STATE OF OHIO v. MICHAEL D. BASFORD
C.A. No. 20CA0017-M
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF MEDINA
January 25, 2021
[Cite as State v. Basford, 2021-Ohio-161.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 18CR1235
CARR, Presiding Judge.
{¶1} Appellant, Michael Basford, appeals the judgment of the Medina County Court of Common Pleas. This Court affirms.
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
{¶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.
{¶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
{¶9}
{¶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-Ohio-2904, ¶ 24.
(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
{¶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
{¶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
{¶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.
{¶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
{¶20} The drug at issue in this case was methamphetamine, a Schedule II controlled substance. See former
{¶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
{¶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.
{¶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.
{¶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
{¶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
{¶30} The instant matter centers on the red liquid recovered from Basford‘s hotel room. The plain language of
{¶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
{¶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
{¶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
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
{¶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
{¶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 first degree 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.
{¶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 water pipe, 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,
{¶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
{¶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
{¶51} Basford‘s final assignment of error is overruled.
III.
{¶52} Basford‘s assignments of error are overruled. The judgment of the Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
THOMAS REIN, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.