State v. Bostwick

[Cite as State v. Bostwick, 2011-Ohio-3671.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No: 10CA3382
:
v. :
: DECISION AND
JASON D. BOSTWICK, : JUDGMENT ENTRY
:
Defendant-Appellant. : File-stamped date: 7-21-11
APPEARANCES:
George L. Davis, IV, George L. Davis, III Co., L.L.C, Portsmouth, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for Appellee.
Kline, J.:
{¶1} Jason D. Bostwick (hereinafter “Bostwick”) appeals the judgment of the Scioto
County Court of Common Pleas. After a jury trial, Bostwick was found guilty of
Assembly or Possession of Chemicals Used to Manufacture Controlled Substance with
Intent to Manufacture Controlled Substance, a violation of R.C. 2925.041(A). On
appeal, Bostwick first contends (1) that insufficient evidence supports his conviction and
(2) that his conviction is against the manifest weight of the evidence. We disagree.
Instead, we find substantial evidence upon which the trier of fact could have reasonably
concluded that the elements of R.C. 2925.041(A) were proven beyond a reasonable
doubt. Next, Bostwick contends that his trial counsel was ineffective for not filing a
motion to suppress evidence. Because any potential motion to suppress would have
Scioto App. No. 10CA3382 2
failed, we disagree. Accordingly, we overrule Bostwick’s assignments of error and
affirm the judgment of the trial court.
I.
{¶2} Late one evening, Bostwick was driving a 1989 Ford pickup truck. State
Trooper Nick Lewis (hereinafter “Trooper Lewis”) was driving behind Bostwick and ran a
registration check on Bostwick’s vehicle. After learning that the tags on Bostwick’s truck
actually belonged to a 2002 Pontiac, Trooper Lewis pulled the truck over.
{¶3} Trooper Lewis asked to see Bostwick’s driver’s license. Although he claimed
to have one, Bostwick did not have a driver’s license on him at the time. As a result,
Bostwick was placed in the police cruiser while Trooper Lewis determined Bostwick’s
driving status.
{¶4} While in the cruiser, Bostwick asked Trooper Lewis to turn off the truck’s
headlights. Apparently, Bostwick was afraid that the headlights would run down the
battery. Trooper Lewis then returned to the truck and discovered a syringe on the
ground. During Bostwick’s trial, Trooper Lewis described finding the syringe: “I’m
walking -- walked back up to the vehicle to * * * turn off the headlights, there’s a syringe
between the -- basically between the door and cab of the truck, basically it looks like the
door came open and [the syringe] just fell to the ground.” Transcript at 27. Additionally,
Trooper Lewis was certain that the syringe was not there before because “it was
basically in a spot where [he] would have had to step on it.” Id.
{¶5} Trooper Lewis knew that syringes were “common with drug abuse around
[that] area.” Id. And for that reason, he decided to search Bostwick’s vehicle for
evidence of drugs. Trooper Lewis and another state trooper then recovered the
Scioto App. No. 10CA3382 3
following items from Bostwick’s truck: two empty cans of starting fluid, gas cans, tubing,
brass fittings, and a broken mason jar. Recognizing that these items are used in
methamphetamine production, Trooper Lewis placed Bostwick under arrest.
{¶6} On February 24, 2010, a Scioto County grand jury indicted Bostwick for
“Illegal Possession of Chemicals for the Manufacture of Drugs,” a third-degree felony in
violation of “R.C. 2925.041(A)/(C).” Indictment.
{¶7} Bostwick’s jury trial took place on July 12, 2010. Trooper Lewis and Detective
John Koch (hereinafter “Detective Koch”) were two of the state’s witnesses. Detective
Koch testified as an expert witness on methamphetamine production, particularly the
“Nazi method” of production that is prevalent in Southern Ohio. According to Detective
Koch, the items recovered from Bostwick’s truck are frequently associated with the Nazi
method.
{¶8} Eventually, the jury found Bostwick guilty of Assembly or Possession of
Chemicals Used to Manufacture Controlled Substance with Intent to Manufacture
Controlled Substance, and the trial court sentenced Bostwick accordingly.
{¶9} Bostwick appeals and asserts the following two assignments of error: I.
“Appellant’s Conviction for Illegal Possession of Chemicals for the Manufacture of Drugs
was supported by insufficient evidence and was against the manifest weight of the
evidence.” And, II. “Appellant was denied his constitutional right of due process based
upon ineffective assistance of counsel.”
II.
{¶10} In his first assignment of error, Bostwick contends (1) that his conviction is
against the manifest weight of the evidence and (2) that insufficient evidence supports
Scioto App. No. 10CA3382 4
his conviction. ‘“When an appellate court concludes that the weight of the evidence
supports a defendant’s conviction, this conclusion necessarily includes a finding that
sufficient evidence supports the conviction.’ State v. Puckett, [191 Ohio App. 3d 747],
2010-Ohio-6597, at ¶34. ‘Thus, a determination that [a] conviction is supported by the
weight of the evidence will also be dispositive of the issue of sufficiency.’ Id., quoting
State v. Lombardi, Summit App. No. 22435, 2005-Ohio-4942, at ¶9, in turn, quoting
State v. Roberts (Sept. 17, 1997), Lorain App. No. 96CA006462[.] Therefore, we first
consider whether [Bostwick’s] conviction[ is] against the manifest weight of the
evidence.” State v. Leslie, Hocking App. Nos. 10CA17 & 10CA18, 2011-Ohio-2727, at
¶15 (internal footnote omitted).
{¶11} When determining whether a criminal conviction is against the manifest
weight of the evidence, we “will not reverse a conviction where there is substantial
evidence upon which the [trier of fact] could reasonably conclude that all the elements
of an offense have been proven beyond a reasonable doubt.” State v. Eskridge (1988),
38 Ohio St. 3d 56, at paragraph two of the syllabus. See, also, State v. Smith, Pickaway
App. No. 06CA7, 2007-Ohio-502, at ¶33. We “must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial granted.” Id. at ¶41, citing State v. Garrow (1995), 103 Ohio
App.3d 368, 370-371; State v. Martin (1983), 20 Ohio App. 3d 172, 175. But “[o]n the
trial of a case, * * * the weight to be given the evidence and the credibility of the
Scioto App. No. 10CA3382 5
witnesses are primarily for the trier of the facts.” State v. DeHass (1967), 10 Ohio St. 2d
230, at paragraph one of the syllabus.
{¶12} Under R.C. 2925.041(A), “No 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[.]” Thus, R.C. 2925.041(A) consists of the following elements: “(1) ‘knowingly,’ (2)
‘assemble or possess,’ (3) ‘chemicals that may be used to manufacture a controlled
substance,’ and (4) ‘intent to manufacture a controlled substance[.]’” State v. Creech,
188 Ohio App. 3d 513, 2010-Ohio-2553, at ¶20. Furthermore, “[m]ethamphetamine is a
controlled substance. R.C. 3719.41, Schedule II(C)(2).” State v. Lane, Summit App.
No. 25437, 2011-Ohio-2381, at ¶8.
{¶13} Essentially, Bostwick advances two arguments under his first assignment of
error. First, Bostwick argues that, “at the time of the traffic stop[, he] never actually
possessed any chemicals whatsoever for the manufacture of a controlled substance.”
Brief of Appellant at 12. And second, Bostwick argues that “the state did not prove any
intent to manufacture a controlled substance.” Id. For these reasons, Bostwick
contends that his convictions are against the manifest weight of the evidence.
{¶14} Despite Bostwick’s arguments, we find that substantial evidence supports his
conviction. Bostwick’s truck contained items frequently associated with the “Nazi
method” of methamphetamine production, which, according to Detective Koch, is the
primary method of methamphetamine production in Southern Ohio. For example,
troopers recovered two cans of starting fluid from Bostwick’s truck. Both cans had small
holes in them, and Detective Koch explained the significance of the holes: “[T]he holes
Scioto App. No. 10CA3382 6
[were] punched near the bottom of these cans, and this is a method or a way to extract
the ether from the starting fluid. By turning [the can] upside down and spraying the
aerosol out and punching the can, then you will have ether * * * -- it’s a collection
method.” Transcript at 101. As Detective Koch noted, ether is used in the Nazi method
of methamphetamine production. In fact, Koch testified that ether “is one [of] the
ingredients that [he] find[s the] most.” Transcript at 102.
{¶15} In addition to the cans of starting fluid, the police recovered gas cans, tubing,
brass fittings, and a broken mason jar from Bostwick’s truck. Detective Koch testified
about how these items are used in the Nazi method of methamphetamine production.
Gas cans are used “to produce hydrogen chloride gas,” which is a chemical used in the
production of methamphetamine. Transcript at 103. Tubing and brass fittings are used
to collect “anhydrous ammonia” and “transport chemicals * * * during the manufacturing
process.” Transcript at 105. And finally, “a lot of the cooking [of methamphetamine] is
done within [mason] jars.” Transcript at 103. Thus, the items recovered from
Bostwick’s truck are associated with the most prevalent form of methamphetamine
production in Southern Ohio.
{¶16} Here, the evidence supports the inference that Bostwick was involved in the
production of methamphetamines. First, Bostwick possessed items frequently
associated with the Nazi method of production. And second, Trooper Lewis found a
syringe that apparently fell out of Bostwick’s truck. This is significant because, as
Detective Lewis testified, methamphetamines are commonly injected.
{¶17} Because the jury could have reasonably inferred that Bostwick was involved
in methamphetamine production, we reject the two arguments under Bostwick’s first
Scioto App. No. 10CA3382 7
assignment of error. That is, (1) it was not necessary for the state to demonstrate that
Bostwick actually possessed chemicals at the time of the traffic stop, and (2) there was
substantial evidence for the jury to find that Bostwick intended to manufacture
methamphetamines In rejecting Bostwick’s two arguments, we recognize that the
evidence against him is mostly circumstantial. But “Ohio courts have repeatedly
concluded that ‘circumstantial evidence can have the same probative value as direct
evidence. * * * A conviction can be sustained based on circumstantial evidence alone.’”
State v. Smith, Highland App. No. 09CA29, 2010-Ohio-4507, at ¶44, quoting State v.
Franklin (1991), 62 Ohio St. 3d 118, 124 (omission sic).
{¶18} We reject Bostwick’s first argument because the circumstantial evidence
shows that Bostwick did possess ether at some point in time. (For ease of analysis, we
will limit our discussion to ether. Nevertheless, the jury could have reasonably inferred
that Bostwick possessed hydrogen chloride gas, anhydrous ammonia, or other
chemicals used in the Nazi method of methamphetamine production.) The cans of
starting fluid had small holes in them, which, according to Detective Koch, is evidence
that the cans had already been drained of ether. Thus, the jury could have reasonably
inferred that Bostwick collected ether and, therefore, possessed it prior to the traffic
stop.
{¶19} We reject Bostwick’s second argument because the circumstantial evidence
shows Bostwick’s intent for possessing ether. “Generally, the intent of a person cannot
be proven by direct evidence, thus proof of intent may be shown from circumstantial
evidence.” State v. Cole, Seneca App. No. 13-10-30, 2011-Ohio-409, at ¶23, citing
State v. Lott (1990), 51 Ohio St. 3d 160, 168. Here, Bostwick possessed items
Scioto App. No. 10CA3382 8
associated with the Nazi method of methamphetamine production. Therefore, the jury
could have reasonably inferred that Bostwick possessed ether because he intended to
use that ether in the production of methamphetamines.
{¶20} For the foregoing reasons, we find substantial evidence upon which the jury
could have reasonably concluded that Bostwick’s guilt had been proven beyond a
reasonable doubt. Furthermore, because Bostwick’s conviction is not against the
manifest weight of the evidence, we find that sufficient evidence also supports his
conviction. See Leslie at ¶¶15, 23.
{¶21} Accordingly, we overrule Bostwick’s first assignment of error.
III.
{¶22} In his second assignment of error, Bostwick argues that his trial counsel
should have filed a motion to suppress the evidence obtained from Bostwick’s truck.
Because his trial counsel failed to do so, Bostwick contends that he received ineffective
assistance of counsel.
{¶23} “In Ohio, a properly licensed attorney is presumed competent and the
appellant bears the burden to establish counsel’s ineffectiveness.” State v. Norman,
Ross App. Nos. 08CA3059 & 08CA3066, 2009-Ohio-5458, at ¶65 (internal quotations
omitted); see, also, State v. Wright, Washington App. No. 00CA39, 2001-Ohio-2473;
State v. Hamblin (1988), 37 Ohio St. 3d 153, 155-56, cert. den. Hamblin v. Ohio (1988)
488 U.S. 975. To secure reversal for the ineffective assistance of counsel, one must
show two things: (1) “that counsel’s performance was deficient * * *[,]” which “requires
showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment[;]” and (2) “that the
Scioto App. No. 10CA3382 9
deficient performance prejudiced the defense * * *[,]” which “requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Strickland v. Washington (1984), 466 U.S. 668, 687. See, also,
Norman at ¶65. “Failure to satisfy either prong is fatal as the accused’s burden requires
proof of both elements.” State v. Hall, Adams App. No. 07CA837, 2007-Ohio-6091, at
¶11 (citation omitted).
{¶24} “Failing to file a motion to suppress does not constitute ineffective assistance
of counsel per se.” State v. Brown, 115 Ohio St. 3d 55, 2007-Ohio-4837, at ¶65, citing
State v. Madrigal, 87 Ohio St. 3d 378, 389, 2000-Ohio-448. The Supreme Court of Ohio
has “rejected claims of ineffective counsel when counsel failed to file or withdrew a
suppression motion when doing so was a tactical decision, there was no reasonable
probability of success, or there was no prejudice to the defendant.” State v. Nields, 93
Ohio St. 3d 6, 34, 2001-Ohio-1291 (citations omitted). Furthermore, “[t]o establish
ineffective assistance of counsel for failure to file a motion to suppress, a defendant
must prove that there was a basis to suppress the evidence in question.” Brown at ¶65,
citing State v. Adams, 103 Ohio St. 3d 508, 2004-Ohio-5845, at ¶35.
{¶25} Because Trooper Lewis had probable cause to search Bostwick’s truck, we
find that a motion to suppress would have failed. “Once a law enforcement officer has
probable cause to believe that a vehicle contains contraband, he or she may search a
validly stopped motor vehicle based upon the well-established automobile exception to
the warrant requirement.” State v. Moore, 90 Ohio St. 3d 47, 51, 2000-Ohio-10. See,
also, Pennsylvania v. Labron (1996), 518 U.S. 938, 940 (“If a car is readily mobile and
probable cause exists to believe it contains contraband, the Fourth Amendment thus
Scioto App. No. 10CA3382 10
permits police to search the vehicle without more.”). “Probable cause exists when there
is a ‘fair probability that contraband or evidence of a crime will be found in a particular
place.’” State v. Evans, Montgomery App. No. 20794, 2006-Ohio-1425, at ¶33, quoting
Illinois v. Gates (1983), 462 U.S. 213, 238.
{¶26} Here, Trooper Lewis clearly had probable cause to search Bostwick’s motor
vehicle. After placing Bostwick in the cruiser, Trooper Lewis returned to Bostwick’s
vehicle and found a syringe “between the door and cab of the truck[.]” Transcript at 27.
Trooper Lewis testified that the syringe was not there when he first approached
Bostwick’s vehicle. Instead, Trooper Lewis believed that the syringe fell from inside the
truck. As Trooper Lewis testified:
{¶27} “Q. Now had that syringe been at that location when you first approached
that vehicle?
{¶28} “A. No. No, it was basically in a spot where I would have had to step on it.”
Id.
{¶29} Thus, the evidence demonstrates that the syringe came from Bostwick’s
truck. Furthermore, Trooper Lewis testified that, based on his experience, “syringes are
common with drug abuse around [that] area.” Id. As a result, we find that the discovery
of the syringe established probable cause for Trooper Lewis to search Bostwick’s motor
vehicle. See, generally, Wyoming v. Houghton (1999), 526 U.S. 295, 297-98 (Police
searched a vehicle after finding a “hypodermic syringe” in the driver’s pocket.); State v.
Wilson, Clinton App. No. CA2006-03-008, 2007-Ohio-353, at ¶35 (Police could have
obtained a search warrant based on evidence of an “anhydrous ammonia odor and * * *
syringes on the bathroom floor.”).
Scioto App. No. 10CA3382 11
{¶30} Because there was probable cause to search Bostwick’s truck, any potential
motion to suppress would have failed. Therefore, the failure to file a motion to suppress
did not constitute ineffective assistance of counsel.
{¶31} Accordingly, we overrule Bostwick’s second assignment of error. Having
overruled both assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Scioto App. No. 10CA3382 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.