[Cite as State v. Lawson , 2020-Ohio-6852.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO Plaintiff-Appellee

v. THOMAS W. LAWSON Defendant-Appellant : : : : : : : : : : Appellate Case No. 2020-CA-16

Trial Court Case No. 2019-CR-555 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 23rd day of December, 2020.

. . . . . . . . . . . MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Greene County Pros ecutor’s Office, Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio 45 385 Attorney for Plaintiff-Appellee JAY A. ADAMS, Atty. Reg. No. 00 72135, 100 North Detroit Street, Xenia, Ohio 45385 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FROELICH, J.-2-

{¶ 1} After a jury trial in the Greene County Court of Common Pleas, Thomas W. Lawson was found guilty of possession of a fentanyl-related com pound, trafficking in a fentanyl-related compound, trafficking in heroin, aggravated po ssession of drugs (methamphetamine), and two counts of possession of heroin. The two trafficking offenses contained firearm specifications. After merging certa in offenses and the firearm specifications, the trial court imposed an aggregate term of a minimum of 12 years in prison with a maximum term of 17.5 years. {¶ 2} Lawson appeals from his convicti ons. He claims that the trial court erred in failing to continue the jury trial and to appoint new counsel, that his trial counsel rendered ineffective assistance, and that his convictions were not based on sufficient evidence. For the following reasons, the tr ial court’s judgment will be a ffirmed. I. Procedural History {¶ 3} On June 21, 2019, Lawson was arrested in Greene County and the car he was driving at the time of his arrest was impounded by the Rive rside police due to an investigation in that Montgomery County jurisdiction. In a sub sequent interview, Lawson informed a Riverside detective that he (the detective) would fi nd guns and drugs in the vehicle. Based on Lawson’s statements, the detective obtained a search warrant for the car. Upon searching the vehicle, the detective located approxi mately 68 grams of heroin and fentanyl in one baggie, 5.5 grams of Tramadol, heroin, and fentanyl in a second baggie, and 3.6 grams of methamphetamine in a third baggie. Of ficers also located a digital scale and two guns, among other items, in the vehicle. {¶ 4} On August 30, 2019, Lawson was indicted in Greene County on eig ht counts:-3- Count Offense Statute Degree Firearm Spec? 1 Improper Handling of Firearms in a Motor Vehicle 2923.16(B) F4

2 Possession of a fentanyl-related compound 2925.11(A) F1

3 Trafficking in a fentanyl-related compound 2925.03(A)(2) F1 Yes 4 Possession of heroin 2925.11 ( A ) F1 5 Traffickin g in heroin 2925.03 ( A )( 2 ) F1 Yes 6 A gg ravated possession of dru g s 2925.11 ( A ) F3 7 Possession of heroin 2925.11 ( A ) F3 8 Escape 2921.34 ( A )( 1 ) F2

The indictment also included a forfeiture specification related to the two firearms. {¶ 5} Lawson appeared with appointed counsel for his arraignment via video. He pled not guilty, and the court set a trial date of November 12, 2019. On November 8, Lawson moved for a continuance, stating that negotiations with the State were ongoing and the State needed additional time to confirm information pro vided by Lawson. The trial court rescheduled the trial for January 13, 2020. On Nov ember 25, the trial court again rescheduled the jury trial for February 18, 2020. {¶ 6} On January 21, 2020, the Ohio Supreme Court suspended Lawson’s defense counsel from the practice of law for two years, with the second year stayed if he met

certain conditions. 1 See Dayton Bar Assn. v. Sullivan , 158 Ohio St.3d 423, 2020-Ohio124, 144 N.E.3d 401. Eight days later, an assistant public def ender moved to be substituted as counsel for Lawson. The trial court granted the motion. A status conference was scheduled for February 6; that conference was no t transcribed.

1 Lawson’s appellate counsel has filed a motion asking us to tak e judicial notice of original defense counsel’s suspension from the practice of law. That mo tion is granted.-4- {¶ 7} On February 7, the trial court held a Lafler hearing. 2 The prosecutor informed the court that the State had presented two plea offers , one with a stipulated sentence and one without. Defense counsel agreed that he had r eceived those offers and had conveyed them to Lawson. Lawson indicated that he want ed to reject both offers. The court noted that trial was scheduled for February 18 and that defense counsel previously had conveyed that Lawson wanted to keep the trial date. When asked if that was correct, Lawson responded, “Yes, sir.” {¶ 8} The trial court asked defense counsel if he would be prepared f or trial on February 18. Counsel responded: Well, your Honor, as I had previously indicated, I indicated to Mr. Lawson, I can be ready, but I’m not going to be ready anywhere near to the degree that I would – to the standard that I would hold myself to be ready for a trial in this short amount of time, because you’ve seen, you’ve seen the charges. You’ve seen how muc h discovery, how many discs an d things here (Indicating.) * * * So, so I told my client, I’ve informed him that if we don ’t have a continuance, I won’t be as prepared as I feel I should be. I’l l do everything

2 The court’s scheduling document referred to this hearing as a “ Lafler hearing,” but that is a misnomer. In Lafler v. Cooper , 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the United States Supreme Court indicated the trial cou rt could have conducted a hearing, at the point after the jury's guilty verdict and before sentencing, to flesh out the defendant’s post-verdict and pre-sentencing claim that he had r eceived ineffective assistance in plea negotiations before trial. Here, the court held a hearing to ensure that Lawson was aware of the State’s plea offers and accepted or rej ected them on the record. While Lafler also suggested that courts may t ake measures to ensure against fabricated claims following the acceptance of a less advantageous plea or a conviction after trial, id

. at 172, such prophylactic measures are not a true Lafler hearing. See State v. Easterling , 2019-Ohio-2470, 139 N.E.3d 497, ¶ 25 (2d Dist.), fn.3.-5- I can – basically there’s only so many hours in the day is what I’m saying, and we’re compacted. (Indicating.) As you know, trials of this, you know, type of crime of this na ture, we normally have a lot more than two weeks. {¶ 9} The trial court then addressed Lawson about what his attorney h ad said. The court told Lawson that the decision to go forward on Februa ry 18 or instead postpone the case was up to him. The trial court advised Lawson to talkwith his attorney about the trial date, saying “[I]f you want to go forward, we’ll go f orward. If you want a short postponement, you’ll get it. Either decision is good by me.” The court emphasized that defense counsel was a “very good lawyer” who was “very experien ced in this courtroom” and could “probably answer any question you might have.” Lawso n discussed his frustration with the plea process and the course of the case. The court responded that it was not involved with the plea negotiations, but it would al low Lawson either to go forward with the scheduled trial or have a brief continuance, d epending on what he

decided. {¶ 10} Defense counsel raised three additional issues with the trial c ourt. He informed the court that he was having difficulty obtaining purp orted exculpatory evidence from original defense counsel. Counsel noted that multiple cop ies of the evidence existed, and he was trying to obtain it from other sources. Ne xt, counsel noted that he was reviewing discovery and might lose the ability to raise a m otion to suppress if the current trial date went forward. Third, counsel emphasized tha t “none of this mess we have that we’re in today was the result of anything that Mr. La wson has done.” {¶ 11} The parties asked the court about its general rule that plea ag reements be-6- presented to the court by one week before the trial date. The court said that it was suspending that rule due to the extraordinary circumstances in Lawson’s case. The court stated that the parties could continue to negotiate a ple a if they wished and reiterated that trial was scheduled to proceed on this case, bu t a continuance would be granted if Lawson decided he wanted a postponement. {¶ 12} No motions were filed between February 7 and February 18, 2020. {¶ 13} Prior to the beginning of trial on February 18, Lawson file a m otion to sever the escape charge or, alternatively, to waive a jury trial on t hat charge. The court, counsel and Lawson then had extensive discussions prior to voir dire. Defense counsel told the court that he had spoken with Lawson that morning and explained to Lawson that he could request a continuance, accept a plea offer, or go to t rial that morning. Counsel reported that Lawson initially responded with obscenities and a request for new counsel. Counsel informed the court that “at this time, my understanding is that he still does not want to have the trial. He’d like to get new counsel, which I would assume that would be to retain somebody, and it’s his desire to not go forward today , and he says that I’m ineffective, haven’t been doing different things and that.” {¶ 14} The court turned to Lawson and asked him, “[R]egarding the tria l, you ready to go today?” Lawson responded, “Yes, sir.” Defense counsel t old the court, “Your Honor, that was contrary to what I was told * * *.” The court replied that it “got [its]

answer” and “let’s move on.” {¶ 15} The court had a lengthy conversation with Lawson, in which Laws on expressed his views on the case, the State’s conduct with respe ct to Lawson’s cooperation in another unrelated case, and the State’s pending plea offer. During the-7- discussion, Lawson indicated that he had not seen certain disco very in this case. The court discussed with Lawson whether he wanted to waive a jury t rial on the escape charge. {¶ 16} At one point, Lawson asked if his attorney would change if he w ere to ask for a continuance. Lawson inquired, “[W]hy does my representat ion level drop from a court appropriated [sic] private practice lawyer who had my bes t interest to a public defender? Would I still be appointed a new counsel to represen t me on the next trial date, or would I have to be stuck with [current defense counsel ]?” The court replied, “I don’t know the answer to that. I can’t answer that right now. I don’t know.” Lawson stated, “And that’s my dilemma because I don’t feel based on th e lack of time and the lack of communication that I’ve had with [counsel] that he has my best interest at heart.” {¶ 17} At that point, Lawson again began to discuss whether he believe d the State could prove the drug possession charges against him. The trial court indicated that it would sever the escape charge and the trial would proceed on th e drug counts. Defense counsel proposed proceeding on the escape charge instead, which he described as “a much more straightforward case.” {¶ 18} After a brief recess, the court indicated that it had a written motion to sever the escape charge and that if the motion were granted, the case would proceed on the drug charges that day. The court asked Lawson if he wanted to do that, and Lawson responded affirmatively. The trial court filed a written entry , granting the motion to sever and stating that the escape charge would be addressed at the su bsequent jury trial in another pending case against Lawson, Greene C.P. No. 2019-CR-50 8. {¶ 19} At that juncture, the trial court indicated that it was time fo r the prospective-8- jurors to be brought in. Lawson immediately asked the court if he could ask a question, namely whether it was “effective fair trial for me to go forwar d with [defense counsel] as my attorney.” The court responded, “Yes.” The court took a br ief recess before jury selection began. {¶ 20} After the prospective jurors were questioned and just prior to discussing with counsel any challenges to the prospective jurors, defense counsel informed the court that Lawson had asked him to request a continuance. Defense co unsel conveyed that

Lawson wanted the continuance “because of the amount of time in volved, because of [original defense counsel] issues, [and] the limited amount of time and things.” The State opposed the request, saying that this “was all addressed with t he Court last week and the week before that.” The court denied the motion in light of the State’s position. {¶ 21} At the conclusion of the jury trial, the jury found Lawson guil ty of the drug offenses and firearm specifications (Counts Two through Seven). The jury could not reach a verdict on Count One, improper handling of firearms in a motor vehicle, and that charge was dismissed in the court’s judgment entry. At sentenc ing, the trial court merged possession of a fentanyl-related compound (Count Two) wi th trafficking in a fentanyl-related compound (Count Three) and possession of heroi n (Count Four) with trafficking in heroin (Count Five); the court also merged the f irearm specifications. The trial court imposed an aggregate term of a minimum of 12 years in prison with a maximum term of 17.5 years. {¶ 22} Lawson appeals from his convictions, raising three assignments of error. 3

3 When the notice of appeal was filed, Lawson had not yet been t ried for escape. We conclude that the judgment entry on appeal is nevertheless a fi nal appealable order, because the escape count had been formally severed and all othe r charges had been-9- We will address them in an order that facilitates our analysis.

I. Motions for a Continuan ce and for New Counsel {¶ 23} In his first assignment of error, Lawson claims that the “trial court erred in not granting a continuance of the jury trial and the motion to appoint new counsel.”

A. Motion for a Continuance {¶ 24} The Supreme Court of Ohio has adopted a balancing test to guide lower courts in resolving the competing considerations when evaluatin g a motion for a

continuance. State v. Unger , 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). A trial court should consider (1) the length of the delay requested; (2 ) whether other continuances have been requested or received; (3) the inconveni ence to the litigants, witnesses, opposing counsel, and the court; (4) whether the req uested delay is for legitimate reasons or whether it is dilatory, purposeful, or co ntrived; (5) whether defendant contributed to the circumstances which gave rise to the request for a continuance; and (6) other relevant factors, depending on the unique facts of ea ch case. E.g., State v.

Breneman , 2d Dist. Champaign No. 2010-CA-18, 2012-Ohio-2534, ¶ 15, citi ng Unger at

67-68. {¶ 25} “The grant or denial of a continuance is a matter which is entr usted to the broad, sound discretion of the trial judge.” Unger at 67. Therefore, an appellate court must not reverse a trial court’s decision to deny a motion for continuance unless it finds

that the trial court abused its discretion. Id .; Frodyma v. Frodyma , 2d Dist. Greene No. 2013-CA-40, 2014-Ohio-953, ¶ 26. The term “abuse of discretion ” implies that the

resolved. See State v. Craig , 159 Ohio St.3d 398, 2020-Ohio-455, 151 N.E.3d 574, ¶ 24 (“Had the trial court at any point severed the counts of convic tion from the still-pending charge, Craig would have been able to appeal his convictions se parately.”).-10- court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶ 26} “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Ungar v. Sarafite , 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). {¶ 27} Lawson asserts that each of the above factors either was neutra l or favored the granting of a continuance. He states that no specific leng th of a delay was requested,

but some amount of a continuance would have been reasonable. L awson emphasizes that new defense counsel had recently been appointed through no fault of his, and new counsel had not previously sought a continuance. Lawson notes that all of the witnesses were police officers or lab analysts, and no lay witnesses woul d have been

inconvenienced. Lawson further states that “the trial court ha d previously placed on the record that there were other trials set for that day and the ju ry that was called in could

have been used for those trials so as to not inconvenience the court and those jurors.” Lawson emphasizes that he had not seen all of the discovery, he had had minimal inperson communications with his new counsel, and there were pret rial motions that could

have been filed. {¶ 28} This case presents a unique circumstance. Lawson was indicted in August 2019, and it appears that he has been held in jail during the p endency of this case. His original counsel sought a continuance in November 2019, which w as granted. Less than a month before the rescheduled February 18, 2020 trial date, La wson’s appointed counsel-11- was suspended from the practice of law, necessitating new couns el. It is undisputed that Lawson did nothing to create this situation. Lawson repeatedlyexpressed frustration with the resulting circumstance s, specifically that he faced go ing to trial as scheduled with new counsel or accepting a delay of the trial date. Lawson was unsatisfied with both options. {¶ 29} At the February 7 hearing, the trial court repeatedly told Laws on that it would either proceed with the scheduled trial date or provide him a s hort postponement, whichever Lawson wanted. The court encouraged Lawson to talk w ith his attorney about what he wanted to do. The court stated that, as of February 7, the trial would proceed as scheduled, but “[i]f any time between now and then, you’d li ke it postponed, I will grant that to you.” {¶ 30} As of February 7, Lawson was also aware of his attorney’s conce rns about his (counsel’s) ability to be pr epared for trial on February 18 . Counsel had expressed that he would do everything he could to be ready, but would not be ready to the extent that he would normally be ready if he had more time. Counsel h ad also informed the court that he was having issues obtaining purported exculpatory evidence and there possibly were pretrial motions that needed to be filed. {¶ 31} Between February 7 and the trial date (February 18), Lawson did not request a continuance, file any pretrial motions, or request ne w counsel. {¶ 32} Prior to the jury pool’s being brought into court for voir dire on February 18, defense counsel informed the court that he had spoken to Lawson that morning and presented three options to Lawson – accept a plea, request a co ntinuance, proceed with trial; counsel conveyed that Lawson was upset, wanted new couns el, and ultimately-12- requested a continuance. However, when the trial court asked L awson directly whether he was ready to proceed to trial that day, Lawson responded aff irmatively. Lawson did not request a continuance prior to the commencement of jury sel ection. {¶ 33} Jury selection began at 10:25 a.m. and continued until the cour t took a brief recess at 12:05 p.m. When court resumed at 12:22 p.m. to discu ss challenges to the prospective jurors, defense counsel moved for a continuance at Lawson’s request. That request was denied. {¶ 34} Upon review of the record, we cannot conclude that the trial co urt abused

its discretion when it denied Lawson’s motion for a continuance made at the conclusion of voir dire. The trial court had spoken with Lawson extensive ly, both on February 7 and during the 50 minutes prior to the beginning of jury selection on February 18. Although Lawson expressed his dissatisfaction with the course of his cas e, he did not ask for a continuance during those times, and he expressly told the court on the morning of February 18 prior to voir dire that he was ready to proceed wit h the trial. {¶ 35} At one point prior to the beginning of trial, Lawson asked the trial court if he would have the same counsel if he asked for a continuance, “whi ch I think might be the best option at this point.” The court responded that it did no t know the answer and could not answer that question then. Lawson expressed that his dilem ma was based on his lack of confidence in his attorney. The court later told Lawso n that it was severing the escape charge and that trial that day would proceed on the drug and gun charges only, and it asked Lawson, “Would you like to do that, Mr. Lawson?” Lawson responded affirmatively. {¶ 36} The trial court could have reasonably concluded that Lawson’s r equest for-13- a continuance after almost two hours of voir dire was untimely and that the inconvenience to the court, the parties, and the public outweighed other cons iderations. Although the trial court possibly could have proceeded with trial in another case had a continuance been granted earlier, other scheduled trials undoubtedly had be en reset by the time Lawson’s motion was made shortly after noon on February 18. {¶ 37} We recognize that Lawson was placed in the unfortunate position of having his defense counsel changed within a month of his trial date fo r reasons outside of his

control. New defense counsel was clear that the short timefram e until trial would hamper his preparation and that he was having difficulty with obtainin g purportedly exculpatory

evidence from former defense counsel. Defense counsel’s statem ents indicated that he (counsel) believed a continuance was preferable. The trial cou rt offered Lawson the choice to proceed with the trial date or to request a continuan ce prior to trial. Before trial began, Lawson himself indicated that he wanted to proceed on Fe bruary 18. Once the trial process began and jury selection was almost completed, we cannot find error in the trial court’s denial of Lawson’s motion for a continuance, whic h appeared to be based simply on a change of heart about whether to proceed. {¶ 38} The portion of Lawson’s first assignment related to his motion for a

continuance is overruled.

B. Motion for New Counsel {¶ 39} “[W]hile the right to select and be represented by one’s prefer red attorney is comprehended by the Sixth Amendment, the essential aim of th e Amendment is to guarantee an effective advocate * * * rather than to ensure tha t a defendant will inexorably be represented by the lawyer whom he prefers.” State v. Jones , 91 Ohio St.3d 335, 342,-14- 744 N.E.2d 1163 (2001), quoting Wheat v. United States , 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). {¶ 40} In reviewing whether a trial court erred in denying a defendant ’s motion for new counsel, an appellate court should consider “the timeliness of the motion and whether there was a conflict between the attorney and the clien t that was so great that it resulted in a total lack of communication preventing an adequat e defense.” Jones at 342, quoting United States v. Jennings , 83 F.3d 145, 148 (6th Cir.1996). “In addition, courts should ‘balanc[e] * * * the accused’s right to counsel of his c hoice and the public’s interest in the prompt and efficient administration of justice.’ ” Id . at 342-343. {¶ 41} We review the trial court’s decision whether to grant a defenda nt’s motion

for new counsel for an abuse of discretion. Breneman , 2d Dist. Champaign No. 2010- CA-18, 2012-Ohio-2534, at ¶ 14; Jones at 343. {¶ 42} Lawson claims that the trial court erred in failing to grant hi s motion for new counsel. In its appellate brief, the State asserts that Lawson never requested a new attorney and, therefore, it was not an abuse of discretion for the trial court to fail to appoint new counsel sua sponte. The record presents a complicated pict ure. {¶ 43} On the morning of trial, defense counsel began the pretrial dis cussion by informing the court that he had spoken with Lawson about his op tions, and that Lawson had expressed a desire for a continuance and new counsel and ha d complained that defense counsel was ineffective. Defense counsel’s statements, made on Lawson’s behalf, constituted an oral motion for new counsel. However, t he court then asked Lawson if he was ready to go to trial that day. Lawson respond ed affirmatively. The trial court reasonably interpreted Lawson’s response as a repud iation of his prior-15- statements to his defense counsel that he wanted both a continu ance and a new attorney. {¶ 44} At that point, the trial court raised with Lawson the idea of h aving a bench trial on the escape charge. Lawson told the court that defense counsel had explained the State’s proposal to “dismiss” the escape charge as a part o f a plea deal. (Defense counsel disputed Lawson’s characterization of the conversation. ) Lawson then expressed his views on the strength of the State’s case on the drug charges. When the court said, “Well, that’s what a trial is all about,” Lawson cr iticized his defense counsel, saying: Exactly. And I’ve tried to explain this to my attorney. [Coun sel] come to me, and he says, I’m here to clean up this mess – not defend yo u, Mr. Lawson – clean up this mess. At no point has he shown me the DVDs against me, nothing – non e of the evidence against me. Absolutely nothing has went agains t – in my defense. This was all on my own behalf in my defense (Indicati ng.) * * * {¶ 45} When the court asked Lawson if he had all the discovery, Lawson stated that he did not have any of the DVDs, including his conversatio n with the Riverside police. Lawson then stated that he did not understand why Montgomery Co unty did not bring the drug charges. The court again responded that a trial would add ress that. Lawson replied: Well, I would like to, I would like to discuss this with my att orney, but it’s not about what we discussed. It’s about how they didn’t make a dea l with me on Dave Simpson. They didn’t make a deal with me on Calvin Har baugh. It’s all about. It’s never been about my case whatsoever.-16- Lawson then expressed his frustration about how the State handl ed the information that he said he had provided regarding an unrelated murder case, cla iming that the State made him a known snitch. Lawson had expected a deal in this ca se based on his cooperation. Lawson stated that he “wanted [defense counsel] t o be able to be the liaison.” (Trial Tr. at 20.) {¶ 46} The trial court then tried to bring the conversation back to th at day’s proceedings. Lawson asked why his representation level “droppe d” from a private attorney to a public defender and whether he would be appointed new counsel for trial if he asked for a continuance. Lawson also stated that, “based o n the lack of time and the lack of communication” that he had had with counsel, he did not feel that counsel had his “best interest at heart.” Just prior to jury selection, La wson asked the court, “[I]s it effective fair trial for me to go forward with [defense counsel ] as my attorney[?]” (The court responded, “Yes.”) {¶ 47} Lawson did not make an explicit request for new counsel after h is initial request (via counsel) at the beginning of the lengthy pretrial discussion. However, the

record reflects that Lawson was not satisfied with the communic ation between his attorney and him, and that he believed that his defense counsel would not provide a high level of representation simply because counsel was a public def ender. His questions about whether he would receive new counsel if he requested a co ntinuance and whether it was fair for him to proceed to trial with current defense co unsel reasonably could be construed as requests for new counsel. {¶ 48} Despite Lawson’s expressed concerns, the record does not reflec t that Lawson was unwilling to work with his attorney or that any conf licts between him and his-17- attorney were “so great that it resulted in a total lack of com munication preventing an adequate defense.” Jones , 91 Ohio St.3d at 342, 744 N.E.2d 1163. That morning, Lawson and his attorney had discussed the options available to Lawson, namely the State’s pending plea offer, a continuance, or proceeding to tri al. Although defense counsel took issue with how Lawson, in layman’s terms, describe d the content of their conversations, the trial court could have reasonably concluded that defense counsel could communicate adequately about the case and that defense co unsel could provide

effective assistance to Lawson. We cannot conclude that the tr ial court abused its discretion in failing to appoin t Lawson new counsel on the date of trial. {¶ 49} The portion of Lawson’s first assignment of error related to hi s motion for

new counsel is overruled. II. Sufficiency of the Evidence {¶ 50} In his third assignment of error, Lawson claims that his convic tions were based on insufficient evidence for two reasons. First, he asse rts that the evidence at

trial established that there was an issue with the chain of cus tody of the evidence. Second, he asserts that the State failed to prove that he traff icked in drugs. {¶ 51} “A sufficiency of the evidence argument disputes whether the St ate has presented adequate evidence on each element of the offense to a llow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson , 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry is whether any rationa l finder of fact, after viewing the evidence in a light most favorable to the State, co uld have found the essential elements of the crime proven beyond a reasonable doubt. State v. Dennis , 79 Ohio-18- St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal

unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”

Id

. {¶ 52} The State’s evidence at trial established the following facts. {¶ 53} Late in the evening of June 21, 2019, Deputies Michael Major an d Jason Davis of the Greene County Sheriff’s Office were looking for La wson on an unrelated incident. They first attempted to locate Lawson at his residen ce, but he was not there. At approximately 11:30 p.m., the deputies were talking by the e ntrance to the Huber Mobile Home Trailer Park, in separate cruisers, when they saw L awson enter that location in a silver Nissan Altima. Lawson passed the deputies’ cruiser s. The deputies followed Lawson to the furthest street. Lawson was getting out of the A ltima when Deputy Major pulled up, and Deputy Davis saw him standing beside the vehicle

. {¶ 54} The deputies briefly talked with Lawson about the incident they were investigating. Deputy Major then arrested Lawson and transport ed him to the Greene County Jail, leaving Deputy Davis at the scene. Deputy Major d id not know if the Altima was locked. Deputy Davis left shortly afterward. Davis testif ied that he believed the Nissan Altima was locked, but he was not certain. Davis stated on redirect examination that it was the policy of the Greene County Sheriff’s Office to secure legally parked vehicles when the drivers are arrested. (He stated that the ve hicle would have been towed if it were not legally parked.) {¶ 55} Deputy Davis headed “back out to Xenia to do some paperwork.” As he was driving toward Xenia, he received a call from his dispatche r to contact the Riverside Police Department. Deputy Davis spoke with a Riverside officer , who wanted to know if-19- he knew the location of Lawson’s vehicle. Davis informed the o fficer where the Nissan was located. Based on the phone call, Deputy Davis drove to th e Greene County Jail in Xenia to get the keys to the Altima from Deputy Major. Deputy Davis then headed back

to the Nissan’s location. Davis estimated that 15 to 20 minute s elapsed between his leaving the scene and the call from Riverside officer. {¶ 56} Officer Robert Todd 4 of the Riverside Police Department testified that he learned of Lawson’s arrest at approximately 11:34 p.m. Shortlyafter that, Todd received information about the location of Lawson’s vehicle, and he head ed to the Huber Mobile Home Trailer Park. Officer Todd explained that Lawson was oper ating a vehicle that Riverside officers wanted to have towed as part of an investiga tion. Todd arrived at the scene approximately 10 to 15 minutes later; no other law enforc ement officers were there. {¶ 57} Deputy Davis met Officer Todd at the scene and provided him the keys to the Altima. Davis stated that it took roughly an hour to get f rom the location of the Nissan to Xenia and back; Davis did not know how long Todd had been wa iting. Davis stated that the Nissan did not look any different when he returned. O fficer Todd had not attempted to open the vehicle and did not know if it was locked

. {¶ 58} Officer Todd secured the Altima by placing evidence tape along the creases of the doors, trunk, and hood, and then initialing the tape. O fficer Todd arranged for the car to be towed to Sandy’s Towing in Dayton. The officer was a ware that Lawson was not the registered owner of the vehicle.

4 At trial, Todd identified himself as a detective with the Rive rside Police Department. He stated, however, that he was a road patrol officer on June 2 1, 2019, when the relevant events occurred.-20- {¶ 59} Riverside Detective Kyle Sewert 5 spoke to Lawson. During their conversation, Lawson told the detective that drugs and guns mig ht be found in the silver Nissan Altima. On cross-examination, Sewert testified that Law son indicated that approximately two ounces of drugs were in the car. The Riversi de police obtained a search warrant for the car, and the vehicle was towed from Sand y’s to the Riverside Police Department. {¶ 60} On June 26, 2019, Detective Sewert conducted the search of the Nissan

Altima. He indicated that the vehicle was locked and had secur ed tape on all seams of the vehicle, including the trunk and front and rear doors. Dur ing the search, Sewert located a firearm with a loaded magazine in the driver’s door, another firearm with a loaded magazine and a round in the chamber in the trunk, a lunc h pail with suspected drugs and a digital scale behind the passenger seat, and a blow torch lighter on the front passenger seat. Sewert clarified that the lunch pail contained three separate baggies of suspected drugs. {¶ 61} Sewert stated that he packaged the evidence, secured it in the property room of the police department, and made an inventory of the ite ms removed from the vehicle. He gave the firearms to the property room custodian, who is certified with firearms, to test the firearms for operability; the weapons wer e then secured in the

firearms box. {¶ 62} Sewert testified that the presence of a digital scale in close proximity to drugs is indicative of “selling of narcotics to get proper meas urements and weights of

5 Sewert testified that he had since left the Riverside Police D epartment and was a public safety officer for the city of Oakwood at the time of trial.-21- what’s being distributed.” He indicated that the blow torch li ghter can be used as a heat source for inhaling narcotics. {¶ 63} Daniel Brodnick, a former police officer and then property room manager at the Riverside police station, testified about the procedures us ed to submit evidence to the property room and the procedures to track the submitted evidenc e, including assigning the evidence a specific case nu mber and l ogging it with a softw are program. For each item of evidence, the software included a description and quant ity. Brodnick identified the evidence submitted to the Riverside property room in this c ase, which included a .45 caliber Ruger pistol, a .40 caliber Ruger pistol, three baggies containing suspected drugs, a blow torch lighter, a lunch pail, and .40 and .45 caliber car tridges. {¶ 64} Brodnick testified that he was a firearm instructor at the Rive rside Police Department, and he test-fired the two Ruger pistols collected i n this case at Detective Sewert’s request. Brodnick stated that both weapons operated a s should have; there were no malfunction problems or corrosion or other issues that would interfere with the functioning of the firearms. He returned the guns to Detective Sewert to seal and initial and then submit into evidence. The bullet casings from the tes ting of the weapons were also submitted to the property room as evidence. {¶ 65} On July 2, 2019, Brodnick transported the drugs and guns to BCI for analysis. After testing by BCI, Brodnick retrieved the evidenc e from BCI and logged it back into the Riverside property room. The guns and drugs late r were released to Detective Kelly Edwards of the Greene County Sheriff’s Office. {¶ 66} Pamela Farley, a forensic scientist in drug chemistry at BCI, t estified how evidence is received and tracked at BCI. Farley stated that sh e tested three baggies-22- with unknown substances, which were submitted to BCI by Brodnic k on July 2, 2019. The substance in the first baggie was 68.05 grams, plus or minu s 0.04 grams, of a powder containing heroin and fentanyl. The second baggie contained 5. 46 grams, plus or minus 0.04 grams, of a white powdery solid material containing Tramad ol, heroin, and fentanyl. The third baggie contained 3.65 grams, plus or minus 0.04 grams , of a clear crystalline material found to contain methamphetamine. The evidence was re turned to the Riverside Police Department. {¶ 67} Farley testified that heroin is a Schedule I drug, fentanyl and methamphetamine are Schedule II drugs, and Tramadol is a Schedu le IV drug. Farley stated that the bulk amount for methamphetamine is three grams. {¶ 68} Detective Kelly Edwards testified that she fills in for the pro perty room manager at the Greene County Sheriff’s Office when the propertyroom manager is on vacation. Edward testified that on September 3, 2019, she rece ived evidence from Brodnick, placed the evidence in an evidence bag, sealed the ba g, and initialed it. Edwards then put the evidence in a property room locker, logged it, and generated a report. The parties stipulated to the chain of custody of that evidence after it was

submitted to the sheriff’s office. {¶ 69} Captain Sean Magoteaux of the Greene County Sheriff’s Office, w ho has experience in drug investigations, testified that the drug trad e is very dangerous, and handguns frequently are found during the course of drug investi gations. He stated that people carry guns for various reasons, including for self-defen se or to rob others of their money and guns. Captain Magoteaux discussed the conversion of grams to ounces and testified that 77 grams, or 2.7161 ounces, of drugs were found in this case. Captain-23- Magoteaux further testified that he had listened to recorded te lephone conversations between Lawson and other individuals. During the calls, which were placed after Lawson’s arrest, Lawson made statements that he took the car be cause the drugs were in there and he thought he could make some money. Magoteaux in terpreted Lawson’s statements to mean that he planned to sell the drugs that were in the car. Magoteaux also heard a phone call between Lawson and his mother in which Lawson stated that he had ruined his life for some drugs. {¶ 70} Magoteaux acknowledged on cross-examination that he did not kno w how the drugs got in the vehicle or who placed them in the vehicle. Magoteaux also stated on recross-examination that a person with drugs might leave the drugs somewhere (not on their person) to protect the drugs. {¶ 71} Magoteaux and Sewert both addressed why the charges in this cas e were brought in Greene County. They emphasized that Lawson and the vehicle were located in Greene County, Lawson was arrested in Greene County, and the vehicle was secured in Greene County. Sewert stated that he never saw Lawson in th e Altima in Montgomery County. {¶ 72} After deliberations, the jury found Lawson guilty of possession of a fentanylrelated compound, trafficking in a fentanyl-related compound, t rafficking in heroin, aggravated possession of drugs, and two counts of possession of heroin. The jury also found Lawson guilty of the firearm specifications attached to t he trafficking offenses. The jury did not reach a verdict on improper handling of a firearm in a motor vehicle. A. Possession of Drugs / Chain of Custody {¶ 73} R.C. 2925.11(A), which defines drug possession, states: “No per son shall-24- knowingly obtain, possess, or us e a controlled substance.” Und er R.C. 2901.22(B), “[a] person acts knowingly, regardless of purpose, when the person i s aware that the person’s conduct will probably cause a ce rtain result or will probably b e of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist.” {¶ 74} “ ‘Possess’ or ‘possession’ means having control over a thing o r 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.” R.C. 2925.01(K). Possession of a drug may be either actual phy sical possession or constructive possession. State v. Mabry, 2d Dist. Montgomery No. 21569, 2007-Ohio1895, ¶ 18. “A person has constructive possession of an item w hen he is conscious of the presence of the object and able to exercise dominion and co ntrol over that item, even if it is not within his immediate physical possession.” (Citati ons omitted.) Id. at ¶ 18. “Establishment of ownership is not required.” State v. Rastbichler , 2d Dist. Montgomery No. 25753, 2014-Ohio-628, ¶ 33. In determining whether an indi vidual possessed an item, it is necessary to consider all of the facts and circumst ances surrounding the

incident. Mabry at ¶ 20. {¶ 75} Lawson first claims that his convictions were based on insuffic ient evidence,

because the evidence indicated that the State failed to ensure the chain of custody of the drugs found in the Altima. He argues that there was a period o f time that the Nissan was left unattended by law enforcement, that the officers were not certain that the vehicle was locked, and that other individuals could have accessed the vehi cle during this time. {¶ 76} As part of the authentication and identification requirements o f Evid.R. 901,-25- the State bears the burden of establishing the chain of custody of any evidence that is fungible and indistinguishable by nature. See, e.g ., State v. Ramos , 2d Dist. Montgomery No. 28214, 2019-Ohio-3588, ¶ 22-23. However, the State is not required to prove “a perfect, unbroken chain of custody.” State v. Gross , 97 Ohio St.3d 121, 2002-Ohio5524, 776 N.E.2d 1061, ¶ 57, quoting State v. Keene , 81 Ohio St.3d 646, 662, 693 N.E.2d 246 (1998). “In order to meet its burden in establishing the c hain of evidence, ‘the state need only establish that it is reasonably certain that substitu tion, alteration, or tampering

did not occur.’ ” State v. Rajchel , 2d Dist. Montgomery No. 19633, 2003-Ohio-3975, ¶ 21, quoting State v. Qualls , 2d Dist. Clark No. 1996-CA-68, 1997 WL 311634, *5 (June 6, 1997); State v. Maranger , 2018-Ohio-1425, 110 N.E.3d 895, ¶ 74 (2d. Dist.). {¶ 77} Challenges to the chain of custody of an item “go to the weight to be afforded the evidence, not to the admission of the evidence.” Gross at ¶ 57, citing State v. Richey , 64 Ohio St.3d 353, 360, 595 N.E.2d 915 (1992); see also, e.g., Ramos at ¶ 25; State v. Wiley , 2d Dist. Darke No. 2011-CA-8, 2012-Ohio-512, ¶ 13. {¶ 78} Lawson’s argument on appeal does not challenge the admissibilit y of the drugs found in the Altima, and he does not question the chain o f custody of the drugs once Officer Todd secured the vehicle at the scene. (Lawson di d not object to the admission of the drugs and guns at trial.) Rather, he claims t hat the State’s evidence was insufficient to prove that the drugs found during the River side search also were located in the Altima when Lawson was driving the vehicle and t hat he knowingly possessed those drugs. {¶ 79} Construing the evidence in the light most favorable to the Stat e, we find sufficient evidence that Lawson knowingly possessed the drugs f ound by Detective-26- Sewert during the search of the Altima. Prior to the search of the vehicle, Lawson told Detective Sewert that the Altima contained drugs and guns. Law son stated in a subsequent recorded telephone call that he had taken the car be cause the drugs were in there and he thought he could make some money. The State thus presented evidence that drugs were located in the vehicle prior to and while Lawso n was driving the car and that he knowingly possessed drugs. {¶ 80} The search of the vehicle located a closed lunch pail with drug s inside. The lunch pail was found behind the passenger seat. No other drugs were found inside the

vehicle. Sewert testified that the Altima was both locked and secured with tape when he began his search of the vehicle. The jury could have reasonabl y concluded that the drugs found by Detective Sewert were the drugs that Lawson had mentioned and that additional drugs were not added to the vehicle. {¶ 81} Finally, even assuming for sake of argument that the vehicle wa s not locked,

the evidence established that the vehicle was left unattended f or a limited period of time. Deputies Major and Davis encountered Lawson at approximately 11 :30 p.m. on June 21, 2019. After a brief interaction, Lawson was arrested and trans ported to jail by Deputy Major. Davis also left the scene. Although Davis was not cert ain, he believed the Altima was locked. Officer Todd learned of Lawson’s arrest at 11:34 p .m. on June 21; he learned of the location of the vehicle shortly thereafter. Tod d headed to the Huber Mobile Home Park, arriving 10 to 15 minutes later. Deputy Davis later returned to the scene with the keys to the Altima and found Officer Todd waiting. Wh en Davis returned, the Altima appeared to be in the same condition as when Davis had l eft. The timing of events further supported a reasonable conclusion that there was little likelihood that someone-27- had tampered with the Nissan Altima between Deputy Davis’s init ial departure from the

scene and Officer Todd’s arrival. {¶ 82} In sum, construing the evidence in the light most favorable to the State, the

State’s evidence was sufficient to establish that all of the dr ugs located during Sewert’s search of the Altima were in the Altima when Lawson was driving the vehicle and that Lawson knowingly possessed those drugs. B. Drug Trafficking {¶ 83} Lawson also claims that the State failed to present sufficient evidence that he committed drug trafficking. {¶ 84} Lawson was convicted of trafficking in a fentanyl-related compo und and trafficking in heroin, both in violation of R.C. 2925.03(A)(2). That provision reads: (A) No person shall knowingly do any of the following:

* * * (2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or

distribute a controlled substance or a controlled substance ana log, when

the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person. {¶ 85} Lawson argues that the only evidence to support the drug traffi cking convictions was the testimony of Captain Magoteaux, which was “ speculative and objectionable.” Lawson claims that there was no evidence of “a ctual proof of trafficking” or that he knowingly transported the drugs for purposes of traf ficking. {¶ 86} At the outset, in reviewing challenges based on the sufficiencyand/or-28- manifest weight of the evidence, we are required to consider al l of the evidence admitted at trial, regardless of whether it was admitted erroneously. State v. Brewer , 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284; State v. Rosales , 2d Dist. Montgomery No. 27117, 2018-Ohio-197, ¶ 16, citing State v. Johnson , 2015-Ohio-5491, 55 N.E.3d 648, ¶ 95 (2d Dist.). Whether defense counsel should have objected to any portion of Captain Magoteaux’s testimony is immaterial to Lawson’s sufficiency arg ument. {¶ 87} The State’s evidence established that three baggies of drugs we re found in a closed lunch pail in the Nissan Altima. Those baggies consis ted of (plus or minus 0.04 grams): 68.05 grams of a powder containing heroin and fentanyl; 5.46 grams of a white powdery solid material containing Tramadol, heroin, and fentany l; and 3.65 grams of a clear crystalline material found to contain methamphetamine. T he bulk amount of methamphetamine is three grams. A digital scale was found with the drugs. Detective Sewert testified that the presence of a digital scale in close proximity to drugs is indicative that the drugs are intended to be weighed and divided for sale. {¶ 88} In addition, Captain Magoteaux testified that Lawson admitted i n a phone

conversation that he had taken the Altima because it contained drugs and he thought he could make money. Lawson’s statement reasonably indicated that he knowingly transported the drugs in the car with the intention of selling them. Construing the evidence in the light most favorable to the State, the State pr esented sufficient evidence that Lawson had engaged in drug trafficking. {¶ 89} Lawson’s third assignment of error is overruled.

III. Ineffective Assi stance of Counsel {¶ 90} In his second assignment of error, Lawson claims that he was de nied the-29- effective assistance of counsel. Lawson asserts (1) that the c ircumstances were such that no experienced attorney could have provided effective assi stance and (2) that viewing defense counsel’s specific conduct, counsel acted defic iently in several respects, to Lawson’s prejudice. A. Presumption of Prejudice {¶ 91} We begin with Lawson’s assertion, emphasized in his reply brief , that the short time period between defense counsel’s formal appointment on February 5 and trial on February 18 was presumptively prejudicial and resulted in th e denial of his Sixth Amendment right to counsel. {¶ 92} The United States Supreme Court has described the essence of th e right to the effective assistance of counsel as “the right of the accuse d to require the prosecution’s case to survive the crucible of meaningful adversarial testing. ” United States v. Cronic , 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The Court continued: “When

a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by th e Sixth Amendment has occurred. But if the process loses its character as a confront ation between adversaries, the constitutional guarantee is violated.” (Footnotes omitted. ) Id . at 656-57. {¶ 93} The defendant generally bears the burden to establish that he o r she was prejudiced by counsel’s conduct. Nonetheless, Cronic recognized that some circumstances are so likely to prejudice the defendant that no showing of prejudice is necessary. These include “the complete denial of counsel * * * at a critic al stage of [the] trial” and the complete failure of counsel “to subject the pros ecution’s case-30- to meaningful adversarial testing.” “Ineffectiveness is also p resumed when counsel ‘actively represented conflicting interests.’ ” Also i ncluded are

such extreme cases as Powell v. Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, where defense counsel was appointed only a few mi nutes

before the trial commenced. “Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unle ss the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.” (Citations omitted.) State v. Sanders , 92 Ohio St.3d 245, 277, 750 N.E.2d 90 (2001), quoting Cronic . Only when the surrounding circumstances make it “so unlikely that any lawyer could provide effective assistance” is prejudice “presum ed 

### without inquiry into actual performance at trial .” Cronic at 661. {¶ 94} In Cronic , the defendant faced charges of mail fraud involving the trans fer of over $9,400,000 in checks between banks in two states over a 4-month period. After retained counsel withdrew shortly before trial, the trial court appointed a young real estate lawyer with no prior jury trial experience, but allowed him onl y 25 days for pretrial preparation. In contrast, the government took over four and on e-half years to investigate the case and had reviewed thousands of documents during that in vestigation; the defendant’s two co-defendants had agreed to testify against him . Using five criteria 6 and

6 The criteria used by the Tenth Circuit were (1) the time affor ded for investigation and preparation; (2) defense counsel’s experience; (3) the gravity of the charge; (4) the complexity of possible defenses; and (5) the accessibility of w itnesses to counsel. United States v. Cronic , 675 F.2d 1126, 1129 (10th Cir.1982).-31- without considering defense counsel’s actual performance, the c ourt of appeals reversed Cronic’s conviction, concluding Cronic’s constitutional right t o the effective assistance of

counsel had been violated. {¶ 95} The United States Supreme Court reversed the appellate court. The Court stated that “[t]he five factors listed in the Court of Appeals’ opinion are relevant to an evaluation of a lawyer’s effectiveness in a particular case,” b ut the factors did not, separately or in combination, support the conclusion that compe tent counsel was unable to provide Cronic effective assistance. Cronic at 663. Upon reviewing the factors, the

court held that Cronic’s case was “not one in which the surroun ding circumstances make it unlikely that the defendant could have received the effectiv e assistance of counsel.”

Id

. {¶ 96} Lawson relies on the dissent in State v. Robinson , 2d Dist. Clark No. 2013- CA-69, 2014-Ohio-3645. In Robinson , defense counsel (a public defender) sought to withdraw because a witness disclosed by the State was also repr esented by the Public Defender’s Office. The court held the motion in abeyance and c ontinued the trial date to July 15. On July 11, Robinson appeared with a different attorn ey and waived his right to a jury trial. The parties agreed that the trial court permitte d the substitution of counsel on July 11. A bench trial began on July 15, as scheduled. In preliminary remarks, the prosecutor noted the “very brief period of time” that defense c ounsel had to prepare, but stated that defense counsel had been in contact with the prosec utor when the matter was first indicted and that the prosecutor believed that defense co unsel had met with Robinson several times at the jail. Defense counsel affirmatively state d that he was prepared to proceed and opposed a motion by the State for a continuance.-32- {¶ 97} On appeal, Robinson claimed that “no attorney could have effect ively

defended him” when there was so little time between counsel’s a ppointment and trial. The majority opinion rejected that argument, stating: “ Although the time between counsel’s acknowledgment as the attorney of record and the tria l was very short, counsel had previously been aware of and involved in the case to some d egree, and there is no basis to conclude that counsel was not prepared to proceed on t he day of trial. Counsel affirmatively stated that he was ready to proceed. Under these circumstances, the trial court did not abuse its discretion in proceeding to trial.” Robinson at ¶ 37. Contrast State

v. Blair , 171 Ohio App.3d 702, 2007-Ohio-2417, 872 N.E.2d 986, ¶ 16 (2d Dist.) (“ Given the fact that defense counsel admittedly did not prepare, and t hen sat silently by as Blair was convicted without any defense whatsoever, it can be presume d that appellant was prejudiced by defense counsel’s inaction, thereby warranting a finding of ineffective assistance of counsel.”). {¶ 98} The dissenting opinion in Robinson first noted that defense counsel had waived a jury trial on the day of his appointment, without the benefit of having received and reviewed the State’s discovery. Robinson at ¶ 41 (Donovan, J., dissenting). The

dissent further concluded that “ it is wholly unreasonable to suggest or conclude that even the most talented, experienced defense attorney can prepare a f irst degree felony rape trial in three days.” Id . at ¶ 42. The dissenting judge reasoned: In my view, Robinson was denied his Sixth Amendment right to counsel, given the inexplicable delay in change of counsel, imm ediate jury waiver, and ridiculously brief period of time between appointme nt and trial. While “the Constitution nowhere specifies any period which must intervene-33- between the required appointment of counsel and trial,” the Cou rt has recognized that “the denial of opportunity for appointed counse l to confer, to consult with the accused and to prepare his defense, could c onvert the appointment of counsel into a sham and nothing more than a form al compliance with the Constitution’s requirement that an accused be given

the assistance of counsel.” Avery v. Alabama , 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940).

Robinson at ¶ 42 (Donovan, J., dissenting). {¶ 99} Although Lawson focuses on the dissenting opinion in Robinson , this court’s precedent was set forth in the majority opinion, and as the dis senting judge recognized,

Robinson presented “a highly fact sensitive case.” Id . at ¶ 44. Indeed, the circumstances here are factually distinguishable and do not cre ate a presumption of prejudice. {¶ 100} In this case, the assistant public defender sought to be substi tuted as defense counsel on January 29, 2020, three weeks before the tri al date. On February 4, 2020, prior to the trial court’s action on that motion, the assistant public defender signed a request for discovery and acknowledgement of receipt of disco very from the State. The State served the assistant public defendant with its motion to sever Case No. 2019- CR-508 from Case No. 2019-CR-555 (this case). On February 5, t he assistant public defender received plea offers from the State. The court filed its entry approving the substitution of counsel on the same day (February 5, 2020). {¶ 101} At the February 7 hearing, new defense counsel informed the cou rt that he had spoken with Lawson at the jail and conveyed the State’s plea offers. Lawson-34- also stated that he had spoken with his attorney that morning a bout the pros and cons of those offers. Defense counsel acknowledged at the hearing that he had received discovery from the State; counsel was having difficulty obtaini ng purported exculpatory evidence, which the State did not have, from former defense cou nsel. Counsel told the court that he would try to obtain that evidence from alternate sources. (Those efforts were unsuccessful.) {¶ 102} Lawson informed the trial court on February 7 that he wanted to proceed with the February 18 trial date. When the trial court asked de fense counsel if he would be prepared on February 18, counsel responded that he “can be r eady,” although not “to the standard that I would hold myself to be ready for trial in this short amount of time.” Counsel noted the extensive discovery he needed to review. Cou nsel told the court that he would “do everything I can – basically there’s only so many hours in the day is what I’m saying * * *. As you know, trials of this, you type of cri me of this nature, we normally

have a lot more advance than two weeks.” {¶ 103} Lawson went to trial on seven counts, including first-degree fe lony offenses, but all of the offenses stemmed from the presence of drugs and guns in the vehicle that Lawson had been driving. Although defense counsel apparently had substantial discovery to review, the factual circumstances were not complex. While defense counsel would have liked additional time to prepare for trial, he indicated that he would work hard to be ready and “can be ready.” The record sho ws that defense counsel had minimal communication with Lawson between his appointment a nd trial, but there was nothing in the circumstances of counsel’s appointment that made the lack of communication inevitable. Although not ideal, the circumstance s did not make it unlikely-35- that Lawson could have received the effective assistance of cou nsel. In short, the circumstances in this case did not rise to the magnitude of cre ating a presumption of prejudice. B. Specific Allegations of Deficient Performance {¶ 104} Turning to Lawson’s specific allegations of deficient performan ce, Lawson

claims that his trial counsel rendered ineffective assistance i n the following respects: (1) counsel did not review discovery with Lawson, (2) counsel d id not obtain potentially exculpatory videos that were in the possession of third parties , (3) counsel did not know what charges would go forward on the day of trial, (4) counsel failed to communicate adequately with Lawson, (5) counsel did not adequately prepare for trial, (6) counsel failed to file pretrial motions to suppress and/or in limine, (7) coun sel failed to object to testimony about other investigations, (8) counsel failed to object to ref erences that Lawson was in possession of “ounces” of drugs, rather than “grams” of drugs, (9) counsel misstated the conversion of ounces to grams during cross-examination, and (10 ) counsel failed to object to testimony that a witness (Captain Magoteaux) recognized Laws on’s voice in jail phone

calls. {¶ 105} To establish ineffective assistance of counsel, a defendant mus t demonstrate both that trial counsel's conduct fell below an obj ective standard of reasonableness and that the errors were serious enough to creat e a reasonable probability that, but for the errors, the outcome of the case w ould have been different. See Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley , 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Hindsight is not permitted to distort the assessment of what was reasonable in l ight of counsel’s-36- perspective at the time, and a debatable decision concerning tr ial strategy cannot form the basis of a finding of ineffective assistance of counsel. State v. Cook , 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v. Fields , 2017-Ohio-400, 84 N.E.3d 193, ¶ 38 (2d Dist.). Trial counsel is also entitled to a strong pr esumption that his or her conduct falls within the wide range of reasonable assistance. Strickland at 689. {¶ 106} A trial attorney’s failure to communicate with his or her clien t may rise to the level of deficient performance, depending on the circumstan ces. The record reflects that defense counsel spoke with Lawson about the State’s plea o ffers prior to the February 7 hearing and that he spoke with Lawson on the morning of February 18, prior to the beginning of the on-the-record pretrial discussion and t rial. The full extent of those communications is not reflected in the record. As we have prev iously said, “a claim of

lack of communication between a defendant and his trial counsel is not one that can be borne out by the record. It relies upon information necessaril y outside the record, and is therefore not an issue we can review on direct appeal.” State v. Watters , 2016-Ohio-8083, 76 N.E.3d 723, ¶ 27 (2d Dist.). See also State v. Olds , 2d Dist. Miami No. 2019-CA-9, 2020-Ohio-1528, ¶ 11. Because the content of Lawson’s and defe nse counsel’s communications are not fully detailed in the record, Lawson’s c laim regarding lack of communication is more properly raised in a petition for post-co nviction relief. {¶ 107} As for the alleged failure to review discovery with Lawson, Law son stated prior to trial on February 18 that, “[a]t no point has [defense counsel] shown me the DVDs against me, nothing – none of the evidence against me.” Counse l did not respond to this comment. Between September 2019 and January 2020, however, Law son was represented by different counsel, who had received the State’s discovery on October 11,-37- 2019. At times, Lawson lamented that he did not proceed to tri al with his former counsel on November 12, 2019, the original trial date. Although Lawson states that his substitute defense counsel did not review the State’s discovery with him, the record does not reflect whether Lawson previously reviewed it with his former counsel, and Lawson does not articulate how he was prejudiced by defense counsel’s alleged c onduct. Accordingly, on this record, we cannot determine whether substitute defense cou nsel’s alleged failure to provide Lawson with the State’s discovery and to review it with him was prejudicial. {¶ 108} Next, Lawson claims that counsel rendered ineffective assistanc e by failing to obtain exculpatory videos. On February 7, 2020, def ense counsel told the trial court that he was having trouble getting potentially exculpator y videos from original defense counsel and would try to obtain the videos from other i ndividuals, including another lawyer. On February 18, the trial date, defense counse l informed the court that he had tried to obtain the potentially exculpatory videos from two sources, but one (the lawyer) did not respond and the other denied that he had a copyof the video. Those videos, assuming they exist, are not part of the record on appe al. Without the videos,

we cannot determine whether the videos would have affected the outcome of the trial and thus whether Lawson was prejudiced by defense counsel’s failure to obtain them and use them at trial. Again, this claim cannot be reviewed on direct appeal. {¶ 109} Lawson asserts that his counsel was deficient because he did no t know what charges would go forward on the day of trial. That assert ion oversimplifies the record. On February 18, 2020, Lawson appeared for trial on the eight charges indicted in this case. The same day, defense counsel filed a motion to sever Count Eight, escape. The trial court, Lawson, defense counsel, and the prosecutor ha d a lengthy discussion-38- about whether the escape count should be severed and which char ges of the indictment, if any, should proceed to trial that day. Prior to the beginni ng of voir dire, Lawson had elected to proceed to trial, the trial court severed the escape charge, and the court ruled that trial would proceed on the drug and gun charges (Counts On e through Seven). Although there was some discussion about which charges would pr oceed to trial on February 18, there is no indication that defense counsel was co nfused about the charges and acted deficiently. {¶ 110} Lawson further states that defense counsel should have filed a motion to suppress evidence prior to trial. During the pretrial discussi on on February 18, Lawson argued that the drugs were not lawfully found as part of the ex ecution of a search warrant on an arson investigation out of Montgomery County. In respons e, the prosecutor stated, “Your Honor, that would have been an appropriate Motion to Suppress. None has been made. They’ve waived that issue at this point.” Defen se counsel stated, “* * * [T]hat was one of the Motions to Suppress we were talking about .” {¶ 111} “The failure to file a motion to suppress constitutes ineffecti ve assistance of counsel only when the record establishes that the motion wou ld have been successful

if made.” State v. Wallace-Lee , 2d Dist. Greene No. 2019-CA-19, 2020-Ohio-3681, ¶ 53.

The State did not offer the search warrant as an exhibit at tri al, and it is not in the record. Consequently, we cannot determine, on this record, whether a mo tion to suppress the guns and drugs located based on the search warrant would have b een successful. Moreover, upon consideration of the evidence presented at trial , we find no basis to conclude that a motion to suppress the guns and drugs otherwise would have been

successful.-39- {¶ 112} Lawson further claims that defense counsel acted deficiently by failing to file a motion in limine regarding other pending criminal invest igations in which Lawson was a suspect. (A motion in limine is a pretrial motion that a sks a trial court to limit or exclude the use of evidence which the movant believes to be imp roper. See Feight v.

Brooks , 2d Dist. Montgomery No. 28684, 2020-Ohio-5205, ¶ 27.) Lawson also asserts that counsel should have objected to testimony about those inve stigations at trial. {¶ 113} The record does not support a conclusion that Lawson was prejud iced by

the absence of a motion in limine or that counsel acted deficie ntly at trial with respect to evidence of other criminal investigations. The State’s referen ces to other criminal investigations involving Lawson were kept to the bare essential s, namely that deputies located Lawson as part of an unrelated investigation and that t he Riverside police department wanted to have Lawson’s vehicle towed as part of an investigation. The State did not attempt to elicit testimony about the criminal of fenses involved in those investigations or about the course of those other investigation s. {¶ 114} The only reference to the nature of the Riverside investigation occurred during Todd’s testimony. At the beginning of Todd’s testimony, the State asked him why he had come into contact with Deputies Davis and Major. Todd b egan to answer, “There was an arson that had occurred at --.” The prosecutor cut off Todd’s answer, saying, “Well, I’m going to stop you there.” Defense counsel also star ted to object, stating, “Objection. Okay. I’m sorry. You got it.” The prosecutor th en asked Todd if he had to respond to the Huber Mobile Home Park, telling him to answer “without saying specifically why you were responding.” (Trial Tr. at 217.) No other references were made by the State’s witnesses about the specifics of the unrela ted Greene County or-40- Riverside investigations. {¶ 115} During redirect examination of Todd, the prosecutor asked him i f he had received any information that the vehicle Lawson was driving wa s stolen. Defense counsel objected to that question, and the trial court sustaine d the objection. (Trial Tr. at 236.) Upon review of the trial transcript, defense counsel did not act deficiently with respect to evidence regarding other criminal investigations. {¶ 116} Lawson raises that his trial counsel stated that he would not b e as prepared for trial as he normally would be. We cannot conclude , based on this statement alone, that defense counsel was so unprepared that he failed to provide effective assistance as contemplated by the Sixth Amendment. Counsel tol d the trial court on February 7 that he would do his best to prepare for trial in th e time available, and we find nothing to suggest that defense counsel did otherwise. {¶ 117} In addition, defense counsel developed a defense theory based o n the time that the Altima was left unattended by law enforcement off icers and a discrepancy between the amount of drugs found in the vehicle and the amount that Lawson had said

would be there. Counsel cross-examined the State’s witnesses t o elicit testimony to support that defense theory. Specifically, defense counsel eli cited testimony that Deputies Davis and Major were not certain if Lawson’s vehicle w as locked when they left the scene, that the vehicle was unattended when Officer Todd ar rived, and that Officer

Todd did not know if the vehicle was locked. As for the amount of drugs involved, Captain Magoteaux indicated that 77 grams (the approximate amou nt of drugs located in the Nissan) equals 2.7161 ounces. Magoteaux acknowledged on cr oss-examination that the difference between 2 ounces (or 56.7 grams), the amoun t Lawson said would be-41- found in the vehicle, and 2.7 ounces (77 grams) was around 30 p ercent of the amount, which could be significant. Finally, we note that the jury cou ld not reach a verdict on Count One and that charge was dismissed. We cannot conclude, o n this record, that counsel failed to prepare adequately for trial. {¶ 118} Lawson further asserts that counsel rendered ineffective assist ance by failing to object to the prosecutor’s reference to ounces rathe r than grams and by misstating the amount of drugs involved due to an error in conv erting ounces to grams. {¶ 119} The prosecutor first mentioned “ounces” during opening statemen ts. Specifically, the prosecutor stated: * * * When he [Detective Sewert] searched the car, he did, in f act, find guns and dope. About 68 ounces of Fentanyl. That’s, yeah , pretty much OD everybody in this courthouse and this city.

* * * The State through the testimonies of Detective Sewert and Detec tive Magoteaux, and our BCI scientist, Pamela Farley, are going to e stablish beyond a reasonable doubt that the items that were seized were 68 grams of Heroin and Fentanyl in one bag, 5.5 grams of Tramadol, Heroi n, and Fentanyl in a second bag, and 3.6 of [sic] grams of Methampheta mine.

* * * You’re going to hear how 68 ounces is well beyond personal use. That the only reason someone would have that is for trafficking purposes. (Trial Tr. at 195-196.) {¶ 120} During the State’s redirect examination of Deputy Major, the pr osecutor-42- again referenced ounces, asking, “In your experience as a law o ffice – officer of the law, have you ever heard of a time when someone has abandoned 68 oun ces of Fentanyl in a vehicle?” (Trial Tr. at 213.) The prosecutor asked the same question of Officer Todd on redirect examination, as well as similar questions regarding “5.5 ounces of a Heroin, Fentanyl, Tramadol mix” and “3.65 grams of crystal meth.” ( Id . at 237-238.) {¶ 121} Defense counsel did not object to any of these references to ou nces, and the State asserts that defense counsel’s failure to object to t hese apparent misstatements was a matter of trial strategy. The State’s opening statement was not evidence, and the prosecutor’s use of both ounces and grams may have put the jury on notice that one of

those units of measurement was incorrect. Defense counsel coul d have reasonably determined that the amount of drugs found in the vehicle would be clarified by way of testimony and an objection was unnecessary. {¶ 122} The prosecutor again misspoke, using ounces instead of grams, d uring redirect examination. Again, defense counsel could have reason ably concluded that the jury was aware that the prosecutor had mistakenly used “ounces. ” Defense counsel addressed the matter directly in his cross-examination of Farle y, the forensic scientist at BCI, when he asked: “Okay. And the second question is, there’s been a lot of units thrown around today in terms of measurement. Everything that y ou’ve worked in, everything was in grams; correct?” Farley responded, “Correct. ” Defense counsel’s approach was reasonable. {¶ 123} Lawson claims that defense counsel rendered ineffective assista nce in his questioning regarding the conversion of ounces to grams. Durin g defense counsel’s cross-examination of Detective Sewert, the following exchange o ccurred:-43- A: Yeah. He [Lawson], he stated two – I think he stated two ou nces is what

we would find. Q: That’s correct. Now, you mentioned that you work in drugs p retty – you have some experience working with drugs, correct? A: Uh-huh, yes. Q: And, in fact, you testified the importance of the scale?

A: Yes. Q: So you’re familiar with weights?

A: Yeah. Q: How many ounces are in a gram? A: I mean, I’m not a mathematician. I don’t know. Q: Well, just simple conversions?

A: I don’t know. Q: It’s around 0.035; correct?

A: I don’t know. Q: It’s much smaller. In fact, on the street they generally use , what, they would generally say there’s 28 times difference; correct?

A: I don’t know Q: Okay. And well, let’s, let’s, let’s assume that, that I’m – that I am correct; okay? So we have approximately 28 times difference. We have approximately 77 grams by the time we add up all three drugs th at are of interest here. So if we were to do that, we come out with over essentially 2,100 ounces. He referred to two ounces, 0.07, so we’re talkin g about that-44- being a mistake of over 3,000 times the difference in what that – the impression that that would leave; is that correct. A: If you math is right, yes. Q: Okay. And I think you would agree to me, that we need to be candid with the Jury about the amounts, correct, involved? A: I – yeah, he, he stated two. What was recovered was the amo unt.

* * * Q: * * * [In conducting the search of the vehicle,] you knew ab out this extremely small amount that he had told you about, the, the app roximate 0.07 grams; correct? A: I knew of the two ounces that he said, yes.

* * * Q: You have this very, very small amount that you were just goi ng, that you were going to rely on just your vision for. So, so I guess wha t I’m getting at, you don’t know whether you might have missed somewhere else in the vehicle just that small 0.07 and that might have been the actua l amount that he knew about as opposed to the 70 some odd grams? A: A thorough search of the vehicle was done. I did not find a ny other, any

other narcotics in the vehicle other than what was in the lunch pail. (Trial Tr. at 395-399.) {¶ 124} The State responded to defense counsel’s questioning of Sewert regarding the conversion of ounces to grams through the testimo ny of Captain Magoteaux. The State asked:-45- Q: And you heard [defense counsel] give an explanation of the c onversion of grams to ounces?

A: Correct. Q: Do you believe that was a correct conversion?

A: No. (Trial Tr. at 407.) The prosecutor showed Magoteaux a documentthat gave an equation for converting grams to ounces (Exhibit 22). Magoteaux testifi ed that one gram equaled 0.353 ounces and that 77 grams, the approximate amount of drugs found in Lawson’s vehicle, equaled 2.7161 ounces. The State asked Magoteaux if L awson’s statement that Detective Sewert would find about two ounces of drugs was a cor rect statement. Magoteaux answered that it was. {¶ 125} Defense counsel addressed his mistake during his cross-examinat ion of Magoteaux. Q: Okay. I’ll agree, I was incorrect. I got the numbers flipp ed there.

A: Yes. Q: But it still is, is somewhere around a third difference, cor rect, 2.7 versus two?

A: Yes. Q: So it’s, so it’s still a pretty significant difference. It’ s not like it was particularly close? A: I don’t know if it’s a significant difference, but it, yes, there was a

difference. Q: Yeah. And about 30 percent or so?

A: Yes.-46- Q: Okay. So if you went to the bank, and they were going to gi ve you 30 percent more money than what you had, you would take it; correc t? A: No, I wouldn’t. Q: Huh? A: If they were going to give me the extra money? Q: Yeah. No strings attached. A: Well, Yeah. Q: Exactly. So 30 percent can be significant? A: (Indicating.) (Trial Tr. at 415-416.) {¶ 126} Although defense counsel initially made a calculation error in his conversion of ounces to grams, we cannot conclude that this err or rises to the level of ineffective assistance of counsel. Even with the correction by Captain Magoteaux, defense counsel elicited testimony that the difference between two ounces (the amount Lawson had said would be found in the vehicle) and 2.7 ounces ( the amount that was found) could have been a significant difference in quantity. D efense counsel thus successfully elicited testimony to support an argument that Law son did not knowingly possess all of the drugs found in the car. {¶ 127} Finally, Lawson claims that defense counsel acted deficiently b y failing to object to testimony by Captain Magoteaux that he recognized Law son’s voice in jail phone

calls. 7 Lawson emphasizes that the recordings of the phone calls were not offered into

7 At trial, the prosecutor asked Magoteaux about “recorded phone calls”; there was no testimony that these calls were made from the jail. The partie s appear to agree, however, that these were recorded jail telephone calls.-47- evidence, there was no corroboration that the calls occurred, a nd there was no foundation laid as to how Magoteaux would have recognized Lawson’s voice. Lawson also states

that there was no evidence that defense counsel even knew about the calls, and Lawson states that the record does not show whether he (Lawson) had an opportunity to hear

them. {¶ 128} At the outset, we cannot conclude, on this record, that counsel ’s pretrial conduct with respect to the recordings was ineffective. The re cord indicates that the State’s provided discovery to both Lawson’s original counsel an d to his substitute defense counsel. In February 2020, defense counsel indicated that he h ad several discs he needed to review. The record does not affirmatively show that defense counsel received and reviewed recordings of jail phone calls, but it also does n ot affirmatively show that he did not. Accordingly, any alleged ineffectiveness in this rega rd is more properly raised in a petition for post-conviction relief. {¶ 129} Defense counsel’s decision not to object to Magoteaux’s testimo ny about the phone calls (apparently from jail) was a matter of trial st rategy left to counsel’s discretion. “Debatable trial tactics generally do not constitu te ineffective assistance of

counsel.” State v. Elmore , 111 Ohio St.3d 515, 2006-Ohio-6 207, 857 N.E.2d 547, ¶ 116. It is unknown from this record whether Magoteaux would have bee n able to provide additional information about how he recognized Lawson’s voice a nd whether that

information would have been detrimental or beneficial to Lawson . Moreover, because the recordings themselves are not in the record, we have no bas is to evaluate defense counsel’s decision in light of the content of those recordings. {¶ 130} Lawson’s second assignment of error is overruled.-48- IV. Conclusion {¶ 131} The trial court’s judgment will be affirmed. 8

. . . . . . . . . . . . .

TUCKER, P.J. and HALL, J., concur.

Copies sent to: Marcy A. Vonderwell Jay A. Adams Hon. Stephen Wolaver

8 As stated in footnote one, above, Lawson’s motion for judicial notice of his prior defense counsel’s suspension from the practice of law is sustai ned.