moore and the owner of the Lincoln SUV appellant was driving on July 6, 2020.
We disagree.
{¶ 76} To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell
below an objective standard of reasonable representation, and (2) that counsel's errors
prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the
result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. "Reasonable
probability" is "probability sufficient to undermine confidence in the outcome." Strickland
at 694, 104 S.Ct. 2052.
{¶ 77} Because there are countless ways to provide effective assistance in any
given case, judicial scrutiny of a lawyer's performance must be highly deferential.
Richland County, Case No. 2021-CA-0084 17
Strickland, 466 U.S. 668 at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. "Decisions on strategy
and trial tactics are granted wide latitude of professional judgment, and it is not the duty
of a reviewing court to analyze trial counsel's legal tactics and maneuvers." State v.
Quinones, 8th Dist. Cuyahoga No. 100928, 2014-Ohio-5544, ¶ 18. Decisions about which
witnesses to call involve matters committed to counsel's professional judgment. State v.
Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 127 "Generally, counsel's
decision whether to call a witness falls within the rubric of trial strategy and will not be
second-guessed by a reviewing court." State v. Treesh, 90 Ohio St.3d 460, 490, 739
N.E.2d 749 (2001).
{¶ 78} As to appellant's first challenge, he again refers to a body camera allegedly
worn by Officer Moore. He argues that had counsel subpoenaed Moore, Moore's body
camera video could have been introduced as evidence. There is, however, no evidence
in the record that any of the officers were equipped with body-worn cameras and appellant
provides no transcript reference to support his allegation that a body-worn camera video
existed. As discussed under appellant's second assignment of error, Moore's dash
camera video was played for the jury. T. 572-575. Because this appears to be the only
available video evidence from the scene of the July 6, 2020 traffic stop, appellant's
argument is without merit.
{¶ 79} Appellant's second argument faults counsel for failing to subpoena or
interview the owner of the Lincoln SUV.
{¶ 80} First, appellant provides no reference to the record to support a conclusion
that counsel never interviewed the owner of the Lincoln. The claim appears, therefore, to
be speculation and we reject the same.
Richland County, Case No. 2021-CA-0084 18
{¶ 81} Second, Appellant argues that the vehicle owner's testimony would have
been helpful in determining the owner of the bookbag containing the drugs. Even if
arguendo we were to find counsel should have subpoenaed the owner of the Lincoln,
appellant still could not show the outcome of the trial would have been any different. While
appellant theorizes the owner's testimony would have resolved conflicting testimony
regarding how the vehicle came into his possession, appellant was not charged with any
type of theft regarding the vehicle. In regard to the offenses he was charged with,
appellant was driving the vehicle, not the owner. Amanda Craft, appellant's companion,
testified appellant picked her up earlier that day driving the Lincoln. T. 357. Appellant also
argues the testimony of the owner would have been beneficial in determining the owner
of the bookbag. However, appellant's hospital discharge records were in the bookbag with
the drugs, tying him to the drugs. T. 242-257, 380.
{¶ 82} Appellant has not demonstrated ineffective assistance of counsel. His fourth
and fifth assignments of error are overruled.
{¶ 83} The judgement of the Richland County Court of Common Pleas is affirmed.
By Wise, Earle, P.J.
Hoffman, J. and
Baldwin, J. concur.
EEW/rw