STATE OF OHIO, Appellee v. DAVID A. GREGORY, JR., Appellant
C.A. No. 27523
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
November 25, 2015
[Cite as State v. Gregory, 2015-Ohio-4901.]
MOORE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2014 03 0851
MOORE, Judge.
{¶1} Defendant-Appellant David A. Gregory, Jr. appeals from his convictions in the Summit County Court of Common Pleas. We affirm.
I.
{¶2} In March 2014, Mr. Gregory was indicted on one count of illegal assembly or possession of chemicals (lithium batteries) for the manufacture of drugs (methamphetamine) in violation of
{¶3} The matter proceeded to a jury trial, after which, the jury found Mr. Gregory guilty of count one, involving the illegal assembly or possession of chemical for the manufacture of drugs, and count two, involving the attempted possession of prohibited amounts of pseudoephedrine products. The jury found him not guilty of the intimidation of a crime victim or witness. The trial court sentenced Mr. Gregory to an aggregate term of five years in prison.
{¶4} Mr. Gregory has appealed, raising four assignments of error for our review, which will be addressed out of sequence to facilitate our review.
II.
ASSIGNMENT OF ERROR II
[MR.] GREGORY’S ILLEGAL ASSEMBLY OF CHEMICALS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, WHICH VIOLATED [MR.] GREGORY’S RIGHTS UNDER THE 14TH AMENDMENT AND MANDATES REVERSAL.
{¶5} Mr. Gregory argues in his second assignment of error that his conviction for illegal assembly or possession of chemicals for the manufacture of drugs was based upon insufficient evidence. Specifically, he maintains that the element of “in the vicinity of a school” required that the State establish that Mr. Gregory was reckless with respect to whether, in committing the offense, he was “in the vicinity of a school.” In light of Mr. Gregory’s limited argument, and because we conclude that Mr. Gregory’s mental state was irrelevant in determining whether he committed the offense “in the vicinity of a school[,]” we overrule his assignment of error.
{¶6} The issue of whether a conviction is supported by sufficient evidence is a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to 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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶7} Mr. Gregory only challenges his conviction for violating
{¶8}
{¶9}
An offense is “committed in the vicinity of a school” if the offender commits the offense on school premises, in a school building, or within one thousand feet of the boundaries of any school premises, regardless of whether the offender knows the offense is being committed on school premises, in a school building, or within one thousand feet of the boundaries of any school premises.
(Emphasis added.)
{¶10} Mr. Gregory does not dispute that he was within 1000 feet of the boundaries of any school premises; instead, he argues that he must have been reckless about being in the vicinity of the school.
{¶11} “[R]ecklessness is the catchall culpable mental state for criminal statutes that fail to mention any degree of culpability, except for strict liability statutes, where the accused’s mental state is irrelevant. However, for strict liability to be the mental standard, the statute must plainly indicate a purpose to impose it.” State v. Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, ¶ 21. In Lozier, the Ohio Supreme Court concluded that language very similar to that in current
An offense is “committed in the vicinity of a juvenile” if the offender commits the offense within one hundred feet of a juvenile or within the view of a juvenile, regardless of whether the offender knows the age of the juvenile, whether the offender knows the offense is being committed within one hundred feet of or within view of the juvenile, or whether the juvenile actually views the commission of the offense.
(Emphasis added.)
{¶12} Given that very similar phrasing is used in the current version of
{¶13} It is true that, the Supreme Court in Lozier, in evaluating a former version of
{¶14} Given that Mr. Gregory’s assignment of error is based solely on the argument that the State was required to prove recklessness, we overrule his argument on that basis. Mr. Gregory’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
[MR.] GREGORY’S ILLEGAL ASSEMBLY OF CHEMICALS CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND MUST BE REVERSED.
{¶15} Mr. Gregory asserts in his third assignment of error that his conviction for the illegal assembly or possession of chemicals for the manufacture of drugs is against the manifest weight of the evidence. We do not agree.
{¶16} When a defendant asserts that his 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 and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶17} Mr. Gregory again only challenges his conviction for illegal assembly or possession of chemicals to manufacture drugs. He first argues that the State was required to prove that he was reckless with respect to whether he was in the vicinity of a school. We have previously resolved that issue above. In addition, Mr. Gregory asserts that Frank Boychi’s testimony was not credible, and because of that, his conviction is against the manifest weight of the evidence.
{¶18}
{¶19} On January 21, 2014, Detective Paul Laurella of the Barberton Police Department Narcotics Division was conducting surveillance on Mr. Gregory’s house for suspected drug activity. Detective Laurella was undercover and was observing events from a business across the street from Mr. Gregory’s house. Detective Laurella observed Mr. Gregory exit the house with a full Save-A-Lot grocery bag, which he placed in the car in the front passenger seat. Mr. Gregory
{¶20} Mr. Gregory left and Detective Laurella followed him in an unmarked car. Detective Laurella alerted Officer Ben Hill, who was a uniformed patrol officer in a marked car, of the activities in case Detective Laurella would need assistance. Mr. Gregory drove past Barberton High School and ultimately stopped at 479 Glenn Street.
{¶21} Mr. Boychi testified to the events at 479 Glenn Street. Mr. Boychi had known Mr. Gregory for many years, and had been living at Mr. Gregory’s house at the time of the events at issue. According to Mr. Boychi, earlier that day, he and his friends Keith and Jennifer Penrod left Mr. Gregory’s house and dropped Ms. Penrod off at an Akron court. Mr. Boychi and Mr. Penrod then went and stole approximately 50 to 60 packs of lithium batteries before picking up Ms. Penrod and driving to 479 Glenn Street. Mr. Boychi claimed that he stole the batteries to give them to Mr. Gregory in exchange for paying off a debt Mr. Boychi owed Mr. Gregory and to purchase more methamphetamine; Mr. Boychi was a methamphetamine addict.
{¶22} When the group arrived at 479 Glenn Street, Mr. Gregory was already there. Mr. Boychi went into the house with the Save-A-Lot bag of batteries and told Mr. Gregory that he had the batteries and that Mr. Gregory should take care of Mr. Boychi’s debt. In addition, Mr. Boychi claimed that Mr. Gregory gave him a little over a gram of methamphetamine. According to Mr. Boychi, he, Mr. Gregory, and Ms. Penrod then got in Mr. Gregory’s wife’s car to go back
{¶23} Detective Laurella recognized one of the people who arrived at 479 Glenn Street as Mr. Boychi, whom Detective Laurella discovered had outstanding arrest warrants. Detective Laurella alerted Officer Hill and Officer Hill initiated a traffic stop of the vehicle approximately five feet from the grounds of Barberton High School.
{¶24} Officer Hill informed Mr. Boychi of the warrants, arrested him, and placed him the back of the police cruiser. Officer Hill searched the immediate area around Mr. Boychi and found multiple packs of lithium batteries in a box on the back seat. Mr. Boychi testified that he told officers that the batteries were not his and that they were Mr. Gregory’s. Officer Hill stated that from his training, he “kn[e]w that lithium batteries [were] used in the process of manufacturing methamphetamine.” He indicated that, typically those manufacturing methamphetamine use three to four batteries in a batch, so, when he found so many batteries, to him, that indicated it was a large scale methamphetamine operation. He had “never personally seen th[at] many batteries at one time.”
{¶25} Because he was concerned about the possibility of there being other chemicals related to the manufacture of methamphetamine in the car, he contacted Detective Laurella and asked him to participate in the stop. Detective Laurella thereafter continued the search. Inside the box, he found an empty potato chip bag full of batteries. At trial, Mr. Boychi denied bringing the box or putting anything in the box in the backseat. On the floor of the back seat Detective Laurella found a Save-a-Lot grocery bag that contained batteries. In total, 26 or 27 packs of batteries were found in the car. Detective Laurella testified that the lithium metal in lithium
{¶26} Detective Laurella testified that after searching NPLEx, which allows law enforcement officers to determine how much and how frequently someone has purchased pseudoephedrine products, he found that Mr. Gregory had, on more than one occasion, attempted to purchase more than the amount of pseudoephedrine products authorized by law in a 30-day period and was blocked from doing so. Detective Laurella indicated that pseudoephedrine is also an essential ingredient in the one-pot method of manufacturing methamphetamine.
{¶27} Given all of the circumstances, including the presence of methamphetamine in the car, the fact the Mr. Gregory tried to purchase more pseudoephedrine than authorized by law, and the number of batteries found in the car, Detective Laurella believed that the batteries were going to be used in the manufacture of methamphetamine.
{¶28} Detective Laurella testified that when Mr. Boychi originally spoke to the police, he told the officers that Mr. Gregory bought the batteries from “Penrod.” Additionally, Mr. Boychi originally told the police that the methamphetamine found in the car was Ms. Penrod’s,
{¶29} On appeal, Mr. Gregory asserts that Mr. Boychi’s testimony was not credible, and, thus, the jury lost its way in convicting him of violating
{¶30} After a thorough and independent review of the record, we cannot say the jury lost its way in finding Mr. Gregory guilty of violating
ASSIGNMENT OF ERROR I
R.C. 2925.041(C) IS UNCONSTITUTIONALLY VAGUE AS APPLIED TO [MR.] GREGORY, MANDATING REVERSAL OF HIS ILLEGAL ASSEMBLY OF CHEMICALS CONVICTION.
{¶32} “The failure to challenge the constitutionality of a statute in the trial court forfeits all but plain error on appeal, and the burden of demonstrating plain error is on the party asserting it.” State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 2. “[W]e require a showing that but for a plain or obvious error, the outcome of the proceeding would have been otherwise, and reversal must be necessary to correct a manifest miscarriage of justice.” Id. at ¶ 16. “In addition, * * * a forfeited constitutional challenge to a statute is subject to review where the rights and interests involved may warrant it.” (Internal quotations and citations omitted.) Id.
{¶33} “Under the vagueness doctrine, statutes which do not fairly inform a person of what is prohibited will be found unconstitutional as violative of due process.” State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, ¶ 14, quoting State v. Reeder, 18 Ohio St.3d 25, 26, (1985); see also Johnson v. United States, __ U.S. __, 135 S.Ct. 2551, 2556 (2015). “However, [i]mpossible standards of specificity are not required. * * * The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” (Internal quotations and citations omitted.) Carrick at ¶ 14. “A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, ¶ 22. “In an as-applied challenge, the challenger contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, [is] unconstitutional.” (Internal quotations and citations omitted.)
{¶34} The details of Mr. Gregory’s argument are somewhat difficult to follow. Overall, he is asserting that the phrase in
{¶35}
{¶36} Here, there was evidence that Mr. Gregory drove a vehicle containing 26 or 27 packs of lithium batteries, a required ingredient in the one-pot method of making
{¶37} Mr. Gregory contends that the rule of lenity supports his argument. However, he fails to explain precisely how the rule of lenity is pertinent. “The rule of lenity is a principle of statutory construction that provides that a court will not interpret a criminal statute so as to increase the penalty it imposes on a defendant if the intended scope of the statute is ambiguous.” (Internal quotations and citations omitted.) State v. Davis, 139 Ohio St.3d 122, 2014-Ohio-1615, ¶ 35. “The rule applies only to the construction of ambiguous statutes.” (Internal quotations and citations omitted.) Id. Mr. Gregory has failed to explain how the statutes involved are ambiguous; thus, we fail to see how the rule of lenity applies to his situation. See
{¶38} Mr. Gregory also argues that the legislative intent of the statute was to punish only acts “being committed in a fixed location, chosen by the perpetrator[;]” not acts committed by a person “in motion, driving on the public highways.” “To determine legislative intent, a court must first consider the words used in a statute. When a statute’s language is clear and unambiguous, a court must apply it as written. Further construction is required only when a statute is unclear and ambiguous.” (Internal citations omitted.) State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, ¶ 10. Again, Mr. Gregory has not explained how the statues are ambiguous, and we decline to develop his argument further. See
{¶39} Finally, Mr. Gregory contends that he was only found guilty of the enhancement because police chose to stop his car in front of the school. It appears that Mr. Gregory argues that the statute is subject to arbitrary enforcement, as according to Mr. Gregory, the police can determine whether Mr. Gregory would be subject to a penalty enhancement by deciding where to stop him. While it is true that the police stopped Mr. Gregory’s vehicle when he was within five feet of the school grounds, it was Mr. Gregory who decided to drive past the school with the batteries he intended to use to manufacture methamphetamine. There is nothing in the record that suggests the police interfered with Mr. Gregory’s intended route and caused him to drive past the school. The crime at issue lies not in being stopped by the police in the vicinity of the school, it lies in committing the offense, i.e. possessing the chemical or chemicals, in the vicinity of the school, with the intent to manufacture a controlled substance. See
{¶40} Mr. Gregory’s first assignment of error is overruled.
ASSIGNMENT OF ERROR IV
[MR.] GREGORY’S RIGHTS TO A FAIR TRIAL AND DUE PROCESS UNDER THE FEDERAL AND OHIO CONSTITUTIONS AS ENUMERATED IN BRADY V. MARYLAND WERE VIOLATED WHEN THE STATE WITHHELD POTENTIALLY EXCULPATORY EVIDENCE FROM [MR.] GREGORY’S COUNSEL, MERITING REVERSAL OF [MR.] GREGORY’S CONVICTIONS.
{¶42} “The prosecutor must * * * provide defendants any evidence that is favorable to them whenever that evidence is material either to their guilt or punishment.” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, ¶ 96, citing Brady at 87. “Evidence is considered material when there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotations and citation omitted.) Pickens at ¶ 96.
{¶43} “Brady generally does not apply to delayed disclosure of exculpatory information, but only to a complete failure to disclose. Delay only violates Brady when the delay itself causes prejudice.” (Internal citation and quotations omitted.) State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, ¶ 155. “[T]he philosophical underpinnings of Brady support the conclusion that even disclosure of potentially exculpatory evidence during trial may constitute a due process violation if the late timing of the disclosure significantly impairs the fairness of the trial.” (Internal quotations omitted.) Pickens at ¶101, quoting State v. Iacona, 93 Ohio St.3d 83, 100 (2001). “Even where information may be exculpatory, “‘[n]o due process violation occurs as long as Brady material is disclosed to a defendant in time for its effective use at trial.’” Pickens at ¶ 101, quoting Iacona at 110, quoting United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir.1985). “The defendant has the burden to prove a Brady violation rising to the level of a due-process violation.” Pickens at ¶ 102.
{¶44} Mr. Gregory claims that the State failed to disclose, until after Mr. Boychi testified at trial, a police report dated January 22, 2014, which allegedly contained a statement by Mr. Boychi to the police. He asserts that the report “went directly to [Mr. Boychi’s] credibility.” As an initial matter, we note that it is not clear that the State failed to disclose the report. The State maintained at trial that the report had been disclosed, while Mr. Gregory’s counsel maintained that he had not seen it. Near the end of the discussion, Mr. Gregory’s counsel asked to speak with the trial court off the record and, following that discussion, the report is not brought up again. Nothing in the record suggests that Mr. Gregory’s counsel moved for a continuance or sought to have Mr. Boychi retake the stand. Additionally, several documents that appear to be police reports and which relay statements of Mr. Boychi were filed as part of the trial court record months before trial; some of those documents bear January 22, 2014 dates. It is unclear, however, whether any of those documents represent the allegedly withheld report; the contents of the report at issue were not proffered at trial or admitted into evidence.
{¶45} Assuming without deciding that there was a delay in disclosing the report, and that the contents were Brady material, Mr. Gregory has not explained how the delayed disclosure prejudiced him. See Osie at ¶ 155; see
{¶46} Mr. Gregory’s fourth assignment of error is overruled.
III.
{¶47} Mr. Gregory’s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
HENSAL, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.