STATE OF OHIO v. MARK A. McELHANEY
C.A. CASE NO. 2014-CA-9
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
January 30, 2015
[Cite as State v. McElhaney, 2015-Ohio-349.]
T.C. NO. 13 CR 587; (Criminal appeal from Common Pleas Court)
Rendered on the 30th day of January, 2015.
ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, 55 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 1502 Liberty Tower, 120 W. Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
FROELICH, P.J.
{¶ 1} Mark McElhaney appeals from a judgment of the Greene County Court of Common Pleas, which found him guilty of several drug-related offenses and sentenced him to an aggregate term of 9 1/2 years in prison.
{¶ 3} McElhaney was indicted on multiple counts of possession of drugs, aggravated possession of drugs, trafficking in drugs, and aggravated trafficking in drugs, as well as single counts of illegal manufacture of drugs, illegal assembly or possession of chemicals for the manufacture of drugs, and having weapons under disability. Forfeiture specifications were also included in the indictment. McElhaney moved unsuccessfully to have his case dismissed on speedy trial grounds before trial. One count of aggravated trafficking and the count of having weapons under disability were dismissed before trial.
{¶ 4} McElhaney was tried by a jury in February 2014. He was found guilty of two counts of possession of drugs, two counts of aggravated possession, three counts of trafficking, and two counts of aggravated trafficking, all felonies of the third, fourth, or fifth degree. He was also found guilty of illegal assembly or possession of chemicals used in the manufacture of drugs, a felony of the third degree, and of one misdemeanor count of possession. McElhaney was found not guilty of one count of aggravated possession and the illegal manufacture of drugs. With respect to the forfeiture specifications, the jury found that some of McElhaney‘s property, listed in Exhibit 17 and identified as “all
{¶ 5} At sentencing, four of the counts of possession or aggravated possession were merged into the counts of trafficking or aggravated trafficking. McElhaney was sentenced to consecutive terms of imprisonment, for an aggregate term of 9 1/2 years, none of which was mandatory time. See Chart, infra.
{¶ 6} McElhaney‘s attorney raises three potential arguments on appeal, but has concluded that these arguments lack merit. The arguments relate to whether McElhaney‘s speedy trial rights were violated, whether the weight of the evidence supported his convictions, and whether the seriousness and recidivism factors were properly weighed at sentencing.
{¶ 7} The right to a speedy trial is guaranteed by the
{¶ 8} Pursuant to
{¶ 9} McElhaney was arrested on November 19, 2013, and was held in jail in lieu
{¶ 10} McElhaney‘s motion tolled the speedy trial time for several weeks.
{¶ 11} McElhaney‘s second possible assignment of error raises issues related to both the weight and sufficiency of the evidence, although the argument is framed in terms of the weight of the evidence. Sufficiency and manifest-weight challenges are separate and legally distinct determinations. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion.” State v. Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 927 N.E.2d 632, ¶ 17-19 (2d Dist.), citing State v. Adelman, 9th Dist. Summit No. 18824, 1998 WL 852565 (Dec. 9, 1998).
{¶ 12} A sufficiency-of-the-evidence argument challenges whether the state has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law. Thompkins at 386. Under a sufficiency analysis, an appellate court does not make any determinations regarding the
{¶ 13} In contrast, when reviewing a judgment under a manifest-weight standard of review, ” ‘[t]he court reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [factfinder] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 14} The State presented the following evidence at trial. The defense did not call any witnesses.
{¶ 15} In early 2013, Josh McComas approached law enforcement officials about drug dealing by McElhaney at 1669 North Longview in Beavercreek Ohio; he subsequently worked with members of the A.C.E. Task Force, a group of regional law enforcement agencies that specializes in narcotics investigations. McComas apparently
{¶ 16} Task force members and McComas testified about how a controlled buy is effectuated, including the task force member‘s listening to phone conversations to arrange a buy, their searching of the confidential informant (in this case, McComas) and his vehicle before and after the purchase, and the informant‘s wearing of a wire for audio and/or video during the transaction.
{¶ 17} On April 17, 22, and 23, 2013, McComas completed controlled purchases of methamphetamine, heroin, and/or Clonazepam at the Longview residence. On April 17, McComas attempted to purchase “shake and bake” meth (which is a lesser quality than crystal meth), but McElhaney did not have any, so McComas purchased crystal meth instead. On April 22, McComas purchased meth and heroin. On April 23, McComas requested seven grams of crystal meth from McElhaney, but McElhaney only had 3 1/2 grams, so McComas purchased 3 1/2 grams along with 15 capsules of Clonazepam. McComas was unaccompanied, but wired, during the first two purchases; on April 23, McComas was accompanied by undercover Detective Craig Black, and the transaction was recorded on audio and video. After these purchases, the task force obtained a search warrant for the Longview residence, which was executed on April 29, 2013. Drugs, cash, and drug paraphernalia were observed throughout the house, and a meth
{¶ 18} State‘s witnesses, including a special agent from the Ohio Attorney General‘s Bureau of Criminal Investigation and a Greene County Sheriff‘s Department specialist with expertise in the identification and decontamination of meth labs, testified in detail about the processes used to manufacture meth, including the types of materials typically used in such an operation and the risks posed by the process. The special agent testified that Gatorade bottles, 2-liter bottles, Coleman fuel, lye, cold packs, coffee filters, ammonium nitrate, and stripped lithium batteries are used in the “one-pot” manufacturing process of methamphetamine. Most of these items were found in the basement of the Longview house. The special agent further testified that a hydrogen chloride gas generator is used in the process and that he found such a homemade generator in the basement of the house. He testified that the generator was “fairly fresh,” as indicated by the facts that the plastic bottle had not yet degraded and the hose was still connected to the generator. The sheriff‘s department specialist also testified to the discovery of the one-pot meth lab in the basement of the Longview house, to the risks posed by such a lab, and to the precautions taken by law enforcement and fire personnel when such a lab is discovered and deconstructed.
{¶ 19} The owner of the Longview house, a friend of McElhaney, testified that McElhaney had paid his rent in cash and meth; he had provided the owner with meth 2-3 times per week. The owner also testified that she had been aware that McElhaney used the “shake and bake” method, that she had bought lithium batteries for him, and that
{¶ 20} A forensic chemist from the Miami Valley Regional Crime Lab confirmed the illicit nature of the suspected drugs taken from the Longview home.
{¶ 21} Based on the evidence presented, McElhaney‘s conviction was neither supported by insufficient evidence nor against the manifest weight of the evidence. We agree with counsel‘s conclusion that an assignment of error based on these claims lacks arguable merit.
{¶ 22} Finally, counsel suggests, as a possible assignment of error, that the trial court failed to consider the principles and purposes of sentencing set forth in
{¶ 23} In State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.), we held that we would no longer use an abuse-of-discretion standard in reviewing a felony sentence, but would apply the standard of review set forth in
{¶ 24}
{¶ 25}
{¶ 26} At sentencing, the trial court stated that it had considered the principles and purposes of sentencing (
{¶ 27} The trial court also stated that it had considered the factors set forth in
{¶ 28} With respect to its imposition of consecutive sentences, the trial court was required by
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16 ,2929.17 , or2929.18 of the Revised Code , or was under post-release control for a prior offense; (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct; (c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 29} At the sentencing hearing and in its termination entry, the trial court found that consecutive sentences were necessary to protect the public from future crime and to punish McElhaney, that consecutive sentences were not disproportionate to the seriousness of his conduct, and that he posed a danger to the public. Additional findings by the court tracked the language of
{¶ 30} The court imposed the following sentences, all to be served consecutively.
| Count | Offense | Degree | Disposition |
|---|---|---|---|
| I | Trafficking in Heroin | F5 | 12 months |
| II | Possession of Heroin | F5 | Merged with Count I |
| III | Agg. Trafficking in Drugs | F4 | 18 months |
| IV | Agg. Possession of Drugs | F5 | Merged with Count III |
| V | Trafficking in Heroin | F5 | 12 months |
| VI | Possession of Heroin | F5 | Merged with Count V |
| VII | Agg. Trafficking in Drugs | F3 | 30 months |
| VIII | Agg. Possession of Drugs | F3 | Merged with Count VII |
| IX | Trafficking in Drugs | F5 | 12 months |
| X | Possession of Drugs | M1 | Merged with Count IX |
| XII | Illegal Assembly or Possession of Drugs | F3 | 30 months |
{¶ 31} All of the sentences imposed were within the statutory range; the sentences for the fourth and fifth degree felonies were the maximum sentences allowed, but the sentences for the felonies of the third degree were not.
{¶ 32} The trial court made appropriate findings in support of the length and consecutive nature of the sentences it imposed. In light of McElhaney‘s extensive criminal record, the fact that he had previously been to prison, and the fact that he committed offenses while on community control, we cannot conclude that the record
{¶ 33} Having conducted an independent review of the record in addition to McElhaney‘s potential assignments of error, we find no other arguably meritorious issues for appeal. Therefore, the judgment of the trial court will be affirmed.
FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
Elizabeth A. Ellis
Kristin L. Arnold
Mark A. McElhaney
Hon. Stephen A. Wolaver