[Cite as State v. Tucker, 2019-Ohio-574.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 2017-CA-87
                                                  :
 v.                                               :   Trial Court Case No. 2017-CR-385
                                                  :
 JASON TUCKER                                     :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                           Rendered on the 15th day of February, 2019.

                                             ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 545 Metro Place South, Suite 100, Dublin,
Ohio 43017
      Attorney for Defendant-Appellant

                                            .............
                                                                                          -2-


HALL, J.

       {¶ 1} Jason Tucker appeals from his conviction and sentence on one count of

cocaine possession, a third-degree felony.

       {¶ 2} Tucker’s appointed appellate counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of

any non-frivolous issues for review. Appellate counsel has identified potential

assignments of error concerning (1) the trial court’s denial of a continuance, (2) trial

counsel’s failure to file a suppression motion and failure to object to evidence of an arrest

warrant for Tucker, and (3) the trial court’s imposition of a three-year prison sentence to

be served consecutively to another sentence. Appellate counsel concludes that these

assignments of error lack arguable merit and that pursuing them would be frivolous.

       {¶ 3} We notified Tucker of the Anders filing and invited him to file a pro se brief.

Tucker responded with a brief asserting the following four assignments of error:

              I. First Assignment of Error: Due process was denied under 5th, 6th,

       8th, and 14th Amendments of the U.S. Constitution when Trial Court abused

       its discretion where it knowingly entered tainted/adulterated evidence into

       defendant’s trial.

              II. Second Assignment of Error: Trial Counsel was ineffective for not

       filing a motion to suppress, and for not objecting to the state’s introduction

       of tainted/adulterated evidence into Defendant-Appellant’s trial.

              III. Third Assignment of Error: The trial court erred in imposing a

       three-year prison term for Appellant of a third-degree felony when in fact the

       conviction was based on tainted/adulterated evidence and the conviction
                                                                                         -3-


       should have been applied to one of a lesser degree.

              IV. Fourth Assignment of Error: Due process was denied under 5th,

       6th, 8th, and 14th Amendments of the U.S. Constitution when Trial Court

       abused its discretion where it knowingly entered evidence that broke the

       chain of custody into Appellant’s trial.

(Appellant’s brief at 1.)

       {¶ 4} The record reflects that Tucker was subjected to a traffic stop after a

Springfield police officer ran a license plate check and discovered that the vehicle’s owner

had an arrest warrant. After confirming that the warrant was for Tucker, the officer

arrested him. A search incident to arrest resulted in the discovery of marijuana and a

digital scale in his possession. At jail, a deputy searched Tucker and found a baggie of

marijuana. The deputy also found two baggies of what appeared to be crack cocaine in

Tucker’s crotch area. According to the deputy, Tucker stated that he forgot about the

cocaine and acknowledged that it would be a felony for bringing it into the jail. Testing

confirmed that the substance in the two baggies was crack cocaine with an aggregate

weight of approximately 13 grams.

       {¶ 5} Tucker was indicted on charges of cocaine trafficking (F2), cocaine

possession (F3), and illegal conveyance of drugs into jail (F3). Prior to trial, the State

dismissed the illegal conveyance charge. A jury then found Tucker guilty of cocaine

possession but not guilty of cocaine trafficking. At sentencing, the trial court imposed a

three-year prison term consecutive to a six-month sentence imposed in another case.

This appeal followed.

       {¶ 6} In his Anders brief, appointed appellate counsel first addresses the trial
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court’s denial of a continuance. On the morning of trial, defense counsel sought a

continuance to obtain past employment records for Tucker, to subpoena two witnesses,

and to review additional discovery with Tucker. The trial court discussed the matter with

the parties at length and ultimately declined to continue the trial to another day. The trial

court did, however, grant defense counsel 40 minutes to review certain discovery with

Tucker, who had not seen it. (Trial Tr. at 6-22.)

       {¶ 7} The denial of a continuance is a matter left to the sound discretion of the trial

court and will not be reversed absent an abuse of discretion. State v. Unger, 67 Ohio

St.2d 65, 67, 423 N.E.2d 1078 (1981). “There are no mechanical tests for deciding when

a denial of a continuance is so arbitrary as to violate due process. The answer must be

found in the circumstances present in every case, particularly in the reasons presented

to the trial judge at the time the request is denied.” (Citation omitted.) State v. Fairman,

2d Dist. Montgomery No. 24299, 2011-Ohio-6489, ¶ 18; State v. Jones, 2d Dist. Clark

No. 2013 CA 118, 2014-Ohio-4605, ¶ 15.

       {¶ 8} We agree with appointed appellate counsel that challenging the trial court’s

denial of a continuance would be frivolous. The purpose for obtaining the employment

records was to show that Tucker was consistently employed and that he was too busy to

be a cocaine trafficker. (Trial Tr. at 10.) Tucker wanted to subpoena a Madison County

police officer (who had arrested him in another case) to support his argument that he

used drugs but that he was not a drug trafficker. He wanted to subpoena a female

passenger in his car to support his argument that he was not a drug trafficker and possibly

to support an argument that he had forgotten about the cocaine in his possession and

unintentionally brought it into the jail. (Id. at 14-17.) As Tucker’s appellate counsel notes,
                                                                                          -5-


however, the State dismissed the illegal conveyance charge, and a jury acquitted Tucker

of cocaine trafficking. Therefore, he cannot have been prejudiced by the trial court’s ruling

with regard to the employment records or the desired subpoenas.

       {¶ 9} As for the discovery issue, defense counsel explained that he had not yet

reviewed the bill of particulars, the State’s witness list, and the cocaine lab results with

Tucker. (Id. at 7.) The trial court delayed the start of trial by 40 minutes to allow defense

counsel to confer with Tucker on these issues. (Id. at 21.) We see no non-frivolous

argument about the trial court’s handing of this issue.

       {¶ 10} Appointed appellate counsel next raises a potential assignment of error

alleging ineffective assistance of trial counsel for failing to file a suppression motion and

for not objecting to the State’s introduction of evidence about Tucker’s arrest warrant.

Appellate counsel again concludes that pursuing these issues would be frivolous, and we

agree. Tucker wanted a suppression motion to be filed because he denied making any

incriminating statements after receiving his Miranda rights. (Id. at 13.) The trial court

correctly responded: “Well, with respect to the suppression motion, if the Defendant’s

position is that he did not make the statements, then there would be no basis for a

suppression motion. That would just be a factual issue for the jury.” (Id. at 13, 21.) As for

the arrest warrant, the State introduced that information because it was the basis for

Tucker’s arrest. Defense counsel requested an appropriate limiting instruction on the

issue, and the trial court gave one. (Id. at 133, 135-136.) We see no non-frivolous issue

for appeal.

       {¶ 11} In his final potential assignment of error, appointed appellate counsel

addresses whether the trial court erred in imposing a three-year prison term consecutive
                                                                                            -6-


to a six-month term in Madison County. Defense counsel concludes that the sentence

was within the statutory range and was authorized by law, that it was supported by the

record, that the trial court made the necessary findings for consecutive sentencing, and

that Tucker properly was advised about post-release control. We agree. The only

conceivable issue is whether the trial court erred in imposing its sentence consecutive to

the other sentence. The record reflects, however, that the trial court made the requisite

findings. (Sentencing Tr. at 4-5.) In light of Tucker’s criminal history, which includes

several prior prison terms, we see no non-frivolous argument that the record clearly and

convincingly fails to support those findings.

       {¶ 12} We turn now to Tucker’s pro se brief. In his first assignment of error, he

complains about the introduction of “tainted/adulterated evidence” at trial. His argument

is an amalgamation of legal concepts, but they all flow from his belief that forensic scientist

Megan Snyder mishandled and improperly tested the cocaine at issue. He contends

Snyder touched both bags of cocaine without changing gloves. He also claims she never

cleaned the tools and utensils used during her testing. He additionally mentions an

unspecified chain-of-custody issue.

       {¶ 13} Upon review, we find no non-frivolous issue with regard to Tucker’s claims

about “tainted/adulterated evidence.” His claims are founded on defense counsel’s

closing argument, which theorized that the cocaine might or could have been tainted or

handled improperly because the prosecutor did not discuss the issue in much detail with

Snyder, leaving room for reasonable doubt. Significantly, the record contains no

affirmative evidence that Snyder actually did taint, mishandle, or improperly test the

cocaine. On direct examination, Snyder testified about taking the two baggies of cocaine
                                                                                        -7-


police obtained from Tucker and placing the contents in two separate zip bags that were

made exhibits at trial. (Trial Tr. at 120.) She then took a sample from each bag and

analyzed it separately, even though the two bags appeared to contain the same

substance. (Id. at 121-122.) Her testing confirmed the presence of cocaine in each of the

two samples. (Id. at 122.) She testified that the combined weight of the contents of the

two bags was approximately 13.07 grams. (Id.)

       {¶ 14} On cross examination, defense counsel elicited from Snyder the fact that

she lacked independent recollection and that she had refreshed her memory with her

written lab report. (Id. at 125.) Snyder also acknowledged that her written report did not

state whether she had tested the contents of each bag separately. (Id. at 128.) She also

agreed that her report did not reflect the weight of the contents of each bag separately.

(Id. at 129.)

       {¶ 15} In his closing argument, defense counsel pointed out that Snyder had said

nothing about how she transferred the contents of the baggies obtained from Tucker into

her own bags. Counsel theorized that “cross-contamination” may have occurred. He also

argued that Snyder “never testified as to how the custody was in that process” and “never

said exactly how she did the testing.” (Id. at 150-151.) Despite Snyder’s testimony that

she tested the contents of each bag separately, defense counsel asserted that she might

have combined the contents the two bags, one of which contained cocaine and one of

which did not, and then tested the combined substance. (Id. at 152.) Defense counsel

also argued that Snyder should have testified about wearing and changing gloves and

about being sure the lab was free of “contaminants.” (Id. at 153-154.)

       {¶ 16} Defense counsel did a proficient job trying to create reasonable doubt in the
                                                                                            -8-


jury’s mind and to point out weaknesses in the State’s case. Nothing in the record

establishes, however, that Snyder necessarily did taint, mishandle, or improperly test the

cocaine. In the end, these were issues for the jury to consider when deciding how much

weight to give Snyder’s testimony. Based on our review of the trial transcript, we see no

non-frivolous argument as to whether Tucker’s conviction was based on legally

insufficient evidence or was against the manifest weight of the evidence.

       {¶ 17} We also see no arguable basis for Tucker’s claim involving a chain-of-

custody issue (an issue we will address more fully below), his claim that the trial court

failed to control the proceedings, or his claim that defense counsel provided ineffective

assistance by failing to “completely investigate the circumstances of the evidence.” Nor

do we find arguable merit in Tucker’s claim that he should have been convicted of a

lesser-degree offense (another issue we will address more fully below), his claim that the

trial court should have granted a continuance on the basis of “tainted” evidence, his claim

that the trial court should have “suppressed” the “tainted” evidence, or his claim that it

violated his due process rights. Accordingly, his first assignment of error is overruled.

       {¶ 18} In his second assignment of error, Tucker contends his attorney provided

ineffective assistance by not filing a motion to suppress and by not objecting to the

“tainted/adulterated evidence” discussed above.

       {¶ 19} Unlike the suppression issue addressed in our analysis of appointed

appellate counsel’s Anders brief, Tucker raises a different issue. He contends his trial

counsel rendered ineffective assistance by not seeking to “suppress” the cocaine on the

basis that it was tainted and improperly tested. He also argues that his attorney should

have objected when the State introduced the “tainted” evidence. These arguments lack
                                                                                           -9-


arguable merit and are frivolous. Defense counsel’s cross examination went to the weight

of Snyder’s testimony about the cocaine, but the record reveals no basis whatsoever for

“suppressing” that evidence. Similarly, defense counsel acted competently by cross

examining Snyder about her lab testing and by trying to create reasonable doubt in the

jury’s mind during closing arguments rather than “objecting” when the State presented

Snyder’s testimony. The second assignment of error is overruled.

       {¶ 20} In his third assignment of error, Tucker contends he should have been

convicted   of   a   lesser-degree    offense   due    to   the   State’s   presentation   of

“tainted/adulterated evidence” and an unspecified break in the chain of custody. He

argues that, as a result of Snyder tainting the evidence, there is no way to know how

much cocaine he possessed. Therefore, he asserts that he should have been convicted

of the lowest degree of the offense of cocaine possession rather than a third-degree

felony. In support, he cites State v. Pelfrey, 2d Dist. Montgomery No. 19955, 2005-Ohio-

5006, which addressed an entirely different issue.

       {¶ 21} In Pelfrey, this court applied R.C. 2945.75 and held that when the presence

of an element makes an offense one of more serious degree, a guilty verdict must either

state the degree of the offense of which the defendant is found guilty or must state that

the additional element is present. Otherwise, a guilty verdict constitutes a finding of guilt

of the least degree of the offense. The Ohio Supreme Court affirmed in State v. Pelfrey,

112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735.

       {¶ 22} Here the jury’s verdict form specified that Tucker had possessed between

ten and twenty grams of cocaine. This finding as to quantity made the offense a third-

degree felony, and Tucker properly was convicted and sentenced for a third-degree felony
                                                                                          -10-

consistent with Pelfrey. Tucker’s argument that Snyder’s testimony failed to establish his

possession of approximately 13.07 grams of cocaine because of tainting or errors in her

testing goes to either the legal sufficiency or manifest weight of the evidence, which are

issues that we touched upon above. His argument does not raise a true Pelfrey issue.

Accordingly, we see no non-frivolous issue for appellate review. The third assignment of

error is overruled.

       {¶ 23} In his final assignment of error, Tucker contends the trial court erred when

it “knowingly entered evidence that broke the chain of custody.” We see no non-frivolous

chain-of-custody issue. Police officer Eric Flemming testified that the drugs at issue were

taken from Tucker and placed in a property envelope and sent to the Bureau of Criminal

Investigation in London, Ohio. (Trial Tr. at 91, 94.) Snyder testified that incoming evidence

is assigned a barcode number and placed in a vault. (Id. at 119.) She explained that the

drugs she tested were in baggies inside an envelope with an identifying barcode. (Id. at

120.) She also testified about taking the drug evidence into her custody, bringing it to her

lab, and testing it. (Id. at 121.) Any chain-of-custody complaint Tucker might have would

go to the weight of the evidence, not its admissibility. State v. Maranger, 2018-Ohio-1425,

110 N.E.3d 895, ¶ 74 (2d Dist.) Therefore, an argument about the trial court admitting

evidence with an inadequate chain of custody is wholly frivolous. Regardless, Tucker’s

real argument appears to be related to his “tainted evidence” claim, which we addressed

above. The fourth assignment of error is overruled.

       {¶ 24} Finally, in accordance with our responsibilities under Anders, we

independently have reviewed the record and have found no non-frivolous issues for

appellate review.
                                                                                -11-


      {¶ 25} The judgment of the Clark County Common Pleas Court is affirmed.

                                  .............



DONOVAN, J. and FROELICH, J., concur.


Copies sent to:

Andrew P. Pickering
April F. Campbell
Jason Tucker
Hon. Douglas M. Rastatter
