State v. Risner , 2018 Ohio 1569 ( 2018 )

[Cite as State v. Risner, 2018-Ohio-1569.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2017-06-007
: OPINION
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:
RONALD DEAN RISNER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 12-CR-11146
Martin P. Votel, Preble County Prosecuting Attorney, Gractia S. Manning, Preble County
Courthouse, 101 East Main Street, Eaton, Ohio 45320, for plaintiff-appellee
Wayne C. Staton, Timothy J. Meloy, 110 North Beech Street, Oxford, Ohio 45056, for
defendant-appellant
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Ronald Dean Risner, appeals from his convictions in the
Preble County Court of Common Pleas for offenses related to a methamphetamine
manufacturing operation at his home. For the reasons discussed below, this court affirms
Risner's convictions.
{¶ 2} In December 2012, Pamela Bowling loaned her vehicle to Fred Perry. Perry
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was supposed to return the vehicle a few hours later but did not. Pamela asked her son,
Christopher, to find Perry and repossess the vehicle.
{¶ 3} On December 16, 2012, Christopher observed Perry driving Pamela's vehicle in
Somerville, Ohio. Christopher followed the vehicle until Perry pulled into an address at 793
Oxford Germantown Road, in Camden, Ohio, which is Risner's residence. Christopher noted
the address and left to get someone to transport him to the address so that he could drive
away in Pamela's vehicle.
{¶ 4} Later, Christopher walked down the driveway and found Perry inside the
vehicle. Christopher told Perry he was there to repossess the car and that Perry should
remove any of his items from the car.
{¶ 5} Christopher observed Perry remove a box with gallon jugs, a small green tank,
and a bag containing batteries and boxes of Sudafed. Perry set the items down outside a
door leading to the garage. Christopher noted a "nasty" smell inside the vehicle. He
deduced that a methamphetamine "cook" was underway at the residence.
{¶ 6} Christopher drove the vehicle away but was concerned that it may still have
contraband inside so he contacted the Butler County Sheriff's Office and asked for a K-9 unit
to inspect the automobile. The Butler County Sheriff's Office provided Christopher's
information to the Preble County Sheriff's Office.
{¶ 7} Detective Dean Miller with the Preble County Sheriff's Office called Christopher
immediately thereafter and Christopher relayed his observations. Detective Miller was
familiar with the address because Risner had, five years earlier, been convicted of
manufacturing methamphetamine at the residence. Detective Miller then obtained a search
warrant, which he executed at the home the morning of December 17, 2012.
{¶ 8} Risner was home when law enforcement arrived to execute the warrant. Also
present were Risner's girlfriend Christy Benge, Perry, and Perry's girlfriend. Deputies located
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numerous items throughout the home and the home's garage associated with
methamphetamine manufacturing, including crushed pseudoephedrine, containers of "pill
sludge," lithium batteries, and anhydrous ammonia. Deputies found methamphetamine in a
container in Risner's room. Numerous guns were also found on the property, although
Risner was under a legal disability to own firearms. The Preble County Sheriff's Office
arrested Risner and allowed the other three individuals to leave.
{¶ 9} In March 2013, in a superseding indictment, a Preble County grand jury indicted
Risner with: count one, illegal manufacture of drugs, a violation of R.C. 2925.04(A), and a
second-degree felony; count two, illegal assembly or possession of chemicals for the
manufacture of drugs, a violation of R.C. 2925.041(A), and a felony of third degree; count
three, possession of drugs in violation of R.C. 2925.11(A) and (C)(1)(c), a second-degree
felony; count four, having weapons under disability in violation of R.C. 2923.13(A)(3), a felony
of the third degree; and count five, drug paraphernalia, a violation of R.C. 2925.14(C)(1), and
a fourth-degree misdemeanor.
{¶ 10} Risner moved to suppress evidence collected from the search warrant, arguing
that Detective Miller's affidavit contained insufficient facts to establish probable cause to
issue the search warrant. In April 2013, the court denied Risner's motion and set the matter
for trial. Risner and the state subsequently negotiated an agreed sentence and the court set
a hearing for a change of plea. However, Risner failed to appear and the court issued a
capias for his arrest. Risner successfully evaded capture by the authorities for nearly three
years. Ultimately, the Preble County Sheriff's Office sought assistance from the U.S.
Marshals Service. In October 2016, marshals captured Risner in nearby College Corner,
Indiana.
{¶ 11} Risner's bench trial occurred in January 2017. The state introduced testimony
from Christopher Bowling, Fred Perry, Detective Miller, and an agent from Ohio's Bureau of
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Criminal Investigation who supervised the processing and disposal of the evidence at
Risner's home. The state also introduced documentary evidence including numerous
photographs taken at Risner's home and the laboratory test results of samples taken from
alleged contraband at the home.
{¶ 12} Risner and Christy Benge testified in Risner's defense case. Risner admitted
that the methamphetamine found in his bedroom was his and the guns were as well.
However, Risner denied that he was involved in manufacturing methamphetamine and
denied any knowledge that methamphetamine was being produced at his home. Risner
claimed he was sick in bed and implied that Perry was responsible for the methamphetamine
production at the home.
{¶ 13} The court found Risner guilty of all charges in the indictment and sentenced
him to five years in prison. Risner appeals, raising two assignments of error.
{¶ 14} Assignment of Error No. 1:
{¶ 15} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO
SUPPRESS.
{¶ 16} Risner argues that Detective Miller's affidavit contained insufficient facts to
support a probable cause finding for the issuance of the search warrant. The Fourth
Amendment to the United States Constitution prohibits unreasonable searches and seizures
and provides that "* * * 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." Accordingly, a judge may issue a search warrant only upon a finding of
probable cause in an affidavit or affidavits presented to the judge. Crim.R. 41(C). The
affidavit must "name or describe the person to be searched or particularly describe the place
to be searched, name or describe the property to be searched for and seized, state
substantially the offense in relation thereto, and state the factual basis for the affiant's belief
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that such property is there located." Crim.R. 41(C)(1). "The finding of probable cause may
be based upon hearsay in whole or in part, provided there is a substantial basis for believing
the source of the hearsay to be credible and for believing that there is a factual basis for the
information furnished." Crim.R. 41(C)(2); State v. Cobb, 12th Dist. Butler No. CA2007-06-
153, 2008-Ohio-5210, ¶ 23.
{¶ 17} "In determining whether probable cause exists for the issuance of a warrant,
courts employ a 'totality-of-the-circumstances' test, requiring an issuing judge 'to make a
practical, common-sense decision whether, given all the circumstances set forth in the
affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying
hearsay information, there is a fair probability that contraband or evidence of a crime will be
found in a particular place.'" State v. Landis, 12th Dist. Butler No. CA2005-10-428, 2006-
Ohio-3538, ¶ 12, quoting State v. George, 45 Ohio St. 3d 325, 544 N.E.2d 640 (1989),
paragraph one of the syllabus.
{¶ 18} When reviewing the decision to issue a warrant, neither a trial court nor an
appellate court will conduct a de novo determination as to whether the affidavit provided
sufficient probable cause. State v. Quinn, 12th Dist. Butler No. CA2011-06-116, 2012-Ohio-
3123, ¶ 21. Rather, the reviewing court need only ensure that the issuing judge had a
substantial basis for concluding that the probable cause existed based on the information
contained in the four corners of the affidavit filed in support of the warrant. Id.; State v.
Akers, 12th Dist. Butler No. CA2007-07-163, 2008-Ohio-4164, ¶ 14.
{¶ 19} In the affidavit, Detective Miller averred that the home was a small cottage
located 100 yards behind a larger home at 793 Oxford Germantown Road in Camden, Ohio.
The home was presently occupied by Risner, and possibly occupied by Fred Perry and a
female named "Jamie." Detective Miller and the Preble County Sheriff's Office had, in 2007,
executed a search warrant at the home, which resulted in Risner being convicted of illegal
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manufacture of drugs.
{¶ 20} Detective Miller averred that he spoke with Christopher Bowling at
approximately 11:00 p.m. on December 16, 2012. Bowling first called the Butler County
Sheriff's Office to report drug activity. The Butler County Sheriff's Office then contacted
Detective Miller and provided him with Bowling's information. Detective Miller called Bowling
immediately.
{¶ 21} Bowling relayed that he had just been at the cottage to pick up his mother's car
from Fred Perry, an acquaintance of his mother. Perry had a 2007 arrest for drug trafficking,
was charged with felony drug possession in 2012, and had at least two other drug-related
charges.
{¶ 22} When Bowling arrived at the property, he told Perry to remove Perry's
possessions from the car. Bowling noticed Perry removing packages of pseudoephedrine
tablets, paint thinner, and other bottles of unknown liquids or substances. Perry placed those
items on the porch of the cottage. Bowling told Miller that he reported what he saw because
his mother was "running around" with Perry and he was concerned for her welfare.
{¶ 23} The affidavit further stated that Detective Miller was trained in clandestine lab
investigations with the Preble County Sheriff's Office and recognized the items described by
Bowling as being some of the chemicals used in the manufacture of methamphetamines.
Detective Miller opined that given the activity witnessed by Bowling it "is likely that a
methamphetamine 'cook' is taking place or is imminent."
{¶ 24} This court concludes that Detective Miller's affidavit contained sufficient
evidence to support a probable cause finding justifying the issuance of the search warrant.
The affidavit indicated that Bowling reported observing some of the items necessary for the
manufacture of methamphetamine, which were being loaded onto the porch of a residence
where Detective Miller was aware that Risner lived. Risner had been previously convicted of
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illegally manufacturing methamphetamine at the same residence. Moreover, Detective Miller
was aware that Perry had a criminal background in drug possession and alleged trafficking.
{¶ 25} Risner argues that the affidavit contained no facts linking drug activity by
Risner with the home. In this respect, Risner contends that it was Perry, not him, whom
Bowling observed removing items believed to be related to manufacturing
methamphetamine. Risner cites two cases where motions to suppress were ruled on
favorably that he claims are analogous. State v. Perez, 2d Dist. Montgomery No. 26518,
2015-Ohio-1753; and State v. Reniff, 146 Ohio App. 3d 749 (8th Dist.2001). In Perez, the
court granted a motion to suppress where the affidavit in support of the search warrant failed
to provide a nexus between the defendant's alleged drug trafficking activities and a storage
locker. Id. at ¶ 20. The affidavit contained no evidence indicating that the defendant was
using the storage locker to store contraband. Id. In Reniff, the court granted the motion to
suppress evidence recovered pursuant to a search warrant for an apartment where the only
evidence connecting the apartment to illegal narcotics was that the apartment's owner had
conversations with or visited another man in the same apartment who was trafficking drugs.
Id. at 755.
{¶ 26} Unlike these cases, Detective Miller's affidavit provided a clear nexus between
alleged drug activity and Risner's residence. As discussed, Bowling reported seeing items
used in the manufacture of methamphetamine placed on the porch of Risner's cottage by a
person known to be involved in drug-related activities. And, Detective Miller stated in his
affidavit that Risner had used the premises previously in conjunction with the manufacture of
methamphetamine.
{¶ 27} Risner also argues that the affidavit was deficient in that it was based entirely
on information from Bowling, which Detective Miller did not independently verify. A tip from
an anonymous informant is not considered inherently reliable, thus generally requiring some
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independent police corroboration. State v. Abercrombie, 12th Dist. Clermont No. CA2001-
06-057, 2002-Ohio-2414, ¶ 14. However, a tip from an identified citizen based on the
citizen's personal observations may be considered highly reliable. Id. "If an unquestionably
honest citizen comes forward with a report of criminal activity – which if fabricated would
subject him to criminal liability – we have found rigorous scrutiny of the basis of his
knowledge unnecessary." Illinois v. Gates, 462 U.S. 213, 233-234, 103 S. Ct. 2317 (1983).
Bowling identified himself to law enforcement when reporting what he personally observed.
Moreover, Bowling's report was consistent with Detective Miller's knowledge of past drug
activity at the premises. Accordingly, we find that Bowling's tip was sufficiently reliable that
independent corroboration was unnecessary. Based upon our review of the affidavit, the trial
court had a substantial basis for concluding that probable cause existed in support of issuing
a search warrant. This court therefore overrules Risner's first assignment of error.
{¶ 28} Assignment of Error No. 2:
{¶ 29} APPELLANT'S CONVICTIONS FOR MANUFACTURING OF
[METHAMPHETAMINES] AND POSSESSION OR ASSEMBLY OF CHEMICALS FOR THE
MANUFACTURE OF [METHAMPHETAMINES] WERE NOT SUPPORTED BY SUFFICIENT
EVIDENCE AND WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 30} Risner argues that the state failed to present sufficient evidence to establish
that he knowingly engaged in the illegal manufacture of methamphetamines and illegal
assembly or possession of chemicals for the manufacture of methamphetamines and
otherwise argues that his convictions were against the manifest weight of the evidence.
When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate
court examines the evidence to determine whether such evidence, if believed, would
convince the average mind of the defendant's guilt beyond a reasonable doubt. State v.
Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 16. The "relevant inquiry
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is whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt." State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus.
{¶ 31} A manifest weight of the evidence challenge, on the other hand, 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. To determine whether a conviction is against the manifest weight of
the evidence, the reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine 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.
Id. 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. Id. at ¶ 15. A "determination that a conviction is supported by the manifest
weight of the evidence will also be dispositive of the issue of sufficiency." State v. Jones,
12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19.
{¶ 32} The court found Risner guilty of illegal manufacture of drugs in violation of R.C.
2925.04(A), which provides, "[n]o person shall * * * knowingly manufacture or otherwise
engage in any part of the production of a controlled substance." The court also convicted
Risner of illegal assembly or possession of chemicals for the manufacture of drugs in
violation of R.C. 2925.041(A), which provides, "[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 section 2925.04 of the Revised Code."
{¶ 33} The Revised Code defines the culpable mental state of knowingly as:
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A person acts knowingly, regardless of purpose, when the
person is aware that the person’s conduct will probably cause a
certain result or will probably be of a certain nature. A person
has knowledge of circumstances when the person is aware that
such circumstances probably exist. When knowledge of the
existence of a particular fact is an element of an offense, such
knowledge is established if a person subjectively believes that
there is a high probability of its existence and fails to make
inquiry or acts with a conscious purpose to avoid learning the
fact.
R.C. 2901.22(B).
{¶ 34} Detective Miller testified at trial that he was trained in the investigation of
methamphetamine laboratories. He identified the necessary elements to produce
methamphetamine, which include pseudoephedrine, a solvent (e.g., paint thinner or mineral
spirits), lithium metal, and anhydrous ammonia.
{¶ 35} Detective Miller testified that upon executing the search warrant, he quickly
determined that a methamphetamine manufacturing process was ongoing in the home.
Officers located a can of mineral spirits in a bag outside the home. In the kitchen, officers
found mineral spirits, coffee grinders containing ground or crushed pseudoephedrine, two
pitchers containing a "pill sludge," i.e., crushed pseudoephedrine soaking in a liquid, and an
electronic pH tester in a glass jar sitting in a small amount of liquid. In the living room area,
officers located a small amount of methamphetamine, a bag that contained a pH test kit,
empty blister packs of various pseudoephedrine brands, and numerous receipts for
pseudoephedrine purchases at local pharmacies. In a desk, officers found a digital scale and
packets of unboxed pseudoephedrine tablets in blister packs that were wrapped together in
tape. In Risner's garage, officers located a container with what they believed was dry pill
sludge, a 40-pound propane cylinder with modified valves filled with anhydrous ammonia,
and a device that was likely used to manufacture the anhydrous ammonia. In Risner's
bedroom, officers found a container filled with lithium batteries, a container of "MSM" which is
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a livestock supplement commonly used as a cutting agent for methamphetamine, and a
container with two grams of methamphetamine.
{¶ 36} Several items recovered from Risner's home were sent to the Miami Valley
Regional Crime Laboratory to confirm whether they were contraband. The powder in one of
the coffee grinders tested positive for pseudoephedrine. Liquid from one of the pitchers in
the kitchen containing the "pill sludge" tested positive for methamphetamine and a petroleum
distillate, such as mineral spirits. Detective Miller also noted that a police scanner was found
hanging on a curtain rod and the home had an exterior video surveillance system installed.
{¶ 37} Detective Miller testified that Risner had $2,075 on his person when he was
arrested. Detective Miller further confirmed that Risner was previously found guilty of illegal
manufacture of drugs in 2007.
{¶ 38} Special Agent Dwight Aspacher testified that he worked for Ohio's Bureau of
Criminal Investigation and his duties involved the investigation, processing, and mitigation of
clandestine drug laboratories. Agent Aspacher responded to Risner's home to assist
Detective Miller and other emergency responders with processing and safely disposing of the
evidence. Agent Aspacher testified that the pitcher containing a pill sludge found in the
kitchen indicated an ongoing and active methamphetamine manufacturing process that was
"close to the end." Agent Aspacher opined that the pill sludge had been mixed within the
previous ten hours. The material found in the container in the garage was "pill waste" from
earlier methamphetamine productions. Agent Aspacher testified that it was unlikely that this
was a mobile methamphetamine operation because of the items recovered at the scene.
{¶ 39} In his case-in-chief, Risner testified that on the night of December 16 he was in
bed asleep. His girlfriend came into the bedroom and told him that a vehicle drove down the
driveway and parked near the garage. Risner looked at his video monitor, saw a sport utility
vehicle, and recognized Fred Perry sitting in the vehicle's driver seat and an unknown female
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in the passenger seat. Both Perry and the female passenger were asleep. Risner decided
he would ask Perry what he was doing in the morning and went back to sleep.
{¶ 40} Approximately two hours later, Risner awoke to a noise and saw a car driving
away. He spoke with Perry and asked him what happened. Perry told him "they came to
pick up a car." Risner then responded, "well, I'm going back to sleep, I'm sick." Risner did
not invite Perry into his home. He then went back to his home, shut the door, and went to
bed. The next morning there was a knock at the door, he opened the door, and invited
Detective Miller into the home.
{¶ 41} Risner claimed that he only discovered that Fred Perry was in his home when
he woke up that morning to answer Detective Miller's knock. Risner denied knowledge that
methamphetamine was being manufactured at his home. Risner admitted that there was
methamphetamine in his room. He was not using methamphetamine but had received it from
someone as a form of payment.
{¶ 42} Risner was aware of the container in the garage that contained what Detective
Miller and Agent Aspacher testified was probably a dry pill sludge. Risner stated that it was
not a pill sludge but was fertilizer that he intended to use in a flower bed. Risner also stated
that the device that Detective Miller testified was being used to manufacture anhydrous
ammonia was actually being used in conjunction with a vehicle project involving Freon. With
respect to the can of mineral spirits located outside the home, Risner testified that Perry told
him that the can was his. Benge testified and denied knowledge of any methamphetamine-
related items in the home.
{¶ 43} We conclude that Risner's convictions for illegal manufacture of drugs and
illegal assembly of chemicals for drug manufacturing were supported by the manifest weight
of the evidence. Finished methamphetamine and all the necessary chemicals to
manufacture methamphetamine were located throughout Risner's small cottage home. The
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evidence also showed that a methamphetamine manufacturing operation was active and had
been going on for sufficiently long to build up a supply of dry pill waste. The evidence, if
believed, demonstrated that Risner knowingly manufactured or otherwise engaged in any
part of the production of methamphetamine and that Risner knowingly assembled or
possessed one or more chemicals used to manufacture methamphetamine. The trial court
sitting as the factfinder was free to find Risner not credible and reject his version of events,
which was essentially that, unbeknownst to him, Perry invited himself into Risner's home,
and, in one night, set up a methamphetamine manufacturing operation in various parts of the
home. See State v. Hill, 75 Ohio St. 3d 195, 205 (1996).
{¶ 44} Risner argues that the state failed to establish that an active
methamphetamine production was ongoing at his home between December 15 and 17,
2012. Risner claims that there was only dry pill sludge present at the home that would have
been more that several days old. Initially, we note that this argument conflicts with Risner's
claim that the dry pill sludge was fertilizer that he intended to put on his flower bed.
Regardless, there was evidence that methamphetamine manufacturing was recent, i.e.,
Agent Aspacher opined that the pill sludge found in one of the pitchers, which tested positive
for methamphetamine, was less than ten hours old and that the manufacturing process was
"active."
{¶ 45} Risner also argues that the methamphetamine in production could have been
produced elsewhere and transported to the home by Perry. This court agrees that the
evidence would suggest that Perry was also involved in the production of methamphetamine.
However, the evidence does not support the conclusion that Risner was uninvolved in any
part of the process simply because Perry was the only person seen handling some of the
items necessary to produce methamphetamine. Our decision with respect to the weight of
the evidence is also dispositive of the issue of sufficiency. Jones, 2013-Ohio-150 at ¶ 19.
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Consequently, this court overrules Risner's second assignment of error.
{¶ 46} Judgment affirmed.
S. POWELL, P.J., and M. POWELL, J., concur.
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