STATE OF OHIO, PLAINTIFF-APPELLEE, v. ANDREW J. WATKINS, IV, DEFENDANT-APPELLANT.
CASE NO. 12-18-08
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY
November 26, 2018
2018-Ohio-4722
Aрpeal from Putnam County Common Pleas Court Trial Court No. 2017 CR 00054 Judgment Affirmed
Kathryn Polonsky and Michelle Umana for Appellant
Katherine G. Porter for Appellee
{¶1} Defendant-Appellant, Andrew J. Watkins, IV (“Appellant“) appeals the judgment of the Putnam County Common Pleas Court, convicting him of one count of trafficking in drugs and one count of permitting drug abuse. On appeal, Appellant argues that: 1) he was denied the effective assistance of counsel; 2) or, in the alternative, that his trial counsel‘s performance was objectively unreasonable and prejudicial; 3) insufficient evidence was presented by the State to convict him; and 4) his conviction was against the manifest weight of the evidence. For the reasons that follow, we affirm the judgment of the trial court.
Factual Background
{¶2} On January 18, 2017, Officer James Augustine (“Augustine“), of the Multi-Area Narcotics Task Force (“MAN unit“), met with confidential informant Richard Babcock (the “CI“) to set up a controlled buy of crystal methamphetamine (“meth“). (Trial, 03/20/2018 Tr. at 80-81). The CI had advised Augustine that he could buy meth from two individuals known as “AJ” and “Jeffro.” (Id. at 81). During the course of his investigation, Augustine learned that “AJ” was the Appellant and “Jeffro” was Jeff Staver (“Staver“).1 (Id.).
{¶4} After the call was completed, Augustine returned to his office to await the time that the buy would occur. (Id. at 89). At approximately 1:40 p.m. that afternoon, the CI contacted Augustine to inform him that the drug buy would occur that afternoon. (Id. at 90). The CI also advised Augustine that the terms of the deal had changed to 12 grams (of meth) for $600. (Id.). With that information, Augustine searched the CI and his vehicle, outfitted him (the CI) with audio and video equipment, and gave him сash to purchase the drugs. (Id. at 90-91).
{¶5} When the CI arrived at McDonald‘s, the Appellant phoned him and attempted to change the location of the drug buy from Ottawa to Lima. (Id. at 92). However, Appellant ultimately only changed the buy location from McDonalds to the Shell Ottawa Party Mart (“Party Mart“), located across the street from McDonald‘s. (Id. at 93-94).
{¶6} MAN unit agents surveilling the locations observed Staver exit a blue Chevy Cobalt in the Party Mart parking lot. (Id. at 95). The vehicle was then parked
{¶7} After completing the transaction, the CI met Augustine at a predetermined location. (Id. at 97). Augustine field tested the drugs, resulting in a presumptive positive for meth, which weighed 12.2 grams. (Id.). Augustine then transported the drugs to the MAN unit office and tagged it as evidence. (Id. at 98). Thereafter, Deputy Todd Pingle with the Putnam County Sheriff‘s MAN unit, transported the drugs to the Bureau of Criminal Investigation (“BCI“) crime lab, where it tested positive for meth. (Id. at 120-21; 160).
Procedural Background
{¶8} On September 27, 2017, Appеllant was indicted on two separate counts by the Putnam County Grand Jury, for: Count One, Trafficking in Drugs, in violation of
{¶9} On November 21, 2017, Appellant (through counsel) filed a notice of substitution of counsel, indicating that he had retained his own counsel. (Doc. No. 21). On the same date, Appellant‘s new attorney filed a motion to continue the previously scheduled pre-trial, due to a scheduling conflict. (Id.). The trial court granted the continuance and the pre-trial was rescheduled for January 10, 2018. (Doc. No. 27).
{¶10} At the final pre-trial, the State advised the trial court that a plea agreement had not been reached, and that the matter would proceed to trial. (Final Pre-Trial, 02/26/2018 Tr. at 5).
{¶11} Appellant‘s jury trial commenced on March 20, 2018. (Doc. Nos. 44, 45, 47; Trial, 03/20/2018 Tr. at 4). At the conclusion of trial, the jury returned verdicts of guilty to both counts as indicted. (Doc. No. 47). The trial court ordered a pre-sentence investigation and Appellant‘s sentencing hearing was scheduled for May 4, 2018. (Id.).
{¶12} On March 21, 2018, Teva Madison (apparently acting on behalf of Appellant), filed a letter in the trial court indicating that Appellant wished to fire his
{¶13} After sentencing, Appellant‘s trial counsel filed a “motion to withdraw as attorney of record” and a “motion to appoint attorney for purpose of defendant appeal.” (Doc. Nos. 65, 66). The trial court granted trial counsel‘s “motion to withdraw as attorney of record,” and appointed the Ohio Public Defender to represent Appellant in his appeal. (Doc. Nos. 67, 69).
{¶14} Appellant timely appeals, and presents the following assignments of error for our review:
ASSIGNMENT OF ERROR NO. I
MR. WATKIN‘S [SIC] TRIAL COUNSEL PERFORMED SO DEFICIENTLY AS TO DENY HIM EFFECTIVE ASSISTANCE OF COUNSEL AND AS TO EFFECTIVELY CONCEDE HIS GUILT TO THE JURY.
ASSIGNMENT OF ERROR NO. II
ALTERNATIVELY, COUNSEL‘S PERFORMANCE WAS OBJECTIVELY UNREASONABLE AND IT PREJUDICED MR. WATKINS, DENYING HIM A FAIR TRIAL.
MR. WATKINS’ CONVICTIONS VIOLATED DUE PROCESS AS THE STATE USED LEGALLY INSUFFICIENT EVIDENCE TO CONVICT HIM.
ASSIGNMENT OF ERROR NO. IV
MR. WATKINS’ CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE JURY CLEARLY LOST ITS WAY IN RENDERING A GUILTY VERDICT.
Appellant‘s First Assignment of Error
{¶15} In his first assignment of error, Appellant argues that his trial counsel‘s performance was so deficient that it amounted to a “structural defect” at trial. We disagree.
Standard of Review
{¶16} “‘The right to counsel is the right to effective assistance of counsel.‘” State v. Blair, 171 Ohio App.3d 702, 2007-Ohio-2417, 872 N.E.2d 986, ¶ 13 quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052 (1984). “Generally, a properly licensed attorney practicing in this state is presumed to be competent.” Id. “However, in rare situations when counsel has done nothing more in the preparation of the case than be a warm body, prejudice is presumed.” Id.
{¶17} “In United States v. Cronic, ‘the United States Supreme Court * * * determined that prejudice should be presumed in circumstances that arе so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.‘” (Emphasis sic). State v. Loman, 3rd Dist. Auglaize No. 2-13-17, 2014-Ohio-1570, ¶ 24 quoting State v. Drake, 8th Dist. Cuyahoga No. 93761, 2010-Ohio-1065, ¶ 8 quoting United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, (1984). Prejudice is presumed in cases where the accused was denied counsel at “a critical stage of his trial,” where counsel fails to subject the prosecution‘s case to “meaningful adversarial testing,” and where a criminal defendant had been “denied the right of effective cross-examination.” Cronic, 466 U.S. 648, 658-59, 104 S.Ct. 2039 (1984). Furthermore, “[c]ircumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659-60.
{¶18} Appellant argues that due to the magnitude of the errors that Appellant‘s trial counsel committed during his jury trial, “a criticаl stage,” this case falls within the narrow exception set forth in Cronic. Appellant further argues that
{¶19} In support of his argument, Appellant directs us to portions of the transcript to demonstrate trial counsel‘s deficient performance. Regardless, should Appellant‘s grievances demonstrate a “deficient performance” by his trial counsel, we cannot say that such performance warrаnts the application of the narrow exception outlined in Cronic under the facts presented. Even though we agree with Appellant that his trial counsel‘s alleged deficiencies occurred at his jury trial, which is a “critical stage of his trial,” we find that such deficiencies, individually or as whole, do not amount to a Cronic violation for the reasons set forth below.
{¶20} In State v. Blair, the Second District Court of Appeals found that trial counsel‘s failure to prepare for trial and by sitting silently during trial warranted the presumption that defendant was prеjudiced, in accordance with Cronic. See, State v. Blair, 171 Ohio App.3d 702, 2007-Ohio-2417, 872 N.E.2d 986, ¶¶ 13-16 (trial counsel failed to file any motions prior to trial, indicated on the record that he was not prepared to go to trial, and sat silently as the criminal defendant was convicted without any defense whatsoever). However, in the case sub judice, the record reveals that trial counsel was actively involved in Appellant‘s trial advocacy. Thus, we find the alleged deficiencies (of Appellant‘s trial counsel) hеre to be dissimilar to those deficiencies set forth in Blair.
{¶22} Moreover, the record reveals that Appellant was represented by counsel who: exercised preemptory challenges of potential jury members during voir dire; gave an opening statement; сross-examined witnesses; made a
{¶23} In his second assignment of error, Appellant argues that if trial counsel‘s performance does not warrant the application of the Cronic exception, trial counsel‘s performance nonetheless fell below the standard for effective assistance of counsel as announced in Strickland v. Washington. For the reasons that follow, we find this argument to be without merit.
Standard of Review
{¶24} “‘When a convicted defendant complains of the ineffectiveness of counsel‘s assistance, the defendant must show that the counsel‘s representation fell below an objective standard of reasonableness.‘” State v. Sanders, 94 Ohio St.3d 150, 151, 2002-Ohio-350, 761 N.E.2d 18 quoting Strickland, 466 U.S. 668, 687-88, 104 S. Ct. 2052 (1984). Additionally, “‘[t]he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceedings would have been different.‘” Id., at 694. See also, State v. Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989).
{¶25} In analyzing a claim for ineffective assistance of counsel, this court‘s scrutiny of counsel‘s performance must be highly deferential, with a “‘strong presumption that counsel‘s conduct falls within the wide rаnge of reasonable
Analysis
{¶26} The Ohio Supreme Court, in State v. Bradley, adopted the United State‘s Supreme Court test in Strickland, requiring thаt a criminal defendant declaring counsel to be ineffective prove that: 1) counsel‘s performance is below an objective standard of reasonable representation, and 2) that prejudice arises from such performance. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.
{¶27} Appellant points us to numerous instances (at trial) wherein his trial counsel‘s performance “fell below an objective standard of reasonable representation.” Specifically, Appellant argues that trial counsel: 1) failed to remove or rehabilitate two prospective jurors who indicated that they would
{¶28} Initially, we note that in Bradley the Supreme Court analyzed Strickland to hold that it is not always necessary to engage in an analysis of counsel‘s ineffectiveness and the prejudicial impact of any of counsel‘s errors. Rather, the Supreme Court focused upon the Strickland admonishment (to reviewing courts) that “if it is easier to dispose of an ineffective claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Emphasis added). Id. at 143, quoting Strickland, 466 U.S. 668, 697, 104 S. Ct. 2052 (1984).
{¶29} In following the Ohio Supreme Court‘s interpretation of Strickland, we find that even if all of Appellant‘s grievances amounted to a failure on the part of trial counsel to meet an objective standard of reasonable representation,
{¶30} Nevertheless, Appellant argues that the outcome of the trial would have been different had trial counsel done more. Specifically, Appellant asserts that the jury‘s questions (to the trial court) during deliberations indicated that had trial counsel performed her duties differently, the jury would not have wrestled with the questions that they submitted to the trial court during deliberations. We disagree and we find this argument to be mere speculation. Rather, the jurors’ questions could have indicated that trial counsel‘s strategy, to not present evidence, may have cast doubt on the State‘s case and resulted in the jury‘s questions. Furthermore, we fail to find that trial counsel‘s decision not to cross examine the CI resulted in prejudice to Appellant, because such cross-examination would have given the CI
{¶31} Even though Appellant presumes a favorable outcome had counsel performed her duties differently, this presumption does not exist and resulting prejudice must be proven. And, indulging the strong presumption that counsel‘s performance fell within the wide range of reasonable professional assistance, we cannot say that any of the argued deficiencies resulted in sufficient prejudice to the Aрpellant. Accordingly, we overrule Appellant‘s second assignment of error.
Appellant‘s Third Assignment of Error
{¶32} In his third assignment of error, Appellant argues that the trial court used insufficient evidence to prove that Appellant was the individual on the other end of the phone call (with the CI), and absent such proof (that Appellant was that individual), the evidence was legally insufficient to convict Appellant of both counts. For the reasons that follow, we disagree.
Standard of Review
{¶33} “Whether there is legally sufficient evidence to sustain a verdict is a question of law.” State v. Lyle, 3rd Dist. Allen No. 1-14-41, 2015-Ohio-1181, ¶ 8 citing State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. Sufficiency is a test of adequacy. Id. Under a challenge alleging insufficient evidence, “‘the relevant inquiry is whether, after viewing the evidence in a light
Analysis3
{¶34} Appellant was found guilty in Count One of Trafficking in Drugs, in violation of
Appellant‘s Fourth Assignment of Error
{¶36} In his fourth assignment of error, Appellant argues that his convictions were against the manifest weight of the evidence. Specifically, Appellant again argues that the State failed to prove that he was the individual on the other end of
Standard of Review
{¶37} The Ohio Supreme Court has “‘carefully distinguished the terms ‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and ‘legal sufficienсy’ are ‘both quantitatively and qualitatively different.‘” Lyle, 3rd Dist. Allen No. 1-14-41, 2015-Ohio-1181, ¶ 9 quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2010-Ohio-2179, 972 N.E.2d 517, ¶ 10.
{¶38} In analyzing a claim that a conviction was against the manifest weight of the evidence, an appellate court:
sits as the “thirteenth juror” and may disagree with the fact finder‘s resolution of the conflicting testimony. * * * The appellate court, “reviewing the entire record, weighs the evidence and 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against conviction.”
State v. Johnson, 3rd Dist. Shelby No. 17-08-06, 2008-Ohio-4784, ¶ 4 quoting State v. Jackson, 169 Ohio App.3d 440, 2006-Ohio-6059, 863 N.E.2d 223, ¶14 (citations omitted). However, in sitting as the thirteenth juror the appellate court should give due deference to the findings made by the jury. Id.
{¶39} The Eighth District Court of Appeals idеntified the following eight factors as a guide to assist a reviewing court in determining whether a decision of the trial court was against the manifest weight of the evidence:
- A reviewing court is not required to accept the incredible as true;
- Whether the evidence is uncontradicted;
- Whether a witness was impeached;
- What was not proved;
- Certainty of evidence;
- Reliability of evidence;
- Whether witness’ testimony is self-serving;
- And whether evidence is vague, uncertain, conflicting, or fragmentary.
State v. Mattison, 23 Ohio App.3d 10, 14, 490 N.E.2d 926 (8th Dist.1995). We discuss the relevant factors to the underlying case.
Reviewing Court is not Required to Accept the Incredible as True
{¶40} The record supports, and it is not incredible to believe that Appellant offered to sell the CI meth, arrаnged the sale, and had a third party complete the actual hand-to-hand transaction.
{¶41} The State‘s uncontradicted evidence demonstrated that Appellant made an offer to sell the CI meth; that the Appellant transported a third individual, Staver, to a location to meet the CI; that Staver completed a hand-to-hand drug transaction with the CI; and that Appellant picked up Staver immediately after the drug deal. Moreover, Appellant did not presеnt any evidence to contradict this version of events.
Impeached Witness
{¶42} A review of the trial transcript reveals that none of the State‘s witnesses were impeached.
What was not Proved
{¶43} Appellant‘s primary argument is that the State failed to prove that he was the individual on the other end of the phone call. However, the record reveals otherwise. Specifically, the CI testified that he knew Appellant; that Appellant was the person that he called; and that Appellant offered him 24 for 12, which, in drug vernacular, reasonably meant 24 grams of meth for $1,200. (See generally, Trial, 03/20/2018 Tr. at 138). Accordingly, and for reasons discussed herein, we find all of the essential elements of the two counts charged were proven by the State.
{¶44} We acknowledge that the CI‘s testimony, to some degree, was self-serving. Testimony at trial revealed that the CI typically earned money, or attempted to work off criminal charges, in exchange for participating in controlled buys. (See, Trial, 03/20/2018 Tr. at 82-83). However, even with that potential (for self-serving testimony from the CI), there is no indication that the testimony of any of the other State‘s witnesses was self-serving.
Vague, Uncertain, Conflicting, or Fragmentary Testimony
{¶45} A review of the trial transcript demonstrates that none of the testimony elicited at trial was vague, uncertain, conflicting, or fragmentary. Furthermore, Appellant does not argue that the testimony at trial falls into any of the aforementioned categories.
{¶46} In “dutifully examin[ing] the entire record, weigh[ing] the evidence, and consider[ing] the credibility of witnesses,” we find that the jury did not lose its way in convicting Appellant on both of the criminal charges contained within his indictment. See, State v. Griffin, 4th Dist. Scioto No. 12CA3484, 2013-Ohio-3309, ¶ 17. Accordingly, we overrule Appellant‘s fourth assignment of error.
{¶47} Having found no error prejudicial to the Appellant herein in the particulars assigned and argued, we overrule Appellant‘s first, second, third, and fourth assignments of error and affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
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