State v. Tucker , 2019 Ohio 574 ( 2019 )

[Cite as State v. Tucker, 2019-Ohio-574.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-87
:
v. : Trial Court Case No. 2017-CR-385
:
JASON TUCKER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 15th day of February, 2019.
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ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 545 Metro Place South, Suite 100, Dublin,
Ohio 43017
Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} Jason Tucker appeals from his conviction and sentence on one count of
cocaine possession, a third-degree felony.
{¶ 2} Tucker’s appointed appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of
any non-frivolous issues for review. Appellate counsel has identified potential
assignments of error concerning (1) the trial court’s denial of a continuance, (2) trial
counsel’s failure to file a suppression motion and failure to object to evidence of an arrest
warrant for Tucker, and (3) the trial court’s imposition of a three-year prison sentence to
be served consecutively to another sentence. Appellate counsel concludes that these
assignments of error lack arguable merit and that pursuing them would be frivolous.
{¶ 3} We notified Tucker of the Anders filing and invited him to file a pro se brief.
Tucker responded with a brief asserting the following four assignments of error:
I. First Assignment of Error: Due process was denied under 5th, 6th,
8th, and 14th Amendments of the U.S. Constitution when Trial Court abused
its discretion where it knowingly entered tainted/adulterated evidence into
defendant’s trial.
II. Second Assignment of Error: Trial Counsel was ineffective for not
filing a motion to suppress, and for not objecting to the state’s introduction
of tainted/adulterated evidence into Defendant-Appellant’s trial.
III. Third Assignment of Error: The trial court erred in imposing a
three-year prison term for Appellant of a third-degree felony when in fact the
conviction was based on tainted/adulterated evidence and the conviction
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should have been applied to one of a lesser degree.
IV. Fourth Assignment of Error: Due process was denied under 5th,
6th, 8th, and 14th Amendments of the U.S. Constitution when Trial Court
abused its discretion where it knowingly entered evidence that broke the
chain of custody into Appellant’s trial.
(Appellant’s brief at 1.)
{¶ 4} The record reflects that Tucker was subjected to a traffic stop after a
Springfield police officer ran a license plate check and discovered that the vehicle’s owner
had an arrest warrant. After confirming that the warrant was for Tucker, the officer
arrested him. A search incident to arrest resulted in the discovery of marijuana and a
digital scale in his possession. At jail, a deputy searched Tucker and found a baggie of
marijuana. The deputy also found two baggies of what appeared to be crack cocaine in
Tucker’s crotch area. According to the deputy, Tucker stated that he forgot about the
cocaine and acknowledged that it would be a felony for bringing it into the jail. Testing
confirmed that the substance in the two baggies was crack cocaine with an aggregate
weight of approximately 13 grams.
{¶ 5} Tucker was indicted on charges of cocaine trafficking (F2), cocaine
possession (F3), and illegal conveyance of drugs into jail (F3). Prior to trial, the State
dismissed the illegal conveyance charge. A jury then found Tucker guilty of cocaine
possession but not guilty of cocaine trafficking. At sentencing, the trial court imposed a
three-year prison term consecutive to a six-month sentence imposed in another case.
This appeal followed.
{¶ 6} In his Anders brief, appointed appellate counsel first addresses the trial
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court’s denial of a continuance. On the morning of trial, defense counsel sought a
continuance to obtain past employment records for Tucker, to subpoena two witnesses,
and to review additional discovery with Tucker. The trial court discussed the matter with
the parties at length and ultimately declined to continue the trial to another day. The trial
court did, however, grant defense counsel 40 minutes to review certain discovery with
Tucker, who had not seen it. (Trial Tr. at 6-22.)
{¶ 7} The denial of a continuance is a matter left to the sound discretion of the trial
court and will not be reversed absent an abuse of discretion. State v. Unger, 67 Ohio
St.2d 65, 67, 423 N.E.2d 1078 (1981). “There are no mechanical tests for deciding when
a denial of a continuance is so arbitrary as to violate due process. The answer must be
found in the circumstances present in every case, particularly in the reasons presented
to the trial judge at the time the request is denied.” (Citation omitted.) State v. Fairman,
2d Dist. Montgomery No. 24299, 2011-Ohio-6489, ¶ 18; State v. Jones, 2d Dist. Clark
No. 2013 CA 118, 2014-Ohio-4605, ¶ 15.
{¶ 8} We agree with appointed appellate counsel that challenging the trial court’s
denial of a continuance would be frivolous. The purpose for obtaining the employment
records was to show that Tucker was consistently employed and that he was too busy to
be a cocaine trafficker. (Trial Tr. at 10.) Tucker wanted to subpoena a Madison County
police officer (who had arrested him in another case) to support his argument that he
used drugs but that he was not a drug trafficker. He wanted to subpoena a female
passenger in his car to support his argument that he was not a drug trafficker and possibly
to support an argument that he had forgotten about the cocaine in his possession and
unintentionally brought it into the jail. (Id. at 14-17.) As Tucker’s appellate counsel notes,
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however, the State dismissed the illegal conveyance charge, and a jury acquitted Tucker
of cocaine trafficking. Therefore, he cannot have been prejudiced by the trial court’s ruling
with regard to the employment records or the desired subpoenas.
{¶ 9} As for the discovery issue, defense counsel explained that he had not yet
reviewed the bill of particulars, the State’s witness list, and the cocaine lab results with
Tucker. (Id. at 7.) The trial court delayed the start of trial by 40 minutes to allow defense
counsel to confer with Tucker on these issues. (Id. at 21.) We see no non-frivolous
argument about the trial court’s handing of this issue.
{¶ 10} Appointed appellate counsel next raises a potential assignment of error
alleging ineffective assistance of trial counsel for failing to file a suppression motion and
for not objecting to the State’s introduction of evidence about Tucker’s arrest warrant.
Appellate counsel again concludes that pursuing these issues would be frivolous, and we
agree. Tucker wanted a suppression motion to be filed because he denied making any
incriminating statements after receiving his Miranda rights. (Id. at 13.) The trial court
correctly responded: “Well, with respect to the suppression motion, if the Defendant’s
position is that he did not make the statements, then there would be no basis for a
suppression motion. That would just be a factual issue for the jury.” (Id. at 13, 21.) As for
the arrest warrant, the State introduced that information because it was the basis for
Tucker’s arrest. Defense counsel requested an appropriate limiting instruction on the
issue, and the trial court gave one. (Id. at 133, 135-136.) We see no non-frivolous issue
for appeal.
{¶ 11} In his final potential assignment of error, appointed appellate counsel
addresses whether the trial court erred in imposing a three-year prison term consecutive
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to a six-month term in Madison County. Defense counsel concludes that the sentence
was within the statutory range and was authorized by law, that it was supported by the
record, that the trial court made the necessary findings for consecutive sentencing, and
that Tucker properly was advised about post-release control. We agree. The only
conceivable issue is whether the trial court erred in imposing its sentence consecutive to
the other sentence. The record reflects, however, that the trial court made the requisite
findings. (Sentencing Tr. at 4-5.) In light of Tucker’s criminal history, which includes
several prior prison terms, we see no non-frivolous argument that the record clearly and
convincingly fails to support those findings.
{¶ 12} We turn now to Tucker’s pro se brief. In his first assignment of error, he
complains about the introduction of “tainted/adulterated evidence” at trial. His argument
is an amalgamation of legal concepts, but they all flow from his belief that forensic scientist
Megan Snyder mishandled and improperly tested the cocaine at issue. He contends
Snyder touched both bags of cocaine without changing gloves. He also claims she never
cleaned the tools and utensils used during her testing. He additionally mentions an
unspecified chain-of-custody issue.
{¶ 13} Upon review, we find no non-frivolous issue with regard to Tucker’s claims
about “tainted/adulterated evidence.” His claims are founded on defense counsel’s
closing argument, which theorized that the cocaine might or could have been tainted or
handled improperly because the prosecutor did not discuss the issue in much detail with
Snyder, leaving room for reasonable doubt. Significantly, the record contains no
affirmative evidence that Snyder actually did taint, mishandle, or improperly test the
cocaine. On direct examination, Snyder testified about taking the two baggies of cocaine
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police obtained from Tucker and placing the contents in two separate zip bags that were
made exhibits at trial. (Trial Tr. at 120.) She then took a sample from each bag and
analyzed it separately, even though the two bags appeared to contain the same
substance. (Id. at 121-122.) Her testing confirmed the presence of cocaine in each of the
two samples. (Id. at 122.) She testified that the combined weight of the contents of the
two bags was approximately 13.07 grams. (Id.)
{¶ 14} On cross examination, defense counsel elicited from Snyder the fact that
she lacked independent recollection and that she had refreshed her memory with her
written lab report. (Id. at 125.) Snyder also acknowledged that her written report did not
state whether she had tested the contents of each bag separately. (Id. at 128.) She also
agreed that her report did not reflect the weight of the contents of each bag separately.
(Id. at 129.)
{¶ 15} In his closing argument, defense counsel pointed out that Snyder had said
nothing about how she transferred the contents of the baggies obtained from Tucker into
her own bags. Counsel theorized that “cross-contamination” may have occurred. He also
argued that Snyder “never testified as to how the custody was in that process” and “never
said exactly how she did the testing.” (Id. at 150-151.) Despite Snyder’s testimony that
she tested the contents of each bag separately, defense counsel asserted that she might
have combined the contents the two bags, one of which contained cocaine and one of
which did not, and then tested the combined substance. (Id. at 152.) Defense counsel
also argued that Snyder should have testified about wearing and changing gloves and
about being sure the lab was free of “contaminants.” (Id. at 153-154.)
{¶ 16} Defense counsel did a proficient job trying to create reasonable doubt in the
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jury’s mind and to point out weaknesses in the State’s case. Nothing in the record
establishes, however, that Snyder necessarily did taint, mishandle, or improperly test the
cocaine. In the end, these were issues for the jury to consider when deciding how much
weight to give Snyder’s testimony. Based on our review of the trial transcript, we see no
non-frivolous argument as to whether Tucker’s conviction was based on legally
insufficient evidence or was against the manifest weight of the evidence.
{¶ 17} We also see no arguable basis for Tucker’s claim involving a chain-of-
custody issue (an issue we will address more fully below), his claim that the trial court
failed to control the proceedings, or his claim that defense counsel provided ineffective
assistance by failing to “completely investigate the circumstances of the evidence.” Nor
do we find arguable merit in Tucker’s claim that he should have been convicted of a
lesser-degree offense (another issue we will address more fully below), his claim that the
trial court should have granted a continuance on the basis of “tainted” evidence, his claim
that the trial court should have “suppressed” the “tainted” evidence, or his claim that it
violated his due process rights. Accordingly, his first assignment of error is overruled.
{¶ 18} In his second assignment of error, Tucker contends his attorney provided
ineffective assistance by not filing a motion to suppress and by not objecting to the
“tainted/adulterated evidence” discussed above.
{¶ 19} Unlike the suppression issue addressed in our analysis of appointed
appellate counsel’s Anders brief, Tucker raises a different issue. He contends his trial
counsel rendered ineffective assistance by not seeking to “suppress” the cocaine on the
basis that it was tainted and improperly tested. He also argues that his attorney should
have objected when the State introduced the “tainted” evidence. These arguments lack
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arguable merit and are frivolous. Defense counsel’s cross examination went to the weight
of Snyder’s testimony about the cocaine, but the record reveals no basis whatsoever for
“suppressing” that evidence. Similarly, defense counsel acted competently by cross
examining Snyder about her lab testing and by trying to create reasonable doubt in the
jury’s mind during closing arguments rather than “objecting” when the State presented
Snyder’s testimony. The second assignment of error is overruled.
{¶ 20} In his third assignment of error, Tucker contends he should have been
convicted of a lesser-degree offense due to the State’s presentation of
“tainted/adulterated evidence” and an unspecified break in the chain of custody. He
argues that, as a result of Snyder tainting the evidence, there is no way to know how
much cocaine he possessed. Therefore, he asserts that he should have been convicted
of the lowest degree of the offense of cocaine possession rather than a third-degree
felony. In support, he cites State v. Pelfrey, 2d Dist. Montgomery No. 19955, 2005-Ohio-
5006, which addressed an entirely different issue.
{¶ 21} In Pelfrey, this court applied R.C. 2945.75 and held that when the presence
of an element makes an offense one of more serious degree, a guilty verdict must either
state the degree of the offense of which the defendant is found guilty or must state that
the additional element is present. Otherwise, a guilty verdict constitutes a finding of guilt
of the least degree of the offense. The Ohio Supreme Court affirmed in State v. Pelfrey,
112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735.
{¶ 22} Here the jury’s verdict form specified that Tucker had possessed between
ten and twenty grams of cocaine. This finding as to quantity made the offense a third-
degree felony, and Tucker properly was convicted and sentenced for a third-degree felony
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consistent with Pelfrey. Tucker’s argument that Snyder’s testimony failed to establish his
possession of approximately 13.07 grams of cocaine because of tainting or errors in her
testing goes to either the legal sufficiency or manifest weight of the evidence, which are
issues that we touched upon above. His argument does not raise a true Pelfrey issue.
Accordingly, we see no non-frivolous issue for appellate review. The third assignment of
error is overruled.
{¶ 23} In his final assignment of error, Tucker contends the trial court erred when
it “knowingly entered evidence that broke the chain of custody.” We see no non-frivolous
chain-of-custody issue. Police officer Eric Flemming testified that the drugs at issue were
taken from Tucker and placed in a property envelope and sent to the Bureau of Criminal
Investigation in London, Ohio. (Trial Tr. at 91, 94.) Snyder testified that incoming evidence
is assigned a barcode number and placed in a vault. (Id. at 119.) She explained that the
drugs she tested were in baggies inside an envelope with an identifying barcode. (Id. at
120.) She also testified about taking the drug evidence into her custody, bringing it to her
lab, and testing it. (Id. at 121.) Any chain-of-custody complaint Tucker might have would
go to the weight of the evidence, not its admissibility. State v. Maranger, 2018-Ohio-1425,
110 N.E.3d 895, ¶ 74 (2d Dist.) Therefore, an argument about the trial court admitting
evidence with an inadequate chain of custody is wholly frivolous. Regardless, Tucker’s
real argument appears to be related to his “tainted evidence” claim, which we addressed
above. The fourth assignment of error is overruled.
{¶ 24} Finally, in accordance with our responsibilities under Anders, we
independently have reviewed the record and have found no non-frivolous issues for
appellate review.
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{¶ 25} The judgment of the Clark County Common Pleas Court is affirmed.
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DONOVAN, J. and FROELICH, J., concur.
Copies sent to:
Andrew P. Pickering
April F. Campbell
Jason Tucker
Hon. Douglas M. Rastatter