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State v. Deckard

Court of Appeals of Ohio, Fourth District, Gallia

November 1, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
DUSTIN A. DECKARD, Defendant-Appellant.

          Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.

          Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher, Gallia County Assistant Prosecuting Attorney, Gallipolis, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          MATTHEW W. MCFARLAND, JUDGE

         {¶1} Dustin A. Deckard appeals the judgment entry filed August 31, 2016 in the Gallia County Court of Common Pleas. Deckard was convicted by a jury on three counts: (1) illegal conveyance of drugs onto grounds of a detention facility, R.C. 2921.36(A)(2); (2) possession of drugs (heroin), R.C. 2925.11(A); and (3) possession of drugs (cocaine), R.C. 2925.11(A). On appeal, Appellant asserts three assignments of error. He first argues the trial court deprived him of his constitutional right to confrontation by admitting into evidence a chemical laboratory report without also requiring the chemist who prepared the report to be available for cross-examination. He next argues the trial court erred by failing to merge his convictions for illegal conveyance into a detention facility with the convictions for possession of drugs. He also argues there was insufficient evidence to convict him of illegal conveyance of drugs. However, we find no merit to Appellant's arguments. Accordingly, we overrule his assignments of error and affirm the judgment of the trial court.

         FACTUAL AND PROCEDURAL BACKGROUND

         {¶2} On February 29, 2016, Dustin A. Deckard was incarcerated at the Gallia County Jail. According to the trial testimony, he was booked in around 9:00 a.m. that day. During the evening hours, Deputy Cain noticed an odor similar to burning plastic. Appellant was in a cell block with approximately 8 to 10 other inmates.

         {¶3} During a search Deputy Cain discovered suspected drugs on Appellant's person. The substances were submitted to the Ohio Bureau of Criminal Identification and Investigation (BCI) for analysis. A written report obtained from BCI indicated the substances submitted contained heroin and cocaine.

         {¶4} On June 16, 2016, Appellant was indicted on three counts: (1) illegal conveyance of drugs onto grounds of a detention facility, in violation of R.C. 2921.36; (2) possession of drugs (heroin), in violation of R.C. 2925.11; and (3) possession of drugs (cocaine), also in violation of R.C. 2925.11(A). The first count for illegal conveyance is a felony of the third degree. The possession counts are both fifth degree felonies. On June 23, 2016, Appellant entered not guilty pleas to all counts. Appellant was appointed legal counsel. He was scheduled for a status conference in July 2016, and for jury trial on August 29, 2016.

         {¶5} On July 8, 2016, Appellant's counsel was granted leave to withdraw. The court appointed another attorney to represent him. On August 24, 2016, the State filed a motion to continue the jury trial on the basis of the unavailability of a witness: the chemist from the Ohio Bureau of Criminal Investigation (BCI). The trial court denied the State's request.

         {¶6} On August 29, 2016, prior to the beginning of trial, Appellant's counsel filed a motion in limine seeking exclusion of the BCI laboratory report which identified the substances found on Appellant's person as heroin and cocaine. The trial court denied this motion. During trial, the court allowed the BCI report to be admitted into evidence. At the conclusion of trial, the jury returned guilty verdicts on all three counts.

         {¶7} On August 31, 2016, the trial court conducted Appellant's sentencing hearing. After hearing arguments from the parties regarding the issue of merger of allied offenses, the trial court did not merge the counts and sentenced Appellant to a maximum and consecutive sentence of five years.

         {¶8} This timely appeal followed. Additional facts will be set forth, where pertinent.

         ASSIGNMENTS OF ERROR

         "I. THE TRIAL COURT DEPRIVED DECKARD OF HIS CONSTITUTIONAL RIGHT TO CONFRONTATION BY ADMITTING INTO EVIDENCE A LABORATORY REPORT UNDER NOTICE-AND-DEMAND STATUTE (R.C.2925.51)FOR THE PROSECUTION OF A CHARGE NOT WITHIN CHAPTERS 2925 OR 3719 OF THE REVISED CODE.

         II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DECLINING TO MERGE CONVICTION FOR ILLEGAL CONVEYANCE OF DRUGS ONTO GROUNDS OF DETENTION FACILITY WITH CONVICTIONS FOR POSSESSION OF DRUGS.

         III. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR ILLEGAL CONVEYANCE OF DRUGS ONTO GROUNDS OF DETENTION FACILITY."

         LEGAL ANALYSIS

         ASSIGNMENT OF ERROR ONE

         {¶9} Under the first assignment of error, Appellant argues that the trial court committed reversible error by depriving him of his constitutional right to confrontation. At trial, the trial court admitted Exhibit 7, a BCI laboratory report relevant to Appellant's case, and Deputy Argabright's testimony regarding the report. The chemist who prepared the report for BCI did not testify.

         STANDARD OF REVIEW

         {¶10} The admission of evidence is within the sound discretion of the trial court. State v. Jackson, 4th Dist. Washington No. 12CA16, 2013-Ohio-2628, ¶ 16; State v. Dixon, 4th Dist. Scioto No. 09CA3312, 2010-Ohio-5032, ¶ 33, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), at paragraph two of the syllabus. Because a trial court's decision on a motion in limine is a ruling to admit or exclude evidence, the standard of review on appeal is whether the trial court committed an abuse of discretion that amounted to prejudicial error. State v. Fowler, 10th Dist. Franklin No. 15AP1111, 2017-Ohio-438, ¶14; Gordon v. Ohio State Univ., 10th Dist. Franklin No. 10AP-1058, 2011-Ohio-5057, at ¶ 82. An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the court that is unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriffs Dept. v. State Emp. Relations Bd, 63 Ohio St.3d 498, 506, 589 N.E.2d 24 (1992); Wilmington Steel Products, Inc. V. Cleveland Elec. Illuminating Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe 1, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991), citing Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

         LEGAL ANALYSIS

         {¶11} The transcript of Appellant's trial reveals that on the morning of trial, Appellant filed a motion in limine to exclude the laboratory report on two grounds: (1) that it was inadmissible hearsay under Evid.R. 802; and (2) that it was inadmissible as violative of the Confrontation Clause of the United States and Ohio Constitutions.

         {¶12} Appellant's trial counsel argued the State had provided the lab report in discovery to Appellant's prior counsel.[1] Trial counsel then filed a motion under R.C. 2925.51(C), requesting that the BCI analyst appear at trial. However, due to the change in attorneys, and through no fault of Appellant or his trial counsel, the request was untimely.

         {¶13} Trial counsel argued that pursuant to the statute, the trial court had the discretion to extend the time for filing in the interest of justice. In response, the State argued that it had intended to have the BCI analyst appear at trial but she was pregnant and unable to travel. The State maintained, however, that since Appellant had not made his request within the 7-day window, and the matter was in the court's discretion, that the motion in limine should be overruled. The trial court subsequently overruled Appellant's motion in limine, recognizing that trial counsel had appeared late in the matter through no fault of his own but, nevertheless, finding the report to be admissible as a business record.

         {¶14} We recently discussed a Confrontation Clause argument in State v. Smith, 70 N.E.3d 150, 2016-Ohio-5062 (4th Dist). "The Sixth Amendment's Confrontation Clause provides, 'In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.' " Smith, supra, at 75, quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 34. The Confrontation Clause of the Sixth Amendment is made applicable to the states by the Fourteenth Amendment. State v. Issa, 93 Ohio St.3d 49, 752 N.E.2d 904, fn. 4 (2001). Consequently, this constitutional right applies to both federal and state prosecutions, but the right of confrontation in Article I, Section 10 of the Ohio Constitution provides no greater right of confrontation than the Sixth Amendment. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12.

         {¶15} "The United States Supreme Court has interpreted [the Sixth Amendment right to confrontation] to mean that admission of an out-of- court statement of a witness who does not appear at trial is prohibited by the Confrontation Clause if the statement is testimonial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness." Smith, supra, at 76, quoting Maxwell at ¶ 34, 9 N.E.3d 930, citing Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354 (2004). Crawford did not define the word "testimonial" but stated generally that the core class of statements implicated by the Confrontation Clause includes statements " 'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial' " 541 U.S. at 52, 124 S.Ct. 1354, quoting the amicus brief of the National Association of Criminal Defense Lawyers.

         {¶16} In Ohio, R.C. 2925.51 permits the State to submit a BCI laboratory report as evidence in drug cases and requires the State to serve a copy of the report on the accused. R.C. 2925.51(A) and (B). State v. Judy, 4th Dist. Highland No. 08CA3013, 2008-Ohio-5551, at ¶ 12. BCI reports will serve as prima facie evidence of the identity and weight of the controlled substance unless the defendant, within seven days of receiving the State's notice of intent to submit the report, demands the testimony of the person who signed the report. R.C. 2925.51(C). State v. O'Connor, 12th Dist. Fayette No. CA2007-01-005, 2008-Ohio-2415, at ¶ 24.

         {¶17} At trial during Deputy Argabright's testimony, trial counsel approached the bench and renewed his objection to the admission of the BCI laboratory report. The trial court again overruled the objection. Deputy Argabright then identified Exhibit 7, the BCI chemist's laboratory report, and testified that the report was a true and accurate copy of the original, kept in the regular course of business activity conducted at Ohio BCI. Argabright proceeded to testify that the laboratory report listed the suspected drugs submitted to Ohio BCI as follows: Item One was found to contain .49 grams of heroin and Item Two was found to contain ...


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