State v. Gaver

2016 Ohio 4621

• Court: Ohio Court of Appeals
• Decided: June 20, 2016
• Docket: 15CA61
• Status: Published

Opinion

[Cite as State v. Gaver, 2016-Ohio-4621.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 15CA61 : ADRIAN L. GAVER : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2015 CR 0318 D

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: June 20, 2016

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

BAMBI COUCH PAGE ROBERT GOLDBERGER RICHLAND CO. PROSECUTOR 10 West Newlon Place DANIEL M. ROGERS Mansfield, OH 44902 38 S. Park St. Mansfield, OH 44902 Richland County, Case No. 15CA61 2

Delaney, J.

{¶1} Appellant Adrian L. Gaver appeals from the June 23, 2015 Sentencing Entry

of the Richland County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} On April 3, 2015, Billy and Gerald Watson lived together in a house trailer

on Spayde Road in Bellville, Richland County, which is within sight of the home of their

relatives James and Peggy Watson, also on Spayde Road. Around 3:00 p.m., someone

came to the door of the house trailer and asked Billy for directions to I-71. Gerald Watson

overheard the conversation and found it strange because the trailer was within a very

short distance of I-71.

{¶3} Gerald watched the person return to a dark-colored Pontiac minivan. The

minivan proceeded down Spayde Road and pulled in behind James Watson’s house.

Gerald walked outside and then he heard a loud pounding noise. He ran back to the

trailer and called 911. While Gerald was on the phone with 911, he saw the minivan

leave the property.

{¶4} The call was dispatched as a possible burglary in progress and law

enforcement was on the scene within ten to fifteen minutes.

{¶5} Bellville officer Matthew Corwin observed the dark-colored minivan traveling

on Spayde Road approaching State Route 97, about 100 yards from the Watson

residence. Corwin stopped the minivan in a restaurant parking lot and apprehended three

passengers: driver Adrian Gaver (appellant), Anthony Queen, and Damon Lensman.

Officers noted the minivan was “packed from top to bottom” with stolen items, to the extent Richland County, Case No. 15CA61 3

there was nowhere to sit in the back seat and the van had to be towed to the Richland

County Sheriff’s Department to be inventoried.

{¶6} James and Peggy Watson, the homeowners, discovered their back door

had been kicked in. In the kitchen, someone had gone through containers of prescription

medication and taken Percocet (oxycodone) prescribed for their son’s wisdom-tooth

extraction. The master bedroom was “ransacked.” Drawers were pulled out, clothing

was scattered everywhere, and dressers and jewelry boxes were missing. The Watsons

noted they were missing a .38 Rossi revolver, two television sets, the Percocet,

miscellaneous jewelry, and personal documents including utility bills and bank deposit

slips.

{¶7} All of these missing items were discovered in the Pontiac minivan driven by

appellant and were identified as items belonging to the Watsons.

{¶8} Appellant’s accomplices, Anthony Queen and Damon Lensman, testified for

appellee at trial. The two said they asked appellant to drive them around to look for

“random nice-looking” houses to burglarize where no one was home. They intended to

steal items to exchange for drugs in Columbus. On Spayde Road, someone was home

at the first target so they proceeded to the James Watson residence. Lensman kicked in

the door and he and Queen went back and forth to the residence several times to carry

out anything of value they could grab. Appellant remained in the minivan as the driver

with instructions to honk if he saw anyone coming.

{¶9} Appellant did not call any witnesses or present any evidence on his own

behalf. Richland County, Case No. 15CA61 4

{¶10} Appellant was charged by indictment with one count of burglary pursuant to

2911.12(A)(2), a felony of the second degree; one count of theft of a dangerous drug

pursuant to R.C. 2913.02(A)(1) and (B)(6), a felony of the fourth degree; one count of

grand theft of a firearm pursuant to R.C. 2913.02(A)(1) and (B)(4), a felony of the third

degree; and one count of aggravated possession of drugs pursuant to R.C. 2925.11(A)

and (C)(1)(a), a felony of the fifth degree.

{¶11} Appellant entered pleas of not guilty and the case proceeded to trial by jury.

Appellant was found guilty as charged. The trial court found the allied offenses merged

for purposes of sentencing and appellee elected to sentence upon the count of burglary.

The trial court imposed a prison term of seven years.

{¶12} Appellant now appeals from the judgment entry of his conviction and

sentence.

{¶13} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶14} “I. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

REQUIRING REVERSAL OF HIS CONVICTION.”

ANALYSIS

{¶15} In his sole assignment of error, appellant argues he received ineffective

assistance of trial counsel because counsel failed to question the chain of custody of the

oxycodone pills and failed to object to leading questions by appellee. We disagree.

{¶16} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, Richland County, Case No. 15CA61 5

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158

(1955).

{¶17} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

{¶18} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

{¶19} Appellant first argues he received ineffective assistance of trial counsel

because counsel did not question the chain of custody of appellee’s Exhibit 27, which

contained three oxycodone pills and a metal spoon with morphine residue on it. We note

appellant fails to specify any evidence that trial counsel should have presented that would

have undermined the chain of custody. See, State v. Davis, 116 Ohio St.3d 404, 2008-

Ohio-2, 880 N.E.2d 31, ¶ 345. In establishing the chain of custody of physical evidence,

the state is not required to negate all possibilities of substitution or tampering but need

only establish that it is reasonably certain that substitutions, alterations or tampering did

not occur. State v. Williams, 5th Dist. Richland No. CA-2900, 1992 WL 100382, *1 (May Richland County, Case No. 15CA61 6

4, 1992), citing City of Avon Lake v. Anderson, 10 Ohio App.3d 297, 462 N.E.2d 188 (9th

Dist.1983), paragraph one of the syllabus.

{¶20} Appellant contends appellee failed to establish the chain of custody for the

pills between the time they were seized and when they were taken to the lab. See, State

v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 212. In support of his

argument, appellant highlights portions of two officers’ testimony purportedly

demonstrating appellee didn’t establish the pills came from the Watson house. In light of

the context of the entire case, however, appellee demonstrated Percocet was taken from

the Watson residence; Percocet is another name for oxycodone; Queen admittedly took

prescription pills from the house; and pills were found in the minivan. Appellant’s

argument at trial was that he remained ignorant of the accomplices’ plan to burglarize

homes and played no part therein, so any issue of chain of custody of the pills would have

been irrelevant. Counsel's action appears to have been a tactical decision because

nothing in the record indicates any problem with the chain of custody and given the strong

presumption that counsel's performance constituted reasonable assistance, this claim is

rejected. Lang, supra, 2011-Ohio-4215 at ¶ 213, citing Bradley, supra, 42 Ohio St.3d at

144.

{¶21} Finally, appellant argues defense trial counsel was ineffective in failing to

object to leading questions asked of accomplice Anthony Queen. Appellant points to only

one such question [“So [appellant] told you he wanted to go with you and do this at the

houses?”] which he describes as “fatal” to the defense because Lensman later testified

he didn’t know if appellant was aware of the plan to burglarize houses or not. We disagree

with appellant’s characterization because of the overwhelming evidence that appellant Richland County, Case No. 15CA61 7

aided and abetted the burglary regardless of whether the jury believed the accomplices’

testimony. Appellant initially attempted to evade Corwin during the traffic stop of the van;

he waited outside while the accomplices kicked in the door and made repeated trips to

the van with stolen items from the house; and several witnesses testified the minivan was

so stuffed with stolen items that there was only room to sit in the front seat.

{¶22} Moreover, we cannot say that trial counsel's failure to object to the question

fell below an objective standard of reasonable representation. State v. Ward, 5th Dist.

Richland No. 2011-CA-100, 2012-Ohio-4807, ¶ 30; see also, State v. McCoy, 5th Dist.

Richland No. 2005-CA-0025, 2006-Ohio-1320; State v. Rogers, 5th Dist. Licking No. 07-

CA-152, 2009-Ohio-1956. Evid.R. 611(C) provides, “[l]eading questions should not be

used on the direct examination of a witness except as may be necessary to develop the

witness' testimony.” The failure to object to leading questions does not usually constitute

ineffective assistance of counsel. State v. Jackson, 92 Ohio St.3d 436, 449, 2001–Ohio–

1266, 751 N.E.2d 946. The failure to object is not a per se indicator of ineffective

assistance of counsel because sound trial strategy might well have been not to interrupt.

State v. Gumm, 73 Ohio St.3d 413, 428, 653 N.E.2d 253 (1995).

{¶23} Appellant has not demonstrated that any claimed deficiencies of trial

counsel created “a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different.” Jackson, supra, 92 Ohio St.3d at

449, citing Strickland, 466 U.S. at 694. Appellant’s sole assignment of error is overruled. Richland County, Case No. 15CA61 8

CONCLUSION

{¶24} Appellant’s sole assignment of error is overruled and the judgment of the

Richland County Court of Common Pleas is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Baldwin, J., concur.