Case Information
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[Cite as
State v. Bowling
,
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-08-159 : O P I N I O N - vs - 4/21/2104 :
PAMELA J. BOWLING, :
Defendant-Appellant. : CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-01-0043
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Fl., Hamilton, Ohio 45011, for plaintiff-appellee Jeffrey W. Bowling, 315 South Monument Avenue, Hamilton, Ohio 45011, for defendant- appellant
PIPER, J. Defendant-appellant, Pamela J. Bowling, appeals her conviction in the Butler County Court of Common Pleas for one count of illegal assembly or possession of chemicals for the manufacture of drugs. For the reasons set forth below, we affirm appellant's conviction.
Appellant was indicted on one count of illegal assembly or possession of chemicals for the manufacture of drugs in violation of R.C. 2925.041, a third-degree felony. [1] The charge arose against appellant after several products commonly used in the manufacture of methamphetamine were found during a search of her vehicle during a traffic stop. On January 9, 2013, Adam Brennan, a Menards employee, observed Kelsey
Miller purchase a bottle of lye, Kleen-Out Drain Opener. Menards blacks out the bar codes of lye and other products that are commonly used for the purpose of manufacturing drugs, specifically methamphetamine. [2] Brennan followed Miller outside and observed her getting into the front passenger seat of a Kia sports utility vehicle. The vehicle was driven by appellant. Brennan then observed the vehicle drive towards the exit doors of the store, and a male, James Brown, enter the back of the vehicle. Brennan had seen Brown in the store earlier, asking for lithium batteries and Coleman fuel. Pursuant to company policy, Brennan contacted his manager to report the suspicious purchases, and the manager contacted the police. Officer Latona Reid was dispatched to the store "in reference to a young male
and female inside the store purchasing meth products." Upon arriving at Menards, Officer Reid observed appellant's vehicle and further observed Brown and Miller getting into the vehicle. Officer Reid followed the vehicle as it left the store's parking lot and initiated a traffic stop after observing the vehicle go left of center twice. Officer Brandon McCroskey arrived at the scene shortly after Officer Reid initiated the stop.
1. Appellant was originally indicted on a second-degree felony count of illegal assembly or possession of chemicals for the manufacture of drugs in violation R.C. 2925.041. However, upon motion by the state, the trial court ordered the indictment amended to a third-degree felony violation of R.C. 2925.041.
2. Menards blacks out the bar codes of these products such that when a person takes the item to the counter to be purchased, the transaction takes a few extra minutes which allows the store's surveillance camera to capture the individual on film.
{¶ 5} During the traffic stop, appellant consented to a search of her vehicle. In that search, the officers recovered a bottle of Kleen-Out, lye drain cleaner and a package of lithium batteries in the "passenger compartment in the middle-C area." [3] The officers also discovered a box of pseudoephedrine inside a drawer located underneath the front passenger seat of the vehicle, as well as a receipt dated January 8, 2013 at 5:57 p.m. from Walgreens Pharmacy for Wal-Phed d-tab, a generic form of pseudoephedrine. Appellant, Miller, and Brown were all subsequently placed under arrest.
{¶ 6} The case proceeded to a jury trial, held on July 8 and 9, 2013. The jury found appellant guilty of illegal assembly or possession of chemicals for the manufacture of drugs. The trial court sentenced appellant to nine months in the Ohio Department of Rehabilitation and Control, suspended her driver's license for three years, and ordered her to pay the costs of prosecution.
{¶ 7} Appellant appeals her conviction raising four assignments of error for our review. For ease of discussion, we will address appellant's third and fourth assignments of error together.
{¶ 8} Assignment of Error No. 1: THE COURT ERRED WHEN IT PERMITTED SERGEANT HACKNEY TO TESTIFY AS TO THE ITEMS USED TO MANUFACTURE METHAMPHETAMINE. In her first assignment of error, appellant asserts the trial court erred in admitting Sergeant Hackney's testimony that the items recovered from her vehicle are items commonly used to manufacture methamphetamine. At trial, Officer McCroskey identified the items recovered during the search of
appellant's vehicle, including a box of pseudoephedrine, a bottle of lye drain cleaner, and a 3. The bottle of Kleen-Out is conspicuously labeled as 100 percent lye.
package of lithium batteries. Later, during the testimony of Sergeant Hackney, a supervisor for the Butler County Undercover Regional Narcotics Unit (BURN Unit), the state presented Sergeant Hackney with these same items. Sergeant Hackney testified that these items are "commonly used in the manufacture of methamphetamine." Appellant contends that this testimony was improper as the state failed to present "evidence to prove that the chemicals contained in the lye container, battery package[,] or Wal-Phed pseudoephedrine package contained the product the packaging claimed to be." Generally, this court will not reverse a trial court's decision regarding the
admission of evidence absent an abuse of discretion. State v. Perkins , 12th Dist. Preble No.
CA2012-09-12,
and experience permitted him to testify as to what chemicals are used to manufacture
methamphetamine. This court has previously stated that "[t]he 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." State v. Cox ,
12th Dist. Clermont No. CA2008-03-028, ¶ 46, quoting State v. McKee ,
the packages were "actually" pseudoephedrine, lithium batteries, and lye drain cleaner. See
State v. Rollins , 3d Dist. Paulding No. 11-05-08,
{¶ 17} In addition, even if this court were to assume Sergeant Hackney's testimony was admitted in error, such error would not rise to the level of plain error. Miller testified that "[l]ye drainage for the drains, lithium batteries, [and] Sudafed" are used to make methamphetamine. [4] Miller also testified that on January 9, 2013, she, appellant, and Brown went about purchasing the pseudoephedrine, drain cleaner, and batteries "for meth." Accordingly, in light of the other evidence supporting her conviction, the outcome of trial would not have been different absent the testimony of Hackney.
{¶ 18} For the reasons discussed above, appellant's first assignment of error is overruled.
{¶ 19} Assignment of Error No. 2: DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO KELSEY MILLER'S TESTIMONY AS TO THE ITEMS USED TO MANUFACTURE METHAMPHETAMINE . In her second assignment of error, appellant argues that her trial counsel was
ineffective. To prevail on an ineffective assistance of counsel claim, appellant must show
trial counsel's performance fell below an objective standard of reasonableness and she was
prejudiced as a result. State v. Ward-Douglas , 12th Dist. Warren No. CA2011-05-042, 2012-
Ohio-4023, ¶ 96, citing Strickland v. Washington ,
all significant decisions in the exercise of reasonable professional judgment. State v.
Hendrix , 12th Dist. Butler No. CA2012-05-109,
object to Miller's lay-opinion testimony. At trial, Miller testified that pseudoephedrine, lithium batteries, and lye are all used in the manufacture of methamphetamine. Appellant contends her trial counsel should have objected to this testimony because, according to appellant, the state failed to establish the proper foundation for Miller's opinion as she only testified that she was a "user" of methamphetamine. Evid.R. 701 permits a lay witness to offer an opinion as long as such opinion is:
(1) rationally based on the perception of the witness and (2) helpful to a clear understanding
of the witness' testimony or the determination of a fact in issue. Pursuant to Evid.R. 701, the
Supreme Court has held that the experience and knowledge of a drug-user lay witness can
establish his or her competence to express an opinion on the identity of a controlled
substance if a foundation for this testimony is first established. State v. McKee , 91 Ohio
St.3d 292, 297 (2001). The identity of a drug may be established through circumstantial
evidence as long as the lay witness has "first hand [sic] knowledge and a 'reasonable basis –
grounded either in experience or specialized knowledge – for arriving at the opinion
expressed.'" State v. Gragg , 12th Dist. Fayette No. CA2006-09-038,
{¶ 26} We find that Miller was qualified as a lay witness to testify regarding the products used to manufacture methamphetamine. At trial, Miller testified that she uses methamphetamine. Contrary to appellant's assertions, Miller also testified that she has seen methamphetamine made. Specifically, the state questioned whether she knew what items go into the making or manufacture of methamphetamine. Miller responded that she did and identified "[l]ye drainage for the drains, lithium batteries, and Sudafed" as the necessary items. Furthermore, Miller explained she had purchased items to be used in the manufacture of methamphetamine prior to the events on January 9, 2013, and had purchased such items with appellant. Accordingly, Miller's knowledge as to the items used to manufacture methamphetamine was a result of her first-hand use and experience in not only using methamphetamine, but also observing it being made, and participating in obtaining items necessary to its manufacture. Moreover, trial counsel was entitled to and in fact cross- examined the credibility of Miller's opinion regarding the products used to manufacture methamphetamine.
{¶ 27} Based on the foregoing, we find that trial counsel was not ineffective in failing to object to Miller's testimony as such testimony was admissible.
{¶ 28} Appellant's second assignment of error is overruled. Assignments of Error No. 3 and No. 4: THE STATE OF OHIO PRESENTED INSUFFICIENT EVIDENCE TO CONVICT [APPELLANT] OF ILLEGAL ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE MANUFACTURE OF DRUGS. In her third and fourth assignments of error, appellant asserts the state failed to
present sufficient evidence to support her conviction for illegal assembly or possession of chemicals for the manufacture of drugs.
{¶ 32}
When reviewing the sufficiency of the evidence underlying a criminal conviction,
an appellate court examines the evidence in order to determine whether such evidence, if
believed, would support a conviction. State v. Wilson , 12th Dist. Warren No. CA2006-01-
007,
of chemicals for the manufacture of drugs, in violation of R.C. 2925.041. R.C. 2925.041 states, in part:
(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.
(B) 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. Appellant contends the state failed to prove that the chemicals found in her
vehicle were in fact chemicals that are commonly used in the manufacture of methamphetamine and that she knowingly "possessed" such chemicals. According to R.C. 2901.22(B), "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." Possession means "having control over a thing or
substance, but may not be inferred solely from mere access to the thing or substance
through ownership or occupation of the premises upon which the thing or substance is
found." R.C. 2925.01(K). Possession may be actual or constructive. Perkins at ¶ 11.
"Constructive possession exists when one is conscious of the presence of the object and
able to exercise dominion and control over it, even if it is not within one's immediate physical
possession." Id. Dominion and control can be proven by circumstantial evidence alone.
State v. Gaefe , 12th Dist. Clinton No. CA2001-11-043,
appellant's version of events. Miller testified that the day before their arrest, she and appellant went out to several stores in the area and methodically purchased pseudoephedrine for the purpose of making methamphetamine or exchanging the pills for methamphetamine. Miller also testified that appellant sent her to Brown's residence to obtain the methamphetamine. A text message sent from appellant's cellular telephone indicated that appellant wanted "three-quarters" of a gram of methamphetamine per box. Agent Hollandsworth, who interviewed appellant the day of her arrest, confirmed that it is common to exchange methamphetamine for pseudoephedrine boxes. This evidence indicates that appellant was well aware of the products used in the manufacture of methamphetamine and, in fact, knew Brown well before picking him up on January 9, 2013. Furthermore, Miller testified that prior to going to Menards on January 9, 2013,
she, Brown, and appellant had a conversation regarding what each person was going to purchase. Miller further stated that the purpose of these purchases was "for meth." Accordingly, the jury could have inferred from this testimony that appellant was certainly conscious of the presence of the pseudoephedrine, drain cleaner, and lithium batteries in her vehicle. In addition, although there is no indication that appellant was in actual possession of the drain cleaner or batteries, the state presented evidence which demonstrated that she was able to exercise the necessary dominion and control over the items to establish constructive possession. The items were recovered from appellant's own vehicle and were near where she was sitting. Moreover, the pseudoephedrine box was well within appellant's reach. Appellant herself admitted she had purchased pseudoephedrine. According to Miller, this purchase of pseudoephedrine was "for meth." Therefore, by appellant's own admission, she possessed at least one item necessary for the manufacture of methamphetamine, and it is clear that possession of a single chemical is sufficient under the statute. After viewing the evidence in a light most favorable to the prosecution, we find
the jury could have found that appellant knowingly possessed one or more chemicals that may be used in the manufacture of methamphetamine. In challenging the evidence supporting her conviction, appellant also contends
that the state failed to present evidence that the chemicals in the packaging were in fact lye drain cleaner, lithium batteries, and pseudoephedrine. Appellant once again asserts the state failed to prove that the products contained inside the packages recovered from her vehicle are those used to manufacture methamphetamine.
{¶ 41}
As described in our resolution of the first assignment of error, the state was not
required to present scientific evidence to establish the identity of chemicals found in
appellant's vehicle. See Montoya ,
conviction. Miller testified that "[l]ye drainage for the drains, lithium batteries, [and] Sudafed" are used to make methamphetamine. Miller further stated that she and appellant had purchased pseudoephedrine on the day before their arrest to make methamphetamine. In addition, Miller testified that on January 9, 2013, she, appellant, and Brown went about purchasing pseudoephedrine, and the drain cleaner and batteries from Menards "for meth." Based on the foregoing, the record indicates that the jury could have found the essential elements of the crime proven beyond a reasonable doubt. Accordingly, appellant's third and fourth assignments of error are overruled. Judgment affirmed.
S. POWELL, P.J., and M. POWELL, J., concur.