State v. Scoggins , 2017 Ohio 8989 ( 2017 )

[Cite as State v. Scoggins, 2017-Ohio-8989.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, : Case No. 16CA3767
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
RONALD SCOGGINS, :
Defendant-Appellant. : RELEASED 12/8/2017
APPEARANCES:
John Rutan, Columbus, Ohio, for appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant
Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Hoover, J.
{¶1} Defendant-appellant, Ronald Scoggins (“Scoggins”), appeals his convictions and
sentence for numerous drug related charges as well as one count of endangering children after a
search of a vehicle under his possession and control revealed several active one-pot
methamphetamine labs as well as additional materials used to produce methamphetamine. The
Scioto County Common Pleas Court denied Scoggins’s motion to suppress the evidence found as
a result of the search; and Scoggins was subsequently found guilty, following a jury trial, of the
charged offenses. Scoggins was sentenced to a total aggregate sentence of 22 years
imprisonment, with 19 years being mandatory.
{¶2} Because we determine that the trial court properly denied Scoggins’s motion to
suppress, and that Scoggins’s remaining assignments of error pertaining to his convictions and
sentence are also without merit, we affirm the judgment of the trial court. However, our own
Scioto App. No. 16CA3767 2
review of the record reveals errors in two of the jury verdict forms and in the sentencing entry
constituting plain error; thus under App.R. 9(E) we instruct the trial court to issue a nunc pro
tunc sentencing entry correcting the errors described more thoroughly in this decision.
I. Facts and Procedural History1
{¶3} This case arose after officers from the Southern Ohio Drug Task Force and Scioto
County Common Pleas Adult Probation Department conducted a probation home check at a
property in Scioto County. Upon arriving to the property, the officers located a running vehicle
in the driveway. Inside the vehicle, in open view of the officers, was an active one-pot
methamphetamine lab. A more thorough search of the vehicle revealed a tool bag, which
contained two more active one-pot methamphetamine labs, two spent one-pot methamphetamine
labs, and various materials commonly used to produce methamphetamine. The vehicle, which
was unoccupied at the time of the officers’ arrival, contained Scoggins’s driver’s license and a
cell phone associated with Scoggins. Several individuals, including a minor child, were inside a
house on the property. Scoggins, however, was not located at the house or anywhere else on the
property.
{¶4} On May 12, 2015, Scoggins was indicted on four counts: aggravated trafficking of
methamphetamine in violation of R.C. 2925.03(A)(2) and R.C. 2925.03(C)(1)(f), a first degree
felony; aggravated possession of drugs/methamphetamine in violation of R.C. 2925.11(A) and
R.C. 2925.11(C)(1)(e), a first degree felony; illegal manufacture of drugs/methamphetamine in
the vicinity of a juvenile in violation of R.C. 2925.04(A) and R.C. 2925.04(C)(3)(a), a second
degree felony; and illegal assembly or possession of chemicals for the manufacture of
drugs/methamphetamine in the vicinity of a juvenile in violation of R.C. 2925.041(A) and R.C.
1
The evidence and testimony introduced at trial will be discussed in further detail below.
Scioto App. No. 16CA3767 3
2925.041(C), a second degree felony. Scoggins pleaded not guilty to the charges. On May 23,
2016, Scoggins filed a motion to suppress the evidence seized as a result of the search of the
vehicle. After a hearing on the motion to suppress, the trial court overruled the motion.
{¶5} Following the trial court’s denial of the motion to suppress, but approximately a
month before the commencement of the scheduled trial, the State filed a superseding indictment.
The superseding indictment added that the aggravated trafficking of methamphetamine charge
was committed in the vicinity of a juvenile, and added a count of endangering children in
violation of R.C. 2919.22(B)(6) and R.C. 2919.22(E)(3), a third degree felony.
{¶6} Scoggins was tried before a jury on August 22 and 23, 2016. At the conclusion of
trial Scoggins was convicted of all the indicted charges. The jury also determined that the drugs
were equal to or exceeded 5 times the bulk amount and were less than 50 times the bulk amount,
and that the aggravated trafficking of methamphetamine, illegal manufacture of
drugs/methamphetamine, and the illegal assembly offenses were committed in the vicinity of a
juvenile. At sentencing, the trial court merged the aggravated trafficking and aggravated
possession counts with the illegal manufacture count. The trial court sentenced Scoggins to 11
years incarceration on the illegal manufacture count2, 8 years on the illegal assembly count, and
36 months on the endangering children count, to be served consecutively for a total aggregate
sentence of 22 years imprisonment with 19 years being mandatory.
{¶7} Shortly thereafter, a sentencing entry was journalized and Scoggins then filed a
timely notice of appeal.
II. Assignments of Error
2
At sentencing the trial court found that the illegal manufacture count shall be enhanced from a felony two to a
felony one because of the finding that the offense was committed in the vicinity of a juvenile. See R.C.
2925.04(C)(3)(b) (“If the drug involved in the violation is methamphetamine and if the offense was committed in
the vicinity of a juvenile * * * illegal manufacture of drugs is a felony of the first degree * * *.”)
Scioto App. No. 16CA3767 4
{¶8} Scoggins assigns the following errors for our review:
First Assignment of Error:
The Trial Court Erred By Denying Appellant’s Motion to Suppress.
Second Assignment of Error:
The Appellant’s 6th Amendment Right To Fair And Impartial Jury Was Violated.
Third Assignment of Error:
The Trial Court Abused It’s Discretion And Committed Prejudicial Error In The
Handling Of Numerous Criminal Rule 16 Violations Committed By The State By
Not Excluding The Testimony Of James Cunningham And Payton Scott.
Fourth Assignment of Error:
The Trial Court Erred By Not Granting A Mistrial After Payton’s Prejudicial
Statement And Prejudicial Questions By The Prosecutor.
Fifth Assignment of Error:
There Was Insufficient Evidence To Support Appellants Conviction For Count 1,
Aggravated Possession, Count 2 Aggravated Trafficking Of Drugs And Count 5
Endangering Children.
Sixth Assignment of Error:
Appellant’s Conviction For Count 3 Illegal Manufacturing Of Drugs And The
Enhancements For Counts 1, 3 and 4 Was Against The Manifest Weight Of The
Evidence.
Seventh Assignment of Error:
The Trial Court Erred In Failing To Merge Appellants Sentences.
Eighth Assignment of Error:
The Trial Court Erred In Failing To Merge The Sentences of Child Endangerment
With the Elevated Felonies.
Ninth Assignment of Error:
The Trial Court Abused Its Discretion In Sentencing The Appellant To A Near
Maximum Prison Term And In Imposing Consecutive Terms.
Scioto App. No. 16CA3767 5
III. Law and Analysis
A. First Assignment of Error: Motion to Suppress
{¶9} In his first assignment of error, Scoggins contends that the trial court erred in
overruling his motion to suppress evidence.
{¶10} Appellate review of a motion to suppress presents a mixed question of law and
fact. State v. Gurley, 2015-Ohio-5361, 54 N.E.3d 768, ¶ 16 (4th Dist.), citing State v. Roberts,
110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. At a suppression hearing, the trial
court acts as the trier of fact and is in the best position to resolve factual questions and evaluate
witness credibility. Id.; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. Thus, when reviewing a ruling on a motion to suppress, we defer to the trial court’s findings
of fact if they are supported by competent, credible evidence. Gurley at ¶ 16, citing State v.
Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th Dist.2000). However, “[a]ccepting
those facts as true, we must independently determine whether the trial court reached the correct
legal conclusion in analyzing the facts of the case.” Id., citing Roberts at ¶ 100.
{¶11} At the suppression hearing, Detective Lee Bower of the Southern Ohio Drug Task
Force testified that he responded to the Charles Wooten residence in McDermott, Ohio, to assist
other officers from the task force and officers from the Scioto County Common Pleas Adult
Probation Department. The purpose of the visit was to conduct a home visit on probationer
Payton Scott, who was residing at the Wooten residence.3 It had been reported that Scott was
abusing drugs at the residence, that methamphetamine was being produced at the residence, and
that anhydrous ammonia might be present at the residence. Detective Bower indicated that upon
3
Payton Scott and Charles Wooten are siblings.
Scioto App. No. 16CA3767 6
arriving to the residence and looking for probationer Scott he observed a vehicle in the driveway
that was locked and running, but that contained no driver or passengers. Detective Bower
testified that he looked into the window of the vehicle and observed a one-pot methamphetamine
lab that was cooking in the center console of the vehicle. Detective Bower then approached the
residence and spoke to Wooten. According to Detective Bower, Wooten told him that the vehicle
belonged to Scoggins, and that Scoggins had just run away from the residence. Scott and a minor
child were also present in the residence, and according to Detective Bower’s testimony, Scott
also indicated that a person named “Ronnie” had just run out the door.
{¶12} Detective Bower testified that the fire department was called to the scene due to
the high risk of fire and explosion, and to break the driver’s side window to ventilate the vehicle.
Detective Bower testified that trained agents from the drug task force dressed in protective
equipment and began processing the scene. Once the one-pot lab was neutralized, a search of the
vehicle was conducted. According to Detective Bower two more active one-pot
methamphetamine labs, and two spent one-pot labs were discovered in a tool bag in the back seat
of the vehicle. In addition, Scoggins’s driver license and cell phone were also found in the
vehicle.
{¶13} Paula Breech, Scoggins’s girlfriend, also testified at the suppression hearing.
Breech testified that she is the titled owner of the vehicle, but that she regularly allows Scoggins
to use the vehicle. Breech testified that Scoggins was driving the vehicle on the day that it was
searched.
{¶14} Scoggins argues that the search of the vehicle was unlawful because it was
conducted without procurement of a warrant and in violation of the plain view doctrine.
Scioto App. No. 16CA3767 7
{¶15} “ ‘The Fourth Amendment to the United States Constitution and the Ohio
Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.’ ” State v.
Shrewsberry, 4th Dist. Ross No. 13CA3402, 2014-Ohio-716, ¶ 14, quoting State v. Emerson, 134
Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. “The Fourth Amendment protects the
individual’s actual and justifiable expectation of privacy from the ear and eye of the
government.” State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶ 13,
citing Smith v. Maryland, 442 U.S. 735, 740-741, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Katz v.
United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Accordingly, absent a
few well-delineated exceptions, the State is prohibited from making unreasonable intrusions into
areas where people have legitimate expectations of privacy without a search warrant. State v.
Bradford, 4th Dist. Adams No. 09CA880, 2010-Ohio-1784, ¶ 25, and cases cited therein.
{¶16} We begin by noting that “ ‘plain view’ is a term of art that has specific meaning in
the Fourth Amendment context.” Bradford at ¶ 35, citing Katz & Giannelli, Ohio Criminal Law
(2 Ed.), Section 16:3, “Plain View and open view distinguished.” “The plain view doctrine
applies to warrantless seizures, not warrantless searches. The open view doctrine applies where
an officer views an object that is not subject to a reasonable expectation of privacy. No search
occurs because the owner of the object has voluntarily exposed it to public view.” Id.; see also
State v. Johnson, 4th Dist. Athens No. 06CA34, 2007-Ohio-4662, ¶ 14 (“Generally, the police
are free to observe whatever may be seen from a place where they are entitled to be.”)
{¶17} As we explained in Bradford, supra, at ¶ 36 (citations omitted):
* * * When the police enter private property to conduct an investigation and they
restrict their movement to places where the public is expressly or implicitly
invited, they have not infringed upon any Fourth Amendment protection. In other
Scioto App. No. 16CA3767 8
words, home owners normally have a limited expectation of privacy in their
driveway, sidewalk, doorstep, or other normal routes of access to the home. Even
in the home and areas surrounding it, the Fourth Amendment does not protect
what one readily exposes to the open view of others, regardless of where that
exposure takes place.
{¶18} Here, the law enforcement officers travelled to the Wooten residence to conduct a
probation home check and were lawfully present on the property.4 While in the driveway of the
residence, officers observed the running vehicle, peered inside, and observed the active one-pot
methamphetamine lab in open view. The officers were able to view the contents of the vehicle
from an area that was expressly or implicitly open to public access, ie, the driveway. Thus, the
incriminating evidence was in “open view” of the officers.
{¶19} It is important to note that “while the observation of something that is in ‘open
view’ does not amount to a search, this discovery does not justify a subsequent warrantless
seizure absent some specific exception to the warrant requirement.” Bradford at ¶ 36. Here,
however, exigent circumstances justified the warrantless search of the vehicle.
{¶20} Exigent circumstances are a specifically established and well-delineated exception
to the Fourth Amendment search warrant requirement. State v. Miller, 4th Dist. Gallia No.
12CA4, 2013-Ohio-691, ¶ 8. “[C]ertain situations present exigent circumstances that justify a
warrantless search. Generally, there must be ‘compelling reasons’ or ‘exceptional circumstances’
to justify an intrusion without a warrant.” State v. Moore, 90 Ohio St.3d 47, 52, 734 N.E.2d 8044
Law enforcement is entitled to conduct a warrantless search of a probationer’s residence so long as reasonable
suspicion exists that evidence of criminal activity can be found at the residence. State v. Johnson, 2014-Ohio-5400,
26 N.E.3d 243, ¶ 14 (4th Dist.); R.C. 2951.02(A). Here, the officers had reasonable grounds to believe that the
probationer was residing at the Wooten residence, and that drug use and manufacturing was also occurring at the
property.
Scioto App. No. 16CA3767 9
(2000). 804, citing McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93 L.Ed. 153(1948).
{¶21} Regarding exigent circumstances arising from methamphetamine production
specifically, Ohio enacted R.C. 2933.33 which states:
(A) If a law enforcement officer has probable cause to believe that particular
premises are used for the illegal manufacture of methamphetamine, for the
purpose of conducting a search of the premises without a warrant, the risk of
explosion or fire from the illegal manufacture of methamphetamine causing injury
to the public constitutes exigent circumstances and reasonable grounds to believe
that there is an immediate need to protect the lives, or property, of the officer and
other individuals in the vicinity of the illegal manufacture.
This Court has previously determined that R.C. 2933.33(A) allows officers to conduct
warrantless searches when they have probable cause to believe methamphetamine production is
occurring. See State v. Robinson, 4th Dist. Lawrence No. 13CA18, 2015-Ohio-2635, ¶¶ 50-53.
{¶22} In the case sub judice, law enforcement officers observed an active one-pot
methamphetamine lab in the center console of the vehicle. This fact, along with the relevant
background information that brought them to the residence in the first place, constituted
sufficient probable cause that evidence of methamphetamine production would be found in the
vehicle. Accordingly, the search of the vehicle was supported by probable cause and the lack of a
search warrant was excused by the exigent circumstances and R.C. 2933.33(A).
{¶23} In sum, we conclude that law enforcement, while properly on the property,
observed in open view an active one-pot methamphetamine lab inside the vehicle. This
Scioto App. No. 16CA3767 10
observation coupled with the information that methamphetamine was being used and
manufactured at the location, constituted probable cause that methamphetamine was being
produced in the vehicle. Furthermore, given the volatile and flammable nature of clandestine
methamphetamine labs and the enactment of R.C. 2933.33(A), we conclude that the warrantless
search of the vehicle was proper under the exigent circumstance exception to the warrant
requirement. Accordingly, the trial court did not err in overruling Scroggins’s motion to suppress
evidence, and Scroggins’s first assignment of error is overruled.
B. Second Assignment of Error: Juror Impartiality
{¶24} In his second assignment of error, Scoggins contends that he was denied his right
to a fair trial because he had to use peremptory challenges to remove four jurors who he asserts
should have been removed for cause. Scoggins argues that because he had to use peremptory
challenges in this way, he was denied the effective use of his challenges and was thus denied a
fair trial.
{¶25} In the case sub judice, Scoggins moved to strike five jurors for cause. When the
trial court refused to remove the jurors for cause, Scoggins used four of his five peremptory
challenges to remove four of the challenged jurors. The fifth peremptory challenge was used on a
juror that had not been previously challenged for cause. Scoggins then requested an additional
peremptory challenge to remove the remaining juror he had previously moved to strike for cause
(Juror Andrew Scott). The trial court refused to allow the additional peremptory challenge.
{¶26} In addressing a prejudice claim similar to Scoggins’s, the Ohio Supreme Court
stated as follows:
Scioto App. No. 16CA3767 11
* * * [A]ny claim that the jury was not impartial is not focused on the juror
excused by the exercise of the peremptory challenge, but rather is focused on the
jurors who ultimately sat. Therefore, in order to state a constitutional violation in
this situation, the defendant must use all of his peremptory challenges and
demonstrate that one of the jurors seated was not impartial.
State v. Broom, 40 Ohio St.3d 277, 288, 533 N.E.2d 682 (1988), citing Ross v. Oklahoma, 487
U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).
{¶27} Here, Scoggins did exercise all of his peremptory challenges but he failed to
demonstrate that one of the jurors seated was not impartial. Although Scoggins challenged Juror
Andrew Scott for cause, and Scott was ultimately seated on the jury, the record does not support
Scoggins’s contention that Juror Scott was not impartial.
{¶28} During the course of voir dire it was learned that Juror Scott was a cousin of
Payton Scott, one of the State’s witnesses in this case.5 When questioned further, Juror Scott
indicated that he was “not real close” to Payton Scott and did not know about the case. Juror
Scott also stated that he could be fair and impartial despite his relation to Payton Scott, and that
he would not give her testimony any more weight than any other witness. After being challenged
for cause, Juror Scott again stated he could be fair and impartial.
{¶29} R.C. 2945.25(D) provides that a prospective juror may be challenged for cause if
they are “related by consanguinity or affinity within the fifth degree” to the victim of the crime,
the alleger, or to the defendant. “There is no [statutory] provision that a potential juror would be
disqualified for being related to a witness.” Nolan v. Conseco Health Ins. Co., 7th Dist. Jefferson
Nos. 07JE30 & 07JE31, 2008-Ohio-3332, ¶ 142. Furthermore, “[a] trial court has broad
5
Juror Scott may have also been a cousin of Charles Wooten, another one of the State’s witnesses.
Scioto App. No. 16CA3767 12
discretion in determining a prospective juror’s ability to be impartial.” State v. Maxwell, 139
Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 94. Here, the trial court found based on Juror
Scott’s answers that he could be a fair and impartial juror. We think that conclusion is
reasonable.
{¶30} Thus, because Scoggins has failed to demonstrate that one of the seated jurors was
not impartial, we overrule his second assignment of error.
C. Third Assignment of Error: Alleged Discovery Violations
{¶31} In his third assignment of error, Scoggins contends that the trial court erred by
overruling his request to exclude the testimony of two of the State’s witnesses: James
Cunningham and Payton Scott. Specifically, Scoggins argues that the State violated Criminal
Rule 16 by failing to properly disclose the witnesses; by failing to disclose Scott’s prior felony
conviction; and by failing to produce Cunningham’s witness statement. Given these purported
violations, Scoggins argues that the witnesses’ testimony should have been excluded.
{¶32} The admission of evidence is within the sound discretion of the trial court. State v.
Jackson, 4th Dist. Washington No. 12CA16, 2013–Ohio–2628, ¶ 16; State v. Dixon, 4th Dist.
Scioto No. 09CA3312, 2010–Ohio–5032, ¶ 33, citing State v. Sage, 31 Ohio St.3d 173, 510
N.E.2d 343, (1987), paragraph two of the syllabus. An abuse of discretion involves more than an
error of judgment; it connotes an attitude on the part of the court that is unreasonable,
unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio
St.3d 498, 506, 589 N.E.2d 24 (1992); Wilmington Steel Products, Inc. v. Cleveland Elec.
Illuminating Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). When applying the abuse of
discretion standard, a reviewing court is not free to merely substitute its judgment for that of the
trial court. In re Jane Doe 1, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991), citing Berk v.
Scioto App. No. 16CA3767 13
Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). Accord State v. Huff, 4th Dist.
Scioto No. 14CA3596, 2015-Ohio-5589, ¶ 12.
{¶33} Furthermore, the control of discovery and sanctions for violations of that process
are generally left to the discretion of the trial court. State v. Bennington, 4th Dist. Adams No.
12CA956, 2013–Ohio–3772, ¶ 28, citing State v. Craig, 4th Dist. Gallia No. 01CA8, 2002 WL
1666225, ¶ 33 (Mar. 26, 2002); see also State v. Otte, 74 Ohio St.3d 555, 563, 660 N.E.2d 711(1996). Accord Huff, at ¶ 13.
1. James Cunningham
{¶34} Prior to James Cunningham taking the witness stand, Scoggins requested that the
trial court exclude his testimony because the State had allegedly not disclosed him as a witness
until a week prior to trial. Furthermore, Scoggins’s counsel represented to the trial court that he
had interviewed Cunningham and that Cunningham could not recollect pertinent dates relevant to
the case. Thus, Scoggins argued that his testimony should be excluded because he did not have
personal knowledge of the events. Finally, Scoggins argued that Cunningham had provided a
witness statement to law enforcement and that the statement had not been produced or presented
to the defense during the course of discovery. The trial court denied Scoggins’s request, and
Cunningham testified at trial.
{¶35} Crim.R. 16 imposes on the prosecutor a duty to disclose certain information upon
a proper discovery request made by the defendant and this includes discovery of witness names,
addresses, and records of criminal convictions. Crim.R. 16(I); Crim.R. 16(B)(2). The duty to
disclose information pursuant to a proper discovery request is continuous. Crim.R. 16(A).
Further, Crim.R. 16(L), which governs regulation of discovery, provides as follows:
Scioto App. No. 16CA3767 14
(1) The trial court may make orders regulating discovery not inconsistent with this
rule. If at any time during the course of the proceedings it is brought to the
attention of the court that a party has failed to comply with this rule or with an
order issued pursuant to this rule, the court may order such party to permit the
discovery or inspection, grant a continuance, or prohibit the party from
introducing in evidence the material not disclosed, or it may make such other
order as it deems just under the circumstances.
{¶36} First, we note that the record does not demonstrate that Cunningham was only
disclosed to the defense a week before trial. Rather, the State filed a supplemental response to
discovery on August 4, 2016, which listed Cunningham as a witness and included his address.
Thus, Cunningham was disclosed two and half weeks prior to trial and a violation of Crim.R. 16
did not occur in this respect.
{¶37} Next, Scoggins argues that he was completely taken by surprise when
Cunningham took the stand at trial and made statements that contradicted statements he had
previously made to defense counsel during trial preparations. He argues that he was prejudiced
because the State never produced Cunningham’s written statement to the defense during
discovery, and he could have used the statement to impeach Cunningham’s credibility.
{¶38} Crim.R. 16(B)(7) requires the disclosure of “[a]ny written or recorded statements
by a witness in the state’s case-in-chief, or that it reasonably anticipates calling as a witness in
rebuttal.” However, a writing or recording is only a statement for purposes of Crim.R. 16 if the
witness prepared, signed, or adopted the statement; or if it is a substantially verbatim recital of
the witness’s statement written in a continuous, narrative form. State v. Cunningham, 105 Ohio
St.3d 197, 2004–Ohio–7007, 824 N.E.2d 504, ¶ 44; State v. Phillips, 4th Dist. Pickaway Nos.
Scioto App. No. 16CA3767 15
89–CA–32 & 89 CA–33, 1992 WL 42790, *5 (Mar. 5, 1992); State v. Johnson, 62 Ohio App.2d
31, 403 N.E.2d 1003 (6th Dist.1978), paragraph one of the syllabus; State v. Moore, 74 Ohio
App.3d 334, 340, 598 N.E.2d 1224 (10th Dist.1991). Conversely, notes taken by a prosecutor,
which are not reviewed, adopted or signed by the witness, do not constitute discoverable
statements within the meaning of Crim.R. 16. State v. Henry, 37 Ohio App.3d 3, 523 N.E.2d 877(6th Dist.1987), paragraph three of the syllabus. In fact, the Henry court concluded that
prosecutor notes of witness interviews are work product, not witness statements. Id. at 8. The
General Assembly has expressly declared work product non-discoverable under Crim.R. 16. See
Crim.R. 16(J)(1) (“The following items are not subject to disclosure under this rule: (1) Materials
subject to the work product protection. Work product includes, but is not limited to, reports,
memoranda, or other internal documents made by the prosecuting attorney or defense counsel, or
their agents in connection with the investigation or prosecution or defense of the case; * * *.”).
Moreover, the General Assembly has made clear that a document prepared by a person other
than the witness is not a witness statement unless “explicitly adopted by the witness.” Crim.R.
16(B)(6).
{¶39} Upon reviewing the record in the case sub judice, it is clear that the document at
issue contains the notes of a conversation between Cunningham, an assistant prosecutor, and an
investigator. This discussion during Cunningham’s trial preparation was not reduced to written
form prepared, adopted, or signed by Cunningham – and thus did not constitute a written
statement. Rather, the document contained attorney notes made during witness preparation and
was clearly work product expressly protected from disclosure.
{¶40} Even if we were to assume, arguendo, that the State’s failure to disclose the
document is in fact a Crim.R. 16 violation; we would still conclude that the trial court did not
Scioto App. No. 16CA3767 16
abuse its discretion by denying Scoggins’s request to exclude the testimony. Prosecutorial
violations of Crim.R. 16 result in reversible error only when there is a showing that (1) the
violation was willful, (2) disclosure of the information prior to trial would have aided the
accused’s defense, and (3) the accused suffered prejudice. State v. Jackson, 107 Ohio St.3d 53,
2005–Ohio–5981, 836 N.E.2d 1173, ¶ 131; State v. Scott, 4th Dist. Adams No. 05CA809, 2006–
Ohio–3527, ¶ 16.
{¶41} Here, disclosure of the document prior to trial would not have aided Scoggins’s
defense. The State provided Scoggins with Cunningham’s name and contact information well in
advance of trial. The defense contacted Cunningham and conducted its own pretrial interview.
Plus, Scoggins had the opportunity to cross-examine Cunningham and to challenge the reliability
of his testimony by confronting Cunningham with his prior statements made at the pretrial
interview with defense counsel. In short, Scoggins has failed to indicate how prior knowledge of
the document would have aided his defense.
{¶42} In sum, the State did not violate Crim.R. 16 with regards to witness Cunningham.
Alternatively, even if a Crim.R. 16 violation did occur, it did not rise to the level of reversible
error. Therefore, the trial court’s decision to deny Scoggins’s request to exclude the testimony
was not an abuse of discretion.
2. Payton Scott
{¶43} Once Scott was on the witness stand, but prior to commencement of her
testimony, defense counsel objected stating: “I’m not sure who this is?” It also became clear that
defense counsel was unaware if Scott had a prior criminal record. Ultimately, Scott was
permitted to testify. On appeal, Scoggins contends that Scott’s testimony should have been
Scioto App. No. 16CA3767 17
excluded because she was never properly disclosed as a potential witness and because her
criminal record was never properly disclosed in pretrial discovery.
{¶44} As discussed above, the State is required to disclose certain information upon a
proper discovery request made by the defendant and this includes discovery of witness names,
addresses, and records of criminal convictions. Crim.R. 16(I); Crim.R. 16(B)(2). Here, in its
very first response to defendant’s request for discovery, filed March 31, 2016, the State listed
Scott in its list of witnesses expected at trial. The disclosure included Scott’s address, and noted
that it was unknown whether she had a criminal record. Then, in a supplemental response to
discovery, filed August 16, 2016, the State again listed Scott as an intended witness. The
disclosure included an updated address, and also revealed that Scott had a prior conviction for
“Tampering w/ Evidence” in Scioto County, Ohio, Case Number 13CR431B. Thus, a review of
the record reveals that the State complied with Crim.R. 16 and made the required disclosures as
it pertains to Scott. Accordingly, the trial court did not abuse its discretion by denying
Scoggins’s request to exclude Scott’s testimony.
{¶45} Based on the foregoing, we overrule Scoggins’s third assignment of error.
D. Fourth Assignment of Error: Motion for Mistrial/Prior Bad Acts
{¶46} In his fourth assignment of error, Scoggins contends that the trial court erred by
denying his motion for a mistrial. Specifically, Scoggins argues that Scott and the prosecuting
attorney examining Scott made improper remarks regarding prior bad acts that were inadmissible
under Evid.R. 404(B).
{¶47} On direct examination, Scott testified that Scoggins visited the Wooten residence
“daily” so he could “use meth and cook meth”. She further testified that Scoggins and her
brother, Charles Wooten, would often make methamphetamine “[a]cross the street in the woods.
Scioto App. No. 16CA3767 18
They always carried duffle bags.” On cross-examination, Scott clarified that she had also seen
the pair make methamphetamine “at the bottom of the driveway, [and] on the side of the house”,
and that they “carried bags back and forth across the street, and in the woods and to their cars.”
On re-direct, the prosecuting attorney phrased several questions with the lead “on the days they
made meth” or similar language. Defense counsel objected to the phrasing of those responses
and questions, but the trial court overruled the objections.
{¶48} After Scott was done testifying, and outside the presence of the jury, defense
counsel moved for a mistrial. He argued that Scott’s testimony that Scoggins and Wooten cook
meth daily was prejudicial. The trial court denied the motion. Now on appeal, Scoggins contends
that the trial court erred by denying his motion for a mistrial because the aforementioned
testimony of Scott, and the prosecutor’s remarks, were inadmissible prior bad acts evidence in
violation of Evid.R. 404(B).
{¶49} Whether or not to grant a mistrial is within the sound discretion of the trial court,
and its decision will not be reversed absent an abuse of that discretion. State v. Koon, 4th Dist.
Hocking No. 15CA17, 2016–Ohio–416, ¶ 26. “In general a mistrial should not be granted based
on an error or irregularity unless an accused’s substantial rights are adversely affected.” Id. at ¶
27.
{¶50} Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Similarly, R.C.
2945.59 provides:
Scioto App. No. 16CA3767 19
In any criminal case in which the defendant’s motive or intent, the absence of
mistake or accident on his part, or the defendant’s scheme, plan, or system in
doing an act is material, any acts of the defendant which tend to show his motive
or intent, the absence of mistake or accident on his part, or the defendant’s
scheme, plan, or system in doing the act in question may be proved, whether they
are contemporaneous with or prior or subsequent thereto, notwithstanding that
such proof may show or tend to show the commission of another crime by the
defendant.
{¶51} “Evid.R. 404 codifies the common law with respect to evidence of other acts of
wrongdoing. The rule contemplates acts that may or may not be similar to the crime at issue. If
the other act is offered for some relevant purpose other than to show character and propensity to
commit crime, such as one of the purposes in the listing, the other act may be admissible.
Another consideration permitting the admission of certain other-acts evidence is whether the acts
‘form part of the immediate background of the alleged act which forms the foundation of the
crime charged in the indictment’ and are ‘inextricably related’ to the crime.” (Citations
omitted.) State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 13,
quoting State v. Curry, 43 Ohio St.2d 66, 73, 330 N.E.2d 720 (1975). “Generally, evidence of
other acts is admissible if it is offered for a purpose other than to prove the character of a person
in order to show action in conformity with that character, Evid.R. 404(B), it is relevant when
offered for that purpose, Evid.R. 401, and the danger of unfair prejudice does not substantially
outweigh its probative value, Evid.R. 403.” State v. Kirkland, 140 Ohio St.3d 73, 2014–Ohio–
1966, 15 N.E.3d 818, ¶ 68, citing State v. Williams, 134 Ohio St.3d 521, 2012–Ohio–5695, 983
N.E.2d 1278, ¶ 20.
Scioto App. No. 16CA3767 20
{¶52} Upon reviewing the record, we find that the trial court did not abuse its discretion
by denying Scoggins’s motion for a mistrial. Scoggins’s prior acts were at least arguably
admissible to prove intent and identity under Evid.R. 404(B). The testimony that Scoggins’s had
a history of producing methamphetamine at the Wooten residence, and often used a duffle or tool
bag to carry the methamphetamine lab and materials, is useful evidence in establishing the
identity of the perpetrator because they “form part of the immediate background of the alleged
act which forms the foundation of the crime charged in the indictment” and which are
“inextricably related to the alleged criminal act.” See State v. Lowe, 69 Ohio St.3d 527, 531, 634
N.E.2d 616 (1994). The testimony was also useful in establishing the identity of the perpetrator
because they established a modus operandi identifiable with Scoggins. See State v. Jamison, 49
Ohio St.3d 182, 552 N.E.2d 180 (1990), syllabus (“Other acts forming a unique, identifiable plan
of criminal activity are admissible to establish identity under Evid.R. 404(B).”); State v.
Smith, 49 Ohio St.3d 137, 141, 551 N.E.2d 190 (1990) (“ ‘Other acts’ may be introduced to
establish the identity of a perpetrator by showing that he has committed similar crimes and that a
distinct, identifiable scheme, plan, or system was used in the commission of the charged
offense.”); Lowe, paragraph one of the syllabus (“To be admissible to prove identity through a
certain modus operandi, other-acts evidence must be related to and share common features with
the crime in question.”) Here, the other acts evidence share common characteristics with the facts
of this case, such that, it is useful in identifying the perpetrator. For instance, Scott testified that
Scoggins commonly utilized the Wooten residence to manufacture methamphetamine, and that
he often used a tool bag to carry his methamphetamine making supplies. Furthermore, the
testimony is useful to prove Scoggins’s intent to commit the offenses charged. Finally, we
Scioto App. No. 16CA3767 21
conclude that the danger of unfair prejudice did not substantially outweigh the probative value of
the evidence.
{¶53} In light of all of the foregoing, we find that the trial court did not err by denying
Scoggins’s motion for a mistrial. Scoggins’s fourth assignment of error is overruled.
E. Fifth Assignment of Error: Sufficiency of the Evidence
{¶54} In his fifth assignment of error, Scoggins contends that there is insufficient
evidence to support his convictions for aggravated possession of drugs/methamphetamine,
aggravated trafficking of methamphetamine, and endangering children.
{¶55} “When reviewing the sufficiency of the evidence, our inquiry focuses primarily
upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could
support a finding of guilt beyond a reasonable doubt.” State v. Davis, 4th Dist. Ross No.
12CA3336, 2013-Ohio-1504, ¶ 12. “The standard of review is whether, after viewing the
probative evidence and inferences reasonably drawn therefrom in the light most favorable to the
prosecution, any rational trier of fact could have found all the essential elements of the offense
beyond a reasonable doubt.” Id., citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). Therefore, when we review a sufficiency of the evidence claim in a criminal
case, we review the evidence in a light most favorable to the prosecution. State v. Hill, 75 Ohio
St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50(1993). A reviewing court will not overturn a conviction on a sufficiency of the evidence claim
unless reasonable minds could not reach the conclusion the trier of fact did. State v. Tibbetts, 92
Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739
N.E.2d 749 (2001).
Scioto App. No. 16CA3767 22
1. Aggravated Possession of Drugs/Methamphetamine and Aggravated Trafficking of
Methamphetamine
{¶56} Scoggins contends that there is insufficient evidence to convict him for
aggravated possession of methamphetamine, and aggravated trafficking of methamphetamine,
because all that was recovered by law enforcement was a liquid containing some amount of
methamphetamine; not methamphetamine in its raw, useable, or sellable form.
{¶57} It is undisputed that law enforcement discovered the one-pot methamphetamine
labs while the labs were still in the process of manufacturing methamphetamine. Thus, what was
recovered was a liquid substance. The liquid substance was delivered to the Ohio Bureau of
Criminal Investigation (“BCI”), where further testing confirmed that the liquid contained
methamphetamine. At trial, both law enforcement officers and a scientist from BCI testified the
liquid substance was not yet in its final, useable form.
{¶58} Scoggins was charged and found guilty of aggravated possession of
drugs/methamphetamine, in violation of R.C. 2925.11, which provides, in pertinent part: “(A) No
person shall knowingly obtain, possess, or use a controlled substance or a controlled substance
analog.” Furthermore, R.C. 2925.11(C)(1) reads: “If the drug involved in the violation is a
compound, mixture, preparation, or substance included in schedule I or II, with the exception of
marihuana, cocaine, L.S.D., heroin, hashish, and controlled substance analogs, whoever violates
division (A) of this section is guilty of aggravated possession of drugs. * * *.” Scoggins was also
charged and found guilty of aggravated trafficking of methamphetamine, in violation of R.C.
2925.03. R.C. 2925.03 provides, in pertinent part: “(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 analog, when the offender knows or
Scioto App. No. 16CA3767 23
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.” Furthermore, R.C. 2925.03(C)(1)
reads: “If the drug involved in the violation is a compound, mixture, preparation, or substance
included in schedule I or schedule II, with the exception of marihuana, cocaine, L.S.D., heroin,
hashish, and controlled substance analogs, whoever violates division (A) of this section is guilty
of aggravated trafficking in drugs. * * *.”
{¶59} Methamphetamine is defined in the Revised Code as “any salt, isomer, or salt of
an isomer of methamphetamine, or any compound, mixture, preparation, or substance containing
methamphetamine or any salt, isomer, or salt of an isomer of methamphetamine.” R.C.
2925.01(II). In Ohio, methamphetamine is treated as a Schedule II controlled substance. See R.C.
3719.41.
{¶60} Recently, the Eleventh District Court of Appeals was taxed with determining
whether a liquid precursor to methamphetamine is in fact methamphetamine as defined by Ohio
statutory law. See State v. Thomason, 11th Dist. Ashtabula No. 2016-A-0027, 2017-Ohio-7447.
In Thomason, the Eleventh District stated, in pertinent part:
R.C. 2925.01(I)(I) presupposes that, regardless of the conditional medium, a
compound, mixture, preparation, or substance must contain methamphetamine to
be considered, as a matter of law, methamphetamine. Although a precursor, by
definition, is the substance from which methamphetamine is formed, there was
still some amount of methamphetamine in the mixture. And, while the precursor
may not have been usable methamphetamine and its weight contributed to a more
elevated charge, the unambiguous language of R.C. 2925.01(I)(I) states that a
mixture or substance that contains methamphetamine is methamphetamine. The
Scioto App. No. 16CA3767 24
precursor (qua mixture, substance, or preparation) seized during the search
contained some undisclosed amount of methamphetamine and, as a result, it is
methamphetamine as defined by the legislature. * * *
(Emphasis sic.) Id. at ¶ 33.
{¶61} We agree with our sister district that the unambiguous language of R.C.
2925.01(I)(I) states that a mixture or substance that contains methamphetamine is
methamphetamine as a matter of law. Accordingly, because the evidence in this case establishes
that the liquid recovered from the one-pot labs contained some amount of methamphetamine,
sufficient evidence existed to support the aggravated drug possession and aggravated drug
trafficking charges.
2. Endangering Children
{¶62} Scoggins also contends that there is insufficient evidence to support his
conviction for endangering children because he did not allow a person under the age of 18 to be
on the same parcel of real estate as the methamphetamine labs. We disagree.
{¶63} Scoggins was indicted and found guilty of endangering children in violation of
R.C. 2919.22(B)(6), which provides:
(B) No person shall do any of the following to a child under eighteen years of age
or a mentally or physically handicapped child under twenty-one years of age:
***
(6) Allow the child to be on the same parcel of real property and within one
hundred feet of, or, in the case of more than one housing unit on the same parcel
Scioto App. No. 16CA3767 25
of real property, in the same housing unit and within one hundred feet of, any act
in violation of section 2925.04 or 2925.041 of the Revised Code when the person
knows that the act is occurring, whether or not any person is prosecuted for or
convicted of the violation of section 2925.04 or 2925.041 of the Revised Code
that is the basis of the violation of this division.
{¶64} At trial, Scott, Wooten, and two law enforcement officers testified that Scott’s 7
month-old child was present in the Wooten residence at the time of the incident. Scott and
Wooten further testified that Scoggins was a daily visitor to the property, and knew that Scott’s
minor child also resided there. Furthermore, Scott testified that on the day of the incident
Scoggins ran through the residence just prior to the arrival of law enforcement, and had a brief
interaction with Scott who was with the child. Finally, “[t]he statute does not require the [S]tate
to prove [that defendant] had authority or the ability to control the child * * *.” State v. Burns,
2016-Ohio-7375, 72 N.E.3d 1068, ¶ 35 (5th Dist.). Accordingly, after viewing the evidence in
the light most favorable to the prosecution, there existed sufficient evidence for the trier of fact
to conclude that Scoggins allowed a minor child to be present on the property where the
methamphetamine labs were located.
{¶65} For the aforementioned reasons, Scoggins’s fifth assignment of error is overruled.
F. Sixth Assignment of Error: Manifest Weight of the Evidence
{¶66} In his sixth assignment of error, Scoggins contends that his conviction for the
illegal manufacture of methamphetamine is against the manifest weight of the evidence; and that
the vicinity of a juvenile enhancements placed upon the counts of aggravated trafficking of
Scioto App. No. 16CA3767 26
methamphetamine, illegal manufacture of methamphetamine, and illegal assembly or possession
of chemicals for the manufacture of drugs are against the manifest weight of the evidence.
{¶67} “When an appellate court considers a claim that a conviction is against the
manifest weight of the evidence, the court must dutifully examine the entire record, weigh the
evidence, and consider the credibility of witnesses.” State v. Topping, 4th Dist. Lawrence No.
11CA6, 2012–Ohio–5617, ¶ 60. “The reviewing court must bear in mind, however, that
credibility generally is an issue for the trier of fact to resolve.” Id., citing State v. Issa, 93 Ohio
St.3d 49, 67, 752 N.E.2d 904 (2001); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus.
{¶68} “Once the reviewing court finishes its examination, the court may reverse the
judgment of conviction only if it appears that the fact-finder, when resolving the conflicts in
evidence, clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” (Quotations omitted.) Id. “A reviewing
court should find a conviction against the manifest weight of the evidence only in the exceptional
case in which the evidence weighs heavily against the conviction.” (Quotations omitted.) Id. at ¶
61.
1. Illegal Manufacture of Methamphetamine
{¶69} Scoggins, in the case sub judice, was found guilty of the illegal manufacture of
methamphetamine in violation of R.C. 2925.04(A). R.C. 2925.04(A) states, in relevant part, as
follows: “No person shall * * * knowingly manufacture or otherwise engage in any part of the
production of a controlled substance.” Scoggins argues that there was not competent and credible
evidence to establish that the methamphetamine labs and associated materials belonged to him,
or that he otherwise engaged in the production of methamphetamine.
Scioto App. No. 16CA3767 27
{¶70} In the case sub judice, there was clear evidence that three active one-pot
methamphetamine labs were present inside of the vehicle, as well as additional materials used to
manufacture methamphetamine. There was also testimony from Breech, Scoggins’s girlfriend,
that Scoggins was driving the vehicle in which the methamphetamine labs were discovered on
the day of the incident. Furthermore, both Scott and Wooten testified at trial that Scoggins
regularly drove the vehicle. Scott testified that the methamphetamine labs and chemicals found
in the vehicle belonged to Scoggins; and that Scoggins ran from the property just prior to law
enforcement’s arrival. Wooten testified that the tool bag, which contained two active one-pot
labs as well as materials used to manufacture methamphetamine, did not belong to him. Two law
enforcement officers testified that Scoggins’s wallet with his driver’s license, as well as a cell
phone belonging to Scoggins was also found inside the vehicle.
{¶71} Based on this evidence, we cannot say that the verdict here was against
the manifest weight of the evidence. The State presented credible evidence that Scoggins had a
possessory interest over the vehicle and its contents and that he was inside of the vehicle on the
day in question. Thus, the evidence, if believed, could convince reasonable jurors that Scoggins
was responsible for manufacturing the methamphetamine.
{¶72} We recognize that Scott and Wooten testified that they are drug users with
criminal records. We also recognize that they may have had an incentive to testify in this case.
Nonetheless, Scott’s and Wooten’s credibility was a matter for the jury to decide. See State v.
Fisher, 4th Dist. Jackson No. 11CA10, 2012-Ohio-6260, ¶ 9 (“[T]he weight of the evidence and
witness credibility are issues that the trier of fact must determine. * * * The rationale for this
view is that the trier of fact * * * is in the best position to view the witnesses and to observe their
demeanor, gestures and voice inflections and to use those observations to weigh credibility. * * *
Scioto App. No. 16CA3767 28
Consequently, a jury may choose to believe all, part or none of the witness testimony.”) The jury
apparently found Scott’s and Wooten’s testimony, or at least portions of it, to be credible. Even
if the jury did not find this testimony to be credible, more than enough evidence exists to support
the verdict. In other words, we do not believe that the evidence adduced at trial weighs heavily
against the conviction for the illegal manufacture of methamphetamine, or that the jury clearly
lost its way.
2. Vicinity of a Juvenile Enhancement
{¶73} As to the vicinity of a juvenile enhancement, Scoggins contends that the State
failed to put forth credible evidence that the offenses were committed within 100 feet of a
juvenile.
{¶74} As previously indicated, the jury determined that the aggravated trafficking of
methamphetamine, illegal manufacture of methamphetamine, and the illegal assembly offenses
were committed in the vicinity of a juvenile. These offenses allow for the enhancement of the
specified felony level if the offense occurs in the vicinity of a juvenile. See R.C.
2925.03(C)(1)(b)-(d); R.C. 2925.04(C)(3)(b); R.C. 2925.041(C).
{¶75} An offense is committed in the vicinity of a juvenile when the offender “commits
the offense within one hundred feet of a juvenile or within the view of a juvenile, regardless of
whether the offender knows the age of the juvenile, whether the offender knows the offense is
being committed within one hundred feet of or within view of the juvenile, or whether the
juvenile actually views the commission of the offense.” R.C. 2925.01(BB). A “juvenile” is
defined as “a person under eighteen years of age.” R.C. 2925.01(N).
{¶76} Here, two law enforcement officers testified at trial that they estimated the vehicle
with the active one-pot methamphetamine labs to be no more than 50 feet from the residence in
Scioto App. No. 16CA3767 29
which the minor child was present. The State also admitted as evidence photographs of the
scene, including one photograph showing the vehicle and the residence; thus allowing the jury to
reach its own conclusion regarding distance. There was also no evidence contradicting the
estimates made by law enforcement.
{¶77} Based upon the evidence presented, we find that the jury’s determinations
regarding the juvenile enhancements were supported by sufficient evidence and the jury
reasonably found the enhancements proven beyond a reasonable doubt.
{¶78} Scoggins’s sixth assignment of error is overruled.
G. Seventh and Eighth Assignments of Error: Merger Doctrine
{¶79} Given the similarity of the arguments, we will consider Scoggins’s seventh and
eighth assignments of error jointly. In his seventh assignment of error, Scoggins contends that
the trial court erred when it failed to merge the offense of illegal manufacture of
methamphetamine with the offense of illegal assembly or possession of chemicals for the
manufacture of drugs. He argues that it is impossible to manufacture methamphetamine without
possessing the materials to do it, and that he was not alleged to have committed the offenses on
separate days, locations, or times. In his eighth assignment of error, Scoggins contends that the
trial court erred by failing to merge the endangering children offense with the offenses of
aggravated trafficking, illegal manufacture of methamphetamine, and illegal assembly or
possession of chemicals for the manufacture of drugs, which all included a juvenile
enhancement. Scoggins timely made these arguments during his sentencing hearing, but the trial
court ultimately determined that only the aggravated trafficking and aggravated possession
counts merged with the illegal manufacture count. Thus, the trial court issued separate sentences
on the illegal manufacture count, the illegal assembly count, and the endangering children count.
Scioto App. No. 16CA3767 30
{¶80} “An appellate court should apply a de novo standard of review in reviewing a trial
court’s R.C. 2941.25 merger determination.” State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-
5699, 983 N.E.2d 1245, ¶ 28. “ ‘[T]he appellate court must * * * independently determine,
without deference to the conclusion of the trial court, whether the facts satisfy the applicable
legal standard.’ ” Id. at ¶ 26, quoting Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, at ¶ 8. The reviewing court owes no deference to the trial court’s application of the
law to the particular facts of the case being reviewed. Id.{¶81} R.C. 2941.25, Ohio’s multiple counts statute, provides:
(A) Where the same conduct by defendant can be construed to constitute two or
more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
{¶82} The statute codifies the protections of the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution, and Section 10, Article I of the Ohio Constitution,
which prohibits the imposition of multiple punishments for the same offense. State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. In other words, upon
finding one or more counts to constitute two or more allied offenses of similar import, R.C.
2941.25(A) requires that the convictions be merged for the purposes of sentencing and that the
Scioto App. No. 16CA3767 31
defendant only be sentenced on one of the counts. State v. Whitfield, 124 Ohio St.3d 319, 2010-
Ohio-2, 922 N.E.2d 182, ¶ 5.
{¶83} The Ohio Supreme Court recently clarified the applicable analysis in determining
when two offenses merge under R.C. 2941.25 in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-
995, 34 N.E.3d 892. “In determining whether offenses are allied offenses of similar import
within the meaning of R.C. 2941.25, courts must evaluate three separate factors – the conduct,
the animus, and the import.” Id. at paragraph one of the syllabus. “Under R.C. 2941.25(B), a
defendant whose conduct supports multiple offenses may be convicted of all the offenses if any
one of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the
conduct shows that the offenses were committed separately, or (3) the conduct shows that the
offenses were committed with separate animus.” Id. at paragraph three of the syllabus.
1. Whether the illegal assembly or possession of chemicals count should have merged with
the illegal manufacture of methamphetamine count for purposes of sentencing
{¶84} This Court has recently addressed this issue in State v. Evans-Goode, 4th Dist.
Meigs No. 15CA10, 2016-Ohio-5361. Evans-Goode is a case involving charges of illegal
assembly or possession of chemicals, as well as manufacturing of methamphetamine, which
stemmed from a single encounter with law enforcement. Id. at ¶ 34. In Evans-Goode, we
concluded that the two counts did not merge where the record indicated that “law enforcement
found an abundance of additional ingredients scattered throughout the residence ‘over and
above’ what was used for the * * * cook.” Id. at ¶ 31.
{¶85} Similar to the facts before us in Evans-Goode, supra, the record evidence in the
case sub judice indicates that while three active one-pot methamphetamine labs were found in
the vehicle, various precursor items used in the manufacture of methamphetamine were also
Scioto App. No. 16CA3767 32
present in the vehicle in an amount over and above what was used in the three labs. Specifically,
law enforcement officers who conducted the search of the vehicle clearly testified that the
vehicle contained quantities of chemicals over and above those used in the manufacture of the
three one-pots that were located in the vehicle.
{¶86} Detective Sergeant Joshua Justice of the Southern Ohio Drug Task Force testified
that the vehicle contained a full container of Coleman camp fuel, a container of lye that was a
quarter full, a container of liquid drain cleaner that was halfway full, a container of rock salt that
was a quarter full, three full containers of starting fluid, coffee filters, plastic tubing, and three
instant cold packs. Detective Sergeant Justice further testified that these materials are used to
manufacture methamphetamine, and that the active one-pots found in the vehicle were past the
stage of needing all these materials except for the rock salt and the liquid drain cleaner. Detective
Bower testified similarly.
{¶87} We conclude that the record evidence indicates that Scoggins was in possession of
several materials used to manufacture methamphetamine over and above the quantities used in
the methamphetamine manufactured by the three active one-pots. Thus, we conclude that the
offenses at issue were committed with a separate animus and are not allied offenses of similar
import subject to merger. As such, we cannot conclude that the trial court erred by failing to
merge the offense of illegal manufacture of methamphetamine with the offense of illegal
assembly or possession of chemicals for the manufacture of drugs for the purposes of sentencing.
2. Whether the endangering children count should have merged with the remaining counts
for purposes of sentencing
{¶88} In his eighth assignment of error, Scoggins argues that because the offenses for
the illegal manufacture of methamphetamine, the illegal assembly or possession of chemicals,
Scioto App. No. 16CA3767 33
and aggravated trafficking of methamphetamine were enhanced by the fact that they were
committed in the vicinity of a juvenile, the offense of endangering children should be merged
with those offenses for purposes of sentencing. In other words, he argues that he was punished
multiple times for the same conduct because the element enhancing his illegal manufacture of
methamphetamine offense, illegal assembly offense, and aggravated trafficking of
methamphetamine offense to higher degree felonies – the drug involved is methamphetamine
and the offense was committed in the vicinity of a juvenile – also resulted in his offense of
endangering children. We disagree.
{¶89} This Court has previously held that: “[W]hen the drug is methamphetamine and
the offense is committed in the vicinity of a juvenile, the General Assembly intended that a
defendant convicted of illegal manufacture of drugs could also be convicted of endangering
children and sentenced for both crimes.” State v. Greer, 4th Dist. Jackson No. 13CA2, 2014-
Ohio-2174, ¶ 2. In Greer, we noted that an analysis of whether the offenses of illegal
manufacture of drugs and endangering children were allied offenses of similar import was
unnecessary because the endangering children statute clearly indicated the legislature’s intent to
allow multiple punishments for violations of that statute and the offense of illegal manufacturing
of drugs when the drug is methamphetamine and the offense was committed within 100 feet of a
child. Id. at ¶¶ 10-11; see also State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d
603, ¶ 10 (saying that it is not necessary to apply the allied offense test when the legislature’s
intent is clear from the language of the statute).
{¶90} R.C. 2925.04(A) prohibits any person from knowingly manufacturing or
otherwise engaging in any part of the production of a controlled substance. If the drug involved
is methamphetamine, the offense of illegal manufacture of drugs is a felony of the first degree “if
Scioto App. No. 16CA3767 34
the offense was committed in the vicinity of a juvenile, in the vicinity of a school, or on public
premises.” R.C. 2925.04(C)(3)(b). Likewise, R.C. 2925.041(A) prohibits any person from
knowingly assembling or possessing one or more chemicals that may be used to manufacture a
schedule I or II controlled substance with the intent to manufacture. The offense of illegal
assembly or possession of chemicals for the manufacture of drugs is a felony of the second
degree “[i]f the offense was committed in the vicinity of a juvenile or in the vicinity of a school *
* *.” R.C. 2925.041(C). Furthermore, if the offense of illegal assembly or possession of
chemicals for the manufacture of drugs is a felony of the second degree and the chemical or
chemicals assembled or possessed in committing the violation may be used to manufacture
methamphetamine, the court must impose a mandatory prison term. R.C. 2925.041(C)(2).
{¶91} R.C. 2919.22, which defines the offense of endangering children, specifies in
subdivision (B) that “[n]o person shall do any of the following to a child under eighteen years of
age or a mentally or physically handicapped child under twenty-one years of age: * * * (6) Allow
the child to be on the same parcel of real property and within one hundred feet of * * * any act in
violation of section 2925.04 or 2925.041 of the Revised Code when the person knows that the act
is occurring, whether or not any person is prosecuted for or convicted of the violation of section
2925.04 or 2925.041 of the Revised Code that is the basis for the violation of this division.
(Emphasis added.)
{¶92} The plain language of R.C. 2919.22(B)(6) authorizes an endangering children
conviction regardless of whether the same conduct also results in a conviction for illegal
manufacture of drugs under R.C. 2925.04 or illegal assembly or possession of chemicals for the
manufacture of drugs under R.C. 2925.041. See Greer at ¶ 14. “These specific provisions were
legislatively adopted in S.B. 58, effective August 2004, after the legislative adoption of the
Scioto App. No. 16CA3767 35
general merger provision of R.C. 2941.25(A).” Id. “Insofar as these detailed provision conflict
with the general provision in R.C. 2941.25(A), R.C. 2919.22(B)(6), [R.C. 2925.041] and 2925.04
prevail.” Id., citing Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943
N.E.2d 522, ¶ 26, and Chesapeake Exploration, L.L.C. v. Oil & Gas Comm., 135 Ohio St.3d 204,
2013-Ohio-224, 985 N.E.2d 480, ¶ 18.
{¶93} Thus, based on our prior holdings and statutory interpretation, we conclude that
the General Assembly intended that a defendant convicted of illegal manufacture of
methamphetamine in the vicinity of a juvenile and/or illegal assembly or possession of chemicals
for the manufacture of methamphetamine in the vicinity of a juvenile could also be convicted of
endangering children and sentenced for both crimes. Therefore, the multiple punishments in this
case do not violate the constitutional prohibition against double jeopardy or the provisions of the
Ohio allied offenses statute. Finally, we need not address whether merger of the endangering
children offense and the aggravated trafficking of methamphetamine offense is appropriate,
because Scoggins was not sentenced on the aggravated trafficking of methamphetamine offense.
{¶94} Based on the foregoing, Scoggins’s seventh and eighth assignments of error are
overruled.
H. Ninth Assignment of Error: Felony Sentencing
{¶95} In his ninth assignment of error, Scoggins contends that the trial court erred in
sentencing him. Specifically, he argues “the trial court erred in imposing consecutive prison
terms amounting to twenty-two (22) years out of a possible twenty-five (25)”.
{¶96} When reviewing felony sentences, we apply the standard of review set forth
in R.C. 2953.08(G)(2). State v. Brewer, 2014–Ohio–1903, 11 N.E.3d 317, ¶ 33 (4th Dist.) (“we
join the growing number of appellate districts that have abandoned the Kalish plurality’s second
Scioto App. No. 16CA3767 36
step abuse-of-discretion standard of review; when the General Assembly
reenacted R.C. 2953.08(G)(2), it expressly stated that ‘[t]he appellate court’s standard of review
is not whether the sentencing court abused its discretion’ ”); see also State v. Graham, 4th Dist.
Highland No. 13CA11, 2014–Ohio–3149, ¶ 31. R.C. 2953.08(G)(2) specifies that an appellate
court may increase, reduce, modify, or vacate and remand a challenged felony sentence if the
court clearly and convincingly finds either that “the record does not support the sentencing
court’s findings” under the specified statutory provisions or “the sentence is otherwise contrary
to law.”
{¶97} Here, it appears that the sentences Scoggins received were within the statutory
range for each offense, thus it cannot be said that the length of the sentences are contrary to law.
Further, with respect to the trial court’s decision to order the sentences be served consecutively,
under the tripartite procedure set forth in R.C. 2929.14(C)(4) for imposing consecutive
sentences, the trial court had to find that (1) consecutive sentences are necessary to protect the
public from future crime or to punish the offender; (2) consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses
to the public; and (3) that one of three circumstances specified in the statute applies. See
generally State v. Baker, 4th Dist. Athens No. 13CA18, 2014–Ohio–1967, ¶¶ 35–36. The trial
court is required to make these findings at the sentencing hearing and to incorporate its findings
in its sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.3d 659,
syllabus. “The trial court need not use talismanic words to comply with R.C. 2929.14(C)(4), but
it must be clear from the record that the trial court actually made the required findings.” State v.
Campbell, 4th Dist. Adams No. 13CA969, 2014–Ohio–3860, ¶ 25.
Scioto App. No. 16CA3767 37
{¶98} Furthermore, the trial court does not have any obligation under R.C.
2929.14(C)(4) to state reasons to support its findings to impose consecutive sentences. Bonnell at
syllabus (“In order to impose consecutive terms of imprisonment, a trial court is required to
make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its
findings into its sentencing entry, but it has no obligation to state reasons to support its
findings”).
{¶99} With the foregoing in mind, we reject Scoggins’s assertion that consecutive
sentences were unwarranted. Here, the trial court’s sentencing entry stated that it had considered
the principles and purposes of sentencing under R.C. 2929.11(A)(B) and (C), had considered and
balanced the seriousness and recidivism factors under R.C. 2929.12(B)–(E), had considered the
factors in R.C. 2929.13, and had found a presumption in favor of prison. The trial court further
found, correctly, that the convictions for the illegal manufacture of methamphetamine, in the
vicinity of a juvenile, and illegal assembly or possession of materials for the manufacture of
methamphetamine, in the vicinity of a juvenile, required mandatory prison sentences. Finally, the
trial court expressly found at the sentencing hearing, and in its sentencing entry, (1) that
consecutive sentences were necessary to protect the public from future crime or to punish the
offender; (2) that consecutive sentences were not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public; and (3) that the
defendant’s criminal history shows that consecutive terms are needed to protect the public from
future crime by the defendant. Thus, the trial court made the required findings before imposing
consecutive sentences and further, the trial court was under no obligation to state its reasons for
making its findings.
Scioto App. No. 16CA3767 38
{¶100} In short, the trial court considered all of the pertinent statutes, balanced all of the
pertinent factors, and made all of the necessary findings before imposing consecutive sentences.
Accordingly, we cannot conclude that the imposition of consecutive sentences was contrary to
law or unsupported by the record. Scoggins’s ninth assignment of error is overruled.
I. Plain Error - Verdict Forms and Sentencing Entry
{¶101} After reviewing the record, we have discovered a matter that must be addressed
related to the verdict forms and sentencing entry. Specifically, as will be more fully discussed,
infra, the two verdict forms relating to the offenses of aggravated trafficking of
methamphetamine and aggravated possession of drugs/methamphetamine, and the sentencing
entry memorializing the jury’s findings on those offenses, incorrectly state the degree of the
offenses. As such, we have decided to sua sponte invoke the “plain error” rule. Crim.R.
52(B) states that although a defendant may have failed to raise a timely objection to an error
affecting a substantial right, courts may notice the error.
{¶102} For a reviewing court to find plain error: (1) there must be an error, i.e., “a
deviation from a legal rule”; (2) the error must be plain, i.e., “an ‘obvious’ defect in the trial
proceedings”; and (3) the error must have affected “substantial rights,” i.e., it must have affected
the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
Furthermore, the Ohio Supreme Court has admonished courts that notice of plain error
under Crim.R. 52(B) is to be taken “ ‘with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice.’ ” Id., quoting State v. Long, 53 Ohio St.2d
91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶103} R.C. 2945.75(A)(2) provides:
Scioto App. No. 16CA3767 39
When the presence of one or more additional elements makes an offense one of
more serious degree: * * * A guilty verdict shall state either the degree of the
offense of which the offender is found guilty, or that such additional element or
elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of
the least degree of the offense charged.
See also State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, syllabus (“[A]
verdict form signed by a jury must include either the degree of the offense of which the
defendant is convicted or a statement that an aggravating element has been found to justify
convicting a defendant of a greater degree of criminal offense.”). Similarly, when a verdict form
includes some aggravating elements, but not others, a defendant may only be convicted of the
least degree of the offense including those elements in the verdict form. See State v. Ligon, 179
Ohio App.3d 544, 2008-Ohio-6085, 902 N.E.2d 1011, ¶ 20 (3d Dist.).
{¶104} Here, the first verdict form at issue reads: “We, the jury, having been duly
impaneled, find beyond a reasonable doubt, the defendant, Ronald Scoggins, Guilty of Count 1
of the indictment, Aggravated Trafficking of Methamphetamine, a violation of Ohio Revised
Code Section 2925.03(A)(2), 2925.03(C)(1)(f).” The verdict form further reads: “We, the jury,
further find beyond a reasonable doubt the drugs were: * * * Equal to or exceeding 5 times the
bulk amount and less than 50 times the bulk amount. We, the jury further find beyond a
reasonable doubt that the offense was * * * committed in the vicinity of a juvenile.” The second
verdict form reads: “We, the jury, having been duly impaneled, find beyond a reasonable doubt,
the defendant, Ronald Scoggins, Guilty of Count 2 of the indictment, Aggravated Possession of
Drugs/Methamphetamine, a violation of Ohio Revised Code Section 2925.11(A),
2925.11(C)(1)(e), a felony of the first degree.” The verdict form further reads: “We, the jury,
Scioto App. No. 16CA3767 40
further find beyond a reasonable doubt that the weight of the drugs were: * * * Equal to or
exceeding 5 times bulk amount but less than 50 times bulk amount[.]”
{¶105} Likewise, the trial court’s sentencing entry states as follows:
The Court finds that the defendant pleaded not guilty and that the defendant has
been convicted by the jury of Count 1: Aggravated Trafficking of
Methamphetamine, in violation of Ohio Revised Code Section 2925.03 (A)(2),
2925.03 (C)(1)(f), a felony of the first degree. The Court finds that the Jury after
due deliberation found beyond a reasonable doubt that the drugs were equal to or
exceeding 5 times bulk amount and less than 50 times bulk amount. The
Court finds that the Jury after due deliberations further found the offense was
committed in the vicinity of a juvenile. Count 2: Aggravated Possession of
Drugs/Methamphetamine, in violation of Ohio Revised Code Section 2925.11
(A), 2925.11 (C)(1)(e), a felony of the first degree. The Court finds that the Jury
after due deliberation found beyond a reasonable doubt that the weight of the
drugs were equal to or exceeding 5 times the bulk amount but less than 50
times bulk amount. * * *
(Emphasis sic.)
{¶106} Here, with regards to the aggravated trafficking of methamphetamine count
(Count 1), the weight range the jury selected on the verdict forms supports a finding of guilt
under R.C. 2925.03(A)(2) / 2925.03(C)(1)(d); not under R.C. 2925.03(C)(1)(f) as stated in the
verdict form and on the sentencing entry.6 However, because the verdict form also includes a
6
R.C. 2925.03(C)(1)(d) provides: “[I]f the amount of the drug involved equals or exceeds five times the bulk
amount but is less than fifty times the bulk amount, aggravated trafficking in drugs is a felony of the second degree
* * *.” R.C. 2925.03(C)(1)(f) provides: “If the amount of the drug involved equals or exceeds one hundred times the
bulk amount * * * aggravated trafficking in drugs is a felony of the first degree * * *.”
Scioto App. No. 16CA3767 41
finding that the offense was committed in the vicinity of a juvenile, the offense is ultimately a
felony of the first degree. See R.C. 2925.03(C)(1)(d) (“If the amount of the drug involved is
within that range and if the offense was committed in the vicinity of a school or in the vicinity of
a juvenile, aggravated trafficking in drugs is a felony of the first degree, and the court shall
impose as a mandatory prison term one of the prison terms prescribed for a felony of the first
degree.”) However, a distinction between a finding of guilt under R.C. 2925.03(C)(1)(d) and
R.C. 2925.03(C)(1)(f) is still necessary in this case, because a finding of guilt under R.C.
2925.03(C)(1)(f) requires that the defendant be classified as a major drug offender, whereas a
conviction under R.C. 2925.03(C)(1)(d) does not. Compare R.C. 2925.03(C)(1)(d) to R.C.
2925.03(C)(1(f).
{¶107} Likewise, with regards to the aggravated possession of drugs/methamphetamine
count (Count 2), the weight range the jury selected on the verdict form supports a finding of guilt
under R.C. 2925.11(A) / 2925.11(C)(1)(c); not under R.C. 2925.11(C)(1)(e) as stated in the
verdict form and on the sentencing entry.7 Thus, the weight range the jury selected on the verdict
form includes the range for a second-degree felony, not a first-degree felony as reflected in the
sentencing entry.
{¶108} The jury clearly found that Scoggins trafficked in and possessed
methamphetamine in an amount that equals or exceeds five times the bulk amount but is less
than fifty times the bulk amount. Therefore, Scoggins could only be convicted and sentenced
under R.C. 2925.03(C)(1)(d) and R.C. 2925.11(C)(1)(c), i.e., the least degree of the offenses
covered by the verdict forms.
7
R.C. 2925.11(C)(1)(c) provides: “If the amount of the drug involved equals or exceeds five times the bulk amount
but is less than fifty times the bulk amount, aggravated possession of drugs is a felony of the second degree * * *.”
R.C. 2925.11(C)(1)(e) provides: “If the amount of the drug involved equals or exceeds one hundred times the bulk
amount, aggravated possession of drugs is a felony of the first degree * * *.”
Scioto App. No. 16CA3767 42
{¶109} Accordingly, we conclude that the obvious errors in the verdict forms and the trial
court’s sentencing entry that incorrectly states that Scoggins was guilty under R.C.
2925.03(C)(1)(f) and R.C. 2925.11(C)(1)(e) in Counts 1 and 2 respectively, affected Scoggins’s
substantial rights and constitutes plain error. However, because those counts were merged with
Count 3 - the illegal manufacturing of methamphetamine count - we conclude that Scoggins was
never actually convicted of these counts. See State v. Whitfield, supra, at ¶ 12 (“[A] ‘conviction’
consists of a guilty verdict and the imposition of a sentence or penalty.”). Thus, we need not
vacate any sentences, nor remand the matter for resentencing. Nevertheless, pursuant to App.R.
9(E), we instruct that the trial court issue a nunc pro tunc sentencing entry that reduces the
degree of the offenses as to Counts 1 and 2 so as to accurately reflect the jury’s verdict.8
IV. Conclusion
{¶110} Having overruled all of Scoggins’s assignments of error for the reasons stated
above, we affirm the judgment of the trial court. As noted previously, the trial court should issue
a nunc pro tunc sentencing entry that reduces the degree of the offenses as to Counts 1 and 2 so
as to accurately reflect the jury’s verdict.
JUDGMENT AFFIRMED.
8
We note that trial courts retain continuing jurisdiction to correct clerical errors in judgments by nunc pro tunc entry
to reflect what the court actually decided. State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶
13.
Scioto App. No. 16CA3767 43
Harsha, J., concurring in part and dissenting in part:
{¶111} I would not exercise our discretion to consider plain error where Scoggins does
not raise it. See State v. Quarterman, 140 Ohio St.3d 464, 2014–Ohio–4034, 19 N.E.3d 900, ¶
17–20 (appellate court need not consider plain error where appellant fails to timely raise plain-
error claim); State v. Robinson, 4th Dist. Washington No. 16CA22, 2017-Ohio-8273, ¶ 34. This
is consistent with the principle pronounced by the Supreme Court of Ohio that we should notice
plain error “with the utmost caution, under exceptional circumstances”. State v. Lang, 129 Ohio
St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596 (2011).
Scioto App. No. 16CA3767 44
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County
Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Part and Dissents in Part with Opinion.
For the Court
By: ____________________________
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.