The opinion
[Cite as State v. Meddock, 2017-Ohio-4414.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PIKE COUNTY
STATE OF OHIO, :
: Case No. 16CA864
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
CHARLES J. MEDDOCK, :
:
Defendant-Appellant. : Released: 06/15/17
_____________________________________________________________
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Francisco E. Lüttecke,
Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.
Robert Junk, Pike County Prosecuting Attorney, Waverly, Ohio, for
Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Charles J. Meddock appeals the sentence and judgment of the
Pike County Court of Common Pleas after a jury found him guilty of one
count of illegal manufacture of drugs, in violation of R.C. 2925.04(A), and
one count of illegal assembly or possession of chemicals for the manufacture
of drugs, in violation of R.C. 2925.041. On appeal, Appellant contends: (1)
the trial court erred when it permitted improper opinion testimony; (2) the
trial court erred by permitting irrelevant and prejudicial evidence regarding a
prior encounter with law enforcement; (3) the trial court erred by overruling
Pike App. No. 16CA864 2
Appellant’s Crim.R. 29 motion; and (4) the trial court’s cumulative errors
violated Appellant’s rights to a fair trial and due process. Upon review, we
find no merit to Appellant’s arguments. As such, the trial court did not err.
Accordingly, we overrule Appellant’s assignments of error and affirm the
judgment of the trial court.
FACTS
{¶2} On May 1, 2015, Appellant and Donald Entler, Appellant’s
codefendant, were indicted on one count of illegal manufacturing of drugs, a
violation of R.C. 2925.04(A)(3) and a second degree felony, and one count
of illegal assembly of one or more chemicals necessary for the manufacture
of methamphetamine, a violation of R.C. 2925.041 and a third degree
felony. The indictments arose from activities which occurred on or about
April 5, 2015 in Pike County, Ohio. On that date, the Pike County Sheriff’s
office received an anonymous tip of an active methamphetamine lab in the
Morgantown area of Pike County. Pike County deputies responding to the
area caught a strong scent of ether coming eastbound across Morgan’s Fork
Road. The deputies eventually entered a house on 19 North Street owned by
Robert Crabtree. Inside, officers discovered Appellant, Entler, and two
women. Furthermore, officers discovered a one-pot methamphetamine lab
in the second bedroom of the house where Appellant, alone, was hiding.
Pike App. No. 16CA864 3
{¶3} Appellant entered not guilty pleas to the above charges and
eventually proceeded to trial on January 4 and 5, 2016. The State presented
two witnesses, Corporal Adrian Cottrell and Corporal James Burchett, both
of the Pike County Sheriff’s Office. The defense did not present any
evidence. At the close of trial, Appellant was convicted of both counts.
Appellant was sentenced on January 27, 2016.
{¶4} At sentencing, the trial court found the counts were allied
offenses of similar import and should be merged for sentencing. The
prosecuting attorney elected to proceed upon the illegal manufacture count,
R.C. 2925.04(A). The trial court then imposed a mandatory prison term of
four years. This timely appeal followed.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED WHEN IT PERMITTED
OFFICER COTTRELL TO PROVIDE IMPROPER OPINION
TESTIMONY, DENYING MR. MEDDOCK A FAIR TRIAL
AND DUE PROCESS OF LAW.
II. THE TRIAL COURT ERRED WHEN IT ADMITTED
IRRELEVANT AND PREJUDICIAL EVIDENCE, DENYING
MR. MEDDOCK HIS RIGHTS TO DUE PROCESS AND A
FAIR TRIAL.
III. THE TRIAL COURT VIOLATED MR. MEDDOCK’S
RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN,
IN THE ABSENCE OF SUFFICIENT EVIDENCE, IT
FAILED TO GRANT HIS CRIM.R. 29 MOTIONS AS TO
THE ILLEGAL MANUFACTURING OF
METHAMPHETAMINES, AND THE ILLEGAL ASSEMBLY
Pike App. No. 16CA864 4
OR POSSESSION OF CHEMICALS FOR THE
MANUFACTURE OF DRUGS (METHAMPHETAMINES).
IV. THE TRIAL COURT VIOLATED MR. MEDDOCK’S
RIGHT TO DUE PROCESS AND A FAIR TRIAL
THROUGH CUMULATIVE ERROR.”
ASSIGNMENTS OF ERROR ONE AND TWO
{¶5} Since the first two assignments of error both involve evidentiary
matters, to be reviewed under the same abuse of discretion standard, we
consider them jointly.
A. STANDARD OF REVIEW
{¶6} 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
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. “ ‘A trial court abuses its discretion when it
makes a decision that is unreasonable, unconscionable, or arbitrary.’ ” State
v. Williams, 4th Dist. Jackson No. 15CA3, 2016-Ohio-733, ¶ 17, quoting
State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7,
quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d
971, ¶ 34.
Pike App. No. 16CA864 5
B. LEGAL ANALYSIS
1. Did Officer Cottrell give improper expert opinion testimony?
{¶7} Appellant argues the trial court abused its discretion when it
permitted Officer Cottrell to offer his professional opinion that the materials
found in the second bedroom where Appellant was hiding were ingredients
for the production of methamphetamine and were being used to that end
when the officers arrived. Defense counsel repeatedly objected to Officer
Cottrell’s testimony. Appellant argues that the trial court erred by
permitting the officer to testify as an expert pursuant to Evid.R. 702 and
pursuant to the principles gleaned from Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).1 However,
since the officer was not previously disclosed as an expert and did not
submit an expert report pursuant to Crim.R. 16, defense counsel was
precluded from appropriate cross-examination. Furthermore, Officer
Cottrell’s conclusions were the only link between the common household
items and the alleged methamphetamine lab. Appellant concludes Officer
1
In Daubert, the United States Supreme Court discussed the question of when expert scientific testimony
is relevant and reliable. There the court was faced with the issue of whether certain scientific evidence was
admissible in a birth defects case. The Daubert court held, under Fed.R.Evid. 702, that expert scientific
testimony is admissible if it is reliable and relevant to the task at hand. Id. at 589, 113 S.Ct. at 2795. To
determine reliability, the Daubert court stated that a court must assess whether the reasoning or
methodology underlying the testimony is scientifically valid. Id. at 592-593, 113 S.Ct. at 2796. In
evaluating the reliability of scientific evidence, several factors are to be considered: (1) whether the theory
or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known
or potential rate of error, and (4) whether the methodology has gained general acceptance. Id. at 593-594,
113 S.Ct. at 2797.
Pike App. No. 16CA864 6
Cottrell’s testimony was well outside the limited circumstances in which lay
witness opinion is proper under Evid.R. 701.
{¶8} Since the adoption of the Rules of Evidence, both on the state
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.” Johnson, supra, at ¶ 38.
Pike App. No. 16CA864 7
{¶9} Other districts have considered this type of evidentiary
challenge. In State v. Frye, 5th Dist. Stark No. 2006CA00363, 2007-Ohio-
7111, the appellant asserted the trial court committed plain error in allowing
expert testimony from a witness who was not qualified to present alleged
expert testimony about methamphetamine labs. The appellate court cited the
applicable standard of review as to evidentiary matters and later pointed out
that because defense counsel did not move to exclude the alleged improper
evidence, Frye had waived all but plain error. The appellate court explained
the evidentiary rules at ¶ 29:
“Opinion testimony must be considered in light of Evid.R. 701
and 702. The opinion must be based upon the perceptions of
the witness and helpful to the trier of fact. Evid.R. 701. In the
case of an expert opinion, it must relate to matters outside the
knowledge, experience, training or education of the trier of fact,
and be based upon reliable, scientific, technical or other
specialized information. Evid.R. 702. Stated otherwise, ‘For
expert testimony to be admitted at trial, it must: 1) relate to
matters beyond the knowledge or experience possessed by lay
persons or dispel common misconceptions held by lay persons;
2) be based on reliable scientific, technical, or other specialized
knowledge; 3) assist the trier of fact to understand the evidence
or to determine a fact in issue; 4) be relevant and material to an
issue in the case; and 5) have a probative value which
outweighs any prejudicial impact. Evid.R. 702; State v. Daws
(1994), 104 Ohio App.3d 448, 462, 662 N.E.2d 805.’ State v.
Thompson, (Sept. 23, 1997), Franklin App. No. 96APA12-
1660.”
{¶10} The Frye court observed at ¶ 30:
Pike App. No. 16CA864 8
“At trial, Ofc. Monigold testified as to his experience in
investigating methamphetamine labs. Monigold stated he is a
‘meth certified response personnel.’ As part of that training,
Monigold learned how to dismantle process labs, and became
familiar with the process of making methamphetamine and
conducting methamphetamine investigations. Monigold
testified there are different ways to make methamphetamine,
and described the four-step process commonly used. Although
individual labs may utilize different chemicals,
pseudoephedrine or eudoephedrine is the one necessary
ingredient.”
{¶11} The Frye court concluded that the trial court's admission of Ofc.
Monigold's testimony did not constitute plain error.
“Ofc. Monigold's testimony related to matters beyond the
knowledge and experience of the jury; was based upon
specialized knowledge and training; assisted the trier of fact in
understanding the evidence and determining a fact in issue; was
relevant and material; and had a probative value which
outweighed any prejudicial impact. Accordingly, such
testimony was properly admitted as expert testimony.” Id. at
¶ 33.
{¶12} Similarly, in State v. Cox, 12th Dist. Clermont No. CA2008-03-
028, 2009-Ohio-928, the appellant argued the trial court erred in permitting
an agent to testify as to the manufacture of methamphetamine without being
qualified as an expert witness. The appellate court was also limited to
consideration of the argument under the plain error standard of review, and
acknowledged that an alleged error does not constitute plain error unless, but
for the error, the outcome of the trial clearly would have been otherwise. Id.
at 13. Gragg; McKee; Crim.R. 52(B).
Pike App. No. 16CA864 9
{¶13} The Cox court found its review of the record yielded no
indication that the trial court committed plain error in violation of Evid.R.
701 by admitting the testimony of the agent. The record demonstrated that
[Agent Sorbello] testified as to his education, training, and experience in the
field of identifying methamphetamine, including the production of
methamphetamine. He testified that he had completed 282 hours of special
courses pertaining to the investigation, dismantling, and supervision of
“clandestine drug laboratory operations,” and had been involved in 500
cases involving methamphetamine. Id. at 46.
“Ohio courts have previously held that “the experience and
knowledge of a * * * lay witness can establish his * * *
competence to express an opinion on the identity of a controlled
substance if a foundation for this testimony is first established.”
McKee at syllabus; Gragg at ¶ 40-41, 878 N.E.2d 55.”
{¶14} The appellate court found Agent Sorbello's testimony as to his
education, training, and experience qualified him to testify in this case as to
the production process of methamphetamine, including the quantity of
methamphetamine that could be produced utilizing the pseudoephedrine
discovered in the appellant's possession. Id. at 46.
{¶15} In State v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio-
6604, the appellant objected to a detective's testimony that “[w]ithout a
doubt there was definitely a methamphetamine lab at [the] Beechwood
Pike App. No. 16CA864 10
Circle [address].” However, the appellate court found that the detective did
not need to be qualified as an expert under Evid.R. 702 because the
statement constituted lay opinion testimony permitted by Evid.R. 701. After
citing the rule, the appellate court found:
“Detective Anderson's testimony was admissible as lay opinion
because it met both of the requirements of Evid.R. 701: it was
based on his personal observation of the items taken from the
garbage outside the residence and found within the house, and it
aided the jury's understanding of the significance of those items
when found together. See, e.g, State v. Drummond, 111 Ohio
St.3d 14, 2006-Ohio-5084, at ¶ 222 (summarizing situations in
which a police officer's lay opinion testimony is proper when
based on the perception of evidence at a crime scene).”
{¶16} In Williams, the appellant also asserted an ineffective assistance
claim. Willams argued his counsel was ineffective in that he failed to object
to the detective’s testimony. The appellate court emphasized at ¶ 15:
“[B]ecause Detective Anderson's testimony about
methamphetamine production was proper under Evid.R. 701,
there was no reason for counsel to object. When a police
officer provides general testimony about the process of
manufacturing methamphetamine that is based on personal
observation, that testimony is “certainly helpful to the trier of
fact in identifying the role of the ingredients in the process and
the equipment necessary in production of methamphetamine.”
State v. Harper, 5th Dist. No. 07 CA 151, 2008-Ohio-6926, at
¶ 43. As such, it is lay witness testimony within the purview of
Evid.R. 701. Id. at ¶ 37-43. Failure to object to such testimony
on the part of defense counsel does not constitute ineffective
assistance. Id. at ¶ 44.
***
Pike App. No. 16CA864 11
In this case, Officer Williams testified regarding the process
used to manufacture methamphetamine and the materials
commonly used in that process. His testimony provided the
context for the jury to appreciate the significance of otherwise
common household items found together in [Ms. Buck’s]
residence. It was well within the scope of Evid.R. 701* * *.”
Id. at ¶ 16.
{¶17} More recently in State v. Maust, 8th Dist. Cuyahoga No.
103182, 2016-Ohio-3171, Maust argued that the trial court abused its
discretion in allowing Vedder, a firefighter, to offer expert testimony as to
the methamphetamine process, despite not having complied with Crim.R.
16(K) by providing an expert report prior to trial and not being qualified
under Evid.R. 702. The state countered that Vedder was not offered as an
expert witness; nor did his testimony constitute expert testimony. The state
maintained that Vedder was a fact witness, who testified to his observations
and actions, such as taking photographs, and simply relayed the relevancy of
his actions—all of which he was permitted to do under Evid.R. 701. The
Eighth District Court of Appeals agreed.
{¶18} After defining Evid.R. 701, the court explained at ¶ 18:
“Under Evid.R. 701, courts 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.
State v. Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-
5172, ¶ 74, citing State v. McKee, 91 Ohio St.3d 292, 744
N.E.2d 737 (2001). Indeed, this court has consistently
recognized that the testimony of a state's witness, who is not
presented as an expert, is properly admitted under Evid.R. 701
Pike App. No. 16CA864 12
when (1) the testimony is based on the witness's training or
experience, (2) the testimony relates to the witness's personal
observations with the investigation, and (3) the testimony is
helpful to determine a fact at issue. See, e.g., State v. Wilkinson,
8th Dist. Cuyahoga No. 100859, 2014-Ohio-5791, ¶ 52-53;
Primeau at ¶ 75; State v. Cooper, 8th Dist. Cuyahoga No.
86437, 2006-Ohio-817, ¶ 18.”
{¶19} The Eighth District Court of Appeals also noted that appellate
courts have similarly determined that “some testimony offered by
officers/detectives is lay person witness testimony even though it is based on
the officer/detective's specialized knowledge.” Id. at 19, quoting State v.
Johnson, 7th Dist. Jefferson No. 13JE5, 2014-Ohio-1226, ¶ 57 (Detective's
testimony as to gang activity was permissible under Evid.R. 701 based on
detective's personal knowledge and experience in the field.); see also State v.
McClain, 6th Dist. Lucas No. L–10–1088, 2012-Ohio-5264, ¶ 13, and State
v. Williams, supra, at ¶ 11.
{¶20} The Maust court concluded at ¶ 20:
“Our review of the record reveals that the state properly laid a
foundation for Vedder's testimony and that his testimony was
directly related to the actions that he personally undertook at the
scene. Specifically, Vedder—apart from his 40 years as a
firefighter with the Chagrin Falls Fire Department and 25 years
as a hazardous materials specialist—testified as to his training
and experience through the Ohio Fire Academy in
methamphetamine labs. Further, Vedder also has served as an
instructor for the Ohio Fire Academy, teaching specifically
about methamphetamine labs and the chemicals that are
involved, the precursor chemicals, and the hazards that are
present from those chemicals. Therefore, Vedder's testimony
Pike App. No. 16CA864 13
that salt and Coleman lantern fluid are used in the
methamphetamine process as well as his explanation of the one-
pot method for making methamphetamine was based on his
own personal knowledge and experience as established by the
state. Additionally, Vedder's testimony related specifically to
his own actions on the scene and why he undertook such
actions, i.e., photographing items that are used in the
methamphetamine process. Further, Vedder's testimony was
helpful to determine the significance of the items found in
Maust's bedroom. Accordingly, we find no error in the state's
failure to provide an expert report with respect to Vedder; nor
did the trial court abuse its discretion in allowing him to testify
on these matters.”
{¶21} Here, we have reviewed the record and find that Corporal
Cottrell’s testimony was properly admitted lay testimony under Evid.R. 701
because the testimony was based on his training and experience, was related
to his personal observations during the investigation, and was helpful to
determination of facts in issue. The State laid a foundation for Cottrell’s
testimony. Cottrell testified he had completed basic peace officer training in
2011 and received his state certification. He was hired by the Pike County
Sheriff’s Department in January 2012. He had just been promoted to
corporal. Corporal Cottrell’s duties included supervising the deputies on his
shift, reviewing reports, and correcting paperwork.
{¶22} Specifically, Corporal Cottrell had received Advanced
Clandestine chemical lab training at the Bureau of Criminal Investigations in
Columbus in 2014. The training lasted two weeks and he passed a written
Pike App. No. 16CA864 14
test at the end. He was trained on the entire process of methamphetamine
production, and the “one-pot method.” He was also trained as to how to
package the hazardous materials for disposal. He had investigated
approximately 50 actual methamphetamine labs, and observed the “one-pot”
cook labs during the course of his duties. Corporal Cottrell testified the
“one-pot” method takes 30-60 minutes and some common ingredients are
pseudoephedrine and drain opener.
{¶23} Corporal Cottrell’s testimony also related to his personal
observations at the house located on 19 North Street in the Morgantown area
of Pike County. Cottrell testified after they received the tip and were en
route to investigate, he caught the strong scent of ether coming eastbound
across Morgan’s Fork Road. He testified the smell of ether can be indicative
of a methamphetamine lab. Based on the smell, he and other officers
patrolled the area and determined the smell was coming from the house at 19
North Street owned by Robert Crabtree. Cottrell and another officer
attempted to make contact at the house. Finally, the homeowner was found
nearby and gave permission to enter the residence. Upon entering the house
and going from room to room, Cottrell found 2 females. Donald Entler was
hiding in the closet of a main bedroom. Appellant was hiding under the bed
in a second bedroom.
Pike App. No. 16CA864 15
{¶24} Here, Corporal Cottrell’s testimony was helpful to the jury’s
understanding and determination of facts in issue. Cottrell testified in the
second bedroom, on a dresser, there was a soda bottle with a tube coming
out of the top. It was giving off gas at the end of the hose and fumes could
be seen in the air. Cottrell testified he had seen many of these and had never
seen a pop bottle with a hose coming out that was not connected to a
methamphetamine lab. Based on his training, Cottrell identified this bottle
as an acid gas generator, a part of the one-pot method of producing
methamphetamine. Cottrell testified the generator is used to convert the oil
form of methamphetamine into usable water dissolvent form.
{¶25} Cottrell testified he performed a field test of liquid found in a
mason jar in bedroom two. The jar is used in the initial assembly of the one
pot method. He opined it was flammable liquid. The acid gas generator is
used in the second phase. Based on his training and experience with
multiple clandestine meth labs, he opined the acid generator was assembled
and to the point where the liquid was extracted.
{¶26} Corporal Cottrell also identified Exhibit 11, a photograph of a
backpack on the floor inside bedroom 2. He testified a one-pot bottle, an
open bag of ammonium nitrate, lye, and starting fluid were found inside the
back pack.
Pike App. No. 16CA864 16
{¶27} We find Corporal Cottrell’s testimony regarding the one-pot
method of methamphetamine production was properly admitted under
Evid.R. 701. As in Williams, supra, Corporal Cottrell testified regarding the
process used to manufacture methamphetamine and the materials commonly
used for that process. His testimony was based on his training, certification,
and experience of identification of clandestine methamphetamine labs. His
testimony was also based upon his observations at the scene of Appellant’s
arrest in April 2015. And, as in Williams, his testimony provided the context
for the jury to appreciate the significance of otherwise common household
items found together in the house, and specifically the bedroom where
Appellant was hiding.
{¶28} We find Corporal Cottrell’s testimony was proper lay opinion
well within the providence of Evid.R. 601. Accordingly, we find the trial
court did not abuse its discretion in allowing Corporal Cottrell’s testimony
regarding clandestine methamphetamine labs and his observations upon
arriving at 19 North Street. As such, we find no merit to Appellant’s first
assignment of error and it is hereby overruled.
2. Did Officer Cottrell give improper and prejudicial testimony about the
marijuana pipe?
{¶29} In Appellant’s second assignment of error, he first contends the
Pike App. No. 16CA864 17
jury heard unrelated and prejudicial testimony about a marijuana pipe found
in the second bedroom. The jury heard evidence that Appellant smoked
marijuana, and a photograph of the marijuana pipe was admitted. The only
evidence linking Appellant to the second bedroom was the marijuana pipe.
Counsel argues the irrelevant material was prejudicial character evidence.
Counsel concludes that since there was no overwhelming evidence of guilt,
the photograph of the pipe, along with other matters to be discussed below,
was overly prejudicial.
{¶30} The State responds that the photograph of the marijuana pipe
was properly admitted because it was relevant evidence used to make the
existence of a fact of consequence to the determination of the action more
probable than it would be without the evidence. Appellant claimed he was
only in the room to hide from law enforcement. However, the marijuana
pipe establishes a link between Appellant and the second bedroom.
{¶31} The trial transcript reveals that the State asked Corporal Cottrell
to identify Exhibits 17, 18, and 19, which he identified as “just basically a
homemade marijuana pipe that was located in the bedroom, as well.” While
counsel interposed an objection shortly thereafter to a photograph of the acid
generator on top of the dresser in bedroom 2, there was no objection to the
photograph of the marijuana pipe until the close of trial. Later, in Corporal
Pike App. No. 16CA864 18
Burchett’s testimony, a DVD of his recorded interview with Appellant was
played for the jury. In the DVD, Appellant was questioned as to whether he
smoked pot. While his verbal answer is inaudible, Appellant can be seen
shaking his head affirmatively. Counsel did not interpose an objection as to
the playing of the DVD.
{¶32} When defense counsel objected to the admission of the
marijuana pipe photographs at the close of trial, counsel argued Appellant
was not charged with possession of drug paraphernalia and the photograph
was confusing and prejudicial. The court overruled the objection as to
Exhibit 17 and sustained objections to Exhibits 18 and 19 as “surplusage.”
Counsel did not object to admission of the DVD.
{¶33} In State v. Rotarius, 8th Dist. Cuyahoga No. 2002-Ohio-666,
the appellate court discussed the admissibility of “other acts” evidence at
trial. Evid.R. 404(B), dealing with the admissibility of “other acts,” states:
“Evidence of other crimes, wrongs or acts is not admissible to
prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.
{¶34} R.C. 2945.59, dealing with the admission of “other acts” in the
context of a criminal trial, provides:
Pike App. No. 16CA864 19
“In any criminal case in which the defendant's motive or intent,
the absence of mistake or accident on his part, or the
defendant's scheme, plan, or system in doing an act is material,
any acts of the defendant which tend to show his motive or
intent, the absence of mistake or accident on his part, or the
defendant's scheme, plan, or system in doing the act in question
may be proved, whether they are contemporaneous with or prior
or subsequent thereto, notwithstanding that such proof may
show or tend to show the commission of another crime by the
defendant.”
“If the other act does in fact ‘tend to show’ by substantial proof
any of those things enumerated, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident, then evidence of the other act
may be admissible.” Rotarius, supra, at ¶ 15.
{¶35} Courts, while strictly construing Evid.R. 404(B) and R.C.
2945.59, and resolving doubts against admissibility, have applied the above
rules in such a way as to attempt to minimize the amount of prejudice the
admission of evidence of prior conduct will have on the disposition of the
current charges faced by an accused. “It is a well established rule that in a
criminal trial evidence of previous or subsequent criminal acts, wholly
independent of the offense for which a defendant is on trial, is inadmissible”
to prove that a defendant has an undesirable trait, disposition or propensity
toward the commission of a certain type of crime. Id. “Further, [the Ohio
Supreme Court] has stated that, ‘evidence of other acts of a defendant is
admissible only when it “tends to show” one of the matters enumerated in
Pike App. No. 16CA864 20
the statute and only when it is relevant to proof of the guilt of the defendant
of the offense in question.” ’ Id. at 18.
{¶36} Rotarious was convicted of possession of marijuana and
possession of drugs for sale. Some of the evidence used against him was his
travel history, the hotel room he reserved where a large amount of marijuana
was found, and his wallet and other identifiers in the hotel room. On appeal,
Rotarius complained that a Drug Enforcement Administration agent was
allowed to testify about finding a glass pipe in a bag with Rotarius' name tag
in the hotel room, and that the pipe tested positive for the presence of
methamphetamine. Rotarius claimed that this evidence tended to show
general bad character that tainted the decision-making ability of the jury by
prejudicially depicting him as a person with a propensity for drugs and drug-
related crime.
{¶37} Rotarius objected to the admission of this testimony against the
backdrop of his own argument at trial, that others may have had access to his
hotel room, with his permission, and that any contraband recovered from the
room was placed there upon the initiative of someone else, without his
knowledge or consent. The appellate court disagreed. The court found, in
light of the complete trial record and the extremely limited amount of
testimony that this assigned error referenced (a total of two questions), the
Pike App. No. 16CA864 21
argument was not well taken. The court found any prejudice, in light of the
compelling, obvious evidence presented against Rotarius, such as his
personal identification in the hotel room, his flights and travel history, and
the testimony of his co-defendant Richardson, was de minimus.
{¶38} We find this to be a closer case than that presented by the facts
in Rotarius. The court in Rotarius had other compelling evidence to
consider. Here, ostensibly, Appellant’s only connection to the room he was
hiding in is the marijuana pipe. However, given Appellant’s admission that
he used marijuana, and given the failure to object to the playing or
admission of the DVD, we find the photograph of the marijuana pipe was
admissible because it did tend to show a substantial connection to the second
bedroom and the absence of any mistake that Appellant was found there.
For the foregoing reasons, we find no merit to Appellant’s argument that
unfair prejudice outweighed the photograph’s probative value.
3. Did Corporal Cottrell give improper and prejudicial testimony regarding a
prior encounter with Appellant?
{¶39} During direct examination, Corporal Cottrell testified regarding
State’s Exhibit 12, a photograph. He testified: “This is the bed inside the
bedroom. Just another view of it. The mask is laying there. Uh, there’s a
leather jacket, uh, the knives. Uh, the last time I dealt with the Defendant,
he had a knife.” Defense counsel objected, moved to strike the testimony,
Pike App. No. 16CA864 22
and moved for a mistrial. Counsel argued the prior encounter testimony was
highly inflammatory and prejudicial. The State argued that it would present
testimony that Appellant had been removed from the exact same room
previously and under Evid.R. 404(B), the State would show there was no
mistake. Defense counsel stated that information had not been provided to
her. The trial court ultimately overruled the motion for a mistrial and
sustained the objection. When the jury was brought back in, the trial court
instructed:
“Uh, there was an objection registered and a motion for mistrial
in the presence of the jury just before you were asked to uh,-
and a motion to strike- just before we went on recess, ladies and
gentlemen. The court is sustaining the objection to the last
statement of the officer and ordering it striken. The jury will
disregard that last statement just made uh, prior to the defense
counsel’s uh objection and motion to strike. The jury will
disregard that, not consider that statement for any purpose.”
{¶40} Appellant contends the testimony regarding a “prior encounter
with a knife” was unfairly prejudicial and the trial court’s instruction could
not have cured the damage. The State argues that the knife and previous
encounter had nothing to do with any of the offenses charged and would
have had no bearing on the jury.
{¶41} The First District Court of Appeals considered a similar
scenario and the “other acts” analysis, in State v. Dorsey, 1st Dist. Hamilton
No. C-110623, 2012-Ohio-4043. Dorsey appealed a misdemeanor
Pike App. No. 16CA864 23
conviction for possession of criminal tools. Dorsey argued that the trial
court erred by admitting the investigator’s testimony involving other acts
that occurred in the summer of 2010. Dorsey argued the testimony was
neither probative of his intent on October 27, 2010, nor was it admitted for
any purpose other than an attempt to show Dorsey's general propensity to
commit crimes, a purpose specifically prohibited by Evid.R. 404(A) and
R.C. 2945.59.
{¶42} The appellate court observed that the only witness at trial, an
investigator, testified that in many of the automobile thefts that he had
investigated through the years, a screwdriver had been shoved into the
stripped steering column and used as the key, and a hammer had been found
on the floor board. Further, the investigator also testified, over Dorsey's
objection, that he had had contact with Dorsey sometime in the summer of
2010, when he had “charged” him with receiving stolen property for being in
a stolen automobile with a stripped steering column. The officer admitted
on cross-examination that he had not observed Dorsey breaking into an
automobile on October 27, 2010, that he was not aware that an automobile
theft had been attempted or had occurred on that date, and that he had never
known anyone to use a screwdriver or hammer to steal food from a store
shelf.
Pike App. No. 16CA864 24
{¶43} The appellate court observed that evidence of other acts,
crimes, or wrongs is not admissible to prove the character of a person to
show acts in conformity on a particular occasion, but it may be admissible
for other purposes, such as those listed in Evid.R. 404(B) and R.C. 2945.59.
Id. at ¶ 12. See Evid.R. 404(A) and (B); State v. Griffin, 142 Ohio App.3d
65, 71-72, 753 N.E.2d 967 (1st Dist.2001). Other bad acts may be
admissible “to establish circumstantially either an element of the crime or a
material fact at issue.” Dorsey, supra, quoting Griffin at 71, 753 N.E.2d 967.
{¶44} The Dorsey court recognized, however, a trial court must
strictly construe this evidence against admissibility. Id. at 13. See State v.
DeMarco, 31 Ohio St.3d 191, 194, 509 N.E.2d 1256 (1987). The other-act
evidence must also meet the other requirements of admissibility set forth in
the rules of evidence. See Evid.R. 403; Evid.R. 402. Applying the abuse of
discretion standard, the Dorsey court observed the Supreme Court of Ohio
defined an “unreasonable” decision as one that is not supported by a “sound
reasoning process.” AAAA Enterprises, Inc. v. River Place Community
Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), cited
in Morris, at ¶ 14.
{¶45} At Dorsey’s trial, the state argued that the other-acts testimony
was probative of Dorsey's intent to use the hammer and screwdrivers for a
Pike App. No. 16CA864 25
criminal purpose—an element of the offense of possessing criminal tools—
and, therefore, admissible as an exception set forth in Evid.R. 404(B). The
trial court implicitly agreed and admitted the evidence over Dorsey's
objection. However, the appellate court found the challenged testimony was
not probative of the statutory inference set forth in R.C. 2923.24(B)(3),
because it did not demonstrate the circumstances under which Dorsey
possessed the hammer and screwdrivers in late October 2010. Id. at 17.
{¶46} Further, the testimony involved Dorsey's mere presence in a
stolen automobile with a stripped steering column one-to-four months before
the investigator found him in possession of the hammer and screwdrivers.
Dorsey was not “charged” with automobile theft at that time and there was
no testimony that anyone, including Dorsey, had used a screwdriver or
hammer to steal that automobile. At best, the State's theory of relevance
involved an impermissible inference upon an inference. Dorsey, supra, at
18; See State v. Cowans, 87 Ohio St.3d 68, 78–79, 717 N.E.2d 298 (1999).
As such, it was not admissible to demonstrate Dorsey's intent or for any of
the purposes recognized in Evid.R. 404(B), especially without any nexus
between those facts and Dorsey's possession of the articles in late October
2010. The Dorsey court concluded there was no sound reasoning process to
support the trial court's admission of the investigator’s testimony.
Pike App. No. 16CA864 26
Therefore, the court's decision to admit the challenged testimony was
unreasonable and an abuse of discretion.2
{¶47} In this case, we agree with Appellant that the vague
description of a “prior encounter with a knife” was not probative of his
intent on April 5, 2015 and its elicitation was more than likely an attempt to
show his general propensity to commit crime. As such, the testimony is
forbidden by Evid.R. 404(A) and R.C. 2945.59. However, as in Rotarius,
supra, we note shortly after defense counsel objected and the court removed
the jury and conducted a bench conference, the trial court issued a limiting
instruction that the statement regarding the prior encounter was to be
disregarded. Furthermore, during the closing instructions, the trial court
reiterated that statements or answers stricken by the court or which they
were instructed to disregard were not evidence and must be treated as though
they had not been heard.
{¶48} “A jury is presumed to follow the instructions, including
curative instructions, given it by a trial judge.” State v. Plott, 3rd Dist.
Seneca Nos. 13-15-39, 13-15-40, 2017-Ohio-38, ¶ 122, quoting State v.
Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995). In Appellant’s case,
2
See, e.g., State v. Huff, 145 Ohio App.3d 555, 566, 763 N.E.2d 695 (1st Dist.2001); State v. Zamorski, 141
Ohio App.3d 521, 525, 752 N.E.2d 288 (1st Dist.2000); State v. Echols, App.3d 728, (1st Dist.1998);
Eckert v. Jacobs, 1st Dist. No. C910445, 1992 Ohio App. LEXIS 5920, 1992 WL 355448, 128 Ohio
App.3d 677, 698–699.
Pike App. No. 16CA864 27
the trial court instructed the jury twice to disregard testimony which was
stricken from the record. In the absence of any indication to the contrary,
we presume the jury followed the court’s instructions. As such, we find no
merit to Appellant’s argument. Based on the foregoing, we overrule
Appellant’s second assignment of error.
ASSIGNMENT OF ERROR THREE
{¶49} Appellant argues the trial court erred when it denied his
motions for acquittal for the charges of illegal manufacture of
methamphetamine and illegal assembly or possession of chemicals
necessary for manufacture of methamphetamine. He argues the evidence is
insufficient to demonstrate that Appellant was the individual responsible for
the methamphetamine lab in question. Specifically he argues the evidence
that he was hiding in the second bedroom fails to establish any connection
between his presence and knowing participation in illegal activity.
However, the State contends that the evidence demonstrates that none of the
items consistent with the manufacture of methamphetamine were found in
any area of the house besides bedroom two, where Appellant was hiding and
fumes and gases were being actively omitted pursuant to the one-pot lab.
The State asserts any rational trier of fact could have found each element,
including “knowledge” proven beyond a reasonable doubt.
Pike App. No. 16CA864 28
A. STANDARD OF REVIEW
{¶50} 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
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.
Pike App. No. 16CA864 29
State v. Reyes–Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338,
¶ 15.
B. LEGAL ANALYSIS
{¶51} Appellant was convicted of R.C. 2925.04, illegal manufacture,
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.”
{¶52} He 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.”
{¶53} 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.”
{¶54} The evidence against Appellant is entirely 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.
Pike App. No. 16CA864 30
Wickersham, supra, ¶ 39, quoting State v. Nicely, 39 Ohio St.3d 147, 151,
529 N.E.2d 1236 (1988). “Circumstantial evidence and direct evidence
inherently possess the same probating 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.
{¶55} “ ‘[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”).
{¶56} “ ‘Actual possession exists when the circumstances indicate
that an individual has or had an item within his immediate physical
Pike App. No. 16CA864 31
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);
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.
{¶57} By the end of Appellant’s trial, the jury had heard the following
evidence:
1) Corporal Cottrell found Appellant and 3 others in the 19
North Street residence, in the presence of the strong smell of
ether.
2) Appellant was found to have an outstanding warrant and was
found hiding under the bed in a second bedroom, where no
other person was located.
Pike App. No. 16CA864 32
3) In the second bedroom on a dresser, there was a soda bottle
with a tube coming out of the top, an acid gas generator
emitting fumes, State’s Exhibit 7. Based on his training,
Cottrell identified this as the second part of the one-pot method
of producing methamphetamine.
3) Cottrell identified Exhibit 9, the closet of bedroom two. He
identified Exhibit 10, a mason jar of liquid inside the cabinet
inside bedroom two. The jar would be used in the initial
assembly of the one-pot method. Cottrell tested the liquid on
the scene and determined it was flammable.
4) Cottrell identified Exhibit 11, a backpack lying on the
ground inside the second bedroom. A one-pot bottle, an open
bag of ammonium nitrate, lye and starting fluid were inside the
backpack. Cottrell identified Exhibits 13 and 14, the one-pot
bottle out of the backpack.
5) Cottrell also identified the following:
-State’s Exhibit 1, drain opener and salt used in the acid
generator;
-State’s Exhibit 4, aluminum foil used to produce the
hydrochloric gas or also used to help smoke
methamphetamine;
-State’s Exhibits 15 and 16, ammonium nitrate, a key
ingredient for the one-pot method, from an opened cold
pack;
-State’s Exhibit 27, coffee filters used to filter final
product, on top of the dresser in bedroom two;
-State’s Exhibit 17, the homemade marijuana pipe; and,
-State’s Exhibits 30 and 31, sodium chloride, cleansing
water used to clean syringes. Cottrell testified
methamphetamine can be inhaled, administered with a
syringe, or taken orally.
Pike App. No. 16CA864 33
6) Corporal James Burchett of the Pike County Sheriff’s Office
corroborated Corporal Cottrell’s testimony about the
anonymous tip and the smell of ether outside of Robert
Crabtree’s home.
7) Corporal Burchett identified Appellant and State’s Exhibit
32, a DVD he recorded of his interview with Appellant. During
the interview, Appellant acknowledged that he knew he had
warrants and that he smokes pot. He denied using
methamphetamine or knowing who was manufacturing
methamphetamine in the house.
{¶58} After reviewing the record, and viewing the evidence in a light
most favorable to the prosecution, we find any rational trier of fact could
have found the essential elements of the counts against Appellant proven
beyond a reasonable doubt. Appellant has argued that there was insufficient
evidence to prove his knowing involvement with the methamphetamine lab
found on the premises. “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
Pike App. No. 16CA864 34
Dist.2001). Furthermore, regarding circumstantial evidence of intent, it has
been stated:
“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.
{¶59} In State v. Cuffman, 3rd Dist. Crawford Nos. 3-11-01, 3-11-02,
2011-Ohio-4324, the appellate court observed: “A defendant's mere
presence in an area where drugs are located does not conclusively establish
constructive possession.” Id. at 32, quoting Cooper, at ¶ 26, citing State v.
Cola, 77 Ohio App.3d 448, 450, 602 N.E.2d 730 (11th Dist.1991);
Cincinnati v. McCartney, 30 Ohio App.2d 45, 48, 281 N.E.2d 855 (1st
Dist.1971). On the other hand, “readily usable drugs found in very close
proximity to a defendant may constitute circumstantial evidence and support
a conclusion that the defendant had constructive possession of such drugs.”
Cuffman, supra, quoting State v. Barr, 86 Ohio App.3d 227, 235, 620
N.E.2d 242 (8th Dist.1993), citing State v. Pruitt, 18 Ohio App.3d 50, 480
Pike App. No. 16CA864 35
N.E.2d 499 (8th Dist. 1984). See also State v. Stewart, 3rd Dist. No. 13–08–
18, 2009-Ohio-3411, ¶ 51.
{¶60} At Cuffman’s trial for possession of heroin, three officers
testified to the events leading up to Cuffman's arrest. One officer testified
that the two aluminum foil balls he found at Cuffman's feet were tested and
found to contain 0.33 grams of heroin. He further testified that another
officer located a third aluminum foil ball five to ten feet away from
Cuffman. Cuffman denied using heroin. The appellate court concluded that
a rational trier of fact could have concluded that Cuffman possessed heroin.
Cuffman was the only person in very close proximity to the heroin besides
the law enforcement officers.3
{¶61} In State v. Weckner, 12th Dist. Brown No. CA2001-06-009,
2002-Ohio-1012, Weckner was one of four individuals in a car that’s search
revealed a plastic gas can, coffee filters, drain cleaner, plastic bottle with a
hose taped to it, glass mason jars with substances in them, rubber gloves,
3
However, in this case, the jury was presented with more than evidence of Cuffman's presence near the
area in which the drugs were located. The jury was presented with evidence that two of the foil balls
containing heroin were found lying at Cuffman's feet; in other words, in “very close proximity” to
Cuffman. Barr, 86 Ohio App.3d at 235, citing Pruitt, 18 Ohio App.3d 50; Stewart, 2009-Ohio-3411, at
¶ 51. The jury also heard testimony that the foil balls containing heroin were found after a physical
struggle occurred between Cuffman and the officers. The jury also heard evidence that Cuffman was
observed entering and leaving a known drug house after being there for no more than five minutes—typical
of a drug transaction—just minutes before he was found with the heroin. The jury also heard evidence of
Cuffman's nervous behavior during the stop; specifically, evidence that Cuffman would not remove his left
hand from his pocket and later removed the contents of the pocket but tightly cupped the contents in his
hand. All of this circumstantial evidence, along with the very close proximity of the drugs to Cuffman's
person, could lead a rational trier of fact to conclude that Cuffman constructively possessed the heroin.
Pike App. No. 16CA864 36
batteries, starter fluid, Drain-o, salt and a plastic milk crate filled with mason
jars. The items were suspected to be a portable methamphetamine lab. No
one in the vehicle acknowledged ownership of the items.
{¶62} After an investigation, Weckner was arrested and charged with
one count of aggravated possession of methamphetamines in violation of
R.C. 2925.11(A) and one count of manufacturing methamphetamines in
violation of R.C. 2925.04(A). Weckner was later convicted of both counts.
On appeal, Weckner argued (1) his convictions were against the manifest
weight of the evidence, (2) that the State did not prove that he had
possession of the drugs or that he was involved in the manufacture of the
methamphetamine, and (3) that no evidence linked him to the drugs or the
lab components that were found.
{¶63} The Weckner court, as did the Cuffman court, cited Pruitt, 480
N.E.2d 499, for the principle that “[R]eadily usable drugs in close proximity
of an accused may constitute sufficient and direct circumstantial evidence to
support a finding of constructive possession.” See also Hamilton v. Barnett
(Aug. 3, 1998), Butler App. No. CA97-11-222, unreported. The appellate
court also noted the same reasoning applies to the discovery of other
contraband in close proximity to the defendant. State v. Williams (Dec. 7,
2000), Cuyahoga App. No. 76816, unreported. The appellate court noted the
Pike App. No. 16CA864 37
evidence before the jury included the fact that Weckner was a passenger in a
vehicle that contained the ingredients and tools necessary to manufacture
methamphetamines. In addition, inside the vehicle were several mason jars
containing methamphetamines in varying stages of manufacture, including
some jars containing a completed product.4 The appellate court found the
jury did not lose its way by finding appellant guilty of both possession and
manufacture of methamphetamines.
{¶64} 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 of [her friend’s husband] at trial
4
Furthermore, at Weckner’s trial, testimony revealed that this vehicle was seen near Weckner’s residence
on several occasions. Testimony also revealed Weckner’s comments evidencing an awareness of the
contents of the vehicle.
Pike App. No. 16CA864 38
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 58.5
{¶65} In State v. Seldon, 8th Dist. Cuyahoga No. 98429, 2013-Ohio-
819, wherein the appellate court reversed Seldon’s conviction for assembly
or possession of chemicals used to manufacture methamphetamine, the court
observed 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. * * * Such evidence
included the following: * * * 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 * * *.”
{¶66} We acknowledge the previously-referenced cases, wherein
similar convictions were affirmed, involved fact patterns in which additional
corroborative evidence was submitted to the juries. Here, Appellant was
5
In addition, 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
the months prior to August 12, 2014.
Pike App. No. 16CA864 39
discovered alone in bedroom two in close proximity to an acid gas generator
on a dresser, a mason jar with flammable liquid on a shelf in the bedroom
two closet, and a one-pot bottle in a backpack on the floor. The acid gas
generator was actively giving off fumes, hydrogen chloride gas.
{¶67} Corporal Cottrell testified the acid generator was assembled and
was reacted to the point where the hydrogen chloride gas would be
administered to the liquid of the one-pot once the liquid was extracted.
Various other necessary ingredients were found in bedroom two, including
drain opener, ammonium nitrate, starting fluid, salt, coffee filters. A
marijuana pipe, another item of contraband, was found on the bed in
bedroom two. Appellant acknowledged marijuana use.
{¶68} While we cannot say the evidence against Appellant is
overwhelming, he was found in close proximity to an active one-pot
methamphetamine lab. The acid gas generator, with the hose and fumes, is
the physical equipment, as noted in Throckmorton, needed to manufacture
methamphetamine. And, he was found in the presence of other items, as in
Isaac and Weckner, consistent with the manufacture of methamphetamine.
The marijuana pipe, an entirely separate item of contraband, connects him to
the second bedroom.
Pike App. No. 16CA864 40
{¶69} “[P]ersons are presumed to have intended the natural,
reasonable and probable consequences of their voluntary acts.” Wickersham,
supra, quoting Garner at 60. Construing the evidence in favor of the
prosecution, we find any rational trier of fact could find Appellant
knowingly possessed the necessary chemicals and intended to manufacture
methamphetamine in the room in which he was located with a one-pot lab
actively giving off fumes. As such, we find the trial court did not err by
overruling Appellant’s Crim.R. 29 motion for acquittal. We hereby overrule
the third assignment of error.
ASSIGNMENT OF ERROR FOUR
{¶70} Appellant argues the three flaws which occurred in his trial,
highlighted above, are serious enough to make his case the rare one which
qualifies for reversal based on cumulative error. Appellee responds that the
trial court did not commit a single error, let alone multiple instances of
harmless error. As such Appellee concludes Appellant’s convictions do not
warrant reversal.
A. STANDARD OF REVIEW
{¶71} Under the doctrine of cumulative error, “a conviction will be
reversed where the cumulative effect of errors in a trial deprives a defendant
of the constitutional right to a fair trial even though each of [the] numerous
Pike App. No. 16CA864 41
instances of trial court error does not individually constitute cause for
reversal.” State v. Smith, 2016-Ohio-5062, 70 N.E.3d 150, (4th Dist.), ¶ 106,
quoting State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995).
“Before we consider whether ‘cumulative errors’ are present, we must first
find that the trial court committed multiple errors.” State v. Harrington, 4th
Dist. No. 05CA3038, 2006-Ohio-4388, ¶ 57, citing Goff, 82 Ohio St.3d at
140, 694 N.E.2d 916.
B. LEGAL ANALYSIS
{¶72} By our resolution of the above assignments of error having
found the trial court did not commit error, the cumulative error doctrine is
inapplicable herein. As such, we summarily overrule Appellant’s final
assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Pike App. No. 16CA864 42
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 Pike 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.
Hoover, J.: Concurs in Judgment and Opinion as to Assignments of Error I,
III, & IV; Concurs in Judgment Only as to Assignment of Error
II.
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.