State v. Nitzsche , 2012 Ohio 688 ( 2012 )

[Cite as State v. Nitzsche, 2012-Ohio-688.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25783
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
PETER A. NITZSCHE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2010-04-1122 (B)
DECISION AND JOURNAL ENTRY
Dated: February 22, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} For his alleged involvement in operating two methamphetamine labs, a jury found
Peter Nitzsche guilty of two counts of illegal manufacture of drugs, two counts of illegal
assembly or possession of chemicals for the manufacture of drugs, aggravated possession of
drugs, and illegal use or possession of drug paraphernalia. The trial court sentenced him to 12
years in prison. Mr. Nitzsche has appealed, assigning as error that the trial court incorrectly
failed to declare a mistrial, that his convictions were not supported by sufficient evidence, and
that his convictions are against the manifest weight of the evidence. We affirm because there
was sufficient evidence to connect Mr. Nitzsche to the methamphetamine labs, his convictions
are not against the manifest weight of the evidence, and the trial court correctly denied his
motion for mistrial.
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FACTS
{¶2} On April 20, 2010, police responded to a call that there was smoke coming from a
residential garage. When officers arrived at the address, they did not see any smoke, but did
smell an unusual odor. They inspected a couple of cars that were in the driveway and saw a box
of syringes inside one of them. They also knocked on the front door of the house, but no one
answered. While walking around the house, the officers saw two men looking out a back
window. The officers called to the men, Joseph Johnston and Peter Nitzsche, who came outside.
Mr. Nitzsche did not have any outstanding warrants, so the officers let him leave. Mr. Johnston,
on the other hand, had an outstanding warrant and appeared to be experiencing the effects of
methamphetamine, so he was detained.
{¶3} While the officers were still at the house, Mr. Johnston’s mother came to the door.
She told the officers that it was her house and gave them permission to search it. Inside the
basement and one of the bedrooms, officers found a number of items associated with the
manufacture of methamphetamine. They also saw Mr. Nitzsche ride past the house two times in
a white van. After the van drove past the house the second time, some of the officers stopped it
and arrested Mr. Nitzsche.
{¶4} Three months later, while Mr. Nitzsche was on bond, police received a 911 call
from Jessica Montoney, the mother of Mr. Nitzsche’s children, reporting that Mr. Nitzsche had
attacked her at his mother’s house. When police arrived, they learned that Ms. Montoney takes
care of Mr. Nitzsche’s mother and that she had found what she believed to be methamphetamine
in the basement of the house. They also learned that, when Mr. Nitzsche found out that she had
attempted to flush the drugs down a toilet, he attacked her. The officers obtained permission
from Mr. Nitzsche’s mother to search the house and found items in the basement that are used in
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the manufacture of methamphetamine. They also found the substance that Ms. Montoney had
attempted to flush down the toilet.
{¶5} The Grand Jury indicted Mr. Nitzsche for illegal manufacture of drugs, illegal
assembly or possession of chemicals for the manufacture of drugs, and aggravated possession of
drugs for his connection with the first methamphetamine lab. It indicted him for illegal
manufacture of drugs, illegal assembly or possession of chemicals for the manufacture of drugs,
aggravated possession of drugs, illegal use or possession of drug paraphernalia, and domestic
violence for his connection with the second lab. Before trial, Mr. Nitzsche pleaded guilty to the
domestic violence count and stipulated that he had a prior conviction for illegal assembly of
chemicals for the manufacture of drugs. A jury found him guilty of the offenses except the
aggravated possession of drugs count arising out of the lab at his mother’s house.
SUFFICIENCY
{¶6} Mr. Nitzsche’s first assignment of error is that the trial court incorrectly denied
his motion for judgment of acquittal under Rule 29 of the Ohio Rules of Criminal Procedure.
Under Rule 29(A), a defendant is entitled to a judgment of acquittal on a charge against him “if
the evidence is insufficient to sustain a conviction . . . .” Whether a conviction is supported by
sufficient evidence is a question of law that this Court reviews de novo. State v. Thompkins, 78
Ohio St. 3d 380, 386 (1997); State v. West, 9th Dist. No. 04CA008554, 2005-Ohio-990, at ¶ 33.
We must determine whether, viewing the evidence in a light most favorable to the prosecution, it
could have convinced the average finder of fact of his guilt beyond a reasonable doubt. State v.
Jenks, 61 Ohio St. 3d 259, paragraph two of the syllabus (1991).
{¶7} Mr. Nitzsche has not argued that the State failed to present evidence of each of the
substantive elements of the crimes. Rather, he has argued that it failed to prove that he was the
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one who committed them. According to Mr. Nitzsche, the only evidence that tied him to the
methamphetamine lab at Mr. Johnston’s mother’s house was the fact that he was at the house
when police arrived. He has also argued that, even though he sometimes spent the night at his
mother’s house, there was no evidence that he lived at the house.
{¶8} Regarding the lab at Mr. Johnston’s mother’s house, officers testified that they
were at the house for five to ten minutes before they saw Mr. Johnston and Mr. Nitzsche through
a window. They also said that no one came to or left the house during that time. One of the
officers who searched the house testified that they discovered an “icy slush” in the basement.
The discovery indicated “that the cooking process was . . . going on at that time” because it was a
warm day and the ice was not melted. Another officer agreed that, because of the ice, it
suggested that the manufacturing activities that occurred at the house “had to have been very
recent.”
{¶9} A defendant may be convicted of a principal offense based on proof that he was
complicit in its commission. State v. Herring, 94 Ohio St. 3d 246, 251 (2002). Under Section
2923.03(A) of the Ohio Revised Code, “[n]o person, acting with the kind of culpability required
for the commission of an offense, shall . . . (1) [s]olicit or procure another to commit the offense;
(2) [a]id or abet another in committing the offense; (3) [c]onspire with another to commit the
offense . . . [or] (4) [c]ause an innocent or irresponsible person to commit the offense.” In this
case, the trial court instructed the jury regarding aiding and abetting. “To support a conviction
for complicity by aiding and abetting . . . , the evidence must show that the defendant supported,
assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the
crime, and that the defendant shared the criminal intent of the principal. Such intent may be
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inferred from the circumstances surrounding the crime.” State v. Johnson, 93 Ohio St. 3d 240,
syllabus (2001).
{¶10} Viewing the evidence in a light most favorable to the State, we conclude that it
presented sufficient circumstantial evidence from which the jury could infer that Mr. Nitzsche
was complicit in operating the methamphetamine lab at Mr. Johnston’s mother’s house. Mr.
Nitzsche was present in the house with Mr. Johnston at a time when the methamphetamine lab
was operating. The State also submitted a recording of a telephone call Mr. Nitzsche made from
jail in which he admitted that he had been through the entire house before the police had arrived.
{¶11} Regarding the lab at Mr. Nitzsche’s mother’s house, officers testified that they
learned from Mr. Nitzsche’s mother that Mr. Nitzsche has a bedroom at the house, that he had
spent the previous evening at the house, and that he had been at the house for most of that day.
They also found Mr. Nitzsche’s identification in one of the bedrooms. In addition, the officer
who responded to Ms. Montoney’s 911 call testified that Ms. Montoney told her Mr. Nitzsche
attacked her after learning that she had disposed of the substance that she found in the basement.
The officer further testified that, as she was talking to Ms. Montoney, Mr. Nitzsche called and
told Ms. Montoney not to let the officers into the house. Viewing the evidence in a light most
favorable to the prosecution, we conclude that there was sufficient circumstantial evidence from
which a jury could determine that Mr. Nitzsche was responsible for the materials found in his
mother’s basement. Mr. Nitzsche’s first assignment of error is overruled.
MANIFEST WEIGHT
{¶12} Mr. Nitzsche’s second assignment of error is that his convictions are against the
manifest weight of the evidence. If a defendant argues that his convictions are against the
manifest weight of the evidence, this Court “must review the entire record, weigh the evidence
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and all reasonable inferences, consider the credibility of witnesses and determine whether, in
resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction[s] must be reversed and a new trial ordered.”
State v. Otten, 33 Ohio App. 3d 339, 340 (1986).
{¶13} Regarding the lab at Mr. Johnston’s mother’s house, Mr. Nitzsche has argued that,
even though police found items related to it in the basement and one of the bedrooms, the
evidence showed that he was only in the kitchen of the house. Mr. Nitzsche has noted that Mr.
Johnston testified that Mr. Nitzsche only entered the house to wash his hands and did not know
anything about the lab. According to Mr. Nitzsche, Mr. Johnston’s testimony exonerated him.
{¶14} Mr. Johnston testified that Mr. Nitzsche and he had spent the past few days
together getting high on methamphetamine. He also said that Mr. Nitzsche and he had been
together that entire day. While he claimed that Mr. Nitzsche had only been in the kitchen of the
house, we have previously noted that Mr. Nitzsche told someone from jail that he had been
through the entire house prior to the officers’ arrival. In addition, Mr. Nitzsche has not disputed
that the icy slush found by officers suggested that someone had been producing
methamphetamine at the house that same day. Accordingly, we conclude that the jury did not
lose its way when it determined that Mr. Johnston’s testimony about Mr. Nitzsche’s lack of
involvement in the lab was not credible.
{¶15} Regarding the lab in his mother’s basement, Mr. Nitzsche has argued that,
considering one of the basement windows was broken, it is possible that someone else placed the
items there. Even if that were possible, Mr. Nitzsche’s theory fails to explain why he would
attack the mother of his children when he learned that she got rid of things that an intruder had
hidden in his mother’s basement. We conclude that the jury did not lose its way when it
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convicted him of the offenses related to the lab at his mother’s house. Mr. Nitzsche’s second
assignment of error is overruled.
MISTRIAL
{¶16} Mr. Nitzsche’s third assignment of error is that the trial court incorrectly failed to
declare a mistrial. During the direct examination of one of the police officers who processed the
lab at Mr. Johnston’s mother’s house, the prosecutor asked whether the officer had seen Mr.
Nitzsche at the house on a previous day. The officer answered that he had “never seen him at
that house. I know I’ve had several –,” but was not allowed to finish his sentence because of an
objection by Mr. Nitzsche’s lawyer. The prosecutor subsequently asked the officer whether Mr.
Nitzsche was part of his investigation of the lab at the house, how the investigation had started,
and how long it had lasted. Mr. Nitzsche has argued that the questions and answers were part of
an improper attempt by the prosecution to interject hearsay evidence about conversations the
officer had had with unidentified informants and to imply that those informants had connected
him to the activities at the house.
{¶17} “‘Hearsay’ is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Evid. R.
801(C). Rule 801(A) of the Ohio Rules of Evidence defines “statement” as “(1) an oral or
written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an
assertion.” Under Rule 802, “[h]earsay is not admissible except as otherwise provided by . . .
these rules . . . .”
{¶18} The prosecutor’s questions about how long the officer had investigated activities
at the house and whether Mr. Nitzsche was part of the investigation did not involve out-of-court
statements and, therefore, were not hearsay. Evid. R. 801(C). Although the officer testified that
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he started investigating the house because the police had received complaints about it, his answer
was offered for the effect on the listener, not the truth of the complaints. Accordingly, the
officer’s answer was also not hearsay. Id. Finally, considering that the court interrupted the
officer’s “I know I’ve had several” statement, it is impossible to determine whether it would
have involved hearsay.
{¶19} Mr. Nitzsche has failed to establish that the trial court should have declared a
mistrial. His third assignment of error is overruled.
CONCLUSION
{¶20} The State presented sufficient circumstantial evidence to connect Mr. Nitzsche to
the methamphetamine labs at his mother’s and Mr. Johnston’s mother’s houses, Mr. Nitzsche’s
convictions are not against the manifest weight of the evidence, and the trial court correctly
denied his motion for mistrial. The judgment of the Summit County Common Pleas Court is
affirmed.
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 Summit, 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
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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.
CLAIR E. DICKINSON
FOR THE COURT
CARR, P.J.
MOORE, J.
CONCUR
APPEARANCES:
DONALD R. HICKS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.