[Cite as State v. Drummond, 2012-Ohio-1468.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 16-11-08
v.
SHANNON L. DRUMMOND, OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court Trial Court No. 11-CR-0022
Judgment Affirmed
Date of Decision: April 2, 2012
APPEARANCES:
Howard A. Elliott for Appellant
Jonathan Miller and Douglas D. Rowland for Appellee Case No. 16-11-08
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Shannon L. Drummond (“Drummond”), appeals
the judgment of the Wyandot County Court of Common Pleas sentencing him to
prison for four years after a jury found him guilty on two counts of aggravated
possession of drugs. On appeal, Drummond contends that the trial court erred in
admitting evidence and testimony; that he was denied effective assistance of
counsel; and, that the jury’s decision was against the manifest weight of the
evidence. For the reasons set forth below, the judgment is affirmed.
{¶2} On March 16, 2011, the Wyandot County Grand Jury returned a two-
count indictment against Drummond for aggravated trafficking in drugs
(Methadone), in an amount greater than bulk but less than five times bulk, in
violation of R.C. 2925.03(A)(1), both felonies of the third degree. The indictment
resulted from Drummond selling Methadone pills, a Schedule II controlled
substance, to a confidential informant on October 4th and October 15th in 2010.
{¶3} A two-day jury trial was held on July 26 and 27, 2011. Deputy
Richard Kesler, a deputy sheriff for the Wyandot Sheriff’s Department for more
than twenty years, testified about the two drug buys that occurred when Danica, a
confidential informant who had been working for the sheriff’s department,
purchased Methadone pills from Drummond in two arranged drug buys on
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October 4 and 15, 2010. (Tr. p 70) Deputy Kesler testified that Danica and
Drummond made arrangements to meet at an agreed upon location for each buy.
Prior to the meetings, Danica and her vehicle were thoroughly searched to be sure
she did not have any drugs or contraband on her. She was given $300 in bills (that
were photocopied for identification) and the plan was to buy fifty Methadone pills
with the money. Danica was also fitted with a wire, both for safety and so that
their conversations could be monitored and recorded. Deputy Kesler testified
about how he waited nearby and listened during the drug buys; about what he
heard and was able to see; and that Danica turned over to him the bag containing
the Methadone pills immediately after each buy was concluded. Recordings of
both of the transactions were played for the jury and admitted into evidence. (See
Exhibits 1 and 2)
{¶4} Deputy Kesler testified that he arrested Drummond on March 19,
2011. He did not arrest him sooner because they wanted to continue to utilize
Danica as a confidential informant for other drug buys, and their ability to do so
would be compromised once Drummond was arrested and he learned of Danica’s
role.
{¶5} Danica then testified and explained in detail how she came to be used
as a confidential informant and freely admitted that she was doing it for the
money, as she was usually paid $100 for each drug buy. (Tr. p. 114) She testified
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concerning the details of each of the drug buys, including the locations, how the
arrangements were made, the conversations she had with Drummond, and how she
would give Drummond $300 and he would hand her the pills in a plastic bag.
{¶6} Chief Richard Blankenship of the Sycamore Police Department also
testified about his participation in the drug buys. (Tr. p. 165) Chief Blankenship,
who had just recently been promoted to chief, had been the police officer who
worked closely with Deputy Kesler and Danica in October of 2010 for the drug
buys, and was present during both of them. The chief confirmed and added to the
facts and details of their testimony, including all of the procedures that were
followed, both before and afterwards, to ensure that there was no doubt that the
drugs had come from Drummond.
{¶7} Lieutenant Todd Frey of the Wyandot County Sheriff’s Department
was in charge of the evidence room, and he testified as to the security in the
evidence room and the procedures used to safeguard the evidence and keep track
of the chain of custody. (Tr. p. 186) Lt. Frey identified the two packages of pills,
State’s Exhibits 3 and 4, containing 50 and 46 pills1 respectively, as the evidence
that was received and logged in from the two October drug buys. Lt. Frey further
testified that the drugs were sent to the Mansfield Police Forensic Science
1 There were supposed to be 50 pills purchased at each of the drug buys, but only 46 pills were received on October 15th. There was testimony that it was not uncommon for a purchase to be “shorted” at times. Danica testified that she only pretended to actually count the pills when she was with Drummond, and didn’t realize that there were fewer pills.
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Laboratory for testing. The laboratory report identified the two bags of pills, and
the results of the examination on the contents were as follows:
#1: 50 white tablets, weighing 6.21 grams, were found to contain Methadone, a Schedule II controlled substance.
#2: 46 white tablets, weighing 5.72 grams, were found to contain Methadone, a Schedule II controlled substance.
The laboratory report was admitted into evidence, by agreement of both parties, as
Joint Exhibit 1. (Tr. pp. 189-90)
{¶8} Robert Amiet, Jr., a pharmacist employed by the Ohio State Board of
Pharmacy, testified about how controlled substances in general are classified, how
they are weighed and measured, how the “bulk amount” of controlled substances
is determined, and how Methadone tablets are classified. (Tr. pp. 146-155) The
trial court agreed to allow Mr. Amiet to testify as an expert witness after he gave a
summary of his education, qualifications, credentials, and experience, which
included: a Bachelor’s degree in pharmacy and a Master’s degree in business
administration; over twenty-four years of employment with the Ohio State Board
of Pharmacy; lecturer for the Board of Pharmacy on the drug laws of Ohio that
pertain to pharmacy; author of The Controlled Substance Reference Table for the
Board of Pharmacy; membership in several professional organizations in his field;
and designation as an expert witness in numerous state and federal court cases.
(Tr. pp. 147-151)
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{¶9} Mr. Amiet was shown the State’s two exhibits containing the pills
purchased by Danica and asked to identify them. (Tr. p. 152) Based on their
markings and color, he identified the pills as a Methadone, 5 mg. tablets. (Tr. p.
153) Mr. Amiet then discussed many of the properties and characteristics of
Methadone and explained why they were categorized as a Schedule II substance.
The State then asked Mr. Amiet if he could explain whether the amount of these
bags of pills, each separately, constituted a bulk amount of Methadone. (Tr. p.
156) Mr. Amiet explained that by either doing the mathematics, or referring to the
table, thirty 5 mg. tablets of Methadone constituted a bulk amount for that
particular type of drug. (Tr. pp. 156-161) The Report of Investigation that Mr.
Amiet created as a result of his examination of these drugs was also admitted into
evidence, without objection, as State’s Exhibit 6, and stated:
This Specialist identified the white tablets with the imprint “M5755” as methadone 5 mg. tablets, a Schedule II Controlled Substance. (Attachment #1). The Mansfield Forensic Science Lab confirmed, by chemical analysis, that the white tablets with imprint “M5755”contain methadone (Attachment #2).
Pursuant to Section 2925.01(D), ORC, the definition of Bulk Amount, this Specialist determined the Bulk Amount of methadone 5 mg. tablets is thirty (30) tablets. This is further documented in the Controlled Substance Reference Table (Attachment #3).
Pursuant to the definition of Bulk Amount, the “maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual” was taken from the American Hospital Formulary Service Drug Information (Attachment #4). The American Hospital
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Formulary Service Drug Information is a standard pharmaceutical reference as defined in Section 5729-11-07, OAC (Attachment #5).
{¶10} After each of the State’s witnesses testified, Drummond’s attorney
thoroughly cross-examined each witness and posed questions to attempt to raise
issues as to their credibility, motivation, consistency, and any other matters that
could possibly raise doubt in the jurors’ minds. Drummond’s attorney also moved
for a Crim.R. 29 motion for acquittal at the close of the State’s case, which was
denied by the trial court.
{¶11} The jury found Drummond guilty on both counts of trafficking in
drugs as charged in the indictment, and it also found that the amount of drugs
involved in each offense was equal to or greater than the bulk amount. The
sentencing hearing was held on August 24, 2011, and the trial court sentenced
Drummond to a mandatory two-year prison term on each count, with the sentences
to be served consecutively to each other. It is from this judgment that Drummond
now appeals, raising the following four assignments of error for our review.
First Assignment of Error
The trial court erred in admitting the testimony of Robert Amiet, instructing the jury on portions of the Ohio Revised Code testifying on what constitutes a bulk amount of a controlled substance. Second Assignment of Error
The trial court erred in admitt[ing] the laboratory report of the drug analysis as it was not supported by a sufficient foundation as a business record.
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Third Assignment of Error
[Drummond] was denied his right to a fair jury trial by virtue of his trial court counsel rendering ineffective assistance of counsel.
Fourth Assignment of Error
The conviction of Drummond is against the manifest weight of the evidence.
First Assignment of Error – Testimony concerning “bulk” amount
{¶12} In his first assignment of error, Drummond asserts that the trial court
erred in allowing Mr. Amiet to testify that the drugs in this case exceeded the bulk
amount. He claims that such a determination went to an essential element of the
offense and that it was up to the jury to determine whether or not the drugs
constituted a bulk amount, not Mr. Amiet.
{¶13} Drummond acknowledges that there was no objection to Mr. Amiet’s
testimony, his report, or the jury instructions, so he has waived all but plain error
on this matter. See State v. Johnson, 164 Ohio App.3d 792, 2005–Ohio–6826, ¶
53. Plain error does not exist unless it can be said that, but for the error, the
outcome would clearly have been different. State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978). Notice of plain error under Crim.R. 52(B) is to be taken with
the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice. Id.
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{¶14} Drummond cites to three cases that he claims stands for the
proposition that “it is the court’s obligation to advise the jury as to the law,” and
therefore, he claims that “the trial court failed to instruct the jury as to the law and
its obligations were usurped by the admission of the testimony of Mr. Amiet.”
(Appellant’s Br. p. 6) See State v. Feltner, Miami App. No. 88-CA-34, 1989 WL
94550; State v. Morales, 5th Dist. 2004-CA-68, 2005-Ohio-4714; State v. Fisher,
5th Dist. CAA 04 20, 2006-Ohio-2201. However, Drummond misstates the
findings in those cases and takes them out of context. The issue in all three of
those cases was that the defendant was complaining that there was not any or not
enough expert testimony to establish that they were in possession of a bulk amount
of a controlled substance. Feltner (“Appellant argues that the court was required
to have testimonial or other verified proof that cocaine is a ‘controlled substance’
and as to the definition of ‘bulk amount.’”); Morales at ¶ 53 (“Appellant further
argues that because there was no testimony as to bulk amount, the jury erred in
convicting him of possession of 100 times the bulk amount.”); Fisher at ¶ 13
(“Appellant maintains the state was required to present testimonial evidence of the
maximum daily dosage of Oxycontin as specified in a standard pharmaceutical
reference manual.”)
{¶15} The decisions in the cases relied upon by Drummond stated that the
jury instructions given were sufficient and met the requirements of the law. Id.
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Further testimony by experts in those cases was not required, but there was
nothing that would indicate that it would have been prohibited. Id.
{¶16} There are numerous cases where the State has presented expert
testimony, similar to the testimony in this case, in order to provide information to
the jury as to the classification of controlled substances, and such testimony has
been upheld on appeal. See, e.g., State v. Bange, 4th Dist. No. 10CA3160, 2011-
Ohio-378, ¶5; State v. Brown, 12th Dist. CA2003-02-004, 2004-Ohio-424, ¶ 7;
State v. Hamlin, 5th Dist. No.2002CA00162, 2003-Ohio-544, ¶12. In fact, in the
three examples cited, Bange, Brown, and Hamlin, Mr. Amiet was the expert
witness providing testimony very much like he gave in this case. See id.
{¶17} The trial court properly instructed the jury concerning the law and
the definition of bulk amount. (See Tr. p. 239) In addition, Mr. Amiet explained
what was required in order to determine what constitutes a bulk amount of drugs.
Pursuant to the mathematical formulas and the pharmaceutical tables, in this case a
bulk amount of these drugs constituted thirty pills. He never testified as to
whether or not the quantity of pills sold by Drummond actually was a bulk
amount, but the jury was able to use the information provided to make that
determination. In any case, Evid.R. 704, concerning the testimony of expert
witnesses, provides that opinion evidence is not objectionable solely because it
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embraces an ultimate issue of fact. See, also, State v. Stowers, 81 Ohio St.3d 260,
261, 1998-Ohio-632.
{¶18} Without the assistance of an explanation of the definition of bulk
amount, it would be very difficult for laypersons to understand what constitutes
the bulk amount of various controlled substances. Mr. Amiet, given his
experience, training and skill, testified appropriately and assisted the State in
providing information on the determination of a bulk amount. Because Mr. Amiet
authored the Controlled Substance Reference Table, he was a most appropriate
person to explain its meaning. Drummond’s first assignment of error is overruled.
Second Assignment of Error – Admission of drug analysis lab report
{¶19} Drummond’s second assignment of error argues that the introduction
of the Mansfield Police Forensic Science Laboratory Drug Analysis Report (Joint
Exhibit 1) was not properly admitted because of a lack of sufficient foundation as
a business record, citing to State v. Crager, 166 Ohio St.3d 369, 2007-Ohio-6840,
judgment vacated and remanded, 123 Ohio St.3d 1210, 2009-Ohio-4760, and that
its admission without the testimony of the person conducting the analysis violated
his rights under the confrontation clause, citing to Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).
{¶20} First, we note that Drummond failed to object to the admission of the
report, again waiving all but plain error. See, Lang, 129 Ohio St.3d 512, supra.
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Not only did Drummond fail to object to the introduction of the drug analysis
report prepared by Anthony Tambasco, but he joined with the State in the
introduction of the document as a joint exhibit.
{¶21} It is well-established that an attorney may waive a client's Sixth
Amendment right to confrontation. State v. Pasqualone, 121 Ohio St.3d 186,
2009-Ohio-315, at paragraph one of the syllabus; Melendez-Diaz, 129 S.Ct. at
2534, fn. 3. A defendant may also waive the opportunity to cross-examine a
laboratory analyst at trial and allow the report to be admitted as prima facie
evidence of the test results. Pasqualone at paragraph two of the syllabus.
{¶22} In this case, Drummond’s attorney originally requested that the
laboratory analyst appear at trial pursuant to his rights under R.C. 2925.51.
However, at some point, he no longer chose to pursue that right and agreed to
admit the laboratory report as a joint exhibit, without any further foundation.
Therefore, any error that resulted from the introduction of the document would be
invited error. The doctrine of invited error holds that a litigant may not “take
advantage of an error which he himself invited or induced.” State v. Campbell, 90
Ohio St.3d 320, 324, 2000-Ohio-183, citing to Hal Artz Lincoln–Mercury, Inc. v.
Ford Motor Co., 28 Ohio St.3d 20 (1986), paragraph one of the syllabus.
Drummond cannot expect to benefit on appeal, given that he participated in the
admission of the document.
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{¶23} Furthermore, the information concerning the drugs that was
contained in the report was already testified to by another expert witness, Mr.
Amiet, and was included in his investigative report, admitted as State’s Exhibit 6.
Therefore, the information contained in the laboratory report was already properly
before the jury. Requiring a second expert witness to identify the drug and
introduce the drug test results would have been redundant. There is no indication
that such testimony would have affected the outcome of the trial in any way. By
agreeing to the introduction of the drug test results, the defense merely eliminated
the necessity that the State call a second expert witness to testify. Drummond’s
second assignment of error is overruled.
Third Assignment of Error – Ineffective assistance of counsel
{¶24} Drummond contends that his trial counsel’s performance was
ineffective and fell below the minimum standards. He cites to three specific areas
where he claims trial counsel’s performance was ineffective: (1) in failing to
object to Mr. Amiet’s testimony; (2) in allowing the admission of the drug analysis
laboratory report as a joint exhibit without a proper foundation; and, (3) in failing
to question the jurors during voir dire “as to any particular bias’ or lack thereof.”
(Appellant’s Brief, p. 10) Drummond asserts that his counsel’s actions cannot be
excused as being a “trial tactic.”
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{¶25} We have already discussed the testimony of Mr. Amiet in the first
assignment of error, and found that there was no error in allowing his testimony.
Therefore, Drummond’s counsel could not have been ineffective for failing to
object to his testimony.
{¶26} The decision to admit the laboratory report as a joint exhibit was
likely a tactical decision done so as to not require the State to call a second expert
witness to further drive home the point that the drugs involved in the case
constituted a bulk amount of methadone. And, as stated above, that information
was already before the court, and the State could have easily reinforced Mr.
Amiet’s testimony with a second expert witness. We find no error in this trial
tactic.
{¶27} And finally, Drummond complains that his counsel failed to question
the potential jurors during voir dire. Drummond asserts that while “the Court
asked a series of questions on voir dire and the State also asked questions of a
number of potential jurors, the Defendant’s counsel was silent, declining to make
inquiries.” (Appellant’s Br. p. 10)
{¶28} We find that there is no merit in this last assertion because: (1) the
record disproves Drummond’s claim that his counsel “was silent”; and, (2) it was
evident from the record that his counsel’s choice of questioning was a trial
technique.
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{¶29} It is an accepted fact that “voir dire is largely a matter of strategy and
tactics * * *.” State v. Keith, 79 Ohio St.3d 514, 521, 1997-Ohio-367. “Debatable
trial tactics generally do not constitute a deprivation of effective counsel.” State v.
Phillips, 74 Ohio St.3d 72, 85, 1995-Ohio-171, citing State v. Clayton, 62 Ohio
St.2d 45, 49 (1980). “The conduct of voir dire by defense counsel does not have
to take a particular form, nor do specific questions have to be asked.” State v.
Evans (1992), 63 Ohio St.3d 231, 247 (1992). Additionally, we give deference to
decisions by trial counsel during voir dire because trial counsel sees and hears
jurors and is in the best position to determine whether voir dire questions are
needed. State v. Sanders, 92 Ohio St.3d 245, 274, 2001-Ohio-189, citing State v.
Bradley, 42 Ohio St.3d 136, 143 (1989).
{¶30} There was no need for Drummond’s counsel to ask many questions
because the trial court and the State had already asked most of the basic and
fundamental questions necessary to determine whether any of the jurors had any
impermissible bias or prejudice, or any other issues that would interfere with their
service as a juror. (Tr. pp. 6-36) And, contrary to Drummond’s assertions, his
counsel did address the jurors and pose questions. (Tr. pp. 36-39) It was clear
that his intention was to be brief, as he promised the jurors that he would “be
brief” in order to avoid them getting that “glassy-eyed look” that might come from
lawyers talking too much. (Tr. p. 36) However, in his brief discourse, his
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counsel: complimented the jury on the life experiences and common sense that
they brought to the procedures; discussed the importance of making independent
decisions; asked whether there was anyone who was not capable of making an
individual choice to vote their conscience, even if it meant being the lone
dissenter; and, he questioned them as to whether they would be able to vote “not
guilty” if that was what they truly believed, even though the defendant had been
arrested and charged by the State. (Tr. pp. 37-38)
{¶31} We find no deficient performance in Drummond’s trial counsel’s
conduct during voir dire. It is clear that his choice to limit his questioning was a
planned trial tactic. Therefore, based on all of the above, the third assignment of
error is overruled.
Fourth Assignment of Error – Manifest Weight
{¶32} In his final assignment of error, Drummond argues that the jury’s
verdict was against the manifest weight of the evidence. Drummond claims that,
based upon the improper admission of Mr. Amiet’s testimony and the improper
admission of the laboratory report, the conviction cannot be sustained because
both of those arguments go to the essential elements of the offense and the
conviction cannot be sustained without that evidence.
{¶33} In determining if a conviction is against the manifest weight of the
evidence, an appellate court “review[s] the entire record, weighs the evidence and
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all reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.” State v. Mendoza, 137 Ohio App.3d 336, 346–347 (3d
Dist.2000), quoting State v. Martin, 20 Ohio App.3d 172, 175, (1st Dist.1983);
see, also, State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). A new trial should
be granted only in the exceptional case in which the evidence weighs heavily
against conviction. Thompkins at 387.
{¶34} Although the appellate court acts as a “thirteenth juror,” it still must
give due deference to the findings made by the fact-finder. State v. Thompson,
127 Ohio App.3d 511, 529 (8th Dist.1998). The fact-finder, being the jury,
occupies a superior position in determining credibility. Id. When examining
witness credibility, “[t]he choice between credible witnesses and their conflicting
testimony rests solely with the finder of fact and an appellate court may not
substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio
St.3d 120, 123 (1986). To reverse the judgment of a trial court on the weight of
the evidence based upon a jury's verdict, a unanimous concurrence of all three
judges on the reviewing panel is required. Thompkins, at paragraph four of the
syllabus.
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{¶35} Drummond’s arguments concerning this assignment of error fail for
at least two reasons. First, based upon our findings in the first and second
assignments of error, the admission of Mr. Amiet’s testimony and the admission of
the laboratory report were not in error. Therefore, this evidence could certainly be
utilized in determining Drummond’s guilt. Furthermore, the jury’s verdict was
supported by a considerable amount of additional evidence. Two experienced law
enforcement officers and the confidential informant all presented strong and
consistent testimony that would support a finding that Drummond was guilty of
trafficking in the drugs. And, their testimony was further reinforced by the
recordings of the drug transactions.
{¶36} The weight of the evidence was greatly in favor of the State.
Drummond’s fourth assignment of error is overruled.
{¶37} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
PRESTON and ROGERS, J.J., concur.
/jlr
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