STATE OF OHIO v. TIMOTHY SALYER
Appellate Case No. 2013-CA-60
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
June 19, 2015
[Cite as State v. Salyer, 2015-Ohio-2431.]
HALL, J.
Trial Court Case No. 2013-CR-162 (Criminal Appeal from Common Pleas Court)
Rendered on the 19th day of June, 2015.
KEVIN S. TALEBI, Atty. Reg. No. 0069198, by JANE A. NAPIER, Atty. Reg. No. 0072537, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorneys for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020, and NICHOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, Rion, Rion & Rion, L.P.A., Inc., 130 West Second Street, Suite 2150, Post Office Box 1262, Dayton, Ohio 45402 Attorneys for Defendant-Appellant
HALL, J.
{¶ 1} Timothy Salyer appeals from his convictions for illegal manufacture of drugs (methamphetamine) and endangering children. Finding no error, we affirm.
{¶ 2} Salyer was living in Indiana when he started having personal difficulties. He came to Ohio in the fall of 2012 to stay with his cousin Anthony Cole, his wife Lisa Cole, and their three children, 13- and 10-year-old daughters and a 9-year-old son, who lived in a house on a residential street in Urbana. Not long after Salyer moved in, he began to cook methamphetamine with his cousin. Salyer had the knowledge and the skill to make it. They cooked meth in a tent on the property, near railroad tracks that run behind the property, and even in the house. Salyer and Anthony stashed and buried on the property the toxic by-products created in the production. Salyer lived with for the Coles for only a couple months and he moved out around Thanksgiving of 2012.
{¶ 3} In February 2013, police began investigating methamphetamine production on the Coles’ property. In June, Lisa Cole, Anthony Cole, and Salyer were indicted. Lisa was charged with one count of illegal assembly or possession of chemicals for the manufacture of drugs and with three counts of endangering children. She pleaded guilty to two counts of endangering children and the other two charges were dismissed. The trial court sentenced her to a total of 3 years in prison. Anthony and Salyer were each charged with three counts of illegal manufacture of drugs, each of which had a juvenile specification attached, in violation of
{¶ 4} Salyer did not plead guilty but was tried to a jury. The State presented the testimony of numerous law enforcement officers, who testified about how methamphetamine is made and the items that were found on the Coles’ property, including the by-products of the manufacturing process, found buried on the property. The State also presented the testimony of Anthony Cole, his son, and one of his daughters, each of whom testified about seeing Salyer making meth. The defense called several witnesses too, including Salyer himself. The jury found Salyer guilty on all six counts, including the juvenile specifications attached to the illegal-manufacture counts. For sentencing purposes, the trial court merged the illegal-assembly count and the possessing-criminal-tools count into the illegal-manufacture counts. The court sentenced Salyer to 7 years in prison for each illegal-manufacture offense and to 3 years for the endangering-children offense. The court ordered Salyer to serve two of illegal-manufacture sentences and the endangering-children sentence consecutively, for a total sentence of 17 years in prison.
{¶ 5} Salyer appealed.
II. Analysis
{¶ 6} Salyer assigns three errors to the trial court. The first assignment of error alleges that the trial court erred by not also merging the endangering-children count into the illegal-manufacture counts. The second assignment of error alleges that the trial court
A. Merger
{¶ 7}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
The test established by the Ohio Supreme Court in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, for determining whether offenses merge under
{¶ 8} Salyer was convicted of illegal manufacture of drugs under
(B) No person shall do any of the following to a child under eighteen years of age * * *:
(6) Allow the child to be on the same parcel of real property and within one hundred feet of * * * any act in violation of section 2925.04 or 2925.041 of the Revised Code when the person knows that the act is occurring, whether or not any person is prosecuted for or convicted of the violation of section 2925.04 or 2925.041 of the Revised Code that is the basis of the violation of this division.
The trial court here determined that it is possible to commit these two offenses by the same conduct. But the court determined that Salyer committed them separately, saying that he committed the endangering-children offense by disposing of the waste products on the property. Salyer contends that the two offenses are based on the same allegation and conduct: that a child was present while he manufactured methamphetamine. His only animus, says Salyer, was the manufacture of meth in the presence of a juvenile. The trial
{¶ 9} At least two Ohio appellate courts have held, in cases factually similar to this one, that these two offenses do not merge, though for differing reasons. The Twelfth District held in State v. Highfield, 12th Dist. Brown No. CA2013-05-007, 2014-Ohio-165, that illegal manufacture of drugs and endangering children under
{¶ 10} A third reason that these two offenses do not merge is that they cannot be committed by the same conduct. By manufacturing drugs, a person does not “allow” a child “to be on the same parcel of real property and within one hundred feet.” And by so allowing a child, a person does not “manufacture or otherwise engage in any part of the production” of drugs. The conduct by which a person commits illegal manufacture of drugs is an act concerning drugs—their manufacture and production. The conduct by which a person commits endangering children under
{¶ 11} Finally, Salyer committed the offense of illegal manufacture of drugs when he did those acts involved in the “manufacture”1 and production of methamphetamine. By allowing one of the Coles’ children to be on the same property and within 100 feet of him (or, for that matter, Anthony Cole) while he did those acts, Salyer committed the offense of endangering children. The two offenses do not merge.
{¶ 12} The first assignment of error is overruled.
B. Consecutive Sentences
{¶ 13} The second assignment of error alleges that the trial court erred by ordering Salyer to serve consecutive sentences.
{¶ 14} “When imposing consecutive sentences, a trial court must state the required findings as part of the sentencing hearing * * *.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29, citing Crim.R. 32(A)(4). “On appeals involving the imposition of consecutive sentences,
{¶ 15} Salyer challenges his consecutive sentences in two ways. First, he argues
{¶ 16}
may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
* * *
(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.
The trial court here essentially repeated this statutory language at the sentencing hearing and in the sentencing entry. Using the statutory language, however, is sufficient to make the required findings. State v. Adams, 2d Dist. Clark No. 2014-CA-13, 2015-Ohio-1160, ¶ 18. “[T]he trial court was not required to provide reasons to support its findings.” Id., citing Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37. We note that the trial court here made other sentencing-related findings that are also relevant to the
{¶ 17} Salyer also argues that the facts do not justify his sentence, because consecutive sentences are disproportionate to his conduct and to the sentences that the trial court imposed on the Coles. Salyer says that his role was minimal compared with their roles. He says that they were manufacturing meth before he arrived and continued manufacturing it after he left. His was not an ongoing course of conduct, says Salyer, and he was not the leader.
{¶ 18}
{¶ 19} The record here shows that the trial court properly considered the statutory
{¶ 20} The Coles’ cases contain factors that distinguish them from Salyer’s case.2 Perhaps the most significant factor is that Salyer was convicted of all the charged offenses whereas the Coles both accepted reduced plea deals and pleaded guilty. While Anthony Cole was charged with the same six offenses that Salyer was charged with, Cole was convicted of only illegal assembly or possession of chemicals for the manufacture of drugs—which Salyer was not sentenced for, it having merged into the illegal-manufacture offenses. And we do not know what Cole’s sentence would have been if he too had been convicted of all the charges. Moreover, Cole was sentenced before Salyer’s trial, at which the State presented the testimony of numerous witnesses. The trial court could have learned additional facts at trial that led it to believe that the offenses were worse than it had initially thought.
{¶ 21} Salyer’s sentence is undoubtedly harsh. But as the Eighth District has said:
It is important to understand that the “clear and convincing” standard applied in
R.C. 2953.08(G)(2) is not discretionary. In fact,R.C. 2953.08(G)(2) makes it clear that “[t]he appellate court’s standard for review is not whether the sentencing court abused its discretion.” As a practical consideration, this means that appellate courts are prohibited from substituting their judgment for that of the trial judge.It is also important to understand that the clear and convincing standard used by
R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court’s findings. In other words, the restriction is on the appellate court, not the trial judge. This is an extremely deferential standard of review.
State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 20-21 (8th Dist.). We do not clearly and convincingly find that the trial court’s findings are not supported. Therefore we must defer to its sentencing decision.
{¶ 22} The second assignment of error is overruled.
C. Sufficiency of the Evidence
{¶ 23} The third assignment of error alleges that there is insufficient evidence to support any of the convictions for illegal manufacture of drugs.
{¶ 24} “[A]n 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
{¶ 25} There is testimony that shows Salyer manufactured methamphetamine in each of the three locations alleged by the illegal-manufacture charges—at or near the train tracks behind the Coles’ property, in a tent in the yard, and inside the house. Anthony Cole testified that Salyer went back to the train tracks to make meth. And the Coles’ son, when asked whether he “ever saw [Salyer] take meth or make drugs out by the train tracks,” answered, “Yes. Him and my dad took all kinds of this stuff and walked back to the train tracks.” (Trial Tr. 189). Anthony Cole also testified that he watched Salyer first start making meth in the tent. And one of the Coles’ daughters testified that she saw Salyer in the tent using her hair dryer to dry the cooked meth. Anthony Cole testified that Salyer made meth in the house too, in his son’s room, which they were letting Salyer use while he stayed with them. And the Coles’ daughter testified that she saw Salyer making meth in her brother’s room. The Coles’ son testified that he saw Salyer making meth in a Mountain Dew bottle, while sitting on the couch. Viewing this testimony in a light most favorable to the State, a reasonable factfinder could find that Salyer knowingly manufactured methamphetamine near the train tracks, in the tent, and in the house.
{¶ 26} Salyer was also found guilty of the juvenile specification, which acts as a penalty enhancement, attached to each of the illegal-manufacture offenses.
{¶ 27} By statute, “[a]n offense is ‘committed in the vicinity of a juvenile’ if the offender commits the offense within one hundred feet of a juvenile or within the view of a juvenile, regardless of whether the offender knows the age of the juvenile, whether the offender knows the offense is being committed within one hundred feet of or within view of the juvenile, or whether the juvenile actually views the commission of the offense.”
{¶ 28} Salyer claims that his trial counsel was ineffective because counsel did not move for acquittal, under Crim.R. 29, as to the charge that he manufactured
{¶ 29} The third assignment of error is overruled.
II. Conclusion
{¶ 30} We have overruled all of the assignments of error. The trial court’s judgment is affirmed.
DONOVAN, J., and WELBAUM, J., concur.
Copies mailed to:
Kevin Talebi
Jane A. Napier
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Nick A. Selvaggio