State v. Rowley , 94 N.E.3d 907 ( 2017 )

[Cite as State v. Rowley, 2017-Ohio-5850.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2016-10-019
: OPINION
- vs - 7/17/2017
:
ANTHONY R. ROWLEY, JR., :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
Case No. CRI 16-500-173
Richard W. Moyer, Clinton County Prosecuting Attorney, Brian A. Shidaker, 103 East Main
Street, Wilmington, Ohio 45177, for plaintiff-appellee
Bieser, Greer & Landis, LLP, Matthew M. Suellentrop, 6 North Main Street, Suite 400,
Dayton, Ohio 45402, for defendant-appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Anthony R. Rowley Jr., appeals from his conviction in the
Clinton County Court of Common Pleas, for illegal assembly or possession of chemicals for
the manufacture of drugs with a special finding the offense was within the vicinity of a school.
For the reasons that follow, we affirm the decision of the trial court.
{¶ 2} On July 13, 2016, the Clinton County Grand Jury returned a five-count
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indictment charging Rowley with two counts of illegal assembly or possession of chemicals
for the manufacture of drugs within the vicinity of a school and three counts of receiving
stolen property. Before trial, Rowley pled guilty to two counts of receiving stolen property
and, in return, the state dismissed the third count of receiving stolen property. The case
proceeded to a jury trial on the remaining counts on August 23-24, 2016. The following
people testified on behalf of the state: Chief Detective Josh Riley of the Wilmington Police
Department, Rowley's girlfriend, Amanda Smith, Walmart pharmacist, Steven Hogel, and
Officer Dan Schweitzer and Detective Dustin Kurkilko of the Warren County Drug Task
Force. Rowley testified on his own behalf.
{¶ 3} Riley, a master criminal investigator and evidence technician, testified that upon
receipt of information regarding drug activity at 568 North South Street in Wilmington, Ohio,
he obtained a search warrant for the residence. In carrying out the search, Riley located four
individuals within the residence, including Rowley and Smith in an upstairs bedroom. A
search of this bedroom revealed an open book bag next to a mattress, which appeared to be
a methamphetamine lab. Due to the volatility of methamphetamine labs, Riley ordered the
search team out of the residence and contacted the Warren County Drug Task Force.
{¶ 4} Schweitzer and Kurkilko responded on behalf of the drug task force.
Schweitzer testified he has undergone Drug Enforcement Agency ("DEA") training, including
basic, undercover, and advanced drug courses, as well as DEA clandestine lab courses.
Thus, his training includes, but is not limited to, the identification and disassembly of
methamphetamine labs. Upon entry into the bedroom in question, Schweitzer immediately
identified the book bag as what he considers a one-pot methamphetamine lab. A search of
the book bag revealed a syringe, a digital scale, several plastic bags, coffee filters, plastic
bottles containing an organic solvent, cold packs, ammonium nitrate, lithium batteries, vice
grips, which are often used to dismantle lithium batteries, and paper work identified as
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belonging to Smith and Rowley.
{¶ 5} Schweitzer thoroughly testified regarding the methamphetamine manufacture
process involving a one-pot lab, which includes a plastic bottle, ammonium nitrate,
pseudoephedrine, lye, an organic solvent, and lithium batteries. Based on his training and
experience, Schweitzer opined several soda bottles located in the book bag indicated
chemical reactions undertaken during the one-pot manufacture process. Therefore, the drug
task force transported the book bag and its contents outside for further testing. These tests
included a "Drager test" to detect ammonia, and tests to detect organic solvent versus water
using "PH paper" and cardboard. One bottle located in the book bag tested positive for the
presence of ammonia and another bottle contained organic solvent.
{¶ 6} Kurkilko assisted Schweitzer throughout the removal and testing process, and
likewise, has undergone extensive drug training, including courses at the DEA's clandestine
lab. Kurkilko testified the location of the Wilmington residence was within 1,000 feet of
Denver Place Elementary, which he determined by visiting the Clinton County Auditor's
website. Kurkilko testified he ran Smith and Rowley through the National Precursor Log
Exchange ("NPLEx"), a database monitored by law enforcement and pharmacies to keep
track of pseudoephedrine purchases, the main ingredient used to manufacture
methamphetamine. The couple's NPLEx reports revealed they had made numerous
purchases and attempted purchases of pseudoephedrine in the weeks leading up to search
of the Wilmington residence. Based on his training and experience, Kurkilko testified
Rowley's NPLEx report indicates Rowley is likely a purchaser who manufactures
methamphetamine, as opposed to a consumer of cold medicine.
{¶ 7} Steven Hogel, a clinical pharmacist for Walmart, testified the NPLEx system is
a system for record keeping that every pharmacist in Ohio must use to record purchases of
products containing pseudoephedrine. When a person attempts to purchase a product
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containing pseudoephedrine, the person must present a government issued photo
identification card, which the pharmacist scans into the NPLEx system. Hogel testified he
has extensive experience with the NPLEx system, as it is a regular part of his working day.
Hogel testified reports are generated as part of a regular course of business for every
pharmacy. Hogel further testified regarding the information contained in the couple's NPLEx
reports. Hogel explained he could review such records for any pharmacy in Ohio within
Walmart's system. Hogel was unaware of the policies and procedures of other pharmacies,
but explained each pharmacy must follow the same procedures with respect to the NPLEx
system. The trial court admitted into evidence individual NPLEx reports for Rowley and
Smith, which identify several purchases and attempted purchases of products containing
pseudoephedrine at various pharmacies in Wilmington in the weeks preceding the search.
{¶ 8} Smith testified Rowley is her boyfriend and that she agreed to testify and plead
guilty in return for a reduced felony charge. Smith explained she and Rowley cooked
methamphetamine together once a month using the one-pot method and described the
requisite ingredients as "[a]mmonium nitrate, lye, [S]udafed, some sort of fuel, and lithium
batteries." Smith further stated she and Rowley were staying in the bedroom where police
found her book bag at the time of the search and that the book bag contained the "trash from
a cook." The trial court admitted into evidence a letter from Smith to Rowley where she
claimed the police were attempting "to get" Rowley on "[her] shit." Smith testified the
contents of the letter were not false, explaining that she "wasn't lying" and she "never once
didn't say [the contents of the book bag weren't hers]," the contents were "definitely [hers],
but not all [hers]." She further stated, she "was trying to take the blame."
{¶ 9} Rowley testified on his own behalf and adamantly denied his involvement with
respect to the methamphetamine lab found at the Wilmington residence. Rowley explained
that he has manufactured methamphetamine with Smith in the past, but not on this occasion.
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Rather, Rowley explained that he was simply sleeping in the room when the search began,
unaware of the presence of the book bag.
{¶ 10} The jury found Rowley guilty on one count of illegal assembly or possession of
chemicals for the manufacture of drugs within the vicinity of a school, and not guilty on the
remaining count. The trial court sentenced Rowley to concurrent sentences of five years
imprisonment for the drug conviction and eleven months imprisonment for the receiving
stolen property convictions. This appeal followed.
{¶ 11} Assignment of Error No. 1:
{¶ 12} THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING NATIONAL
PRECURSOR LOG EXCHANGE RECORDS THAT WERE NOT PROPERLY
AUTHENTICATED BY THE STATE.
{¶ 13} Rowley contends the trial court committed plain error by admitting the NPLEx
reports pursuant to Evid.R. 803(6) because the state failed to lay a sufficient foundation to
meet the hearsay exception. Specifically, Rowley argues Hogel's testimony was insufficient
to lay such foundation because he did not possess personal knowledge of the entirety of the
NPLEx reports, as he was only familiar with Walmart's policies and procedures, but not the
other pharmacies listed in the report. Rowley concedes that he did not object to the
admission of the NPLEx reports, and thus, has waived all but plain error.
{¶ 14} "Plain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court." Crim.R. 52(B). Plain error does not exist
unless the error is obvious and but for the error, the outcome of the trial would have been
different. State v. Blacker, 12th Dist. Warren No. CA2008-07-094, 2009-Ohio-5519, ¶ 39.
Notice of plain error is taken with the utmost caution and only under exceptional
circumstances to prevent a manifest miscarriage of justice. Id.{¶ 15} As discussed above, all pharmacies are required to maintain records of
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purchases and attempted purchases of products containing pseudoephedrine. R.C.
3715.05(B)(2) thru (4). This information is stored in a central clearinghouse, called NPLEx.
R.C. 3715.05(A)(6). The pharmacy submits all attempted purchases to NPLEx categorized
by the individual person. The law affirmatively imposes a duty on pharmacies to record such
transactions. State v. Coleman, 5th Dist. Richland No. 14-CA-82, 2015-Ohio-3907, ¶ 36,
discussing R.C. 3715.05. Thus, one may assume the record was made at or near the time of
the purchase or attempted purchase. Id.{¶ 16} With regards to admissibility, one must authenticate business records by
evidence sufficient to support a finding that the matter in question is what the proponent
claims. Evid.R. 901. Pursuant to Evid.R. 901(B)(10), authentication of business records "is
governed by Evid.R. 803(6)." Cent. Mortg. Co. v. Bonner, 12th Dist. Butler No. CA2012-10-
204, 2013-Ohio-3876, ¶ 14. In turn, to qualify for admission under Evid.R. 803(6),
a business record must manifest four essential elements: (i) the
record must be one regularly recorded in a regularly conducted
activity; (ii) it must have been entered by a person with
knowledge of the act, event or condition; (iii) it must have been
recorded at or near the time of the transaction; and (iv) a
foundation must be laid by the custodian of the record or by
some other qualified witness.
Bonner at ¶ 13.
{¶ 17} Even if the proponent establishes the above elements, a business record may
be excluded from evidence if "the source of information or the method or circumstances of
preparation indicate lack of trustworthiness." State v. Glenn, 12th Dist. Butler No. CA2009-
01-008, 2009-Ohio-6549, ¶ 17. "Firsthand knowledge of the transaction is not required by
the witness providing the foundation; however," the witness must demonstrate he "is
sufficiently familiar with the operation of the business and with the circumstances of the
record's preparation, maintenance and retrieval, that he can reasonably testify on the basis of
[his] knowledge that the record is what it purports to be, and that it was made in the ordinary
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course of business * * *." Glenn at ¶ 19.
{¶ 18} Rowley's contention addresses the second and fourth elements for admittance
of a business record; therefore, the questions are whether Hogel possessed sufficient
knowledge of the NPLEx system and whether the state laid a sufficient foundation for Hogel's
testimony regarding the contents of the couple's NPLEx reports. Rowley's argument relies on
two Fifth District cases addressing admissibility of NPLEx reports under Evid.R. 803(6).
{¶ 19} In Coleman, the Fifth District found NPLEx reports admissible where witnesses
from several individual pharmacies testified the reports were kept in the ordinary course of
business and each witness had enough familiarity with the record-keeping process to explain
how the records came into existence. Coleman at ¶ 42. Thus, "Coleman stands for the
principle that employees of specific pharmacies who are familiar with their pharmacies'
record-keeping system as it relates to NPLEx data are 'other qualified witnesses' who are
competent to lay a foundation for the admission of their respective pharmacy's business
records." State v. Phillips, 11th Dist. Lake No. 2016-L-029, 2017-Ohio-1204, ¶ 29; see also
State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, ¶ 40 (defining "qualified witness" as
someone with "enough familiarity with the record-keeping system of the business in question
to explain how the record came into existence in the ordinary course of business"). Likewise,
the Fifth District further determined in McDonald that the testimony of a police officer who
accessed the NPLEx system combined with testimony from several pharmacists regarding
their respective stores was sufficient to lay a foundation for the admission of the reports.
State v. McDonald, 5th Dist. Fairfield No. 15-CA-45, 2016-Ohio-2699, ¶ 27, 29.
{¶ 20} While the opinions above lend guidance as to how to properly admit NPLEx
reports as business records, they only affirmatively address if pharmacists may testify
regarding transactions at their respective store. In other words, the question remains: is a
NPLEx report properly admitted when it details transactions and attempted transactions at
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several stores when the only testimony regarding the report is from a pharmacist at a single
store.
{¶ 21} The Sixth Circuit Court of Appeals addressed a similar set of facts where an
employee of Appriss, Inc., the company that runs the NPLEx program, testified regarding the
required procedures for maintaining such records and how the information contained in the
NPLEx reports becomes available to police officers. United States v. Collins, 799 F.3d 554,
583 (6th Cir.2015). Additional testimony was provided by two officers regarding specific
purchases in the NPLEx report. Id. The court found NPLEx reports are admissible pursuant
to Fed.R.Evid. 803(6) where the foundation provided includes evidence from a custodian of
the records familiar with the system and can testify to the process by which information is
retrieved. Id. at 584; see also State v. Isaac, 5th Dist. Richland No. 15CA87, 2016-Ohio-
7376, ¶ 42 (stating Fed.R.Evid. 803[6] is identical to Ohio Evidence Rule 80[6]).
{¶ 22} Hogel provided extensive testimony regarding the NPLEx system and how
pharmacists must use the system to be in accordance with Ohio law. Hogel explained that
whenever any certain individual attempts to purchase a product containing pseudoephedrine,
the NPLEx system attributes the attempted purchase to that person because the individual
must furnish a government-issued photo ID. Hogel further explained that although he does
not have personal knowledge of the day-to-day processes of pharmacies other than Walmart,
if a pharmacy sells products containing pseudoephedrine, the pharmacy must follow the
exact procedures proscribed by Ohio law. Furthermore, Ohio pharmacists can track any
attempted purchase of such products, including attempted purchases at different Ohio
pharmacies. Additionally, Kurkilko testified regarding specific purchases and attempted
purchases within Rowley's NPLEx report in the weeks leading up to the search, which based
on his training and experience are indicative of someone who manufactures
methamphetamine.
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{¶ 23} Thus, there was extensive testimony – as there was in Collins – from someone
highly familiar with the NPLEx system, who uses the system daily, describing how it
functions, how information is stored, and how information is retrieved. Additionally, there was
police testimony regarding specific purchases and attempted purchases of pseudoephedrine
leading up to the search. Therefore, we find, consistent with Collins, the state presented
sufficient evidence to introduce the NPLEx reports pursuant to Evid.R. 803(6).
{¶ 24} Furthermore, even if the evidence were inadmissible because it does not meet
the requirements under Evid.R. 803(6), we find any error in its admittance to be harmless.
Crim.R. 52(A) defines harmless error as "[a]ny error, defect, irregularity, or variance which
does not affect substantial rights shall be disregarded." A reviewing court properly finds the
erroneous admission of evidence harmless error where there is overwhelming evidence of
guilt or some other indicia the error did not contribute to the conviction. State v. Pottorf, 12th
Dist. Warren No. CA2014-03-046, 2014-Ohio-5399, ¶ 20.
{¶ 25} The state presented an abundance of evidence demonstrating Rowley's guilt.
Disregarding the NPLEx reports, Smith testified she and Rowley purchased pseudoephedrine
from area pharmacies on several occasions leading up to the search. Smith further testified
the couple manufactured methamphetamine together, and thoroughly described the process
and necessary ingredients. From the search of the Wilmington residence, police located
Smith and Rowley in an upstairs bedroom, which contained an open book bag holding the
necessary ingredients to manufacture methamphetamine as well as a vessel that had already
been used in that regard. The book bag also contained a hospital discharge document for
Rowley. On-sight testing and officer observations both indicated plastic bottles in and around
the location of the book bag that had been used to manufacture methamphetamine. Thus,
because the state provided abundant evidence of Rowley's guilt, we find any error by the trial
court admitting the NPLEx reports to be harmless. Accordingly, Rowley's first assignment of
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error is overruled.
{¶ 26} Assignment of Error No. 2:
{¶ 27} THE COURT COMMITTED PLAIN ERROR IN PERMITTING SCIENTIFIC
TESTIMONY WHEN THE WITNESS WAS NOT QUALIFIED AS AN EXPERT UNDER
EVID.R. 702.
{¶ 28} Rowley contends Schweitzer provided impermissible scientific testimony
because he was not qualified as an expert witness pursuant to Evid.R. 702. Rowley
concedes Schweitzer was permitted to testify pursuant to Evid.R. 701 regarding the
manufacture process of methamphetamine. However, Rowley claims the trial court erred by
permitting Schweitzer to testify regarding the on-sight methamphetamine lab testing
conducted during the search. Further, since Schweitzer's testimony regarding such testing
was improper, the trial court's admittance of photographs taken during the on-sight testing
was also improper. Rowley concedes that he did not object to the testimony or the admission
of the photographs, and thus, has waived all but plain error.
{¶ 29} Evid.R. 702 governs the admission of expert testimony:
A witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding the
subject matter of the testimony;
(C) The witness' testimony is based on reliable scientific,
technical, or other specialized information. To the extent that the
testimony reports the result of a procedure, test, or experiment,
the testimony is reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is
based is objectively verifiable or is validly derived from widely
accepted knowledge, facts, or principles;
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(2) The design of the procedure, test, or experiment reliably
implements the theory;
(3) The particular procedure, test, or experiment was conducted
in a way that will yield an accurate result.
{¶ 30} Rowley cites a Fifth District opinion to support his contention that Schweitzer's
testimony and the supporting photographs were inadmissible because the state did not offer
such evidence pursuant to Evid.R. 702. See State v. Frye, 5th Dist. Stark No.
2006CA00363, 2007-Ohio-7111, ¶ 27-33. However, contrary to Rowley's belief otherwise,
the Fifth District's findings support the admission of such evidence. The Fifth District found
the trial court's decision to admit an officer's testimony regarding methamphetamine labs did
not constitute plain error because it related to matters beyond the knowledge and experience
of the jury, was based upon specialized knowledge and training, assisted the trier of fact in
understanding the evidence and determining a fact in issue, was relevant and material, and
had a probative value which outweighed any prejudicial impact. Id. at ¶ 33.
{¶ 31} Similar to Frye, Schweitzer testified regarding his law enforcement experience
as a member of the Warren County Drug Task Force, specialized training in drug
investigations through the state of Ohio and the DEA, on-the-job training experience with
drug investigations, and training relating to the identification and disassembly of
methamphetamine labs. Thus, Schweitzer possessed knowledge and experience beyond
that of the jury based upon specialized training, which assisted the trier of fact in determining
whether the vessels were used to manufacture methamphetamine. This information was
relevant and material to the crimes alleged and its probative value outweighed any prejudicial
effect. Therefore, the trial court's decision to admit such evidence, including the
photographs, did not constitute plain error and Rowley's second assignment of error is
overruled.
{¶ 32} Assignment of Error No. 3:
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{¶ 33} THE COURT COMMITTED PLAIN ERROR IN PERMITTING IMPROPER
REMARKS BY THE STATE DURING CLOSING ARGUMENT.
{¶ 34} Rowley contends the state made several improper comments in its closing
argument, which prejudicially affected Rowley's rights to a fair trial.
{¶ 35} The test for prosecutorial misconduct is whether the remarks made by the
prosecution were improper and, if so, whether they prejudicially affected substantial rights of
the accused. State v. Smith, 14 Ohio St.3d 13, 14 (1984). The touchstone of the analysis is
the fairness of the trial, not the culpability of the prosecutor. State v. Lott, 51 Ohio St.3d 160,
166 (1990). An appellate court will not deem a trial unfair where a review of the entire trial
demonstrates beyond a reasonable doubt the jury would have found the defendant guilty
even without the improper comments. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶
121.
{¶ 36} A prosecutor is afforded wide latitude in closing arguments. State v. Lamb,
12th Dist. Butler Nos. CA2002-07-171 and CA2002-08-192, 2003-Ohio-3870, ¶ 28. A
reviewing court examines a closing argument in its entirety to determine whether a
prosecutor's remarks were prejudicial. State v. Loza, 71 Ohio St.3d 61, 79 (1994). It is
improper for an attorney to express his personal belief or opinion as to the credibility of a
witness or as to the guilt of the accused. Smith at 14. A prosecutor must avoid going beyond
the evidence before the jury. State v. Israel, 12th Dist. Butler No. CA2010-07-170, 2011-
Ohio-1474, ¶ 45.
{¶ 37} Rowley cites several remarks in the transcript to support his prosecutorial
misconduct argument. The state claims the cited comments merely restate the evidence
presented during trial and, even assuming arguendo, the comments were improper, the
outcome of the trial would not have been different. We have reviewed the prosecutor's
statements cited by Rowley in the context of the entire closing argument and find either no
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error or harmless error.
{¶ 38} First, Rowley contends the prosecutor vouched for the credibility of Smith by
stating, "I would say that based on her testimony, she was truthful and that there is no reason
for her to be deceptive at this point." While Rowley correctly asserts a prosecutor shall not
express his personal belief as to a witness' credibility, his argument fails to consider the
prosecutor prefaced his statement with the following: "[n]ext, we have the testimony of
Amanda Smith. You are the judge of her credibility." Considering the prosecutor correctly
noted to the jurors, they are to determine the credibility of a witness, any misstep by the
prosecutor is so slight, it clearly does not rise to the level of prosecutorial misconduct.
{¶ 39} Second, Rowley argues the prosecutor interjected his personal belief regarding
evidence in the case. The prosecutor stated, "[t]here's going to be a lot of issues about
whose bag it was, where it was located. But at this point, I believe that the evidence shows
that this Defendant was aware of the chemicals in that bag." Again, the remark does not rise
to the level of prosecutorial misconduct. The comment explains the evidence presented at
trial, albeit, in a manner the prosecutor could improve upon, but not to the extent that Rowley
was denied a fair trial. Our review is not guided by an analysis of the performance of the
prosecutor, but whether the alleged improper remarks denied the accused a fair trial. See,
e.g., State v. Layne, 12th Dist. Clermont No. CA2009-07-043, 2010-Ohio-2308, ¶ 59-60
(finding no prosecutorial misconduct where prosecutor prefaced remarks regarding evidence
with "I think" because defendant was afforded a fair trial).
{¶ 40} Third, Rowley asserts the prosecutor commented on issues outside the record
and, again, vouched for the credibility of Smith. Specifically, Rowley claims error with respect
to the following comment regarding Smith: "[y]es, she is getting consideration for her
testimony, but that's what happens when you tell the truth. You get the benefit of it when you
cooperate. That is very common and that's what happens in our criminal justice system."
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Additionally, Rowley takes issue with the prosecutor's remark regarding Kurkilko's testimony:
"[h]e was able to visually see the school from the house * * *."
{¶ 41} With regards to the prosecutor's comment about Smith and the common
practices of the criminal justice system, we find any alleged error harmless because the
outcome of the trial would not have been different in the absence of such comments. Smith
testified she received consideration for her testimony at trial and Rowley was provided ample
opportunity to impeach Smith on this issue through cross-examination as well as he
addressed the issue in his closing argument. Furthermore, the prosecutor's remarks
concerning the criminal justice system provided context for the consideration Smith received,
and ultimately, it is up to the jury to weigh the credibility of the evidence. Moreover, the trial
court instructed the jury that closing arguments were not evidence and we presume the jury
will follow the instructions given to it by the judge. State v. Loza, 71 Ohio St.3d 61, 79
(1994).
{¶ 42} In considering the prosecutor's remarks concerning Kurkilko's testimony, we
find any alleged error harmless. The prosecutor stated Kurkilko could visually see the school
from the searched residence, and that Kurkilko looked up the location of the residence on the
county auditor's website to determine the residence was located within the 1,000 feet of a
school. While Rowley correctly asserts the prosecutor's remark about seeing the school is
absent from Kurkilko's testimony, such error is harmless because it restated the evidence
presented in a different manner, which was that Kurkilko determined the location of the
residence was within 1,000 feet of a school. Absent the remark concerning Kurkilko's line of
sight from the residence, the outcome of the trial would not have been different. Accordingly,
Rowley's third assignment of error is overruled.
{¶ 43} Assignment of Error No. 4:
{¶ 44} THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR
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ACQUITTAL PURSUANT TO RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE
AS THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW.
{¶ 45} Assignment of Error No. 5:
{¶ 46} THE ENTRY OF THE TRIAL COURT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 47} Rowley argues the trial court erred by overruling his Crim.R. 29 motion for
acquittal at the close of the state's evidence because the state presented insufficient
evidence to establish every element of the charged offense, as well as the additional finding
the offense occurred within 1,000 feet of a school, beyond a reasonable doubt. Rowley
further contends his conviction is against the manifest weight of the evidence. In so doing,
Rowley renews his claims the trial court should have excluded the NPLEx reports,
Schweitzer's testimony, and the exhibits admitted therefrom. And in turn, that the remaining
evidence establishes his conviction is against the manifest weight of the evidence. However,
in consideration of our previous findings that the trial court properly admitted such evidence,
we will consider it in our manifest weight and sufficiency reviews.
{¶ 48} "The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different." State v. Thompkins, 78 Ohio St.3d 380,
386 (1997), superseded by constitutional amendment on other grounds as stated by State v.
Smith, 80 Ohio St.3d 89, 102 (1997). Sufficiency of the evidence is the legal standard
applied to determine whether the case may go to the jury or whether the evidence is legally
sufficient to support the jury verdict as a matter of law. Id., citing Black's Law Dictionary (6th
Ed.1990) 1433. A conviction based on legally insufficient evidence constitutes a denial of
due process. Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211 (1982), citing Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979). The relevant inquiry is "whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
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could have found the essential elements of the crime proven beyond a reasonable doubt."
State v. Jenks, 61 Ohio St.3d 259, 259-60 (1991), superseded by constitutional amendment
on other grounds as stated by Smith at 102. In evaluating the sufficiency of the evidence,
this court "defer[s] to the trier of fact on questions of credibility and the weight assigned to the
evidence." State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 132. "Although a court
of appeals may determine that a judgment of a trial court is sustained by sufficient evidence,
that court may nevertheless conclude that the judgment is against the weight of the
evidence." Thompkins at 387.
{¶ 49} In contrast to a sufficiency of the evidence challenge, a manifest weight of the
evidence challenge examines the "inclination of the greater amount of credible evidence,
offered at a trial, to support one side of the issue rather than the other." State v. Barnett,
12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. In making this determination, a
reviewing court looks at the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of the witnesses, and determines whether in resolving the conflicts in
the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered. State v. Morgan, 12th
Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34. "An appellate
court will overturn a conviction due to the manifest weight of the evidence only in
extraordinary circumstances when the evidence presented at trial weighs heavily in favor of
acquittal." State v. Couch, 12th Dist. Butler No. CA2016-03-062, 2016-Ohio-8452, ¶ 8.
{¶ 50} "A reversal based on the weight of the evidence * * * can occur only after the
State both has presented sufficient evidence to support conviction and has persuaded the
jury to convict." (Emphasis added.) Tibbs at 42-43; see also State v. Jones, 12th Dist. Butler
No. CA2012-03-049, 2013-Ohio-150, ¶ 19 (stating that finding a conviction is supported by
the manifest weight of the evidence is also dispositive of the issue of sufficiency). Therefore,
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"[b]ecause sufficiency is required to take a case to the jury, a finding that a conviction is
supported by the weight of the evidence must necessarily include a finding of sufficiency."
State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.
{¶ 51} After a thorough review of the record, we find the state presented sufficient
evidence that would allow the jury to conclude beyond a reasonable doubt that Rowley
committed the offense of illegal assembly or possession of chemicals for the manufacture of
drugs within the vicinity of a school. Furthermore, we do not find the jury clearly lost its way
and created such a manifest miscarriage of justice to require reversal of Rowley's conviction.
{¶ 52} Pursuant to R.C. 2925.041(A), "[n]o person shall knowingly assemble or
possess one or more chemicals that may be used to manufacture a controlled substance in
schedule I or II with the intent to manufacture a controlled substance in schedule I or II in
violation of [R.C. 2925.04]." "If the offense was committed in the * * * vicinity of a school," the
offense is a felony of the second degree. R.C. 2925.041(C); State v. Gregory, 9th Dist.
Summit No. 27523, 2015-Ohio-4901, ¶ 12 (a special finding the offense was committed in the
vicinity of a school is a strict liability finding). Pursuant to R.C. 3719.41, methamphetamine is
a Schedule II controlled substance.
{¶ 53} The testimony presented by the state demonstrated that a search of the
Wilmington residence revealed a book bag that officers immediately identified as a possible
methamphetamine lab. The officers found the book bag sitting next to a bed in a room where
Smith and Rowley currently resided. Officers located Smith and Rowley in the room when
the search began. The Warren County Drug Task Force responded to the residence based
on the initial officer's identification of the book bag as a suspected methamphetamine lab. A
search of the book bag revealed several items indicative of a methamphetamine lab,
including a syringe, a digital scale, several plastic bags, plastic bottles which appeared to
contain an organic solvent, cold packs, ammonium nitrate, lithium batteries, and vice grips.
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Additionally, the book bag contained paperwork identifying Smith and Rowley. Smith testified
the book bag belonged to her, and that the one-pot methamphetamine lab belonged to her
and Rowley. Schweitzer conducted several tests to detect the presence of ammonia and
organic solvent in the plastic bottles, with positive results for each.
{¶ 54} Kurkilko testified that during his investigation a review of the county auditor's
website demonstrated the searched residence was located within 1,000 feet of a school.
Kurkilko's investigation also included a review of the NPLEx reports for Smith and Rowley,
which showed the couple individually purchased and attempted to purchase
pseudoephedrine on several occasions in the weeks leading up to the search of the
Wilmington residence. Hogel, a clinical pharmacist from Walmart, testified extensively
regarding the parameters of the NPLEx system, and likewise, identified several instances the
two attempted to purchase pseudoephedrine at several pharmacies, including, but not limited
to, Walmart stores Hogel oversaw. Smith's testimony was consistent with the NPLEx reports
showing the purchases and attempted purchases.
{¶ 55} The evidence presented overwhelmingly supports the jury's finding Rowley
knowingly assembled or possessed one or more chemicals that may be used to manufacture
methamphetamine. Rowley contends Smith's testimony was self-serving and should be
discounted because she received consideration for her testimony. However, the jury found
her testimony believable and we defer to the factfinder with respect to credibility
determinations. Any purported avenues for discrediting her testimony are corroborated by
other evidence in the record. Smith did testify she owned the book bag, but it also contained
Rowley's hospital discharge papers and was in the room in which Rowley resided at the time
of the search. Rowley's NPLEx report details several instances where he purchased and
attempted to purchase pseudoephedrine, the main ingredient used to produce
methamphetamine. Moreover, Kurkilko testified that based on his training and experience, a
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review of Rowley's NPLEx report indicates someone who likely manufactures
methamphetamine. With respect to sufficiently proving the special finding that the offense
occurred within the vicinity of a school, the jury found Kurkilko's testimony credible that his
investigation revealed the residence was within 1,000 feet of a school.
{¶ 56} Rowley testified on his own behalf and adamantly denied his involvement with
respect to the methamphetamine lab found at the Wilmington residence. Rowley explained
that he has manufactured methamphetamine with Smith in the past, but not on this occasion.
Rather, Rowley explained that he was simply sleeping in the room when the search began,
unaware of the presence of the book bag. While Rowley denies any knowledge or
involvement of the methamphetamine lab, the inclination of the greater amount of credible
evidence clearly supports the jury's findings. Therefore, we do not find the jury clearly lost its
way or created such a manifest miscarriage of justice that Rowley's conviction must be
reversed. Accordingly, Rowley's fourth and fifth assignments of error are overruled.
{¶ 57} Assignment of Error No. 6:
{¶ 58} THE APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL PURSUANT TO ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION AND THE SIXTH AMENDMENT OF THE UNITED STATES
CONSTITUTION.
{¶ 59} Rowley argues the cumulative effect of his trial counsel's errors, as alleged
above, denied him a fair trial. Rowley claims his attorney was deficient because he only
objected one time during trial, did not file a pretrial motion in limine to exclude evidence, and
did not demand Schweitzer be qualified as an expert. Rowley further attacks his counsel's
trial strategy because the sole theory in Rowley's defense was that he lacked the requisite
knowledge for the charged offense. Therefore, on these bases, Rowley contends the
outcome of the trial would have been different.
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{¶ 60} To prevail on an ineffective assistance of counsel claim, an appellant must
establish: (1) that his trial counsel's performance was deficient; and (2) that such deficiency
prejudiced the defense to the point of depriving the appellant of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052 (1984); State v. Ullman, 12th Dist.
Warren No. CA2002-10-110, 2003-Ohio-4003, ¶ 43. Trial counsel's performance will not be
deemed deficient unless it "fell below an objective standard of reasonableness." Strickland
at 688. To show prejudice, a defendant must prove there exists "a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different." State v. Wilson, 12th Dist. Madison No. CA2013-10-034, 2014-Ohio-2342, ¶ 17.
A defendant's failure to satisfy one part of the Strickland test negates a court's need to
consider the other. State v. Hurst, 12th Dist. Brown No. CA2014-02-004, 2014-Ohio-4890, ¶
7.
{¶ 61} Rowley's discontent with his counsel's alleged failure to object lies with the
admission of the NPLEx reports, Schweitzer's testimony regarding the tests he performed on
the plastic bottles, and the prosecutor's remarks during closing arguments. However, we
previously found each contention meritless under Rowley's other assignments of error, and
thus, the instances do not equate to a finding Rowley's trial counsel was deficient for not
objecting. Rowley further contends deficiency by his trial counsel for failing to renew his
Crim.R. 29 motion for acquittal at the close of all the evidence. Again, we resolved Rowley's
contention his conviction was not supported by sufficient evidence and against the manifest
weight of the evidence; therefore, Rowley cannot demonstrate the outcome of the proceeding
would have been different had his counsel renewed his motion for acquittal.
{¶ 62} Finally, Rowley contends the alleged errors, taken in conjunction with his
counsel's trial strategy to demonstrate the state could not prove the knowledge element of
the charged offense, necessitate a finding of deficiency. However, there is a strong
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presumption that counsel has rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. State v. Hendrix, 12th Dist.
Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14, citing Strickland at 690. It is not the
appellate court's role to second guess trial counsel's strategic decisions. State v. Lloyd, 12th
Dist. Warren Nos. CA2007-04-052 and CA2007-04-053, 2008-Ohio-3383, ¶ 61. "The
decision regarding which defense to pursue at trial is a matter of trial strategy, and trial
strategy decisions are not the basis of a finding of ineffective assistance of counsel." State v.
Kinsworthy, 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 43, citing State v.
Murphy, 91 Ohio St.3d 516, 524 (2001).
{¶ 63} Accordingly, Rowley's sixth assignment of error is overruled.
{¶ 64} Judgment affirmed.
S. POWELL and PIPER, JJ., concur.
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