[Cite as State v. Drummond, 2012-Ohio-1468.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

WYANDOT COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 16-11-08 

 v. 

SHANNON L. DRUMMOND, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Wyandot County Common Pleas Court 

Trial Court No. 11-CR-0022 

Judgment Affirmed 

Date of Decision: April 2, 2012 

 

APPEARANCES: 

Howard A. Elliott for Appellant 

Jonathan Miller and Douglas D. Rowland for Appellee 
Case No. 16-11-08 

-2- 

WILLAMOWSKI, J. 

{¶1} Defendant-Appellant, Shannon L. Drummond (“Drummond”), appeals 

the judgment of the Wyandot County Court of Common Pleas sentencing him to 

prison for four years after a jury found him guilty on two counts of aggravated 

possession of drugs. On appeal, Drummond contends that the trial court erred in 

admitting evidence and testimony; that he was denied effective assistance of 

counsel; and, that the jury’s decision was against the manifest weight of the 

evidence. For the reasons set forth below, the judgment is affirmed. 

{¶2} On March 16, 2011, the Wyandot County Grand Jury returned a twocount indictment against Drummond for aggravated trafficking in drugs 

(Methadone), in an amount greater than bulk but less than five times bulk, in 

violation of R.C. 2925.03(A)(1), both felonies of the third degree. The indictment 

resulted from Drummond selling Methadone pills, a Schedule II controlled 

substance, to a confidential informant on October 4th and October 15th in 2010. 

{¶3} A two-day jury trial was held on July 26 and 27, 2011. Deputy 

Richard Kesler, a deputy sheriff for the Wyandot Sheriff’s Department for more 

than twenty years, testified about the two drug buys that occurred when Danica, a 

confidential informant who had been working for the sheriff’s department, 

purchased Methadone pills from Drummond in two arranged drug buys on 
Case No. 16-11-08 

-3- 

October 4 and 15, 2010. (Tr. p 70) Deputy Kesler testified that Danica and 

Drummond made arrangements to meet at an agreed upon location for each buy. 

Prior to the meetings, Danica and her vehicle were thoroughly searched to be sure 

she did not have any drugs or contraband on her. She was given $300 in bills (that 

were photocopied for identification) and the plan was to buy fifty Methadone pills 

with the money. Danica was also fitted with a wire, both for safety and so that 

their conversations could be monitored and recorded. Deputy Kesler testified 

about how he waited nearby and listened during the drug buys; about what he 

heard and was able to see; and that Danica turned over to him the bag containing 

the Methadone pills immediately after each buy was concluded. Recordings of 

both of the transactions were played for the jury and admitted into evidence. (See 

Exhibits 1 and 2) 

{¶4} Deputy Kesler testified that he arrested Drummond on March 19, 

2011. He did not arrest him sooner because they wanted to continue to utilize 

Danica as a confidential informant for other drug buys, and their ability to do so 

would be compromised once Drummond was arrested and he learned of Danica’s 

role. 

{¶5} Danica then testified and explained in detail how she came to be used 

as a confidential informant and freely admitted that she was doing it for the 

money, as she was usually paid $100 for each drug buy. (Tr. p. 114) She testified 
Case No. 16-11-08 

-4- 

concerning the details of each of the drug buys, including the locations, how the 

arrangements were made, the conversations she had with Drummond, and how she 

would give Drummond $300 and he would hand her the pills in a plastic bag. 

{¶6} Chief Richard Blankenship of the Sycamore Police Department also 

testified about his participation in the drug buys. (Tr. p. 165) Chief Blankenship, 

who had just recently been promoted to chief, had been the police officer who 

worked closely with Deputy Kesler and Danica in October of 2010 for the drug 

buys, and was present during both of them. The chief confirmed and added to the 

facts and details of their testimony, including all of the procedures that were 

followed, both before and afterwards, to ensure that there was no doubt that the 

drugs had come from Drummond. 

{¶7} Lieutenant Todd Frey of the Wyandot County Sheriff’s Department 

was in charge of the evidence room, and he testified as to the security in the 

evidence room and the procedures used to safeguard the evidence and keep track 

of the chain of custody. (Tr. p. 186) Lt. Frey identified the two packages of pills, 

State’s Exhibits 3 and 4, containing 50 and 46 pills1

 respectively, as the evidence 

that was received and logged in from the two October drug buys. Lt. Frey further 

testified that the drugs were sent to the Mansfield Police Forensic Science 

 

1

 There were supposed to be 50 pills purchased at each of the drug buys, but only 46 pills were received on 

October 15th. There was testimony that it was not uncommon for a purchase to be “shorted” at times. 

Danica testified that she only pretended to actually count the pills when she was with Drummond, and 

didn’t realize that there were fewer pills. 
Case No. 16-11-08 

-5- 

Laboratory for testing. The laboratory report identified the two bags of pills, and 

the results of the examination on the contents were as follows: 

#1: 50 white tablets, weighing 6.21 grams, were found to contain 

Methadone, a Schedule II controlled substance. 

#2: 46 white tablets, weighing 5.72 grams, were found to contain 

Methadone, a Schedule II controlled substance. 

The laboratory report was admitted into evidence, by agreement of both parties, as 

Joint Exhibit 1. (Tr. pp. 189-90) 

{¶8} Robert Amiet, Jr., a pharmacist employed by the Ohio State Board of 

Pharmacy, testified about how controlled substances in general are classified, how 

they are weighed and measured, how the “bulk amount” of controlled substances 

is determined, and how Methadone tablets are classified. (Tr. pp. 146-155) The 

trial court agreed to allow Mr. Amiet to testify as an expert witness after he gave a 

summary of his education, qualifications, credentials, and experience, which 

included: a Bachelor’s degree in pharmacy and a Master’s degree in business 

administration; over twenty-four years of employment with the Ohio State Board 

of Pharmacy; lecturer for the Board of Pharmacy on the drug laws of Ohio that 

pertain to pharmacy; author of The Controlled Substance Reference Table for the 

Board of Pharmacy; membership in several professional organizations in his field; 

and designation as an expert witness in numerous state and federal court cases. 

(Tr. pp. 147-151) 
Case No. 16-11-08 

-6- 

{¶9} Mr. Amiet was shown the State’s two exhibits containing the pills 

purchased by Danica and asked to identify them. (Tr. p. 152) Based on their 

markings and color, he identified the pills as a Methadone, 5 mg. tablets. (Tr. p. 

153) Mr. Amiet then discussed many of the properties and characteristics of 

Methadone and explained why they were categorized as a Schedule II substance. 

The State then asked Mr. Amiet if he could explain whether the amount of these 

bags of pills, each separately, constituted a bulk amount of Methadone. (Tr. p. 

156) Mr. Amiet explained that by either doing the mathematics, or referring to the 

table, thirty 5 mg. tablets of Methadone constituted a bulk amount for that 

particular type of drug. (Tr. pp. 156-161) The Report of Investigation that Mr. 

Amiet created as a result of his examination of these drugs was also admitted into 

evidence, without objection, as State’s Exhibit 6, and stated: 

This Specialist identified the white tablets with the imprint “M5755” 

as methadone 5 mg. tablets, a Schedule II Controlled Substance. 

(Attachment #1). The Mansfield Forensic Science Lab confirmed, 

by chemical analysis, that the white tablets with imprint 

“M5755”contain methadone (Attachment #2). 

Pursuant to Section 2925.01(D), ORC, the definition of Bulk 

Amount, this Specialist determined the Bulk Amount of methadone 

5 mg. tablets is thirty (30) tablets. This is further documented in the 

Controlled Substance Reference Table (Attachment #3). 

Pursuant to the definition of Bulk Amount, the “maximum daily 

dose in the usual dose range specified in a standard pharmaceutical 

reference manual” was taken from the American Hospital Formulary 

Service Drug Information (Attachment #4). The American Hospital 
Case No. 16-11-08 

-7- 

Formulary Service Drug Information is a standard pharmaceutical 

reference as defined in Section 5729-11-07, OAC (Attachment #5). 

{¶10} After each of the State’s witnesses testified, Drummond’s attorney 

thoroughly cross-examined each witness and posed questions to attempt to raise 

issues as to their credibility, motivation, consistency, and any other matters that 

could possibly raise doubt in the jurors’ minds. Drummond’s attorney also moved 

for a Crim.R. 29 motion for acquittal at the close of the State’s case, which was 

denied by the trial court. 

{¶11} The jury found Drummond guilty on both counts of trafficking in 

drugs as charged in the indictment, and it also found that the amount of drugs 

involved in each offense was equal to or greater than the bulk amount. The 

sentencing hearing was held on August 24, 2011, and the trial court sentenced 

Drummond to a mandatory two-year prison term on each count, with the sentences 

to be served consecutively to each other. It is from this judgment that Drummond 

now appeals, raising the following four assignments of error for our review. 

First Assignment of Error 

The trial court erred in admitting the testimony of Robert 

Amiet, instructing the jury on portions of the Ohio Revised Code 

testifying on what constitutes a bulk amount of a controlled 

substance. 

Second Assignment of Error 

The trial court erred in admitt[ing] the laboratory report of the 

drug analysis as it was not supported by a sufficient foundation 

as a business record. 
Case No. 16-11-08 

-8- 

Third Assignment of Error 

[Drummond] was denied his right to a fair jury trial by virtue of 

his trial court counsel rendering ineffective assistance of counsel. 

Fourth Assignment of Error 

The conviction of Drummond is against the manifest weight of 

the evidence. 

First Assignment of Error – Testimony concerning “bulk” amount 

{¶12} In his first assignment of error, Drummond asserts that the trial court 

erred in allowing Mr. Amiet to testify that the drugs in this case exceeded the bulk 

amount. He claims that such a determination went to an essential element of the 

offense and that it was up to the jury to determine whether or not the drugs 

constituted a bulk amount, not Mr. Amiet. 

{¶13} Drummond acknowledges that there was no objection to Mr. Amiet’s 

testimony, his report, or the jury instructions, so he has waived all but plain error 

on this matter. See State v. Johnson, 164 Ohio App.3d 792, 2005–Ohio–6826, ¶ 

53. Plain error does not exist unless it can be said that, but for the error, the 

outcome would clearly have been different. State v. Long, 53 Ohio St.2d 91, 372 

N.E.2d 804 (1978). Notice of plain error under Crim.R. 52(B) is to be taken with 

the utmost caution, under exceptional circumstances and only to prevent a 

manifest miscarriage of justice. Id. 
Case No. 16-11-08 

-9- 

{¶14} Drummond cites to three cases that he claims stands for the 

proposition that “it is the court’s obligation to advise the jury as to the law,” and 

therefore, he claims that “the trial court failed to instruct the jury as to the law and 

its obligations were usurped by the admission of the testimony of Mr. Amiet.” 

(Appellant’s Br. p. 6) See State v. Feltner, Miami App. No. 88-CA-34, 1989 WL 

94550; State v. Morales, 5th Dist. 2004-CA-68, 2005-Ohio-4714; State v. Fisher, 

5th Dist. CAA 04 20, 2006-Ohio-2201. However, Drummond misstates the 

findings in those cases and takes them out of context. The issue in all three of 

those cases was that the defendant was complaining that there was not any or not 

enough expert testimony to establish that they were in possession of a bulk amount 

of a controlled substance. Feltner (“Appellant argues that the court was required 

to have testimonial or other verified proof that cocaine is a ‘controlled substance’ 

and as to the definition of ‘bulk amount.’”); Morales at ¶ 53 (“Appellant further 

argues that because there was no testimony as to bulk amount, the jury erred in 

convicting him of possession of 100 times the bulk amount.”); Fisher at ¶ 13 

(“Appellant maintains the state was required to present testimonial evidence of the 

maximum daily dosage of Oxycontin as specified in a standard pharmaceutical 

reference manual.”) 

{¶15} The decisions in the cases relied upon by Drummond stated that the 

jury instructions given were sufficient and met the requirements of the law. Id. 
Case No. 16-11-08 

-10- 

Further testimony by experts in those cases was not required, but there was 

nothing that would indicate that it would have been prohibited. Id. 

{¶16} There are numerous cases where the State has presented expert 

testimony, similar to the testimony in this case, in order to provide information to 

the jury as to the classification of controlled substances, and such testimony has 

been upheld on appeal. See, e.g., State v. Bange, 4th Dist. No. 10CA3160, 2011-

Ohio-378, ¶5; State v. Brown, 12th Dist. CA2003-02-004, 2004-Ohio-424, ¶ 7; 

State v. Hamlin, 5th Dist. No.2002CA00162, 2003-Ohio-544, ¶12. In fact, in the 

three examples cited, Bange, Brown, and Hamlin, Mr. Amiet was the expert 

witness providing testimony very much like he gave in this case. See id. 

{¶17} The trial court properly instructed the jury concerning the law and 

the definition of bulk amount. (See Tr. p. 239) In addition, Mr. Amiet explained 

what was required in order to determine what constitutes a bulk amount of drugs. 

Pursuant to the mathematical formulas and the pharmaceutical tables, in this case a 

bulk amount of these drugs constituted thirty pills. He never testified as to 

whether or not the quantity of pills sold by Drummond actually was a bulk 

amount, but the jury was able to use the information provided to make that 

determination. In any case, Evid.R. 704, concerning the testimony of expert 

witnesses, provides that opinion evidence is not objectionable solely because it 
Case No. 16-11-08 

-11- 

embraces an ultimate issue of fact. See, also, State v. Stowers, 81 Ohio St.3d 260, 

261, 1998-Ohio-632. 

{¶18} Without the assistance of an explanation of the definition of bulk 

amount, it would be very difficult for laypersons to understand what constitutes 

the bulk amount of various controlled substances. Mr. Amiet, given his 

experience, training and skill, testified appropriately and assisted the State in 

providing information on the determination of a bulk amount. Because Mr. Amiet 

authored the Controlled Substance Reference Table, he was a most appropriate 

person to explain its meaning. Drummond’s first assignment of error is overruled. 

Second Assignment of Error – Admission of drug analysis lab report 

{¶19} Drummond’s second assignment of error argues that the introduction 

of the Mansfield Police Forensic Science Laboratory Drug Analysis Report (Joint 

Exhibit 1) was not properly admitted because of a lack of sufficient foundation as 

a business record, citing to State v. Crager, 166 Ohio St.3d 369, 2007-Ohio-6840, 

judgment vacated and remanded, 123 Ohio St.3d 1210, 2009-Ohio-4760, and that 

its admission without the testimony of the person conducting the analysis violated 

his rights under the confrontation clause, citing to Melendez-Diaz v. 

Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). 

{¶20} First, we note that Drummond failed to object to the admission of the 

report, again waiving all but plain error. See, Lang, 129 Ohio St.3d 512, supra. 
Case No. 16-11-08 

-12- 

Not only did Drummond fail to object to the introduction of the drug analysis 

report prepared by Anthony Tambasco, but he joined with the State in the 

introduction of the document as a joint exhibit. 

{¶21} It is well-established that an attorney may waive a client's Sixth 

Amendment right to confrontation. State v. Pasqualone, 121 Ohio St.3d 186, 

2009-Ohio-315, at paragraph one of the syllabus; Melendez-Diaz, 129 S.Ct. at 

2534, fn. 3. A defendant may also waive the opportunity to cross-examine a 

laboratory analyst at trial and allow the report to be admitted as prima facie 

evidence of the test results. Pasqualone at paragraph two of the syllabus. 

{¶22} In this case, Drummond’s attorney originally requested that the 

laboratory analyst appear at trial pursuant to his rights under R.C. 2925.51. 

However, at some point, he no longer chose to pursue that right and agreed to 

admit the laboratory report as a joint exhibit, without any further foundation. 

Therefore, any error that resulted from the introduction of the document would be 

invited error. The doctrine of invited error holds that a litigant may not “take 

advantage of an error which he himself invited or induced.” State v. Campbell, 90 

Ohio St.3d 320, 324, 2000-Ohio-183, citing to Hal Artz Lincoln–Mercury, Inc. v. 

Ford Motor Co., 28 Ohio St.3d 20 (1986), paragraph one of the syllabus. 

Drummond cannot expect to benefit on appeal, given that he participated in the 

admission of the document. 
Case No. 16-11-08 

-13- 

{¶23} Furthermore, the information concerning the drugs that was 

contained in the report was already testified to by another expert witness, Mr. 

Amiet, and was included in his investigative report, admitted as State’s Exhibit 6. 

Therefore, the information contained in the laboratory report was already properly 

before the jury. Requiring a second expert witness to identify the drug and 

introduce the drug test results would have been redundant. There is no indication 

that such testimony would have affected the outcome of the trial in any way. By 

agreeing to the introduction of the drug test results, the defense merely eliminated 

the necessity that the State call a second expert witness to testify. Drummond’s 

second assignment of error is overruled. 

Third Assignment of Error – Ineffective assistance of counsel 

{¶24} Drummond contends that his trial counsel’s performance was 

ineffective and fell below the minimum standards. He cites to three specific areas 

where he claims trial counsel’s performance was ineffective: (1) in failing to 

object to Mr. Amiet’s testimony; (2) in allowing the admission of the drug analysis 

laboratory report as a joint exhibit without a proper foundation; and, (3) in failing 

to question the jurors during voir dire “as to any particular bias’ or lack thereof.” 

(Appellant’s Brief, p. 10) Drummond asserts that his counsel’s actions cannot be 

excused as being a “trial tactic.” 
Case No. 16-11-08 

-14- 

{¶25} We have already discussed the testimony of Mr. Amiet in the first 

assignment of error, and found that there was no error in allowing his testimony. 

Therefore, Drummond’s counsel could not have been ineffective for failing to 

object to his testimony. 

{¶26} The decision to admit the laboratory report as a joint exhibit was 

likely a tactical decision done so as to not require the State to call a second expert 

witness to further drive home the point that the drugs involved in the case 

constituted a bulk amount of methadone. And, as stated above, that information 

was already before the court, and the State could have easily reinforced Mr. 

Amiet’s testimony with a second expert witness. We find no error in this trial 

tactic. 

{¶27} And finally, Drummond complains that his counsel failed to question 

the potential jurors during voir dire. Drummond asserts that while “the Court 

asked a series of questions on voir dire and the State also asked questions of a 

number of potential jurors, the Defendant’s counsel was silent, declining to make 

inquiries.” (Appellant’s Br. p. 10) 

{¶28} We find that there is no merit in this last assertion because: (1) the 

record disproves Drummond’s claim that his counsel “was silent”; and, (2) it was 

evident from the record that his counsel’s choice of questioning was a trial 

technique. 
Case No. 16-11-08 

-15- 

{¶29} It is an accepted fact that “voir dire is largely a matter of strategy and 

tactics * * *.” State v. Keith, 79 Ohio St.3d 514, 521, 1997-Ohio-367. “Debatable 

trial tactics generally do not constitute a deprivation of effective counsel.” State v. 

Phillips, 74 Ohio St.3d 72, 85, 1995-Ohio-171, citing State v. Clayton, 62 Ohio 

St.2d 45, 49 (1980). “The conduct of voir dire by defense counsel does not have 

to take a particular form, nor do specific questions have to be asked.” State v. 

Evans (1992), 63 Ohio St.3d 231, 247 (1992). Additionally, we give deference to 

decisions by trial counsel during voir dire because trial counsel sees and hears 

jurors and is in the best position to determine whether voir dire questions are 

needed. State v. Sanders, 92 Ohio St.3d 245, 274, 2001-Ohio-189, citing State v. 

Bradley, 42 Ohio St.3d 136, 143 (1989). 

{¶30} There was no need for Drummond’s counsel to ask many questions 

because the trial court and the State had already asked most of the basic and 

fundamental questions necessary to determine whether any of the jurors had any 

impermissible bias or prejudice, or any other issues that would interfere with their 

service as a juror. (Tr. pp. 6-36) And, contrary to Drummond’s assertions, his 

counsel did address the jurors and pose questions. (Tr. pp. 36-39) It was clear 

that his intention was to be brief, as he promised the jurors that he would “be 

brief” in order to avoid them getting that “glassy-eyed look” that might come from 

lawyers talking too much. (Tr. p. 36) However, in his brief discourse, his 
Case No. 16-11-08 

-16- 

counsel: complimented the jury on the life experiences and common sense that 

they brought to the procedures; discussed the importance of making independent 

decisions; asked whether there was anyone who was not capable of making an 

individual choice to vote their conscience, even if it meant being the lone 

dissenter; and, he questioned them as to whether they would be able to vote “not 

guilty” if that was what they truly believed, even though the defendant had been 

arrested and charged by the State. (Tr. pp. 37-38) 

{¶31} We find no deficient performance in Drummond’s trial counsel’s 

conduct during voir dire. It is clear that his choice to limit his questioning was a 

planned trial tactic. Therefore, based on all of the above, the third assignment of 

error is overruled. 

Fourth Assignment of Error – Manifest Weight 

{¶32} In his final assignment of error, Drummond argues that the jury’s 

verdict was against the manifest weight of the evidence. Drummond claims that, 

based upon the improper admission of Mr. Amiet’s testimony and the improper 

admission of the laboratory report, the conviction cannot be sustained because 

both of those arguments go to the essential elements of the offense and the 

conviction cannot be sustained without that evidence. 

{¶33} In determining if a conviction is against the manifest weight of the 

evidence, an appellate court “review[s] the entire record, weighs the evidence and 
Case No. 16-11-08 

-17- 

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.” State v. Mendoza, 137 Ohio App.3d 336, 346–347 (3d 

Dist.2000), quoting State v. Martin, 20 Ohio App.3d 172, 175, (1st Dist.1983); 

see, also, State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). A new trial should 

be granted only in the exceptional case in which the evidence weighs heavily 

against conviction. Thompkins at 387. 

{¶34} Although the appellate court acts as a “thirteenth juror,” it still must 

give due deference to the findings made by the fact-finder. State v. Thompson, 

127 Ohio App.3d 511, 529 (8th Dist.1998). The fact-finder, being the jury, 

occupies a superior position in determining credibility. Id. When examining 

witness credibility, “[t]he choice between credible witnesses and their conflicting 

testimony rests solely with the finder of fact and an appellate court may not 

substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio 

St.3d 120, 123 (1986). To reverse the judgment of a trial court on the weight of 

the evidence based upon a jury's verdict, a unanimous concurrence of all three 

judges on the reviewing panel is required. Thompkins, at paragraph four of the 

syllabus. 
Case No. 16-11-08 

-18- 

{¶35} Drummond’s arguments concerning this assignment of error fail for 

at least two reasons. First, based upon our findings in the first and second 

assignments of error, the admission of Mr. Amiet’s testimony and the admission of 

the laboratory report were not in error. Therefore, this evidence could certainly be 

utilized in determining Drummond’s guilt. Furthermore, the jury’s verdict was 

supported by a considerable amount of additional evidence. Two experienced law 

enforcement officers and the confidential informant all presented strong and 

consistent testimony that would support a finding that Drummond was guilty of 

trafficking in the drugs. And, their testimony was further reinforced by the 

recordings of the drug transactions. 

{¶36} The weight of the evidence was greatly in favor of the State. 

Drummond’s fourth assignment of error is overruled. 

{¶37} Having found no error prejudicial to the Appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

PRESTON and ROGERS, J.J., concur. 

/jlr