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Date: 01-30-2021
Case Style:
STATE OF OHIO v. MICHAEL D. BASFORD
Case Number: 20CA0017-M
Judge: James G. Carr
Court: IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Plaintiff's Attorney: S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Akron, OH - Criminal defense attorney represented Michael Basford with one count of aggravated possession of drugs and one count of possession of cocaine charge.
I.
{¶2} This matter arises out of two encounters that Basford had with law enforcement in
2018. During a traffic stop of Basford’s vehicle, an officer found what appeared to be cocaine as
well as a smoking device that contained methamphetamine. Several weeks later, officers seeking
to execute an arrest warrant for Basford went to his hotel room and found additional drugs and
drug paraphernalia.
{¶3} The Medina County Grand Jury initially returned an indictment charging Basford
with one count of aggravated possession of drugs and one count of possession of cocaine. The
grand jury then retuned a supplemental indictment charging Basford with another count of
aggravated possession of drugs. Thereafter, the indictment was supplemented on a second
2
occasion and Basford was charged with two additional counts of aggravated possession of drugs
and one count of possession of heroin. One of the counts of aggravated possession of drugs in the
second supplemental indictment was charged as a felony of the first degree because the amount of
methamphetamine involved was alleged to have equaled or exceeded fifty times the bulk amount.
Basford pleaded not guilty to all of the charges at the arraignment stage.
{¶4} The trial court set the matter for a jury trial. Prior to the commencement of trial,
Basford filed a motion to dismiss the charges on speedy trial grounds. After hearing arguments
from the parties, the trial court denied the motion. The State moved to dismiss the count of
aggravated possession of drugs contained in the first supplemental indictment. The trial court
granted the motion.
{¶5} The matter proceeded to trial and the jury found Basford guilty of all the remaining
charges. The trial court ordered a presentence investigation report. Thereafter, the trial court
imposed a five-year prison term on the count of first-degree felony aggravated possession of drugs
contained in the second supplemental indictment. The trial court imposed one-year prison
sentences on the remaining counts and ordered all of the sentences to be served concurrently for
an aggregate prison term of five years. Basford was granted jail time credit for 413 days served.
{¶6} On appeal, Basford raises five assignments of error. This Court rearranges certain
assignments of error to facilitate review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY FAILING TO DISMISS THE INDICTMENT
AGAINST APPELLANT AFTER HIS SPEEDY TRIAL RIGHTS WERE
VIOLATED.
3
{¶7} In his first assignment of error, Basford contends that the trial court violated both
his statutory rights and his constitutional rights when it denied his motion to dismiss the indictment
on speedy trial grounds. This Court disagrees.
{¶8} “When a trial court denies a motion to dismiss on speedy trial grounds, this Court
reviews questions of law de novo, but considers whether the trial court’s factual determinations
are clearly erroneous.” State v. Gall, 9th Dist. Lorain No. 18CA011445, 2019-Ohio-4907, ¶ 5,
quoting State v. Burroughs, 9th Dist. Lorain No. 14CA010595, 2016-Ohio-1139, ¶ 4. “The
Supreme Court of Ohio has found that the statutory speedy trial provisions set forth in R.C.
2945.71 are coextensive with Ohio and federal constitutional speedy trial provisions.” State v.
Purefoy, 9th Dist. Summit No. 27992, 2017-Ohio-79, ¶ 8, quoting State v. Gaines, 9th Dist. Lorain
No. 00CA008298, 2004-Ohio-3407, ¶ 9, citing State v. O’Brien, 34 Ohio St.3d 7 (1987), paragraph
one of the syllabus.
{¶9} R.C. 2945.71(C)(2) states that “[a] person against whom a charge of felony is
pending * * * [s]hall be brought to trial within two hundred seventy days after the person’s arrest.”
R.C. 2945.71(E) provides that “[f]or purposes of computing time under [R.C. 2945.71(C)(2)], each
day during which the accused is held in jail in lieu of bail on the pending charge shall be counted
as three days.” “Upon motion made at or prior to the commencement of trial, a person charged
with an offense shall be discharged if he is not brought to trial within the time required by [R.C.
2945.71 and 2945.72].” R.C. 2945.73(B).
{¶10} The General Assembly has recognized that flexibility is necessary under certain
circumstances in bringing a defendant to trial. State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio2904, ¶ 24. R.C. 2945.72 provides that the time within which the defendant must be brought to
trial can be extended by:
4
(A) Any period during which the accused is unavailable for hearing or trial, by
reason of other criminal proceedings against him, within or outside the state, by
reason of his confinement in another state, or by reason of the pendency of
extradition proceedings, provided that the prosecution exercises reasonable
diligence to secure his availability;
(B) Any period during which the accused is mentally incompetent to stand trial or
during which his mental competence to stand trial is being determined, or any
period during which the accused is physically incapable of standing trial;
(C) Any period of delay necessitated by the accused’s lack of counsel, provided
that such delay is not occasioned by any lack of diligence in providing counsel to
an indigent accused upon his request as required by law;
(D) Any period of delay occasioned by the neglect or improper act of the accused;
(E) Any period of delay necessitated by reason of a plea in bar or abatement,
motion, proceeding, or action made or instituted by the accused;
(F) Any period of delay necessitated by a removal or change of venue pursuant to
law;
(G) Any period during which trial is stayed pursuant to an express statutory
requirement, or pursuant to an order of another court competent to issue such order;
(H) The period of any continuance granted on the accused’s own motion, and the
period of any reasonable continuance granted other than upon the accused’s own
motion;
(I) Any period during which an appeal filed pursuant to section 2945.67 of the
Revised Code is pending.
{¶11} Basford was arrested on December 7, 2018, and he experienced difficulties posting
bond. Basford was given a personal recognizance bond on December 18, 2019, and he was
released from jail at that time.
{¶12} The speedy trial controversy in this matter stems from Basford’s desire for an
independent analysis of a substance found in his hotel room.1
Basford filed a motion for an
independent analysis on January 23, 2019. The following week, on January 28, 2019, the trial
1
A review of the record suggests that there were multiple tolling events that do not appear to be
in dispute in this appeal.
5
court granted Basford’s motion and ordered the State to make a representative sample of the
substance in question available. Basford also successfully moved for the appointment of an expert
witness around that time. The State expressed a number of concerns regarding the transportation
of the substance as well as the testing procedure. After the parties appeared for a hearing on July
15, 2019, the trial court issued a journal entry ordering an agent of the Medina County Drug Task
Force to transfer the evidence to and from the Miami Valley Regional Crime Lab. The trial court
further designated a contact person at the crime lab and ordered that the agent from the Medina
County Drug Task Force would be present during the testing procedure. After a subsequent status
hearing, the trial court issued a journal entry on August 5, 2019, specifying that the testing must
be performed by an independent lab technician at the Ohio Bureau of Criminal Investigation’s lab.
Further issues arose and, on October 2, 2019, the trial court approved fees in an amount of up to
$1,500 for Basford to obtain an independent analysis of the controlled substance by Larry Dehus
of Law Science Technologies. The independent testing was performed by Dehus on October 9,
2019, and the State received the report later that month.
{¶13} Prior to trial, Basford moved to dismiss the indictment on speedy trial grounds. The
crux of Basford’s argument was that speedy trial time should have been charged to the State for
the period between June 19, 2019, and October 9, 2019, because it was during that time that the
State raised concerns over the testing location and procedure. The State responded that the law
provides that time tolls from the date that the defendant requests the independent testing to the date
that the State receives the report. The State further maintained that it had an interest in ensuring
that the testing procedure was reliable. In a journal entry rejecting Basford’s argument, the trial
court stated that “[t]he period of delay between Basford’s motion for independent testing, the
completion of that testing, and the time for Basford to obtain the expert report was a period of
6
delay necessitated by Basford. * * * [T]ime was tolled during that period. The fact that there was
some disagreement between Basford and the State [] as to the testing procedure and location does
not cause time to be charged to the State[.]”
{¶14} On appeal, Basford maintains that he had an “absolute right” to have an
independent analysis of the substance in question and that the State was required to cooperate
pursuant to R.C. 2925.51. It follows, according to Basford, that any delays that occurred
subsequent to the time he made arrangements for an independent analysis should have been
charged to the State for speedy trial purposes.
{¶15} Basford’s argument is without merit. A defendant’s motion for an independent
analysis of a substance alleged to be contraband serves as a tolling event for speedy trial purposes.
See Gaines, 2004-Ohio-3407, at ¶ 14. Here, Basford filed his motion on January 23, 2019, and
the trial court granted the motion the following week. Thereafter, the parties clashed on several
procedural and logistical issues surrounding the testing. Multiple hearings were required to resolve
these issues and the independent analysis was not performed until October 9, 2019. R.C.
2925.51(E) and (F) set forth a procedure for a criminal defendant to secure an independent analysis
of the substance alleged to be a controlled substance. Basford has cited no authority in support of
the proposition that his right to an independent analysis was “absolute” in the sense that the State
had no interest in logistical concerns relating to the transportation of the substance and the testing
procedure. See App.R. 16(A)(7). This case does not involve a scenario where the State engaged
in delay tactics. Instead, after Basford successfully moved for the independent testing, the State
merely sought to ensure that the testing was legitimate. Under these circumstances, the trial court
did not err in denying Basford’s motion to dismiss the indictment on speedy trial grounds on the
7
basis that time tolled during the period where the parties resolved issues pertaining to the
independent analysis.
{¶16} The first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN
A CONVICTION AGAINST APPELLANT.
{¶17} In his second assignment of error, Basford maintains that the State failed to present
sufficient evidence to sustain his first-degree felony conviction for aggravated possession of drugs
because the State failed to prove the actual amount of methamphetamine found in the red liquid
seized from his hotel room. This Court disagrees.
{¶18} When reviewing the sufficiency of the evidence, this Court must review the
evidence in a light most favorable to the prosecution to determine whether the evidence before the
trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of
the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.
Id. at paragraph two of the syllabus.
{¶19} Basford challenges his conviction for aggravated possession of drugs in violation
of R.C. 2925.11(A)/(C)(1)(d).2
R.C. 2925.11(A) states that “[n]o person shall knowingly obtain,
possess, or use a controlled substance or a controlled substance analog.” R.C. 2925.11(C)(1)(d)
provides that “[i]f the drug involved in the violation is a compound, mixture, preparation, or
2
R.C. 2925.11 was amended effective March 22, 2019, but those amendments are not material to
this appeal.
8
substance included in schedule I or II[] * * * [and] [i]f the amount of the drug involved equals or
exceeds fifty times the bulk amount but is less than one hundred times the bulk amount, aggravated
possession of drugs is a felony of the first degree, and the court shall impose as a mandatory prison
term a first degree felony mandatory prison term.”
{¶20} The drug at issue in this case was methamphetamine, a Schedule II controlled
substance. See former R.C. 3719.41, Schedule II(C)(2).3
“Methamphetamine” is defined as
“methamphetamine, any salt, isomer, or salt of an isomer of methamphetamine, or any compound,
mixture, preparation, or substance containing methamphetamine or any salt, isomer, or salt of an
isomer of methamphetamine.” R.C. 2925.01(II). R.C. 2925.01(D)(1)(g) states that a “bulk
amount” is “[a]n amount equal to or exceeding three grams of a compound, mixture, preparation,
or substance that is or contains any amount of a schedule II stimulant, or any of its salts or isomers,
that is not in a final dosage form manufactured by a person authorized by the Federal Food, Drug
and Cosmetic Act and the federal drug abuse control laws.”
{¶21} The State presented evidence at trial supporting the following narrative. On the
morning of September 16, 2018, Deputy Koval was on patrol on Ridgewood Road in Medina when
he observed Basford’s vehicle swerve into oncoming traffic, nearly striking another vehicle.
Deputy Koval executed a traffic stop. Basford was unable to produce a driver’s license. Deputy
Koval noticed that Basford was attempting to conceal a small green pipe between his legs as he
sat in the driver’s seat. At that point, Deputy Koval handcuffed Basford and transported him to
the cruiser. During the ensuing search of Basford’s vehicle, Deputy Koval found what appeared
to be cocaine in the ashtray. Deputy Koval also found a container of marijuana. Basford was
3
R.C. 3719.41 was also amended since the incident that gave rise to this case, but those
amendments are not at issue.
9
charged with possession of marijuana and possession of drug paraphernalia, in addition to multiple
traffic offenses. After making arrangements to have the vehicle towed, Deputy Koval drove
Basford to a nearby gas station where he was released. Deputy Koval informed Basford that he
would be charged with additional offenses if any of the items seized during the stop tested positive
for a controlled substance.
{¶22} Testing by the Ohio Bureau of Criminal Investigation (BCI) revealed that the pipe
found between Basford’s legs contained a residual amount of methamphetamine. The testing also
showed that the off-white substance located in the vehicle was cocaine.
{¶23} Around midnight on October 27, 2018, several officers from the Wadsworth Police
Department went to the Legacy Inn in Wadsworth to execute an arrest warrant for Basford. The
officers spotted Basford’s truck outside room 418. The officers knocked on the door and, after a
brief delay, Basford opened the door and stepped out. The officers detained him.
{¶24} After being taken into custody, Basford asked if he could smoke a cigarette. The
officers did not object. Basford explained that he had a cigarette but he did not have a lighter.
Officer Petit told Basford that the officers could either retrieve a lighter for him or one of them
could accompany Basford into the hotel room if he wished to retrieve the lighter himself. Basford
elected to go back into his room with Officer Godwin. Upon entering the room, Officer Godwin
observed a razor blade with a white substance on it, a bindle with a powdery substance on it, as
well as multiple butane torches. All of these items were in plain view. Basford admitted at the
scene that the powdery substance in the bindle was methamphetamine. After conducting a
protective sweep of the room, the officers obtained a search warrant. During the ensuing search,
the officers found a number of items that were related to drug use, including what appeared to be
a wine bottle containing red liquid that had a pipe attached to it.
10
{¶25} While in the Medina County Jail, Basford requested to speak with a member of the
Medina County Drug Task Force. Agent McCune, who was present at the hotel when the search
warrant was executed, traveled to the jail to conduct an interview with Basford. During the
interview, Basford admitted that he was an opiate and methamphetamine user. When asked about
the bottle with red liquid, Basford admitted that it was his and explained that someone in West
Virginia had taught him how to make a bong for methamphetamine. Basford obtained a special
drill bit and practiced drilling on several other bottles that were found in the room. Agent McCune
testified that, “[Basford] actually said he took the wine out and put Kool-Aid in there for the – for
the water bong. * * * [Basford] stated that he did this so that when smoking through the device, it
took out the chemical taste of methamphetamine when smoking.”
{¶26} Shervonne Bufford, who serves as a forensic scientist at BCI, performed testing on
six pieces of evidence recovered from the hotel room. Three items tested positive for controlled
substances. The first item consisted of two folded paper packets containing a powdery pink
substance that tested positive for heroin and fentanyl. The second item was a folded paper packet
containing a tan substance that tested positive for fentanyl. The third item was the red liquid found
in the bottle, which tested positive for methamphetamine.
{¶27} With respect to the red liquid, Bufford testified that the weight of the liquid was
244.95 grams. Bufford performed both an acid extraction and a base extraction on the substance.
Analysis of the base extraction revealed that the liquid contained methamphetamine. The acid
extraction did not reveal the presence of any additional controlled substances. Two subsequent
instrumental tests revealed the presence of methamphetamine in the liquid. Bufford testified that
methamphetamine is considered a Schedule II controlled substance because it can be used for
medical purposes under certain scenarios and a bulk amount of methamphetamine is three grams.
11
When asked if she could render an opinion with a reasonable degree of scientific certainty, Bufford
responded, “the red liquid[] was found to be weighed at 244.95 grams, plus or minus .04 grams,
and found to contain methamphetamine; and that was all determined using instrumental analysis.”
{¶28} On appeal, Basford maintains “the State was required to establish the actual amount
of methamphetamine in the seized liquid before that amount could be compared to the abstract
‘bulk amount,’ in order to determine whether he possessed more than the bulk amount, or in this
case, more than fifty times the bulk amount.” Stressing that the liquid itself was not a drug, Basford
argues that the State failed to meet its burden to convict him of a first-degree felony violation of
R.C. 2925.11(A)/(C)(1)(d). Basford further maintains that even assuming he did possess fifty
times the bulk amount of methamphetamine, there was no evidence that he did so knowingly.
{¶29} We do not find Basford’s sufficiency argument to be persuasive as the pertinent
statutes do not require the State to prove the actual amount of the controlled substance found in a
mixture. As noted by the State in its merit brief, the line of reasoning offered by Basford is
somewhat akin to the arguments considered by the Supreme Court in State v. Gonzales, 150 Ohio
St.3d 261, 2016-Ohio-8319, ¶ 1 (Gonzales I), a case where the high court contemplated whether
“the [S]tate, in prosecuting cocaine offenses involving mixed substances * * * [was required to]
prove that the weight of the cocaine meets the statutory threshold, excluding the weight of any
filler materials used in the mixture[.]” Although the Supreme Court initially answered that
question in the affirmative, it noted that the statutory definition of cocaine did not include the term
“mixture[,]” unlike the statutory definition of methamphetamine. Id. at ¶ 19. The Supreme Court
ultimately granted a motion for reconsideration and reversed course as it related to the underlying
issue, holding that “the entire ‘compound, mixture, preparation, or substance,’ including any fillers
that are part of the usable drug, must be considered for the purposes of determining the appropriate
12
penalty for cocaine possession[.]” State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777, ¶ 3
(Gonzales II).
{¶30} The instant matter centers on the red liquid recovered from Basford’s hotel room.
The plain language of R.C. 2925.01(II) states that “any compound, mixture, preparation, or
substance containing methamphetamine” falls within the definition of a methamphetamine. “[T]he
unambiguous language of R.C. 2925.01[(II)] states that a mixture or substance that contains
methamphetamine is methamphetamine as a matter of law.” State v. Scoggins, 4th Dist. Scioto
No. 16CA3767, 2017-Ohio-8989, ¶ 61. See also State v. Thomason, 11th Dist. Ashtabula No.
2016-A-0027, 2017-Ohio-7447, ¶ 33 (“[T]he unambiguous language of R.C. 2925.01[(II)] states
that a mixture or substance that contains methamphetamine is methamphetamine.”). A reviewing
court is required to “apply the unambiguous language of the law as written.” State v. Rackley, 4th
Dist. Ross No. 17CA3616, 2019-Ohio-1981, ¶ 18, quoting Thomason at ¶ 35. “And unless or until
the legislature changes the definition of methamphetamine to exclude compounds, mixtures,
preparations, or substances that are not useable, strange and arguably absurd results will be
achieved.” Rackley at ¶ 18, quoting Thomason at ¶ 35.
{¶31} Here, the State demonstrated that Basford was in possession of a container of red
liquid that tested positive for methamphetamine. The liquid constituted a methamphetamine
mixture or substance that weighed 244.95 grams, more than fifty times the bulk amount of
methamphetamine. See R.C. 2925.01(D)(1)(g). This evidence was sufficient to sustain Basford’s
conviction for a first-degree felony aggravated possession of drugs in violation of R.C.
2925.11(A)/(C)(1)(d). To the extent that Basford now contends that he did not knowingly possess
fifty times the bulk amount of methamphetamine, we note that Basford admitted to Agent McCune
that the red liquid found in the hotel room belonged to him. Basford’s statements to Agent McCune
13
showed that he had a high level of awareness as to the drugs in his hotel room. Basford further
demonstrated knowledge of a fairly involved process that he used to create both the device that
contained the red liquid as well as the methamphetamine mixture itself. Thus, the aforementioned
evidence, when construed in the light most favorable to the State, was sufficient to sustain
Basford’s conviction.
{¶32} Basford’s second assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN VIOLATION OF THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION,
AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN IT
DID NOT PERMIT APPELLANT TO ALLOW ITS OWN EXPERT TO
TESTIFY AT TRIAL.
{¶33} In his fourth assignment of error, Basford argues that the trial court violated his
constitutional right to present a defense when it refused to permit his expert witness, Larry Dehus,
to testify at trial. This Court disagrees.
{¶34} Generally speaking, “[t]he decision to admit or exclude evidence lies in the sound
discretion of the trial court.” State v. Wright, 9th Dist. Lorain No. 05CA008675, 2006-Ohio-926,
¶ 5, citing State v. Sage, 31 Ohio St.3d 173, 180 (1987). “This Court, therefore, reviews the trial
court’s decision regarding evidentiary matters under an abuse of discretion standard of review.”
Wright at ¶ 5. An abuse of discretion means that the trial court was unreasonable, arbitrary, or
unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶35} A review of trial transcript reveals that Basford attempted to call Dehus to testify
as an expert witness regarding testing that he performed on the red liquid recovered from Basford’s
hotel room. The State filed a motion in limine prior to trial to exclude Dehus’s report. At trial,
the State renewed its objection on the basis that the findings in Dehus’s report were not relevant
14
to the proceedings. The trial court decided that it would allow the parties to voir dire Dehus outside
the presence of the jury prior to making a ruling as to whether he could testify. Prior to allowing
questioning, the trial court informed Dehus that it had “made a determination that the state of the
law in the State of Ohio is that any mixture or compound that contains methamphetamine is
methamphetamine for the purposes of the Jury’s determination as to weight.”
{¶36} During voir dire, Dehus testified that he works as a forensic analysist at Law
Science Technologies, a business that he founded and manages. Dehus performed testing on the
red liquid recovered from Basford’s hotel room and prepared a report. Dehus explained that the
purpose of his work was, in part, to determine whether he agreed that there was methamphetamine
in the red liquid. After performing an extraction and instrumental testing, Dehus found that the
red liquid contained trace amounts of methamphetamine. While Dehus did not perform
quantitative analysis, he extracted 21.46 grams of the liquid and found that the amount of
methamphetamine present was not a weighable quantity. Dehus suggested that the liquid itself
was not necessary for the bong to be used. Dehus explained that “the purpose of the liquid is to
cool it and make the vapor more palatable.” Dehus expressed his view that there was not 244.95
grams of methamphetamine in the liquid and that the main component of the mixture was the
water. In conclusion, Dehus opined that the methamphetamine was “simply a waste product[.]”
Though he acknowledged that the basis for his opinion was “not very scientific,” Dehus testified
that his research of online postings from people who have used methamphetamine bongs aided
him in forming that opinion.
{¶37} The trial court ultimately found that Dehus’s testimony was not relevant. After
discussing several cases that addressed whether methamphetamine mixtures fall within the
15
statutory definition of methamphetamine, the trial court made the following statement on the
record:
With that in mind, the Court is going to make the determination that the expert’s
testimony – report and purported testimony in this matter is not relevant to the issue
at hand, whether or not this was a waste product or incidental or anything else.
[Dehus] clearly testified that the orange liquid [] contained methamphetamine, and
the consequence of that is that the Court is going to issue an order not permitting
him to testify in such a manner.
{¶38} On appeal, Basford couches his argument in terms of constitutional error.
Specifically, Basford contends that the trial court’s decision to exclude Dehus’s testimony violated
his right to call witnesses to testify in his defense in violation of the Sixth and Seventh
Amendments to the United States Constitution, as well as Article I, Section 10 of the Ohio
Constitution. Basford further points to the United States Supreme Court’s decision in Holmes v.
South Carolina, 547 U.S. 319, 324 (2006), for the proposition that criminal defendants enjoy a
constitutional right to present a complete defense.
{¶39} Basford correctly notes that the Sixth Amendment to the United States Constitution
and Article I, Section 10 of the Ohio Constitution guarantee the right to compulsory process.
Furthermore, the United States Supreme Court has recognized that “the Constitution guarantees
criminal defendants ‘a meaningful opportunity to present a complete defense.’” Holmes at 324,
quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986). Notably, however, the Holmes court
explained that “[w]hile the Constitution thus prohibits the exclusion of defense evidence under
rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted
to promote, well-established rules of evidence permit trial judges to exclude evidence * * *.”
Holmes at 326. “Plainly referring to rules of this type, we have stated that the Constitution permits
judges to exclude evidence that is repetitive * * *, only marginally relevant or poses an undue risk
of harassment, prejudice, [or] confusion of the issues.” (Internal quotations and citations omitted.)
16
Id. at 326-327. The Ohio Rules of Evidence provide that any evidence presented at trial must be
relevant to the matter at issue. Evid. R. 402 (“Evidence which is not relevant is not admissible.”).
{¶40} In this case, the trial court did not abuse its discretion when it excluded Dehus’s
testimony on the basis that it was not relevant. The trial court’s ruling was predicated on the
premise that “any compound, mixture, preparation, or substance containing methamphetamine”
falls within the definition of methamphetamine set forth in R.C. 2925.01(II). Accordingly, any
testimony that Dehus would have offered about the specific amount of methamphetamine in the
red liquid was not relevant, given that the weight of the red liquid had been established. Under
these circumstances, we cannot say that the trial court’s decision to exclude Dehus’s testimony
was unreasonable, arbitrary, or unconscionable.
{¶41} Basford’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR III
APPELLANT’S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶42} In his third assignment of error, Basford contends that his conviction for firstdegree felony aggravated possession of drugs is against the weight of the evidence. This Court
disagrees.
{¶43} A conviction that is supported by sufficient evidence may still be found to be
against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997);
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12.
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate 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 the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
17
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶44} “When a court of appeals reverses a judgment of a trial court on the basis that the
verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and
disagrees with the fact[-]finder’s resolution of the conflicting testimony.” Thompkins at 387,
quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to
reverse a judgment as against the manifest weight of the evidence only in exceptional cases. Otten
at 340.
{¶45} In support of his manifest weight challenge, Basford contends that the jury
misunderstood the purpose of the bong water. Basford suggests that “[t]he water in the waterpipe, or bong, has a limited purpose – to cool the smoke or in this case, to mellow the flavor.
Afterwards, you discard it. * * * So the used water has no other purpose.” Basford further
maintains that the jury would not have lost its way if Dehus would have been permitted to testify.
{¶46} Basford’s argument is without merit. At trial, Shervonne Bufford acknowledged
that while the instruments she utilized can be used for quantitation testing, there was no
quantitation testing done in this case. Bufford explained “[i]t was not in our policy and procedures,
nor has it been deemed necessary for the laboratory system to quantitate[] [b]ecause of the way
that the laws are written[.]” Defense counsel asked Bufford if she was aware of instances where
individuals had “reuse[d] bong water to get high?” Bufford responded in the affirmative based on
her conversations with law enforcement officials but noted that she was not aware of any scientific
literature that addressed that issue. As noted above, R.C. 2925.01(II) states that “any compound,
mixture, preparation, or substance containing methamphetamine” falls within the definition of
methamphetamine. Thus, the State was not required to show the actual amount of drugs in the
methamphetamine mixture found in Basford’s hotel room. See Discussion of Assignment of Error
18
II, supra. Furthermore, Basford’s argument regarding his expert is unpersuasive given that
Basford has failed to demonstrate on appeal that the trial court abused its discretion by excluding
that testimony. See Discussion of Assignment of Error IV, supra. Under these circumstances, we
cannot say that this is the exceptional case where the jury clearly lost its way. See Otten, 33 Ohio
App.3d at 340.
{¶47} The third assignment of error is overruled.
ASSIGNMENT OF ERROR V
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS
GUARANTEED BY [] ARTICLE I, [SECTION 10] OF THE OHIO
CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS.
{¶48} In his final assignment of error, Basford argues that he was denied effective
assistance of counsel. This Court disagrees.
{¶49} In order to prevail on a claim of ineffective assistance of counsel, Basford must
show that “counsel’s performance fell below an objective standard of reasonableness and that
prejudice arose from counsel’s performance.” State v. Reynolds, 80 Ohio St.3d 670, 674 (1998),
citing Strickland v. Washington, 466 U.S. 668, 687 (1984). “The benchmark for judging any claim
of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.” Strickland
at 686. Thus, a two-prong test is necessary to examine such claims. First, Basford must show that
counsel’s performance was objectively deficient by producing evidence that counsel acted
unreasonably. State v. Keith, 79 Ohio St.3d 514, 534 (1997), citing Strickland at 687. Second,
Basford must demonstrate that but for counsel’s errors, there is a reasonable probability that the
results of the trial would have been different. Keith at 534. This Court need not address both
19
prongs of the Strickland test if the appellant fails to satisfy either prong. State v. Ray, 9th Dist.
Summit No. 22459, 2005-Ohio-4941, ¶ 10.
{¶50} In support of his ineffective assistance claim, Basford contends that trial counsel
rendered ineffective assistance when she failed to move for a judgment of acquittal at the close of
the State’s case in chief. Basford maintains that trial counsel should have at a minimum moved
for a judgment of acquittal as to the first-degree felony charge of aggravated possession of drugs
on the basis that “it was almost all water and only a trace amount of meth.” As an initial matter,
we note that a defendant’s failure to move for a judgment of acquittal pursuant to Crim.R. 29 at
the close of the State’s case does not constitute forfeiture of a sufficiency argument on appeal. See
State v. Thornton, 9th Dist. Summit No. 23417, 2007-Ohio-3743, ¶ 13-14. In resolving Basford’s
second assignment of error above, this Court concluded that the State met its burden of production
to sustain Bradford’s first-degree felony conviction for aggravated possession of drugs. Namely,
the State demonstrated that Basford knowingly possessed more than fifty times the bulk amount
of methamphetamine. It follows that even if defense counsel had moved for a judgment of
acquittal, Basford has failed to demonstrate that there is a reasonable probability that the result of
trial would have been different. See Keith at 534.
{¶51} Basford’s final assignment of error is overruled.
III.
Outcome: Basford’s assignments of error are overruled. The judgment of the Medina County
Court of Common Pleas is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: