Court of Appeals of Ohio, Fourth District, Gallia
Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for
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
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.
AND PROCEDURAL BACKGROUND
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.
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
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.
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
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.
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.
This timely appeal followed. Additional facts will be set
forth, where pertinent.
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.
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.
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR
ILLEGAL CONVEYANCE OF DRUGS ONTO GROUNDS OF DETENTION
OF ERROR ONE
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.
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).
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.
Appellant's trial counsel argued the State had provided
the lab report in discovery to Appellant's prior
counsel. 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
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.
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.
"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.
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.
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 ...