[Cite as State v. Bell,

.]

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,

,

, ¶ 47. Sufficiency is a test of adequacy, State v. Thompkins,

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(1997), and the question of whether evidence is sufficient

to sustain a verdict is one of law, State v. Robinson,

(1955),

superseded by state constitutional amendment on other grounds as stated in State

v. Smith,

(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,

,

. 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,

, ¶ 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,

(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,

(1992), superseded by constitutional

amendment on other grounds as stated in State v. Smith,

(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,

(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,

, ¶

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14-17 (same); see also State v. Palmer, 7th Dist. No. 04-JE-41,

(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,

.

{¶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,

(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,

, ¶ 68, the State is not required to

prove “a strict chain of custody,” State v. Wilkins,

(1980).

Rather, the State merely needs to “establish that it is reasonably certain that

substitution, alteration or tampering did not occur.”

. 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,

.

{¶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,

(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.

at paragraph three of the syllabus. “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial. Waddy,

, citing United States v. Bagley,

,

(1985), superseded by constitutional amendment on

other grounds as recognized by Smith,

.

{¶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.’”

quoting Smith v. Murray,

, 535,

(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,

(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,

,

, ¶ 30 (10th Dist.) (“It is unnecessary to show who took

the photograph or when it was taken * * *.”); Solomon v. Mota,

(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,

, 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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