STATE OF OHIO, Plaintiff-Appellee, vs. DALLAS P. CLARK, Defendant-Appellant.
Case No. 14CA20
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
Released: 11/24/15
2015-Ohio-5003
DECISION AND JUDGMENT ENTRY
Susan M. Zurface Daniels, Hillsboro, Ohio, for Appellant.1
Anneka Collins, Highland County Prosecuting Attorney, and James Roeder, Assistant Prosecuting Attorney, Hillsboro, Ohio, for Appellee.
McFarland, A.J.
{¶1} Dallas P. Clark appeals his conviction in the Highland 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, Clark contends: (1) the trial court erred in denying his Rule 29 motion when the State presented no evidence of “intent to manufacture” methamphetamine; (2) his conviction was against the manifest weight of the evidence; (3) his conviction was based on insufficient
FACTS
{¶2} On September 9, 2014, Appellant Dallas P. Clark was indicted on one count of illegal assembly or possession of chemicals for the manufacture of drugs, a violation of
{¶3} Appellant was tried on the sole count on November 13, 2014. The State presented testimony from the following individuals: Kelsey Degan, a forensic scientist employed by the Ohio Bureau of Criminal
{¶4} In closing, the State argued that circumstantial evidence showed Appellant possessed pseudoephedrine and lithium, necessary chemicals in the manufacture of drugs, and that he possessed the items with the intent to manufacture drugs. The State pointed out Appellant purchased pseudoephedrine at least twice a month on average in the year 2014. The State emphasized Appellant knew Colville cooked methamphetamine. The State noted the room in which Appellant was located contained a majority of the items found for the manufacture of drugs. At the conclusion of the one-day trial, the jury returned a verdict of guilty.
{¶5} This timely appeal followed. Where relevant, additional facts will be related below.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION PURSUANT TO
CRIM.R. 29(A) WHEN THE STATE PRESENTED NO EVIDENCE OF “INTENT TO MANUFACTURE” METHAMPHETAMINE,WHICH IS AN ESSENTIAL ELEMENT OF THE CRIME OF ILLEGAL ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE MANUFACTURE OF METHAMPHETAMINE PURSUANT TO R.C. 2925.041 OF THE OHIO REVISED CODE .II. APPELLANT‘S CONVICTION FOR ILLEGAL ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE MANUFACTURE OF METHAMPHETAMINE PURSUANT TO
O.R.C. 2925.041 WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.III. APPELLANT‘S CONVICTION FOR ILLEGAL ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE MANUFACTURE OF METHAMPHETAMINE PURSUANT TO
O.R.C. 2925.041 WAS BASED ON INSUFFICIENT EVIDENCE.IV. THE SENTENCING PROVISIONS OF
2925.041 OF THE OHIO REVISED CODE , WHEN READ IN PARI MATERIA WITH THE2929.14 ARE IN CONFLICT WITH EACH OTHER, RENDERING A FIVE (5) YEAR MANDATORY SENTENCE PURSUANT TO2925.041 IMPROPER AND INVALID AS A MATTER OF LAW.”
{¶6} The arguments made in the first three assignments of error are interrelated. For ease of analysis, we begin with consideration of Appellant‘s Assignment of Error Two. Appellant argues his conviction was against the manifest weight of the evidence.
ASSIGNMENT OF ERROR TWO
A. STANDARD OF REVIEW
{¶7} When an appellate court considers a claim that a conviction is
” ‘[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.’ ”
{¶9} 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
B. LEGAL ANALYSIS
{¶10} Appellant was convicted of
“(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 .”
{¶11}
“(A) No person shall knowingly cultivate marihuana or knowingly manufacture or otherwise engage in any part of the production of a controlled substance.”
{¶12} Appellant contends the State failed to present any evidence of “intent to manufacture.” Appellant points out the “intent to manufacture a controlled substance” is not defined in the
{¶13} Appellee responds that the facts and testimony of various witnesses provide evidence from which a reasonable juror could infer Appellant held the intent to manufacture. Appellee points out Appellant was present in a residence where a search warrant had recently been executed for
{¶14} We begin by noting that
“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.”
{¶15} Appellant‘s trial began with testimony from Kelsey Degan of BCI. The trial court declared her to be an expert in substance identification and measuring. She identified the following:
- States’ Exhibit 1, a copy of a lab report she prepared in Appellant‘s case. Degan testified she received evidence from Detective Swackhammer on August 21, 2014.
- State‘s Exhibit 2, a manila envelope containing a white substance discovered to contain methamphetamine. Degan emphasized she followed all procedures and that she could say
beyond a reasonable degree of scientific certainty that the substance in the manila envelope was methamphetamine. - State‘s Exhibit 27, twenty white tablets containing pseudoephedrine, which she had tested and analyzed. She again testified beyond a reasonable degree of scientific certainty that the tablets were pseudoephedrine.
Degan testified after she analyzed the evidence she sealed it up to be returned. Degan also testified it is not a standard operating procedure to test for DNA on drugs. On cross-examination, the defense emphasized that there was no DNA link between Appellant and the methamphetamine confiscated.
{¶16} Detective Daniel Croy testified one of his duties is maintaining the evidence room at the Highland County Sheriff‘s Department. He and Detective Swackhammer testified to the chain of custody for State‘s Exhibits 2 and 27. Detective Jennifer Swackhammer testified she transported Exhibits 2 and 27 to BCI and also returned them to the evidence room.
{¶17} Detective Vinny Antinore testified he has been employed by the sheriff‘s office for nearly three years. Primarily, his duty is to dispatch. However, on August 13, 2014, he assisted other officers on execution of a search warrant on Holaday Road. He identified Appellant for the jury. Deputy Antinore testified when he first saw Appellant at the scene, he was being escorted out of the home onto the front porch. Deputy Antinore noticed Appellant had something in his hand he was attempting to conceal.
{¶18} On cross-examination, Deputy Antinore acknowledged he had not consistently assisted with search warrants during his three years of employment. He first saw Appellant with Sergeant Seaman. Deputy Antinore testified he did not advise Sergeant Seaman he saw Appellant holding something in his hand. Deputy Antinore further testified he never approached Appellant and attempted to retrieve the item in his hand. After Appellant was removed from the porch, he advised Sergeant Bowen he observed something in Appellant‘s hand. Then he walked over and saw the item on the porch. On redirect, Deputy Antinore testified he didn‘t alert anyone about the item in Appellant‘s hand immediately because he was fearful if Appellant was aware of the information, he would throw the item and the officers would never find it.
{¶19} The next witness was Detective Randy Sanders. Detective Sanders testified to his experience and training identifying and dismantling methamphetamine labs. Detective Sanders testified as to the process of
{¶20} Detective Sanders testified Appellant had been staying at the Holaday Road residence because he saw him there on July 23, 2014 when he drove by. On August 13, 2014, when the warrant was executed, Detective Sanders searched Kevin Colville‘s bedroom and the garage. Inside the garage he found numerous items inside a bag, including ammonium nitrate pellets out of a cold pack, a torn up lithium battery, a Hamilton Beach blender, a bottle of lye, drain cleaner, crystal drain opener. Detective Sanders identified State‘s Exhibit 20, the bag he found in the garage containing the above-described items. Detective Sanders testified each of the items can be used in the production of methamphetamine. Detective Sanders testified the significance of the blender is that it is commonly used to grind the pseudoephedrine pills. Detective Sanders identified various other photographs of items discovered on August 13, 2014.
{¶21} On cross-examination, Detective Sanders acknowledged Appellant was in a romantic relationship with Amanda Campanero and she stayed at the residence as well. Detective Sanders testified he did not observe Appellant with a bag in his hand while Appellant was sitting on the
{¶22} On redirect, Detective Sanders testified the house was set up to make methamphetamine. The Hamilton Beach blender box was found in the bedroom where Appellant and Campanero stayed.
{¶23} The State‘s final witness was Detective Chris Bowen. He also testified as to his responsibility for identifying and dismantling methamphetamine labs. He went to the Holaday Road residence to execute the search warrant on August 13, 2014. When he arrived he saw Kevin Colville in the kitchen. He later checked Appellant‘s bedroom. Inside the room he found pseudoephedrine, pseudoephedrine receipts, lithium batteries and personal property belonging to Appellant and Amanda Campanero. He also found miscellaneous personal items. He testified he found a plastic tote inside Appellant‘s bedroom which contained coffee filters, the blender box, and a Folger‘s coffee container. He reiterated the blender was found outside in the garage with white residue in it. He also found crushed Sudafed pills. Detective Bowen identified the following exhibits:
State‘s Exhibit 7, a photograph taken of two blister packs that contained pseudoephedrine laying on top of the dresser. - State‘s Exhibit 8, a photograph of a Wal-Mart bag in the bedroom hanging off the dresser which contained an empty box of pseudoephedrine.
- State‘s Exhibit 10, a third receipt of pseudoephedrine purchase, dated August 12, 2014, from Kroger in Hillsboro.
- State‘s Exhibit 11, a photograph showing an overview of the items on the dresser; an RX bag that contained a full box of pseudoephedrine that had six pills in it; and two blister packs containing 20 pseudoephedrine pills. He also explained pseudoephedrine is an active ingredient in the production of methamphetamine.
- State‘s Exhibit 13, a photograph of items he found on top of the dresser in the bedroom. The photograph showed lithium batteries wrapped in a paper towel and part of a blister pack beside the pseudoephedrine pills.
- State‘s Exhibit 14, two lithium batteries. He added lithium metal is an active ingredient needed to produce methamphetamine.
- State‘s Exhibit 27, two blister packs that contained twenty pseudoephedrine pills found on top of the dresser.
{¶24} Detective Bowen testified that the items depicted in State‘s Exhibits 7, 8, 10, 11, 13, and 14 were all found in Appellant‘s bedroom. He collected the pseudoephedrine tablets, placed them in an evidence bag, and eventually took them to an evidence locker in the sheriff‘s office.
{¶26} On cross-examination, Detective Bowen admitted that the August 12, 2014 receipt, attached to the bag, contained the pills in an unopened box. He acknowledged the pills had never been used to manufacture. He also acknowledged Exhibit 27, the two blister packs located on top of the dresser, had only nineteen pills because BCI tested one. He testified a discarded pseudoephedrine box was inside the Wal-Mart bag hanging on the dresser. He admitted that he did not know if the pills had come from Amanda Campanero‘s purchase or if they had been there for months. He also testified he did not know whether the pills had been used in the manufacture of methamphetamine.
{¶28} Detective Bowen testified Appellant‘s ID cards were on top of the dresser. He admitted other than the receipt tracing a single Sudafed purchase to Appellant, there was no other evidence that Appellant purchased any of the other items, brought them to the residence, or exercised control over them. He testified there was no active cook going on.
{¶29} Detective Bowen testified he escorted Appellant, Ms. Campanero, and another person from the bedroom to the porch. He didn‘t observe anything in Appellant‘s had. Deputy Antinore advised that he found a baggy where Appellant was seated on the porch after he left. Detective Bowen collected it.
{¶30} On redirect, Detective Bowen identified Exhibit 32, Appellant‘s purchase history. Appellant had purchased pseudoephedrine, or attempted to purchase it, 15 times in 8 months. At this point, the State asked for the relevant exhibits to be admitted and rested.
{¶32} The defense case began with the testimony of Kevin Colville. He testified he rented the Holaday Road residence on August 13, 2014. He acknowledged he was currently serving a prison term after pleading to two charges of possession of chemicals for the manufacture of methamphetamine.
{¶33} Colville testified on August 13, 2014, he and Appellant had worked on the transmission of Appellant‘s truck. Appellant and Campanero
{¶34} When the officers arrived, Colville was in the kitchen. Appellant and Campanero were in one of the bedrooms. Colville was taken out to the porch. Colville admitted he was the person engaged in the manufacture of methamphetamine as his residence. He testified that Appellant had never purchased chemicals to be used in the production of methamphetamine. Colville denied that Appellant provided the various items located at the residence, which included Damp-Rid, crystal Drano, lighter fluid, and pseudoephedrine. He wrote a letter from prison to let everyone know Appellant should not be blamed for his mistakes.
{¶35} On-cross-examination, Colville admitted he told Appellant he would “do anything to try to help him get out of [this]because it‘s not his fault.” He admitted that he and Appellant had been communicating through letters and family members. He denied Appellant cooked meth with him. He admitted Appellant was at his residence on July 23, 2014 when the officers were previously there.
{¶36} Finally, Appellant testified. He gave his residence as a location in Peebles, Ohio. He admitted he moved around and sometimes stayed at
{¶37} Appellant testified Detective Bowen and another officer brought them out. A third officer on the porch was keeping them in the area. Five people on the porch were lined up close together. Appellant testified he “made a scene“, accusing someone else of setting them up. Therefore, he was taken to a patrol car.
{¶38} Appellant testified he did purchase Sudafed the day before. He was planning to give it to his girlfriend to trade for methamphetamine. He admitted he had a prior conviction for assembling chemicals. He admitted he used methamphetamine on August 13, 2014. Appellant specifically denied:
- Bringing Damper-Rid to the residence, opening it, or using it;
- Bringing Sudafed to the house;
- Possessing crystal Drano, using it, or knowing it was present in the residence;
Being aware of the presence of the bottle of lighter fluid; - Creating any solvents;
- Manufacturing methamphetamine;
- Participating in the use or discarding of the previous meth lab; and,
- Collaborating with Kevin Colville.
{¶39} On cross-examination, Appellant reiterated nobody was making meth. He knew that Colville cooked meth and had a meth lab at his house a few months prior. His pseudoephedrine was in the house, in Campanero‘s purse next to his ID. He testified he was aware pseudoephedrine is a necessary item to make meth.
{¶40} As we begin our analysis, Appellant has directed us to State v. Seldon, 8th Dist. Cuyahoga No. 98429, 2013-Ohio-819, where the defendant 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
{¶41} 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. The eighth district appellate 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.
- His possession of the confiscated chemicals;
- Testimony from an agent that the chemicals were used in the red phosphorous method of cooking methamphetamine;
- Testimony from another agent that based on the location, quantity, and combination, the seized products could be used to manufacture methamphetamine;
- The fact the canine alerted to a narcotic in the truck after the stop; and,
- Seldon’s admission that he had used methamphetamine in the past. Id. at 22.3
{¶43} Appellant herein argues there is no evidence of intent to manufacture. It is true that the State’s case against Appellant herein is largely circumstantial. It is well-established, however, that “a defendant may be convicted solely on the basis of circumstantial evidence.” State v. Wickersham, ¶ 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
{¶44} Furthermore, the case at bar involves circumstantial evidence of intent. “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.
{¶45} By the end of the State’s case, the jury had heard evidence that:
- Detective Sanders has experience in identifying and dismantling methamphetamine labs. Appellant, Amanda Campanero, his girlfriend, and Kevin Colville were present at the Holaday Road residence when various items for the
manufacture of methamphetamine including ammonium nitrate pellets, a torn up lithium battery, a Hamilton Beach blender, a bottle of lye, a bottle of drain cleaner, and crystal Drano were located in the garage. Detective Sanders testified each of the items can be used in the production of methamphetamine. He also testified blenders are commonly used to grind pseudoephedrine pills for such purpose. He testified the residence was set up to make methamphetamine. - Detective Bowen also has experience in identifying and dismantling meth labs. In Appellant’s bedroom he found pseudoephedrine, pseudoephedrine receipts, lithium batteries, and personal property of both Appellant and Amanda Campanero. He also found a plastic tote containing a Hamilton Beach blender box in the bedroom. He found lithium batteries wrapped in a paper towel on the dresser in the bedroom. He found two blister packs containing pseudoephedrine on top of the dresser. He explained that pseudoephedrine and lithium metal are active ingredients needed to produce methamphetamine. However, no active cook was going on when the officers arrived.
- Detective Bowen also found two receipts in the bedroom, one dated August 11, 2014 in Amanda Campanero’s purse, and one on top of the dresser dated August 12, 2014. The August 12, 2014 receipt was for a purchase of pseudoephedrine made by Appellant.
- Exhibit 2, a white substance determined to be methamphetamine, and Exhibit 27, twenty white tablets containing pseudoephedrine, had been transferred to BCI for scientific testing and the chain of custody for the evidence had been preserved.
- Deputy Antinore testified State’s Exhibit 2 was a white powdery substance in a clear bag that he saw in Appellant’s hand. He did not report the clear bag to anyone at the time for fear that Appellant would discard it. The bag was later recovered by Detective Bowen from the area where Appellant had been sitting on the porch.
- Detective Sanders testified Appellant had been staying at the Holaday Road residence because he saw him there on July 23, 2014 and again on August 13, 2014.
- Detective Bowen testified Exhibit 27 was the pseudoephedrine he located on top of the dresser.
- Detective Bowen admitted other than the receipt of Appellant’s Sudafed purchase, there was no other evidence Appellant purchased any of the other items, brought them to the residence, or exercised control over them.
- Kevin Colville testified he was currently serving a prison term for possession of chemicals for the manufacture of methamphetamine. Appellant, Campanero, and others occasionally stayed in the bedroom where Appellant was located. He testified he was the person engaged in the manufacture of methamphetamine at his residence, but Appellant was not. He testified Appellant did not provide any of the chemicals found there.
- Appellant testified he was present at the Holaday Road residence on August 13, 2014. He purchased Sudafed the day before to give to his girlfriend. He denied manufacturing methamphetamine. He denied bringing any of the chemicals to the house. He admitted using methamphetamine on August 13, 2014. He admitted he had a prior conviction for assembling chemicals. Appellant admitted he knew that Colville cooked meth and had done so before.
{¶46} The trial court instructed appropriately as follows:
“Whether an inference is made, rests entirely with you. Now, when considering circumstantial evidence, you may not draw one inference from another inference; but, you may draw more than one inference from the same facts and circumstances. In other words, you can’t stack one inference upon another to reach a factual conclusion.”
{¶48} Appellant and Campanero were discovered by officers in a bedroom. Although Colville testified others stayed at the residence, the evidence demonstrates that Appellant had a significant connection to the bedroom where he was located on August 13, 2014. His identification cards and Campanero’s purse were found in the room. The absence of evidence indicating that other individuals had recently stayed in the bedroom supports the inference that the batteries and pseudoephedrine located on top of the dresser, along with the tote bag containing the Hamilton Beach blender box, were present under Appellant’s knowledge and control.
{¶49} Furthermore, Appellant testified he had used methamphetamine on the date of his arrest. He purchased Sudafed the day before for the purpose of obtaining more methamphetamine. Importantly, Appellant testified he was aware that Colville made methamphetamine.
{¶51} We acknowledge that this is a close case and we reiterate that the jury was in the best position to observe the witnesses and evaluate their credibility. Notably, the jury sent out two questions during deliberations, indicating they took seriously their duty to evaluate the evidence and
ASSIGNMENT OF ERROR THREE
A. STANDARD OF REVIEW
{¶52} 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-Ohio-502, at ¶ 33, quoting State v. Jenks at paragraph two of the
{¶53} 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
{¶54} Appellant next argues his conviction, pursuant to
ASSIGNMENT OF ERROR ONE
A. STANDARD OF REVIEW
{¶55} The standard of review for a
B. LEGAL ANALYSIS
{¶56} Here Appellant contends the trial court erred by denying his
ASSIGNMENT OF ERROR FOUR
A. STANDARD OF REVIEW
{¶57} In State v. Pulliam, 4th Dist. Scioto No. 14CA3609, 2015-Ohio-759, ¶ 5, see State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, we recently held that when reviewing felony sentences, we apply the standard of review set forth in
B. LEGAL ANALYSIS
{¶58} Appellant argues the general felony sentencing provision of
“Whoever violates this section is guilty of illegal assembly or possession of chemicals for the manufacture of drugs. Except as otherwise provided in this division, illegal assembly or possession of chemicals for the manufacture of drugs is a felony of the third degree, and, except as otherwise provided in division (C)(1) or (2) of this section, division (C) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender. If the offense was committed in the vicinity of a juvenile or in the vicinity of a school, illegal assembly or possession of chemicals for the manufacture of drugs is a felony of the second degree, and, except as otherwise provided in division (C)(1) or (2) of this section, division (C) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender. If the violation of division (A) of this section is a felony of the third degree under this division and if the
chemical or chemicals assembled or possessed in violation of division (A) of this section may be used to manufacture methamphetamine, there either is a presumption for a prison term for the offense or the court shall impose a mandatory prison term on the offender, determined as follows: (1) Except as otherwise provided in this division, there is a presumption for a prison term for the offense. If the offender two or more times previously has been convicted of or pleaded guilty to a felony drug abuse offense, except as otherwise provided in this division, the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree that is not less than two years. If the offender two or more times previously has been convicted of or pleaded guilty to a felony drug abuse offense and if at least one of those previous convictions or guilty pleas was to a violation of division (A) of this section, a violation of division (B)(6) of section 2919.22 of the Revised Code, or a violation of division (A) of section 2925.04 of the Revised Code, the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree that is not less than five years.”
Pursuant to the above statute, Appellant was sentenced to a five-year mandatory prison term due to having two prior convictions for felony drug abuse offenses. However, recently revised
“(a) For a felony of the third degree that is a violation of section 2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the Revised Code or that is a violation of section 2911.02 or 2911.12 of the Revised Code if the offender previously has been convicted of or pleaded guilty in two or more separate proceedings to two or more violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code, the prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.
(b) For a felony of the third degree that is not an offense for which division (A)(3)(a) of this section applies, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.”
{¶59} Appellant argues
{¶60} Appellee responds that there is no conflict between the statutes. Appellee cites
“Except as provided in division (D), (E), (F), or (G) of this section, in determining whether to impose a prison term as a sanction for a felony of the third degree or a felony drug offense that is a violation of a provision of Chapter 2925 of the Revised Code and that is specified as being subject to this division for purposes of sentencing, the sentencing court shall comply with the purposes and principles of sentencing under section 2929.11 of the Revised Code and with section 2929.12 of the Revised Code.”
Appellee points out that none of the language contained in subsections (D, (E), (F), and (G) of
{¶61} The Twelfth District Court of Appeals recently considered the argument that the statutes are in conflict in State v. Young, 31 N.E.3d 178, 2015-Ohio-1347. The Twelfth District Appellate Court pointed out the statutory provisions listed in
{¶62} The Young court observed in State v. Shaffer, 9th Dist. Medina Nos. 12CA0071-M, 12CA0077-2014-Ohio-2461, the decision cited by the state, that:
“[T]he defendant entered a plea of no contest to illegal assembly of chemicals for the manufacture of drugs and was sentenced to five years in prison under
R.C. 2925.041(C)(1) . The Ninth Appellate District upheld the sentence on the ground that ‘the General Assembly intendedR.C. 2925.041(C)(1) to be a specific exception to the general felony sentencing scheme set forth inR.C. 2929.14 ,’ and thus,R.C. 2925.041(C)(1) prevailed overR.C. 2929.14 .” Id. at ¶42.
{¶63} The Shaffer court held in its decision:
“Here, similar to the facts in Sturgill, Ms. Shaffer‘s sentence for a felony of the third degree was increased from thirty-six months to five-years because
R.C. 2925.041(C)(1) specifically mandates imprisonment of ‘not less than five-years’ if certain conditions precedent are met. Additionally, as indicated above, bothR.C. 2929.14 andR.C. 2925.041 were amended by H.B. 86 on September 30, 2011. As a result, we conclude that if the General Assembly wished to amendR.C. 2925.041(C)(1) , in order to remove the penalty enhancement language, it would have done so at that time. Instead, the General Assembly amendedR.C. 2925.041(C)(1) to state that the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree that is not less than five years if ‘two or more times previously [the offender] has been convicted of or pleaded guilty to a felony drug abuse offense and if at least one of those previous convictions or guilty pleas was to a violation of division (A) of this section, a violation of division (B)(6) of section 2919.22 of the Revised Code, or a violation of division (A) of section 2925.04 of the Revised Code[.]’ CA0077-M (Emphasis added.) (Italicized words indicate changes made toR.C. 2925.041(C)(1) in H.B. 86.) Shaffer, at ¶ 14.”
{¶64} The Young court noted in addressing the conflict between the statutes and seeking guidance with this matter, the Shaffer court relied on the 12th district’s decision in State v. Sturgill, 12th Dist. Clermont Nos. CA2013-01-002 and CA2013-01-003, 2013-Ohio-4648. However, on March 23, 2015, the Twelfth District Appellate Court explicitly overruled Sturgill and its progeny in State v. Burkhead, 12th Dist. Butler No. CA2014–02–028, 2015-Ohio-1085. The holding and analysis in Sturgill was no longer good law in the 12th appellate district.
“That said, issues remain regarding the trial court‘s original decision sentencing Dunning to an aggregate five-year prison term. After a thorough review of the record, we find the trial court erred by sentencing Dunning to serve five years in prison resulting from his guilty plea *189 to illegal possession or assembly of chemicals for the manufacture of drugs in violation of
R.C. 2925.041(A) , a third-degree felony. At the time of his original sentencing hearing, the maximum prison sentence for a third-degree felony was three years in prison. Therefore, the trial court‘s original sentencing decision in Case No. CA2013-05-048 is reversed and this matter is remanded for the sole purpose of resentencing Dunning according to law. Dunning‘s conviction is affirmed in all other respects.” Id. at ¶ 11.5
{¶66} The Young court held:
”
R.C. 2925.041(C)(1) sets forth a specific sentencing scheme for third-degree felonies involving felony drug abuse offenses and is thus specific, rather than general, in nature. See Shaffer, supra, at ¶ 14-15. Likewise,R.C. 2929.14(A)(3) , which sets forth a specific, two-tiered sentencing scheme for third-degree felonies, is specific, rather than general, in nature. See State v. Owen, 11th Dist., 2013-Ohio-2824, 995 N.E.2d 911, ¶ 27-28. The two statutes are clearly in conflict since the maximum sentence authorized for a third-degree felony drug offense underR.C. 2925.041(C)(1) is 60 months, while the maximum sentence allowed for third-degree felonies, other than those listed inR.C. 2929.14(A)(3)(a) , is 36 months. Yet,R.C. 2925.041(C)(1) also incorporates by referenceR.C. 2929.14 when the former states, ‘the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree * * *.’ Young, at ¶43.”
{¶67} Young also referenced Owen, supra, in which the Eleventh Appellate District emphasized the fact that one of the overriding purposes of felony sentencing under H.B. 86 is to ” ‘punish the offender using the minimum sanctions that the court determines accomplish those purposes.’ ” Owen at ¶ 30, quoting
{¶68} The Young court concluded as follows:
“In light of our decisions in Dunning and Burkhead, the fact this court overruled Sturgill and its progeny, and the rule of lenity, we find that appellant should have been sentenced under
R.C. 2929.14(A)(3)(b) , and not underR.C. 2925.041(C)(1) . The trial court‘s decision to sentence appellant to 60 months in prison underR.C. 2925.041(C)(1) is therefore clearly and convincingly contrary to law and appellant‘s sentence must be vacated. SeeR.C. 2953.08(G)(2) . On remand, the trial court should exercise its discretion in resentencing appellant to one of the prison terms set forth inR.C. 2929.14(A)(3)(b) up to 36 months in prison.” Id. at ¶ 49.
{¶69} We have located no other cases beyond those cited which address the conflict issue raised by Appellant. Based on the persuasive reasoning set forth in Young, we find Appellant’s fourth assignment of error has merit. We find his five-year mandatory sentence under
{¶70} I respectfully dissent from the majority’s disposition of the fourth assignment of error and would affirm the trial court’s judgment and sentence in toto.
{¶71} To the extent that Clark contends
{¶72} Thus both the relevant sections of
{¶73} And as Clark points out in his brief at page 25,
{¶74} Based upon those facts and the rationale expressed by the Ninth Appellate District in Shaffer, supra, I would affirm the trial court’s judgment of conviction and its sentence in its entirety.
It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland 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 Part and Dissents in Part with Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland,
Administrative 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.