STATE OF OHIO, Plaintiff-Appellee, v. EMILY DILLARD, Defendant-Appellant.
Case No. 13CA9
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY
RELEASED: 11/5/2014
[Cite as State v. Dillard, 2014-Ohio-4974.]
Harsha, J.
DECISION AND JUDGMENT ENTRY
Timothy Young, Ohio Public Defender, and Stephen A. Goldmeier, Ohio Assistant Public Defender, Columbus, Ohio, for appellant.
Colleen S. Williams, Meigs County Prosecuting Attorney, and Jeremy L. Fisher, Meigs County Assistant Prosecuting Attorney, Pomeroy, Ohio, for appellee.
Harsha, J.
{1} Following a trial the jury convicted Emily Dillard of illegal manufacturing of drugs, illegal assembly or possession of chemicals for the manufacture of drugs, and endangering children, and the court sentenced her to prison.
{2} On appeal Dillard claims that the trial court erred when it allowed Sergeant Bill Gilkey of the Meigs County Sheriff‘s Office to testify regarding logs of her purchases of pseudoephedrine, a chemical used in the production of methamphetamine. Dillard contends that Sgt. Gilkey‘s testimony should have been excluded because the state did not disclose his name as a witness in pretrial discovery. However, the trial court did not abuse its broad discretion in refusing to exclude Sgt. Gilkey‘s testimony because exclusion of evidence is a remedy of last resort. The state‘s failure to disclose Sgt. Gilkey‘s name was not a willful violation of the rule, knowledge of his name would not
{3} In her second assignment of error Dillard сontends that her convictions are not supported by sufficient evidence. In her third assignment of error she contends that her convictions are against the manifest weight of the evidence. The state introduced evidence that: Dillard purchased pseudoephedrine, a chemical used in the manufacturing of methamphetamine; Dillard resided with her four-year-old child in her father‘s home; a consent search revealed a partial methamphetamine lab consisting of a bottle containing water and brown sаnd in the bathroom and an active methamphetamine lab with smoke coming from it in a unlocked storage room. Based on this evidence, the jury properly found the essential elements of the crimes proven beyond a reasonable doubt and did not clearly lose its way or create a manifest miscarriage of justice. We reject Dillard‘s second and third assignments of error.
{4} In her fourth assignment of error Dillard asserts that the trial court erred when it entered a judgment of conviction against Dillard for third-degree-felony child endangering in violation of her due-process rights. Although the state agrees with Dillard‘s claim, the trial court did not violate
{5} We affirm Dillard‘s convictions and sentence.
I. FACTS
{6} Sgt. Danny Leonard of the Meigs County Sheriff‘s Office and Meigs County Children Services Investigator Candace Walker responded to a report of an active methamphetamine lab in a home where children were present. After they knocked on the door of the home, which was owned by Dillard‘s father, David, Dillard answered the door and let them search the premises. They found a partial methamphetamine lab consisting of a bottle with liquid and lithium battery residue sitting in plain view in a bathroom. The bоttle was within the reach of Dillard‘s four-year old child, who was present in the home. Dillard claimed that the bottle contained water and sand from the creek where her children had been playing.
{7} In an unlocked storage room in the home, Sgt. Leonard and Walker discovered an active methamphetamine lab, which was emitting smoke. Materials used to manufacture methamphetamine were present in the storage room and around the home. They found Dillard‘s father asleep in his bedroom and after taking about 30 minutes to awaken him, they escorted him and the others out of the home.
{8} Dillard informed Sgt. Leonard that she lived at her father‘s home, and she also listed the home as one of her residences to her parole officer. According to Sgt. Gilkey, he accessed logs and generated a report indicating that Dillard had purchased medications containing a total of 8.4 grams of pseudoephedrine over a period from
{9} A Meigs County grand jury returned an indictment charging Dillard with illegal manufacture of methamphetamine, illegal assembly or possession of chemicals for manufacture of methamphetamine, and endangering children, all felonies. Following trial the jury returned verdicts finding Dillard guilty of all the charges. The trial court imposed an aggregate prison term of ten years.
II. ASSIGNMENTS OF ERROR
{10} Dillard appealed and assigns the following errors for our review:
- The trial court erred when it allowed Sergeant Bill Gilkey to testify regarding the pseudoephedrine logs, when the State failed to timely notify defense counsel before trial that he would testify.
Crim.R. 16(I) . (V.1 at 96-101, 192-214) - Ms. Dillard‘s convictions are not supported by sufficient evidence, in violation of her right to due process. Fifth and Fourteenth Amendments to the U.S. Constitution; Article I, Section 16 of the Ohio Constitution. (August 8, 2013 Judgment Entry; V.1 at 212, 218; V.2 at 17, 43)
- Ms. Dillard‘s convictions are against the manifest weight of the evidence, in violation of her right to due process. Fifth and Fourteenth Amendments to the U.S. Constitution; Article I, Section 16 of the Ohio Constitution. (August 8, 2013 Judgment Entry; V.1 at 185-191, 212, 218I V.2 at 17, 39)
- The trial court committed reversible error when it entered a judgment of conviction against Ms. Dillard for third-degree-felony endangering children under
R.C. 2919.22(B)(6) , in violation of Ms. Dillard‘s rights to due process. Fifth and Fourteenth Amendments to the U.S. Constitution; Article I, Section 16 of the Ohio Constitution. (August 8, 2013 Judgment Entry; August 7, 2013 Verdict Form)
III. LAW AND ANALYSIS
A. Discovery Violation
{12} Initially, Dillard‘s trial counsel requested that the trial court exclude Sgt. Gilkey‘s testimony. After the state specified that it would be willing to allow Dillard‘s counsel time to interview Sgt. Gilkey and another witness, Dillard‘s counsel again requested that the witnesses not be allowed to testify, “or in the alternative, time be granted to the Defense to * * * understand this information better.” After the trial court denied the motion to exclude Gilkey‘s testimony, Dillard‘s counsel stated that he was ready to proceed and did not request a continuance. On appeal Dillard claims that the trial court should have granted the motion to exclude Gilkey‘s testimony. He does not contend that the trial court should have continued the trial.
{13} Under
{14} Paragraph two of the syllabus in Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), provides that when deciding whether to impose a sanction, the court must impose the least severe sanction that is consistent with the purpose of the rules of discovery. The rule applies equally to discovery violations committed by the state or by a criminal defendant. Darmond at the syllabus; see also In re D.M., 140 Ohio St.3d 309, 2014-Ohio-3628, 18 N.E.3d 404, ¶ 15.
{15} More specifically, “where a prosecutor violates
{16} First, Dillard concedes that the state did not willfully fail to provide Sgt. Gilkey‘s name in discovery.
{17} Second, advance knowledge that Sgt. Gilkey would testify would not have benefited Dillard in the preparation of her defense. In pretrial discovery, the statе
{18} Dillard claims that she was unfairly surprised by Sgt. Gilkey‘s testimony that her pseudoephedrine purchases raised a red flag to him through his experience investigating methamphetamine labs as a member of the narcotics task force. She suggests thаt this testimony unfairly surprised her because it went beyond the scope of what the state had previously represented to the trial court Sgt. Gilkey was going to
{19} Third, the trial court followed the mandate in Lakewood when imposing its sanction. Dillard primarily sought the harshest sanction available—the exclusion of Sgt. Gilkey‘s testimony—as a remedy for the state‘s discovery violation. Adopting Dillard‘s argument would contravene well-established precedent that requires the imposition of the least restrictive sanction consistent with the purpose of the rulеs of discovery. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, syllabus; Lakewood, 32 Ohio St.3d 1, 511 N.E.2d 1138, at paragraph two of the syllabus. “Exclusion of the evidence * * * is a remedy of last resort.” Katz, Martin, Lipton, Giannelli, and Crocker, Baldwin‘s Ohio Practice Criminal Law, Section 47:23 (3d Ed. 2013). Moreover, Dillard could have avoided any potential prejudice by accepting the state‘s offer to interview Sgt. Gilkey before he testified, seeking continuance, or if her trial counsel had not asked him damaging questions on cross-examination. See State v. Jenkins, 4th Dist. Pickaway No. 98CA31, 2000 WL 1281211, *5 (Sept. 6, 2000) (trial court did not abuse its discretion in denying defendant‘s motion to disallow testimony of а witness not disclosed by the state in discovery because the defendant failed to request a
{20} Finally, Dillard‘s trial counsel vigorously cross-examined Sgt. Gilkey.
{21} Therefore, the trial court did not abuse its broad discretion by denying Dillard‘s request to exclude Sgt. Gilkey‘s testimony. We overrule Dillard‘s first assignment of error.
B. Sufficiency of the Evidence
{22} In her second assignment of error Dillard asserts that her convictions are not supported by sufficient evidence. “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.’” 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, 61 L.Ed.2d 560 (1979). The court must defer to the trier of fact on questions of credibility and the weight assigned to the evidence. State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132.
{23}
{24} She was also convicted of illegal assembly or possession of chemicals for the manufacture of drugs,
{25} Dillard was also convicted of endangering children.
{26} Because Dillard‘s convictions are supported by sufficient evidence, we overrule her second assignment of error.
C. Manifest Weight of the Evidence
{27} In her third assignment of error Dillard contends that her convictions are against the manifest weight of the evidence. In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6254, 960 N.E.2d 955, ¶ 119.
{29} Although Dillard cites evidence that she did not reside at her father‘s house and that she was unaware of the presence of a methamphetamine lab in the house, the jury could properly credit the state‘s witnesses’ testimony that Dillard and her child resided at the home and reasonably infer that she knew about and participated in the production of methamphetamine. Upon our review of the evidence, we cannot conclude that the jury clearly lost its way or created such a manifest miscarriage of justice that we must reversе Dillard‘s convictions.
{30} Therefore, we overrule Dillard‘s third assignment of error.
D. Jury Verdict Form
{31} In her fourth assignment of error Dillard asserts that the trial court erred when it convicted her of a felony charge of endangering children because the jury verdict form did not comply with
{32}
(A) When the presence of one or more additional elements makes an offense one of more serious degree:
* * *
(2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty or that such additional element or elements are present. Otherwise, a jury verdict constitutes a finding of guilty of the least degree of the offense charged.
{33} “Pursuant to the clear language of
{34} Dillard claims that because the jury verdict form did not specify that the endangering-children charge was a felony or state the aggravating circumstances that elevated the charge to a felony, the guilty verdict constituted a finding of guilty of the least degree of the offense charged—a misdemeanor. See
{35} However, we disagree with Dillard‘s contention notwithstanding the assent of the state. The jury verdict form specified that her endangering children charge was pursuant to
{37} More pertinently, we reсently resolved this issue by holding that a verdict finding a defendant guilty of a specific Revised Code subsection that could only result in a third-degree felony conviction did not violate
Here, the jury found Jones guilty of illegal conveyance in violation of
R.C. 2921.36(A)(2) . UnderR.C. 2921.36(G)(2) , a violation of subsection (A)(2) can only result in a third-degree felony conviction. There are no aggravating elements necessary to enhance the penalty. * * * Therefore, * * * the jury‘s verdict form was sufficient to convict Jones of a third-degree felony.
{38} “ ‘Merely becausе there are different levels of offenses contained within one statute does not mean that the statute is subject to the language of
{39} As we concluded in Jones at ¶ 18, McDonald is distinguishable:
Nor are we confronted with a situation and statute like those in * * * McDonald * * *. The statute prohibiting the failure to comply with an order or signal of a police officer,
R.C. 2921.331 , contains two separate violations in separate subsections of the statute, one a misdemeanor and one a felony. The jury‘s verdict form was sufficient оnly to charge the misdemeanor version even though it contained some enhancing language from the felony version. Because the verdict form did not contain all the elements necessary for the felony version,R.C. 2945.75(A)(2) required a conviction for the least degree of the offense, i.e. a misdemeanor. No similar problem exists here.
{40} Therefore, we overrule Dillard‘s fourth assignment of error.
IV. CONCLUSION
{41} Having overruled Dillard‘s assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay 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 Meigs County Court of Common Pleas 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 continuеd 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, P.J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: _________________________
William H. Harsha, 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.