[Cite as State v. Liggins, 2018-Ohio-199.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     SANDUSKY COUNTY


State of Ohio                                    Court of Appeals No. S-17-009

        Appellee                                 Trial Court No. 15 CR 928

v.

Robert C. Liggins                                DECISION AND JUDGMENT

        Appellant                                Decided: January 19, 2018

                                             *****

        Mike DeWine, Ohio Attorney General, and Christopher L.
        Kinsler, Assistant Attorney General, for appellee.

        Russell V. Leffler, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a January 10, 2017 judgment of the Sandusky County

Court of Common Pleas, sentencing appellant to a total term of incarceration of eight

years following appellant’s convictions on one count of trafficking in cocaine, in

violation of R.C. 2925.03(A)(1), a felony of the first degree, and one count of trafficking
in cocaine, in violation of R.C. 2925.03(C)(4), a felony of the third degree. For the

reasons set forth below, this court affirms the judgment of the trial court.

         {¶ 2} Appellant, Robert C. Liggins, sets forth the following three assignments of

error:

               I. IT WAS A VIOLATION OF CRAWFORD V. ARIZONA AND

         THE FEDERAL AND STATE CONSTITUTIONS’ GUARANTEE OF

         THE RIGHT TO CONFRONT WITNESSES AT TRIAL TO PERMIT

         THE TAPE RECORDINGS TO BE PLAYED TO THE JURY ALONG

         WITH HEARSAY EXPLANATIONS OF OFFICERS AS TO THEIR

         CONTENTS SINCE THE INFORMANT WAS NOT AVAILABLE TO

         BE CONFRONTED EVEN THOUGH HE MAY HAVE PLANTED THE

         DRUGS IN THIS CASE OR BOUGHT THEM FROM ANOTHER

         UNIDENTIFIED MEMBER OF THE LIGGINS FAMILY.

               II. TRIAL COUNSEL WAS INCOMPETENT UNDER

         STRICKLAND V. WASHINGTON BY FAILING TO OBJECT TO THE

         TESTIMONY OF OFFICERS EXPLICATIONS OF DRUG TERMS

         WITHOUT THEIR BEING QUALIFIED AS EXPERTS OR

         FOUNDATION LAID, NOR TO OBJECT TO THE FAILURE TO

         FOLLOW THE CRIMINAL RULE 16 (K) REQUIREMENT FOR AN

         EXPERT REPORT TO BE TIMELY MADE, NOR TO ADEQUATELY




2.
       ATTACK THE EYEWITNESS IDENTIFICATIONS BOTH VISUALLY

       AND BY AUDIO SINCE THE INFORMANT WAS ABSENT.

               III. THE TRIAL COURT IMPERMISSIBLY AND

       VINDICTIVELY SENTENCED THE DEFENDANT FOR EXERCISING

       HIS RIGHT TO GO TO TRIAL, INCREASING THE PLEA-OFFERED

       SENTENCE THE COURT SAID IT WOULD FOLLOW FROM 5

       YEARS TO 8 YEARS.

       {¶ 3} The following undisputed facts are relevant to this appeal. This case stems

from undercover drug trafficking investigation by multiple agencies into suspected

cocaine sales being conducted by appellant in Sandusky County. Appellant was a known

figure to the law enforcement agencies and had been previously convicted of cocaine

trafficking.

       {¶ 4} During the course of the investigation, the agents utilized a known

confidential informant (“CI”) to contact appellant and arrange multiple purchases of

cocaine from appellant. The calls between the confidential informant and appellant were

recorded by the investigating officers.

       {¶ 5} On January 19, 2012, a recorded phone conversation between the CI and

appellant reflected that appellant had agreed to sell an ounce of cocaine to the CI for an

agreed-upon price of $1,300, at a designated time in the Potter Village Mall parking lot in

Fremont. The CI was equipped with a digital recording device prior to embarking to




3.
conduct the transaction. In addition, multiple investigating agents maintained

surveillance of both the CI and the purchase location during the relevant time frame.

          {¶ 6} The recordings taken during the investigation, as well as the direct testimony

from the agents, reflected that appellant was observed and positively identified while

pulling into the parking lot in his motor vehicle at the designated time and location. The

CI was next observed getting into appellant’s vehicle, and the subject sale of cocaine

from appellant to the CI was completed and recorded. Following the transaction, the

recordings memorializing the offense and 16.8 grams of cocaine sold by appellant were

retrieved from the CI.

          {¶ 7} On January 24, 2012, a recorded phone conversation between the CI and

appellant reflected that appellant next agreed to sell two ounces of cocaine to the CI for

an agreed-upon price of $2,500 at a designated time in the Potter Village Mall parking

lot. Again, the CI was equipped with a digital recording device prior to the transaction.

Again, agents maintained surveillance of the CI and the purchase location during the

relevant time frame.

          {¶ 8} The recordings, as well as direct testimony from the agents, again reflected

that appellant was observed and positively identified upon arrival to conduct the drug

sale. The agents observed the CI entering appellant’s vehicle, and the second subject sale

of cocaine from appellant to the CI was completed. Following this second transaction,

the recordings memorializing the offense and 35.5 grams of cocaine were retrieved from

the CI.




4.
       {¶ 9} Subsequently, appellant was indicted on two counts of trafficking in cocaine,

in violation of R.C. 2925.03(A)(1). Both offenses were charged as felonies of the first

degree. As such, appellant was subject to potential terms of incarceration of three to

eleven years on each count, for a total potential term of incarceration of 22 years.

       {¶ 10} On January 10, 2017, the case proceeded to jury trial. Following jury trial,

appellant was convicted on one count of trafficking in cocaine, in violation of R.C.

2925.03(A)(1), a felony of the third degree, and one reduced count of trafficking in

cocaine, in violation of R.C. 2925.03(C)(4), a felony of the third degree.

       {¶ 11} Appellant was sentenced to an eight-year term of incarceration on the first

conviction, and a three-year term of incarceration on the second conviction, ordered to be

served concurrently, for a total term of incarceration of eight years. This appeal ensued.

       {¶ 12} In the first assignment of error, appellant maintains that the trial court

abused its discretion in permitting the admission of the recordings taken of the subject

unlawful drug sales. We do not concur.

       {¶ 13} Notably, appellant concedes that such recordings are predominantly found

to be permissible by Ohio courts, but nevertheless maintains that the trial court abused its

discretion.

       {¶ 14} In support, appellant puts forth the speculative assertion, devoid of

supporting evidence, that the person who engaged in the unlawful drug transactions, as

witnessed by multiple agents and digitally recorded, could actually have been one of




5.
appellant’s brothers or male relatives due to a claimed close family resemblance. We are

not persuaded.

       {¶ 15} Appellate court review of contested trial court evidentiary rulings is

conducted pursuant to the abuse of discretion standard. To establish an abuse of

discretion by the trial court, more than a mere error of law or judgment must be

demonstrated. The disputed trial court conduct must be shown to have been

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

450 N.E.2d 1140 (1983).

       {¶ 16} In applying this standard to the instant case, we note that the essence of

appellant’s first assignment of error is rooted in the mistaken notion that appellant’s

identity as the party who engaged in the unlawful underlying cocaine transactions could

not have been established without the admission of the disputed recordings. The record

of evidence refutes this contention.

       {¶ 17} The record reflects that multiple law enforcement agencies and multiple

agents from those agencies had placed appellant under surveillance and were engaged in

direct surveillance of appellant prior to these offenses. The record reflects that agents

furnished direct testimony identifying appellant as the offender, as well as consistently

identifying appellant’s motor vehicle as the one in which the drug transactions occurred.

       {¶ 18} Their testimony affirmed that appellant appeared at the designated time and

location in his vehicle, the CI entered appellant’s vehicle, the cocaine purchases

transpired, and immediately afterward the agents recovered the cocaine from the CI.




6.
       {¶ 19} Given these facts and circumstances, the record reflects no evidence from

which the disputed trial court evidentiary ruling can be found to be unreasonable,

arbitrary or unconscionable. Wherefore, we find appellant’s first assignment of error not

well-taken.

       {¶ 20} In appellant’s second assignment of error, appellant contends that trial

counsel was ineffective. We do not concur.

       {¶ 21} In order to demonstrate ineffective assistance of counsel, it must be shown

both that trial court counsel’s performance was deficient, and it also must be shown that

but for the demonstrated deficiencies, the outcome of the trial would have been different.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.E.2d 674 (1984).

       {¶ 22} Although appellant concedes that trial counsel did object to the admission

of the recordings, and also objected to the lack of direct testimony from the CI, appellant

nevertheless concludes that trial counsel did not, “[A]dequately work with what was there

and obvious.”

       {¶ 23} In support of the second assignment of error, appellant proffers the position

that this case was prejudiced and compromised because several of appellant’s brothers

and male relatives, “[B]ear a remarkable resemblance to each other,” thereby suggesting

without any evidentiary support that one of appellant’s male relatives was the actual

perpetrator, not appellant.




7.
         {¶ 24} Notably, at the conclusion of the claims of various alleged errors by trial

counsel, appellant concludes that the alleged deficiencies, “[M]ay have affected the

outcome of the case.” (Emphasis added).

         {¶ 25} We note that appellant’s assertions in support of the second assignment of

error are rooted in conjecture and proper tactical decisions. Appellant has failed to

demonstrate trial counsel deficiencies but for which the outcome of this case would have

been different. Wherefore, we find appellant’s second assignment of error not well-

taken.

         {¶ 26} In appellant’s third assignment of error, appellant sweepingly suggests that

the trial court “vindictively” sentenced appellant. This contention is presented in a case

in which appellant, a repeat felony drug trafficking offender, was sentenced to a total

term of incarceration of eight years in a case which could have resulted in a total term of

incarceration of 22 years for the offenses as charged, and could have resulted in a total

term of incarceration of 14 years for the offenses as convicted. We are not convinced.

         {¶ 27} In support of the third assignment of error, appellant again relies upon

unsupported supposition. Appellant unilaterally maintains that the trial court was “irked”

at having the matter proceed to jury trial and, therefore, further speculatively concludes

that the trial court “pandered” to the jurors in imposing an allegedly harsh sentence for

retaliatory purposes. Appellant’s theory, devoid of supporting evidence, is that the trial

court prejudicially, unlawfully sentenced appellant. The record of evidence does not bear

out this position.




8.
       {¶ 28} Appellant relies predominantly upon the fact that the potential term of

incarceration discussed in tentative plea negotiations was five years, in comparison with

the eight-year term of incarceration ultimately imposed. Notably, appellant’s suggestion

of impropriety in that discrepancy fails to recognize that the rejected plea agreement

entailed a plea of guilty to one of the two offenses, with the remaining offense dismissed.

Conversely, appellant elected to proceed to trial on two felony offenses, and was

convicted and sentenced on two felony offenses. As such, the suggested comparison is

illusory.

       {¶ 29} In addition, appellant maintains that the record somehow establishes a

vindictive, unlawful sentence due to the fact that the trial court mentioned that the

proceedings, “[P]ut the state to considerable expense.” Again, appellant’s suggestion

fails to take into consideration the full context and extent of the trial court’s deliberations

prior to imposing sentence, as reflected in the sentencing transcript.

       {¶ 30} The transcript of proceedings reflects that the trial court went on to

emphasize the significant consideration of appellant’s past trafficking in cocaine

conviction in the same jurisdiction and the corollary public interest consideration in

adequately addressing the issue.

       {¶ 31} We find that the record of evidence reflects that appellant has failed to

establish that the disputed, less than maximum, concurrent trial court sentence was in any

way unlawful. We find appellant’s third assignment of error not well-taken.




9.
       {¶ 32} Wherefore, we find that substantial justice has been done in this matter.

The judgment of the Sandusky County Court of Common Pleas is hereby affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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