[Cite as State v. Lacy, 2018-Ohio-3249.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NO. 2018-A-0007
        - vs -                                  :

JAVONTE R. LACY,                                :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2017
CR 00099.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Michael J. Goldberg, The Goldberg Law Firm, LLC, 323 Lakeside Avenue, Suite 450,
Cleveland, OH 44113 (For Defendant-Appellant).


DIANE V. GRENDELL, J.

                 {¶1}    Defendant-appellant, Javonte R. Lacy, appeals the denial of his

        Motion for New Trial by the Ashtabula County Court of Common Pleas. The

        issues before this court are whether a trial court properly denies a motion for new

        trial based on an alleged conflict of interest in trial counsel’s representation of the

        defendant and the defendant’s brother where there is an unsubstantiated claim

        that the brother was willing to testify and exculpate the defendant, and,
       alternatively, based on breaks in the chain of custody of narcotic evidence where

       the evidence was resubmitted for forensic testing because the scientists who

       performed the original tests were disciplined by the laboratory which employed

       them. For the following reasons, we affirm the decision of the court below.

                {¶2}     On March 1, 2017, the Ashtabula County Grand Jury indicted Lacy

       on two counts of Trafficking in Heroin, felonies of the second degree in violation

       of R.C. 2925.03(A)(1) and (C)(6)(e).

                {¶3}     On March 13, 2017, William P. Bobulsky entered an appearance as

       attorney for Lacy.

                {¶4}     Between November 6 and 8, 2017, the case was tried to a jury

       which found Lacy guilty of both counts of Trafficking.

                {¶5}     On November 22, 2017, Attorney Michael J. Goldberg entered an

       appearance as attorney for Lacy and filed a Motion for New Trial.1 As grounds

       for a new trial, Lacy claimed that he was deprived of constitutionally effective

       assistance of counsel on account of trial counsel’s representation of his brother

       in another criminal matter and the State’s failure to establish a chain of custody

       for narcotics tested by Ohio’s Bureau of Criminal Investigation (BCI).

                {¶6}     On December 20, 2017, the State filed its Response in Opposition.

                {¶7}     On December 29, 2017, the trial court denied Lacy’s Motion without

       hearing. The court ruled:

                        The defendant * * * claims that his counsel failed to render
                effective assistance because of a conflict of interest in representing
                his brother, Jonah Lacy, on another criminal matter. The defendant
                has submitted an affidavit in which he claims that Jonah Lacy was
                available and prepared to testify that he, not the defendant, sold the
1
. Attorney Bobulsky was granted leave to withdraw as counsel for Lacy on January 4, 2018.


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       heroin to the confidential informant in this case, and that he
       discussed this with Attorney Bobulsky. There was substantial
       evidence presented to the jury that the defendant, Javonte Lacy, in
       fact sold the drugs. The defendant’s claim lacks credibility. The
       State contends that if Jonah Lacy had testified in this case he
       would have either testified truthfully, incriminating the defendant, or
       perjured himself. Either way, effective defense counsel could not
       have called him as a witness. Jonah Lacy was not a state’s
       witness in this case and he was not a co-defendant. The State
       indicates that Jonah Lacy’s subsequent criminal case is entirely
       unrelated to this case.

               The defendant also argues that the State failed to establish a
       sufficient chain of custody to support admission of the heroin in this
       case. In ruling on the admission of the drugs, the Court determined
       that the State had provided a sufficient chain of custody and that
       there was no credible indication that the evidence had been
       tampered with in any way.

       {¶8}   On January 4, 2018, a sentencing hearing was held at which Lacy

was sentenced, inter alia, to serve consecutive four-year prison terms for each

count of Trafficking for an aggregate sentence of eight years. Lacy’s sentence

was memorialized on January 8, 2018.

       {¶9}   On January 25, 2018, Lacy filed a Notice of Appeal. On appeal,

Lacy raises the following assignments of error:

       {¶10} “[1.] The trial court erred to the prejudice of defendant-appellant in

overruling his Motion for New Trial because his trial counsel’s actual conflict of

interest deprived defendant-appellant of his Sixth Amendment right to effective

assistance of counsel, free of conflicts.”

       {¶11} “[2.] The trial court erred by overruling Mr. Lacy’s Motion for New

Trial and by failing to exclude toxicology results produced by questionable

practices and insufficient evidence establishing a chain of custody linking each

time the alleged narcotics were tested.”



                                       3
        {¶12} “A new trial may be granted on motion of the defendant for any of

the following causes affecting materially his substantial rights: * * * [i]rregularity in

the proceedings, or in any order or ruling of the court, or abuse of discretion by

the court, because of which the defendant was prevented from having a fair trial.”

Crim.R. 33(A)(1); State v. Gau, 11th Dist. Ashtabula No. 2010-A-0013, 2010-

Ohio-5516, ¶ 26 (motion for new trial based on the claim that defendant’s

“trial counsel represented his brother in a previous case * * * somehow creat[ing]

a     conflict   of   interest,   which     deprived      him    of    his    right   to

effective assistance of counsel”). “Application for a new trial shall be made by

motion which * * * shall be filed within fourteen days after the verdict was

rendered * * *.” Crim.R. 33(B).

        {¶13} “A motion for new trial pursuant to Crim.R. 33(B) is addressed to

the sound discretion of the trial court, and will not be disturbed on appeal absent

an abuse of discretion.” State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54

(1990), paragraph one of the syllabus; State v. Valentine, 11th Dist. Portage No.

2002-P-0052, 2003-Ohio-2838, ¶ 17 (“[t]he decision of whether or not to hold an

evidentiary hearing on a defendant’s motion for new trial is within the sound

discretion of the trial court”). “The discretionary decision to grant a motion for a

new trial is an extraordinary measure which should be used only when the

evidence presented weighs heavily in favor of the moving party.” Valentine at ¶

14.

        {¶14} It has been widely recognized that a trial court may assess the

credibility of affidavits submitted in support of a motion for new trial in the




                                        4
absence of an evidentiary hearing.          State v. White, 8th Dist. Cuyahoga No.

105430, 2017-Ohio-6984, ¶ 16 (“[w]hen reviewing motions for a new trial, a trial

court may weigh the credibility of affidavits submitted in support of the motion in

determining whether to accept the affidavit as true statements of fact”) (cases

cited); State v. Knecht, 12th Dist. Warren No. CA2015-04-037, 2015-Ohio-4316,

¶ 35 (“it is well-established that a trial court may weigh the credibility of the

affidavits submitted in support of a motion for a new trial to determine whether to

accept the statements in the affidavit as true”) (cases cited); State v. Lam, 2015-

Ohio-4293, 46 N.E.3d 138, ¶ 73 (2d Dist.).

       {¶15} In assessing the credibility of affidavits, the trial court may consider

all relevant factors. State v. Shakoor, 7th Dist. Mahoning No. 10 MA 64, 2010-

Ohio-6386, ¶ 27. In particular, the factors identified by the Ohio Supreme Court

in State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), for assessing the

credibility of affidavits submitted in support of petitions for postconviction relief

have been recognized as applicable in assessing affidavits submitted in support

of a motion for new trial. State v. Henry, 2017-Ohio-7426, 96 N.E.3d 1123, ¶ 19

(2d Dist.) (“[a]lthough the Calhoun case involved a review of a petition for

postconviction relief rather than a motion for new trial, we have held that

the Calhoun factors ‘also comfortably appl[y] to affidavits submitted in support of

a motion for new trial’”) (citation omitted); State v. Gaines, 1st Dist. Hamilton No.

C-090097, 2010-Ohio-895, ¶ 26 (cases cited).

       {¶16} According to Calhoun:

       [A] trial court, in assessing the credibility of affidavit testimony in so-
       called paper hearings, should consider * * * (1) whether the judge



                                        5
             reviewing the postconviction relief petition also presided at the trial,
             (2) whether multiple affidavits contain nearly identical language, or
             otherwise appear to have been drafted by the same person, (3)
             whether the affidavits contain or rely on hearsay, (4) whether the
             affiants are relatives of the petitioner, or otherwise interested in the
             success of the petitioner’s efforts, and (5) whether the affidavits
             contradict evidence proffered by the defense at trial. Moreover, a
             trial court may find sworn testimony in an affidavit to be
             contradicted by evidence in the record by the same witness, or to
             be internally inconsistent, thereby weakening the credibility of that
             testimony.

             ***

                     Depending on the entire record, one or more of these or
             other factors may be sufficient to justify the conclusion that an
             affidavit asserting information outside the record lacks credibility.
             Such a decision should be within the discretion of the trial court. A
             trial court that discounts the credibility of sworn affidavits should
             include an explanation of its basis for doing so in its findings of fact
             and conclusions of law, in order that meaningful appellate review
             may occur.

Calhoun at 285.

             {¶17} In his first assignment of error, Lacy claims he was entitled to a new

      trial as his affidavit established that trial counsel’s representation of his brother

      created an actual conflict of interest which prevented counsel from rendering

      constitutionally effective assistance and caused him actual prejudice.

             {¶18} According to Lacy’s affidavit (the only evidence proffered in support

      of the Motion):

             6. The informant called by the State testified that the drug
             transactions at issue were set up by him with me. He also testified
             that he had no prior dealings with my brother Jonah and, in fact, did
             not know his name.

             7. Both of the above facts were untrue, and I made Mr. Bobulsky
             aware of this in the course of consultation regarding this case and
             preparation for trial. I expected Mr. Bobulsky to challenge the
             informant’s testimony with information I provided him as to my



                                            6
       brother, Jonah Lacy’s prior drug trafficking relationship with the
       State’s confidential informant.

       ***

       11. My defense at trial, I thought, was to be focused on the fact that
       the informant was actually engaged in drug trafficking activity with
       my brother and not me and that he had lied about this fact and the
       fact that he had known and dealt drugs with my brother for at least
       one year prior to the drug transactions at issue in my case.

       12. At trial when I questioned Mr. Bobulsky as to why the subject
       was not pursued in cross-examination of the confidential informant
       or in argument, he told me that “I can’t bring your brother into your
       case because I represent him as well.”

       13. My brother came to court to testify on my behalf to say the
       drugs involved in this case [were] his and the transactions were his
       and he had known the confidential informant for a significant period
       of time, however, * * * Mr. Bobulsky did not call him to testify.
       When I asked him why he said “because it is a conflict of interest
       because I represent you and your brother and if your brother admits
       to the drugs being his you will both go to jail”.

       {¶19} Lacy argues at length in his brief that the facts alleged in his

affidavit present an actual conflict of interest resulting in ineffective assistance of

counsel. The determinative issue, however, is whether the trial court abused its

discretion in finding that those allegations lacked credibility. We find no abuse of

discretion.

       {¶20} Lacy’s convictions were based on two controlled buys of heroin with

a confidential informant. Lacy essentially contends that it was his brother, Jonah,

who sold the informant the heroin and that Jonah was willing to testify as such.

He alleges trial counsel would not have Jonah testify because he represented

Jonah in an unrelated criminal matter and believed that it would be an alleged

conflict of interest to have Jonah incriminate himself by testifying in Lacy’s trial.




                                       7
       {¶21} On their face, Lacy’s allegations appear dubious. Lacy provides no

reason why the informant would falsely implicate him in the crimes in order to

protect Jonah. Nor does Lacy provide any explanation as to why, if Jonah were

willing to confess to the crimes, he would wait until Lacy’s trial was underway to

do so. Moreover, it is not clear why Jonah’s willingness to confess to crimes that

Lacy did not commit would create a conflict of interest for Attorney Bobulsky.

Allowing a client to voluntarily present truthful testimony is not a breach of an

attorney’s duty to that client. Lastly, we note that the only evidence of Jonah’s

willingness to testify on Lacy’s behalf is Lacy’s affidavit. An affidavit from Jonah

could have added credibility to the allegations.

       {¶22} Considering the substance of Lacy’s allegations, they are

contradicted by the evidence at trial which strongly supports the informant’s

testimony that it was Lacy who sold him the heroin.

       {¶23} Detective Greg Leonhard, working with the Trumbull Ashtabula

Group (TAG) law enforcement task force, testified that he arranged for the

informant to purchase ten grams of heroin from Javonte Lacy. That buy occurred

on May 17, 2016. On a second occasion, Leonhard arranged for the informant to

purchase fourteen grams of heroin on June 14, 2016.

       {¶24} The informant testified that he had known Lacy for about a year

prior to the controlled buys and had been to the residence at 5407 Lenox-New

Lyme Road where the buys occurred. The informant arranged to purchase the

heroin with Lacy by telephone. The informant also admitted that he knew Lacy’s

brother, although he could not recall his name.




                                      8
       {¶25} The informant testified without equivocation that, on May 17, 2016,

he purchased heroin from Lacy at the Lenox-New Lyme Road residence when no

one else was present. The informant was wearing a recording device during the

transaction. Although the video did not record anything of significance, the audio

recorded the conversation between the informant and the person from whom he

was purchasing the heroin. During the course of the conversation, the informant

testified that Lacy called his brother, Jonah, in order to discuss the price.

       {¶26} Unrelated to the purchase of heroin, the informant also discussed

dogs that Lacy was breeding. After the buy, Lacy led the informant outside to the

kennels where the dogs were kept. Detective Cary Nelson, also with the TAG

task force, was observing the residence during the buy and saw the informant

exit with a “tall thin black male” and walk over to a barn.

       {¶27} The informant testified that both Lacy and Jonah were present at

the residence during the June 14, 2016 buy. This buy was also recorded with

only the audio portion of the recording having substantive value. Although the

informant spoke with both brothers, he only discussed the buy with Lacy. The

voice of the person with whom the informant discussed the buy on June 14 is

very similar to the voice on the May 17 recording. Detective Nelson monitored

both buys and testified that the voice of the person selling the heroin was the

same on both occasions.

       {¶28} Lacy’s mother testified at trial that Lacy did not live at the home on

Lenox-New Lyme Road and that Jonah did live there. Lacy’s mother noted that

Lacy bred dogs on the property.




                                       9
       {¶29} That it was Lacy’s voice on the recordings of the heroin buys is

virtually irrefutable. That voice belongs to a dog breeder and Lacy’s mother’s

testimony that he bred dogs on the property renders the claim that the informant

intentionally implicated Lacy rather than his brother in the transactions wholly

implausible.

       {¶30} Assuming arguendo, as suggested in Lacy’s affidavit, that the

heroin belonged to Jonah and that in some sense he was the principal behind the

transactions, these facts would not exculpate Lacy as the person who actually

sold the heroin to the informant.

       {¶31} The first assignment of error is without merit.

       {¶32} In the second assignment of error, Lacy contends that the trial court

erred in denying his Motion for New Trial on the grounds that the Bureau of

Criminal Investigation analysis of the heroin should have been excluded as

evidence.      Crim.R. 33(E)(3) (“[n]o motion for a new trial shall be granted or

verdict set aside, nor shall any judgment of conviction be reversed in any court

because of * * * [t]he admission or rejection of any evidence offered against or for

the defendant, unless the defendant was or may have been prejudiced thereby”).

       {¶33} Lacy argues:

       BCI’s 2016 internal investigation highlighted an issue pervasive
       enough that it offered to retest any drug samples tested between
       May and October if the State requested retesting. It appears the
       samples at issue here were retested, but there was no documented
       chain of custody assuring that the samples were properly tracked,
       submitted, cataloged, or tested. This is especially problematic
       when the two forensic scientists who performed the initial tests
       were either suspended and retrained or fired based on BCI’s
       investigation results.




                                     10
Appellant’s brief at 18.

              {¶34} “The chain of custody of a piece of evidence is part of the

       authentication and identification requirement of Evid.R. 901.” (Citation omitted.)

       State v. Guyton, 2016-Ohio-8110, 74 N.E.3d 939, ¶ 31 (11th Dist.). “A strict

       chain of custody is not always required in order for physical evidence to be

       admissible.” State v. Wilkins, 64 Ohio St.2d 382, 389, 415 N.E.2d 303 (1980).

       Rather, “[t]he state need only establish that it is reasonably certain that

       substitution, alteration or tampering did not occur.” State v. Blevins, 36 Ohio

       App.3d 147, 150, 521 N.E.2d 1105 (10th Dist.1987). “[A]ny of the alleged breaks

       in the evidentiary chain go to the weight, instead of the admissibility, of the

       evidence.” In re Jackson, 11th Dist. Portage No. 2006-P-0119, 2007-Ohio-4955,

       ¶ 28; State v. Richey, 64 Ohio St.3d 353, 360, 595 N.E.2d 915 (1992) (“[t]he

       possibility of contamination goes to the weight of the evidence, not its

       admissibility”).

              {¶35} At trial, Jennifer Sulcebarger of the Ohio BCI testified regarding the

       identity and the weight of the heroin purchased by the informant. She testified

       that she obtained the heroin for testing from BCI’s evidence vault. The markings

       on the evidence bags indicated that the evidence had been previously tested by

       BCI: the heroin from the May 17 buy on September 16, 2016 by a Stephanie

       Laos, and the heroin from the June 14 buy on September 20, 2016 by a Whitney

       Voss. Laos was subsequently terminated from her employment from BCI and

       Voss was disciplined, although Sulcebarger did not know the details of either

       situation.




                                           11
       {¶36} The chain of custody with respect to the initial submission to BCI is

incomplete. Detective Leonhard testified that the heroin from the buys was given

to Detective Nelson “for handling” and thence to Detective David Hoover,

evidence custodian for TAG in 2016, for transportation to BCI. Detective Hoover

testified that Detective Andre Jarrett, another TAG evidence custodian, delivered

the evidence to BCI for the first time in 2016. Detective Jarrett did not have any

recollection that he personally delivered the evidence in 2016.

       {¶37} We agree with the trial court’s observation that “a task force that

apparently specializes in these drug cases seems to have * * * surprisingly slip-

shod practices when it comes to evidence.” As noted above, however, breaks in

the chain of custody go to the weight rather than the admissibility of the

evidence. It is not necessary for the State to establish the precise movement of

evidence from its entry into police custody to a laboratory testing facility in order

for the evidence to be admissible. State v. Hunter, 169 Ohio App.3d 65, 2006-

Ohio-5113, 861 N.E.2d 898, ¶ 20 (6th Dist.) (rape kit evidence was admissible

where “[t]he hospital emergency room report states that the rape kit was turned

over ‘to the Sandusky Police’ [and] BCI records show that the rape kit associated

with this victim was submitted to the lab by Detective John Paseka of the

Sandusky Police Department”); State v. Rajchel, 2d Dist. Montgomery No.

19633, 2003-Ohio-3975, ¶ 26 (rejecting the argument “that the results of the

urine sample should be suppressed because no evidence was presented

regarding how the urine sample was transferred from the jail to the crime lab”);

State v. Pircio, 8th Dist. Cuyahoga No. 54983, 1989 WL 7962, *4 (Feb. 2, 1989)




                                     12
     (“[t]he failure of the prosecution to have every party who handled the evidence

     testify does not cause the custodial chain to fall”); compare State v. Ohara, 9th

     Dist. Summit No. 27342, 2014-Ohio-5532, ¶ 18 (conviction for possession was

     not against the manifest weight of the evidence despite “the State’s failure to

     precisely describe how its exhibits were sealed and delivered to BCI”).

            {¶38} Furthermore, the fact that forensic scientists who conducted the

     initial analysis of the heroin were subsequently disciplined by BCI, without more,

     does not raise an inference that substitution, alteration or tampering with

     evidence occurred. Sulcebarger testified that the results of her analysis were

     consistent with the results obtained by Laos and Voss and consistent with the

     testimony of the informant. Sulcebarger testified that the submission from the

     May 17 buy consisted of 11.94 grams of heroin and that the submission from the

     June 14 buy consisted of 12.17 grams of heroin. Although the informant had

     arranged to buy ten and fourteen grams on each occasion, he purchased twelve

     grams on May 17 due to the price being lowered and twelve grams on June 14

     due to limited availability.

            {¶39} The second assignment of error is without merit.

            {¶40} For the foregoing reasons, the judgment of the Ashtabula County

     Court of Common Pleas, denying Lacy’s Motion for New Trial, is affirmed. Costs

     to be taxed against the appellant.



CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,




                                          13
concur.




          14
