STATE OF OHIO, Plaintiff-Appellee, vs. SUSAN EVANS-GOODE, Defendant-Appellant.
Case No. 15CA10
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY
Released: 08/08/16
2016-Ohio-5361
McFarland, J.
DECISION AND JUDGMENT ENTRY
Timothy Young, Ohio Public Defender, and Eric M. Hedrick, Assistant State Public Defender, Columbus, Ohio, for Appellant.
Colleen S. Williams, Meigs County Prosecutor, and Jeremy L. Fisher, Assistant County Prosecutor, Pomeroy, Ohio, for Appellee.
McFarland, J.
{¶1} Susan Evans-Goode appeals her convictions and sentences in the Meigs County Court of Common Pleas after a jury found her guilty of one count of illegal manufacture of methamphetamine, a second degree felony in violation of
FACTS
{¶2} Appellant Susan Evans-Goode was indicted on one count of illegal manufacture of methamphetamine, a second degree felony in violation of
{¶3} Appellant was tried before a jury on June 30, 2015. The State presented testimony from the following individuals: Ronald Duvall, a pharmacist employed at Rite-Aid Pharmacy in Pomeroy, Ohio; Stanton Wheasler, a forensic scientist employed by the Ohio Bureau of Criminal Identification and Investigation (BCI); Sergeant Robert “Adam” Smith of the Meigs County Sheriff‘s Department; and Terri Carmichael, Appellant‘s co-defendant. Appellant did not present any witnesses in her defense.
{¶4} The jury ultimately found Appellant guilty of both charges contained in the indictment. The trial court subsequently sentenced Appellant to prison terms on each conviction, to be served consecutively, for a total term of eleven years. It is from this order that Appellant now appeals her convictions and sentences, setting forth two assignments of error for our review.
“I. SUSAN G. EVANS WAS DENIED HER RIGHT TO DUE PROCESS AND A FAIR TRIAL WHEN THE JURY FOUND HER GUILTY OF ILLEGAL ASSEMBLY OR POSSESSION OF CHEMICALS FOR MANUFACTURE OF METHAMPHETAMINE WHEN THERE WAS NOT SUFFICIENT EVIDENCE PRESENTED TO SUSTAIN A CONVICTION. FIFTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; ARTICLE I, SECTION 16, OHIO CONSTITUTION.
II. THE TRIAL COURT ERRED IN VIOLATION OF MS. EVANS’ RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, AND
ASSIGNMENT OF ERROR I
{¶5} In her first assignment of error, Appellant contends that her convictions were not supported by sufficient evidence. A claim of insufficient evidence invokes a due process concern and raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt. Thompkins, syllabus. The standard of review is whether, after
{¶6} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate court must construe the evidence in a light most favorable to the prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a sufficiency-of-the-evidence claim unless reasonable minds could not reach the conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).
{¶7}
{¶8} “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.”
{¶10} ” ‘[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.’ ” State v. Gavin, 4th Dist. Scioto No. 13CA3592, 2015-Ohio-2996, ¶ 35; citing
{¶12} Appellant argues that the State failed to show the presence of any chemicals used to make methamphetamine and also failed to show that Appellant possessed a chemical used to make methamphetamine. More specifically, Appellant argues that while Sergeant Smith identified various
{¶13} As set forth above, the State introduced testimony from four witnesses at trial, including a Rite-Aid pharmacist, a forensic scientist from BCI, a Meigs County Sheriff‘s Sergeant, and Appellant‘s co-defendant, in support of its theory that Appellant possessed and assembled chemicals used in the manufacture of methamphetamine and also manufactured methamphetamine. Rite-Aid Pharmacist Ronald Duvall testified that Rite-Aid maintains a central database that monitors purchases of pseudoephedrine, an ingredient in methamphetamine. He testified that business records maintained by Rite-Aid demonstrated that Appellant attempted to purchase Zyrtec-D, which contains pseudoephedrine, on January 7, 2015, but was blocked from making the purchase due to the fact that she had purchased more than the maximum amount allowed by law over
{¶14} BCI Forensic Scientist Stanton Wheasler also testified on behalf of the State and was qualified as an expert. He testified that he tested four items that were provided to him in connection with this case. One of the items contained an insufficient sample, one was not able to be identified, but two of the four items, which consisted of a bag containing powder and a plastic bottle with glass vials, contained methamphetamine. Plastic tubing submitted with the plastic bottle also contained trace amounts of methamphetamine. The BCI records indicate that the item determined to contain methamphetamine came from a one-pot lab, which the record reveals was recovered from Appellant‘s vehicle.
{¶15} Meigs County Sheriff‘s Department Sergeant Adam Smith testified that he had obtained specialized training with regard to meth labs and is a certified meth technician. He testified that the certification enabled him to identify, dismantle and neutralize meth labs for transport and disposal. He testified that his experience included responding to over sixty meth labs. He further testified that he initially arrived at the residence in
{¶16} Contrary to Appellant‘s argument that his testimony was vague and lacking in specificity, the record indicates Sergeant Smith testified in great detail as to the items recovered during the search and also testified regarding nearly sixty photos introduced by the State. Overall, between the residence, the trash and a burn pile, Smith testified that he found salt, solvents, Coleman fuel, liquid fire, drain cleaner, lithium batteries that had been cut in two, ice packs, boxes and water bladders from ice packs and pseudoephedrine. Smith testified that these items are all precursors or ingredients required for the manufacture of methamphetamine. He also testified that he located scales in Appellant‘s bedroom that actually had
{¶17} Finally, Terri Carmichael, the owner of the house and Appellant‘s co-defendant, testified on behalf of the State. Carmichael testified that Appellant was at her house and they were “smoking a little bit of meth” when law enforcement knocked on the door on January 21, 2015. She testified that Appellant had been living at her house for about a month and that although Appellant‘s boyfriend, Mark Russell, was present that day, he did not live there. She testified that she had purchased Sudafed on prior occasions, approximately eight times, to give to Appellant, in return for money and meth.
{¶18} Carmichael testified that she saw Appellant and Russell manufacture methamphetamine the night of January 20, 2015, and that the meth was “finished” at her house. She said that earlier in the day on January 21, 2015, and before law enforcement arrived, she, along with Appellant and Russell, had gone to Walmart in Gallipolis to purchase Sudafed. She testified that they also stopped at Wetter‘s/Tru Value Lumber that day to purchase Coleman fuel. She testified that they arrived back home at
{¶19} In the case sub judice, contrary to Appellant‘s arguments, we believe that Appellant‘s illegal manufacture and illegal assembly convictions are supported by sufficient evidence. Specifically, we conclude that a review of the evidence leads to a rational conclusion that Appellant knew that methamphetamine was being manufactured in the residence, that Appellant engaged in some part, if not all, of the manufacturing process, and also that she had assembled and possessed chemicals used in the manufacture of methamphetamine, both prior to and after the cook that took place either the night of January 20, 2015, or early morning of January 21, 2015.
{¶20} In sum, the evidence and reasonable inferences show the following: (1) Appellant was living in the residence; (2) stripped lithium batteries and cold pack bladders were located in and around the residence as well as the trash; (3) cutting open or stripping lithium batteries and removing
{¶21} Further, we find no merit to Appellant‘s assertion that the State was required to formally test and identify the chemicals found, such as the Coleman fuel, the Drano, or the lithium from the batteries. Instead, we conclude that the fact that the active one-pot was confirmed to contain methamphetamine leads to a reasonable inference that the various other chemicals found in the residence were, in fact, what they appeared to be.
{¶22} Additionally, with respect to Appellant‘s argument that the State failed to prove she possessed any chemical used in the manufacture of methamphetamine, the testimony at trial indicates that Appellant had successfully purchased pseudoephedrine on January 13, 2015, that she, Carmichael and Russell purchased additional pseudoephedrine on January 21, 2015, that she lived in the residence where all of the various different chemicals and precursors were located, that scales with her name on them were located in her bedroom, and that what was confirmed to be a one-pot meth lab was found in her vehicle. Therefore, the jury could have rationally determined that given these circumstances, Appellant illegally possessed and assembled chemicals used in the manufacture of methamphetamine and also engaged in some part, or all, of the manufacture of methamphetamine.
{¶23} Finally, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, we conclude any rational trier of fact could have found all the essential elements of these offenses beyond a reasonable doubt. As such, we
ASSIGNMENT OF ERROR II
{¶24} In her second assignment of error, Appellant contends that the trial court erred in failing to merge her convictions for purposes of sentencing, convictions which she argues are for allied offenses of similar import. Appellant did not raise this issue during the proceedings below so she has forfeited all but plain error. The Supreme Court of Ohio, however, has previously recognized that a trial court plainly errs when it imposes multiple sentences for allied offenses of similar import. State v. Wilson, 4th Dist. Scioto No. 13CA3542, 2015-Ohio-2016, ¶ 63 (internal citations and footnote omitted).
{¶25} The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb,” and this protection applies to Ohio citizens through the Fourteenth Amendment and is additionally guaranteed by Article I, Section 10 of the Ohio Constitution. This constitutional protection prohibits multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072 (1969),
{¶26} The General Assembly enacted
“(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
{¶27} Appellate courts apply a de novo standard of review in an appeal challenging a trial court‘s determination of whether offenses constitute allied offenses of similar import that must be merged under
{¶28} The Supreme Court of Ohio recently clarified the applicable analysis in determining when two offenses merge under
{¶29} As set forth above, Appellant did not raise the issue of merger during the proceedings below. Likewise, the record bears no indication that the trial court addressed the issue of allied offenses of similar import or made a determination regarding merger before sentencing Appellant. This Court has previously remanded cases to the trial court to make initial
{¶30} Because we conclude that the record before us sufficiently allows for independent review of this issue, and in the interests of judicial economy, we will address this argument on the merits rather than remanding the case to the trial court for a determination. Further, based upon the following, we conclude that the offenses presently at issue were committed separately and with a separate animus and thus, are not allied offenses of similar import subject to merger.
{¶31} Here, although the dates specified in the indictment list both offenses as being committed on or about January 21, 2015, the record demonstrates that the offenses were ongoing and expanded beyond that date alone. For instance, there is evidence in the record that Appellant purchased pseudoephedrine on January 13, 2015, approximately 7 days prior to the day the meth was cooked on the night of January 20, 2015, and that Carmichael
{¶32} Appellant argues that our prior decision in State v. Sluss, 4th Dist. Highland No. 13CA24, 2014-Ohio-4156, is controlling and dictates that the offenses at issue must be merged for purposes of sentencing as the indictment herein alleges that both the illegal assembly/possession and the manufacturing occurred on January 21, 2015. Appellant also argues that because law enforcement only had one encounter with her, the offenses at issue should have been merged for sentencing. We disagree.
{¶33} First, in Sluss, we were assuming a hypothetical and even then, we essentially stated that such hypothetical “may” result in a different outcome, i.e. offenses being determined to be allied and requiring merger,
{¶34} We further conclude that the facts before us are similar to the facts in State v. Chandler, 4th Dist. Highland No. 14CA11, 2014-Ohio-5215, ¶ 1, 3, which involved charges of illegal assembly or possession, as well as manufacturing of methamphetamine, and which stemmed from a single encounter with law enforcement. In Chandler, we determined that the crimes were not committed with the same conduct or with the same animus. Id. at ¶ 26. In reaching that decision, we found:
“determinative the fact that Appellant appears to have purchased pseudoephedrine, cold packs and other materials on different days that [sic] the actual manufacturing at issue in this case took place, as well as the fact that additional cold packs, over and above those needed to manufacture the meth made on November 1, 2013, were found in Appellant‘s bedroom during the search.”
{¶35} In light of the foregoing, the trial court did not commit plain error in failing to merge these offenses because they are not allied offenses of similar import. Accordingly, Appellant‘s second assignment of error is overruled and the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
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 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 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 Assignment of Error I; 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.