IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Appellee, . On Appeal from the Sandusky County Courtof Appeals, Sixth Appellate District

vs.

SHAN N. MOFFETT,

Appellant.

Court ofAppeals: S-10-056Case No: 10-CR-751

Memorandum in Support

SHAN N. MOFFETTMansfield Correctional Camp1150 N. Main StreetP.O. Box 788Mansfield, Ohio 44901-0788

Pro se

COUNSEL FOR APPELLEE,,c,.^v1 r+nr rnrmv nn ncUri rTii.T!_ leTTnRTViRV

JA1V1JllJ11I l.vV1v t t i

Assistant Prosecuting Attorney100 North Park Ave., Suite 319Fremont, Ohio 43420

"Pnn ffrn1 1If IfL Lr- U

APR 2 7 ZOIZ

CLERiti '11'.,'OURTSU?REt^"^E + Us^iil JF OHIO. ^.------^-- --

TABLE OF CONTENTS

Page

EXPLANTATION OF WHY THIS CASE IS A CASE OF PUBLIC ORGREAT GENERAL INTEREST AND INVOLVES ASUBSTANTIAL CONSTITUTIONAL QUESTION ..................................................1

STATEMENT OF THE CASE AND FACTS ..........:..................................................2

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ............:.......................3

CONCLUSION ............................................................................................:..............7

CERTIFICATE OF SERVICE ..................................................................:.................8

INDIGENCY AFFIDAV IT ........................................................................................9

APPENDIX

Opinion of the Sixth District Court of Appeals(March 16, 2012) .........................................................................................10

EXPLANTATION OF WHY THIS CASE IS A CASE OF PUBLIC ORGREAT GENERAL INTEREST AND INVOLVES ASUBSTANTIAL CONSTITUTIONAL QUESTION

"Proximity" to drugs requires the offender, "Knowingly be aware of drugs". An offender

does not have immediate access to the contents within a septic tank unless proper equipment is used to

retrieve contents. In this case, an officer testified he used a coat hanger and a flashlight to inspect the

septic system and therefore remove two baggies that contained a "powderish substance". Evidence

presented at trial did not sustain the elements of Possession of drugs and tampering with evidence

statutes.

"Proximity" to contraband is widely used when a passenger in a vehicle is close to the glove

compartment and has immediate access to the contents. Passengers may also have known about the

contraband because of such closeness. The passenger could place contraband in a glove compartment.

Passengers could possibly be observed by law enforcement within the proximity of such a

compartment.

In this case, Appellant left a late model motor home as directed by officers conducting a

lawful search warrant. Law Enforcement did not testify that Appellant was close or within proximity

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Proximity is vague and over-broad with regard to; a large vehicle that many people had

access to, when the lock was broke on the door, when the vehicle was an attractive nuisance, and no

officers testified Appellant was near the septic tank.

Proximity must me more than in the area of contraband, it must be distinguished by control,

ownership, and knowledge that the contraband exists. Anything other than those elements are vague

and over-broad. The offender needs to have immediate access to the contraband and control it such as,

pick it up and throw it out the window and or know exists and can easily gain access to it. The statute

doesn't require "reasonable knowledge" it requires knowledge of contraband located in a specific

1

location.

This case assumes in an over-broad manner that Appellant knew the contraband is in the

septic tank and also assumes in a vague fashion that he had immediate access and control over it

[powderish substance]. Appellant was not in the motor home very long until he exited and law

enforcement did not testify they viewed him enter prior to their stake-out and execution of the search

warrant.

Appellant has lost his liberty and was wrongfully prosecuted. Others were arrested at the

time of the search for possessing drugs but Appellant was arrested for possessing drugs in a septic

system. -

FURTHERMORE, Appellant could not be found guilty of tampering with evidence if he was

not found guilty of being within the proximity of drugs in a septic tank.

STATEMENT OF CASE AND FACTS

Appellant did not have immediate access to the contraband when convicted of being within

oximity" to dru s. A ellant states the term proximity is over-broad and vague and that he didDD

know know he was near drugs . Because the contraband was hidden inside a septic system, and in

small amount , he couldn't have noticed it without proper equipment. Appellant temporally occupied a

room from Thomas Tutemore ("Tutemore "). This is a single family residential dwelling located in the

City of Bellevue, situated in The County of Sandusky. The houses in this area are separated by a

driveway. A search warrant was executed on the property which Tutemore owned. During the search,

officersr_tVw

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T..ut A TR^ TTieUleu ..,ncrt in t--nn..ccaccinn of cn].g paraphernalia. The partles...eauore 2u, ^. J• -^----

were summoned and released.

At the time of the search, Appellant was working on a vehicle in the garage when he went into a

late model motor home which was parked in the driveway of the said residence. Appellant went to the

motor home for a tool and a part that would assist him in repairing the vehicle located in the garage.

2

While Appellant was searching for the proper tool, he was ordered to exit the vehicle by law

enforcement officers. A search began of the late model motor home. Officers did not question

Appellant regarding why he was in the late model motor home or if he had knowledge of a "powderish

substance" in the septic tank. Officers also did not testify if they observed Appellant enter the motor

home prior to the search.

The case went to trial and the jury found the Appellant guilty on both counts. One count of

Possession of crack cocaine and one count of Tampering with evidence. The trial judge advised the

jury to consider the Appellant's "proximity" to the crack cocaine hidden in the septic tank, as meeting

the element of knowledge and possessing.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

The alleged evidence of two baggies of crack cocaine were found in the late model RV's septic

system and no testimony was presented if the drugs were tested in their "wet" or "dry" state. Counsels

failed to rebut and impeach the states witnesses regarding the evidence and its chain of custody. The

County employee in charge of evidence was not available to testify of the character of the evidence

chain and how it was delivered to BCII. In fact, trial counsel declined to question the responsible party

whom was in charge of the chain of custody. The trial Judge was going to grant a recess to let the State

find the witness and trial counsel after a brief period of time waived the right to confront this person.

This chain of custody testimony prejudiced the Appellant because a dry "powderish substance "

could be cocaine and when the powder gets wet, whether from a "process" or condensation through a

septic tank over the winter, that substance `='ould be s„bstantiallv different. The mass was not

described in court and either were the baggies.

Trial and Appellant counsel failed to recognize and provide testimony any case law regarding

the difference. This was critical to Appellants case and therefore he was provided deficient

performance of legal representation and deprived him of his rights to equal protection and due process

3

of law.

Appellant did not knowingly possess the crack cocaine whether it being; "constructive

possession" or by "proximity." Therefore, appellant did not have control or physical possession

because it was inside a hidden compartment within the septic system. "Constructive possession" is

defined as knowingly exercising dominion and control over an object, even though that object may not

be within one's immediate physical possession. Thus, to establish "constructive possession," the State

must prove that the defendant: (1) knew the contraband was present on the premises (inside septic) and

(2) that the defendant knowingly exercised control over the contraband, even though it may not be

within his immediate physical possession."The mere fact ***, that the property was in the

possession of the defendant, if such should be the fact, would not alone constitute the possession

of drugs."

In this case, the State resorts to "Proximity" to the drugs and not so much as constructive.

Appellant could not know he is in the proximity of something that is hidden. Therefore, if it's hidden,

and in small amount such as (2.7 grams which is approximately the size of a bottle cap), the chances

he had knowledge are limited and speculative. State u Patterson (1982), 69 Ohio St. 2d 445, 432

N.E,2d 802. Further, in considering possession of controlled substances, "The greater the amount

involved the more likelihood there is that the mental state of knowledge of possession exists." State v.

Chapman (1992), 73 Ohio App. 3d 132, 138, 596 N.E.2d 612

The elements of "knowledge" and intent must be gathered from all the surrounding facts and

circumstances. Further, the elements of an offense may be established by direct evidence,

circumstantial evidence, or both. Circumstantial and direct evidence are of equal evidentiary value.

Appellant argues that he had no authority, power or right to do anything with any of the

property including the contents of the septic tank. If actual physical possession baggies is tantamount

to possessing, it is patent from the record that all elements of the offense have not been established in

4

this cause beyond a reasonable doubt. However, Moffett argues that, in the absence of a statutory or

judicial definition of the word "posses" as used in R.C. 2925.11, it is necessary to apply a definition

which is commonly used and understood.

Possession is defined as having control over a thing or substance, but may not be inferred solely

from mere access to the thing or substance through ownership or occupation of the premises upon

which the thing or substance is found.

Circumstantial evidence relied upon to prove an essential element of a crime must be

irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of

guilt. Appellant certainly did not possess the drugs nor have knowledge. Appellant wasn't even asked

about the drugs by law enforcement. The drugs were inside a septic tank, possibly over the winter or

access breached by a third party (ie. Officers, informant, neighbors, previous owners) The motor

home was a neighborhood attractive nuisance.

Appellant was inside the late model motor home for a short period of time to recover a tool and

a part for a vehicle he was working on that was secured in the garage. This limited time within the

"proximity" to the motor home was not enough time for him to discover any drugs inside the vehicles

SepL1CSystelll.,rn1ll

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1_- lA t t^Le e^nµnl nveP gnmethina }le didn't know existed.c Cvuiu iio---a --

According to the testimony, officers had to be equipped with a coat hanger and a flashlight to

view and retrieve the two baggies. None of the states witnesses testified that they viewed the Appellant

enter the late model motor home during their surveillance. If Appellant was presumed to go to the

motor home to relieve his bowels, theofflcers would have had significant evidence of such. Appellant

permanently wears a illostomy bag. If Appellant would have released the contents that were inside his

illostomy bag, there would have been an extremely fowl oder emitting from the toilet of the motor

home. There was no evidence that officers encountered a smell from the toilet. Therefore, Appellant

was not close to the toilet or within the proximity of the toilet and subsequent septic tank(s). Water on

5

the floor was testimony fabricated by the state or from officers shoes. Appellants shoes were not

examined to determine if he was in fact in the proximity of the toilet or it's septic tank. The weather

was not admitted to evidence and Appellate counsel never questioned witnesses if they could have

verified the Appellants proximity, they only rely on Appellant's current location at the time of the

search which is vague and over-broad.

A defendant's mere presence in an area where drugs are located does not sufficiently

demonstrate that the defendant constructively possessed the drugs. See State v. Cola (1991), 77 Ohio

App. 3d 448, 450, 602 N.E.2d 730;[*6] see, also, Cincinnati v. McCartney (1971), 30 Ohio App. 2d 45,

281 N.E.2d 855 (defendant did not possess marijuana when he was found sitting six feet from a

growing marijuana plant in an apartment he did not occupy or own.)

The judge gave the jury instructions to consider Appellants "proximity" of the drugs. Proximity to

drugs is used frequently in convicting an offender to contraband in a vehicle or in a glove box. The

occupant in a vehicle may have access to the glove box because it's directly in front of them. The

passenger of a motor vehicle may smell the contraband or the owner of the vehicle may make them

aware of such contraband. However, when accessing the "proximity" for the purposes of this case, a

trier of fact can not come to the conclusion that a person with; limited access, no control, limited

availability and no knowledge of the contents inside a vehicles septic system had (1) knowledge, (2)

obtained, (3) possess, (4) or use of a controlled substance.

With the State not meeting the burden of the elements in R.C. 2925.11 Possession of Drugs,

n__,.ll,..... l,l t l.o f̂ 7;^'d g'.::lty ,^,f T^ pxing ,xnth Evirlenee Ln this case, The Co7^rt sentenced theL1YYG11QLLL VVU1LL 11VL VV ' -

Appellant to one and a half (1 1/2) year for Possession of Drugs and four (4) years for the Tampering

with evidence charge with 2 years post release control. Appellant believes the sentence is not

proportionate with other offenders and the Judge abused his discretion.

Appellant argues the trial court improperly instructed the jury by failing to comply with the

6

requirements set forth in State v. Howard (1989), 42 Ohio St.3d 18, 537 N.E.2d 188. Moffett contends

the trial court's instruction coerced the jury to reach a unanimous verdict that might otherwise have

remained deadlocked and necessitated a mistrial. Jury instructions were abuse of discretion.

In Howard, the Ohio Supreme Court set forth the proper instruction the trial court must give a

jury that has declared itself [**7] deadlocked. The "Howard charge" must be balanced, neutral, and

advance the following two goals: (1) encourage a unanimous verdict only when one "can

conscientiously be reached," leaving open the possibility of a hung jury and resulting mistrial; and (2)

call for all jurors to reevaluate their opinions, not just the jurors in the minority. Id. However, the

charge must remind the jury of its purpose - to reach a unanimous decision. Id. At 24.

CONCLUSION

For the reasons set forth herein, this Court should accept jurisdiction in this case because the

term "proximity" is over-broad and vague similarly to State v. Swidas 128 Ohio St. 3d 1481; 2011 Ohio

2055; 946 N.E.2d 240; 2011 Ohio LEXIS 1129, regarding [from the vehicle.]

RESPECTFULLY SUBMI

ShanN. Moffett Pro se #592'521Mansfield Correctional InstitutionP.O.Box788Mansfield, OH 44901-0788

7

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing Notice and Memorandum has been

provided to Clerk to be served to the Sandusky County Prosecuting Attorney, 100 North Park Ave.,

Suite 319, Fremont, Ohio 43420 on the day ofApri12012.

8

State of Ohb. Sandusky Courrty. S5:I hereby ce l that ths s a tru® copy Of,the origaieid um6nt e

day or

SANDUSKY COUNTYCOURT ©L^UPPEALS

MA'r' 16 2012

TRACY M. ®VERMYEk'CLERK

IN THE COURT OF APPEALS OF OHIOSIXTH APPELLATE DISTRICT

SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-10-056

Appellee Trial Court No. 10 CR 751

V.

Shan N. Moffett DECISION AND JUDGMENT

Appellant Decided: MAR 16 2O2

Alistair J.D. Thursby, for appellant.

PIETRYKOWSKI, J.

{¶ 1} Defendant-appellant, Shan N. Moffett, appeals the October 6, 2010

judgment of the Sandusky County Court of Common Pleas which, foi{owing a jn^y trial

convicting him of possession of crack cocaine and tampering with evidence, sentenced

him to a total of four years of imprisonment. For the reasons set forth herein, we affirm.

1®URNALIZED

{¶ 2} The relevant facts are as follows. On July 16, 2010, appellant was indicted

on one count oTpossession of crack cocaine, in violation of R.C. 2925.11(A) and

(C)(4)(b), a fourth degree felony and tampering with evidence, in violation of R.C.

2921.12(A)(1), a third degree felony. The charges "stem from the April 13, 2010

execution of a search warrant. Appellant entered not guilty pleas to the charges.

{T 3} A jury trial commenced on October 5, 2010, and the following evidence was

pzesented. Fremont Police Detective Tony Einrich testified that on April 13, 2010, in

Bellevue, Sandusky County, Ohio, he and his partner, Detective O'Connell, along with

officers from the Frernont and Bellevue Police Departments, executed a search warrant.

They entered the home and found a woman upstairs and a man downstairs. At the back

of the property was a motor home.

{¶ 4} When Detect-ive Emrich arrived at the motor home appellant was outside

being placed in handcuffs. Emrich and another officer began a search of the motor home.

Emrich stated that the motor home was an old model and had no water service. Detective

n...,..:,., s*.,+oa rhar a,hP„ t,P in.,_kP_r1 in th_e_ h_ath_r_n_om_ he noticed that the toilet seat was wetL11111N31 JL(1L^'u laau. rra^vav vv + ^. - --

and that there was water en the floor. Emrich then pushed open the valve to the septic

tank and obseived what appeared to be a plastic baggie of white "powderish" substance.

He retrieved the baggie with a hanger. Emrich testified that he then took the flashlight,

looked down the hole and observed a second baggie which he fished out. Suspecting that

there was a third baggie, the officers drained the septic tank; no other baggies were

found. Detective Emrich identified the baggies in court and testified that they were

2.

sealed and delivered to the Ohio Bureau of Criminal Identification and Investigation

(`BCI") for forensic testing.

{^ 5} Detective Emrich admitted that he did not observe appellant in possession of

the baggies and that he did not Icnow how long the baggies had been-dn the septic tank.

Emrich also acknowledged that the door to the mobile home had "shock lock rounds"

caused by a device to gain entry into a residence. Emrich admitted that the Bellevue

Police D.epartrtment caused the damage when trying to execute a prior search warrant.

{¶ 6}. Fremont Police Detective Roger Oddo testified next. Oddo stated that on

April 13, 2010, he was assisting with the search of the Bellevue residence. Oddo was

called to the motor home where he observed two plastic baggies with a white substance

inside the toilet. He and Detective Emrich fished out the baggies with a coat hanger.

Detective Oddo also admitted that he never observed appellant in physical possession of

the baggies; he did not see him flush the baggies down the toilet.

{¶ 7} Fremont Police Detective Sean O'Connell testified that he obtained the

t, ^^ L.^^oa tho '^f ,•,,,at;n„ nfa e^nfriential infnrniant (l'f'.nnnPll ctaterlsealell VY^a1a11L V0.0^+11 on LLV lniva111uuvu •

that they first approached and secured the residence. Once he realizedthat appelIant was

not in the home he proceeded to the motor home. O'Connell testified that although he

knocked and announced himself, there was no verbal response but he heard a

"commotion" coming from inside. After approximately two minutes, appellant opened

the door and was secured. O'Connell admitted that he did not see appellant in possession

3.

of the baggies. Detective O'Connell testified that the motor home was registered to

appellant and had been at that location for approximately two months prior to the search.

{^ 8} BCI forensic scientist Scott Dobranslci testified that he conducted testing on

the substance recovered from the motor home toilet. Dobranski testified that the

substance was crack cocaine and that the net weight of the substance was 2.7 grams.

{¶ 9} Following the conclusion of the trial and deliberations, the jury found

appellant guilty of the two counts in the indictment. The court immediately sentenced

appellant to 17 months in prison for possession of crack cocaine and four years of

imprisonment for tampering with evidence. The court ordered the sentences to be served

concurrently. This appeal followed.

{¶ 10} Appellant now raises the following assignments of error for our review:

1. The conviction not sufficiently supported by credible evidence

was against the manifest weight of the evidence.

2. Trial counsel was ineffective which prejudiced defendant/

a,,,nPltant'c riaht tn a fair trial aa anaranteed bv the U.S. and Ohio,.,.t,t ........... .. ..b... _" _`__ ___ - °_ o ^ .

Constitutions.

{¶ 11} In appellant's first assignment of error he argues that his convictions for

possession of crack cocaine and tampering with evidence are not supported by sufficient

evidence and are against the weight of the evidence. Sufficiency of the evidence and

manifest weight of the evidence are quantitatively and qualitatively different legal

concepts. State v. Thornpkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

4.

Sufficiency of the evidence is purely a question of law. Id. Under this standard of

adequacy, a court must consider whether the evidence was sufficient to support the

conviction as a matter of law. Id. The proper analysis is "`whether, after viewing the

eyidence in a light most favorable to the prosecution, any rational trier of fact could hav;e

found the essential elements of the crime proven beyond a reasonable doubt. "' State v.

Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996); quoting State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 12} In contrast, a manifest weight challenge questions whether the state has met

its burden of persuasion. Thompkins at 387. In malcing this determination, the court of

appeals sits as a "thirteenth juror" and, after

`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 [trier of fact] clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be

,-PvPmPc1 a„(1 a„Pw trial ordered. The discretionary nower to grant a new

trial should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.' Id., quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 13} Appellant was found guilty of one count of possession of crack cocaine and

one count of tampering with evidence. Appellant contends that because the statefaiied to

show that he knowingly "possessed" the cocaine, R.C. 2925.11, his convictions must fail.

5.

Specifically, appellant argues that his mere proximity to the drugs was not sufficient to

establish "constructive possession."

{¶ 14} The term "possession" is defined in R.C. 2925.01(K) as "having control

over a thing or substance, but may not be inferred solely from mere access to the thing or

substance through ownership or occupation of the premises upon which the thing or

substance is found." Possession may be constructive or actual. Constructive possession

is shown when a person "lcnowingly exercises dominion and control over an object, even

though that object may not be within his immediate physical possession." State v.

Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus. While close proximity

to contraband is insufficient alone to prove constructive possession, it can be used as

circumstantial evidence to establish constructive possession. State v. Chapman, 73 Ohio

App.3d 132, 138, 596 N.E.2d 612 (3d Dist.1992): Constructive possession can be

inferred from a totality of the circumstances. State v. Norman, 10th Dist. No. 03AP-298;

2003-Ohio-7038; ¶ 31.

r^ s n r v; ho P.,;dA P;^ a liaht most favorahle to n the state_ we find thatill 1JJ

-_-. --_-___ ___ _____. o

there was legallysufficient.circumstantial evidence to demonstrate that appellant

possessed the cocaine and tampered with evidence. First, a search warrant was executed

on the residence based upon the information of a confidential informant. Detective

O'Connell testified that once he realized that appellant was not in the residence he went

to the motor home. O'Connell further stated that he knocked on the door and announced

his presence; appellant did not open the door for two minutes and O'Connell heard a lot

of "commotion" coming from inside. The officer was unable to open the door on his

own. Appellant was the licensed owner of the motor home and no other individuals were

present.

{¶ 16} Detective Emrich testified that he conducted a search of the motor home;

he searched that bathroom first because, in his experience, it is the easiest place to

dispose of contraband. Emrich noticed a container of water next to the toilet and water

on the toilet seat and floor. When the valve was opened, the crack cocaine was seen in

the septic tank floating on top of the sludge.

{¶ 17} We further find that appellant's convictions were not against the manifest

weight of the evidence. After reviewing the entire record and weighing the evidence and

considering the credibility of the witnesses, we cannot say that the jury lost its way or

created a manifest injustice. Thompkins, 78 Ohio St.3d at 387. Accordingly, appellant's

first assignment of error is not well-talcen:

{¶ 18} In his second assignment of error, appellant asserts that he was denied the

A^fA *;< P a ^;^r^ P fr ;al n,, ^Pi Tn nrevail on a claim of ineffective assistance of.,...,.,..., ^.,.,..,«<...,. .,. .._. _^__-- -- - •-

counsel, a defendant must prove two elements: "First, the defendant must show that

counsel's performance was deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the `counsel' guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the deficient performance

prejudicedthe defense." St^ickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Proof of prejudice requires a showing "that there is a reasonable

7.

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 694; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989), paragraph three of the syllabus. Further, debatable strategic and tactical

decisions may not form the basis of a claim for ineffective assistance of counsel. State v.

Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995).

{¶ 19} In his assignment of error, appellant argues that counsel's failure to timely

attempt to withdraw due to the breaJcdown of communication and counsel's failure to

ftilly cross-examine officers regarding the shock lock rounds on the motor home door

compromised his right to a fair trial. Regarding the shock lock rounds, appellant argues

that the damaged condition of the door could have allowed others access to the motor

home.

{¶ 20} On the morning of trial, appellant's counsel filed a motion to withdraw as

counsel. Counsel explained that appellant had filed his own motion the day before.

Counsel indicated that there had been a total lack of communication and that appellant

had not cooperated with preparing for trial. Appellant was questioned and stated that he

did cooperate. After questioning counsel and appellant the court denied the motion

finding that if appellant was unhappy with counsel he could have hired different counsel

long before the day of trial.

{¶ 21} During the trial, counsel effectively cross-examined each witness about the

relevant issue in the case, whether appellant possessed the crack cocaine. Counsel did

question Detective Emrich about the shock lock rounds.

8.

{¶ 22} Based on the foregoing, we find that appellant was not denied

constitutionally effective counsel. Appellant's second assignment of error is not well-

taken.

{¶ 23} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair trial and the judgment of the Sandusky County Court of

Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs

of this appeal.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.

See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J.

Arlene Singer, P.J.

CONCUR.

This decision is subject to further editing by the Supreme Court ofOhio's Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court's web site at:http://www.sconet.state.oh.us/rod/newpdf/?source=6.

9.