State v. Thomason , 2017 Ohio 7447 ( 2017 )

[Cite as State v Thomason, 2017-Ohio-7447.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-A-0027
- vs - :
JENNIFER L. THOMASON, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2013
CR 00156.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).
Richard E. Hackerd, 231 South Chestnut Street, Ravenna, OH 44266 (For Defendant-
Appellant).
CYNTHIA WESCOTT RICE, P.J.
{¶1} Appellant, Jennifer L. Thomason, appeals from the judgment of the
Ashtabula County Court of Common Pleas, based on a jury verdict, finding her guilty of
aggravated possession of drugs, and illegal assembly or possession of chemicals for
the manufacture of drugs, and sentencing her to a total term of five years imprisonment.
Appellant contends her trial counsel was ineffective for failing to move to suppress the
evidence against her, and that her convictions are premised on insufficient evidence,
and are against the manifest weight of the evidence. We affirm.
{¶2} On March 5, 2015, Detective Sean Ward of the Ashtabula County Sheriff’s
Department received an email tip that Josh Hall was engaged in the manufacture of
methamphetamine at the Motel 6 in Harpersfield Township, Ashtabula County, Ohio.
Detective Ward contacted Detective George Cleveland. The detectives went to the
motel, and spoke with the desk clerk, who told them that Mr. Hall had rented two rooms
on the second floor, and that an associate of his had rented one on the first floor. She
further advised that Mr. Hall had checked out. She gave the detectives a pass key card,
which they used to explore the first floor room, No. 124, which had some personal items
in it, but no signs of methamphetamine manufacture. They proceeded to the second
floor and checked one of Mr. Hall’s former rooms, No. 227, which they found empty.
{¶3} Finally, the detectives went to Room No. 228. The pass key card opened
the door, but it was latched from inside. Upon identifying themselves, a woman
(appellant), asked them to wait while she got dressed. The detectives waited three to
five minutes, hearing shuffling noises in the room, before Appellant opened the door
and came out into the hallway. She and Detective Ward moved a few feet down the
hallway to talk.
{¶4} Detective Cleveland remained at the door. He saw a man sitting on one of
the beds in the room, and asked the man, Michael Dixon, to come to the door. The
detective informed him of the complaint, and asked to see his identification. While Mr.
Dixon retrieved the identification, Detective Cleveland smelled the odor of
methamphetamine emanating from the room. Detective Cleveland, while a member of
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the Ashtabula County Sheriff’s Department, was also assigned to a task force of the
United States Drug Enforcement Agency in Cleveland, acting as the county liaison. He
has investigated more than 100 methamphetamine labs. Detective Cleveland followed
Mr. Dixon into the room, and spotted two Mason jars on the floor, one filled with clear
liquid. This was later identified as a methamphetamine precursor. He also spotted a
gray back pack. The detective testified at trial that the elements of methamphetamine
labs are often disassembled and transported in backpacks.
{¶5} Mr. Dixon and appellant were arrested. Detective Cleveland contacted the
local fire department to come ventilate the room; put on his protective gear; and began
processing the scene, finding the equipment and elements for manufacturing
methamphetamine. After he took Mr. Dixon and appellant downstairs, Detective Ward
put on his protective gear, and joined the search. The detectives later took certain
evidence from Room No. 221, which had also been rented by Mr. Hall, when advised by
cleaning staff the room contained suspicious items. They also found equipment relating
to the operation of a methamphetamine lab in a locked box in Mr. Dixon’s truck.
{¶6} On April 2, 2015, appellant was indicted on three counts. The first was for
illegal manufacture of drugs, in violation of R.C. 2925.04, a first-degree felony; the
second was for aggravated possession of drugs, in violation of R.C. 2925.11, a second-
degree felony; the third was for illegal assembly or possession of chemicals for the
manufacture of drugs, in violation of R.C. 2925.04, a second-degree felony. Appellant
pleaded not guilty to all charges. Plea negotiations failed. A jury trial commenced
January 4, 2016, and concluded the following day. On appellant’s Crim.R. 29 motion,
the trial court dismissed the first count of the indictment. The trial court further
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dismissed a specification in the third count, alleging the criminal activity therein had
occurred in the vicinity of a juvenile or school, reducing the third count to a third degree
felony.
{¶7} The jury subsequently found appellant guilty on the second and third
counts of the indictment. A sentencing hearing went forward on March 1, 2016. By a
judgment entry filed March 7, 2016, the trial court sentenced appellant to three years
imprisonment on the second count, and five years imprisonment on the third count, that
term being mandatory. The trial court further assessed court costs, but waived the
mandatory fine attached to the third count, informed appellant she would be subject to
three years post release control, and suspended her driver’s license for six months.
{¶8} Appellant timely noticed this appeal, assigning three errors. The first
provides:
{¶9} “Defendant-appellant was denied the effective assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution and
Article I, Section X of the Ohio Constitution where his [sic] counsel failed to file a motion
to suppress.”
{¶10} Appellant contends she was prejudiced by counsel’s failure to file a motion
to suppress evidence based upon the warrantless entry into the hotel room in which she
and the contraband were found.
{¶11} To establish ineffective assistance of counsel, appellant must show that
counsel’s actions fell below an objective standard of reasonableness and that appellant
was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687–88, 693
(1984). Prejudice occurs where there is a reasonable probability that, but for counsel’s
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errors, the result of the trial would have been different. Id. at 694. When the ineffective
assistance claim is predicated upon the failure to submit a motion to suppress particular
evidence, “‘an appellant must point to evidence in the record showing there was a
reasonable probability the result of [the] trial would have differed if the motion had been
filed or pursued.’” State v. Woodard, 11th Dist. Ashtabula No. 2009-A-0047, 2010-Ohio-
2949, ¶14, quoting State v. Gaines, 11th Dist. Lake Nos. 2006-L-059 and 2006-L-060,
2007-Ohio-1375, ¶17. “Hence, to establish prejudice, an appellant must prove more
than a mere possibility that the motion could have been granted; rather, he or she must
show a reasonable probability that, but for the omission, the result of the proceedings
would have been different.” State v. DelMonico, 11th Dist. Ashtabula No. 2003-A-0022,
2005-Ohio-2902, ¶20.
{¶12} “The Fourth Amendment safeguards: ‘[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.’” (Emphasis sic.) State v. Andrews, 177 Ohio
App.3d 593, 2008-Ohio-3993, ¶19 (11th Dist.) Quoting the Fourth Amendment to the
United States Constitution. “It is a ‘basic principle of Fourth Amendment law’ that
searches and seizures inside a home without a warrant are presumptively
unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). The United States
Supreme Court has made clear that “in terms that apply equally to seizures of property
and seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to
the house.” Id. at 590. “Absent exigent circumstances, that threshold may not
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reasonably be crossed without a warrant.” Id. The exigent circumstances doctrine
mandates that, in the absence of a search warrant, probable cause plus exigent
circumstances are required to for a warrantless entry of a home. Kirk v. Louisiana, 536
U.S. 635, 637 (2002), citing Payton, supra, at 590.
{¶13} As appellant points out, “a person’s hotel room, like a person’s home,
must be free of warrantless intrusions; any lesser standard is presumptively
unreasonable. Middleburg Hts. v. Theiss, 28 Ohio App.3d 1, 3 (8th Dist.1985), citing
Payton, supra. She ignores, however, the effect of R.C. 2933.33(A), which provides:
{¶14} 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.
{¶15} In this case, Detective Cleveland, a police officer with extensive
experience investigating methamphetamine labs, smelled the distinctive odor of the
drug emanating from appellant’s motel room. This provided him with exigent
circumstances to conduct a warrantless search.
{¶16} The first assignment of error lacks merit.
{¶17} Appellant’s second assignment of error reads:
{¶18} “Appellant was wrongfully convicted when the State failed to establish the
weight of the drug possessed which is an essential element of the crime of Aggravated
Possession of Drugs (ORC 2925.11(C)(1)(c).”
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{¶19} Under this assignment of error, appellant argues that the state was
required to establish the actual amount of methamphetamine in the seized liquid before
that amount could be compared to the abstract “bulk amount,” in order to determine
whether she possessed more than the bulk amount. We disagree.
{¶20} Appellant was charged and convicted for aggravated possession of drugs,
in violation of R.C. 2925.11, which provides, in pertinent part:
{¶21} (A) No person shall knowingly obtain, possess or use a controlled
substance analog.
{¶22} “* * *
{¶23} (C) Whoever violates division (A) of this section is guilty of one of
the following:
{¶24} (1) 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. The penalty for
the offense shall be determined as follows:
{¶25} * * *
{¶26} (c) 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,
and the court shall impose as a mandatory prison term one of the
prison terms prescribed for a felony of the second degree.”
{¶27} R.C. 2925.01(D)(1)(g) defines “bulk amount” as:
{¶28} (g) An amount equal to or exceeding three grams of a compound,
mixture, preparation, or substance that is or contains any amount of
a schedule II stimulant, or any of its salts or isomers, that is not in a
final dosage form manufactured by a person authorized by the
Federal Food, Drug, and Cosmetic Act and the federal drug abuse
control laws.
{¶29} At trial, Anna Tabor, a scientist with the Ohio Bureau of Criminal
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Investigation, testified that she analyzed the liquid taken from appellant’s motel room;
that the liquid contained methamphetamine; and that the total weight of the liquid was
some 96.53 grams – more than five times the bulk amount (15 grams), but less than 55
times the bulk amount (165 grams). This liquid, however, was merely a precursor to
ingestible methamphetamine. Appellant argues the state was required to prove the
amount of methamphetamine in the precursor or the amount that would have resulted
from this liquid.
{¶30} We review a trial court’s interpretation and application of statutes de novo.
State v. Owen, 11th Dist. Lake No. 2012-L-102, 2013-Ohio-2824, ¶17. A cardinal rule is
that the courts of Ohio must construe unambiguous statutes according to their plain
language. If the meaning of the statute is unambiguous and definite, it must be applied
as written and no further interpretation is necessary. State ex rel. Savarese v. Buckeye
Local School Dist. Bd. of Edn., 74 Ohio St. 3d 543, 545 (1996).
{¶31} In her brief, appellant urges us to consider State v. Gonzales, which was
accepted by the Supreme Court of Ohio both on a certified conflict, and on discretionary
appeal. State v. Gonzales, 143 Ohio St.3d 1402, 2015-Ohio-2747, and 143 Ohio St.3d
1403, 2015-Ohio-2747. The court announced its decision December 23, 2016. State v.
Gonzales, Slip Opinion No. 2016-Ohio-8319. In relevant part, the court held that the
state must prove the weight of actual cocaine in a defendant’s possession, apart from
any admixture or filler. Id. at ¶22. In doing so, the court reasoned that the definition of
“cocaine” set forth at 2925.01(X) does not include the word “mixture.” Id. at ¶15, 19.
The definition of methamphetamine set forth at R.C. 2925.01(II), however, includes the
word “mixture.” In reaching its conclusion that the definition of “cocaine” means only the
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drug itself, the court in Gonzales specifically cited this difference in the definitions of
“cocaine” and “methamphetamine.” Gonzales, supra, at ¶19. Further, on March 6,
2017, the Supreme Court of Ohio issued a new opinion in Gonzales, on the state’s
motion for reconsideration. The court reversed its prior holding, and concluded that for
purposes of the drug possession statute, all the state must prove regarding weight of
cocaine is the total weight of the cocaine, including any filler. State v. Gonzales, 2017-
Ohio-777, ¶18. Gonzales, in light of its recent schizophrenic procedural and
substantive history, does not necessarily inform our analysis.
{¶32} As noted, R.C. 2925.01(I)(I) defines methamphetamine as
“methamphetamine, 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.” There was no evidence to suggest
that the precursor at issue was a salt, isomer, or salt of an isomer of methamphetamine
or a compound, mixture, preparation, or substance containing such things. Despite this
point, Ms. Tabor testified she tested the bottles taken during the search and determined
that two of the bottles contained methamphetamine.
{¶33} 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
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contains methamphetamine is methamphetamine. The 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. There was accordingly sufficient evidence that the precursor was a mixture,
substance, or preparation that contained methamphetamine pursuant to R.C.
2925.01(I)(I).
{¶34} Appellant contends, however, that the precursor was not a drug because
“drug” is defined as “any other article * * * intended to affect * * * any function of the
body * * *.” R.C. 2925.01 and R.C. 4729.01(E)(3). Because the precursor was not
intended to affect the body’s function, appellant maintains it is not a drug and cannot be
a basis for the charge of aggravated possession of drugs. Although, on its face,
appellant makes an interesting point, methamphetamine is a drug and, as factually
strange as it may be, the precursor is statutorily methamphetamine in this case.
{¶35} We acknowledge the ridiculousness of convicting an individual of
aggravated possession of drugs even though the “drug,” in its existing form, was not
marketable or useable. We must, however, apply the unambiguous language of the law
as written. And unless or until the legislature changes the definition of
methamphetamine to exclude compounds, mixtures, preparations, or substances that
are not useable, strange and arguably absurd results will be achieved. In light of the
statutory definition of methamphetamine, the state presented sufficient evidence to
establish the total weight of the liquid precursor was more than five times the bulk
amount.
{¶36} Appellant’s second assignment of error lacks merit.
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{¶37} Appellant’s third assignment of error asserts:
{¶38} “The state failed to establish possession of the drugs or chemicals as
required for conviction of counts two and/or three.”
{¶39} Under this assignment of error, appellant argues that possession is a
necessary element for conviction of either aggravated possession of drugs, or illegal
assembly or possession of chemicals for the manufacture of drugs. She asserts the
state failed to present sufficient evidence she possessed either the methamphetamine
found in her room, or the equipment for the methamphetamine lab, and, further, that her
convictions of each crime are against the manifest weight of the evidence.
{¶40} Appellant cites to R.C. 2925.01(K), which provides: “‘Possess’ or
‘possession’ means having control over a thing or substance, but may not be inferred
solely from mere access to the thing or substance through ownership or occupation of
the premises upon which the thing or substance is found.” The Mason jars and the
backpack were both next to Mr. Dixon’s bed, not hers; Mr. Dixon testified on her behalf
at trial, and firmly maintained that the drugs and the methamphetamine lab equipment
were his sole property.
{¶41} A “sufficiency” argument raises a question of law as to whether the
prosecution offered some evidence concerning each element of the charged offense.
State v. Windle, 11th Dist. Lake No.2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he proper
inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury
could have found the essential elements of the crime proven beyond a reasonable
doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062 ¶9 (11th Dist.)
{¶42} In contrast, a court reviewing the manifest weight observes the entire
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record, weighs the evidence and all reasonable inferences, considers the credibility of
the witnesses and determines whether, in resolving conflicts in the evidence, the jury
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. Schlee, 11th Dist. Lake No. 93-L-
082, 1994 WL 738452, *14-*15 (Dec. 23, 1994).
{¶43} The state argues it presented evidence that appellant had “constructive”
possession of the methamphetamine and drug paraphernalia. In State v. Adams, 11th
Dist. Ashtabula No. 2012-A-0025, 2013-Ohio-1603, ¶35, this court held:
{¶44} “Possession of drugs can be either actual or constructive.” State v. Fogle,
11th Dist. No.2008–P–0009, 2009–Ohio–1005, ¶28. “Constructive possession exists
when an individual knowingly exercises dominion and control over an object, even
though that object may not be within his immediate physical possession.” State v.
Hankerson, 70 Ohio St.2d 87 (1982), syllabus. “Even if the contraband is not in a
suspect’s ‘immediate physical possession,’ the suspect may still constructively possess
the item, so long as the evidence demonstrates that he “was able to exercise dominion
and control over the controlled substance.” Fogle at ¶28, citing State v. Lee, 11th Dist.
No.2002-T-0168, 2004-Ohio-6954, ¶41. To prove constructive possession, “[i]t must
also be shown that the person was conscious of the presence of the object.”
Hankerson, supra, at 91. Further, constructive possession can be proved solely by
circumstantial evidence. Adams, supra, at ¶38.
{¶45} The state introduced evidence that appellant was living in the room at the
Motel 6 where the methamphetamine precursor, which, as discussed above, was
sufficient to establish aggravated possession of drugs, as well as the lab equipment was
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found. It introduced evidence that it took from three to five minutes for appellant to
answer the door once Detectives Ward and Cleveland tried to open it, and both
detectives testified they heard shuffling noises in the room during this interval.
Detective Cleveland testified the backpack containing the lab equipment was soaked
from an open container of lighter fluid, which is used in manufacturing
methamphetamine. There was evidence the trash container in the room contained
coffee filters and cotton balls soaked with solvent – all used in the manufacture of
methamphetamine. From the totality of this evidence, a jury could infer that appellant
and Mr. Dixon were in the process of assembling or using the methamphetamine lab
when the detectives arrived, and hastily disassembled it. Thus, the state introduced
evidence that appellant could exercise dominion and control over the precursor and
methamphetamine lab equipment, and that she was aware they were in the motel room.
The state introduced sufficient evidence of constructive possession of each crime, and
the jury’s conclusion Ms Thomason possessed the lab equipment and chemicals was
not against the manifest weight of the evidence.
{¶46} The third assignment of error lacks merit.
{¶47} The judgment of the Ashtabula County Court of Common Pleas is
affirmed.
TIMOTHY P. CANNON, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.
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