State v. ReuschlingState v. Reuschling
TIMOTHY P. CANNON, J.
{¶1} This matter is submitted to this court on the record and the briefs of the parties. Appellant, David Reuschling, appeals the judgment entered by the Ashtabula County Court of Common Pleas. Reuschling was sentenced to an aggregate six-year prison term for his convictions for possession of methamphetamine, tampering with evidence, illegal manufacture of drugs, and illegal assembly or possession of chemicals for the manufacture of drugs.
{¶3} At trial, Reuschling testified in his own behalf. He admitted to having the methamphetamine in his mouth. He testified he was working with the Ashtabula County Sheriff‘s Department in an undercover operation to find the bulk producers of methamphetamine in Ashtabula County. However, he acknowledged that he was not working a formal operation on the day in question.
{¶4} On March 29, 2006, at 5:30 a.m., Daniel Binns arrived home from an overnight trip as a truck driver. He observed a strange car parked in the driveway. He entered the house and found his housemate, Joan Lomas, and her minor son asleep in an upstairs bedroom. Binns noticed a light on in the basement. He went downstairs to
{¶5} Sergeant Robert Slocum, Deputy Robert Ginn, and Detective Bryan Rose of the Ashtabula County Sheriff‘s Department responded to Binn‘s residence. Sergeant Slocom testified there was a strong ammonia smell in the basement. He found a methamphetamine generator, which he described as a one liter pop bottle with a tube in it, in the basement sink. Outside, Sergeant Slocum noticed four white spots on the ground, which were consistent with methamphetamine residue being dumped. He also noticed a “burn pile,” which is used to burn the waste products associated with methamphetamine production.
{¶6} Deputy Ginn also noticed the methamphetamine generator in the basement. Also, he found finished methamphetamine in a coffee filter. He found a mason jar with residue in it. In addition, he found a bottle of Drain-O, which he testified is used in the production of methamphetamine.
{¶7} On April 11, 2006, Reuschling was allegedly involved in the manufacture of methamphetamine. However, he was acquitted on the charge relating to this event.
{¶8} Reuschling was indicted on five counts. Count 1 of the indictment charged Reuschling with possession of methamphetamine, in violation of
{¶9} Reuschling pled not guilty to the charges, and a jury trial was held. At the close of the state‘s case-in-chief, Reuschling moved for acquittal pursuant to
{¶10} The trial court sentenced Reuschling to a three-year prison term for his conviction on count one; a three-year prison term for his conviction on count two; a six-year prison term for his conviction on count four; and a three-year prison term for his conviction on count five. All of Reuschling‘s prison terms were ordered to be served concurrently. Thus, Reuschling‘s aggregate prison term was six years.
{¶11} Reuschling raises four assignments of error. His first assignment of error is:
{¶13} Pursuant to
{¶14} In State v. Smith, 3d Dist. No. 1-05-39, 2006-Ohio-1661, at ¶8, the defendant objected to the admission of the analyst‘s report on the basis that it violated the Confrontation Clause. In this matter, Reuschling did not object to the admission of the report regarding methamphetamine. Therefore, he has waived all but “plain error.” See, e.g., State v. Green (2000), 90 Ohio St.3d 352, 373, citing State v. Wade (1978), 53 Ohio St.2d 182, paragraph one of the syllabus. “Plain error” only exists where the results of the trial would have been different without the error. State v. Issa (2001), 93 Ohio St.3d 49, 56, citing State v. Moreland (1990), 50 Ohio St.3d 58, 62.
{¶15} Although Reuschling did not object to the admission of the report, he contends his trial counsel was ineffective for failing to object to the report as part of his third assignment of error. Thus, we will conduct an analysis of this issue on the regular standard of review, i.e. abuse of discretion, as if there was a proper objection made. See, e.g., State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, at ¶43, citing State v. Issa, 93 Ohio St.3d at 64.
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{¶19} “(B) The prosecuting attorney shall serve a copy of the report on the attorney of record for the accused, or on the accused if the accused has no attorney, prior to any proceeding in which the report is to be used against the accused other than at a preliminary hearing or grand jury proceeding where the report may be used without having been previously served upon the accused.
{¶20} “(C) The report shall not be prima-facie evidence of the contents, identity, and weight or the existence and number of unit dosages of the substance if the accused or the accused‘s attorney demands the testimony of the person signing the report, by serving the demand upon the prosecuting attorney within seven days from the accused or the accused‘s attorney‘s receipt of the report. The time may be extended by a trial judge in the interests of justice.
{¶21} “(D) Any report issued for use under this section shall contain notice of the right of the accused to demand, and the manner in which the accused shall demand, the testimony of the person signing the report.”
{¶23} Reuschling relies on the Third Appellate District‘s decision in State v. Smith to support his position. State v. Smith, 2006-Ohio-1661. In Smith, the Third District held that an analyst‘s report prepared pursuant to