State v. Shaffer , 2018 Ohio 205 ( 2018 )

[Cite as State v. Shaffer, 2018-Ohio-205.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 17AP0001
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RANDY D. SHAFFER II COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2016 CRC-1 000263
DECISION AND JOURNAL ENTRY
Dated: January 22, 2018
TEODOSIO, Judge.
{¶1} Appellant, Randy Shaffer II, appeals from his conviction for illegal assembly or
possession of chemicals for the manufacture of drugs in the Wayne County Court of Common
Pleas. We affirm.
I.
{¶2} In June of 2016, an investigation into multiple, recent pseudoephedrine purchases
by C.T. and L.D. prompted authorities to procure a search warrant for the individuals’ residence
on Sherwood Drive in Wooster. On June 25, 2016, the Wayne County Sheriff’s Office executed
the search warrant at the suspected methamphetamine lab and discovered an abundance of items
related to the manufacture of methamphetamine. Four individuals were also inside of the
residence, including Mr. Shaffer.
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{¶3} Mr. Shaffer was charged with illegal assembly or possession of chemicals for the
manufacture of drugs, a felony of the third degree. After a bench trial, Mr. Shaffer was found
guilty of the offense and the trial court sentenced him to three years in prison.
{¶4} Mr. Shaffer now appeals from his conviction and raises one assignment of error
for this Court’s review.
II.
ASSIGNMENT OF ERROR
SHAFFER’S CONVICTION FOR ILLEGAL ASSEMBLY OR
POSSESSION OF CHEMICALS FOR THE MANUFACTURE OF DRUGS
WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶5} In his sole assignment of error, Mr. Shaffer argues that his conviction is based on
insufficient evidence. We disagree.
{¶6} “A sufficiency challenge of a criminal conviction presents a question of law,
which we review de novo.” State v. Spear, 9th Dist. Summit No. 28181, 2017-Ohio-169, ¶ 6,
citing State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). “Sufficiency concerns the burden of
production and tests whether the prosecution presented adequate evidence for the case to go to
the jury.” State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 25, citing Thompkins
at 386. “The 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., quoting State v. Jenks, 61 Ohio St. 3d 259 (1991),
paragraph two of the syllabus. However, “we do not resolve evidentiary conflicts or assess the
credibility of witnesses, because these functions belong to the trier of fact.” State v. Hall, 9th
Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.
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{¶7} Mr. Shaffer was convicted of illegal use or possession of chemicals for the
manufacture of drugs under R.C. 2925.041(A), which provides: “No person shall knowingly
assemble or possess one or more chemicals that may be used to manufacture a controlled
substance in schedule I or II with the intent to manufacture a controlled substance in schedule I
or II * * *.” Moreover, “[t]he assembly or possession of a single chemical that may be used in
the manufacture of a controlled substance in schedule I or II, with the intent to manufacture a
controlled substance in either schedule, is sufficient to violate this section.” R.C. 2925.041(B).
“Methamphetamine is classified as a Schedule II controlled substance and a stimulant under R.C.
3719.41, Schedule II (C)(2).” State v. Yoakem, 9th Dist. Wayne No. 14AP0016, 2016-Ohio-745,
¶ 7. “A person acts knowingly, regardless of purpose, when the person is aware that the person’s
conduct will probably cause a certain result or will probably be of a certain nature.” R.C.
2901.22(B). “‘Possess’ or ‘possession’ means having control over a thing or substance, but may
not be inferred solely from mere access to the thing or substance through ownership or
occupation of the premises upon which the thing or substance is found.” R.C. 2925.01(K).
{¶8} Mr. Shaffer argues his conviction is based on insufficient evidence because no
evidence was presented that, on June 25, 2016, he assembled or possessed any of the
methamphetamine-related supplies discovered at the residence or that he provided any of the
supplies to C.T. for the manufacture of methamphetamine. He further argues that no evidence
was presented to link his purchase of pseudoephedrine on June 24, 2016, to the pseudoephedrine
that was discovered in the residence on June 25, 2016. Therefore, he argues that his case is
analogous to State v. Morlock, 9th Dist. Summit Nos. 26954, 26955, & 26956, 2014-Ohio-4458.
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{¶9} In a split decision1, this Court reversed convictions for illegal manufacture of
drugs and illegal assembly or possession of chemicals for the manufacture of drugs due to
insufficient evidence in Morlock. Id. at ¶ 28. The testimony presented at trial showed that Mr.
Morlock had not brought any such chemicals with him to the residence on October 28, 2012, for
manufacturing methamphetamine, and that the last time he brought such chemicals to the
residence was two weeks prior to October 28, 2012. Id. at ¶ 26. Although there was testimony
that Mr. Morlock had brought supplies over for the manufacture of methamphetamine five or six
times in the prior month, no evidence was presented that the particular chemicals found at the
residence on October 28, 2012, were ever assembled or possessed by Mr. Morlock. Id. at ¶ 27.
Accordingly, this Court concluded “[t]here was no evidence that, on or about October 28, 2012,
Mr. Morlock possessed any chemicals or supplied any chemicals to make methamphetamine to *
* * anyone at 92 Willard.” (Emphasis added.) Id. at ¶ 26.
{¶10} At trial in the case sub judice, the State presented the testimony of two witnesses.
Jason Waddell, the senior agent in the Medway Drug Enforcement Agency, testified that on June
25, 2016, Sergeant Joe Copenhaver of the Wayne County Sheriff’s Department called him to
request his services in dismantling a clandestine methamphetamine lab at 636 Sherwood Drive in
Wooster. Agent Waddell testified that he discovered many items in the residence that were
1
The dissent stated that evidence was presented that Mr. Morlock “would routinely
provide various ingredients necessary for the production of methamphetamine in exchange for
some of the finished product.” Morlock at ¶ 32 (Carr, J., dissenting). Mr. Morlock would drop
off some ingredients and then return to the residence merely hours later to use his share of the
newly manufactured methamphetamine. Id. On October 28, 2012, Mr. Morlock and three others
were arrested inside of the residence while preparing to use four lines of methamphetamine that
were laid out on a speaker before them. Id. Therefore, the dissent concluded that a reasonable
inference could be drawn that Mr. Morlock had provided ingredients on or about October 28,
2012, for the most recently manufactured batch of methamphetamine and had returned hours
later to use his share of the drugs when he was arrested. Id.
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related to the manufacture of methamphetamine. Inside of a closet, he discovered ice packs that
had been cut open with some of the ammonium nitrate removed. In a bedroom, he discovered
approximately thirty syringes and a burnt spoon with residue and a cotton swab on top. Inside of
a “lazy Susan” in the kitchen, he discovered a half-gallon bottle of muriatic acid, measuring
cups, and several funnels. One of the funnels had a white powder residue on it that was tested on
litmus paper at the scene and came back as a “strong base,” which Agent Waddell testified is
“indicative of what we see when a funnel would be used to add sodium hydroxide, a crystal drain
cleaner type.” On a small table in the kitchen, he discovered several cans of lighter fluid and a
can of acetone. In an upper kitchen cabinet, he discovered an orange and clear plastic spice
grinder with a white powder in it. The white powder tested negative for methamphetamine, but
Agent Waddell testified that these types of grinders are commonly used to grind up
pseudoephedrine pills in methamphetamine labs. Inside of the kitchen trash can, he discovered
another can of lighter fluid, an empty 40-count box of pseudoephedrine, and a lithium battery
that had been cut open with the lithium removed. Inside of two trash cans the basement, he
discovered another empty can of lighter fluid, several one-liter plastic bottles containing some
water, a gallon-size Ziploc bag containing empty pseudoephedrine packs, and empty ice pack,
and a lithium battery that had been cut open with the lithium removed.
{¶11} Agent Waddell testified that while he took a break outside of the residence, some
Sheriff’s deputies discovered two sealed buckets in the basement of the residence. They opened
one up and observed kitty litter inside. Agent Waddell testified that kitty litter is used as an
odor-absorbing layer in the manufacture of methamphetamine. He went back into the basement
to further inspect the buckets and he found several sealed plastic bottles containing an off-white
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or off-pink sludge with a black chunk of material inside, which he testified is indicative of a one-
pot methamphetamine lab.
{¶12} Wayne County Sheriff’s Deputy Paul Gramlich testified that he obtained a search
warrant for 636 Sherwood Drive to look for items involved in the manufacture of
methamphetamine and other drug-related items. He also participated in the execution of that
search warrant as a perimeter unit while the Special Weapons and Tactics (“SWAT”) team
entered the residence. Four individuals were located inside of the residence when the search
warrant was executed: Mr. Shaffer, C.T., K.D., and Z.R. The SWAT team reported a strong
chemical odor coming from inside the residence and identifiable methamphetamine-related items
located in plain view once they entered the residence.
{¶13} After Agent Waddell was finished inside, Deputy Gramlich entered the residence
with Deputy Berkey to collect evidence. Deputy Gramlich testified that they discovered
hypodermic syringes, an orange pill grinder, a blue plastic container, pH testing strips, a receipt,
a package of pseudoephedrine, a piece of foil with a pen cylinder on it, a metal spoon with
residue and a cotton swab on it, a light bulb fashioned into a smoking device, a mirror with razor
blades, some powder residue, another metal spoon with a cotton swab on it, a receipt for
pseudoephedrine, gloves and personal protective garments, multiple lottery tickets which he
testified are commonly used to create bindles for packaging narcotics, two buckets containing
kitty litter, a dust mask, multiple containers and funnels, a bottle of “stripper,” a Ziploc bag
containing rolled up coffee filters, a Ziploc bag containing a saturated towel, a Ziploc bag
containing a white residue, a container with some type of salt in it, a trash can containing “what
appeared to be meth trash, coffee filters, bottles, things of that nature[,]” a blue bucket containing
multiple “cooking vessels” in it, a bucket of salt, clear tubing, a bucket of kitty litter, multiple
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plastic bottles with the labels removed, and a receipt for acetone. He also found metal fittings
and a Tennessee driver’s license for L.D. inside of K.D.’s purse. L.D.’s name and license
number had been associated with recent pseudoephedrine purchases linked to 636 Sherwood
Drive.
{¶14} BCI testing revealed trace amounts of methamphetamine on the spoon with cotton
swab and residue, trace amounts of pseudoephedrine on the pill grinder, and trace amount of
methamphetamine in the blue container.
{¶15} Deputy Gramlich spoke to Mr. Shaffer while he was in a police cruiser at the
scene. Deputy Gramlich testified that he read Mr. Shaffer his rights and that Mr. Shaffer
indicated he understood those rights and agreed to speak to the deputy. Mr. Shaffer told the
deputy that C.T. cooked methamphetamine in the residence and “on at least one occasion he had
purchased a box of pseudoephedrine for [C.T.] for that purpose.” Mr. Shaffer told the deputy
“[h]e believed that there may be a plate inside the home that [C.T.] had used for drying the
methamphetamine on[,]” but he was not sure. He also told the deputy that he was at the
residence “hanging out” with Z.R. and that he had used methamphetamine inside of the
residence.
{¶16} Deputy Gramlich’s body camera recorded video of his conversation with Mr.
Shaffer in the police cruiser, which was entered into evidence at trial. The body camera video
corroborates the deputy’s testimony. In the video, Mr. Shaffer admits to buying one “box” for
C.T. Deputy Gramlich testified that the terms “box” or “boxes” are commonly used to refer to
pseudoephedrine blister pack boxes. Mr. Shaffer admits in the video that while at the residence,
he “got high a little bit.” When asked if he has seen C.T. “cooking off bottles or drying the
stuff[,]” Mr. Shaffer responds, “No, I don’t, I don’t, actually yeah, I’ve seen drying plates in the
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kitchen.” When questioned further about the use of the plates, the location of C.T.’s “stuff,” and
how he obtains “it” from C.T., Mr. Shaffer responds, “I don’t think I, I don’t even care about the
shit. I don’t fucking cook it and I don’t like it. I know they cook it * * *.” The deputy inquires
as to what type of pseudoephedrine box Mr. Shaffer purchased, and Mr. Shaffer appears unsure
of which type he purchased. As the deputy questions Mr. Shaffer further regarding his
pseudoephedrine purchase, he asks, “Did he drive you up there * * *?” Mr. Shaffer responds,
“No, she’s been driving me for it * * *.” The deputy asks where L.D. is at and Mr. Shaffer
responds, “I don’t know who that is.”
{¶17} Deputy Gramlich spoke to Mr. Shaffer again at the Wayne County Jail. The
deputy’s body camera recorded video of the conversation, which was entered into evidence at
trial. In the video, the deputy reads Mr. Shaffer a copy of the search warrant and briefly explains
the illegal assembly charge. He informs Mr. Shaffer that he knows Mr. Shaffer has purchased
boxes for “them” at least twice. Mr. Shaffer then admits to the deputy that “[he] tried to get one
Thursday and [he] got one the other night.”
{¶18} Ohio law prohibits individuals without a valid prescription for pseudoephedrine
from purchasing “[t]hree and six tenths grams within a period of a single day [or n]ine grams
within a period of thirty consecutive days.” R.C. 2925.56(A)(1). The National Precursor Log
Exchange (“NPLEx”) is an “electronic system for tracking sales of pseudoephedrine products
and ephedrine products on a national basis * * *.” R.C. 3715.05(A)(6). The NPLEx system will
notify a retailer or distributor with a “stop-sale alert” to block any attempted purchase of
pseudoephedrine if completion of the sale would violate the purchase limits set forth in R.C.
2925.56(A)(1) or federal law. R.C. 3715.05(A)(13); R.C. 3715.052(B)(1). Deputy Gramlich
testified as to his review and investigation of the NPLEx reports detailing the successful
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purchases and attempted or blocked purchases made by Mr. Shaffer, C.T., K.D., and L.D. Those
four NPLEx reports, which corroborate the deputy’s testimony as to their contents, were all
entered into evidence at trial.
{¶19} The NPLEx reports indicate that, on June 22, 2016, Mr. Shaffer attempted to buy
pseudoephedrine at the Wooster Walmart at 9:51 A.M., but the purchase was blocked. Six
minutes later, at 9:57 A.M., C.T. purchased pseudoephedrine at the same store. Five minutes
later, at 10:02 A.M., K.D. attempted to purchase pseudoephedrine at the same store, but the
purchase was blocked. Six minutes later, at 10:08 A.M., someone using L.D.’s identification
attempted to purchase pseudoephedrine at the same store, but the purchase was blocked. Deputy
Gramlich testified that it was later determined Z.R. had attempted to use L.D.’s identification for
that purchase.
{¶20} The NPLEx reports also indicate that, on June 24, 2016, Mr. Shaffer purchased
pseudoephedrine at the Massillon Rite Aid at 8:21 P.M. Nine minutes later, at 8:30 P.M.,
someone using L.D.’s identification purchased pseudoephedrine at the same store. Thirty-six
minutes later, at 9:06 P.M., K.D. purchased pseudoephedrine at the Orrville Rite Aid. Six
minutes later, at 9:12 P.M., C.T. attempted to purchase pseudoephedrine at the same store, but
the purchase was blocked.
{¶21} As to Mr. Shaffer’s sufficiency arguments, we first note that he erroneously refers
to his indictment as alleging he committed this offense “on June 25, 2016.” The indictment
actually alleges that Mr. Shaffer committed this crime “on or about June 25, 2016.” (Emphasis
added.) This Court disagrees with Mr. Shaffer’s series of related arguments that no evidence
was presented to: (1) prove that he assembled or possessed any of the methamphetamine-related
supplies discovered at the residence; (2) prove that he provided any of the supplies to C.T. for
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the manufacture of methamphetamine; or (3) link his purchase of pseudoephedrine on June 24,
2016, to the pseudoephedrine that was discovered in the residence on June 25, 2016. Deputy
Gramlich testified, and his body camera video confirmed, that Mr. Shaffer admitted to buying
one box of pseudoephedrine for C.T., admitted that he knew the others cooked
methamphetamine, had observed some drying plates in the kitchen, and admitted to getting high
in the residence. In the deputy’s body camera video from the interview at the Wayne County
Jail, Mr. Shaffer admits that he unsuccessfully attempted to purchase a box of pseudoephedrine
on Thursday, but was successful in purchasing a box of pseudoephedrine on another night. Mr.
Shaffer’s NPLEx report indicates that he unsuccessfully attempted to buy pseudoephedrine at the
Wooster Walmart on June 22, 2016, but successfully purchased a 40-count box of Rite Aid
Ibuprofen Cold & Sinus containing pseudoephedrine at the Massillon Rite Aid on June 24, 2016.
The search warrant was executed the very next day on June 25, 2016, and Agent Waddell
testified that he found an empty 40-count box of pseudoephedrine inside of the kitchen trash can
along with an overwhelming amount of items related to the manufacture of methamphetamine.
The NPLEx reports further indicate that the individuals who were present when the search
warrant was executed, including Mr. Shaffer, had very recently been purchasing or attempting to
purchase pseudoephedrine products in the same stores, on the same days, and around the same
times.
{¶22} We also disagree with Mr. Shaffer’s argument that his case is analogous to the
Morlock case and instead conclude that Morlock is distinguishable from the instant case. In
Morlock, this Court refrained from concluding that Mr. Morlock’s actions performed two weeks
prior to October 28, 2012, were committed “on or about October 28, 2012[,]” as stated in the
indictment. See Morlock, 2014-Ohio-4458, at ¶ 26. Here, Mr. Shaffer admitted to buying
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pseudoephedrine for C.T. and his NPLEx report confirmed the purchase as being made on June
24, 2016, only one day prior to the execution of the search warrant, which is sufficient to satisfy
the indictment’s “on or about June 25, 2016” language. See State v. Forney, 9th Dist. Summit
No. 24361, 2009-Ohio-2999, ¶ 10 (stating “[t]he State is only required to prove that the offense
occurred reasonably near the date specified in the indictment” in a case where the indictment
alleged the offense took place “on or about” a particular date.). In Morlock, no evidence was
presented that Mr. Morlock assembled or possessed the particular chemicals found at the
residence on October 28, 2012. Id. at ¶ 27. However, in the case sub judice, Mr. Shaffer
admitted to recently buying pseudoephedrine for C.T., whom he knew was manufacturing
methamphetamine. Mr. Shaffer purchased a 40-count box of a pseudoephedrine product on June
24, 2016, and testimony at trial established that an empty 40-count box of pseudoephedrine was
found inside of the kitchen trash can among other methamphetamine-related items on June 25,
2016. Thus, we cannot conclude that the fact pattern in Morlock is comparable to the fact pattern
in Mr. Shaffer’s case.
{¶23} After reviewing the evidence contained in the record in a light most favorable to
the prosecution, we conclude that the State satisfied its burden of production and presented
sufficient evidence, if believed, from which a rational trier of fact could have concluded that, on
or about June 25, 2016, Mr. Shaffer knowingly assembled or possessed pseudoephedrine pills
with the intent to manufacture methamphetamine.
{¶24} Mr. Shaffer’s sole assignment of error is overruled.
III.
{¶25} Mr. Shaffer’s sole assignment of error is overruled. The judgment of the Wayne
County Court of Common Pleas is affirmed.
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Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, P. J.
CARR, J.
CONCUR.
APPEARANCES:
MATTHEW J. MALONE, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.