State v. Brown

[Cite as State v. Brown, 2024-Ohio-1333.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

ALLEN COUNTY

STATE OF OHIO,

CASE NO. 1-22-78

PLAINTIFF-APPELLEE,

v.

ANTHONY S. BROWN, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court

Trial Court No. CR 2020 0142

Judgment Affirmed

Date of Decision: April 9, 2024

APPEARANCES:

Kenneth J. Rexford for Appellant

John R. Willamowski, Jr. for Appellee

Case No. 1-22-78

ZIMMERMAN, J.

{¶1} Defendant-appellant, Anthony Brown, Jr. (“Brown”), appeals the

judgments of the Allen County Court of Common Pleas denying his motion for new

trial and his conviction and sentencing. For the reasons that follow, we affirm.

{¶2} On July 16, 2020, the Allen County Grand Jury indicted Brown on the

following five criminal counts: Count One, trafficking in drugs in violation of R.C.

2925.03(A)(1), (C)(4)(e), a first-degree felony; Count Two, trafficking in drugs in

violation of R.C. 2925.03(A)(1), (C)(4)(f), a first-degree felony; Count Three,

possession of controlled substances in violation of R.C. 2925.11(A), (C)(4)(e), a

first-degree felony; Count Four, aggravated possession of drugs in violation of R.C.

2925.11(A), (C)(1)(a), a fifth-degree felony; and Count Five, tampering with

evidence in violation of R.C. 2921.12(A)(1), (B), a fifth-degree felony. These

indictments stem from a series of drug-related events involving Brown and a

confidential informant (“CI”) that took place at a duplex located at 521 1/2 North

Charles Street, Lima, Allen County, Ohio on May 18, 2020 and on May 26, 2020.

{¶3} Brown’s case pended in the trial court until April 4, 2022 when the State

dismissed Count Three of the indictment. Then, Brown’s case proceeded to a jury

trial on April 11 and 13, 2022. Thereafter, the jury found Brown guilty of Counts

One, Two, Four, and Five.

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{¶4} However, just days after the verdict, Brown’s attorney died

unexpectedly. As a result, Brown employed a new attorney. Brown’s new attorney

filed several motions in the trial court including a motion for new trial pursuant to

Crim.R. 33(A)(1). He also filed a motion for record of the trial, a notice of a proffer

of an intended defense witness, and a request for discovery seeking the recorded-

jail calls between Brown and his deceased trial counsel. Lastly, Brown’s new

attorney requested the trial court for additional time to supplement the record with

various “sidebar” and other conferences with the trial judge that took place in and

out of court.

{¶5} On November 9, 2022, Judge Terri L. Kohlrieser (“Judge Kohlrieser”),

who presided over Brown’s trial, recused herself for the limited purpose of

permitting another judge to rule on the motion for a new trial finding “that [she]

may have a potential conflict as to the resolution of this motion.” (Doc. No. 240).

Brown’s case was then transferred to another judge’s docket.

{¶6} On November 23, 2022, the new judge issued a judgment entry denying

Brown’s motion for new trial pursuant to Crim.R. 33(A)(1). Then, Brown’s case

was returned to Judge Kohlrieser’s docket for sentencing.

{¶7} On December 5, 2022, the trial court (now Judge Kohlrieser) sentenced

Brown to a mandatory minimum prison term of eight years up to a maximum of 12

years under Count One and a mandatory three-year prison term under Count Two.

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Further, the trial court sentenced Brown to a non-mandatory 12-month prison term

as to Count Four and a non-mandatory prison term of 24 months for Count Five.

Finally, the trial court ordered the terms be served concurrently to one another for

an aggregate sentence of eight years to 12 years in prison.

{¶8} Brown filed a timely notice of appeal and also filed a motion for a

remand to complete the record, which we denied.1 Brown raises the following four

assignments of error for our review.

First Assignment of Error

Mr. Brown was denied the effective assistance of counsel at trial,

in violation of his rights to the same under the Ohio Constitution

and the United States Constitution.

Second Assignment of Error

The conviction for Count II was against the manifest weight of the

evidence.

Third Assignment of Error

The conviction for Count II was not supported by sufficient

evidence.

Fourth Assignment of Error

The failure of the Trial Court to record all of the proceedings and

the denial of the Trial Court to conduct an evidentiary hearing as

to those omissions violated Mr. Brown’s right to due process,

assured to him by the Ohio Constitution and the United States

Constitution, both at trial and as to his motion for new trial.

1

Brown alleged that he was unable to provide a complete record because sidebar and chamber conferences

were not recorded. Furthermore, he argued that he was unable to prepare a statement of the evidence.

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{¶9} For ease of our discussion, we will review the fourth assignment of error

first, followed by the second and third assignments of error together, and concluding

with Brown’s first assignment of error.

Fourth Assignment of Error

The failure of the Trial Court to record all of the proceedings and

the denial of the Trial Court to conduct an evidentiary hearing as

to those omissions violated Mr. Brown’s right to due process,

assured to him by the Ohio Constitution and the United States

Constitution, both at trial and as to his motion for new trial.

{¶10} This assignment of error, awkwardly worded, avers that the trial court

erred by failing to record all of the proceedings, and to conduct an evidentiary

hearing on his motion to complete the record.2 Since Brown’s argument is written

in the conjunctive and because it is dispositive of all portions of his argument, we

need only address whether he was prejudiced by the trial court’s alleged failure to

record the criminal proceedings.

Analysis

{¶11} Crim.R. 22 governs the recording of criminal proceedings and

provides in its pertinent parts:

In serious offense cases all proceedings shall be recorded.

***

2

Importantly, Brown did not assign the denial of his motion for new trial as a separate assignment of error.

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Proceedings may be recorded in shorthand, or stenotype, or by any

other adequate mechanical, electronic or video recording device.

The Supreme Court of Ohio has specifically addressed Crim.R. 22, holding:

that reversal of convictions and sentences on grounds of some

unrecorded bench and chambers conferences, off-the-record

discussions, or other unrecorded proceedings will not occur in

situations where the defendant has failed to demonstrate that (1) a

request was made at trial that the conferences be recorded or that

objections were made to the failures to record, (2) an effort was made

on appeal to comply with App.R. 9 and to reconstruct what occurred

or to establish its importance, and (3) material prejudice resulted from

the failure to record the proceedings at issue.

(Emphasis added.) State v. Palmer, 80 Ohio St.3d 543, 554 (1997). Further, the

Supreme Court of Ohio has specifically “repeatedly refused to reverse convictions

or sentences on the basis of unrecorded conferences when a defendant has not”

requested that unrecorded conferences be recorded. State v. Ketterer, 111 Ohio

St.3d 70, 2006-Ohio-5283, ¶ 160.

{¶12} Germaine to the discussion at hand, “the failure to record sidebar

discussions during a trial does not implicate a constitutional right”. State v.

Rosemond, 1st Dist. Hamilton No. C-180221, 2019-Ohio-5356, ¶ 28, citing State v.

Issa, 93 Ohio St.3d 49, 74 (2001) (Cook, J., concurring). Therefore, Brown’s

assertions notwithstanding, we consider whether Brown has demonstrated

prejudice.

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{¶13} Even though Brown argues that “sidebar conferences * * * were not

transcribed”, the record reveals otherwise. (Appellant’s Brief at 19). Specifically,

the sidebar conferences were recorded, but due to an unexplained recording

problem, they were inaudible. Nevertheless, there is nothing in the record to suggest

human error caused the problem. Indeed, we recognize that “‘“recording equipment

is not infallible and is subject to unanticipated malfunctions.”’” Mansfield v.

Rembert, 5th Dist. Richland No. 2023 CA 0007, 2023-Ohio-3787, ¶ 14, quoting

Cleveland v. McGervey, 8th Dist. Cuyahoga No. 110770, 2022-Ohio-3911, ¶ 24,

quoting State v. Walton, 2d Dist. Montgomery No. 20615, 2006-Ohio-1974, ¶ 13,

citing State ex rel. Spirko v. Judges of the Court of Appeals, 27 Ohio St.3d 13, 17-

18 (1986). Notably, malfunctions of the recording equipment in the trial court do

not result in per se prejudice. Cleveland at ¶ 24.

{¶14} Here, Brown merely makes a general averment (on appeal) that the

unrecorded/missing information may “include[] possible [] indicia of intoxication”

of his trial counsel relevant to an ineffective-assistance-of-counsel claim.

{¶15} In our review of the record it is evident that various “sidebar”

discussions are inaudible. It is also evident that in chambers conferences with the

trial judge were not recorded because none were found in the record. Nevertheless,

Brown’s argument is without detail and is speculative as to what occurred and how

it prejudiced him. The mere failure to record a conference is, on its own, insufficient

to demonstrate prejudice. See Rosemond, 2019-Ohio-5356, at ¶ 31. Speculative

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prejudice is insufficient to demonstrate material prejudice. See State v. Leonard,

104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 123.

{¶16} Because Brown cannot demonstrate any prejudice, let alone material

prejudice by the purported inadequacy of the record, his argument fails.

{¶17} For these reasons above, Brown’s fourth assignment of error is

overruled.

Second Assignment of Error

The conviction for Count II was against the manifest weight of the

evidence.

Third Assignment of Error

The conviction for Count II was not supported by sufficient

evidence.

{¶18} In his second and third assignments of error, Brown argues that his

trafficking-in-cocaine conviction (under Count Two) is based on insufficient

evidence and is against the manifest weight of the evidence. In particular, in his

third assignment of error, Brown argues that the State presented insufficient

evidence to establish that the substance sold was a controlled substance. In his

second assignment of error, Brown argues that the weight of the evidence

demonstrates that the jury lost its way (by finding him guilty) because the drug

transaction did not involve a controlled substance, but rather a counterfeit-controlled

substance.

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Standard of Review

{¶19} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389

(1997), superseded by statute on other grounds, State v. Smith, 80 Ohio St.3d 89

(1997). Thus, we address each legal concept individually.

{¶20} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1981), paragraph two of the syllabus, superseded by constitutional

amendment on other grounds, Smith, 80 Ohio St.3d at 89, 102, fn. 4. Accordingly,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,

citing State v. Williams, 1st Dist. Hamilton No. C-110097, 2011-Ohio-6267, ¶ 25.

See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing Thompkins at 386.

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{¶21} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of

witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.’” Thompkins at 387,

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

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

Sufficiency of the Evidence Analysis

{¶22} We begin by addressing Brown’s sufficiency-of-the-evidence

argument in his assignment of error as it relates to Count Two of the indictment. In

Count Two of the indictment, Brown was indicted for trafficking in drugs under

R.C. 2925.03(A)(1), (C)(4)(f). To convict Brown of that charge, the State was

required to prove that he did “knowingly” “[s]ell or offer to sell a controlled

substance or a controlled substance analog”. R.C. 2925.03(A)(1). Further, the State

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must prove that “the drug involved in the violation is cocaine or a compound,

mixture, preparation, or substance containing cocaine” and “the amount of the drug

involved equals or exceeds twenty-seven grams but is less than one hundred grams

of cocaine”. (Emphasis added.) R.C. 2925.03(C)(4)(f). Under R.C. 2925.03(I), the

definition of drug includes “any substance that is represented to be a drug”.

(Emphasis added.)

{¶23} Here, Brown argues that his situation is analogous to that as found in

State v. Chandler, 109 Ohio St.3d 223, 2006-Ohio-2285, where the defendant sold

counterfeit drugs. In Chandler, the Supreme Court of Ohio concluded that the

trafficking conviction may be upheld, but the major drug offender specification may

not be applied, if the substance is recovered and does not contain some detectible

amount of the controlled substance. State v. Chandler, 109 Ohio St.3d 223, 2006-

Ohio-2285, ¶ 9 (offering a substance as crack cocaine later determined to be baking

soda). Unlike Chandler, the drug testing performed by the Bureau of Criminal

Investigation (“BCI”) herein did not identify any non-controlled substances or

controlled substances alike. Thus, Chandler is factually dissimilar and inapplicable

to the case at bar.

{¶24} In Garr v. Warden, Madison Corr. Inst., 126 Ohio St.3d 334, 2010-

Ohio-2449, ¶ 27, the Supreme Court explained:

Chandler did not address the principle that the [S]tate can establish

any element of any crime through circumstantial evidence As we

stated in State v. Jenks (1991), 61 Ohio St.3d 259, 272-273, 574

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N.E.2d 492, “there is but one standard of proof in a criminal case, and

that is proof of guilt beyond a reasonable doubt. This tenet of the

criminal law remains true, whether the evidence against a defendant

is circumstantial or direct.”

{¶25} Chandler, as clarified by Garr, does not support the conclusion that

because the State recovered and tested the substance at issue in Count Two, it could

not have proven the elements of R.C. 2925.03(A)(1) and (C)(4)(f) unless test results

showed a detectable amount of cocaine had been admitted into evidence. As Garr

observed, “Chandler did not address the principle that the [S]tate can establish any

element of any crime through circumstantial evidence.” Garr at ¶ 27.

{¶26} Moreover, Chandler recognized that “a person can be convicted for

offering to sell a controlled substance in violation of R.C. 2925.03(A)(1) without

actually transferring a controlled substance to the buyer.” Chandler, 109 Ohio St.3d

223, 2006-Ohio-2285, at ¶ 9. The problem in Chandler arose because the penalty

provision required proof that the substance offered for sale contained cocaine, and

testing showed the substance in that case was baking soda. Id. at ¶ 3, 18.

{¶27} To prove that Brown sold a controlled substance, the State presented

the testimony of Sarah Tipton (“Tipton”) from BCI. Tipton testified that the

substance (in State’s Exhibits 14) showed indications of being cocaine, but the lab

had an insufficient sample to be able to positively identify the substance as cocaine.

{¶28} At trial, the State also presented the testimony of American Township

Chief Michael Haines (“Haines”). Haines testified that during the May 26, 2020

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controlled buy involving Brown, the West Central Ohio Crime Task Force utilized

a confidential informant to buy drugs in Lima, Allen County, Ohio.

{¶29} Following Haine’s, the State introduced the testimony of Jonathan

Doenges, the confidential informant (“CI”) who bought drugs from Brown. The CI

knew Brown through his brother. According to the CI, his brother arranged for him

to purchase cocaine from Brown for $2,000 on May 26th. The CI testified that he

made sure his brother was at work at the time of the transaction so his brother would

not be present during the drug buy. The CI testified that he remained in his car until

his brother let him know via text message that it was okay for him to approach

Brown’s front door. After receiving the okay from his brother, the CI went to

Brown’s house and was let in. The CI was directed into the living room, and Brown

then approached (the CI) to verify the amount of cocaine requested. This

conversation was corroborated by the audio recording of the drug buy. (See State’s

Ex. 16). Brown then gave the CI a white substance representing it to be cocaine.

The CI handed him the money and exited the house. Thereafter, the CI went to the

prearranged location to turn the white substance over to law enforcement and begin

the post-drug-buy-search process.

{¶30} At trial, the audio and video recording of the May 26th drug buy was

played for the jury and Brown can be heard verifying that the CI wanted “a half on

top of a zip”. (See id.). Further, the CI testified that a “zip” is the equivalent of an

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ounce. The CI identified Brown as the person involved in the transaction through a

photo lineup and at trial. (See State’s Ex. 1).

{¶31} Later testing revealed the white substance weighed 41.50g +/- 0.04g.

However, according to Tipton the amount of any controlled substance in the sample

was too weak for a positive for identification. Nevertheless, Tipton testified that the

substance showed indications of being cocaine. Importantly, and at all times

relevant, Brown represented the white substance to be cocaine.

{¶32} After viewing the evidence in a light most favorable to the

prosecution, we conclude that any rational trier of fact could have found the essential

elements of R.C. 2925.03(A)(1), (C)(4)(f) were proven beyond a reasonable doubt

with respect to Count Two, trafficking in drugs.

Manifest Weight of the Evidence Analysis

{¶33} Notably, Brown comingles his sufficiency-of-the-evidence and

manifest-weight-of-the-evidence arguments in his merit brief and raises the

identical argument with respect to both. Indeed, his argument sounds in sufficiency,

which we have already addressed above. Nonetheless, the evidence we summarized

in our sufficiency-of-the-evidence analysis supporting Brown’s conviction is

weightier than the evidence against that conviction.

{¶34} Based upon the entire record before us, we do not conclude that the

evidence weighs heavily against Brown’s trafficking-in-drugs conviction under

Count Two. Therefore, we do not conclude that the jury clearly lost its way, which

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created a manifest miscarriage of justice such that Brown’s conviction must be

reversed and a new trial ordered.

{¶35} Accordingly, Brown’s second and third assignments of error are

overruled.

First Assignment of Error

Mr. Brown was denied the effective assistance of counsel at trial,

in violation of his rights to the same under the Ohio Constitution

and the United States Constitution.

{¶36} In his first assignment of error, Brown argues that he was denied the

effective assistance of counsel. He argues trial counsel consumed alcohol during

the trial and had medical and mental-health issues. Further, Brown outlines a

number of instances wherein his trial counsel’s performance was deficient or

unreasonable. Specifically, he argues that his attorney failed to object to Tipton’s

testimony; requested too many continuances; disclosed defense witnesses late;

failed to provide a defense response to discovery; and did not pursue a counterfeit-

controlled-substance defense. For the reasons that follow, we disagree.

Standard of Review

{¶37} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064 (1984). In order to show trial counsel’s conduct was

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deficient or unreasonable, the defendant must overcome the presumption that

counsel provided competent representation and must show that counsel’s actions

were not trial strategies prompted by reasonable professional judgment. Strickland

at 687. Counsel is entitled to a strong presumption that all decisions fall within the

wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,

675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not

generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558

(1995). Rather, the errors complained of must amount to a substantial violation of

counsel’s essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-

42 (1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on

other grounds, Lytle v. Ohio, 438 U.S. 910, 98 S.Ct. 3135 (1978).

{¶38} “Prejudice results when ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting

Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142

and citing Strickland at 694.

Analysis

Pre-trial:

{¶39} We begin by addressing Brown’s ineffective-assistance-of-counsel

claims as they relate to pre-trial events. Specifically, Brown alleges that his attorney

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requested too many continuances (for medical concerns) that impacted her ability

to handle his case; that his attorney disclosed two defense witnesses late, which

resulted in them not being permitted to testify; and that his attorney failed to provide

a defense response to discovery.

{¶40} Starting with Brown’s contention that his attorney requested too many

continuances, Brown has not shown that he was prejudiced by any delay. Hence,

we need not address this portion of his argument.3

{¶41} Brown’s contentions regarding his attorney’s failure-to-disclose and

failure-to-provide-a-defense-response-to-discovery assertions also fail. Contrary to

Brown’s assertions, the record reveals that it was Brown who tarried in providing

his attorney with defense discovery (i.e., text messages) until the first day of trial.

The record further supports that trial counsel promptly disclosed the discovery to

the prosecution and further requested the trial court to permit two new witnesses to

testify notwithstanding their lack of inclusion on Brown’s witness list. The trial

court gave the prosecution time to investigate the new witnesses. Thereafter, the

defense (in its case-in-chief) was permitted to call one of the witnesses (i.e., the CI’s

brother, Hunter Doenges (“Doenges”)) at trial over the State’s objection.

Consequently, with respect to Doenges, Brown suffered no prejudice. The second

3

Trial counsel requested continuances of the trial on July 19, 2021 (for an unspecified surgery), on February

1, 2022 (unspecified medical issue), and then again on February 18, 2022 (where she reported an inability to

drive due to unspecified health-related issue). (Doc. No. 186).

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witness (identified only as Ms. McLaurin) was never called to testify by the defense

leaving open the question of whether counsel may have reassessed the value of her

testimony, a choice, which would fall within the ambit of trial strategy.

{¶42} Based upon the limited record before us, it is speculative whether the

witness who was not called (McLaurin) would have been of any assistance to Brown

or if Brown had any other witnesses or evidence implicating the reciprocal duty to

disclose prior to Brown’s revelation of the text messages. Thus, Brown has failed

to carry the burden of establishing that he was denied his right to the effective

assistance of counsel under the prejudice prong of Strickland to his attorney’s pre-

trial actions.

Trial:

{¶43} Next, we address Brown’s ineffective-assistance-of-counsel claims

that occurred during the course of his trial. Specifically, Brown argues that his

attorney’s alcohol consumption and mental-health issues may have affected her

performance at trial. Notably, Brown first raised his argument related to his trial

counsel’s alcohol consumption in the trial court in his motion for new trial.

However, he never presented any arguments in the trial court regarding the alleged

mental-health issues. Nevertheless, “the prejudice standards for plain-error and

ineffective-assistance-of-counsel claims are the same * * *.” State v. Cervantes, 3d

Dist. Henry No. 7-21-06, 2022-Ohio-2536, ¶ 58. Regardless of what standard we

apply, the outcome does not change.

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{¶44} Even if we assume without deciding that Brown’s trial counsel had

consumed alcohol during the evening or at lunch recesses during the trial, and

suffered from some form of mental-health issues following the trial, Brown has not

directed us to any specific instances of deficient or unreasonable conduct

attributable to the alcohol use and/or mental-health issues during the trial.

Importantly, alcohol/drug use and mental illness by an attorney do not constitute

ineffective assistance of counsel per se. See Bonin v. Calderon, 59 F.3d 815, 838

(9th Cir.1995), citing Berry v. King, 765 F.2d 451, 454 (5th Cir.1985), cert. denied,

476 U.S. 1164, 106 S.Ct. 2290 (1986); McDougall v. Dixon, 921 F.2d 518, 535 (4th

Cir.1990), cert. denied, 501 U.S. 1223, 111 S.Ct. 2840 (1991); Smith v. Ylst, 826

F.2d 872, 876 (9th Cir.1987), cert. denied, 488 U.S. 829, 109 S.Ct. 83 (1988).

Counsel’s performance at trial must be evaluated in light of the allegations. Smith

at 876.

{¶45} Since Brown has failed to establish that his trial counsel’s alleged

alcohol use and/or purported mental-health issues resulted in trial counsel’s

deficient or unreasonable performance, he has failed to carry the burden of

establishing that he was denied his right to the effective assistance of counsel as to

this portion of his argument.

{¶46} Next, we address the portion of Brown’s argument that involves his

attorney’s failure to object to Tipton’s testimony. Specifically, Brown argues that

Tipton was permitted to testify regarding drug-field-test-kit results to prove the

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existence of cocaine in State’s Exhibit 14. However, we can find no instances in

the record where Tipton ever mentions drug-field testing or the concomitant results.

However, Brown never asserted that the laboratory test results were irrelevant nor

did he object to their admission under any other evidentiary basis. Thus, we will

not conclude that his trial counsel’s performance was deficient or unreasonable

under this portion of his argument.

{¶47} Finally, we turn to address Brown’s failure-to-pursue-a-counterfeit-

controlled-substance defense assertion. Brown argues that under the facts of his

case his trial counsel should have pursued a counterfeit-controlled-substance

defense, which he argues was a better defense. We disagree. To us, this falls within

the realm of trial strategy or tactics. In other words, Brown asks us to second-guess

his attorney’s trial strategy, which we decline to do. It is well-established that

debatable strategic and tactical decisions may not form the basis of a claim for

ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy

had been available. State v. Cook, 65 Ohio St.3d 516, 524 (1992). See also State v.

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101 (“debatable trial tactics do

not establish ineffective assistance of counsel”). Accordingly, Brown has failed to

demonstrate that the actions of trial counsel were not part of a trial strategy and that

the outcome of the trial would have been different.

{¶48} Accordingly, we reject Brown’s ineffective assistance of counsel

argument and overrule his first assignment of error.

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{¶49} 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

MILLER and POWELL, J.J., concur.

** Judge Stephen W. Powell of the Twelfth District Court of Appeals, sitting

by Assignment of the Chief Justice of the Supreme Court of Ohio.

/hls

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