STATE OF OHIO v. HARRY E. JACKSON, DANNIELLE L. HILEMAN, EUGENE B. HOOVER, DANIEL I. DEARMENT
C.A. Nos. 27132, 27133, 27158, 27200
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
December 16, 2015
[Cite as State v. Jackson, 2015-Ohio-5246.]
CARR, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2012 03 0882 (A), CR 2012 03 0882 (C), CR 2012 03 0882 (D), CR 2012 03 0882 (E)
CARR, Judge.
{1} Defendant-Appellants, Harry Jackson, Dannielle Hileman, Eugene Hoover, and Daniel DeArment (collectively “Appellants“), appeal from their convictions in the Summit County Court of Common Pleas. This Court affirms.
I.
{2} Jackson is the owner of a store in Akron, Ohio, known as The Odd Corner. In March 2012, the University of Akron Police Department began investigating The Odd Corner because they suspected that illegal bath salts were being sold there. The department conducted a controlled buy at the store on March 21, 2012. Hoover, an employee of the store, was working that day and sold a product called Joy to one of the department‘s undercover detectives. Joy
{3} After successfully purchasing Joy from The Odd Corner, the University of Akron Police Department secured a warrant to search the store. Its officers arrived on scene on the morning of March 23, 2012, to conduct additional surveillance and to execute the warrant. Hileman, the manager at The Odd Corner, was working that day and sold Joy to multiple customers while members of the police department watched. DeArment was one of the customers who purchased Joy. He and several others were stopped in their vehicles after leaving the store. Meanwhile, other members of the police department executed the warrant and found almost 100 containers of Joy in a back room of the store.
{4} A grand jury indicted Appellants on multiple counts of aggravated trafficking in Pentedrone and/or aggravated possession of Pentedrone. Jackson was also indicted on several counts of complicity to commit aggravated trafficking in Pentedrone. Appellants’ indictments identified Pentedrone as a controlled substance analog whose chemical structure was substantially similar to Methcathinone, a schedule I controlled substance. Under
{5} Jackson filed a motion to declare the controlled substance analog statute unconstitutional and the remaining Appellants joined in his motion. The trial court held a two-day hearing at which four experts testified: two experts for Appellants and two for the State. When the hearing concluded, the court toоk the matter under advisement. The court later denied
{6} After the court rejected Appellants’ challenge to the analog statute, Appellants filed a motion in limine. Appellants sought to preclude the State‘s two experts from testifying at trial on the basis that their testimony was scientifically unreliable. The State responded in opposition to Appellants’ motion in limine. Additionally, the State asked the court to preclude Appellants’ experts from testifying at trial on the basis that their testimony was scientifically unreliable and/or would confuse or mislead the jury. The court held a hearing on the motions in limine. Although the court denied Appellants’ motion to exclude the State‘s experts, it granted the State‘s motion to exclude Appellants’ experts. Consequently, Appellants’ experts were not permitted to testify at trial.
{7} Appellants were all tried together before a jury, and the jury found them guilty on all counts. Both Jackson and Hileman were convicted of second-degree felonies because the jury found that they sold or possessed an amount of Pentedrone that was between five and 50 times the bulk amount. The court sentenced Jackson to four years in prison and a $25,000 fine. Hileman was sentenced to two years in prison, and Hoover and DeArment both received community control. Appellants then appealed from their respective convictions, and this Court consolidated the four appeals.
{8} Appellants collectively raise 21 assignments of error for our review. For ease of analysis, we consolidate and rearrange the assignments of error.
II.
HILEMAN & HOOVER‘S ASSIGNMENT OF ERROR I
THE OHIO CONTROLLED SUBSTANCE ANALOG STATUTE, AS CODIFIED IN
JACKSON‘S ASSIGNMENT OF ERROR I
THE OHIO CONTROLLED SUBSTANCE ANALOG STATUTE, AS CODIFIED IN
DEARMENT‘S ASSIGNMENT OF ERROR II
THE OHIO CONTROLLED SUBSTANCE ANALOG STATUTE, AS CODIFIED IN
{9} In each of the foregoing assignments of error, Appellants argue that the controlled substance analog statute,
{10} Legislative enactments are afforded a strong presumption of constitutionality. State v. Collier, 62 Ohio St.3d 267, 269 (1991). “[I]f at all possible, statutes must be construed in conformity with the Ohio and United States Constitutions.” Id. A party asserting that a statute is unconstitutional must prove that the statute is unconstitutional beyond a reasonable doubt. Id.
{11} When asserting that a statute is unconstitutional because it is void for vagueness, the challenging party must show that, “after examining the statute, a person of ordinary intelligence would not be able to understand what he is required to do under the law.” State v. Schneider, 9th Dist. Medina No. 06CA0072-M, 2007-Ohio-2553, ¶ 6, citing State v. Anderson, 57 Ohio St.3d 168, 171 (1991). This Court has previously stated:
In considering a challenge to [a statute] as void for vagueness, a court is required to determine whether the statute (1) provides sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific enough to prevent official arbitrariness or discrimination in its enforcement. A statute does not need to avoid all vagueness, and is not void for vagueness simply because it could have been worded more precisely or with additional certainty. Rather, the critical question in all cases is whether the law affords a reasonable individual of ordinary intelligence fair notice and sufficient definition and guidance to enable him to conform his conduct to the law.
(Internal citations and quotations omitted). In re E.D., 194 Ohio App.3d 534, 2011-Ohio-4067, ¶ 9 (9th Dist.). “Due process requires that the terms of a criminal statute be reasonably clear and definite and that there be ascertainable standards of guilt on which citizens, courts, and the police may rely.” Akron v. Rowland, 67 Ohio St.3d 374, 381 (1993).
{12} Former
- The substance has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.
- With respect to a particular person, that person represents or intends the substance to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.
{13} The four experts who testified at the constitutionality hearing all agreed on the chemical structures of Pentedrone and Methcathinone. There is no dispute that the two structures are identical in all respects but one: Pentedrone contains one additional ethyl group. The ethyl group is comprised of two carbon atoms and three hydrogen atoms, all of which link to the existing Methcathinone structure at the same location. Accordingly, while the alkyl chain in Mеthcathinone ends in one carbon atom and three hydrogen atoms, Pentedrone‘s alkyl chain extends farther due to the addition of the two carbon and three hydrogen atoms at the end of the chain. The experts disagreed about the significance of the additional atoms in Pentedrone and whether they could draw any conclusions about Pentedrone based on the statutory definition of a controlled substance analog.
{14} Lindsay Reinhold, a forensic chemist for NMS Labs, testified as an expert for the defense. Reinhold testified that, from an objective standpoint, all chemists should be able to identify the chemical structure of a molecule. Reinhold also opined, however, that it is entirely subjective whether a given chemist would find two chemical structures substantially similar because the phrase “substantially similar” is not one that is defined by the field of chemistry. She testified that any opinion she gave as to substantial similarity would be entirely her own and that different chemists could interpret that standard in different ways. She offered four different examples of how a chemist might define “substantially similar” and testified that, in the example
{15} Reinhold agreed that certain criteria could be adopted to help define substantial similarity, such as similarities or differences in the physical chemical properties of two chemical structures (e.g., their boiling points and melting points). She testified, however, that she would not be able to draw any scientific conclusions about the similarities between Pentedrone and Methcathinone if only provided with the dictionary definitions of the words “substantial” and “similar.” Even so, she agreed that both Pentedrone and Methcathinone were substitute Cathinones and that Cathinone is a schedule I controlled substance that is commonly found in bath salts.
{16} Anna Tabor, a forensic scientist in the chemistry section at the Bureau of Criminal Investigation & Identification (“BCI“), testified for the State. Tabor testified that BCI established a committee to identify various analog drugs and that the committee had classified Pentedrone as a controlled substance analog. Tabor opined that the chemical structure of Pentedrone is substantially similar to Methcathinone because the addition of a single ethyl group is not enough of a distinction to make the two structures dissimilar. She testified that both drugs are substitute Cathinones and share the same Cathinone backbone. She explained that a chemical becomes dissimilar to another chemical when its structure “is changed enough to alter the chemical behavior of the molecule” (e.g., the breaking of the backbone of the chemical structure). She acknowledged that she could not quantify that standard because different atoms have different effects and certain minor atom substitutions could cause a substantial change in the behavior of a molecule. She testified, however, that her training and knowledge of chemistry allowed her to understand how atoms interact and that she could draw upon that training and
{17} Dr. Alfred Staubus, an Emeritus faculty member at The Ohio State University College of Pharmacy and a Ph.D. in pharmaceutical chemistry, testified for the defense regarding Pentedrone‘s effect on the central nervous system. Dr. Staubus testified that drugs generally work by binding to receptor sites in the brain. He agreed that receptors are like locks and drugs are like keys, with both fitting together to produce a certain effect. He testified that even drugs that bind to the same receptor sites can cause distinct pharmacological effects, depending on their chemical composition. He offered morphine and codeine as an example. While codeine only has one more methyl group than morphine, it has about one-tenth the analgesic activity of morphine. Dr. Staubus testified that the addition of even one methyl or ethyl group can “dramatically change” the pharmacological effect of a molecule in some instances, but not in others.
{18} Dr. Staubus stated that he would not be able to offer an opinion on whether Pentedrone has a substantially similar effect on the central nervous system as Methcathinone if guided only by the standard of substantial similarity. He testified that it would be necessary to conduct animal studies to know how the pharmacological effects of Pentedrone compare with the effects of Methcathinone. He further testified that substantial similarity is a vague standard that lacks a basis in science. According to Dr. Staubus, scientists in pharmacology and toxicology often consider whether two compounds are “significantly similar,” but only in the context of applying a quantitative method. He testified that, for any given study,
[y]ou have to read the study to find out what the definition of significant level of similarity is. * * * [I]f we want to establish a law that says that something is
significantly similar or different, we can say * * * let‘s set the standard that the central nervous system effect of such and such has to be within three standard deviations of еach other. That way you can establish whether something is or is not significantly significant at a certain level.
In Dr. Staubus’ opinion, before one can determine similarity, there must be a known analytical method for correlating the effects of one drug to the effects of another. He offered several different examples of the tests one could perform that could then be used to establish a quantitative method for measuring similarity.
{19} Dr. John Wyman, the chief toxicologist at the Cuyahoga County Medical Examiner‘s Office, testified for the State regarding Pentedrone‘s effect on the central nervous system. Dr. Wyman testified that Methcathinone is a stimulant that works by binding to the dopamine, norepinephrine, and serotonin neurotransmitters in the brain and preventing their reuptake. Methcathinone has known pharmacological effects and Dr. Wyman listed those effects for the court. While Dr. Wyman testified that he was not aware of any studies about the pharmacological effects of Pentedrone, he testified that more information was known about Buphedrone.
{20} Dr. Wyman explained that Buphedrone is an analog of Methcathinone. Buphedrone shares Methcathinone‘s basic structure, but extends its alkyl chain by one additional carbon atom and three additional hydrogen atoms. Accordingly, Buphedrone has one less carbon atom than Pentedrone. Dr. Wyman testified that Buphedrone has been shown to bind to the same receptors as Methcathinone and has a similar list of pharmacological effects. The structural similarity between Buphedrone and Pentedrone caused Dr. Wyman to expect that Pentedrone would bind to the same receptor sites as Buphedrone and Methcathinone. Given the lack of formal studies about the pharmacological effects of Pentedrone, however, Dr. Wyman stated that he felt it would be beneficial to consult the internet. Therefore, he searched for “Pentedrone
{21} Appellants argue that the controlled substance analog statute is unconstitutionally vague because “[t]here is no universally accepted scientific approach to determine what constitutes substantial similarity in structure or its effects on the nervous system.” They argue that the statute lends itself to arbitrary enforcement and would not have put a reasonable person on notice that the distribution or purchase of Pentedrone was illegal.
{22} Initially, we note that the vast majority of Appellants’ argument concerns the statutory definition of “controlled substance analog,” not the controlled substance analog statute itself. The controlled substance analog statute only provides for the treatment of a controlled substance analog as a schedule I controlled substance, to the extent that it is intended for human consumption. See
{23} Ohio‘s statutory scheme with regard to controlled substance analogs is virtually identical to the Controlled Substance Analogue Enforcement Act of 1986 (“the Federal Act“). “Under the [Federal Act],
(1) the alleged analogue substance has a chemical structure that is substantially similar to the chemical structure of a controlled substance classified under Schedule I or Schedule II (the chemical structure element); (2) the alleged analogue substance has an actual, intended or claimed stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than such effect produced by a Schedule I or Schedule II controlled substance (the pharmacological similarity element); and (3) the analogue substance is intended for human consumption (the human consumption element).
United States v. McFadden, 753 F.3d 432, 436 (4th Cir. 2014), vacated on other grounds, McFadden v. United States, 135 S.Ct. 2298 (2015). Accord
{24} Since 1986, numerous Circuit Courts have considered void for vagueness challenges to the Federal Act and have found it to be constitutional. See, e.g., McFadden at 438-441 (constitutional as applied to bath salts); United States v. Turcotte, 405 F.3d 515, 531-533 (7th Cir.2005) (constitutional as applied to Gamma Butyrolacetone); United States v. Roberts, 363 F.3d 118, 122-127 (2d Cir.2004) (constitutional as applied to 1,4-butanediol); Klecker at 71-72 (constitutional as applied to 5-methoxy-N,N-diisopropyltryptamine, a.k.a. “Foxy“); United States v. Carlson, 87 F.3d 440, 443-444 (11th Cir.1996) (constitutional аs applied to 3,4-Methylenedioxymethamphetamine, a.k.a. MDMA); United States v. Hofstatter, 8 F.3d 316, 321-322 (6th Cir.1993) (constitutional as applied to various precursor chemicals that could be used to manufacture substances similar to methamphetamine); United States v. Granberry, 916 F.2d 1008 (5th Cir.1990) (constitutional on its face in case involving N-Hydroxy-3,4-
{25} In United States v. Forbes, a Colorado District Court judge found the Federal Act to be unconstitutionally vague as applied to alphaethyltryptamine (“AET“). AET was originally marketed as an anti-depressant in the early 1960s, but was removed from the market when it was linked to toxic side effects in some patients. Nevertheless, it was still available for purchase from two chemical manufacturers. The government charged Forbes with distribution of AET after he allegedly purchased it from a manufacturer for the purpose of distributing it. Because AET was never classified as a controlled substance, the government sought to establish it as an analog of either dimethyltryptamine (“DMT“) or diethyltryptamine (“DET“).
{26} Forbes filed a motion to dismiss, challenging the Federal Act as being unconstitutionally vague. At the hearing on his motion, there was a wide range of testimony about AET‘s structure and its effect. The defense experts testified that the chemical structure of AET was not substantially similar to DMT‘s or DET‘s chemical structures and that AET did not have a substantially similar effect on the central nervous system. One of the government‘s experts presented a contrary opinion, but another agreed that AET‘s chemical structure was not substantially similar to DMT‘s or DET‘s. There also was evidence that the government had previously declined to prosecute Forbes for the same behavior “due to the conflict within the government as to AET‘s structural similarity to DMT and DET.” Id. at 234.
{27} The district court judge found troublesome the fact that there was no consensus among the scientific community, much less the government‘s own experts, about AET‘s structural similarity to DMT/DET or the methodology to be used in order to make that determination. Id. at 237. He noted that the chemical structure prong of the Federal Act did not appear to contain a scienter element so as to tailor its application. Id. at 238. Further, he noted that AET actually pre-existed DMT and DET and that Forbes was not one of the “underground chemists” that Congrеss sought to stop when it enacted the Federal Act. Id. The court found fault with the fact that the only change since the government‘s earlier decision not to prosecute Forbes for the same behavior was “the personalities of the government prosecutors and their hand-picked [] chemists.” Id. at 239. The court concluded that the Federal Act, as it applied to AET, “provide[d] neither fair warning nor effective safeguards against arbitrary enforcement.” Id. As such, it found the Federal Act unconstitutionally vague as applied to the “unique facts” at issue in the case. Id.
{28} This case differs from Forbes in several respects. First, the State did not present conflicting evidence about Pentedrone. Tabor testified that Pentedrone‘s chemical structure was substantially similar to the structure of Methcathinone and that a committee at BCI had identified Pentedrone as a controlled substance analog. Likewise, Dr. Wyman testified that Pentedrone was structurally similar to Methcathinone and would produce a similar or increased pharmacological effect. His testimony complimented Tabor‘s and vice versa. Their testimony also was never directly contradicted. That is, no one testified that the structure of Pentedrone was dissimilar to that of Methcathinone or that it would not produce a substantially similar effect. The defense experts only testified that they were unable to draw any scientific conclusions about Pentedrone, given that substantial similarity was an amorphous and
{29} Second, unlike AET, there was no evidence that Pentedrone was ever available for purchase for a significant length of time without restriction or that it was ever marketed for a legitimate purpose. On the contrary, the drug was so new that no formal studies had yet been conducted on it to determine its effect. Moreover, there is no suggestion that any of Appellants were lulled into the same false sense of security as Forbes regarding their dealings with Pentedrone. The government‘s change of heart concerning whether to prosecute Forbes for the same behavior was a significant factor that the Forbes Court relied upon in concluding that the Federal Act was unconstitutional as applied. See Forbes, 806 F.Supp. at 237-239. The “unique facts” upon which the district court judge based his decision in Forbes are absent from the case at hand. See id. at 239.
{30} Finally, the analysis in Forbes regarding a lack of scienter in the definition of “controlled substance analogue” is unavailing. See id. at 238. The fact that the definitional portion of a statute does not contain a mens rea element does not mean that a defendant can be convicted in the absence of a culpаble mental state. Several federal courts have looked to the intended for human consumption element of the Federal Act as an “intent requirement [that] tends to defeat any vagueness challenge based on the potential for arbitrary enforcement.” Klecker, 348 F.3d at 71, citing Carlson, 87 F.3d at 444. The Ohio controlled substance analog statute contains the same element. See Former
{31} The Twelfth District recently rejected a void for vagueness challenge to the definition of “controlled substance analog” and relied upon federal case law to do so. See State v. Shalash, 12th Dist. Warren No. CA2013-06-052, 2014-Ohio-2584, ¶ 26-33. We agree that the federal case law interpreting the Federal Act is instructive and constitutes persuasive authority in this matter. See Williams v. Akron, 107 Ohio St.3d 203, 2005-Ohio-6268, ¶ 31 (while not bound by it, Ohio courts “often look to federal court interpretation of federal statutes analogous to Ohio statutes“). Consequently, we consider the evidence introduced at the constitutionality hearing in conjunction with the federal case law.
{32} As previously noted, the first question a court must ask in performing a vagueness analysis is whether the statute at issue “provides sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence * * *” In re E.D., 2011-Ohio-4067, at ¶ 9, quoting Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, ¶ 84. Both the Fourth and Sixth Circuits have rejected vagueness challenges to the Federal Act where there was evidence that the chemical diagrams of the alleged analog and controlled substance at issue had noticeable similarities and there was expert testimony that the two had substantially similar chemical structures. See McFadden, 753 F.3d at 439-440; Hofstatter, 8 F.3d at 320-322. The same evidence exists in this matter.
{33} Both the State and Appellants introduced two-dimensional diagrams of the chemical structures of Pentedrone and Methcathinone. There is no dispute that their chemical
{34} With respect to pharmacological similarity, Dr. Wyman opined that Pentedrone would have a substantially similar effect on the central nervous system as Methcathinone. He was unable to point to any formal studies about the effects of Pentedrone because there were none yet in existence. He did testify, however, that Pentedrone differed from Buphedrone by
{35} The second question a court must consider in analyzing a vagueness challenge is whether the statute at issue “is specific enough to prevent official arbitrariness or discrimination in its enforcement.” In re E.D. at ¶ 9, quoting Norwood at ¶ 84. To convict Appellants, the State would have to prove that they intended Pentedrone for human consumption and knowingly possessed or trafficked in it. See Former
{36} Although certain chemists might disagree as to the meaning of “substantially similar,” we cannot conclude that a lack of consensus among experts renders the controlled substance analog statute unconstitutionally vague. When words in a statute are not defined, they are to be “construed according to the rules of grammar and common usage.”
{37} The federal courts have recognized the difficulty the legislature faces in drafting analog statutes, “[g]iven the creativity of amateur chemists.” Hofstatter, 8 F.3d at 322. To be effective, controlled substance analog statutes must retain some degree of elasticity. Otherwise, “there is a genuine potential that the creation of such substances could outpace any efforts by authorities to identify and catalog them.” McFadden at 441. Having reviewed the record and the relevant authority, we cannot conclude that Appellants have proven beyond a reasonable doubt that the analog statute is unconstitutionally vague as applied to them. See State v. Collier, 62 Ohio St.3d 267, 269 (1991). Consequently, the trial court did not err by finding the statute constitutional as applied. Because we have determined that the statute is constitutional as applied to Appellants, we need not consider whether it is unconstitutionally vague in all its applications. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982).
{38} Before concluding, we note that each of Appellants’ briefs contains a reference to two controlled substance analog cases from the Franklin County Court of Common Pleas. Appellants claim that the Franklin County Court dismissed the indictments in each case “because, until December 2012 when the Legislature created the offenses of dealing or
DEARMENT‘S ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEARMENT‘S MOTION TO SUPPRESS THE FRUITS OF UNIVERSITY OF AKRON POLICE‘S ILLEGAL STOP OF DEARMENT‘S VEHICLE, AND DEARMENT‘S UN-MIRANDIZED STATEMENTS TO UNIVERSITY OF AKRON POLICE.
{39} In his first assignment of error, DeArment argues that the trial court erred by denying his motion to suppress. Specifically, he argues that the police lacked reasonable suspicion to stop his vehicle and elicited incriminating statements from him in the absence of a Miranda warning. We do not agree that the trial court erred by denying DeArment‘s motion to suppress.
{40} The Ohio Supreme Court has held:
Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366 (1992). Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Fanning, 1 Ohio St.3d 19 (1982). Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard. State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. Accord State v. Hobbs, 133 Ohio St.3d 43, 2012-Ohio-3886, ¶ 6 (Burnside applied). Accordingly, this Court reviews the trial court‘s factual findings for competent, credible evidence and considers the court‘s legal conclusions de novo. State v. Conley, 9th Dist. Lorain No. 08CA009454, 2009-Ohio-910, ¶ 6, citing Burnside at ¶ 8.
Reasonable Suspicion
{41} The
{42} Detective Angela Paonessa testified that the University of Akron Police Departmеnt began investigating The Odd Corner after several individuals claimed to have purchased illegal bath salts there. Detective Paonessa participated in a controlled buy at the store during which she bought one container of Joy and witnessed several others buying Joy. She then
{43} Detective Paonessa testified that individuals began arriving and waiting in the parking lot of The Odd Corner approximately twenty minutes before the store was scheduled to open. She identified DeArment as one of the individuals she observed waiting. She testified that, when the store opened at about 11:15 a.m., DeArment entered the store with the others and was inside for approximately two minutes. After he exited the store, Detective Paonessa contacted one of the standby officers by radio and asked him to follow DeArment.
{44} Officer Lawrence Kouri testified that he began following DeArment, per Detective Paonessa‘s instructions. He followed DeArment onto Route 8 south and, later, onto 77 north. Officer Kouri testified that he observed DeArment execute an improper lane change near the Main Street exit. Specifically, he watched DeArment cut left across two lanes of travel to avoid exiting the highway. Officer Kouri testified that the highway was moderately busy at the time and that DeArment‘s improper lane change could have caused an accident. He testified that he stopped DeArment‘s vehicle based on the traffic violation he observed.
{45} DeArment argues that Officer Kouri lacked reasonable suspicion and/or probable cause to stop his vehicle. According to DeArment, when Officer Kouri later testified at trial, he admitted that Detective Paonessa had ordered him to stop DeArment, not just to follow him. Therefore, DeArment argues that Officer Kouri stopped his vehicle based on Detective Paonessa‘s orders, not the traffic violation he observed. He further argues that his mere presence at The Odd Corner on the morning the police planned to execute their warrant did not give rise to
{46} Initially, we note that DeArment never renewed his motion to suppress. The trial court ruled on his pre-trial motion to suppress based strictly on the testimony that Officer Kouri gave at the suppression hearing. DeArment never asked the court to reconsider its ruling on the basis that Officer Kouri‘s trial testimony differed from his testimony at the suppression hearing. This Court, therefore, must focus strictly on the evidence the trial court had before it when it ruled on DeArment‘s motion to suppress. See State v. Gartrell, 3d Dist. Marion No. 9-14-02, 2014-Ohio-5203, 68, fn.2.
{47} “Trial testimony * * * has no bearing upon a court‘s suppression ruling. Our review of a trial court‘s suppression ruling is limited to the testimony produced at the suppression hearing.” State v. Jackson, 9th Dist. Summit No. 26234, 2012-Ohio-3785, ¶ 14. Accordingly, we reject DeArment‘s argument insofar as it depends upon Officer Kouri‘s trial testimony. At the suppression hearing, Officer Kouri testified that he stopped DeArment‘s vehicle because he observed DeArment make an improper lane change. DeArment has not argued that he did not, in fact, execute an improper lane change, and this Court has held that “[a]n officer may stop a vehicle to investigate a suspected violation of a traffic law.” Slates, 2011-Ohio-295, at ¶ 23, quoting Tomko, 1999 WL 1037762, *2. Even if Officer Kouri had some ulterior motive for stopping DeArment, the traffic violation provided a constitutional basis for the stop. See Erickson, 76 Ohio St.3d 3, at syllabus. As such, the trial court did not err by rejecting DeArment‘s challenge to the stop of his vehicle.
{48} Miranda warnings are required only when an officer engages in custodial interrogation. State v. Prunchak, 9th Dist. Medina No. 04CA0070-M, 2005-Ohio-869, ¶ 26. “Custody” for purposes of entitlement to Miranda rights exists only where there is a “‘restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983), quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977). “[A] traffic stop alone does not render the person in ‘custody’ within the meaning of Miranda.” State v. Strehl, 9th Dist. Medina No. 10CA0063-M, 2012-Ohio-119, ¶ 10. More specifically, “an individual detained at a traffic stop is not in ‘custody’ for Miranda purposes until the individual has been formally arrested or subjected to a functional equivalent of a formal arrest.” Prunchak at ¶ 27. Accord State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 13, citing Berkemer v. McCarty, 468 U.S. 420, 440 (1984). “Relevant inquiries are whether the suspect is free to leave the scene, the purpose, place and length of the questioning, and whether a reasonable person in the suspect‘s position would have considered himself to be in custody.” Akron v. Wilkerson, 9th Dist. Summit No. 15434, 1992 WL 194183, *1 (Aug. 12, 1992).
{49} Officer Kouri testified that, after he stopped DeArment‘s vehicle, he approached and spoke with DeArment. He testified that it was his practice to ask drivers where they are coming from and that he asked DeArment the same question. DeArment responded that he was coming from The Odd Corner. Officer Kouri then asked if DeArment had bought anything there, and DeArment indicated that he had. When Officer Kouri asked DeArment what he had bought at the store, DeArment told him that he had purchased Joy and indicated that it was in the driver‘s sleeve door. Officer Kouri estimated that the entire exchange lasted approximately 30 to 40 seconds. He testified that he never placed DeArment in handcuffs or arrested him.
{50} DeArment argues that the trial court should have suppressed the statements that he made to Officer Kouri because he was in custody at the time Officer Kouri questioned him and Officer Kouri failed to Mirandize him. Yet, “a traffic stop alone does not render [a] person in ‘custody’ within the meaning of Miranda.” Strehl, 2012-Ohio-119, at ¶ 10. For DeArment to have been in custody, he must have been “formally arrested or subjected to a functional equivalent of a formal arrest.” Prunchak at ¶ 27. DeArment has failed to point to any facts beyond the traffic stop itself in support of his custody argument. See
THE TRIAL COURT ERRED IN PERMITTING DR. TABOR AND DR. WYMAN TO TESTIFY ON BEHALF OF THE PROSECUTION BECAUSE THEIR TESTIMONY WAS BASED ON UNRELIABLE SCIENTIFIC THEORIES AND METHODS, IN VIOLATION OF
JACKSON‘S ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN PERMITTING DR. WYMAN AND ANNA TABOR TO TESTIFY BECAUSE THEIR TESTIMONY WAS BASED ON UNRELIABLE METHODS, IN VIOLATION OF
DEARMENT‘S ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN PERMITTING DR. TABOR AND DR. WYMAN TO TESTIFY ON BEHALF OF THE PROSECUTION BECAUSE THEIR TESTIMONY WAS BASED ON UNRELIABLE SCIENTIFIC THEORIES AND METHODS, IN VIOLATION OF
{51} In each of the foregoing assignments of error, Appellants argue that the trial court abused its discretion by allowing two of the State‘s expert witnesses to testify at trial. Specifically, they argue that the court should have excluded the testimony of Tabor and Dr. Wyman because it was not scientifically reliable. We do not agree that the court abused its discretion by admitting their testimony.
{52}
- The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
- The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; [and]
The witness’ testimony is based on reliable scientific, technical, or other specialized information.2
{53} “In evaluating the reliability of scientific evidence, several factors are to be considered: (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance.” Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 611 (1998), citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-594 (1993). Nevertheless, the foregoing “list of specific factors neither necessarily nor exclusively applies to all experts or in every case.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). “[T]he test of reliability is ‘flexible,‘” id., and “the trial court may, at its discretion, consider the [] factors to the extent relevant.” State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, ¶ 118. The Ohio Supreme Court has cautioned that “the reliability requirement * * * should not be used to exclude all evidence of questionable reliability * * * ” Miller at 614. The ultimate focus must be “on whether the opinion is based upon scientifically valid principles, not whether the expert‘s conclusions are correct or whether the testimony satisfies the proponent‘s burden of proof at trial.” Id. at paragraph one of the syllabus.
Anna Tabor
{55} Tabor, a forensic scientist in BCI‘s chemistry section, testified that she was asked to test certain evidence in this case for the presence or absence of controlled substances. To do so, Tabor tested small samples of the evidence using a gas chromatograph/mass spectrometer and a gas chromatograph flame ionization detector. She confirmed that the procedures she employed to analyze the samples were commonly used in the field of forensic chemistry. She also confirmed that the instruments she used had been calibrated properly and did not malfunction when she performed her tests.
{56} Tabor testified that the gas chromatograph/mass spectrometer was unable to identify all of the components of the sample she tested, but that it did identify three: Pentedrone, acetaminophen, and caffeine. She explained that she then took another sample of the evidence and used the gas chromatograph flame ionization detector to confirm the presence of Pentedrone. After the ionization detector confirmed the presence of Pentedrone, Tabor testified that she then had to determine whether Pentedrone was a controlled substаnce. To do so, she consulted an analog list generated by a chemistry committee at BCI. Tabor testified that the list was available
{57} Tabor testified that BCI‘s analog list contained an entry for Pentedrone and informed her that its chemical structure was substantially similar to the chemical structure of Methcathinone. Accordingly, she personally compared the chemical structures of the two molecules using two-dimensional models. She testified that the only difference between the two molecules was the addition of an ethyl group consisting of two carbon and five hydrogen atoms. Tabor stated that the ethyl group was a neutral addition to the molecule. She testified that her education and training allowed her to conclude that the two structures were substantially similar. While Tabor acknowledged that the phrase “substantially similar” was not a scientific term of art, she testified that BCI relied upon the common meaning of the phrase to make its analog determinations.
{58} Because Tabor did not serve on the chemistry committee responsible for generating BCI‘s analog list, the State also called Jennifer Acurio to testify at the motion in limine hearing. Acurio testified that she was also a forensic chemist at BCI and had almost 19 years of experience working at BCI and another forensic science laboratory in Chicago. She explained that, after the analog law went into effect in October 2011, the chemists at BCI decided to form a committee to help identify analogs. The goal of the committee was to compile a master list that all of BCI‘s laboratories could rely upon to achieve consistency in their determinations. The committee consisted of five chemists and three supervisors who also were scientists. Acurio served on the committee.
{59} Acurio explained the process of how a given compound would be added to BCI‘s list and, therefore, be considered substantially similar to a particular controlled substance. She
{60} Acurio testified that she believed the process BCI used to identify analogs was a commonly accepted process in the scientific community and similar to the process the Drug Enforcement Agency (“DEA“) employed. She testified that BCI scientists used the standard dictionary definitions of “substantially” and “similar” to evaluate compounds, but also were guided by three criteria that came from a DEA presentation on structural similarity. Acurio explained that, in applying those criteria, a BCI chemist would: (1) look to see if the core structure of a controlled substance was present in the new compound under examination; (2) ensure that the core structure constituted a substantial portion of the new compound; and (3) examine the functional groups on the new compound (e.g., an ethyl group) to ensure that they were similar to the functional groups of the controlled substance. She testified that the addition of the ethyl group in Pentedrone constituted “a small addition to the [Methcathinone] molecule” and that she could rely on her knowledge of chemistry to conclude that the addition would not have a significant impact on the core structure of the molecule.
{62} As previously noted, the test of scientific reliability is a flexible one, and the factors outlined in Daubert “neither necessarily nor exclusively appl[ly] to all experts or in every case.” Kumho Tire Co., Ltd., 526 U.S. at 141. A trial court must ensure that an expert‘s opinion is based on scientifically valid principles, but it has “considerable leeway” in determining how to measure reliability. Id. at 152. “[E]ven if [an expert‘s] opinion has neither gained general acceptance by the scientific community nor has been the subject of peer review, these are not prerequisites to admissibility under Daubert * * *. Rather, they are just factors for a court to consider in determining reliability.” (Internal citations omitted.) Miller at 613.
{63} The trial court determined that Tabor‘s testimony was based on established scientific principles. The court noted that Tabor had used scientifically accepted methods and instruments to test the actual samples in this case. Furthеr, it noted that there was testimony to support the conclusion that a side-by-side comparison of two molecules using two-dimensional models was a generally accepted method in the field of chemistry for the comparison of molecules. The court found that Acurio‘s testimony strengthened the State‘s position because it showed that substantial similarity determinations at BCI, while not published outside the
{64} Having reviewed the record, we cannot conclude that the trial court abused its discretion by admitting Tabor‘s testimony. Tabor relied upon her scientific knowledge and training to test the actual samples in this case using scientifically established methods and equipment. She also relied upon her scientific knowledge to compare the chemical structures of Pentedrone and Methcathinone. Although Appellants argued that three-dimensional models are more accurate than two-dimensional models, both Tabor and Acurio testified that the use of two-dimensional models for visual comparison is a generally accepted method in the scientific community. They also testified that the use of three-dimensional models here would not have impacted their conclusion that Pentedrone‘s structure was substantially similar to Methcathinone‘s structure.
{65} To conclude that Pentedrone was substantially similar to Methcathinone, Tabor relied upon her education and training, in conjunction with an analog list that BCI had produced. There is no dispute that the list has not been published outside of BCI. There was testimony, however, about the internal method by which all of BCI‘s forensic chemists and committee members had to unanimously agree to the structural similarity of a compound before it was placed on the list. There also was testimony that the chemists at BCI used criteria from the DEA in making their substantial similarity determinations. Both Acurio and Tabor were able to rely on their knowledge of chemistry to conclude that the additional ethyl group in Pentedrone would not result in a substantial change to the Methcathinone molecule. See United States v. Brown, 415 F.3d 1257, 1267-1268 (11th Cir. 2005) (court did not abuse its discretion in qualifying expert who made substantial similarity determination based on visual assessment of two-dimensional
Dr. John Wyman
{66} Dr. Wyman identified himself as the chief toxicologist for the Cuyahoga County Medical Examiner‘s Office. Dr. Wyman, who holds a Ph.D. in comparative pharmacology and toxicology, explained that pharmacology and toxicology are the studies of either the beneficial effects (pharmacology) or the adverse effects (toxicology) that chemicals have on living systems. When identifying the effects that a new molecule might have as compared to the effects of a known molecule, Dr. Wyman testified that pharmacologists first compare the chemical structures of the two molecules, noting the extent of their differences and similarities. Using commonly accepted principles of chemistry and pharmacology, pharmacologists then predict the expected pharmacological effects the new molecule might have based on (1) the known effects of the similar molecule, and (2) the typical effects of the elements added to or subtracted from the similar molecule to create the new molecule. Finally, to validate their predictions, pharmacologists look to pharmacological studies that others have already conducted on the new molecule or conduct their own studies to fully understand the effects of the molecule on the body.
Dr. Wyman testified that Methcathinone is a member of the Cathinone family, and that Cathinones have known pharmacological effects. He stated that peer-reviewed scientific articles exist about the pharmacological effects of Cathinones and that those effects are commonly accepted in the field of pharmacology. Further, he stated that it is commonly accepted in the fields of pharmacology and toxicology that Methcathinone causes pharmacological effects similar to the known effects of Cathinones.
{68} Dr. Wyman noted that, in addition to comparing Pentedrone‘s structure to Methcathinone‘s structure, he also considered another closely-related molecule named Buphedrone. He testified that one creates Buphedrone by adding one carbon atom to Methcathinone‘s structure at the same location where one adds atoms to create Pentedrone. Whereas one adds two carbon atoms to that location to create Pentedrone, one only adds one carbon atom to that same location to create Buphedrone. Thus, Buphedrone and Pentedrone differ by only one carbon atom. Dr. Wyman testified that Buphedrone is pharmacologically active and has been documented as causing pharmacological effects similar to Methcathinone and Cathinones in general. With that in mind, he considered what would be the effect of adding an additional carbon atom to the existing Buphedrone structure, thereby creating Pentedrone.
{69} Dr. Wyman explained that increasing the length of an alkyl chain through the addition of a carbon atom increases the solubility of the molecule in fat. He further explained
{70} Dr. Wyman testified that no pharmacological studies were available on Pentedrone because it was a relatively new molecule and such studies take a significant period of time to perform. He testified, however, that he was able to apply the body of studies about Cathinones, Methcathinone, and Buphedrone to Pentedrone, in conjunction with his рersonal comparison of their structures and his knowledge and training in chemistry, pharmacology, and toxicology. Dr. Wyman testified that, while there are always exceptions to the general rule about how molecules will behave in the body, structurally similar molecules generally bind to the same receptor sites in the body and cause similar effects. At the motion in limine hearing, he testified that he could only think of about ten examples where the general rule did not hold true. He explained that relevant considerations in his comparison of Pentedrone and Methcathinone
{71} Because no pharmacological studies about Pentedrone were available, Dr. Wyman testified that he consulted the internet in the hopes of confirming his opinion about the pharmacological effects of Pentedrone. He testified that he found a wealth of information in the form of testimonials, describing the effects of Pentedrone after ingestion. Dr. Wyman conceded that information found on the internet is inherently suspect, but noted that many of the testimonials he read employed technical language that he associated with scientifically trained individuals. He testified that, given the wealth of testimonials he viewed and the uniformity of their descriptions about the effects of Pentedrone, the testimonials had “to be given some credence.”
{72} Dr. Wyman ultimately concluded that, in his opinion, Pentedrone would have a substantially similar effect on the central nervous system as Methcathinone. He conceded that his opinion would not be considered scientifically reliable if viewed through the lens of the scientific method because no formal studies had yet been performed on Pentedrone and he could not validate his conclusions through testing. Nevertheless, Dr. Wyman expressed confidence in his opinion about Pentedrone due to its foundations in accepted science. He reiterated that, in reaching his conclusion, he relied upon: (1) commonly accepted principles of chemistry, pharmacology, and toxicology; (2) the commonly accepted method of comparing the structural relationships of two molecules through two-dimensional representations; (3) commonly accepted principles about the effects of an ethyl group; (4) peer-reviewеd, commonly accepted
{73} Appellants argue that the court erred by allowing Dr. Wyman to testify because his testimony failed to satisfy
{74} We once again note that the test of scientific reliability is a flexible one, and the factors outlined in Daubert “neither necessarily nor exclusively appl[ly] to all experts or in every case.” Kumho Tire Co., Ltd., 526 U.S. at 141. A trial court must ensure that an expert‘s opinion is based on scientifically valid principles, but it has “considerable leeway” in determining how to measure reliability. Id. at 152. “[E]ven if [an expert‘s] opinion has neither gained general acceptance by the scientific community nor has been the subject of peer review, these are not
{75} The trial court acknowledged that Dr. Wyman‘s opinion had not been peer-reviewed and that little, if any, scientific research had been done on Pentedrone as of the date of the hearing. Because pharmacological studies simply cannot keep pace with designer drugs, however, the court noted that there had to be “a certain element of practicality” involved when deciding whether to admit testimony about designer drugs. The court noted that generally accepted sciеntific principles provided the foundation for Dr. Wyman‘s testimony. It further noted that none of the factors set forth in Daubert are dispositive when determining scientific reliability. The court indicated that it had considered the reliability factors and relevant case law and was satisfied that Dr. Wyman‘s opinion was scientifically reliable. Consequently, the court allowed his testimony.
{76} We are mindful that the admission of expert testimony is a matter that rests squarely within the trial court‘s sound discretion. See Kumho Tire Co., Ltd., 526 U.S. at 152. Having reviewed the record, we cannot conclude that the trial court abused its discretion by admitting Dr. Wyman‘s testimony. Dr. Wyman readily agreed that his opinion did not conform to the traditional scientific method and that it currently could not be validated due to the lack of pharmacologic studies on Pentedrone. Yet, neither Daubert, nor
{77} Finally, this Court must consider Appellants’ argument that Dr. Wyman‘s testimony was scientifically unreliable because it was based, in large part, on unverified internet testimonials. Initially, we note that Appellants have only presented us with the foregoing argument in the context of the trial court‘s discretionary decision to permit Dr. Wyman to testify. Appellants have not argued that the court erred by admitting the internet evidence at trial. Indeed, the record reflects that Appellants did not object to the admissibility of that testimony when it was presented at trial. Their sole argument is that the court abused its discretion by allowing Dr. Wyman to testify. Accordingly, we must confine our analysis to that specific issue.
{78} This Court is troubled by the notion that internet testimonials of unknown origin could serve as a reliable reference source for an expert seeking to form an opinion based on
{79} To the extent Appellants found fault with Dr. Wyman‘s testimony, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. Appellants have not shown that the trial court went so far as to abuse its discretion in admitting his testimony. Accordingly, insofar as they relate to Dr. Wyman, Appellants’ assignments of error lack merit. Hileman and Hoover‘s second assignment of error, Jackson‘s second assignment of error, and DeArment‘s third assignment of error are overruled.
HILEMAN & HOOVER‘S ASSIGNMENT OF ERROR III
THE TRIAL COURT VIOLATED APPELLANTS HILEMAN‘S AND HOOVER‘S RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS WHEN IT PROHIBITED THE DEFENSE FROM CALLING THEIR PROFFERED EXPERT WITNESSES.
THE TRIAL COURT VIOLATED JACKSON‘S RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS WHEN HE WAS PROHIBITED FROM CALLING PROFFERED EXPERT WITNESSES.
DEARMENT‘S ASSIGNMENT OF ERROR IV
THE TRIAL COURT VIOLATED DEARMENT‘S RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS WHEN IT PROHIBITED DEARMENT AND HIS CO-DEFENDANTS FROM CALLING THEIR PROFFERED EXPERT WITNESSES.
{80} In each of the foregoing assignments of error, Appellants argue that the court erred when it refused to allow them to present expert testimony at trial. Specifically, they argue that the trial court, by not permitting Lindsay Reinhold and Dr. Alfred Staubus to testify, violated their Sixth Amendment right to present evidence in their own defense. We do not agree.
{81} “Due process requires [] ‘that criminal defendants be afforded a meaningful opportunity to present a complete defense.‘” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 46, quoting California v. Trombetta, 467 U.S. 479, 485 (1984). It is the right of any criminal defendant “to offer testimony of witnesses on his behalf.” State v. Barrios, 9th Dist. Lorain No. 06CA009065, 2007-Ohio-7025, ¶ 18, quoting State v. Moon, 74 Ohio App.3d 162, 169 (9th Dist. 1991). Accord
{82} As previously noted,
(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; [and]
(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information * * *.
“[E]xpert testimony must assist the trier of fact in determining a fact issue or understanding the evidence.” Miller, 80 Ohio St.3d at 611. “[W]ith regard to reliability, helpfulness turns on whether the expert‘s technique or principle [is] sufficiently reliable so that it will aid the jury in reaching accurate results.” (Alteration sic) (Internal quotations and citations omitted.) Id. at 614. Moreover, “[e]ven when its relevance is shown through a proper foundation, a court must carefully weigh whether the expert testimony violates
{83} By agreement of the parties, the trial court did not rule on the State‘s motion to exclude Appellants’ experts until the first day of trial. The parties stipulated that the court would base its admissibility decision on the testimony that Reinhold and Dr. Staubus gave at the constitutionality hearing. Thus, if allowed, the two experts would testify that “substantially
{84} The State opposed Reinhold‘s and Dr. Staubus’ testimony on the basis that it did not meet
{85} After hearing arguments from both parties, the trial court excluded Reinhold‘s and Dr. Staubus’ testimony. The court agreed with the State‘s position that their testimony did not meet
{87} While a defendant has a constitutional right to introduce relevant evidence in his defense, the right is qualified in nature. See Scheffer, 523 U.S. at 308. “The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor, 484 U.S. at 410. Accordingly, so long as the trial court properly found Reinhold‘s and Dr. Staubus’ testimony inadmissible under the evidentiary rules, the court did not offend Appellants’ rights to a fair trial by excluding their testimony. See id.
{88} For expert testimony to be admissible, it “must assist the trier of fact in determining a fact issue or understanding the evidence.” Miller, 80 Ohio St.3d at 611. Additionally, it must not run afoul of
{90} Although Appellants were not able to call their own experts at trial, they were able to fully cross-examine the State‘s experts. Both of the State‘s experts admitted on cross-examination that different scientists might apply the phrase “substantially similar” in different ways and, consequently, might reach different conclusions. Appellants were free to question the validity of their opinions based on those admissions. They were not free, however, to reexamine the issue of vagueness at trial by interjecting testimony aimed at attacking the constitutionality of the analog statute. Because Reinhold‘s and Dr. Staubus’ testimony would have been confusing and/or misleading to the jury, the trial court did not abuse its discretion by excluding it. Hileman
HILEMAN & HOOVER‘S ASSIGNMENT OF ERROR IV
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT TOOK JUDICIAL NOTICE OF TWO OF THE STATE‘S EXHIBITS AND PRESENTED THEM TO THE JURY WITHOUT ANY QUALIFYING INSTRUCTION, MERITING REVERSAL.
JACKSON‘S ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT TOOK JUDICIAL NOTICE OF STATE‘S EXHIBIT 2 WITHOUT ANY QUALIFYING INSTRUCTION, MERITING REVERSAL.
{91} In the foregoing assignments of error, Hileman, Hoover, and Jackson argue that the trial court erred by taking judicial notice of State‘s Exhibit 2 without giving the jury a proper qualifying instruction. Because they have forfeited the foregoing argument and have not asserted a claim of рlain error on appeal, we reject their assignments of error.
{92} Under
{93} State‘s Exhibit 2 is a one-page document that purports to be a lab report from Research Triangle Park Laboratories, Inc. (“Research Triangle“). The lab report, dated March 6, 2012, is addressed to The Odd Corner and consists of an analysis performed on 5.1 grams of Joy.
{94} The State received Exhibit 2 from defense counsel during discovery, but was unable to find anyone at Research Triangle who was willing to authenticate the document.4 The State asked the trial court to take judicial notice of its contents, strictly for purposes of comparing its contents to the contents of State‘s Exhibit 3. Because the exhibit came from defense counsel, the State argued that its accuracy could not reasonably be questioned. See
{95} Initially, we note that Hileman, Hoover, and Jackson have not presented this Court with an argument that Exhibit 2 was not an adjudicative fact of which the court could take judicial notice. Their argument is that the court erred in its instructions to the jury. Specifically, they argue that the trial court erred by taking judicial notice of State‘s Exhibit 2 in the absence of an instruction to the jury that it could, but was not required to, accept the lab report as conclusive. See
{97} “On appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection.”
{98} To the extent Hileman, Hoover, and Jackson believe that the court‘s jury instructions were incomplete, it was their burden to raise that issue by making a timely objection. See
HILEMAN & HOOVER‘S ASSIGNMENT OF ERROR V
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT PENTEDRONE WAS A CONTROLLED SUBSTANCE ANALOG, AND THAT APPELLANTS HILEMAN AND HOOVER BELIEVED IT WAS A CONTROLLED SUBSTANCE THEREBY VIOLATING THEIR RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.
JACKSON‘S ASSIGNMENT OF ERROR VII
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT PENTEDRONE WAS AN ANALOG CONTROLLED SUBSTANCE, THEREBY VIOLATING JACKSON‘S CONSTITUTIONAL RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.
DEARMENT‘S ASSIGNMENT OF ERROR V
DEARMENT‘S CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, AND MUST BE REVERSED.
{99} In each of the foregoing assignments of error, Appellants argue that their respective convictions are based on insufficient evidence. Specifically, they argue that the State failed tо prove that Pentedrone has a substantially similar or greater effect on the central nervous system as Methcathinone. Additionally, Hileman, Hoover, and DeArment argue that the State failed to prove that they knowingly sold (Hileman and Hoover) or possessed (DeArment) a controlled substance. We disagree.
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. “The test for sufficiency requires a determination of whether the State has met its burden of production at trial.” State v. Edwards, 9th Dist. Summit No. 25679, 2012-Ohio-901, ¶ 7.
Substantially Similar Effect on the Central Nervous System
{101} “A controlled substance analog, to the extent intended for human consumption, shall be treated for purposes of any provision of the Revised Code as a controlled substance in schedule I.”
{102} Appellants argue that the State did not present sufficient evidence of Pentedrone‘s effect on the central nervous system. They argue that all of the State‘s evidence was anecdotal in
{103} Dr. John Wyman testified that he is the chief toxicologist at the Cuyahoga County Medical Examiner‘s Office, holds a Ph.D. in Toxicology and Comparative Pharmacology, and is Board Certified in both General Toxicology and Forensic Toxicology. Prior to joining the Medical Examiner‘s Office in Cleveland, Dr. Wyman spent two years as the chief toxicologist in Dayton and seven years as the chief toxicologist in Columbus. Dr. Wyman explained that his office is responsible fоr helping the pathologist determine cause of death by detecting any drugs or chemicals that might be in the body and quantifying them to see if they are present in lethal levels. He testified that he became involved in the case at hand when the State asked him to use his knowledge and training as a forensic toxicologist to offer an opinion on the pharmacological effects of Pentedrone as compared to Methcathinone.
{104} Dr. Wyman testified that a pharmacological effect occurs when a drug binds to receptors in the body. He summarized that the location to which a drug binds, the manner in which it binds, and the strength with which it binds are all factors that will affect how the drug and the receptors in the body interact. According to Dr. Wyman, Methcathinone causes a pharmacological effect because it binds to dopamine and serotonin neurotransmitters in the body and prevents their reuptake. The effect of the drug is similar to that of methamphetamine and cocaine in that it increases feelings of euphoria, alertness, empathy, and sense of communication. Negative side effects of the drug include appetite and thirst suppression, hypertension, an elevated heart rate, and a loss of cognitive ability. Dr. Wyman testified that Methcathinone is a schedule I controlled substance because it has no medical value and a high potential for abuse.
{106} Dr. Wyman testified that his comparison of the chemical structures of Pentedrone and Methcathinone, in conjunction with his training and experience, allowed him to conclude that Pentedrone‘s effect on the central nervous system would be substantially similar to or greater than Methcathinone‘s effect. He opined that the ethyl group in Pentedrone would simply increase the molecule‘s solubility in fat and, therefore, would most likely increase its binding affinity at the receptor site. He offered multiple examples in support of his theory and explained
{107} At trial, the State also introduced the testimony of three individuals, all of whom admitted that they had purchased Joy at The Odd Corner in March 2012. Gary Mills testified that he had been using bath salts for about a year when the police arrested him in conjunction with his purchase of Joy at The Odd Corner. Mills indicated that, in addition to Joy, he had used at least three other types of bath salts and had watched people use bath salts on “[t]housands of occasions.” He testified that bath salts gave him a “very euphoric feeling” as well as an abundance of energy. According to Mills, a quarter to a half gram of bath salts would allow an average individual to stay awake for three or four days. He testified that the feeling he got from using Joy was not as intense as the feeling he got from some of the other bath salts he had tried, but that Joy had the same overall effect as other bath salts and satisfied his habit.
{108} William Kimble testified that he began using bath salts in the spring of 2011 and purchased Joy from The Odd Corner on March 21, 2012. At the time, Kimble used bath salts almost every day. He testified that he learned from several friends that The Odd Corner was selling Joy. When the police stopped Kimble on March 21st, he had already used Joy from The Odd Corner on at least one occasion. He testified that Joy “was like really strong cocaine” and gave him “a speed buzz.” According to Kimble, the effects he felt from Joy were comparable to the effects he had felt from other bath salts on prior occasions.
{109} Eric Hinman testified that he had used Joy five to six times a month for a period of two months when the police stopped him in connection with the warrant they executed at The Odd Corner on March 23, 2012. He testified that he had been a drug user for about four years at that point and primarily used heroin and crack cocaine. According to Hinman, Joy made him
{110} Viewing all of the evidence in a light most favorable to the prosecution, we must conclude that the State set forth evidence from which a rational trier of fact could have concluded that Pentedrone‘s effect on the central nervous system is substantially similar to or greater than Methcathinone‘s effect. See Jenks, 61 Ohio St.3d 259 at paragraph two of the syllabus. The State could not produce direct evidence to that effect because, at the time of trial, no pharmacological studies about the effects of Pentedrone existed. It is well established, however, that “[c]ircumstantial evidence and direct evidence inherently possess the same probative value.” Id. at paragraph one of the syllabus. The testimony outlined above constituted circumstantial evidence of Pentedrone‘s pharmacological effect. Dr. Wyman was able to draw on his extensive training and knowledge in his field to predict the effect of Pentedrone, based on its chemical structure and the known effects of other chemicals whose structures were virtually identical. He specifically opined that Pentedrone would have a pharmacological effect on the central nervous system that was substantially similar to or greater than the effect of Methcathinone. Additionally, the State introduced the testimony of three individuals who had ingested Joy after they purchased it from the Odd Corner. Their testimony, by itself, could not establish the pharmacological effect prong of the analog statute because there was no evidence about the chemical composition of the other bath salts or drugs that they were comparing to Joy. Nevertheless, they were all able to describe in general terms the effects they felt after having ingested the Joy they purchased from The Odd Corner. The effects they described mirrored the effects that Dr. Wyman predicted Pentedrone would cause upon ingestion. To the extent
{111} DeArment‘s brief also contains a blanket statement that the State failed to prove that Pentedrone‘s chemical structure is substantially similar to Methcathinone‘s chemical structure. In analyzing whether a drug constitutes an analog of a controlled substance, the chemical structure element is distinct from the pharmacological element. See
Knowingly Trafficking in or Having Possession of a Controlled Substance
{112} Under
{113} Under
{114} Hileman, Hoover, and DeArment argue that there was insufficient evidence of their culpability because, at the time they either sold or possessed Joy, they believed it to be a legal substance. Because it was the State‘s burden to prove that they knowingly sold or possessed a controlled substance, they argue that their respective convictions are based on insufficient evidence.
{115} Detective Angela Paonessa, a detective with the University of Akron Police Department, testified that her department began investigating The Odd Corner after the Akron Police Department‘s Vice Unit provided them with intelligence that Joy bath salts were being sold there. Detective Paonessa went to the store on March 21, 2012, for the purpose of conducting a controlled buy. Dressed in plain clothes, Detective Paonessa entered the store around 5:00 p.m. while other officers waited outside and monitored her progress via a wire. She identified Hoover as the employee who was working at the store when she entered it. While Detective Paonessa walked around the store, she observed a couple approach the counter and ask
{116} Detective Paonessa stepped into line behind the man and woman as they were purchasing the Joy. Once they left, she too approached the counter and asked Hoover for Joy. Hoover entered the back room, came out with an orange container of Joy, and told Detective Paonessa that the cost was $36.20. Detective Paonessa then asked Hoover if she could purchase K2,5 but he responded that the owner of The Odd Corner “doesn‘t want to mess with that” because it was not possible to “really control what they‘re putting in that stuff.” Nevertheless, Hoover informed Detective Paonessa that she could purchase K2 at a particular store in Canton if she went there and asked for “Mad Monkey.” When Detective Paonessa asked Hoover if the Joy she bought was “good,” he responded affirmatively and stated that he “could open a store just selling [it]” because he could not “keep it on the shelves.”
{117} Detective Paonessa testified that she secured a warrant for The Odd Corner the following day and came to the store on the morning of March 23, 2012, to execute the warrant. She arrived approximately one and a half hours before the store was scheduled to open so that she could conduct surveillance. She testified that the store was set to open at 11:00 a.m., but cars began pulling into the parking lot at about 10:40 a.m. One of those cars belonged to DeArment, who waited in this car alongside the other customers who arrived early.
{118} At approximately 11:15 a.m., Hileman arrived and opened the store. Detective Paonessa testified that, as soon as Hileman opened the door to her car, the people who had been waiting in the parking lot got out of their cars. She agreed that it was her impression that the people waiting in their cars recognized Hileman. She testified that the group went inside the
{119} Detective Paonessa testified that the search of The Odd Corner uncovered numerous items, including almost 100 containers of Joy, over $3,000 in cash, and register tapes spanning from October 2011 up to the day of the search. As part of her investigation, Detective Paonessa reviewed all of the register tapes and The Odd Corner‘s bank records. She discovered that the cash register at the store had a button labeled “Joy,” which, when pressed, rang up as a sale for a “t-shirt” at a price of $36.20, including tax. Using the register tapes, Detective Paonessa compiled a spreadsheet of the sales of Joy from October 19, 2011, to March 23, 2012. Her spreadsheet reflected the following sales: (1) from October 19, 2011, to October 31, 2011, 66 units of Joy were sold for a total of $3,299.34, not including tax; (2) from November 1, 2011, to November 30, 2011, 76 units of Joy were sold for a total of $3,799.24, not including tax; (3) from December 1, 2011, to December 31, 2011, 76 units of Joy were sold for a total of $3,799.24, not including tax; (4) from January 1, 2012, to January 23, 2012, 238 units of Joy were sold for a total of $6,322.14, not including tax; (4) from February 2, 2012, to February 29, 2012, 359 units of Joy were sold for a total of $12,202.41, not including tax; and (5) from March 1, 2012, to March 23, 2012, 977 units of Joy were sold for a total of $33,208.23, not including tax. Thus, from October 19, 2011, to March 23, 2012, The Odd Corner sold $62,630.60 worth of Joy, not including the tax on those sales. Over half of that amount came from the sales that took place during the first three weeks of March 2012.
{120} Detective Paonessa testified that she spoke with Hileman after her arrest and Hileman indicated that she was the manager of The Odd Corner. Hileman described Joy as “a
{121} Hileman informed Detective Paonessa that The Odd Corner purchased Joy from a company in Indiana whose contact person was a man named William Wetzel. In reviewing The Odd Corner‘s bank statements, Detective Paonessa uncovered numerous checks written to Wetzel, which were signed by either Hileman or Jackson. From October 29, 2011 to March 16, 2012, The Odd Corner purchased 2100 units of Joy from Wetzel at a total cost of $16,800. Accordingly, the store purchased Joy at a cost of $8 per unit and sold it at a price of $36.20 per unit. Hileman told Dеtective Paonessa that Jackson was generally responsible for calling Indiana to order more Joy and placed orders approximately one to two times per week.
{122} Officer Lawrence Kouri testified that he assisted in the execution of Detective Paonessa‘s search warrant on March 23, 2012. After receiving a radio call from Detective Paonessa, Officer Kouri began following a dark-colored Mazda that was leaving The Odd Corner parking lot. The Mazda was one of the vehicles that Detective Paonessa had observed at the store at approximately 10:40 a.m. Officer Kouri later stopped the Mazda and spoke to the driver, DeArment. DeArment admitted that he had come from The Odd Corner and had purchased Joy. Officer Kouri confiscated one container of Joy from DeArment, and Detective Jason Hill arrived on scene. Detective Hill testified that DeArment admitted he had purchased Joy, but claimed to have purchased it for a female whose identity he would not disclose. DeArment informed
{123} Each container of Joy from The Odd Corner was small, plastic, and orange. There was testimony that the containers were stored in a back room near the cash register so that they were not visible to the general public. Each container had the word “Joy” stamped on its lid along with the words “Not for Human Consumption.” Inside each plastic container was a baggie containing approximately .5 grams of white powder. There is no dispute that the samples of Joy taken from The Odd Corner and DeArment and tested at BCI all tested positive for the presence of Pentedrone.
{124} Captain Brian Taylor testified that he was on scene at The Odd Corner on March 23, 2012, to aid in the execution of the search warrant. During the search, he discovered a paper publicly displayed on the wall behind the cash register. The paper, dated March 6, 2012, and labeled State‘s Exhibit 3, consisted of a lab analysis report from Research Triangle, detailing the analysis the lab had performed on a 5.1 gram sample of Joy. State‘s Exhibit 3 contained a long list of illegal substances that were “Not Detected” in Joy. Through Detective Paonessa, however, the State also introduced State‘s Exhibit 2. State‘s Exhibit 2 consisted of a virtually identical lab analysis report from Research Triangle. The only difference between the two exhibits was that State‘s Exhibit 2 contained one additional line of lab analysis, indicating that Joy contained “Pentedrone 88% and Caffeine 12% * * *.” Statе‘s Exhibit 2 was not placed on display in the store.
{125} Viewing all of the evidence in a light most favorable to the prosecution, we must conclude that the State set forth evidence from which a rational trier of fact could have concluded that Hileman, Hoover, and DeArment knowingly sold or possessed a controlled
{126} With respect to Hileman, there was evidence that she repeatedly signed checks for the purchase of large amounts of Joy at a modest cost before reselling it to customers of The Odd Corner at a substantial mark-up. There was evidence that the store sold an astronomical 977 containers of Joy in the first three weeks of March alone and that people crowded the parking lot in the morning waiting for the store to open. Detective Paonessa observed a crowd follow Hileman into the store and emerge quickly thereafter, having strictly purchased Joy. Hileman herself admitted that she had once received a phone call from an angry mother whose son became sick from the Joy the store had sold him.
{127} With respect to Hoover, there was evidence that he told Detective Paonessa that he “could open a store just selling [Joy]” because he could not “keep it on the shelves.” Detective Paonessa witnessed Hoover sell Joy multiple times during the short time that she was at the store to make the controlled buy.
{128} With respect to DeArment, there was evidence that he drove 50 miles one way just to purchase Joy from The Odd Corner. He arrived at the store approximately 20 minutes
before it even opened and waited in the parking lot until Hileman arrived. Once he successfully purchased Joy, DeArment left immediately to return to Wooster. Moreover, while he claimed to have purchased Joy for someone else, he refused to disclоse her identity.
{¶129} As previously noted, “[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.” Former
HILEMAN & HOOVER‘S ASSIGNMENT OF ERROR VI
THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE EVIDENCE RELIED UPON BY THE STATE TO PROVE THE EFFECT OF PENTEDRONE ON THE CENTRAL NERVOUS SYSTEM WAS UNRELIABLE AND THE CIRCUMSTANCES OF THE SALES DID NOT SHOW INTENT TO SELL A CONTROLLED SUBSTANCE.
JACKSON‘S ASSIGNMENT OF ERROR VIII
THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE EVIDENCE RELIED UPON BY THE STATE TO PROVE THE EFFECT OF PENTEDRONE ON THE CENTRAL NERVOUS SYSTEM WAS UNRELIABLE.
DEARMENT‘S ASSIGNMENT OF ERROR VI
DEARMENT‘S CONVICTION IS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE, AND SO HIS CONVICTION MUST BE REVERSED AND HIS CASE REMANDED FOR A NEW TRIAL.
{¶130} In each of the foregoing assignments of error, Appellants argue that their respective convictions are against the manifest weight of the evidence. Specifically, they argue
{¶131} A conviction that is supported by sufficient evidence may still be found to be against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387.
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 and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder‘s resolution of the conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). This discretionary power should be exercised only in exceptional cases where the evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio St.3d at 387. Accord Otten at 340.
{¶132} Appellants did not present any witnesses in their defense. Instead, they relied upon extensive cross-examination of the State‘s witnesses. In the foregoing assignments of error, they ask this Court to review for manifest weight the same arguments that they previously made in support of their challenge to the sufficiency of the evidence.
{¶133} To the extent Appellants challenge the State‘s evidence about the pharmacological effects of Pentedrone, we note that the jury was in the best position to judge the
{¶134} Hileman, Hoover, and DeArment also argue that the jury lost its way when it concluded that they knowingly sold or possessed a controlled substance. There was a wealth of circumstantial evidence, however, tending to show that they acted with the requisite degree of
{¶135} This Court has carefully reviewed all of the evidence in the record. Although Hileman, Hoover, and DeArment claimed not to have known that Joy contained an illegal substance, we are unable to conclude that this is the exceptional case where the jury lost its way by convicting them. See Otten, 33 Ohio App.3d at 340. As such, their respective convictions are not against the manifest weight of the evidence. Hileman and Hoover‘s sixth assignment of error, Jackson‘s eighth assignment of error, and DeArment‘s sixth assignment of error are overruled.
HILEMAN‘S ASSIGNMENT OF ERROR VII
THE TRIAL COURT ERRED IN APPLYING THE BULK AMOUNT DEFINITION OF
R.C. 2925.01(D)(1) TO APPELLATE (sic) HILEMAN AS THE SECTION DID NOT INCLUDE PENTEDRONE NOR A CONTROLLED SUBSTANCE ANALOG.
THE TRIAL COURT ERRED IN APPLYING THE BULK AMOUNT DEFINITION OF
R.C. 2925.01(D)(1) AS THE SECTION DID NOT INCLUDE PENTEDRONE NOR A CONTROLLED SUBSTANCE ANALOG.
{¶136} In the foregoing assignments of error, Hileman and Jackson argue that the trial court erred by using the definition contained in Former
{¶137} “An appellate court‘s review of the interpretation and application of a statute is de novo.” Akron v. Frazier, 142 Ohio App.3d 718, 721 (9th Dist.2001). “A de novo review requires an independent review of the trial court‘s decision without any deference to the trial court‘s determination.” State v. Consilio, 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4.
{¶138} Hileman and Jackson were convicted of second degree felonies with respect to their convictions for aggravated trafficking and aggravated possession. The offenses were second-degree felonies rather than fourth-degree felonies because “the amount of the drug involved equal[ed] or exceed[ed] five times the bulk amount but [was] less than fifty times the bulk amount.” Former
{¶139}
{¶140} Former
{¶141} “[S]ections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.”
{¶142} As previously noted, controlled substance analogs that are intended for human consumption “shall be treated fоr purposes of any provision of the Revised Code as a controlled substance in schedule I.” Former
JACKSON‘S ASSIGNMENT OF ERROR VI
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT APPELLANT‘S CONVICTIONS FOR POSSESSING FIVE TIMES THE BULK AMOUNT OF A CONTROLLED SUBSTANCE ANALOG.
{¶144} “Raising the question of whether the evidence is legally sufficient to support the jury verdict as a matter of law invokes a due process concern.” Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, at ¶ 113, citing Thompkins, 78 Ohio St.3d at 386.
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.
Jenks, 61 Ohio St.3d 259 at paragraph two of the syllabus. “The test for sufficiency requires a determination of whether the State has met its burden of production at trial.” Edwards, 2012-Ohio-901, at ¶ 7.
{¶145} The jury found Jackson guilty of possessing and trafficking in an amount of Pentedrone that “equal[ed] or exceed[ed] five times the bulk amount but [was] less than fifty times the bulk amount.” Former
{¶146} Anna Tabor, a forensic scientist in BCI‘s chemistry section, testified that the police sent her 101 containers of Joy for testing. One container was purchased by Detective Paonessa when she conducted her controlled buy at The Odd Corner. The police confiscated the second container from DeArment and the third container from a man named Eric Hinman on the day they executed their warrant at The Odd Corner. They found the remaining 98 containers of Joy in the back room at The Odd Corner. There was testimony that the police removed one of the 98 containers for field testing and then shipped the one container they removed along with the remaining 97 containers to BCI for testing.
{¶147} Tabor testified that she actually tested a total of five containers of Joy: one container from the package of 97, the one container that the police field tested, and the three containers from Detective Paonessa, DeArment, and Hinman. According to Tabor, BCI generally abides by a sampling plan known as hypergeometric sampling when they receive multiple samples to test from the same source. She admitted, however, that she did not perform hypergeometric sampling on the package of 97 containers she received for testing. Instead, she received approval from her supervisors to test only one of the 97 containers. According to Tabor, her supervisors felt it was unnecessary to perform hypergeometric sampling on the 97 containers due to the nature of the population and the link between the 97 containers and the other four containers the police seized. She testified that the 97 containers were all “little plastic boxes” that were labeled “Joy” and were all packaged and sealed in the same fashion.
{¶148} Because she did not test each of the 97 containers seized directly from The Odd Corner or take a hypergeometric sampling of those containers, Tabor admitted that she could not
{¶149} Jackson argues that his second-degree felony convictions for aggravated trafficking and aggravated possession are based on insufficient evidence because the State failed to prove bulk amount. As previously noted, Tabor only tested five of the Joy containers she received. Because Tabor admitted that she did not test the remaining 96 containers and did not perform hypergeometric sampling on them, Jackson argues that the jury could not infer that any of them contained Pentedrone.
{¶150} “This Court has previously held that a scientific analysis of a random sampling of pills from a bulk quantity is sufficient to support an inference that all of the pills contain the same drug, if the defendant offers no rebuttal.” State v. Mathis, 9th Dist. Summit No. 23507, 2007-Ohio-2345, ¶ 12. Accord State v. Rush, 9th Dist. Lorain Nos. 3809 & 3818, 1985 WL 11030, *4 (July 31, 1985) (“Chemical analysis of a random sample of a quantity of drugs is enough to allow a reasonable inference that all of the tablets contained the same drug * * *, if no rebuttal is offered.“). “We have never set requirements on the percentage of a substance that must be analyzed to support such an inference, as it depends on the facts and circumstances of each case.” State v. Garnett, 9th Dist. Medina No. 12CA0088-M, 2013-Ohio-4971, ¶ 7.
{¶151} In Garnett, the police seized 49 pills from Garnett and charged him with trafficking in a bulk amount of oxycodone. Id. at ¶ 2. BCI only tested one of the 49 pills to
{¶152} There was testimony at trial that all 101 containers of Joy that the State submitted to BCI came from The Odd Corner. All of the containers were identical, small orange containers stamped with the word “Joy,” and each of the five containers Tabor tested contained a white powder that tested positive for Pentedrone and caffeine. The 98 containers that the police seized directly from the back room of The Odd Corner were all initially packaged together. The police removed one for field testing, and Tabor later removed another to test. There was no evidence that any of the remaining 96 containers had a different appearance. Further, there was no evidence that any of the actual testing Tаbor performed was unreliable. See Garnett at ¶ 7, quoting State v. Reynolds, 4th Dist. Ross No. 1185, 1985 WL 3854, *2 (Sept. 26, 1985 (Grey, J., concurring) (“[I]f [an] appellant wishes to object to the evidence on the grounds that it is not random or representative, it is incumbent upon him to introduce by expert witness or otherwise sufficient evidence to show the unreliability of the testing.“). Based on the foregoing facts and circumstances, “we conclude that the random selection and sampling of only one of the [97 containers of Joy] was sufficient to support an inference that all of the [remaining 96 containers] contained [Pentedrone].” Garnett at ¶ 7.
III.
{¶154} Appellants’ assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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 App.R. 27.
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. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
KIRK A. MIGDAL, Attorney at Law, for Appellant.
J. DEAN CARRO, Attorney at Law, for Appellants.
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.