State v. Colley

[Cite as State v. Colley, 2017-Ohio-4080.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
: Case No. 16CA3740
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
ROBERT C. COLLEY, :
:
Defendant-Appellant. : Released: 05/26/17
_____________________________________________________________
APPEARANCES:
John A. Gambill, Portsmouth, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto
County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Robert C. Colley appeals his conviction in the Scioto County
Court of Common Pleas after a jury found him guilty of one count of illegal
assembly or possession of chemicals for the manufacture of drugs, a third-
degree felony. On appeal, Colley contends: (1) the trial court erred in
denying his motion for a directed verdict on the ground of improper venue;
(2) the evidence was insufficient as a matter of law or, in the alternative, his
conviction was against the manifest weight of the evidence, when the State
presented no evidence of “intent to manufacture” methamphetamine; and (3)
Scioto App. No. 16CA3740 2
the trial court erred in permitting evidence of third parties’ purchase of
pseudoephedrine, unrelated to his case. Upon review, we find no merit to
Appellant’s arguments. As such the trial court did not err. Accordingly, we
overrule Appellant’s three assignments of error and affirm the judgment of
the trial court.
FACTS
{¶2} On May 20, 2015, Robert C. Colley was indicted on one count
of illegal assembly or possession of chemicals for the manufacture of drugs,
a violation of R.C. 2925.041(A), and a felony of the third degree. The
indictment occurred after an officer for the Ohio Department of Natural
Resources (“ODNR”) discovered two discarded bags of trash containing
three boxes of pseudoephedrine product, an active ingredient used for the
assembly of methamphetamine, along Big Run Road in the Shawnee State
Forest. Items in both trash bags belonged to Jeannie Kinzer, Appellant’s co-
defendant and girlfriend at the time.1 While none of the items were directly
linked to Appellant, ODNR’s investigation revealed that Appellant had
purchased pseudoephedrine close in time to purchases made by Kinzer.
Kinzer’s trial testimony later linked some of the contents in the trash bags to
Appellant.
1
Kinzer testified she has three children. Appellant is the father of her youngest, 11 months old at the time
of trial. It is unclear if Appellant and Kinzer were still involved in romantic relationship at the time of trial.
Scioto App. No. 16CA3740 3
{¶3} Appellant proceeded to a jury trial on February 23, 2016. The
State’s case began with testimony from ODNR Officer Bryce Morris.
Officer Morris testified regarding his background and training in recognition
and awareness of clandestine labs for the production of methamphetamine.
On October 12, 2014, Officer Morris was patrolling the Brush Creek State
Forest area in Scioto County, investigating litter dump sites along the road,
when he discovered two trash bags. This area of Scioto County is not far
from the Pike County, Ohio, line. Officer Morris testified he was looking
for items which could be connected to the production of methamphetamine.
{¶4} Officer Morris searched the trash bags and found the following:
1) An envelope from the Ohio Department of Job and Family
Services addressed to “Jeannie Kinzer” at “1926 McDermott
Rushtown Road”;
2) An empty package of electrical tape;
3) A Kroger magazine addressed to “Derrick Tackett” at the
same address on McDermott-Rushtown Road;
4) An ice compress with the top right hand corner cut; and
5) Three boxes of Leader Allergy Relief D-24.
{¶5} Officer Morris testified pseudoephedrine is an active ingredient
in the manufacture of methamphetamine and the three boxes of Leader
Allergy Relief D-24 were sold at Bartley’s Discount Pharmacy in Waverly,
Scioto App. No. 16CA3740 4
located in Pike County, Ohio. The ingredients listed on the boxes include
pseudoephedrine sulfate.
{¶6} Officer Morris testified in the “one-pot” method of manufacture,
electrical tape may be used to seal off a bottle to make it airtight. He also
explained the product inside an ice compress, ammonium nitrate, is one of
the ingredients for manufacture. The corner being cut on the compress was
not the typical use of a compress, because the ammonium should not touch
one’s skin.
{¶7} In the second trash bag, Officer Morris found the following:
1) Multiple empty pill blister packs from the three empty boxes
of Leader Allergy Relief D-24, from Bartley’s Pharmacy;
2) A grocery list of various items including sea salt and coffee
filters;
3) A capped and empty 20-ounce Mello Yello bottle, containing
a capped syringe.
{¶8} Officer Morris testified coffee filters are used to filter liquid and
leave behind crystallized methamphetamine.
{¶9} Officer Morris further testified after looking through the items,
he began researching Jeannie Kinzer and Derrick Tackett’s names and
addresses in OLEG,2 and another database, NPLEX.3 Officer Morris
2
OLEG is the Ohio Law Enforcement Gateway database, overseen by the Ohio Attorney General’s Office.
3
NPLEX is the National Precursor Log Exchange, overseen by the federal government. This database
tracks purchases of products containing pseudoephedrine.
Scioto App. No. 16CA3740 5
identified a summary record of Jeannie Kinzer’s pseudoephedrine purchases,
showing transaction dates and locations. Officer Morris also identified an
NPLEX record and summary of Appellant’s pseudoephedrine purchases at
Bartley’s Pharmacy and at a Walmart Pharmacy both in Waverly, Ohio.4
{¶10} Andy Canterbury, the Asset Production Manager at the
Waverly Walmart, testified about Walmart’s video surveillance system. He
testified there are approximately 180 cameras inside the store. The cameras
record for approximately 93 days. Canterbury is able to view multiple
cameras at a time, link them together, and watch an individual moving
throughout the store.
{¶11} Canterbury testified that on October 19, 2014, he assisted
Officer Morris in reviewing several days of surveillance video. Canterbury
identified a CD he burned for Officer Morris, showing Jeannie Kinzer and
Appellant purchasing pseudoephedrine products. Canterbury also took still
photographs from the video. Canterbury identified an overshot of a register,
an electronic journal from the Waverly store, and the still photographs taken
from the video surveillance.
{¶12} On October 19, 2014, Officer Morris and another ODNR
officer, Charles Carlson, went to Walmart with the NPLEX records to
4
Waverly is a village in Pike County.
Scioto App. No. 16CA3740 6
review the Walmart footage. They had enlarged BMV photos of Appellant
and Jeanie Kinzer. On October 3rd, they observed a red Ford Explorer
entering the parking lot and Kinzer entering the store. They were able to
match the surveillance video with the database records of purchase. Kinzer
purchased Sudafed. Also on that date, Appellant purchased Leader Allergy
Relief D-24 at Bartley’s.
{¶13} The officers also reviewed the pharmacy counter camera and
then back-tracked to find Appellant and Kinzer’s vehicle in the parking lot.
Kinzer then met with two other individuals - Appellant and a third subject.
The group met at the pharmacy counter, then separated. Kinzer left the store
and pulled a red Ford Explorer near the front of the store. Appellant was
observed in the video checking out.5 Appellant and the other individual left
the store and got into Kinzer’s vehicle.
{¶14} Morris also testified that on August 23rd surveillance footage,
Kinzer was at the front desk purchasing and they matched her record with
NPLEX. They also viewed Appellant exiting the store, with Sudafed
purchases recorded on that date.
{¶15} As a result of viewing these tapes, Morris attempted to
interview Kinzer at the address found in the trash bags. They were able to
5
The third subject, wearing a white bandana and black jacket, was tracked to the battery section of
Walmart’s electronics department. Officer Morris testified lithium batteries are also used in the one-pot
method.
Scioto App. No. 16CA3740 7
locate Derrick Tackett, her brother. The officers were unable to make
contact with Kinzer. Meanwhile, the Mello Yello bottle with the syringe
was tested for DNA by the Ohio Bureau of Criminal Identification and
Investigation (“BCI”). The DNA was matched to Jeannie Kinzer.6 Based
on the investigation, Officer Morris filed indictments against both Appellant
and Kinzer.
{¶16} On cross-examination, Officer Morris testified he has
investigated 3 methamphetamine cases. He admitted his duties are “spread
pretty thin.” He also acknowledged:
1) He was testifying from his report prepared 18 months
earlier;
2) The Mello Yello bottle was the only DNA sample sent to
BCI;
3) He did not order fingerprinting and did not take a statement
from Kinzer;
4) Other entries in the NPLEX summary show Kinzer
purchasing without Appellant’s presence;
5) Appellant also purchased Claritin-D within the legal limits
and on dates he was allowed to purchase;
6) Officer Morris never reviewed Appellant’s medical history;
and,
6
Kinzer’s DNA was provided from a previous sample retrieved from the Ross County Sheriff’s
Department.
Scioto App. No. 16CA3740 8
7) None of the documents in the trash bags could be directly
connected to Appellant.
{¶17} On redirect, Morris reiterated the significance of the NPLEX
purchase records. Kinzer’s summary demonstrates she made 16 purchases
of pseudoephedrine products between April 1, 2014 and January 8, 2015.
Appellant made 12 purchases in 2014. Five times in 2014, Appellant and
Kinzer purchased on the same date.
{¶18} The next witness, Thomas Kelley, the Pharmacy Manager at
Waverly Walmart, testified pseudoephedrine is a stimulant decongestant, an
over-the-counter product used for relief of cold symptoms. Although it is
not an allergy medicine, it is sometimes combined with allergy medicine.
Kelley testified pseudoephedrine is used illegally to reduce it from its
current form into methamphetamine.
{¶19} Kelley further testified due to the Control Methamphetamine
Act, pharmacies must maintain records of pseudoephedrine sales. A person
purchasing pseudoephedrine has to provide the purchaser’s address and a
current photo ID, without alteration. Walmart keeps its own database in the
home office, in the normal course of business, and the records are shared
with NPLEX.
{¶20} Kelley testified he saw many individuals from Scioto County,
Ohio, with no patient relationship to the Walmart Pharmacy, attempting to
Scioto App. No. 16CA3740 9
purchase pseudoephedrine. Specifically, he testified on a typical day, 30-40
people request pseudoephedrine and half, if not more, are residents from
Scioto County. He has visually verified this fact by viewing driver’s
licenses.
{¶21} Kelley identified purchase records for Jeannie Kinzer and for
Appellant. Kinzer’s purchase record showed Allergy and Congestion Relief
purchased on August 23, 2014. Both items can be broken down to make
methamphetamine. On October 3, 2014, Kinzer purchased Decongestant, 12
hour Max. Appellant’s purchase record reflected purchases of drugs that can
be converted to methamphetamine.
{¶22} On cross examination, Kelley explained that decongestant is
used to relieve nasal pressure. Under Ohio law, a person can buy 3.6 grams
per day. Kelley acknowledged none of his records showed Appellant
making illegal purchases.
{¶23} Vanessa Rigsby, a manager at Bartley’s Pharmacy, testified
she trains other employees on pseudoephedrine sales and is aware of illegal
uses. Rigsby also explained the procedure for pseudoephedrine sales. When
a customer requests a product, Bartley’s computer scans the driver’s license
and the product. Once that is done, the computer will advise if the sale can
be completed, or if the purchaser has bought the limit anywhere else. The
Scioto App. No. 16CA3740 10
electronic records are stored in Bartley’s computer, kept in the normal
course of business, and shared with NPLEX. Rigsby identified an October
3, 2014 record of purchase of Leader Allergy Relief D-24 from Bartley’s,
sold to Appellant.
{¶24} Officer Charles Carlson, an investigator for ODNR, testified
that ODNR had recently been finding methamphetamine dumps along the
roadways. He assisted in the cleanup of these dumps. Officer Carlson also
testified as to the ingredients used and the process for breaking down
pseudoephedrine and making it into methamphetamine.
{¶25} On October 12, 2014, Officer Morris contacted Officer Carlson
and showed him pictures of the trash collected. The totality of the
ingredients discarded led Officer Carlson to believe a one-pot method had
been discarded. Since there were no fingerprints, they tested DNA on the
bottle. They also had receipts and tracked the purchasers through NPLEX.
Carlson identified the State’s exhibits.
{¶26} On cross-examination, Officer Carlson testified he is one of six
investigators for 25 counties. He testified he and Officer Morris linked
Appellant to the bags through the video surveillance showing his purchases.
{¶27} The State’s last witness was Jeannie Kinzer. She testified she
is 36 years old, an admitted drug addict for 11 years. She was currently in
Scioto App. No. 16CA3740 11
treatment. Kinzer also admitted she has a felony conviction for illegal
manufacturing, for which she received a five-year sentence of probation, and
two petty theft convictions from other counties. She was subpoenaed and
did not want to testify against Appellant.
{¶28} Kinzer met Appellant when they were teenagers. They
reconnected in 2013. At the time, Appellant was in treatment. They formed
a relationship after he completed treatment in 2013. Kinzer used
methamphetamine, for the first time, with Appellant on New Year’s Eve
2014.7
{¶29} Kinzer testified the Big Run Road area was a solitary place,
about three miles from where they lived. She and Appellant went there to be
alone and to “shoot up” because it was private. Kinzer testified she used
Suboxone or methamphetamine. Towards the end of 2014, she was using
Suboxone and methamphetamine, with Appellant, daily. They administered
it through syringes.
{¶30} Kinzer testified she would purchase pseudoephedrine and then
trade it for Suboxone, money, or methamphetamine. She always went to the
Waverly Walmart. Sometimes Appellant went with her. He was also
purchasing pseudoephedrine, but she did not see what he did with his boxes.
7
The date given is “New Year’s Eve 2014,” however, we consider this may be a scrivener’s error as, in
light of her other testimony, it would be more logical for the date to actually be “New Year’s Eve 2013.”
Scioto App. No. 16CA3740 12
Importantly, Kinzer testified Appellant “always” drove her vehicle because
he did not like the way she drove.
{¶31} Kinzer identified a photograph of her vehicle, herself, and
Appellant on October 3, 2014. She also identified her signature for a
purchase of a pseudoephedrine product. Kinzer also identified her Job and
Family Services mail with the McDermott-Rushtown Road address, as well
as the grocery list in her writing. She testified the sea salt and coffee filters
on the list had nothing to do with her making methamphetamine. Kinzer
denied throwing out the trash bags on Big Run. She also denied cutting the
corner of the ice pack.
{¶32} Kinzer identified her brother’s name, Derrick Tackett, on the
Kroger magazine. Kinzer testified her brother always gave her his Kroger
coupons, but he had nothing to do with the items located in the trash bags.
He was not living with her at the time.
{¶33} Kinzer testified Appellant purchased at Bartley’s Pharmacy if
they could not get pseudoephedrine from Walmart. Kinzer testified during
the time she was using methamphetamine, she did not know who was
actually making it. Appellant would take the boxes of pseudoephedrine and
come back with methamphetamine. He had a lot of contacts and he didn’t
Scioto App. No. 16CA3740 13
want her to meet them, for her protection. Specifically, she testified “I do
not know if he was making it.”
{¶34} On cross-examination, Kinzer admitted she had worked at a
nursing home in Hillsboro and was suspended for suspicion of theft of
narcotics. She testified she had already violated her probation by testing
positive for methamphetamine. She testified in the past she had observed
Appellant sleeping and sometimes he had difficulty breathing. Kinzer also
recalled writing Appellant a letter in which she said she felt pressured to
testify against him. She testified she did not recall the Mello Yello bottle or
the other items she was shown by the prosecutor.
{¶35} At this point, the State moved to admit all but one of its
exhibits, and the court granted this motion. Defense counsel moved for a
directed verdict on the issue of venue, arguing that none of the actions
alleged to be in violation of the law occurred in Scioto County. The motion
for directed verdict was overruled. Then the State rested. Appellant did not
present evidence.
{¶36} The jury found Appellant guilty. He was subsequently
sentenced to a maximum prison term of thirty-six months. This timely
appeal followed.
ASSIGNMENTS OF ERROR
Scioto App. No. 16CA3740 14
“I. THE TRIAL COURT ERRED IN DENYING
APPELLANT’S MOTION FOR A DIRECTED VERDICT AT
THE CLOSE OF THE STATE’S CASE ON THE GROUND
OF IMPROPER VENUE.
II. THE EVIDENCE WAS INSUFFICIENT AS A MATTER
OF LAW TO CONVICT APPELLANT OF ILLEGAL
ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE
MANUFACTURE OF DRUGS AS INDICTED; OR, IN THE
ALTERNATIVE, THE CONVICTIONS WERE AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
III. THE COURT ERRED IN PERMITTING THE
TESTIMONY OF THOMAS KELLEY REGARDING
UNKNOWN THIRD PARTY CONDUCT IN PURCHASING
PSEUDOEPHEDRINE FROM WAVERLY WALMART
WHEN SUCH ALLEGED INCIDENTS ARE UNRELATED
TO THE PRESENT CASE AND THE SAME ARE
SEVERELY PREJUDICIAL.”
ASSIGNMENT OF ERROR ONE
{¶37} Under the first assignment of error, Appellant points out that
venue is an essential element of proving a criminal defendant’s guilt at trial.
At the close of trial, Appellant’s counsel moved for a directed verdict on the
ground of improper venue inasmuch as there was no evidence Appellant
committed any illegal acts in Scioto County. Appellant argues the evidence
is clear that all of the events in question occurred in Pike County, not Scioto
County, as alleged in the indictment.
{¶38} In response, Appellee acknowledges that the series of events
by which Appellant and Kinzer gathered materials to manufacture
Scioto App. No. 16CA3740 15
methamphetamine began by purchasing pseudoephedrine in Pike County.
However, Appellee asserts there is no authority which requires all events
leading to a criminal act to occur within one county. Moreover, the evidence
that was linked to the criminal activity was dumped and discovered in Scioto
County. Appellee concludes there was competent credible evidence beyond
a reasonable doubt upon which to overcome a Crim.R. 29 motion for
acquittal based on venue.
A. STANDARD OF REVIEW
{¶39} Under Crim.R. 29(A), “[t]he court on motion of a defendant
* * *, after the evidence on either side is closed, shall order the entry of
acquittal * * *, if the evidence is insufficient to sustain a conviction of such
offense or offenses.” State v. Wright, 4th Dist. Athens No. 15CA31, 2016-
Ohio-7654, ¶ 21. “A motion for acquittal under Crim.R. 29(A) is governed
by the same standard as the one for determining whether a verdict is
supported by sufficient evidence.” Id. quoting State v. Tenace, 109 Ohio
St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37; State v. Husted, 2014-
Ohio-4978, 23 N.E.3d 253, ¶ 10 (4th Dist.). “When a court reviews a record
for sufficiency, ‘[t]he relevant inquiry 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
Scioto App. No. 16CA3740 16
doubt.’ ” Id. at 22, quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-
1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus; Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781 (1979). In making its ruling a court does not weigh
the evidence but simply determines whether the evidence, if believed, is
adequate to support a conviction. In other words, the motion does not test
the rational persuasiveness of the State's case, but merely its legal adequacy.
State v. Reyes–Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338,
¶ 15. Over a century of well-established jurisprudence clearly mandates that
a motion for judgment of acquittal must be granted when the evidence is
insufficient for reasonable minds to find that venue is proper. State v.
Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 24.
B. LEGAL ANALYSIS
{¶40} The Ohio Constitution, Article I, Section 10 provides an
accused the right to “a speedy public trial by an impartial jury of the county
in which the offense is alleged to have been committed.” Hampton, supra, at
¶ 19. The Supreme Court of Ohio has stated, “Section 10, Article I of the
Ohio Constitution fixes venue, or the proper place to try a criminal matter
* * *.” Id., quoting State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716(1983). “A conviction may not be had in a criminal case where the proof
Scioto App. No. 16CA3740 17
fails to show that the crime alleged in the indictment occurred in the county
where the indictment was returned.” Hampton, supra, quoting State v.
Nevius, 147 Ohio St. 263, 71 N.E.2d 258 (1947), paragraph three of the
syllabus.
{¶41} The Supreme Court has also stated: “[I]t is not essential that
the venue of the crime be proven in express terms, provided it be established
by all the facts and circumstances in the case, beyond a reasonable doubt,
that the crime was committed in the county and state as alleged in the
indictment.” State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969 (1907),
paragraph one of the syllabus. In our own decision in Wright, supra, we
observed at ¶ 27:
“ ‘The purpose of the venue requirement is to give the
defendant the right to be tried in the vicinity of the alleged
criminal activity, and to limit the state from indiscriminately
seeking a favorable location for trial that might be an
inconvenience or disadvantage to the defendant.’ ” State v.
Webster, 8th Dist. Cuyahoga No. 102833, 2016-Ohio-2624,
2016 WL 1593052, ¶ 78, quoting State v. Koval, 12th Dist.
Warren No. CA2005–06–083, 2006-Ohio-5377, ¶ 9; see also
State v. Mercer, 4th Dist. Ross No. 14CA3448, 2015-Ohio-
3040, at ¶ 9.”
{¶42} “Ideally, the prosecution will establish venue with direct
evidence.” State v. Mercer, ¶ 11, quoting State v. Quivey, 4th Dist. Meigs
No. 04CA8, 2005-Ohio-5540, ¶ 16, (judgment reversed in part by Ohio
Criminal Sentencing Statutes Cases, May 3, 2006), citing Toledo v.
Scioto App. No. 16CA3740 18
Taberner, 61 Ohio App.3d 791, 793, 573 N.E.2d 1173 (6th Dist.1989). Yet,
the General Assembly has given the state considerable flexibility with
respect to establishing venue when the state cannot determine the precise
location at which the offense took place. Hampton, supra, at ¶ 23. R.C.
2901.12(G) allows for an offense that was committed in any of two or more
jurisdictions to be charged in any of those jurisdictions. The requirement of
“[v]enue is satisfied where there is a sufficient nexus between the defendant
and the county of the trial.” Wright, supra, at ¶ 27, quoting State v.
Chintalapalli, 88 Ohio St.3d 43, 45, 723 N.E.2d 111 (2000), citing Draggo,
65 Ohio St.2d at 92, 418 N.E.2d 1343.
{¶43} The sufficiency of evidence of venue was challenged in our
own district in Mercer, supra. There the defendant was convicted of theft
from a Menards store. On appeal, Mercer argued no State’s witness
explicitly testified that the store was located in Ross County. However, we
observed although the State did not provide explicit testimony as to venue,
the State did present evidence that the Chillicothe Police Department
responded to the report. We concluded that while the State's evidence might
be far from overwhelming, it was sufficient to establish venue. A reasonable
fact-finder could determine that the Chillicothe Police Department's
response to the scene indicated that the Menards store was located in Ross
Scioto App. No. 16CA3740 19
County. See State v. Curry, 2nd Dist. Greene No.2012–CA–50, 2014-Ohio-
3836, ¶ 23, State v. Woodson, 4th Dist. Ross No. 97CA2306 (Feb. 11, 1998).
{¶44} We considered a venue issue in State v. Young, 4th Dist.
Meigs No. 458, 1992 WL 188485, (July 28, 1992). There Young appealed
from a kidnapping conviction, arguing on appeal that there was insufficient
evidence that the proper venue was in Ohio. The defendant claimed that all
the elements of the crime occurred in West Virginia. However, we found
viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found that the occurrence in Meigs County,
Ohio, in particular of all of or at least part of the deception to remove the
victim from her home in Ohio, had been proven beyond a reasonable doubt.
Observing the requirements of R.C. 2901.01(A) and (G), we stated: “It is not
essential to criminal responsibility that the accused do every act necessary to
accomplish the crime within the jurisdiction where he is prosecuted. Venue
lies for all the offenses in any jurisdiction in which any of the elements of
the offense were committed.” Id. at *4.
{¶45} We considered the defendant’s argument that venue had not
been sufficiently proven in State v. Cremeans, 5 Ohio App.3d 8, 448 N.E.2d
837 (4th Dist.1982). There, Cremeans was convicted for unlawfully
interfering with a game protector performing his duties. On appeal,
Scioto App. No. 16CA3740 20
Cremeans argued the trial court erred by overruling his motion for a directed
verdict, based upon improper venue, when the exact location where the
offense occurred was unknown by the State of Ohio. Citing the venue
statute, R.C. 2901.012(G), we observed that the evidence was
uncontroverted that the offense occurred close to the Athens County and
Meigs County boundary lines. We agreed with the trial court’s conclusion
finding R.C. 2901.12(G) applicable under the facts of the case.
{¶46} More recently, in State v. Wright, supra, the defendant
appealed from the judgment of the Athens County Court of Common Pleas
convicting her of two counts of interference with custody and sentencing her
to community control. Wright asserted that the trial court erred in denying
her motion for judgment of acquittal at the close of the evidence because
there was insufficient evidence of venue in Athens County when she, her
husband, and their children did not reside in that county when the crimes
occurred. We reasoned: “Because the “without privilege to do so” element
of the interference with custody offenses occurred in Athens County, the fact
that Wright, her husband, and the children may not have been residents there
on the date she removed the children from Ohio to Texas did not deprive
Athens County from venue to try Wright for those offenses.” After viewing
the evidence in a light most favorable to the prosecution, we found a rational
Scioto App. No. 16CA3740 21
trier of fact could have found that the State had proven that Athens County
was a proper venue for the criminal charges. Id. at 34.8
{¶47} In the case sub judice, in making the Crim.R. 29 motion,
defense counsel emphasized nothing in the trash bags was linked to
Appellant, and that every action took place in Pike County. The State
responded, citing Kinzer’s testimony that Appellant “always” drove her car;
that the trash was from her car; and that they went to Pike County to buy
pseudoephedrine but brought it back to Scioto County and traded it for
methamphetamine that they used on Big Run, where the trash was found.
The trial court overruled the Rule 29 motion and we do not find this to be
error.
{¶48} After reviewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found that the element of
venue, in Scioto County, proven beyond a reasonable doubt. The evidence
is clear that Appellant purchased pseudoephedrine in Pike County.
However, the ODNR officers discovered a clandestine lab, one-pot method,
8
See State v. Miller, 63 Ohio App.3d at 485, 579 N.E.2d 276 (finding venue appropriate where it was
obvious the crime occurred somewhere along the banks of the Little Miami River, but uncertain if the
incident occurred in Warren County or a neighboring county through which the Little Miami River runs),
See also State v. Palmer, 9th Dist. No. Civ.A. 2323-M, 1995 WL 48442 (finding venue appropriate in
Medina County where a child victim could not recall if offenses occurred at her family's residence in
Cuyahoga County or their subsequent residence in Medina County due to her young age), and State v.
Christman, 7th Dist. No. 786, 1999 WL 343411 (finding venue appropriate in Monroe County where
murder victim, whose body was never found, was last seen by defendant and reported missing in Belmont
County, but defendant made statements to several witnesses that places in Monroe County would be good
for hiding a body or that he buried the victim at those places).
Scioto App. No. 16CA3740 22
in trash bags discarded in Scioto County. The trash bags contained the
various ingredients and precursors to methamphetamine production, i.e. the
empty boxes of Leader Allergy Relief D-24; the cut ice compress; the empty
blister packs; the grocery list for coffee filters and sea salt; and the Mello
Yello bottle containing a syringe.
{¶49} Jeannie Kinzer testified she did not make methamphetamine,
but she gave her boxes of pseudoephedrine to Appellant and he returned
with methamphetamine. She testified he always drove her car. She testified
she did not cut the ice compress, and she did not discard the trash bags.
These facts will be discussed further below.
{¶50} We find, however, any rational trier of fact could have found
an element of the manufacture of methamphetamine, as in Young, supra,
was committed in Scioto County. The evidence is uncontroverted that
Appellant’s offense, as in Cremeans, occurred close to the Scioto and Pike
County line, making R.C. 2901.12(G) applicable to these facts. For the
foregoing reasons, we find the trial court did not err by overruling
Appellant’s Crim.R. 29 motion for acquittal.
ASSIGNMENT OF ERROR TWO
{¶51} Appellant argues under the second assignment of error that the
evidence was legally insufficient to convict him or, in the alternative, that
Scioto App. No. 16CA3740 23
his conviction was against the manifest weight of the evidence. He contends
there is no direct evidence that Appellant engaged in the illegal assembly or
possession of chemicals for the manufacturing of drugs, specifically
methamphetamine. Specifically, he argues the State presented no evidence
linking him to the items discovered by the ODNR officers, only that he
purchased pseudoephedrine and had used methamphetamine during the
relevant time period. Moreover, he argues, the State’s case used inferences
and circumstantial evidence and failed to prove the essential element that
Appellant had an intent to manufacture.
A. STANDARD OF REVIEW
{¶52} When an appellate court considers a claim that a conviction is
against the manifest weight of the evidence, the court must dutifully
examine the entire record, weigh the evidence, and consider the credibility
of witnesses. The reviewing court must bear in mind however, that
credibility generally is an issue for the trier of fact to resolve. State v.
Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, ¶ 25; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th
Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “ ‘Because the trier of
fact sees and hears the witnesses and is particularly competent to decide
“whether, and to what extent, to credit the testimony of particular
Scioto App. No. 16CA3740 24
witnesses,” we must afford substantial deference to its determinations of
credibility.’ ” Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929
N.E.2d 1047, ¶ 20, quoting State v. Konya, 2nd Dist. Montgomery No.
21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2nd Dist.
Montgomery No. 16288 (Aug. 22, 1997). As explained in Eastley v.
Volkman, 132 Ohio St.3d 328, 972 N.E.2d 517:
“ ‘[I]n determining whether the judgment below is manifestly
against the weight of the evidence, every reasonable intendment
must be made in favor of the judgment and the finding of facts.
***
If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is
consistent with the verdict and judgment, most favorable to
sustaining the verdict and judgment.’ ” Eastley at ¶ 21, quoting
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d,
Appellate Review, Section 60, at 191-192 (1978).
Thus, an appellate court will leave the issues of weight and credibility of the
evidence to the fact finder, as long as a rational basis exists in the record for
its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-
Ohio-1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No. 07CA2948,
2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier of fact has
some factual and rational basis for its determination of credibility and
weight.”).
Scioto App. No. 16CA3740 25
{¶53} Once the reviewing court finishes its examination, the court
may reverse the judgment of conviction only if it appears that the fact-finder,
when resolving the conflicts in evidence, “ ‘clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.’ ” Wickersham, supra, at ¶ 26, quoting Thompkins,
78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). A reviewing court should find a conviction
against the manifest weight of the evidence only in the “ ‘exceptional case in
which the evidence weighs heavily against the conviction.’ ” Id., quoting
Martin, 20 Ohio App.3d at 175; State v. Lindsey, 87 Ohio St.3d 479, 483,
721 N.E.2d 995 (2000).
{¶54} When reviewing a case to determine if the record contains
sufficient evidence to support a criminal conviction, we must “examine the
evidence admitted at trial to determine whether such evidence, if believed,
would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. The relevant inquiry 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. Hollis, 4th Dist. Pickaway No. 09CA9, 2010-
Ohio-3945, ¶ 20, citing State v. Smith, 4th Dist. Pickaway No. 06CA7, 2007-
Scioto App. No. 16CA3740 26
Ohio-502, at ¶ 33, quoting State v. Jenks at paragraph two of the syllabus.
See also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979).
{¶55} The sufficiency of the evidence test “raises a question of law
and does not allow us to weigh the evidence.” Hollis at ¶ 21; Smith at ¶ 34,
citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).
Instead, the sufficiency of the evidence test “ ‘gives full play to the
responsibility of the trier of fact [to fairly] resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.’ ” Smith, at ¶ 34, citing State v. Thomas, 70 Ohio St.2d 79,
79-80, 434 N.E.2d 1356 (1982); State v. DeHass, 10 Ohio St.2d 230, 227
N.E.2d 212 (1967), paragraph one of the syllabus.
B. LEGAL ANALYSIS
{¶56} 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.
Wickersham, supra, at ¶ 27. State v. Pollitt, 4th Dist. Scioto No. 08CA3263,
2010-Ohio-2556, ¶ 15. “ ‘Thus, a determination that [a] conviction is
supported by the weight of the evidence will also be dispositive of the issue
of sufficiency.’ ” State v. Lombardi, 9th Dist. Summit No. 22435, 2005-
Scioto App. No. 16CA3740 27
Ohio-4942, ¶ 9, quoting State v. Roberts, 9th Dist. Lorain No. 96CA006462
(Sept. 17, 1997).
{¶57} Appellant was convicted of R.C. 2925.04 which states:
“(A) No person shall knowingly cultivate marihuana or
knowingly manufacture or otherwise engage in any part of the
production of a controlled substance.”
{¶58} Appellant was also convicted of R.C. 2925.041, illegal
assembly or possession of chemicals for manufacture of drugs which
provides:
“(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 in violation of section
2925.04 of the Revised Code.”
{¶59} Furthermore, R.C. 2925.041(B) provides:
“In a prosecution under this section, it is not necessary to allege
or prove that the offender assembled or possessed all chemicals
necessary to manufacture a controlled substance in schedule I
or II. The assembly or possession of a single chemical that may
be used in the manufacture of a controlled substance in
schedule I or II, with the intent to manufacture a controlled
substance in either schedule, is sufficient to violate this
section.”
{¶60} The evidence against Appellant is circumstantial and we begin
by recognizing that it is well-established, however, that “a defendant may be
convicted solely on the basis of circumstantial evidence. Wickersham, supra,
at ¶ 39, quoting State v. Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d 1236Scioto App. No. 16CA3740 28
(1988). “Circumstantial evidence and direct evidence inherently possess the
same probative value.” Jenks, paragraph one of the syllabus.
“Circumstantial evidence is defined as ‘[t]estimony not based on actual
personal knowledge or observation of the facts in controversy, but of other
facts from which deductions are drawn, showing indirectly the facts sought
to be proved. * * *’ ” Nicely, 39 Ohio St.3d at 150, quoting Black's Law
Dictionary (5 Ed.1979) 221.
{¶61} As we begin our analysis, we call attention to the Eighth
District Court of Appeals in State v. Seldon, 8th Dist. Cuyahoga No. 98429,
2013-Ohio-819, where the defendant’s conviction for assembly or
possession of chemicals used for the manufacture of drugs was overturned
by the appellate court. Seldon was charged with one count of assembly or
possession of chemicals used for the manufacture of drugs and one count of
carrying a concealed weapon subsequent to a lawful traffic stop. Seldon was
driving his friend’s truck and two others were riding with him. Pursuant to
the stop, troopers located various items which can be used in the
manufacture of a controlled substance. At trial, Seldon’s father testified his
son was going to look for work in the area at the time of his stop. Seldon
testified some of the items in the truck were purchased by him that day, for
the purpose of work on damaged or inoperable vehicles. He testified, in
Scioto App. No. 16CA3740 29
particular, to having matchbooks because he stamped them to advertise his
services. He admitted 24 Sudafed pills were his, but a package of 96, and
some starting fluid, were not his. He testified to having iodine in the vehicle
to treat sores on his arm.
{¶62} Seldon further acknowledged trying methamphetamine, but
testified it was years before, not one week before as a trooper had previously
testified. He denied that the items in the truck were purchased for the
purpose of illegally manufacturing methamphetamine. He also denied
knowing how to manufacture methamphetamine or having done so in the
past. Although the jury returned a guilty verdict, the appellate court held the
State failed to prove by sufficient evidence that Seldon possessed the
chemicals discovered with an intent to manufacture methamphetamine. In
this case, the court held at ¶ 21:
“Under the clear requirements of R.C. 2925.041(A), the mere
assembly or possession of chemicals that could be used to
produce a controlled substance is not sufficient to prove the
performance of the criminal act. State v. Cumberledge, 11th
Dist. No. 2010–L–142, 2012–Ohio–3012. In addition to
possessing the chemical, the state must further demonstrate a
present intent on the part of the defendant to actually use the
chemical in the future to produce the illegal drug. Id.***
In most instances, proof of this intent will likely be based upon
the defendant's completion of a subsequent act, such as an
initial step in the manufacturing process.” Seldon, supra.Scioto App. No. 16CA3740 30
{¶63} The Seldon court emphasized at ¶ 24:
“In cases throughout Ohio where convictions for Assembly or
Possession of Chemicals used to Manufacture Controlled
Substance were upheld, the state produced evidence from which
a jury could conclude beyond a reasonable doubt that the
requisite intent to manufacture existed. Seldon at 24. Such
evidence included the following: That the defendant knew how
to manufacture methamphetamine, State v. Stevenson, 5th Dist.
No. 09CA16, 2010-Ohio-2060; that the defendant made
admissions that he intended to manufacture and/or had
participated in the manufacture of methamphetamine, State v.
Smith, 4th Dist. No. 09CA29, 2010-Ohio-4507; that the
defendant's prior acts or statements of accomplices and/or other
witnesses, demonstrated the defendant's knowing participation
in the manufacture of methamphetamine, Cumberledge, supra;
the defendant, in addition to chemicals, possessed the actual
physical equipment needed to manufacture methamphetamine,
such as beakers, filters, tubing, electrical tape, copper fittings, a
heat source, etc., State v. Throckmorton, 4th Dist. No. 08CA17,
2009-Ohio-5344, reversed on other grounds; the defendant
possessed or had known access to a methamphetamine lab, or
had injuries consistent with work in a methamphetamine lab,
State v. Downing, 12th Dist. No. CA2009-09-036; the
defendant possessed quantities of the drug, or known drug
delivery devices, i.e., syringes, contemporaneous with his
possession of the chemicals, Throckmorton, supra.”
{¶64} Seldon held at ¶ 25:
“This court is not requiring all of the above, we are just
referencing the many methods the state may use to prove an
intent on the part of the accused to manufacture
methamphetamine, none of which were utilized by the state.
The state's entire case is based on Seldon's possession of some
legally possessed items. It has set forth no evidence that Seldon
completed a subsequent act beyond mere possession, no
evidence of Seldon's prior production of the controlled
substance and no evidence that Seldon knew how to
manufacture the drug. See Cumberledge, Stevenson. In fact,
Scioto App. No. 16CA3740 31
Seldon testified that he did not know how to manufacture
methamphetamine.”
{¶65} In this case, it is true that the prosecution was unable to present
evidence that Appellant knew how to manufacture methamphetamine; that
he had made previous admissions that he intended to manufacture or
participate in the process; or that he had been injured in the process.
Furthermore, none of the evidence produced was discovered on Appellant’s
person, such as chemicals and ingredients, physical equipment, or delivery
devices. However, by the end of Appellant’s trial, the jury had heard the
following evidence:
1) That Appellant and Kinzer purchased pseudoephedrine on
the same dates at Pike County pharmacies:
2) That garbage bags found in Scioto County contained the
envelope addressed to Ms. Kinzer; 3 empty boxes of Leader
Allergy Relief D-24; empty pill blister packs; an ice compress
containing ammonium nitrate with the corner cut; an empty
package of electrical tape; the grocery list; and a Mello Yello
bottle containing a syringe;
3) That Appellant and Kinzer purchased pseudoephedrine,
traded it for methamphetamine, and Appellant handled the
transactions to obtain methamphetamine;
4) That the area where the trash bags were found was where
Appellant and Kinzer regularly went to use drugs;
5) That Officer Carlson opined the garbage bags contained a
“one-pot” method which had been discarded;
6) That Appellant “always” drove Kinzer’s car;
Scioto App. No. 16CA3740 32
7) That Ms. Kinzer denied discarding the trash bags and cutting
the corner of the ice pack containing the ammonium nitrate, and
that she denied recognizing the Mello Yello bottle containing
the syringe;
8) That Ms. Kinzer’s brother had “nothing to do” with the items
found in the trash bags;
9) That Asset Production Manager Andy Canterbury verified
the Walmart security camera footage and receipts for items
purchased by Appellant and Ms. Kinzer on October 3, 2014;
10) That Ms. Kinzer admitted she and Appellant used syringes
to inject methamphetamine; and
11) That Ms. Kinzer specified Appellant took her boxes of
pseudoephedrine and returned with methamphetamine.
{¶66} Based on our review of the trial transcript, we find there was
circumstantial evidence in this case supporting the conclusion that Appellant
intended to manufacture methamphetamine. Officer Carlson opined the
trash bags contained a “one-pot method” discarded in a clandestine location
in Scioto County. Appellant was familiar with the area where the trash bags
containing the ingredients were discarded because he went there almost
daily in late 2014 to inject methamphetamine. Appellant engaged in
suspicious transactions and enlisted Kinzer to purchase it for him. They
purchased pseudoephedrine together, in frequent transactions, at two
different pharmacies. Regarding circumstantial evidence of intent, it has
been stated:
Scioto App. No. 16CA3740 33
“Intent lies within the privacy of an individual's own thoughts
and is not susceptible of objective proof.” Wickersham, supra,
at ¶ 30, quoting State v. Garner, 74 Ohio St.3d 49, 60, 656
N.E.2d 623 (1995). So “intent ‘can never be proved by the
direct testimony of a third person.’ ” State v. Moon, 4th Dist.
Adams App. No. 08CA875, 2009-Ohio-4830, ¶ 20, quoting
State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293 (1990).
Rather it “ ‘must * * * be inferred from the act itself and the
surrounding circumstances, including the acts and statements of
the defendant surrounding the time of the offense.’ ” Id.,quoting State v. Wilson, 12th Dist. Warren No. CA2006–01–
007, 2007-Ohio-2298, ¶ 41. But “persons are presumed to have
intended the natural, reasonable and probable consequences of
their voluntary acts.” Garner at ¶ 60.
{¶67} It is a logical inference that Appellant was familiar with the
necessity of pseudoephedrine as a key ingredient used to make
methamphetamine. He took control of the boxes Kinzer purchased and
returned with the finished product. “A person acts knowingly, regardless of
his purpose, when he is aware that his conduct will probably cause a certain
result or will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances probably exist.”
State v. Evans-Goode, 4th Dist. Meigs No. 15CA10, 2016-Ohio-5361, ¶ 8;
R.C. 2901.22(B). “[W]hether a person acts knowingly can only be
determined, absent a defendant's admission, from all the surrounding facts
and circumstances * * *.” Garner, 74 Ohio St.3d 49, 60, 656 N.E.2d 623(1995), quoting State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d 695(1st Dist.2001).
Scioto App. No. 16CA3740 34
{¶68} Furthermore, Appellant “always” drove Kinzer’s car.
“ ‘[P]ossession’ is defined as ‘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.’ ” Wickersham, supra, at ¶ 10, quoting State v. Gavin,
4th Dist. Scioto No. 13CA3592, 2015-Ohio-2996, ¶ 35; citing R.C.
2925.01(K). “Possession may be actual or constructive.” Gavin; quoting
State v. Moon, 4th Dist. Adams No. 08CA875, 2009-Ohio-4830, ¶ 19; citing
State v. Butler, 42 Ohio St.3d 174, 175, 538 N.E.2d 98 (1989) (“[t]o
constitute possession, it is sufficient that the defendant has constructive
possession”).
{¶69} “ ‘Actual possession exists when the circumstances indicate
that an individual has or had an item within his immediate physical
possession.’ ” Wickersham, supra, at ¶ 11, quoting Gavin at ¶ 36; State v.
Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶ 13
(4th Dist.; quoting State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-
5747, ¶ 39. “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.” Gavin, supra, quoting
State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362, syllabus (1982);
Scioto App. No. 16CA3740 35
State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19. For
constructive possession to exist, the State must show that the defendant was
conscious of the object's presence. Gavin, supra; Hankerson at 91;
Kingsland at ¶ 13. Both dominion and control, and whether a person was
conscious of the object's presence, may be established through
circumstantial evidence. Gavin, supra; Brown at ¶ 19. “Moreover, two or
more persons may have joint constructive possession of the same object.” Id.{¶70} Here, and based on the evidence, it is a logical inference that
Appellant had constructive and actual possession and control over Kinzer’s
vehicle, the discarded trash bags, and the contents therein. Kinzer
specifically excluded her brother as having anything to do with the contents
of the trash bags. She also denied cutting the corner of the ice pack and
dumping the trash. The logical inference is that Appellant, frequently in
possession and control of her vehicle, would have been the person to cut the
ice pack and dump the trash.
{¶71} Kinzer testified she and Appellant used syringes to inject
methamphetamine. While Kinzer denied knowledge of the Mello Yello
bottle containing her DNA and syringe found in the trash, the jury was free
to believe some, all, or none of her testimony, and was instructed
accordingly. Combing Kinzer’s denials, along with the absence of any
Scioto App. No. 16CA3740 36
evidence that other person or person had control or custody of her car or the
trash bags, circumstantially links Appellant to the “one-pot method”
discarded alongside the desolate Scioto County road. Importantly, in the
absence of other evidence that someone else cut the ice pack, it may be
logically inferred the Appellant completed a “subsequent act, * * * in the
manufacturing process.” As cited above, “intent” is to be inferred from the
acts and surrounding circumstances.
{¶72} In State v. Isaac, 5th Dist. Richland No. 15CA87, 2016-Ohio-
7376, the defendant maintained the State had failed to prove the culpable
mental state of “knowingly” in two counts of illegal manufacture of
methamphetamine and illegal assembly or possession. Isaac, who was
temporarily staying with a friend while experiencing marital problems,
asserted she had no knowledge of the methamphetamine lab in the basement
of her friends’ residence. Isaac maintained the State did not demonstrate her
knowledge of the methamphetamine lab or the possession of chemicals in
the basement. The appellate court disagreed, holding at ¶ 57:
“Viewing the evidence in a light most favorable to the
prosecution, we find a rational trier of fact could have found the
essential elements of the charges proven beyond a reasonable
doubt. Testimony at trial established [Isaac] had a prior history
of purchasing a significant quantity of pseudoephedrine,
including a recent attempted purchase with [her codefendant]
with whom she was residing on August 12, 2014. Specifically,
[Isaac] purchased an inordinate amount of pseudoephedrine in
Scioto App. No. 16CA3740 37
the months prior to August 12, 2014. Testimony of [her friend’s
husband] at trial established [Isaac] used the basement in the
home, including doing laundry there. Items consistent with the
manufacture of methamphetamine were discovered in the
basement. The liquid from the one-pot cook method taken from
the home subsequently tested positive for methamphetamine.
Viewing the evidence in a light most favorable to the
prosecution, we find a rational trier of fact could find beyond a
reasonable doubt Appellant knew about and participated in the
manufacture of methamphetamine and possessed chemicals
necessary for the manufacture of methamphetamine * * *.” Id.
at 58.
{¶73} Appellant’s convictions, like Isaac’s, are based on
circumstantial evidence entirely. Appellant’s intent was proved by
circumstantial evidence. Appellant, like Isaac, had an extensive purchase
history of pseudoephedrine products, and like Isaac, purchased with a friend.
Like Isaac, who had control of the basement where she was staying and the
one-pot method was discovered, Appellant had custody and control of
Kinzer’s car and the discarded one-pot method. We reiterate the jury was in
the best position to observe the witnesses and evaluate their credibility.
Having reviewed the entire record, weighed the entirely circumstantial
evidence, and considered the credibility of the witnesses, we do not find this
to be the exceptional case where the evidence weighs heavily against
conviction. The evidence supports the finding that Appellant had engaged in
the manufacture of methamphetamine, along with the illegal assembly and
possession of one or more chemicals necessary to manufacture
Scioto App. No. 16CA3740 38
methamphetamine. Therefore his conviction is not against the manifest
weight of the evidence. Furthermore, having found his conviction is not
against the weight of the evidence, we necessarily find that it is supported by
sufficient evidence. As such, we overrule Appellant’s second assignment of
error and affirm the judgment of the trial court.
ASSIGNMENT OF ERROR THREE
{¶74} Appellant argues the testimony by the Thomas Kelley, the
pharmacist for Walmart in Waverly, about the common practice of Scioto
County individuals coming to Pike County to purchase pseudoephedrine and
other chemicals commonly used to manufacture methamphetamine should
have been excluded under Evid.R. 403(A). Appellant contends the
testimony provided no probative value as to the ultimate determination and
was highly prejudicial. Citing a lack of evidence linking Appellant to the
alleged crime, Appellant argues the testimony had the effect of unfairly
swaying the jury.
A. STANDARD OF REVIEW
{¶75} The admission or exclusion of evidence generally rests within
the trial court's sound discretion. State v. Minton, 4th Dist. Adams No.
15CA1006, 2016-Ohio-5427, ¶ 45; State v. Green, 184 Ohio App.3d 406,
2009-Ohio-5199, 921 N.E.2d 276, ¶ 14 (4th Dist.). Thus, an appellate court
Scioto App. No. 16CA3740 39
will not disturb a trial court's ruling regarding the admissibility of evidence
absent a clear showing of an abuse of discretion with attendant material
prejudice to defendant. Id. As mentioned previously, an abuse of discretion
implies that a court's attitude is unreasonable, arbitrary, or unconscionable.
B. LEGAL ANALYSIS
{¶76} In this case, the prosecutor had asked Kelley, the pharmacist:
“Are there products that perform the legitimate function that don’t contain
the chemical that can be converted to meth?” The pharmacist explained
there is another product the pharmacy could provide which is not easily
broken down into methamphetamine. The pharmacist explained that many
times, purchasers are not deterred by the recommendation, presumably
because they are wanting to obtain pseudoephedrine for an illegal purpose.
The pharmacist continued:
“Well, unfortunately we- - you know, we do see many folks
coming in from Scioto County to our pharmacy. And - - I say
that because I’ve actually visually saw Scioto County driver’s
license, non-driver’s and – and they will come in and ask for
pseudoephedrine or 12 hour decongestant.”
{¶77} At this point, defense counsel objected and was overruled.
Kelley continued:
“Typically on a - - and I work five days a week typically. It’s
not uncommon for us in a day’s time at our Waverly Walmart
we will probably have 40 – 30 to 40 people come in asking for
12 hour decongestant. Typically out of that 30- to 40 half, if
Scioto App. No. 16CA3740 40
not more than half, will be Scioto County residents. And they
are coming to us requesting - - I’ve actually visually seen - - as
I was sitting on my lunch break one day it’s - - it’s so
apparent - - ”
{¶78} Shortly thereafter, defense counsel interposed another
objection which was overruled. Kelley continued:
“Well many times and these are - - these are - - what makes me
understand the process more readily, these are not patients.
First of all, they have to present a driver’s license to us that has
to be legal. Many times these folks that present them, we ask
- - we verify their address with them. They won’t know what
their address is on their ID. They are not patients. They don’t
have prescript - - they’re not getting prescriptions from our
pharmacy. So they don’t have an established relationship with
our pharmacy.”
{¶79} Counsel again objected and was overruled. The State clarified
that Kelley was not testifying, in particular, about Appellant, but was
“generally speaking” of what he observed as a pharmacist. The State now
argues that the pharmacist’s testimony was rationally based upon the
pharmacist’s perception and was helpful to the jury in the determination of
the reasons a Scioto County resident, such as Appellant, would go to Pike
County to purchase pseudoephedrine. Citing Evid.R. 701, the State argues
this testimony was admissible. The pharmacist went on to testify as to the
federal regulations Walmart is required to follow before they can sell
pseudoephedrine products.
{¶80} Since the adoption of the Rules of Evidence, both on the state
Scioto App. No. 16CA3740 41
and federal levels, many courts have used an Evid.R. 701 analysis and have
allowed lay witnesses to testify about, for example, the identity of a drug.
State v. Johnson, 4th Dist. Gallia No. 2014-Ohio-4032, ¶ 38; State v. McKee,
91 Ohio St.3d 292, 2001-Ohio-41, 744 N.E.2d 737. Evid.R. 701 provides:
“If the witness is not testifying as an expert, his testimony in the
form of opinions or inferences is limited to those opinions or
inferences which are (1) rationally based on the perception of
the witness and (2) helpful to a clear understanding of his
testimony or the determination of a fact in issue.”
“[C]ourts have permitted lay witnesses to express their opinions
in areas in which it would ordinarily be expected that an expert
must be qualified under Evid.R. 702. Although these cases are
of a technical nature in that they allow lay opinion testimony on
a subject outside the realm of common knowledge, they will
fall within the ambit of the rules requirement that a lay witness's
opinion be rationally based on firsthand observations and
helpful in determining a fact in issue. These cases are not based
on specialized knowledge within the scope of Evid.R. 702, but
rather are based upon a layperson's personal knowledge and
experience.”
{¶81} In the case sub judice, the pharmacist had been identifying
Appellant and Kinzer’s purchase records when the testimony occurred. The
pharmacist went on to testify about the NPLEX system and Walmart’s role
in keeping these required records. We find the additional testimony about
Kelley’s observation that individuals, with no patient relationship to the
Walmart pharmacy, often come from Scioto County to Pike County to
Scioto App. No. 16CA3740 42
purchase pseudoephedrine, is helpful to an understanding of why such
meticulous records are required by the government and kept by Walmart.
{¶82} Yet, we agree that Appellant makes a valid argument. While
we have found no cases where this type of testimony from a pharmacist or
pharmacy employee has been challenged, we liken Kelley’s testimony about
the frequent practice of individuals coming from out of county to purchase
pseudoephedrine to testimony about defendants being observed or arrested
in “high crime areas.”
{¶83} In State v. Draper, 10th Dist. Franklin No. 02AP-1371, 2003-
Ohio-3751, the defendant contended that an officer’s testimony concerning
the high incidence of drug-trafficking and narcotics and weapons arrests in
the area where a defendant was arrested also constituted impermissible other
acts evidence, the admission of which deprived him of a fair trial. The
Draper court began by noting that Evid.R. 404(A) bars evidence regarding a
defendant's character and evidence of the defendant's other acts to
demonstrate that character. Id. at 21. The appellate court pointed out the
challenged evidence referred to the character of the neighborhood and the
general acts of the people in the neighborhood, not the character or other
acts of defendant. Id. See State v. Attaway (Apr. 5, 2001), Cuyahoga App.
No. 77641, appeal not allowed, 93 Ohio St.3d 1410, 754 N.E.2d 258.
Scioto App. No. 16CA3740 43
{¶84} Draper held that the challenge to the evidence concerning the
neighborhood was probably more conducive to review under Evid.R. 402,
speaking to the inadmissibility of irrelevant evidence, or Evid.R. 403(A),
addressing the inadmissibility of relevant evidence if its probative value is
substantially outweighed by danger of unfair prejudice. Id. Ultimately,
however, the appellate court held: “Although references to an area being a
high-crime area, in some circumstances, may be irrelevant or prejudicial, see
State v. Santiago, 10th Dist. Franklin No. 02AP–1094, 2003-Ohio-2877, at
¶ 26, citing State v. Maddox (June 29, 2001), Montgomery App. No. 18389,
appeal not allowed, 93 Ohio St.3d 1459, 756 N.E.2d 1235, the trial court's
allowing the testimony under the circumstances of this case did not prejudice
defendant.” See also State v. Dodson, 10th Dist. Franklin No.10AP-603,
2011-Ohio-1092, ¶¶ 33-36.
{¶85} While we recognize the potential for prejudicial effect by
Kelley’s testimony, we do not think it far outweighed the probative value of
the testimony in aiding the jury’s understanding of why pseudoephedrine
sales are so heavily regulated by the government. Furthermore, we do not
perceive this evidence as the sole evidence the jury relied upon in convicting
Appellant. As discussed in our resolution of assignment of error two above,
the circumstantial evidence of Appellant’s near daily use of
Scioto App. No. 16CA3740 44
methamphetamine; the evidence of Appellant’s possession and control of
Kinzer’s vehicle, to the exclusion of anyone but Kinzer, where he often used
methamphetamine; Appellant’s own pseudoephedrine purchase records; his
appearance on the Walmart surveillance video on the relevant purchase
dates, Kinzer’s denial that she discarded the trash bags containing the “one-
pot” method; and Kinzer’s denial of knowledge of the Mello Yello bottle
and syringe, along with her denial that she cut the corner of the ice
compress, all point to Appellant’s knowledge and intent to manufacture
methamphetamine. As such, we find ample evidence that Appellant would
have been convicted, had Kelley’s testimony been excluded. We do not find
it highly prejudicial nor an abuse of the trial court’s discretion by allowing
it.
{¶86} For the foregoing reasons, we overrule Appellant’s third
assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Scioto App. No. 16CA3740 45
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
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.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment and Opinion as to Assignment of Error II;
Concurs in Judgment Only as to Assignments of Error I & III.
For the Court,
BY: ______________________________
Matthew W. McFarland, 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.