[Cite as State v. Lawson,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

: STATE OF OHIO : : Appellate Case No. 2020-CA-16 Plaintiff-Appellee : : Trial Court Case No. 2019-CR-555 v. : : (Criminal Appeal from THOMAS W. LAWSON : Common Pleas Court) : Defendant-Appellant :

...........

OPINION

Rendered on the 23rd day of December, 2020.

...........

MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Greene County Prosecutor’s Office, Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. No. 0072135, 100 North Detroit Street, Xenia, Ohio 45385 Attorney for Defendant-Appellant

.............

FROELICH, J. -2-

{¶ 1} After a jury trial in the Greene County Court of Common Pleas, Thomas W.

Lawson was found guilty of possession of a fentanyl-related compound, trafficking in a

fentanyl-related compound, trafficking in heroin, aggravated possession of drugs

(methamphetamine), and two counts of possession of heroin. The two trafficking

offenses contained firearm specifications. After merging certain offenses and the firearm

specifications, the trial court imposed an aggregate term of a minimum of 12 years in

prison with a maximum term of 17.5 years.

{¶ 2} Lawson appeals from his convictions. He claims that the trial court erred in

failing to continue the jury trial and to appoint new counsel, that his trial counsel rendered

ineffective assistance, and that his convictions were not based on sufficient evidence.

For the following reasons, the trial court’s judgment will be affirmed.

I. Procedural History

{¶ 3} On June 21, 2019, Lawson was arrested in Greene County and the car he

was driving at the time of his arrest was impounded by the Riverside police due to an

investigation in that Montgomery County jurisdiction. In a subsequent interview, Lawson

informed a Riverside detective that he (the detective) would find guns and drugs in the

vehicle. Based on Lawson’s statements, the detective obtained a search warrant for the

car. Upon searching the vehicle, the detective located approximately 68 grams of heroin

and fentanyl in one baggie, 5.5 grams of Tramadol, heroin, and fentanyl in a second

baggie, and 3.6 grams of methamphetamine in a third baggie. Officers also located a

digital scale and two guns, among other items, in the vehicle.

{¶ 4} On August 30, 2019, Lawson was indicted in Greene County on eight counts: -3-

Firearm Count Offense Statute Degree Spec? Improper Handling of Firearms in a 1 2923.16(B) F4 Motor Vehicle Possession of a fentanyl-related 2 2925.11(A) F1 compound Trafficking in a fentanyl-related 3 2925.03(A)(2) F1 Yes compound 4 Possession of heroin 2925.11(A) F1 5 Trafficking in heroin 2925.03(A)(2) F1 Yes 6 Aggravated possession of drugs 2925.11(A) F3 7 Possession of heroin 2925.11(A) F3 8 Escape 2921.34(A)(1) F2

The indictment also included a forfeiture specification related to the two firearms.

{¶ 5} Lawson appeared with appointed counsel for his arraignment via video. He

pled not guilty, and the court set a trial date of November 12, 2019. On November 8,

Lawson moved for a continuance, stating that negotiations with the State were ongoing

and the State needed additional time to confirm information provided by Lawson. The

trial court rescheduled the trial for January 13, 2020. On November 25, the trial court

again rescheduled the jury trial for February 18, 2020.

{¶ 6} On January 21, 2020, the Ohio Supreme Court suspended Lawson’s defense

counsel from the practice of law for two years, with the second year stayed if he met

certain conditions.1 See Dayton Bar Assn. v. Sullivan,

, 2020-Ohio-

124,

. Eight days later, an assistant public defender moved to be

substituted as counsel for Lawson. The trial court granted the motion. A status

conference was scheduled for February 6; that conference was not transcribed.

1Lawson’s appellate counsel has filed a motion asking us to take judicial notice of original defense counsel’s suspension from the practice of law. That motion is granted. -4-

{¶ 7} On February 7, the trial court held a Lafler hearing. 2 The prosecutor

informed the court that the State had presented two plea offers, one with a stipulated

sentence and one without. Defense counsel agreed that he had received those offers

and had conveyed them to Lawson. Lawson indicated that he wanted to reject both

offers. The court noted that trial was scheduled for February 18 and that defense

counsel previously had conveyed that Lawson wanted to keep the trial date. When

asked if that was correct, Lawson responded, “Yes, sir.”

{¶ 8} The trial court asked defense counsel if he would be prepared for trial on

February 18. Counsel responded:

Well, your Honor, as I had previously indicated, I indicated to Mr.

Lawson, I can be ready, but I’m not going to be ready anywhere near to the

degree that I would – to the standard that I would hold myself to be ready

for a trial in this short amount of time, because you’ve seen, you’ve seen

the charges. You’ve seen how much discovery, how many discs and

things here (Indicating.)

* * * So, so I told my client, I’ve informed him that if we don’t have a

continuance, I won’t be as prepared as I feel I should be. I’ll do everything

2 The court’s scheduling document referred to this hearing as a “Lafler hearing,” but that is a misnomer. In Lafler v. Cooper,

,

,

(2012), the United States Supreme Court indicated the trial court could have conducted a hearing, at the point after the jury's guilty verdict and before sentencing, to flesh out the defendant’s post-verdict and pre-sentencing claim that he had received ineffective assistance in plea negotiations before trial. Here, the court held a hearing to ensure that Lawson was aware of the State’s plea offers and accepted or rejected them on the record. While Lafler also suggested that courts may take measures to ensure against fabricated claims following the acceptance of a less advantageous plea or a conviction after trial,

, such prophylactic measures are not a true Lafler hearing. See State v. Easterling,

,

, ¶ 25 (2d Dist.), fn.3. -5-

I can – basically there’s only so many hours in the day is what I’m saying,

and we’re compacted. (Indicating.)

As you know, trials of this, you know, type of crime of this nature, we

normally have a lot more than two weeks.

{¶ 9} The trial court then addressed Lawson about what his attorney had said.

The court told Lawson that the decision to go forward on February 18 or instead postpone

the case was up to him. The trial court advised Lawson to talk with his attorney about

the trial date, saying “[I]f you want to go forward, we’ll go forward. If you want a short

postponement, you’ll get it. Either decision is good by me.” The court emphasized that

defense counsel was a “very good lawyer” who was “very experienced in this courtroom”

and could “probably answer any question you might have.” Lawson discussed his

frustration with the plea process and the course of the case. The court responded that

it was not involved with the plea negotiations, but it would allow Lawson either to go

forward with the scheduled trial or have a brief continuance, depending on what he

decided.

{¶ 10} Defense counsel raised three additional issues with the trial court. He

informed the court that he was having difficulty obtaining purported exculpatory evidence

from original defense counsel. Counsel noted that multiple copies of the evidence

existed, and he was trying to obtain it from other sources. Next, counsel noted that he

was reviewing discovery and might lose the ability to raise a motion to suppress if the

current trial date went forward. Third, counsel emphasized that “none of this mess we

have that we’re in today was the result of anything that Mr. Lawson has done.”

{¶ 11} The parties asked the court about its general rule that plea agreements be -6-

presented to the court by one week before the trial date. The court said that it was

suspending that rule due to the extraordinary circumstances in Lawson’s case. The

court stated that the parties could continue to negotiate a plea if they wished and

reiterated that trial was scheduled to proceed on this case, but a continuance would be

granted if Lawson decided he wanted a postponement.

{¶ 12} No motions were filed between February 7 and February 18, 2020.

{¶ 13} Prior to the beginning of trial on February 18, Lawson file a motion to sever

the escape charge or, alternatively, to waive a jury trial on that charge. The court,

counsel and Lawson then had extensive discussions prior to voir dire. Defense counsel

told the court that he had spoken with Lawson that morning and explained to Lawson that

he could request a continuance, accept a plea offer, or go to trial that morning. Counsel

reported that Lawson initially responded with obscenities and a request for new counsel.

Counsel informed the court that “at this time, my understanding is that he still does not

want to have the trial. He’d like to get new counsel, which I would assume that would be

to retain somebody, and it’s his desire to not go forward today, and he says that I’m

ineffective, haven’t been doing different things and that.”

{¶ 14} The court turned to Lawson and asked him, “[R]egarding the trial, you ready

to go today?” Lawson responded, “Yes, sir.” Defense counsel told the court, “Your

Honor, that was contrary to what I was told * * *.” The court replied that it “got [its]

answer” and “let’s move on.”

{¶ 15} The court had a lengthy conversation with Lawson, in which Lawson

expressed his views on the case, the State’s conduct with respect to Lawson’s

cooperation in another unrelated case, and the State’s pending plea offer. During the -7-

discussion, Lawson indicated that he had not seen certain discovery in this case. The

court discussed with Lawson whether he wanted to waive a jury trial on the escape

charge.

{¶ 16} At one point, Lawson asked if his attorney would change if he were to ask

for a continuance. Lawson inquired, “[W]hy does my representation level drop from a

court appropriated [sic] private practice lawyer who had my best interest to a public

defender? Would I still be appointed a new counsel to represent me on the next trial

date, or would I have to be stuck with [current defense counsel]?” The court replied, “I

don’t know the answer to that. I can’t answer that right now. I don’t know.” Lawson

stated, “And that’s my dilemma because I don’t feel based on the lack of time and the

lack of communication that I’ve had with [counsel] that he has my best interest at heart.”

{¶ 17} At that point, Lawson again began to discuss whether he believed the State

could prove the drug possession charges against him. The trial court indicated that it

would sever the escape charge and the trial would proceed on the drug counts. Defense

counsel proposed proceeding on the escape charge instead, which he described as “a

much more straightforward case.”

{¶ 18} After a brief recess, the court indicated that it had a written motion to sever

the escape charge and that if the motion were granted, the case would proceed on the

drug charges that day. The court asked Lawson if he wanted to do that, and Lawson

responded affirmatively. The trial court filed a written entry, granting the motion to sever

and stating that the escape charge would be addressed at the subsequent jury trial in

another pending case against Lawson, Greene C.P. No. 2019-CR-508.

{¶ 19} At that juncture, the trial court indicated that it was time for the prospective -8-

jurors to be brought in. Lawson immediately asked the court if he could ask a question,

namely whether it was “effective fair trial for me to go forward with [defense counsel] as

my attorney.” The court responded, “Yes.” The court took a brief recess before jury

selection began.

{¶ 20} After the prospective jurors were questioned and just prior to discussing

with counsel any challenges to the prospective jurors, defense counsel informed the court

that Lawson had asked him to request a continuance. Defense counsel conveyed that

Lawson wanted the continuance “because of the amount of time involved, because of

[original defense counsel] issues, [and] the limited amount of time and things.” The State

opposed the request, saying that this “was all addressed with the Court last week and the

week before that.” The court denied the motion in light of the State’s position.

{¶ 21} At the conclusion of the jury trial, the jury found Lawson guilty of the drug

offenses and firearm specifications (Counts Two through Seven). The jury could not

reach a verdict on Count One, improper handling of firearms in a motor vehicle, and that

charge was dismissed in the court’s judgment entry. At sentencing, the trial court

merged possession of a fentanyl-related compound (Count Two) with trafficking in a

fentanyl-related compound (Count Three) and possession of heroin (Count Four) with

trafficking in heroin (Count Five); the court also merged the firearm specifications. The

trial court imposed an aggregate term of a minimum of 12 years in prison with a maximum

term of 17.5 years.

{¶ 22} Lawson appeals from his convictions, raising three assignments of error.3

3 When the notice of appeal was filed, Lawson had not yet been tried for escape. We conclude that the judgment entry on appeal is nevertheless a final appealable order, because the escape count had been formally severed and all other charges had been -9-

We will address them in an order that facilitates our analysis.

I. Motions for a Continuance and for New Counsel

{¶ 23} In his first assignment of error, Lawson claims that the “trial court erred in

not granting a continuance of the jury trial and the motion to appoint new counsel.”

A. Motion for a Continuance

{¶ 24} The Supreme Court of Ohio has adopted a balancing test to guide lower

courts in resolving the competing considerations when evaluating a motion for a

continuance. State v. Unger,

,

(1981). A trial

court should consider (1) the length of the delay requested; (2) whether other

continuances have been requested or received; (3) the inconvenience to the litigants,

witnesses, opposing counsel, and the court; (4) whether the requested delay is for

legitimate reasons or whether it is dilatory, purposeful, or contrived; (5) whether defendant

contributed to the circumstances which gave rise to the request for a continuance; and

(6) other relevant factors, depending on the unique facts of each case. E.g., State v.

Breneman, 2d Dist. Champaign No. 2010-CA-18,

, citing

.

{¶ 25} “The grant or denial of a continuance is a matter which is entrusted to the

broad, sound discretion of the trial judge.”

. Therefore, an appellate court

must not reverse a trial court’s decision to deny a motion for continuance unless it finds

that the trial court abused its discretion. Id.; Frodyma v. Frodyma, 2d Dist. Greene No.

2013-CA-40,

. The term “abuse of discretion” implies that the

resolved. See State v. Craig,

,

,

(“Had the trial court at any point severed the counts of conviction from the still-pending charge, Craig would have been able to appeal his convictions separately.”). -10-

court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶ 26} “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.” Ungar v. Sarafite,

,

,

(1964).

{¶ 27} Lawson asserts that each of the above factors either was neutral or favored

the granting of a continuance. He states that no specific length of a delay was requested,

but some amount of a continuance would have been reasonable. Lawson emphasizes

that new defense counsel had recently been appointed through no fault of his, and new

counsel had not previously sought a continuance. Lawson notes that all of the witnesses

were police officers or lab analysts, and no lay witnesses would have been

inconvenienced. Lawson further states that “the trial court had previously placed on the

record that there were other trials set for that day and the jury that was called in could

have been used for those trials so as to not inconvenience the court and those jurors.”

Lawson emphasizes that he had not seen all of the discovery, he had had minimal in-

person communications with his new counsel, and there were pretrial motions that could

have been filed.

{¶ 28} This case presents a unique circumstance. Lawson was indicted in August

2019, and it appears that he has been held in jail during the pendency of this case. His

original counsel sought a continuance in November 2019, which was granted. Less than

a month before the rescheduled February 18, 2020 trial date, Lawson’s appointed counsel -11-

was suspended from the practice of law, necessitating new counsel. It is undisputed that

Lawson did nothing to create this situation. Lawson repeatedly expressed frustration

with the resulting circumstances, specifically that he faced going to trial as scheduled with

new counsel or accepting a delay of the trial date. Lawson was unsatisfied with both

options.

{¶ 29} At the February 7 hearing, the trial court repeatedly told Lawson that it would

either proceed with the scheduled trial date or provide him a short postponement,

whichever Lawson wanted. The court encouraged Lawson to talk with his attorney about

what he wanted to do. The court stated that, as of February 7, the trial would proceed

as scheduled, but “[i]f any time between now and then, you’d like it postponed, I will grant

that to you.”

{¶ 30} As of February 7, Lawson was also aware of his attorney’s concerns about

his (counsel’s) ability to be prepared for trial on February 18. Counsel had expressed

that he would do everything he could to be ready, but would not be ready to the extent

that he would normally be ready if he had more time. Counsel had also informed the

court that he was having issues obtaining purported exculpatory evidence and there

possibly were pretrial motions that needed to be filed.

{¶ 31} Between February 7 and the trial date (February 18), Lawson did not

request a continuance, file any pretrial motions, or request new counsel.

{¶ 32} Prior to the jury pool’s being brought into court for voir dire on February 18,

defense counsel informed the court that he had spoken to Lawson that morning and

presented three options to Lawson – accept a plea, request a continuance, proceed with

trial; counsel conveyed that Lawson was upset, wanted new counsel, and ultimately -12-

requested a continuance. However, when the trial court asked Lawson directly whether

he was ready to proceed to trial that day, Lawson responded affirmatively. Lawson did

not request a continuance prior to the commencement of jury selection.

{¶ 33} Jury selection began at 10:25 a.m. and continued until the court took a brief

recess at 12:05 p.m. When court resumed at 12:22 p.m. to discuss challenges to the

prospective jurors, defense counsel moved for a continuance at Lawson’s request. That

request was denied.

{¶ 34} Upon review of the record, we cannot conclude that the trial court abused

its discretion when it denied Lawson’s motion for a continuance made at the conclusion

of voir dire. The trial court had spoken with Lawson extensively, both on February 7 and

during the 50 minutes prior to the beginning of jury selection on February 18. Although

Lawson expressed his dissatisfaction with the course of his case, he did not ask for a

continuance during those times, and he expressly told the court on the morning of

February 18 prior to voir dire that he was ready to proceed with the trial.

{¶ 35} At one point prior to the beginning of trial, Lawson asked the trial court if he

would have the same counsel if he asked for a continuance, “which I think might be the

best option at this point.” The court responded that it did not know the answer and could

not answer that question then. Lawson expressed that his dilemma was based on his

lack of confidence in his attorney. The court later told Lawson that it was severing the

escape charge and that trial that day would proceed on the drug and gun charges only,

and it asked Lawson, “Would you like to do that, Mr. Lawson?” Lawson responded

affirmatively.

{¶ 36} The trial court could have reasonably concluded that Lawson’s request for -13-

a continuance after almost two hours of voir dire was untimely and that the inconvenience

to the court, the parties, and the public outweighed other considerations. Although the

trial court possibly could have proceeded with trial in another case had a continuance

been granted earlier, other scheduled trials undoubtedly had been reset by the time

Lawson’s motion was made shortly after noon on February 18.

{¶ 37} We recognize that Lawson was placed in the unfortunate position of having

his defense counsel changed within a month of his trial date for reasons outside of his

control. New defense counsel was clear that the short timeframe until trial would hamper

his preparation and that he was having difficulty with obtaining purportedly exculpatory

evidence from former defense counsel. Defense counsel’s statements indicated that he

(counsel) believed a continuance was preferable. The trial court offered Lawson the

choice to proceed with the trial date or to request a continuance prior to trial. Before trial

began, Lawson himself indicated that he wanted to proceed on February 18. Once the

trial process began and jury selection was almost completed, we cannot find error in the

trial court’s denial of Lawson’s motion for a continuance, which appeared to be based

simply on a change of heart about whether to proceed.

{¶ 38} The portion of Lawson’s first assignment related to his motion for a

continuance is overruled.

B. Motion for New Counsel

{¶ 39} “[W]hile the right to select and be represented by one’s preferred attorney

is comprehended by the Sixth Amendment, the essential aim of the Amendment is to

guarantee an effective advocate * * * rather than to ensure that a defendant will inexorably

be represented by the lawyer whom he prefers.” State v. Jones,

, -14-

(2001), quoting Wheat v. United States,

,

,

(1988).

{¶ 40} In reviewing whether a trial court erred in denying a defendant’s motion for

new counsel, an appellate court should consider “the timeliness of the motion and

whether there was a conflict between the attorney and the client that was so great that it

resulted in a total lack of communication preventing an adequate defense.”

,

quoting United States v. Jennings,

(6th Cir. 1996). “In addition, courts

should ‘balanc[e] * * * the accused’s right to counsel of his choice and the public’s interest

in the prompt and efficient administration of justice.’ ” Id. at 342-343.

{¶ 41} We review the trial court’s decision whether to grant a defendant’s motion

for new counsel for an abuse of discretion. Breneman, 2d Dist. Champaign No. 2010-

CA-18,

;

.

{¶ 42} Lawson claims that the trial court erred in failing to grant his motion for new

counsel. In its appellate brief, the State asserts that Lawson never requested a new

attorney and, therefore, it was not an abuse of discretion for the trial court to fail to appoint

new counsel sua sponte. The record presents a complicated picture.

{¶ 43} On the morning of trial, defense counsel began the pretrial discussion by

informing the court that he had spoken with Lawson about his options, and that Lawson

had expressed a desire for a continuance and new counsel and had complained that

defense counsel was ineffective. Defense counsel’s statements, made on Lawson’s

behalf, constituted an oral motion for new counsel. However, the court then asked

Lawson if he was ready to go to trial that day. Lawson responded affirmatively. The

trial court reasonably interpreted Lawson’s response as a repudiation of his prior -15-

statements to his defense counsel that he wanted both a continuance and a new attorney.

{¶ 44} At that point, the trial court raised with Lawson the idea of having a bench

trial on the escape charge. Lawson told the court that defense counsel had explained

the State’s proposal to “dismiss” the escape charge as a part of a plea deal. (Defense

counsel disputed Lawson’s characterization of the conversation.) Lawson then

expressed his views on the strength of the State’s case on the drug charges. When the

court said, “Well, that’s what a trial is all about,” Lawson criticized his defense counsel,

saying:

Exactly. And I’ve tried to explain this to my attorney. [Counsel] come to

me, and he says, I’m here to clean up this mess – not defend you, Mr.

Lawson – clean up this mess.

At no point has he shown me the DVDs against me, nothing – none

of the evidence against me. Absolutely nothing has went against – in my

defense. This was all on my own behalf in my defense (Indicating.) * * *

{¶ 45} When the court asked Lawson if he had all the discovery, Lawson stated

that he did not have any of the DVDs, including his conversation with the Riverside police.

Lawson then stated that he did not understand why Montgomery County did not bring the

drug charges. The court again responded that a trial would address that. Lawson

replied:

Well, I would like to, I would like to discuss this with my attorney, but it’s not

about what we discussed. It’s about how they didn’t make a deal with me

on Dave Simpson. They didn’t make a deal with me on Calvin Harbaugh.

It’s all about. It’s never been about my case whatsoever. -16-

Lawson then expressed his frustration about how the State handled the information that

he said he had provided regarding an unrelated murder case, claiming that the State

made him a known snitch. Lawson had expected a deal in this case based on his

cooperation. Lawson stated that he “wanted [defense counsel] to be able to be the

liaison.” (Trial Tr. at 20.)

{¶ 46} The trial court then tried to bring the conversation back to that day’s

proceedings. Lawson asked why his representation level “dropped” from a private

attorney to a public defender and whether he would be appointed new counsel for trial if

he asked for a continuance. Lawson also stated that, “based on the lack of time and

the lack of communication” that he had had with counsel, he did not feel that counsel had

his “best interest at heart.” Just prior to jury selection, Lawson asked the court, “[I]s it

effective fair trial for me to go forward with [defense counsel] as my attorney[?]” (The

court responded, “Yes.”)

{¶ 47} Lawson did not make an explicit request for new counsel after his initial

request (via counsel) at the beginning of the lengthy pretrial discussion. However, the

record reflects that Lawson was not satisfied with the communication between his

attorney and him, and that he believed that his defense counsel would not provide a high

level of representation simply because counsel was a public defender. His questions

about whether he would receive new counsel if he requested a continuance and whether

it was fair for him to proceed to trial with current defense counsel reasonably could be

construed as requests for new counsel.

{¶ 48} Despite Lawson’s expressed concerns, the record does not reflect that

Lawson was unwilling to work with his attorney or that any conflicts between him and his -17-

attorney were “so great that it resulted in a total lack of communication preventing an

adequate defense.” Jones,

,

. That morning,

Lawson and his attorney had discussed the options available to Lawson, namely the

State’s pending plea offer, a continuance, or proceeding to trial. Although defense

counsel took issue with how Lawson, in layman’s terms, described the content of their

conversations, the trial court could have reasonably concluded that defense counsel

could communicate adequately about the case and that defense counsel could provide

effective assistance to Lawson. We cannot conclude that the trial court abused its

discretion in failing to appoint Lawson new counsel on the date of trial.

{¶ 49} The portion of Lawson’s first assignment of error related to his motion for

new counsel is overruled.

II. Sufficiency of the Evidence

{¶ 50} In his third assignment of error, Lawson claims that his convictions were

based on insufficient evidence for two reasons. First, he asserts that the evidence at

trial established that there was an issue with the chain of custody of the evidence.

Second, he asserts that the State failed to prove that he trafficked in drugs.

{¶ 51} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581,

, citing State v. Thompkins,

,

(1997). The relevant inquiry is whether any rational finder of fact, after

viewing the evidence in a light most favorable to the State, could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio -18-

St.3d 421, 430,

(1997). A guilty verdict will not be disturbed on appeal

unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”

{¶ 52} The State’s evidence at trial established the following facts.

{¶ 53} Late in the evening of June 21, 2019, Deputies Michael Major and Jason

Davis of the Greene County Sheriff’s Office were looking for Lawson on an unrelated

incident. They first attempted to locate Lawson at his residence, but he was not there.

At approximately 11:30 p.m., the deputies were talking by the entrance to the Huber

Mobile Home Trailer Park, in separate cruisers, when they saw Lawson enter that location

in a silver Nissan Altima. Lawson passed the deputies’ cruisers. The deputies followed

Lawson to the furthest street. Lawson was getting out of the Altima when Deputy Major

pulled up, and Deputy Davis saw him standing beside the vehicle.

{¶ 54} The deputies briefly talked with Lawson about the incident they were

investigating. Deputy Major then arrested Lawson and transported him to the Greene

County Jail, leaving Deputy Davis at the scene. Deputy Major did not know if the Altima

was locked. Deputy Davis left shortly afterward. Davis testified that he believed the

Nissan Altima was locked, but he was not certain. Davis stated on redirect examination

that it was the policy of the Greene County Sheriff’s Office to secure legally parked

vehicles when the drivers are arrested. (He stated that the vehicle would have been

towed if it were not legally parked.)

{¶ 55} Deputy Davis headed “back out to Xenia to do some paperwork.” As he

was driving toward Xenia, he received a call from his dispatcher to contact the Riverside

Police Department. Deputy Davis spoke with a Riverside officer, who wanted to know if -19-

he knew the location of Lawson’s vehicle. Davis informed the officer where the Nissan

was located. Based on the phone call, Deputy Davis drove to the Greene County Jail in

Xenia to get the keys to the Altima from Deputy Major. Deputy Davis then headed back

to the Nissan’s location. Davis estimated that 15 to 20 minutes elapsed between his

leaving the scene and the call from Riverside officer.

{¶ 56} Officer Robert Todd4 of the Riverside Police Department testified that he

learned of Lawson’s arrest at approximately 11:34 p.m. Shortly after that, Todd received

information about the location of Lawson’s vehicle, and he headed to the Huber Mobile

Home Trailer Park. Officer Todd explained that Lawson was operating a vehicle that

Riverside officers wanted to have towed as part of an investigation. Todd arrived at the

scene approximately 10 to 15 minutes later; no other law enforcement officers were there.

{¶ 57} Deputy Davis met Officer Todd at the scene and provided him the keys to

the Altima. Davis stated that it took roughly an hour to get from the location of the Nissan

to Xenia and back; Davis did not know how long Todd had been waiting. Davis stated

that the Nissan did not look any different when he returned. Officer Todd had not

attempted to open the vehicle and did not know if it was locked.

{¶ 58} Officer Todd secured the Altima by placing evidence tape along the creases

of the doors, trunk, and hood, and then initialing the tape. Officer Todd arranged for the

car to be towed to Sandy’s Towing in Dayton. The officer was aware that Lawson was

not the registered owner of the vehicle.

4 At trial, Todd identified himself as a detective with the Riverside Police Department. He stated, however, that he was a road patrol officer on June 21, 2019, when the relevant events occurred. -20-

{¶ 59} Riverside Detective Kyle Sewert 5 spoke to Lawson. During their

conversation, Lawson told the detective that drugs and guns might be found in the silver

Nissan Altima. On cross-examination, Sewert testified that Lawson indicated that

approximately two ounces of drugs were in the car. The Riverside police obtained a

search warrant for the car, and the vehicle was towed from Sandy’s to the Riverside Police

Department.

{¶ 60} On June 26, 2019, Detective Sewert conducted the search of the Nissan

Altima. He indicated that the vehicle was locked and had secured tape on all seams of

the vehicle, including the trunk and front and rear doors. During the search, Sewert

located a firearm with a loaded magazine in the driver’s door, another firearm with a

loaded magazine and a round in the chamber in the trunk, a lunch pail with suspected

drugs and a digital scale behind the passenger seat, and a blow torch lighter on the front

passenger seat. Sewert clarified that the lunch pail contained three separate baggies of

suspected drugs.

{¶ 61} Sewert stated that he packaged the evidence, secured it in the property

room of the police department, and made an inventory of the items removed from the

vehicle. He gave the firearms to the property room custodian, who is certified with

firearms, to test the firearms for operability; the weapons were then secured in the

firearms box.

{¶ 62} Sewert testified that the presence of a digital scale in close proximity to

drugs is indicative of “selling of narcotics to get proper measurements and weights of

5 Sewert testified that he had since left the Riverside Police Department and was a public safety officer for the city of Oakwood at the time of trial. -21-

what’s being distributed.” He indicated that the blow torch lighter can be used as a heat

source for inhaling narcotics.

{¶ 63} Daniel Brodnick, a former police officer and then property room manager at

the Riverside police station, testified about the procedures used to submit evidence to the

property room and the procedures to track the submitted evidence, including assigning

the evidence a specific case number and logging it with a software program. For each

item of evidence, the software included a description and quantity. Brodnick identified

the evidence submitted to the Riverside property room in this case, which included a .45

caliber Ruger pistol, a .40 caliber Ruger pistol, three baggies containing suspected drugs,

a blow torch lighter, a lunch pail, and .40 and .45 caliber cartridges.

{¶ 64} Brodnick testified that he was a firearm instructor at the Riverside Police

Department, and he test-fired the two Ruger pistols collected in this case at Detective

Sewert’s request. Brodnick stated that both weapons operated as should have; there

were no malfunction problems or corrosion or other issues that would interfere with the

functioning of the firearms. He returned the guns to Detective Sewert to seal and initial

and then submit into evidence. The bullet casings from the testing of the weapons were

also submitted to the property room as evidence.

{¶ 65} On July 2, 2019, Brodnick transported the drugs and guns to BCI for

analysis. After testing by BCI, Brodnick retrieved the evidence from BCI and logged it

back into the Riverside property room. The guns and drugs later were released to

Detective Kelly Edwards of the Greene County Sheriff’s Office.

{¶ 66} Pamela Farley, a forensic scientist in drug chemistry at BCI, testified how

evidence is received and tracked at BCI. Farley stated that she tested three baggies -22-

with unknown substances, which were submitted to BCI by Brodnick on July 2, 2019.

The substance in the first baggie was 68.05 grams, plus or minus 0.04 grams, of a powder

containing heroin and fentanyl. The second baggie contained 5.46 grams, plus or minus

0.04 grams, of a white powdery solid material containing Tramadol, heroin, and fentanyl.

The third baggie contained 3.65 grams, plus or minus 0.04 grams, of a clear crystalline

material found to contain methamphetamine. The evidence was returned to the

Riverside Police Department.

{¶ 67} Farley testified that heroin is a Schedule I drug, fentanyl and

methamphetamine are Schedule II drugs, and Tramadol is a Schedule IV drug. Farley

stated that the bulk amount for methamphetamine is three grams.

{¶ 68} Detective Kelly Edwards testified that she fills in for the property room

manager at the Greene County Sheriff’s Office when the property room manager is on

vacation. Edward testified that on September 3, 2019, she received evidence from

Brodnick, placed the evidence in an evidence bag, sealed the bag, and initialed it.

Edwards then put the evidence in a property room locker, logged it, and generated a

report. The parties stipulated to the chain of custody of that evidence after it was

submitted to the sheriff’s office.

{¶ 69} Captain Sean Magoteaux of the Greene County Sheriff’s Office, who has

experience in drug investigations, testified that the drug trade is very dangerous, and

handguns frequently are found during the course of drug investigations. He stated that

people carry guns for various reasons, including for self-defense or to rob others of their

money and guns. Captain Magoteaux discussed the conversion of grams to ounces and

testified that 77 grams, or 2.7161 ounces, of drugs were found in this case. Captain -23-

Magoteaux further testified that he had listened to recorded telephone conversations

between Lawson and other individuals. During the calls, which were placed after

Lawson’s arrest, Lawson made statements that he took the car because the drugs were

in there and he thought he could make some money. Magoteaux interpreted Lawson’s

statements to mean that he planned to sell the drugs that were in the car. Magoteaux

also heard a phone call between Lawson and his mother in which Lawson stated that he

had ruined his life for some drugs.

{¶ 70} Magoteaux acknowledged on cross-examination that he did not know how

the drugs got in the vehicle or who placed them in the vehicle. Magoteaux also stated

on recross-examination that a person with drugs might leave the drugs somewhere (not

on their person) to protect the drugs.

{¶ 71} Magoteaux and Sewert both addressed why the charges in this case were

brought in Greene County. They emphasized that Lawson and the vehicle were located

in Greene County, Lawson was arrested in Greene County, and the vehicle was secured

in Greene County. Sewert stated that he never saw Lawson in the Altima in Montgomery

County.

{¶ 72} After deliberations, the jury found Lawson guilty of possession of a fentanyl-

related compound, trafficking in a fentanyl-related compound, trafficking in heroin,

aggravated possession of drugs, and two counts of possession of heroin. The jury also

found Lawson guilty of the firearm specifications attached to the trafficking offenses. The

jury did not reach a verdict on improper handling of a firearm in a motor vehicle.

A. Possession of Drugs / Chain of Custody

{¶ 73} R.C. 2925.11(A), which defines drug possession, states: “No person shall -24-

knowingly obtain, possess, or use a controlled substance.” Under R.C. 2901.22(B), “[a]

person acts knowingly, regardless of purpose, when the person is aware that the person’s

conduct will probably cause a certain result or will probably be of a certain nature. A

person has knowledge of circumstances when the person is aware that such

circumstances probably exist.”

{¶ 74} “ ‘Possess’ or ‘possession’ means having control over a thing or substance,

but may not be inferred solely from mere access to the thing or substance through

ownership or occupation of the premises upon which the thing or substance is found.”

R.C. 2925.01(K). Possession of a drug may be either actual physical possession or

constructive possession. State v. Mabry, 2d Dist. Montgomery No. 21569, 2007-Ohio-

1895, ¶ 18. “A person has constructive possession of an item when he is conscious of

the presence of the object and able to exercise dominion and control over that item, even

if it is not within his immediate physical possession.” (Citations omitted.) Id. at ¶ 18.

“Establishment of ownership is not required.” State v. Rastbichler, 2d Dist. Montgomery

No. 25753,

. In determining whether an individual possessed an

item, it is necessary to consider all of the facts and circumstances surrounding the

incident. Mabry at ¶ 20.

{¶ 75} Lawson first claims that his convictions were based on insufficient evidence,

because the evidence indicated that the State failed to ensure the chain of custody of the

drugs found in the Altima. He argues that there was a period of time that the Nissan was

left unattended by law enforcement, that the officers were not certain that the vehicle was

locked, and that other individuals could have accessed the vehicle during this time.

{¶ 76} As part of the authentication and identification requirements of Evid.R. 901, -25-

the State bears the burden of establishing the chain of custody of any evidence that is

fungible and indistinguishable by nature. See, e.g., State v. Ramos, 2d Dist. Montgomery

No. 28214,

. However, the State is not required to prove “a

perfect, unbroken chain of custody.” State v. Gross,

, 2002-Ohio-

5524,

, ¶ 57, quoting State v. Keene,

,

(1998). “In order to meet its burden in establishing the chain of evidence, ‘the state

need only establish that it is reasonably certain that substitution, alteration, or tampering

did not occur.’ ” State v. Rajchel, 2d Dist. Montgomery No. 19633,

, ¶ 21,

quoting State v. Qualls, 2d Dist. Clark No. 1996-CA-68,

, *5 (June 6,

1997); State v. Maranger,

,

(2d. Dist.).

{¶ 77} Challenges to the chain of custody of an item “go to the weight to be

afforded the evidence, not to the admission of the evidence.” Gross at ¶ 57, citing State

v. Richey,

,

(1992); see also, e.g., Ramos at ¶ 25;

State v. Wiley, 2d Dist. Darke No. 2011-CA-8,

.

{¶ 78} Lawson’s argument on appeal does not challenge the admissibility of the

drugs found in the Altima, and he does not question the chain of custody of the drugs

once Officer Todd secured the vehicle at the scene. (Lawson did not object to the

admission of the drugs and guns at trial.) Rather, he claims that the State’s evidence

was insufficient to prove that the drugs found during the Riverside search also were

located in the Altima when Lawson was driving the vehicle and that he knowingly

possessed those drugs.

{¶ 79} Construing the evidence in the light most favorable to the State, we find

sufficient evidence that Lawson knowingly possessed the drugs found by Detective -26-

Sewert during the search of the Altima. Prior to the search of the vehicle, Lawson told

Detective Sewert that the Altima contained drugs and guns. Lawson stated in a

subsequent recorded telephone call that he had taken the car because the drugs were in

there and he thought he could make some money. The State thus presented evidence

that drugs were located in the vehicle prior to and while Lawson was driving the car and

that he knowingly possessed drugs.

{¶ 80} The search of the vehicle located a closed lunch pail with drugs inside. The

lunch pail was found behind the passenger seat. No other drugs were found inside the

vehicle. Sewert testified that the Altima was both locked and secured with tape when he

began his search of the vehicle. The jury could have reasonably concluded that the

drugs found by Detective Sewert were the drugs that Lawson had mentioned and that

additional drugs were not added to the vehicle.

{¶ 81} Finally, even assuming for sake of argument that the vehicle was not locked,

the evidence established that the vehicle was left unattended for a limited period of time.

Deputies Major and Davis encountered Lawson at approximately 11:30 p.m. on June 21,

2019. After a brief interaction, Lawson was arrested and transported to jail by Deputy

Major. Davis also left the scene. Although Davis was not certain, he believed the Altima

was locked. Officer Todd learned of Lawson’s arrest at 11:34 p.m. on June 21; he

learned of the location of the vehicle shortly thereafter. Todd headed to the Huber Mobile

Home Park, arriving 10 to 15 minutes later. Deputy Davis later returned to the scene

with the keys to the Altima and found Officer Todd waiting. When Davis returned, the

Altima appeared to be in the same condition as when Davis had left. The timing of events

further supported a reasonable conclusion that there was little likelihood that someone -27-

had tampered with the Nissan Altima between Deputy Davis’s initial departure from the

scene and Officer Todd’s arrival.

{¶ 82} In sum, construing the evidence in the light most favorable to the State, the

State’s evidence was sufficient to establish that all of the drugs located during Sewert’s

search of the Altima were in the Altima when Lawson was driving the vehicle and that

Lawson knowingly possessed those drugs.

B. Drug Trafficking

{¶ 83} Lawson also claims that the State failed to present sufficient evidence that

he committed drug trafficking.

{¶ 84} Lawson was convicted of trafficking in a fentanyl-related compound and

trafficking in heroin, both in violation of R.C. 2925.03(A)(2). That provision reads:

(A) No person shall knowingly do any of the following:

***

(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or

distribute a controlled substance or a controlled substance analog, when

the offender knows or has reasonable cause to believe that the controlled

substance or a controlled substance analog is intended for sale or resale by

the offender or another person.

{¶ 85} Lawson argues that the only evidence to support the drug trafficking

convictions was the testimony of Captain Magoteaux, which was “speculative and

objectionable.” Lawson claims that there was no evidence of “actual proof of trafficking”

or that he knowingly transported the drugs for purposes of trafficking.

{¶ 86} At the outset, in reviewing challenges based on the sufficiency and/or -28-

manifest weight of the evidence, we are required to consider all of the evidence admitted

at trial, regardless of whether it was admitted erroneously. State v. Brewer,

,

,

; State v. Rosales, 2d Dist. Montgomery No.

27117,

, citing State v. Johnson,

,

,

¶ 95 (2d Dist.). Whether defense counsel should have objected to any portion of Captain

Magoteaux’s testimony is immaterial to Lawson’s sufficiency argument.

{¶ 87} The State’s evidence established that three baggies of drugs were found in

a closed lunch pail in the Nissan Altima. Those baggies consisted of (plus or minus 0.04

grams): 68.05 grams of a powder containing heroin and fentanyl; 5.46 grams of a white

powdery solid material containing Tramadol, heroin, and fentanyl; and 3.65 grams of a

clear crystalline material found to contain methamphetamine. The bulk amount of

methamphetamine is three grams. A digital scale was found with the drugs. Detective

Sewert testified that the presence of a digital scale in close proximity to drugs is indicative

that the drugs are intended to be weighed and divided for sale.

{¶ 88} In addition, Captain Magoteaux testified that Lawson admitted in a phone

conversation that he had taken the Altima because it contained drugs and he thought he

could make money. Lawson’s statement reasonably indicated that he knowingly

transported the drugs in the car with the intention of selling them. Construing the

evidence in the light most favorable to the State, the State presented sufficient evidence

that Lawson had engaged in drug trafficking.

{¶ 89} Lawson’s third assignment of error is overruled.

III. Ineffective Assistance of Counsel

{¶ 90} In his second assignment of error, Lawson claims that he was denied the -29-

effective assistance of counsel. Lawson asserts (1) that the circumstances were such

that no experienced attorney could have provided effective assistance and (2) that

viewing defense counsel’s specific conduct, counsel acted deficiently in several respects,

to Lawson’s prejudice.

A. Presumption of Prejudice

{¶ 91} We begin with Lawson’s assertion, emphasized in his reply brief, that the

short time period between defense counsel’s formal appointment on February 5 and trial

on February 18 was presumptively prejudicial and resulted in the denial of his Sixth

Amendment right to counsel.

{¶ 92} The United States Supreme Court has described the essence of the right to

the effective assistance of counsel as “the right of the accused to require the prosecution’s

case to survive the crucible of meaningful adversarial testing.” United States v. Cronic,

,

,

(1984). The Court continued: “When

a true adversarial criminal trial has been conducted — even if defense counsel may have

made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has

occurred. But if the process loses its character as a confrontation between adversaries,

the constitutional guarantee is violated.” (Footnotes omitted.)

.

{¶ 93} The defendant generally bears the burden to establish that he or she was

prejudiced by counsel’s conduct.

Nonetheless, Cronic recognized that some circumstances are so

likely to prejudice the defendant that no showing of prejudice is necessary.

These include “the complete denial of counsel * * * at a critical stage of [the]

trial” and the complete failure of counsel “to subject the prosecution’s case -30-

to meaningful adversarial testing.” “Ineffectiveness is also presumed when

counsel ‘actively represented conflicting interests.’ ” Also included are

such extreme cases as Powell v. Alabama (1932),

,

,

, where defense counsel was appointed only a few minutes

before the trial commenced.

“Apart from circumstances of that magnitude, however, there is

generally no basis for finding a Sixth Amendment violation unless the

accused can show how specific errors of counsel undermined the reliability

of the finding of guilt.”

(Citations omitted.) State v. Sanders,

,

(2001),

quoting Cronic. Only when the surrounding circumstances make it “so unlikely that any

lawyer could provide effective assistance” is prejudice “presumed without inquiry into

actual performance at trial.”

.

{¶ 94} In Cronic, the defendant faced charges of mail fraud involving the transfer

of over $9,400,000 in checks between banks in two states over a 4-month period. After

retained counsel withdrew shortly before trial, the trial court appointed a young real estate

lawyer with no prior jury trial experience, but allowed him only 25 days for pretrial

preparation. In contrast, the government took over four and one-half years to investigate

the case and had reviewed thousands of documents during that investigation; the

defendant’s two co-defendants had agreed to testify against him. Using five criteria6 and

6 The criteria used by the Tenth Circuit were (1) the time afforded for investigation and preparation; (2) defense counsel’s experience; (3) the gravity of the charge; (4) the complexity of possible defenses; and (5) the accessibility of witnesses to counsel. United States v. Cronic,

(10th Cir. 1982). -31-

without considering defense counsel’s actual performance, the court of appeals reversed

Cronic’s conviction, concluding Cronic’s constitutional right to the effective assistance of

counsel had been violated.

{¶ 95} The United States Supreme Court reversed the appellate court. The Court

stated that “[t]he five factors listed in the Court of Appeals’ opinion are relevant to an

evaluation of a lawyer’s effectiveness in a particular case,” but the factors did not,

separately or in combination, support the conclusion that competent counsel was unable

to provide Cronic effective assistance. Cronic at 663. Upon reviewing the factors, the

court held that Cronic’s case was “not one in which the surrounding circumstances make

it unlikely that the defendant could have received the effective assistance of counsel.”

Id.

{¶ 96} Lawson relies on the dissent in State v. Robinson, 2d Dist. Clark No. 2013-

CA-69,

. In Robinson, defense counsel (a public defender) sought to

withdraw because a witness disclosed by the State was also represented by the Public

Defender’s Office. The court held the motion in abeyance and continued the trial date to

July 15. On July 11, Robinson appeared with a different attorney and waived his right to

a jury trial. The parties agreed that the trial court permitted the substitution of counsel

on July 11. A bench trial began on July 15, as scheduled. In preliminary remarks, the

prosecutor noted the “very brief period of time” that defense counsel had to prepare, but

stated that defense counsel had been in contact with the prosecutor when the matter was

first indicted and that the prosecutor believed that defense counsel had met with Robinson

several times at the jail. Defense counsel affirmatively stated that he was prepared to

proceed and opposed a motion by the State for a continuance. -32-

{¶ 97} On appeal, Robinson claimed that “no attorney could have effectively

defended him” when there was so little time between counsel’s appointment and trial.

The majority opinion rejected that argument, stating: “ Although the time between

counsel’s acknowledgment as the attorney of record and the trial was very short, counsel

had previously been aware of and involved in the case to some degree, and there is no

basis to conclude that counsel was not prepared to proceed on the day of trial. Counsel

affirmatively stated that he was ready to proceed. Under these circumstances, the trial

court did not abuse its discretion in proceeding to trial.” Robinson at ¶ 37. Contrast State

v. Blair,

,

,

(2d Dist.) (“Given

the fact that defense counsel admittedly did not prepare, and then sat silently by as Blair

was convicted without any defense whatsoever, it can be presumed that appellant was

prejudiced by defense counsel’s inaction, thereby warranting a finding of ineffective

assistance of counsel.”).

{¶ 98} The dissenting opinion in Robinson first noted that defense counsel had

waived a jury trial on the day of his appointment, without the benefit of having received

and reviewed the State’s discovery. Robinson at ¶ 41 (Donovan, J., dissenting). The

dissent further concluded that “it is wholly unreasonable to suggest or conclude that even

the most talented, experienced defense attorney can prepare a first degree felony rape

trial in three days.” Id. at ¶ 42. The dissenting judge reasoned:

In my view, Robinson was denied his Sixth Amendment right to

counsel, given the inexplicable delay in change of counsel, immediate jury

waiver, and ridiculously brief period of time between appointment and trial.

While “the Constitution nowhere specifies any period which must intervene -33-

between the required appointment of counsel and trial,” the Court has

recognized that “the denial of opportunity for appointed counsel to confer,

to consult with the accused and to prepare his defense, could convert the

appointment of counsel into a sham and nothing more than a formal

compliance with the Constitution’s requirement that an accused be given

the assistance of counsel.” Avery v. Alabama,

,

,

(1940).

Robinson at ¶ 42 (Donovan, J., dissenting).

{¶ 99} Although Lawson focuses on the dissenting opinion in Robinson, this court’s

precedent was set forth in the majority opinion, and as the dissenting judge recognized,

Robinson presented “a highly fact sensitive case.” Id. at ¶ 44. Indeed, the

circumstances here are factually distinguishable and do not create a presumption of

prejudice.

{¶ 100} In this case, the assistant public defender sought to be substituted as

defense counsel on January 29, 2020, three weeks before the trial date. On February

4, 2020, prior to the trial court’s action on that motion, the assistant public defender signed

a request for discovery and acknowledgement of receipt of discovery from the State.

The State served the assistant public defendant with its motion to sever Case No. 2019-

CR-508 from Case No. 2019-CR-555 (this case). On February 5, the assistant public

defender received plea offers from the State. The court filed its entry approving the

substitution of counsel on the same day (February 5, 2020).

{¶ 101} At the February 7 hearing, new defense counsel informed the court that

he had spoken with Lawson at the jail and conveyed the State’s plea offers. Lawson -34-

also stated that he had spoken with his attorney that morning about the pros and cons of

those offers. Defense counsel acknowledged at the hearing that he had received

discovery from the State; counsel was having difficulty obtaining purported exculpatory

evidence, which the State did not have, from former defense counsel. Counsel told the

court that he would try to obtain that evidence from alternate sources. (Those efforts

were unsuccessful.)

{¶ 102} Lawson informed the trial court on February 7 that he wanted to proceed

with the February 18 trial date. When the trial court asked defense counsel if he would

be prepared on February 18, counsel responded that he “can be ready,” although not “to

the standard that I would hold myself to be ready for trial in this short amount of time.”

Counsel noted the extensive discovery he needed to review. Counsel told the court that

he would “do everything I can – basically there’s only so many hours in the day is what

I’m saying * * *. As you know, trials of this, you type of crime of this nature, we normally

have a lot more advance than two weeks.”

{¶ 103} Lawson went to trial on seven counts, including first-degree felony

offenses, but all of the offenses stemmed from the presence of drugs and guns in the

vehicle that Lawson had been driving. Although defense counsel apparently had

substantial discovery to review, the factual circumstances were not complex. While

defense counsel would have liked additional time to prepare for trial, he indicated that he

would work hard to be ready and “can be ready.” The record shows that defense counsel

had minimal communication with Lawson between his appointment and trial, but there

was nothing in the circumstances of counsel’s appointment that made the lack of

communication inevitable. Although not ideal, the circumstances did not make it unlikely -35-

that Lawson could have received the effective assistance of counsel. In short, the

circumstances in this case did not rise to the magnitude of creating a presumption of

prejudice.

B. Specific Allegations of Deficient Performance

{¶ 104} Turning to Lawson’s specific allegations of deficient performance, Lawson

claims that his trial counsel rendered ineffective assistance in the following respects:

(1) counsel did not review discovery with Lawson, (2) counsel did not obtain potentially

exculpatory videos that were in the possession of third parties, (3) counsel did not know

what charges would go forward on the day of trial, (4) counsel failed to communicate

adequately with Lawson, (5) counsel did not adequately prepare for trial, (6) counsel failed

to file pretrial motions to suppress and/or in limine, (7) counsel failed to object to testimony

about other investigations, (8) counsel failed to object to references that Lawson was in

possession of “ounces” of drugs, rather than “grams” of drugs, (9) counsel misstated the

conversion of ounces to grams during cross-examination, and (10) counsel failed to object

to testimony that a witness (Captain Magoteaux) recognized Lawson’s voice in jail phone

calls.

{¶ 105} To establish ineffective assistance of counsel, a defendant must

demonstrate both that trial counsel's conduct fell below an objective standard of

reasonableness and that the errors were serious enough to create a reasonable

probability that, but for the errors, the outcome of the case would have been different.

See Strickland v. Washington,

,

,

(1984);

State v. Bradley,

,

(1989). Hindsight is not

permitted to distort the assessment of what was reasonable in light of counsel’s -36-

perspective at the time, and a debatable decision concerning trial strategy cannot form

the basis of a finding of ineffective assistance of counsel. State v. Cook,

,

(1992); State v. Fields,

,

,

¶ 38 (2d Dist.). Trial counsel is also entitled to a strong presumption that his or her

conduct falls within the wide range of reasonable assistance.

.

{¶ 106} A trial attorney’s failure to communicate with his or her client may rise to

the level of deficient performance, depending on the circumstances. The record reflects

that defense counsel spoke with Lawson about the State’s plea offers prior to the

February 7 hearing and that he spoke with Lawson on the morning of February 18, prior

to the beginning of the on-the-record pretrial discussion and trial. The full extent of those

communications is not reflected in the record. As we have previously said, “a claim of

lack of communication between a defendant and his trial counsel is not one that can be

borne out by the record. It relies upon information necessarily outside the record, and is

therefore not an issue we can review on direct appeal.” State v. Watters,

,

, ¶ 27 (2d Dist.). See also State v. Olds, 2d Dist. Miami No. 2019-CA-9,

. Because the content of Lawson’s and defense counsel’s

communications are not fully detailed in the record, Lawson’s claim regarding lack of

communication is more properly raised in a petition for post-conviction relief.

{¶ 107} As for the alleged failure to review discovery with Lawson, Lawson stated

prior to trial on February 18 that, “[a]t no point has [defense counsel] shown me the DVDs

against me, nothing – none of the evidence against me.” Counsel did not respond to this

comment. Between September 2019 and January 2020, however, Lawson was

represented by different counsel, who had received the State’s discovery on October 11, -37-

2019. At times, Lawson lamented that he did not proceed to trial with his former counsel

on November 12, 2019, the original trial date. Although Lawson states that his substitute

defense counsel did not review the State’s discovery with him, the record does not reflect

whether Lawson previously reviewed it with his former counsel, and Lawson does not

articulate how he was prejudiced by defense counsel’s alleged conduct. Accordingly, on

this record, we cannot determine whether substitute defense counsel’s alleged failure to

provide Lawson with the State’s discovery and to review it with him was prejudicial.

{¶ 108} Next, Lawson claims that counsel rendered ineffective assistance by

failing to obtain exculpatory videos. On February 7, 2020, defense counsel told the trial

court that he was having trouble getting potentially exculpatory videos from original

defense counsel and would try to obtain the videos from other individuals, including

another lawyer. On February 18, the trial date, defense counsel informed the court that

he had tried to obtain the potentially exculpatory videos from two sources, but one (the

lawyer) did not respond and the other denied that he had a copy of the video. Those

videos, assuming they exist, are not part of the record on appeal. Without the videos,

we cannot determine whether the videos would have affected the outcome of the trial and

thus whether Lawson was prejudiced by defense counsel’s failure to obtain them and use

them at trial. Again, this claim cannot be reviewed on direct appeal.

{¶ 109} Lawson asserts that his counsel was deficient because he did not know

what charges would go forward on the day of trial. That assertion oversimplifies the

record. On February 18, 2020, Lawson appeared for trial on the eight charges indicted

in this case. The same day, defense counsel filed a motion to sever Count Eight, escape.

The trial court, Lawson, defense counsel, and the prosecutor had a lengthy discussion -38-

about whether the escape count should be severed and which charges of the indictment,

if any, should proceed to trial that day. Prior to the beginning of voir dire, Lawson had

elected to proceed to trial, the trial court severed the escape charge, and the court ruled

that trial would proceed on the drug and gun charges (Counts One through Seven).

Although there was some discussion about which charges would proceed to trial on

February 18, there is no indication that defense counsel was confused about the charges

and acted deficiently.

{¶ 110} Lawson further states that defense counsel should have filed a motion to

suppress evidence prior to trial. During the pretrial discussion on February 18, Lawson

argued that the drugs were not lawfully found as part of the execution of a search warrant

on an arson investigation out of Montgomery County. In response, the prosecutor

stated, “Your Honor, that would have been an appropriate Motion to Suppress. None

has been made. They’ve waived that issue at this point.” Defense counsel stated, “* * *

[T]hat was one of the Motions to Suppress we were talking about.”

{¶ 111} “The failure to file a motion to suppress constitutes ineffective assistance

of counsel only when the record establishes that the motion would have been successful

if made.” State v. Wallace-Lee, 2d Dist. Greene No. 2019-CA-19,

.

The State did not offer the search warrant as an exhibit at trial, and it is not in the record.

Consequently, we cannot determine, on this record, whether a motion to suppress the

guns and drugs located based on the search warrant would have been successful.

Moreover, upon consideration of the evidence presented at trial, we find no basis to

conclude that a motion to suppress the guns and drugs otherwise would have been

successful. -39-

{¶ 112} Lawson further claims that defense counsel acted deficiently by failing to

file a motion in limine regarding other pending criminal investigations in which Lawson

was a suspect. (A motion in limine is a pretrial motion that asks a trial court to limit or

exclude the use of evidence which the movant believes to be improper. See Feight v.

Brooks, 2d Dist. Montgomery No. 28684,

.) Lawson also asserts

that counsel should have objected to testimony about those investigations at trial.

{¶ 113} The record does not support a conclusion that Lawson was prejudiced by

the absence of a motion in limine or that counsel acted deficiently at trial with respect to

evidence of other criminal investigations. The State’s references to other criminal

investigations involving Lawson were kept to the bare essentials, namely that deputies

located Lawson as part of an unrelated investigation and that the Riverside police

department wanted to have Lawson’s vehicle towed as part of an investigation. The

State did not attempt to elicit testimony about the criminal offenses involved in those

investigations or about the course of those other investigations.

{¶ 114} The only reference to the nature of the Riverside investigation occurred

during Todd’s testimony. At the beginning of Todd’s testimony, the State asked him why

he had come into contact with Deputies Davis and Major. Todd began to answer, “There

was an arson that had occurred at --.” The prosecutor cut off Todd’s answer, saying,

“Well, I’m going to stop you there.” Defense counsel also started to object, stating,

“Objection. Okay. I’m sorry. You got it.” The prosecutor then asked Todd if he had

to respond to the Huber Mobile Home Park, telling him to answer “without saying

specifically why you were responding.” (Trial Tr. at 217.) No other references were

made by the State’s witnesses about the specifics of the unrelated Greene County or -40-

Riverside investigations.

{¶ 115} During redirect examination of Todd, the prosecutor asked him if he had

received any information that the vehicle Lawson was driving was stolen. Defense

counsel objected to that question, and the trial court sustained the objection. (Trial Tr.

at 236.) Upon review of the trial transcript, defense counsel did not act deficiently with

respect to evidence regarding other criminal investigations.

{¶ 116} Lawson raises that his trial counsel stated that he would not be as

prepared for trial as he normally would be. We cannot conclude, based on this statement

alone, that defense counsel was so unprepared that he failed to provide effective

assistance as contemplated by the Sixth Amendment. Counsel told the trial court on

February 7 that he would do his best to prepare for trial in the time available, and we find

nothing to suggest that defense counsel did otherwise.

{¶ 117} In addition, defense counsel developed a defense theory based on the

time that the Altima was left unattended by law enforcement officers and a discrepancy

between the amount of drugs found in the vehicle and the amount that Lawson had said

would be there. Counsel cross-examined the State’s witnesses to elicit testimony to

support that defense theory. Specifically, defense counsel elicited testimony that

Deputies Davis and Major were not certain if Lawson’s vehicle was locked when they left

the scene, that the vehicle was unattended when Officer Todd arrived, and that Officer

Todd did not know if the vehicle was locked. As for the amount of drugs involved,

Captain Magoteaux indicated that 77 grams (the approximate amount of drugs located in

the Nissan) equals 2.7161 ounces. Magoteaux acknowledged on cross-examination

that the difference between 2 ounces (or 56.7 grams), the amount Lawson said would be -41-

found in the vehicle, and 2.7 ounces (77 grams) was around 30 percent of the amount,

which could be significant. Finally, we note that the jury could not reach a verdict on

Count One and that charge was dismissed. We cannot conclude, on this record, that

counsel failed to prepare adequately for trial.

{¶ 118} Lawson further asserts that counsel rendered ineffective assistance by

failing to object to the prosecutor’s reference to ounces rather than grams and by

misstating the amount of drugs involved due to an error in converting ounces to grams.

{¶ 119} The prosecutor first mentioned “ounces” during opening statements.

Specifically, the prosecutor stated:

* * * When he [Detective Sewert] searched the car, he did, in fact,

find guns and dope. About 68 ounces of Fentanyl. That’s, yeah, pretty

much OD everybody in this courthouse and this city.

***

The State through the testimonies of Detective Sewert and Detective

Magoteaux, and our BCI scientist, Pamela Farley, are going to establish

beyond a reasonable doubt that the items that were seized were 68 grams

of Heroin and Fentanyl in one bag, 5.5 grams of Tramadol, Heroin, and

Fentanyl in a second bag, and 3.6 of [sic] grams of Methamphetamine.

***

You’re going to hear how 68 ounces is well beyond personal use.

That the only reason someone would have that is for trafficking purposes.

(Trial Tr. at 195-196.)

{¶ 120} During the State’s redirect examination of Deputy Major, the prosecutor -42-

again referenced ounces, asking, “In your experience as a law office – officer of the law,

have you ever heard of a time when someone has abandoned 68 ounces of Fentanyl in

a vehicle?” (Trial Tr. at 213.) The prosecutor asked the same question of Officer Todd

on redirect examination, as well as similar questions regarding “5.5 ounces of a Heroin,

Fentanyl, Tramadol mix” and “3.65 grams of crystal meth.” (Id. at 237-238.)

{¶ 121} Defense counsel did not object to any of these references to ounces, and

the State asserts that defense counsel’s failure to object to these apparent misstatements

was a matter of trial strategy. The State’s opening statement was not evidence, and the

prosecutor’s use of both ounces and grams may have put the jury on notice that one of

those units of measurement was incorrect. Defense counsel could have reasonably

determined that the amount of drugs found in the vehicle would be clarified by way of

testimony and an objection was unnecessary.

{¶ 122} The prosecutor again misspoke, using ounces instead of grams, during

redirect examination. Again, defense counsel could have reasonably concluded that the

jury was aware that the prosecutor had mistakenly used “ounces.” Defense counsel

addressed the matter directly in his cross-examination of Farley, the forensic scientist at

BCI, when he asked: “Okay. And the second question is, there’s been a lot of units

thrown around today in terms of measurement. Everything that you’ve worked in,

everything was in grams; correct?” Farley responded, “Correct.” Defense counsel’s

approach was reasonable.

{¶ 123} Lawson claims that defense counsel rendered ineffective assistance in his

questioning regarding the conversion of ounces to grams. During defense counsel’s

cross-examination of Detective Sewert, the following exchange occurred: -43-

A: Yeah. He [Lawson], he stated two – I think he stated two ounces is what

we would find.

Q: That’s correct. Now, you mentioned that you work in drugs pretty – you

have some experience working with drugs, correct?

A: Uh-huh, yes.

Q: And, in fact, you testified the importance of the scale?

A: Yes.

Q: So you’re familiar with weights?

A: Yeah.

Q: How many ounces are in a gram?

A: I mean, I’m not a mathematician. I don’t know.

Q: Well, just simple conversions?

A: I don’t know.

Q: It’s around 0.035; correct?

A: I don’t know.

Q: It’s much smaller. In fact, on the street they generally use, what, they

would generally say there’s 28 times difference; correct?

A: I don’t know

Q: Okay. And well, let’s, let’s, let’s assume that, that I’m – that I am correct;

okay? So we have approximately 28 times difference. We have

approximately 77 grams by the time we add up all three drugs that are of

interest here. So if we were to do that, we come out with over essentially

2,100 ounces. He referred to two ounces, 0.07, so we’re talking about that -44-

being a mistake of over 3,000 times the difference in what that – the

impression that that would leave; is that correct.

A: If you math is right, yes.

Q: Okay. And I think you would agree to me, that we need to be candid

with the Jury about the amounts, correct, involved?

A: I – yeah, he, he stated two. What was recovered was the amount.

***

Q: * * * [In conducting the search of the vehicle,] you knew about this

extremely small amount that he had told you about, the, the approximate

0.07 grams; correct?

A: I knew of the two ounces that he said, yes.

***

Q: You have this very, very small amount that you were just going, that you

were going to rely on just your vision for. So, so I guess what I’m getting

at, you don’t know whether you might have missed somewhere else in the

vehicle just that small 0.07 and that might have been the actual amount that

he knew about as opposed to the 70 some odd grams?

A: A thorough search of the vehicle was done. I did not find any other, any

other narcotics in the vehicle other than what was in the lunch pail.

(Trial Tr. at 395-399.)

{¶ 124} The State responded to defense counsel’s questioning of Sewert

regarding the conversion of ounces to grams through the testimony of Captain

Magoteaux. The State asked: -45-

Q: And you heard [defense counsel] give an explanation of the conversion

of grams to ounces?

A: Correct.

Q: Do you believe that was a correct conversion?

A: No.

(Trial Tr. at 407.) The prosecutor showed Magoteaux a document that gave an equation

for converting grams to ounces (Exhibit 22). Magoteaux testified that one gram equaled

0.353 ounces and that 77 grams, the approximate amount of drugs found in Lawson’s

vehicle, equaled 2.7161 ounces. The State asked Magoteaux if Lawson’s statement that

Detective Sewert would find about two ounces of drugs was a correct statement.

Magoteaux answered that it was.

{¶ 125} Defense counsel addressed his mistake during his cross-examination of

Magoteaux.

Q: Okay. I’ll agree, I was incorrect. I got the numbers flipped there.

A: Yes.

Q: But it still is, is somewhere around a third difference, correct, 2.7 versus two?

A: Yes.

Q: So it’s, so it’s still a pretty significant difference. It’s not like it was

particularly close?

A: I don’t know if it’s a significant difference, but it, yes, there was a

difference.

Q: Yeah. And about 30 percent or so?

A: Yes. -46-

Q: Okay. So if you went to the bank, and they were going to give you 30

percent more money than what you had, you would take it; correct?

A: No, I wouldn’t.

Q: Huh?

A: If they were going to give me the extra money?

Q: Yeah. No strings attached.

A: Well, Yeah.

Q: Exactly. So 30 percent can be significant?

A: (Indicating.)

(Trial Tr. at 415-416.)

{¶ 126} Although defense counsel initially made a calculation error in his

conversion of ounces to grams, we cannot conclude that this error rises to the level of

ineffective assistance of counsel. Even with the correction by Captain Magoteaux,

defense counsel elicited testimony that the difference between two ounces (the amount

Lawson had said would be found in the vehicle) and 2.7 ounces (the amount that was

found) could have been a significant difference in quantity. Defense counsel thus

successfully elicited testimony to support an argument that Lawson did not knowingly

possess all of the drugs found in the car.

{¶ 127} Finally, Lawson claims that defense counsel acted deficiently by failing to

object to testimony by Captain Magoteaux that he recognized Lawson’s voice in jail phone

calls.7 Lawson emphasizes that the recordings of the phone calls were not offered into

7 At trial, the prosecutor asked Magoteaux about “recorded phone calls”; there was no testimony that these calls were made from the jail. The parties appear to agree, however, that these were recorded jail telephone calls. -47-

evidence, there was no corroboration that the calls occurred, and there was no foundation

laid as to how Magoteaux would have recognized Lawson’s voice. Lawson also states

that there was no evidence that defense counsel even knew about the calls, and Lawson

states that the record does not show whether he (Lawson) had an opportunity to hear

them.

{¶ 128} At the outset, we cannot conclude, on this record, that counsel’s pretrial

conduct with respect to the recordings was ineffective. The record indicates that the

State’s provided discovery to both Lawson’s original counsel and to his substitute defense

counsel. In February 2020, defense counsel indicated that he had several discs he

needed to review. The record does not affirmatively show that defense counsel received

and reviewed recordings of jail phone calls, but it also does not affirmatively show that he

did not. Accordingly, any alleged ineffectiveness in this regard is more properly raised

in a petition for post-conviction relief.

{¶ 129} Defense counsel’s decision not to object to Magoteaux’s testimony about

the phone calls (apparently from jail) was a matter of trial strategy left to counsel’s

discretion. “Debatable trial tactics generally do not constitute ineffective assistance of

counsel.” State v. Elmore,

,

,

.

It is unknown from this record whether Magoteaux would have been able to provide

additional information about how he recognized Lawson’s voice and whether that

information would have been detrimental or beneficial to Lawson. Moreover, because

the recordings themselves are not in the record, we have no basis to evaluate defense

counsel’s decision in light of the content of those recordings.

{¶ 130} Lawson’s second assignment of error is overruled. -48-

IV. Conclusion

{¶ 131} The trial court’s judgment will be affirmed.8

.............

TUCKER, P.J. and HALL, J., concur.

Copies sent to:

Marcy A. Vonderwell Jay A. Adams Hon. Stephen Wolaver

8 As stated in footnote one, above, Lawson’s motion for judicial notice of his prior defense counsel’s suspension from the practice of law is sustained.