[Cite as State v. Buford, 2012-Ohio-262.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96607


                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                       HENRY BUFORD
                                                       DEFENDANT-APPELLANT



                                            JUDGMENT:
                                             AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-538289

        BEFORE:           Sweeney, P.J., Jones, J., and Kilbane, J.

        RELEASED AND JOURNALIZED: January 26, 2012

ATTORNEYS FOR APPELLANT
Robert L. Tobik, Esq.
Public Defender
By: Erica B. Cunliffe, Esq.
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: John Wojton, Esq.
       Brian D. Kraft, Esq.
       Katherine Mullin, Esq.
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, P.J.:

      {¶ 1} Defendant-appellant Henry Buford (“defendant”) appeals the court’s denial

of his request for self-representation and his convictions for tampering with evidence and

drug possession.   After reviewing the facts of the case and pertinent law, we affirm.

      {¶ 2} On June 2, 2010, Euclid Police Officer Greg Costello pulled defendant over

near Euclid Avenue and East 204th Street for a brake light violation.      Defendant made

various movements while sitting in his car, which lead Officer Costello and his partner,

Officer Joel Barron, to believe that defendant may have a weapon.     Defendant refused to

exit his vehicle, and when he eventually complied, he refused to cooperate with a pat down

search.   A brief struggle ensued, and both officers observed defendant put a small white
“bindle” in his mouth and swallow it. The police also saw two additional bindles drop

from defendant’s hand to the ground. These bindles subsequently tested positive for

cocaine.

       {¶ 3} On July 13, 2010, defendant was indicted for drug possession, tampering

with evidence, and possession of criminal tools. On January 26, 2010, the court granted

defendant’s motion for acquittal regarding the possession of criminal tools charge, and a

jury found defendant guilty of drug possession and tampering with evidence. On March

1, 2011, the court sentenced defendant to one year in prison for each count, to run

concurrently.

       {¶ 4} Defendant appeals and raises two assignments of error for our review.

       {¶ 5} I.   “The trial court violated Mr. Buford’s Sixth and Fourteenth Amendment

right to self-representation by failing to undertake a proper inquiry when Buford informed

the court that he wished to represent himself.”

       {¶ 6} In State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶32,

the Ohio Supreme Court held the following:

       {¶ 7} “We have recognized that ‘a defendant in a state criminal trial has an

independent constitutional right of self-representation and * * * may proceed to defend

himself without counsel when he voluntarily, and knowingly and intelligently elects to do

so.’ State v. Gibson (1976), 45 Ohio St.2d 366, 74 O.O.2d 525, 345 N.E.2d 399, paragraph

one of the syllabus, citing Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45

L.Ed.2d 562. If a trial court denies the right to self-representation, when properly invoked,
the denial is per se reversible error. State v. Reed (1996), 74 Ohio St.3d 534, 660 N.E.2d

456, citing McKaskle v. Wiggins (1984), 465 U.S. 168, 177, 104 S.Ct. 944, 79 L.Ed.2d

122. To establish an effective waiver of the right to counsel, ‘the trial court must make

sufficient inquiry to determine whether [the] defendant fully understands and intelligently

relinquishes that right.’ Gibson, 45 Ohio St.2d 366, 74 O.O.2d 525, 345 N.E.2d 399,

paragraph two of the syllabus.”

       {¶ 8} The Cassano court additionally held that “[t]he constitutional right of

self-representation is waived if it is not timely and unequivocally asserted.” Id. at ¶38

(citing Jackson v. Ylst (C.A.9, 1990), 921 F.2d 882, 888). In Cassano, the court reasoned

that the defendant’s request for self-representation, made three days before trial began,

was untimely and, thus, properly denied. Id. at ¶37. Furthermore, in State v. Vrabel, 99

Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶53, the Ohio Supreme Court held that

“the trial court did not abuse its discretion and properly refused appellant’s request to

represent himself after voir dire had been completed and on the first day that evidence was

to be presented.”

       {¶ 9} In the instant case, defendant’s request for self-representation was untimely,

and evidence in the record suggests that he may have used this last minute request as a

stalling technique.   See State v. Halder, Cuyahoga App. No. 87974, 2007-Ohio-5940, ¶58

(concluding that a request for self-representation made five days before trial began was

untimely and holding that “an otherwise competent defendant may be denied the right to

proceed pro se when his request is manipulative and untimely”). Defendant made his
request for self-representation orally on the second day of trial.   We hold that this request

was untimely; thus, defendant did not properly invoke his right.

       {¶ 10} Additionally, even assuming a timely request, there are numerous examples

in the record that question defendant’s ability to knowingly, voluntarily, and intelligently

waive his right to counsel and proceed pro se.

       {¶ 11} Defendant repeatedly addressed or attempted to address the court despite the

court repeatedly telling defendant that, because he was represented by counsel, he must

communicate to the court through his attorney. Immediatley prior to his suppression

hearing, defendant told the court he was “afraid for [his] life,” because the two police

officers involved in his case showed up at his house. Defendant did not understand the

concept of a suppression hearing and how, if his motion to suppress was denied, his trial

would follow. Defendant continually insisted upon a jury trial, and the court assured

defendant each time that there would be one.         Defendant stated that the prescription

medications he was taking were “supposed to do one thing and took me to a whole ‘nother

place.’” Defendant denied speaking with his attorney about his case, stating that his

attorney told him “there was nothing to discuss.” However, defendant’s attorney told the

court that he talked with defendant “at great length ad nauseam about this case.”

       {¶ 12} After his motion to suppress was denied, defendant attempted to change his

plea to no contest under the condition that he would have “30 days and * * * come back”

to court.   It is unclear from the record for what defendant thought he would be coming
back to court in 30 days — an appeal, a sentencing hearing, and a jury trial were all

mentioned.

         {¶ 13} The court held a plea hearing and the following evidence regarding

defendant’s health was placed on the record: defendant did not work and he received

disability; defendant denied having a “drug abuse problem,” then later admitted to being a

recovering heroin addict; he was taking various prescription medications including

Suboxone for heroin addiction and pain medication; he took some of his medications that

day but not all of them; and his medication interfered with his ability to understand the

court.

         {¶ 14} The court asked defendant, “[H]ave we covered all of your medications and

all of your medical conditions from which you suffer currently?” Defendant replied,

“What do you mean by covered?”        Asked why he was having difficulty understanding the

court, defendant replied, “[T]he medication that the doctor had changed me on to had

disrupted my whole system. * * * I was catching the blues.      I was in a bad way. Under

the effects of that medication that he had changed me to.”         Asked if he was able to

understand the court, defendant answered, “Not as well as I should be.”     Defendant asked

the court for time “to get my head together, get myself together with the medicine that I

didn’t take.”

         {¶ 15} The court denied the change of plea and referred defendant to the psychiatric

clinic for an assessment regarding transferring his case to the mental health docket.     In
making this ruling, the court noted that it was “not certain whether [defendant] is having

real difficulties understanding me or the process, or whether he is just being difficult.”

          {¶ 16} The court reconvened for defendant’s trial on January 25, 2011.        It was

noted that the psychatric clinic reported that defendant did not suffer from any mental

health issues, and his case was not eligible for transfer to the mental health court docket.

Defendant requested that he be allowed to address the court regarding his attorney.

Defendant again demonstrated that he was unable to effectively represent himself.            For

example, he complained that he never got the “paperwork” that was “necessary for a jury

trial.”    Asked to identify specific documents, defendant eventually stated “police reports.”

 However, defendant’s attorney stated that he received full discovery from the state, he

had at least four pretrials with the prosecutor, and the police report from defendant’s arrest

was in his hand.

          {¶ 17} Additionally, defendant believed that the forensic test results concerning the

bindles of cocaine he allegedly dropped were inadmissible in court because the paperwork

referenced that defendant was charged with “drug trafficking” rather than “drug

possession.”

          {¶ 18} The court denied defendant’s request for discharge of his attorney and

proceeded to trial.    On the second day of trial, defendant asked to address the court again

regarding his attorney.       Defendant stated that he was afraid for his         “safety and

well-being” because of a conflict over money between him and his attorney. Defendant

demonstrated that he did not understand the concept of “retained counsel,” and he felt that
his attorney may cause him physical harm.       Defendant requested that he be allowed to

proceed pro se.      The court once more denied defendant’s request, and defendant stated

the following:      “My life is in danger” and “[My attorney is] pressuring me, creating an

atmosphere where I can’t even exist.         I can barely sit beside him. You talk about

continuing a trial with him. That’s impossible.”

       {¶ 19} The court found defendant’s claims to be “unbelievable” and “incredible.”

The court again denied defendant’s request, stating that, “We started this case with

counsel. * * * You do not have this right [to self-representation] at this juncture.   You

could have exercised your right to do that before we began.”

       {¶ 20} Given the totality of the circumstances, we find that defendant did not

properly invoke his right of self-representation.     Specifically, defendant requested to

proceed pro se on the second day of trial after the state’s first witness had finished

testifying.     Additionally, even assuming that defendant made his request in a timely

manner, we find the record replete with evidence        that defendant did not knowingly,

voluntarily, and intelligently elect to defend himself without counsel.

       {¶ 21} Accordingly, the court did not err, and defendant’s first assignment of error

is overruled.

       {¶ 22} In defendant’s second assignment of error, he argues as follows:

       {¶ 23} II.    “Mr. Buford was deprived of liberty without due process where his

convictions for tampering with evidence and drug possession were contrary to the manifest

weight of the evidence.”
       {¶ 24} To warrant reversal of a verdict under a manifest weight of the evidence

claim, this court must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, and determine whether, in resolving

conflicts in evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that the judgment must be reversed and a new trial ordered.                State v.

Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

       {¶ 25} Defendant was convicted of tampering with evidence in violation of R.C.

2921.12(A)(1), which states that “[n]o person, knowing that an official proceeding or

investigation is in progress, or is about to be or likely to be instituted, shall * * * [a]ter,

destroy, conceal, or remove any * * * thing, with purpose to impair its * * * availability as

evidence in such proceeding or investigation * * *.”

       {¶ 26} At trial, Officer Costello testified that it took defendant awhile to pull over,

and defendant initially stopped his vehicle in the middle lane of traffic. After pulling

over to the curb,   defendant was “[a] bit nervous, maybe a little agitated.      Told me he

didn’t know about the violation of the brake lights.         I asked him a couple general

questions and he seemed, you know, upset that I was talking to him.” Officer Barron

arrived at the scene, and Officer Costello told him to stand near defendant’s vehicle and

keep an eye on defendant.      After Officer Costello ran defendant’s information, Officer

Barron reported that defendant “was moving around the vehicle, acting very nervous.        He

reached under the driver’s seat and [Officer Barron] believed that he was trying to hide a

weapon or hide some contraband.”
         {¶ 27} Officer Costello asked defendant to step out of his vehicle for a weapons

check.     Defendant asked if he was under arrest.     When Officer Costello replied no,

defendant refused to get out of his car and, according to Officer Costello, became hostile.

The officers asked defendant to step out of his vehicle approximately five or six more

times, and each time defendant refused.      Eventually, defendant agreed.   Before he got

out of the vehicle, defendant reached into the glove box.        Officer Costello believed

defendant was going for a weapon.       However, defendant grabbed two prescription pill

bottles and got out of the car.   The officers were still concerned that defendant may have

a weapon on his person. Defendant had pill bottles in his left hand, and his right hand

was clenched in a fist. Officer Costello told Officer Barron that defendant had something

in his fist. The officers asked defendant to put his hands on the car and defendant

refused.

         {¶ 28} Officer Costello attempted to handcuff defendant, because “he was being

difficult. * * * [W]e hadn’t checked him for weapons and I didn’t believe we were going

to be able to check him for weapons unless he was handcuffed.”        Defendant struggled

and resisted, and the officers took defendant to the ground to get control of him. Officer

Costello testified about what happened next: “I watched him pull his right hand up towards

his mouth. * * * He’s going to try to put dope in his mouth. * * * He gets his hand to his

mouth and something from his hand went into his mouth * * * and two items fell out of his

hand and onto the grass. * * * [Defendant] attempted to swallow whatever was in his

mouth.”
       {¶ 29} After Officer Costello watched defendant make swallowing movements with

his throat, defendant “basically said, I’m done, and he relaxed and just laid there.”        The

officers handcuffed defendant and patted him down. No weapons were found, but they

recovered the items defendant threw to the ground, which were two small bindles of

cocaine folded in lottery tickets.   At this point, the police arrested defendant.

       {¶ 30} Officer Barron’s trial testimony was consistent with Officer Costello’s

recollection about their interaction with defendant on June 2, 2010.           Officer Barron

watched defendant while Officer Costello checked defendant’s information.                 Officer

Barron testified that defendant “appeared to be excessively nervous. * * * His actions —

by repeatedly looking over his shoulder at me and back at Patrolman Costello, he was

almost in constant motion while he sat in the seat, messing — doing something in the

center console, at one point he reached underneath the driver’s seat.”               The officers

decided to check defendant for weapons, because their safety was a concern.

       {¶ 31} Officer Barron heard Officer Costello ask defendant “to exit the vehicle

probably five or six times. [Defendant] shook his head, asked if he was under arrest.

Officer Costello said no.”    Defendant finally agreed to exit the vehicle but “lunged” for

his glove box first, grabbing two pill bottles. According to Officer Barron, Officer

Costello said that defendant had something (other than pill bottles) in his hand. Officer

Barron was unable to pat defendant down because defendant was “struggling” and “not

following our verbal commands.”        The officers took defendant to the ground.         Officer

Barron testified about what happened next:
       {¶ 32} “We’re still yelling at this guy, put your hands behind your back.       Stop

resisting. Stop fighting. At one point he was able to get his right hand close enough to

his mouth by bringing it forward and bringing his head down and he opened his hand and

kind of slid it across his mouth and I could see something white go into his mouth. * * *

He’s chewing and attempting to swallow whatever it was that ended up going into his

mouth. * * * After he got done chewing and swallowing, his body went limp, he said, I’m

done, and Officer Costello was able to get the handcuffs on him.”

       {¶ 33} Officer Barron also saw two white bindles fall to the ground from

defendant’s hand.

       {¶ 34} Defendant took the stand in his defense, and testified as follows: On June 2,

2010, he was driving home on Euclid Avenue when he noticed four or five police cars

engaged in a traffic stop on the other side of the street.   As he drove by, one of the cars

made a u-turn and got behind him with its police lights on. Defendant waited until traffic

passed and pulled over in the curb lane.       An officer approached defendant’s vehicle,

notified him about a brake light violation, and returned to the police car to run his

information.    The officer came back to defendan’t vehicle and asked if he could search it.

 Defendant replied that the car was not his and he was “not at liberty to grant” permission

to search it.

       {¶ 35} Defendant “sensed there was going to be a problem,” and began to look for

his asthma inhaler and other medications. He testified that he has “super high blood
pressure with medication that [leaves him] in an agitated state.”   According to defendant,

his breathing was “blocked,” and he was “panicking.”

       {¶ 36} Defendant denied resisting or being uncooperative with the officers.

Rather, he testified as follows about getting out of his vehicle: “I’m stumbling, I’m

bumbling, I cannot reach for my cane, so they eventually take me out, and so my stumbling

and bumbling could easily be taken for resisting. I’m 60 years old. How much resisting

am I going to do with two young officers?    I’m not suicidal.”

       {¶ 37} Defendant eventually got out of the vehicle, allegedly with one pill bottle in

each hand. Defendant testified that the officers grabbed him and pushed him against

the vehicle, which “caused my dentures, that’s now in, to cut into my mouth. My mouth

was bleeding, it was filled with blood, and I’m trying to empty my mouth of this blood. I

also was wanting to put my medication in my mouth, but my mouth was filled with blood.”

       {¶ 38} According to defendant, he opened his hands when the police asked him to,

and the pill bottles fell out. Additionally, he opened his mouth when the police asked

him to, and the officers saw “virtually a mouthful of blood,” so they did not search further.

 Defendant denied possessing or swallowing any drugs.

       {¶ 39} Defendant’s testimony was erratic and often unresponsive to the questions

posed. For example, defendant repeatedly answered questions by digressing about how

the bindles of cocaine must have belonged to another indivdual named Henry Buford who

was charged with drug trafficking, because defendant was charged with drug possession.
Asked if it was possible that the charge against him was, at some point, changed from

trafficking to possession, defendant replied that was out of the realm of possibility.

       {¶ 40} Upon review, we find that there was credible testimony that defendant

destroyed or concealed evidence by swallowing the bindle.       Thus, defendant’s conviction

for tampering with evidence is not against the manifest weight of the evidence.

       {¶ 41} Defendant was also convicted of drug possession in violation of R.C.

2925.11(A), which states that “[n]o person shall knowingly obtain, possess, or use a

controlled substance.”    Defendant specifically argues that the state failed to prove chain

of custody, and that the bindles of cocaine were planted evidence.        In State v. Walker,

Cuyahoga App. No. 83035, 2004-Ohio-156, ¶24, this court held that “the state has the

burden of establishing the chain of custody of a specific piece of evidence.      The state’s

burden, however, is not conclusive since ‘the state need only establish that it is reasonably

certain that substitution, alteration or tampering did not occur.’       Even if a chain of

custody is broken, it goes to the weight afforded the evidence, not its admissibility.”

(Internal citations omitted.)

       {¶ 42} An analyst for the Ohio Bureau of Criminal Identification and Investigation

testified that the Euclid Police Department submitted evidence for testing associated with

defendant’s case.   The analyst testified that he performed the tests on the evidence shown

to him at trial, and he was sure of this because he recognized his initials, which he had

made across the seal at the bottom of the evidence envelope.            He testified that the

evidence consisted of “two paper packets, each containing a white substance.             That
substance was weighed in an amount of 0.3 grams and found to contain cocaine.” Asked

what happens to the evidence after the tests are completed, the analyst testified as follows:

“I seal it back up.   All of the containers that I received it in are sealed by me, marked by

me with the proper documentation.      It’s then placed in a locked evidence vault where it

remains until the Euclid Police Department came to retrieve their evidence.”

       {¶ 43} Defendant presented no evidence to contradict or call into question this

testimony. Accordingly, we find that the jury did not lose its way in convicting defendant

of drug possession. Defendant’s second assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




JAMES J. SWEENEY, PRESIDING JUDGE

LARRY A. JONES, J., and
MARY EILEEN KILBANE, J., CONCUR
